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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). Ira TUCKER, Appellant, v. UNITED STATES of America, Appellee. No. 17993. United States Court of Appeals Fifth Circuit. May 27, 1960. Charles V. Silliman, Gladstone L. Kohloss, Orlando, Fla., for appellant. Don M. Stichter, Special Atty., Robert F. Nunez, Asst. U. S. Atty., Tampa, Fla., E. Coleman Madsen, U. S. Atty., Miami, Fla., for appellee. Before TUTTLE, CAMERON and JONES, Circuit Judges. PER CURIAM. The appellant was convicted of possession of moonshine liquor. He appeals, saying the evidence is insufficient to sustain a conviction. Across the street from appellant’s residence is a “jook”, the Moonlight Club, operated by appellant’s wife with some help from him. Behind the Club was an open tract supposedly owned by a person identified only as “Pete the Tailor”. The appellant and two others were each permitted to keep hogs in separate pens on these premises and each had a nearby cooking machine for preparing food for his hogs. A deputy sheriff found nine gallon jugs of unstamped whiskey near the appellant’s cooking machine. The appellant was charged with its possession. The deputy testified that he had taken moonshine “off a lot of customers at the jook.” No more than this was adduced to identify the appellant with the liquor. It is not enough. No control or dominion of the contraband by the appellant is shown. Construing the evidence most favorably to the verdict, we conclude it does not sustain a verdict of guilt. The court should have directed an acquittal of the appellant. The judgment and sentence of the district court is reversed and a judgment of acquittal is here rendered for the appellant. Reversed and rendered. 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 IDAHO DEPARTMENT OF EMPLOYMENT v. SMITH No. 76-1291. Decided December 5, 1977 Per Curiam. Petitioner challenges a ruling of the Idaho Supreme Court that the denial of unemployment benefits to otherwise eligible persons who attend school during the day violates the Equal Protection Clause of the Fourteenth Amendment. Idaho Code § 72-1312 (a) (1973) states that “no person shall be deemed to be unemployed while he is attending a regular established school excluding night school . . . The Idaho Supreme Court held that this provision impermissibly discriminates between those unemployed persons who attend night school and those who attend school during the day and that petitioner could not constitutionally deny unemployment benefits to an otherwise eligible person such as respondent whose attendance at daytime classes would not interfere with employment in her usual occupation and did not affect her availability for full-time work. We grant the petition for certiorari and reverse the judgment of the Idaho Supreme Court. The holding below misconstrues the requirements of the Equal Protection Clause in the field of social welfare and economics. This Court has consistently deferred to legislative determinations concerning the desirability of statutory classifications affecting the regulation of economic activity and the distribution of economic benefits. “If the classification has some 'reasonable basis/ it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.’ ” Dandridge v. Williams, 397 U. S. 471, 485 (1970), quoting Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78 (1911). See also Massachusetts Board of Retirement v. Murgia, 427 U. S. 307 (1976); Mathews v. De Castro, 429 U. S. 181 (1976); Jefferson v. Hackney, 406 U. S. 535 (1972). The legislative classification at issue here passes this test. It was surely rational for the Idaho Legislature to conclude that daytime employment is far more plentiful than nighttime work and, consequently, that attending school during daytime hours imposes a greater restriction upon obtaining full-time employment than does attending school at night. In a world of limited resources, a State may legitimately extend unemployment benefits only to those who are willing to maximize their employment potential by not restricting their availability during the day by attending school. Moreover, the classification serves as a predictable and convenient means for distinguishing between those who are likely to be students primarily and part-time workers only secondarily and thus ineligible for unemployment compensation and those who are primarily full-time workers and students only secondarily without the necessity of making costly individual eligibility determinations which would deplete available resources. The fact that the classification is imperfect and that the availability of some students desiring full-time employment may not be substantially impaired by their attendance at daytime classes does not, under the cases cited supra, render the statute invalid under the United States Constitution. Reversed. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_applfrom	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). MONTGOMERY WARD & CO., Inc., v. GIBBS. Circuit Court of Appeals, Fourth Circuit. June 12, 1928. No. 2705. 1. Patents <§=328 — Patent No. 1,540,691, claim 16, for improvements in animal traps, held valid, and infringed. by trap covered by patent No. 481,582. Gibbs patent, No. 1,540,691, claim 16, for improvements in traps for capture of fur-bearing animals, held valid, and infringed by trap covered by Green patent, No. 481,582. 2. Patents <§=185 — Component, valuable and patentable part of whole patented article, is inventor’s property. A component part, in itself valuable and properly patentable, claimed as part of whole patented article, is the property of the inventor. 3. Patents <§=328 — Patent No. 1,540,691, for improvements in animal traps, held not void, as embodied in prior Gibbs patent, No. 1,458,286. Gibbs patent, No. 1,540,691, claim 16, for improvements in traps for capture of fur-bearing animals, held not void for double patenting, as embodied in prior Gibbs patent, No. 1,458,-286, which was copending and described, but did not claim, similar trap. 4. Patents <@=120 — 'That Jwo copending patents make identically same disclosure is immaterial, if same elements are not found in combination set forth in two claims. That earlier and later of two copending patents make identically the same disclosure is immaterial, if the same elements are not found in combination set forth in the two claims. 5. Patents <§=120 — All features of patented article need not be claimed in first patent issued. There is no law requiring that all features of a patented article must be claimed in the first patent issued. 6. Patents <§=120 — Disclosure of invention of second patent in earlier copending patent, not claiming it, is not fatal. That invention of second patent is disclosed in earlier patent is not fatal, if it is not claimed therein and applications for both patents were copending. 7. Patents <§=120 — Issuance of first patent, not disclosing invention claimed in copending application for second patent, does not abandon unclaimed matter. Where two applications for patents on separate inventions are copending, issuance of the first patent does not abandon unclaimed matter in its disclosure; pendency of second application rebutting such inference. 8. Patents <§=226 — Equity court, in patent infringement suit, considers very seriously lack of good faith, as in taking basic principles of employer’s invention on returning to competing employer. Lack of good faith, as in taking basic principles of employer’s invention on leaving employment to return to competing employer, is an element which court of equity always considers with great seriousness in patent infringement suit. Appeal from the District Court of the United States for the District of Maryland, at Baltimore; Morris A. Soper, Judge. Suit by Walter A. Gibbs against Montgomery Ward & Co., Incorporated. Decree for complainant (19 F.[2d] 613), and defendant appeals. Affirmed. Charles H. Wilson, of New York City (Louis Marshall, of New York City, and John E. Cross, of Baltimore, Md., on the brief), for appellant. Kennard N. Ware, of Philadelphia, Pa. (Howson & Howson, of New York City, John T. Tucker, of Baltimore, Md., and Charles H. Howson, of New York City, on the brief), for appellee. Before PARKER, and NORTHCOTT, Circuit Judges, and GRONER, District Judge. NORTHCOTT, Circuit Judge.- This is an appeal to review a deeree entered in the District Court of the United States for the District of Maryland, which adjudged valid, and infringed by appellant, claim 16 of patent to W. A. Gibbs, appellee, No. 1,540,691, patented June 2, 1925, and issued on application filed November 12, 1920. The deeree complained of was entered on July 1, 1927. The patent relates to improvements in traps designed for the capture of fur-bearing animals. While appellant, Montgomery Ward & Co., Incorporated, who sold some of the traps in the city of Baltimore, were the nominal defendants below, the suit was in fact defended by the Triumph Ti-ap Company, of Oneida, N. Y., manufacturers of traps. For convenience, the plaintiff appellee will be here designated as the plaintiff, and the defendant appellant as the defendant; manufacturers of the alleged infringing trap 'as the Trap Company. Plaintiff - owns a marsh in -Maryland, where he-traps muskrats for profit. He also manufactures traps on a commercial scale in his factory, at.Chester, Pa. In pursuing the trapping of muskrats, plaintiff conceived the idea that the traps being used could be improved on. After experimentation, the trap, shown in the patent in suit, was evolved, and plaintiff took steps to patent his invention. In April, 1919, plaintiff took a model trap to Oneida, N. Y., where he exhibited it to officials of the Trap Company, and offered his trap to them, with a view to making a contract on a royalty or some similar basis. Among the officials interviewed by the plaintiff at this time was H. G. Green, at that time factory superintendent for the Trap Company. , Failing to come to any agreement with the officials of the Trap Company, plaintiff decided to manufacture the traps himself, and in September, 1919, his traps appeared on the market. Since that time several millions have been sold by the plaintiff. Plaintiff employed Green, and, with his assistance and advice, organized his factory at Chester. Green left the employ of the Trap Company on May 29,1919, and went to Chester on or about June 1. Green remained with plaintiff until October 1, 1919, when he returned to the employ of the Trap Company, where he stayed for approximately a period of five years. Plaintiff applied for a patent on the trap on November 12, 1920, and, with one unimportant exception, disclosed the same structure which he had exhibited to Green April 14,1919. Green filed an application for patent, No. 481,582, on June 28, 1921, covering the trap subsequently manufactured by the Trap Company, and claimed here to be the infringing trap. The defendant sold the Green trap through its place of business in the city of Baltimore, and plaintiff brought suit, claiming infringement. The judge below, in an able opinion, exhaustively discussed the numerous mechanical questions arising, and reached the conclusion that the plaintiff’s patent was valid, and that the trap, sold by defendant and manufactured by the Trap Company, infringed the patent of the plaintiff, and entered a deeree to that effect, from which decree this appeal was taken. Two questions are raised on behalf of defendant: (1) That the plaintiff’s patent is invalid; and (2) that the trap sold by the defendant did not infringe plaintiff’s patent. Four questions are raised as to the invalidity of plaintiff’s patent, No. 1,540,691, which are as follows: First, that claim 16, the only claim of the patent held valid by the judge below, and, in view of the fact that there is no cross-appeal here, the only one necessary to be considered by us, is drawn to an inoperative device; second, that it is anticipated by prior art patents; third, that it is void for double patenting; and, fourth, claim 16 is void because, though appearing in a later issued patent, it expresses no different inventive thought or conception over the claimed invention of an earlier patent issued to the plaintiff. We will consider these objections in the order in which they are named. Claim 16 is as follows: “In an animal trap, the combination with a pair of pivotally mounted jaws, a latch for maintaining the jaws in open relation, a treadle operatively associated with the latch and mounted between the jaws when the latter are open, a closing lever embracing the jaws and pivotally mounted at 'one side of the trap intermediate the jaw pivots and a spring adapted to actuate the lever to close the jaws.” This claim, while it is for a single-jawed trap, is inserted in the application for a double-jawed trap. It is contended on behalf of defendant that it would not operate as a single-jawed trap. That this contention was not sound was clearly demonstrated in the argument before this court. The single-jawed trap included in the double-jawed trap, and covered by claim, could be set and sprung independently of the second pair of jaws. In addition to this, it is proven that practically that part of the double-jawed trap, which is described by claim 16, could be manufactured, with unimportant changes, and sold as a single-jawed trap. This was done both by the plaintiff and the Trap Company. This point was not discussed by the judge below, probably because it was not urged there; but we can see no reason why a component part, in itself valuable, and properly patentable, claimed as a part of the whole, is not the property of the inventor. The authorities relied upon on behalf of the defendant themselves lay down the principle that the invention must be shown to be worthless for the patent to fail. Bliss v. Brooklyn, Fed. Cas. No. 1546, 10 Blatchf. at page 521, and in Coupe et al. v. Boyer et al., 155 U. S. 565, 15 S. Ct. 199, 39 L. Ed. 263, the court says that the question is: Will the machine do the work at all? It is clear in the present case that the trap will do the work. In Mastoras v. Hildreth (C. C. A.) 263 F. 571, the rule is laid down that a device need not be perfect to escapevthe charge of inoperativeness, and a full discussion of that point, citing a number of authorities, will be found in that ease. We are of the opinion that the first ground of objection to the validity of the patent is not sound. On the second ground, that claim 16 is anticipated by prior patents, the judge below in his opinion says: “The defendant cites against claim 16 a number of patents, of which the most important are the Rasmussen patent, supra, and the Underwood patent, No. 834,539 of 1906. The closing lever of the Rasmussen trap is not mounted at one side, and hence it does not possess the important advantages of such a construction. The Underwood trap, on the other hand, while it does not claim a location of the pivotal mounting at one side of the trap, does show such a construction; but in this trap, the springs themselves are extended to embrace and actuate the jaws, and hence the advantages of an independent lever are lost. It consequently appears that one of the two important elements in claim 16 is suggested by the Rasmussen patent and the other by the Underwood patent. The question of invention depends upon whether it was patentable in the state of the art to combine these two elements together with the other elements of claim 16 to make the trap covered by the patent in suit. The Patent Office held that it was invention, and after careful consideration of the evidence and of the patents cited, it does not appear that the presumption of invention arising from the issuance of the patent has been overcome. The practical advantages of the new device, as compared with prior traps on the market, has been demonstrated. The adoption of substantially the same trap by the Triumph Trap Company is itself strong evidence of invention.” It seems clear that the plaintiff’s patent was not anticipated by any single patent, and that all of its advantages were not anticipated by all the patents to be found upon search. Green, who constructed the alleged infringing trap, admitted that he knew of the Rasmussen, Boddis, and Underwood patents while endeavoring to construct a practical trap, which he was not able to do, until he saw the Gibbs trap in April, 1919. Evidently the element of invention did enter into Gibbs patent, and we are of the opinion that the second ground of objection to the validity of the patent is not good. As to the third objection that the patent is void for double patenting, based on the claim that the patent in suit was embodied in the prior Gibbs patent (No. 1,458,286), we find that these two patents, the prior Gibbs and the one in suit, were eopending, and while a somewhat similar trap was described in patent No. 1,458,286, it was hot there claimed as in claim 16, although described. On this point the judge below says: “In the ease at bar, on the contrary, claim 16 of the patent in suit was filed as an amendment on September 27, 1922, when the first patent was still pending. The first patent was not issued until June 12,1923. The ease at bar therefore falls squarely within the rule laid down in the cases involving the patents of the Thomson-Houston Electric Company in the Second and Sixth circuits, also cited by the defendant. Eor instance, it is held in Thomson-Houston Electric Company v. Elmira & H. Ry. Co. [C. C. A.] 71 F. 396, 404, that an inventor, by describing an invention in a patent granted to him, does not necessarily preclude himself from patenting it subsequently, when the applications for both patents are pending together in the Patent Office. * * * “Moreover, it seems that in the judgment of the Patent Office, the necessity for a divisional application existed when the application for the first Gibbs patent was pending. The drawings which accompanied the patent showed two differing constructions of the closing mechanism of the primary trap. The closing device in some of the drawings consisted of a tangential extension of the spring itself, while in others, a closing lever independent of the spring was shown. The Patent Office held that two sets of claims, each set covering a different closing device, could not stand together in the same patent, and that division was necessary. Claim 10 was placed by the Patent Office in that class of claims which covered a closing device consisting of an extension of the spring. After this ruling was made, the applicant no longer pressed the claims which described an independent closing lever, and did not file "a divisional application. But the patent in suit having been subsequently applied for, claims 14, 15, and 16, showing an independent closing lever, were added thereto. Under the rulings of the Patent Office, claim 16 could not have been united with claim 10. It could only be filed in a «divisional application or as was actually done in an independent patent. This procedure is within the rule of the eases cited. “It is conceivable that a second patent covering subject-matter described but not claimed in a eopending prior patent, may be so long delayed through the fault of the patentee that in the interval, rights may be acquired by other persons which the patentee will be estopped to deny. But there is no ground for an estoppel under the circumstances of this ease since the defendant began to imitate the Gibbs trap long before the first Gibbs patent was issued. The defense of double patenting is without foundation.” The ease of Miller v. Eagle, 151 U. S. 186, 14 S. Ct. 310, 38 L. Ed. 121, chiefly relied upon on behalf of defendant, on this point is easily distinguishable from the present ease, because in that case the patents in comparison contained claims covering the same combination of elements. The only difference being in the functions ascribed to one of the elements. Double patenting was held there because the combination of element was the same, which is not the ease here. It is immaterial, that the earlier and later of two eopending patents, make identically the same disclosure, if the same elements are not found in the combination set forth in the two claims under comparison. Thomson-Houston Electric Co. v. Black River Traction Co. (C. C. A.) 135 F. 759. Claim 10 in the first Gibbs patent is for a combination of four elements, to wit: (a) The pivotally mounted jaws (1); (b) the spring having two separated helices (12b) ; (c) the shaft (13a); (d) bearings for the ends and middle of the shaft (apertures in the stationary jaw 22 for the ends and the block 20 in the middle). Claim 16 of the later patent has the following five elements: (a) The pivotally mounted jaws (4, 4a); (b) a latch (10); (e) a treadle (11); (d) a closing lever (10)-, (e) aspring (18,19). Of the five elements in claim 16, only two of the elements of claim 10 appear. And the closing lever, which is the very essence of the combination of claim 16 of the patent in suit, is not an element of claim 10 of the earlier patent. There is no law requiring that all features must be claimed in the first patent issued. Suffolk Co. v. Hayden, 3 Wall. 315, 18 L. Ed. 76; Century Co. v. Westinghouse (C. C. A.) 191 F. 350; Elec. Co. v. Brush Co. (C. C. A.) 52 F. 130; Thomson-Houston Co. v. Elmira (C. C. A.) 71 P. 396; Badische v. Klipstein (C. C.) 125 F. 543. It is not fatal if the invention of the second patent is disclosed in the earlier patent, provided it is not claimed there, and the applications for the two patents were copending. Traitel Co. v. Hungerford (C. C. A.) 22 F.(2d) 259. We agree with the judge below that the claim that the patent is void for double patenting is not well founded. The fourth objection to the validity of the -patent is virtually disposed of by the holding as to the third objection. Counsel for defendant rely on Milburn Co. v. Davis, 270 U. S. 390, 46 S. Ct. 324, 76 L. Ed. 651, but in that case the two applications were by different inventors, and the ease is not in point. Claim 16 of the later patent, although disclosed, was not claimed in the prior patent issued to Gibbs. Where two applications are copending, it is a matter of indifference which of the patents is issued first, provided the claims are for separate inventions. “The issuance of the first patent does not abandon the unclaimed matter in its disclosure, the pendency of the second application rebutting any such inference.” Traitel Co. v. Hungerford, supra. In addition to these reasons given for sustaining validity of plaintiff’s patent, we are also of the opinion that the weight necessarily given to the issuance of the patent by the Patent Office of the United States, coupled with the fact that the Gibbs patent has been well received, and commercially successful, all lead us to the conclusion that the*patent is valid. We now come to the second defense, that the trap manufactured by the Trap Company and sold by the defendant does not infringe the patent in suit. On this point the judge below' says: “Finally the defense is made, that the defendant’s trap does not infringe the patent in suit, since it is said the closing lever is not pivotally mounted between the jaw pivots. The lever in the Gibbs trap is provided at the lower end with two lugs, each of which is provided with a hole through which the pivot pin passes at one of its ends. At its other end, the pivot pin is attached to the base of the trap. Thus the pin is held fast as an axis or pivot on which the lever turns when moved by the coiled spring encircling it. The lever in the defendant’s trap is similarly provided with perforated lugs to which the pivot pin is made fast. The spring encircles and supports the pin. The defendant claims, therefore, that its lever is spring supported and is not pivotally mounted. The expression ‘to pivot,’ however, means ‘to turn or swing on a pivot.’ In the ease of each trap, it is true that the lever is pivotally mounted. While the pin in the Gibbs trap is stationary, and the lever turns thereon, the pin in the defendant’s trap turns with the lever itself, being supported by the coil spring as a hearing. In each chse, the purpose is to hinge the lever arm, so as to permit it to swing freely, as distinguished from the riveted connection of the leaf spring secured to the base in the traps of the prior art. The mechanical equivalency of the two devices is clear, and infringement is established. “Indeed, the defense of lack of infringement seems to be an after thought on the part of the defendant. In his application for a patent on the defendant’s trap, Green refers in numerous places to the pin or rod as the pivotal support for the actuating lever, and to the coiled spring as forming a housing or bearing for the pivotal supporting member of the lever. Moreover, in the interference proceedings which originated at the instance of Green and defendant’s attorney, after the institution of the case at bar, Green added claims 14,15, and 16 of the patent in suit to his application as covering his trap, wherein as appears above, the closing lever is described as pivotally mounted. Under these circumstances, his testimony in the pending case that his trap is not pivotally mounted is not persuasive. Infringement is made out.” We agree with this conclusion, and, in addition to the reason cited by the trial judge, the fact that witness Green, formerly.superintendent for the Trap Company, which company is the real defendant in this case, was in the employ of the plaintiff, and left that employment to go back to the Trap Company, taking with him the basic and fundamental principles of the Gibbs invention, brings into the case an element of lack of good faith, an element which a court of equity always considers with great seriousness. We are of the opinion that the decree complained of should he affirmed. Affirmed. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_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. GRACE LINE, INC., a corporation, and S.S. SANTA JUANA, Appellant, v. Michael J. KANTON, Appellee. No. 20636. United States Court of Appeals Ninth Circuit. Sept. 8, 1966. See also, D.C., 234 F.Supp. 409. Edward S. Franklin, John P. Sullivan, Bogle, Gates, Dobrin, Wakefield & Long, Seattle, Wash., for appellant. Harold F. Vhugen, Levinson & Friedman, Seattle, Wash., for appellee. Before BARNES, HAMLEY and JERTBERG, Circuit Judges. PER CURIAM: The Supreme Court of the United States in Reed v. The YAKA, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963), found in effect that the bareboat charter made the stevedore employer the owner of the boat for the duration of the bareboat charter. It held the stevedore employee could maintain a libel in rem against the vessel for injuries resulting from the unseaworthiness of the vessel, and that the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950, did not provide an exclusive remedy. We find the facts of this case undistinguishable. The District Court made the following Finding of Fact No. 20: “That the sum of $4,822.05 was paid to libelant in compensation. That $1,490.10 in reasonable medical costs were paid to furnish necessary care and treatment of libelant’s injuries. That respondent and claimant are entitled to offset the sum of $4,822.05 paid in compensation. That if libelant had incurred said medical costs directly, he would be entitled to an award in that amount. That respondent and claimant are not entitled to an offset of said medical costs.” We concur, and affirm on this issue. Affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_numresp	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. In the Matter of Banque de Financement, S. A., Debtor. BANQUE de FINANCEMENT, S. A., Appellant, and Firestone Tire and Rubber Company, Intervenor in support of Appellant, v. The FIRST NATIONAL BANK OF BOSTON, and The Chase Manhattan Bank, N. A., Appellees. No. 447, Docket 76-5026. United States Court of Appeals, Second Circuit. Argued Dec. 17, 1976. Decided Aug. 30, 1977. Paul B. Bergman, New York City (Ford Marrin Esposito Witmeyer & Bergman, New York City, on the brief), for debtor-appellant Banque de Financement, S. A. James C. Blair, New York City (Cleary, Gottlieb, Steen & Hamilton, New York City, on the brief), for intervenor Firestone Tire & Rubber Company in support of appellant. Thomas A. Shaw, Jr., New York City (Thomas H. Walsh, Jr., and Breed, Abbott & Morgan, New York City, on the brief), for appellee The First National Bank of Boston. Peter A. Copeland, New York City (Mil-bank, Tweed, Hadley & McCloy, New York City, on the brief), for appellee The Chase Manhattan Bank, N. A. Before MULLIGAN, TIMBERS and VAN GRAAFEILAND, Circuit Judges. TIMBERS, Circuit Judge: On this appeal from a judgment entered July 29, 1976 in the Southern District of New York, Robert J. Ward, District Judge, affirming an order entered January 13, 1976 by Roy Babitt, Bankruptcy Judge, which dismissed as improvidently filed the debtor’s petition under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701 et seq. (1970), the essential question is whether under the circumstances of this case it was appropriate for the bankruptcy court to exercise its inherent power to dismiss a Chapter XI petition as improvidently filed. We hold it was not. We reverse and remand with instructions. I. FACTS Debtor-appellant Banque de Financement, S. A. (Finabank) is a Swiss banking corporation. It neither does business nor maintains any office in the United States. In late December 1974 Finabank sustained a $46,000,000 loss when Edilcentro International Ltd. (Edilcentro), a Bahamian subsidiary of an Italian banking corporation, Societa Generale Immobiliare (SGI), defaulted on certain outstanding foreign exchange contracts with Finabank. This precipitated Finabank’s insolvency. On January 10, 1975 Finabank filed with the Court of Justice of the Canton of Geneva a petition for a “sursis bancaire”, or postponement of maturity. Under the applicable Swiss statute the filing of this petition resulted in an interlocutory moratorium period and the appointment by the Court. of Justice on January 20, 1975 of a provisional commissioner, FIDES Societe Fiduciare (FIDES), a Swiss accounting corporation, to review Finabank’s affairs and determine the feasibility of rehabilitation. After the appointment of FIDES as provisional commissioner, Finabank’s Swiss counsel entered into negotiations with SGI with a view to settling Edilcentro’s obligation to Finabank. Until mid-May 1975 counsel entertained a serious hope that the negotiations would result in a recovery sufficient to permit Finabank to effect a successful reorganization and reenter the banking business. But then the outlook became discouraging. As a result on June 19 Finabank withdrew its January 10 petition for a “sursis bancaire” and substituted a petition for a “sursis concordataire”, a banking moratorium. The Court of Justice granted this petition on July 14. This action did not necessarily foreclose Finabank’s rehabilitation. The “sursis concordataire” moratorium procedure contemplated either rehabilitation or liquidation depending on subsequent events. Accordingly the Court of Justice, in its opinion of July 14 which explicitly recognized the possibility of successful reorganization, appointed two additional commissioners to serve with FIDES and directed the commissioners to take the steps necessary to effect an arrangement with Finabank’s creditors. Thereafter matters stood in abeyance while another round of negotiations was conducted with SGI. On July 9, 1976 the commissioners, having determined that no rehabilitation could be expected, filed a petition for a “concordat par abandon d’actifs”, a court-supervised liquidation. The Court of Justice ordered Finabank’s liquidation in December 1976. Backing up for a moment to the time of Finabank’s insolvency in December 1974, we turn to the events in the United States which resulted in the instant Chapter XI petition. Finabank had $12,500,000 on deposit at Continental Bank International (CBI) in New York City at the time Edil centro defaulted. The Edilcentro default caused Finabank in turn to default on its foreign exchange contracts with appellees The First National Bank of Boston (FNBB) and The Chase Manhattan Bank, N. A. (Chase). In January 1975 FNBB and Chase commenced separate breach of contract actions against Finabank in the Southern District of New York. FNBB claimed $9,176,375, Chase $491,000. In these actions both banks obtained orders of attachment in the amounts claimed. Chase levied on January 6, FNBB on January 20, the dates the respective actions were commenced. On May 5, only a few hours before the expiration of the four month limitation period provided for the avoidance of a preferential transfer by Bankruptcy Act § 60a(l), 11 U.S.C. § 96(a)(1) (1970), with respect to the Chase attachment, Finabank filed a petition for an arrangement under Chapter XI. There followed a series of protracted proceedings which resulted in Judge Babitt’s order of January 13, 1976 granting the motions by FNBB and Chase to dismiss the petition. Finabank had requested the bankruptcy court to bide its time in the hope that a plan of rehabilitation could be effected in Switzerland; and that such plan, if submitted and approved in the Chapter XI proceeding, would result in the joint administration of all assets of Finabank. But nothing came of the negotiations with SGI during the summer and fall of 1975. Finabank was unable to submit to the bankruptcy court a plan of arrangement, the confirmation of which of course is the objective of a Chapter XI proceeding. At hearings held on June 10, July 8, and August 19, Judge Babitt expressed growing doubt as to whether Finabank ever would be able to obtain rehabilitation in the bankruptcy court. Finabank’s counsel responded to the judge’s queries with a realistic assessment of Finabank’s proceedings in Switzerland; he stated that, while a plan still might be formulated successfully, only a “slim” likelihood remained. On August 19 the judge ordered Finabank to file its plan of arrangement by September 3. No plan was filed by that date. Thereafter four further extensions were granted but no plan was ever filed. Finabank’s inability to submit a plan of arrangement was not its only difficulty in the bankruptcy court. Among other things, its petition failed to include a complete list of creditors as required by Bankruptcy Act § 324(1), 11 U.S.C. § 724(1) (1970), and Bankruptcy Rule ll-ll(b). Finabank did disclose the names of those foreign and domestic banks which were its creditors. But, constrained by the Swiss banking secrecy laws and their criminal penalties, it included neither the names nor the addresses of its individual depositors. According to FNBB’s expert on Swiss law, the Swiss banking secrecy laws “effectively prohibit... Finabank.. from furnishing to a foreign court, or from directly or indirectly making public, the names and addresses of its depositors or creditors or divulging information concerning their dealings with Finabank, even after the filing of a plan for composition with creditors or a bankruptcy.” Finabank does not dispute this. In his opinion of January 12, 1976 granting the motion of FNBB and Chase to dismiss the Chapter XI petition, Judge Babitt rested his decision on two grounds. First, he held that Finabank was a “banking corporation” within the meaning of Bankruptcy Act § 4a, 11 U.S.C. § 22(a) (1970), which could not seek relief under the Bankruptcy Act. Second, with respect to Finabank’s default in filing a plan and its failure to file a complete list of creditors, the judge concluded that because “this Chapter XI cannot comply with the most elementary and preliminary provisions of the Act, much less with successful end result,” there was “neither purpose to achieve the desired result nor likelihood of doing so.” Accordingly the judge granted the motion to dismiss in the exercise of the bankruptcy court’s inherent power to dismiss a Chapter XI petition where no prospect of rehabilitation appears, citing Ira Haupt & Co. v. Klebanow, 348 F.2d 907 (2 Cir. 1965) (per curiam). See also SEC v. United States Realty and Improvement Co., 310 U.S. 434 (1940). On Finabank’s petition to review the order of the bankruptcy court, Judge Ward in his opinion of July 28, 1976 affirmed the dismissal of the petition. By the time Finabank’s petition to review was heard, the first ground upon which the bankruptcy court had rested its decision had become foreclosed by our decision of May 25, 1976 in In re Israel-British Bank (London), Ltd., 536 F.2d 509 (2 Cir.), cert. denied, sub. nom. Bank of the Commonwealth v. Israel-British Bank (London) Ltd., et al., 429 U.S. 978 (1976), which held that a foreign bank is not a “banking corporation” within the meaning of Bankruptcy Act § 4a. Judge Ward affirmed the bankruptcy court on its second ground, holding that it properly had exercised its discretion in dismissing the petition. From the judgment entered on Judge Ward’s opinion, Finabank has taken this appeal. II. BANKRUPTCY COURT’S INHERENT POWER TO DISMISS A CHAPTER XI PETITION The “inherent power” upon which the bankruptcy court relied in dismissing Finabank’s petition draws in question the debt- or’s good faith in petitioning for relief under Chapter XI. The Supreme Court’s decision in SEC v. United States Realty and Improvement Co., supra, is the principal source of authority. There, relying on the equitable principles which temper the exercise of jurisdiction by the bankruptcy court, the Court implied a power to dismiss a Chapter XI petition so as to remit the debt- or to more appropriate relief under Chapter X. See also Mecca Temple of Ancient Arabic Order of Nobles of Mystic Shrine v. Darrock, 142 F.2d 869 (2 Cir.), cert. denied, 323 U.S. 784 (1944). In Ira Haupt & Co. v. Klebanow, supra, we applied the United States Realty principle to a Chapter XI petition which had been filed without hope of rehabilitation where the dismissal had the effect of remitting the debtor to straight bankruptcy. Broad as such inherent power is, the circumstances under which it may be invoked are limited by the express terms of the Bankruptcy Act. Cf. SEC v. United States Realty and Improvement Co., supra, 310 U.S. at 455. Specifically, most dismissals prompted by circumstances which arise after the filing of the petition — such as failure to file the required statements and schedules or to submit a plan — are subject to the provisions of Bankruptcy Act § 376, 11 U.S.C. § 776 (1970), and Bankruptcy Rule 11-42(b). These provisions differ from an inherent power dismissal in that they permit dismissal or adjudication only after hearing on notice to the debtor and creditors, subject to the requirement that the action be in “the best interest of the estate.” See 8 Collier on Bankruptcy ¶ 4.12, at 414 n. 2 (Moore ed. 1976). The bankruptcy court here rested the exercise of its inherent power on two grounds — that the “sole purpose” of the proceeding was to frustrate the creditors’ attachments rather than to formulate an arrangement, and that the debtor had failed to file a complete list of creditors. We turn now to an examination of each of these two grounds in the light of the general principles set forth above. (A) No Intention to Effect Rehabilitation In finding that Finabank never intended to pursue the Chapter XI proceeding to obtain confirmation of a plan of arrangement, the bankruptcy court looked to events — e. g., Finabank’s multiple defaults in filing a plan and its counsel’s concessions regarding the likelihood of rehabilitation— which occurred after the petition was filed on May 5, 1975. Although such post-filing events may be probative of an absence of intent to seek an arrangement at the time of filing, see In re Tinkoff, 85 F.2d 305, 307, 309 (7 Cir. 1936), they fall short of supporting the bankruptcy court’s exercise of inherent power in the instant case. In filing its Chapter XI petition Finabank instituted a proceeding which in effect was ancillary to the pending moratorium in Switzerland. As a result its motivations and expectations on May 5 and its alleged dilatory conduct thereafter cannot be determined without reference to events in Switzerland. On May 5 the Swiss provisional commissioner was still in the process of determining the feasibility of a “sursis bancaire”. Success in its negotiations with SGI was the critical objective. Finabank’s Swiss counsel claims to have had hopes of success as of May 5. Possible rehabilitation remained a generally recognized possibility even after the “sursis concordataire” substitution of June 19. Not until July 1976— more than a year later — was all hope formally abandoned. Since, as a practical matter, rehabilitation in the United States depended upon the approval of a plan in Switzerland, Finabank realistically had no choice but to delay the filing of a plan of arrangement in the bankruptcy court. We do not take issue with the bankruptcy court’s finding that the need to frustrate the attachments caused Finabank to file its Chapter XI petition. But that alone does not establish an absence of intent to seek rehabilitation. And, in view of the objective of the Bankruptcy Act of insuring equal distribution of assets among general creditors, such filings should not be discouraged, even under Chapter XI. See In re Israel-British Bank (London) Ltd., supra, 536 F.2d at 513. ' It also must be borne in mind that Finabank, in seeking relief under the Bankruptcy Act in aid of its Swiss proceeding, had no practical alternative to a Chapter XI petition. Straight bankruptcy would have conflicted with the Swiss rehabilitation proceeding. We conclude that the bankruptcy court was clearly erroneous, see Bankruptcy Rule 810, in finding that Finabank never intended to pursue its Chapter XI proceeding for purposes of rehabilitation. We hold therefore that the first ground of the bankruptcy court’s inherent power dismissal lacked the necessary underpinning. (B) Incomplete List of Creditors This brings us to the second ground of the bankruptcy court’s inherent power dismissal — Finabank’s failure to file a complete list of creditors pursuant to Bankruptcy Act § 324(1), 11 U.S.C. § 724(1) (1970), and Rule ll-ll. The requirement with which Finabank found itself unable to comply is phrased in mandatory terms: Under Rule ll-ll(a), “The debtor shall file with the court schedules of all his debts.... ” (emphasis added). See also Bankruptcy Act § 7a(8), 11 U.S.C. § 25(a)(8) (1970) (scheduling requirement for straight bankruptcy); 1A Collier on Bankruptcy, supra, ¶ 7.08[2], at 984. These provisions have been construed to mean what they say. E. g., In re Everick Art Corp., 39 F.2d 765, 767 (2 Cir. 1930); In re Semel, 411 F.2d 195 (3 Cir.), cert. denied, 396 U.S. 905 (1969); Carolina Motor Express Lines, Inc. v. Blue & White Service, Inc., 192 F.2d 89, 92 (7 Cir. 1951). We know of no instance where a bankrupt has been excused from this filing requirement. The question presented by Finabank’s having filed only a partial list of creditors therefore is less one of the bankruptcy court’s inherent power to dismiss the petition than one of its ability to proceed at all once it became clear that Finabank was not able to disclose the identities and claims of its individual depositors. The reason for the Bankruptcy Act’s mandatory language and the uniform application of it by the courts is obvious. The list of creditors is necessary to the conduct of the bankruptcy proceeding because it (1) gives the court information as to persons entitled to notice; (2) informs the court of the claims against the estate and the considerations upon which they rest; and (3) limits to the particular proceeding the effeet of the discharge of the bankrupt. 1A Collier on Bankruptcy, supra, ¶ 7.11[2], at 990. If this were all that is involved, we could terminate our inquiry at this point and simply hold that Finabank is to be left impaled on its inability to comply with the requirement that it file a complete list of creditors and thus be denied any Chapter XI relief. There are substantial countervailing considerations however which impel us to hold otherwise. Finabank, for the specific purpose of avoiding preferential attachments, has invoked our Bankruptcy Act to obtain an administration of assets located in this country ancillary to an administration of assets located in its foreign domicile. This type of proceeding is contemplated explicitly by Bankruptcy Act § 2a(l), 11 U.S.C. § 11(a)(1) (1970). That section, by providing a jurisdictional underpinning in property located in this country, fosters in international situations one of the basic purposes of the Act, i. e. equal distribution among creditors. The Act also permits the United States segment of such an international proceeding, whether a reorganization or a straight bankruptcy, to function essentially as an instrument to set aside preferences. Under § 2a(22), 11 U.S.C. § ll(a)(22) (1970), and Bankruptcy Rule 119, the bankruptcy court may exercise its discretion to dismiss the proceeding, or, after setting aside any preferences, to suspend the proceeding and permit assets located in this country to be administered pursuant to the domiciliary proceeding. Recently, in construing § 4a of the Act, we stressed the importance of promoting the goal of equality of distribution of assets in the international context. In re Israel-British Bank (London) Ltd., supra, 536 F.2d at 513. In our view, achievement of this goal, contemplated specifically in §§ 2a(l) and 2a(22), requires in the instant case, first, recognition of the fact that international bankruptcies can raise problems not contemplated by the Act, and then, some flexibility in responding to those problems consistent with the strong public policy which is at the core of the Act. Cf. Nadelmann, Compositions — Reorganizations and Arrangements — In The Conflict of Laws, 61 Harv.L.Rev. 804, 835 (1948). Flexibility in the international context of course should not come at the expense of the orderly administration of the Act. Ordinarily the scheduling requirements must take precedence even if preferences thereby are allowed to survive. Otherwise the administrative and equitable purposes of the scheduling requirements themselves would be frustrated. The instant case however is not an ordinary one. Aside from the policy considerations mentioned above, it differs in two material respects from those cases in which the requirement of a complete list of creditors has been strictly enforced. The debtors in those cases all sought relief from that requirement either without giving any compelling reason why they should be relieved from the statutory burden of producing the information or without offering any substitute means of satisfying the purpose of the requirement. At the evidentiary hearing on the remand which we order here, Finabank may be able to comply in both respects. As for Finabank’s reason for seeking relief from the creditors list requirement, its purpose is not to obtain some advantage over its creditors. It seeks to protect them. Nor is it attempting to pass on to a trustee the task of straightening out badly kept records. Finabank is constrained by the criminal law of its domicile. As for a substitute to satisfy the creditors list requirement, since this is a bankruptcy proceeding in aid of a corresponding proceeding abroad, a list of creditors does exist. According to Finabank, the identities and claims of the secret depositors are in the possession of the Swiss court. It suggests two possible ways of coordinating the proceeding in this country with that in Switzerland to achieve the substantial equivalent of a complete list of creditors. First, § 2a(22) and Rule 119 might be utilized. The bankruptcy court would take jurisdiction, set aside the attachments, and then suspend the proceeding and permit the assets located in this country to be administered in the Swiss proceeding. Under the second alternative, there would be a full administration in this country, coordinated with the Swiss proceeding. The Swiss court would notify the depositors who then would elect whether to appear in the proceeding here. Pro rata distribution would be achieved eventually by marshalling of assets in Switzerland which would take into account the recoveries of the creditors who appear here. We do not pass on the viability of these alternatives at this stage. Both require further factual and legal development upon remand. See note 18 supra. Suffice it to say that Finabank has proposed alternatives to the list of creditors which on their face appear to have a fair chance of satisfying the objectives of that requirement. But the bankruptcy court did not consider them. We hold that neither § 324(1) nor Rule 11-11 preclude consideration of such alternatives in this case. The problem here is novel and was not contemplated by the drafters of the scheduling requirements. This is so because the provisions which appear to be in conflict here came into the Bankruptcy Act by different routes. Proceedings in this country ancillary to foreign bankruptcies first were made possible under the 1898 Act. See Nadelmann, The National Bankruptcy Act and The Conflict of Laws, 59 Harv.L.Rev. 1025, 1035-39 (1946). The requirement of a list of creditors long predates the 1898 Act; it was carried over from predecessor statutes. See Bankruptcy Act of 1867, ch. 176, § 11, 14 Stat. 517; In re Hall, 11 F.Cas. 201 (N.D.N.Y.1868) (No. 5,922); In re Plimpton, 19 F.Cas. 874 (S.D. N.Y.1842) (No. 11,227). Far from being intended by the drafters, the result of strict enforcement of the scheduling requirements in this case would be anomalous. A rule intended to protect creditors would be applied to foreclose equal distribution of the assets among creditors in a situation where the objectives of the rule might well be satisfied by other means. In our view the scheduling requirements should be construed, under the unusual circumstances of this case and depending upon the further evidence adduced upon remand, to prevent the anomalous result which otherwise would occur. We hold that Finabank’s petition was not inherently defective at the time it was filed and that the dismissal under the inherent power of the bankruptcy court was error. III. OTHER ASSERTED GROUNDS FOR DISMISSAL (A) Bankruptcy Act § 2a(22) and Rule 119 FNBB urges as an alternate ground to sustain the dismissal of the petition the bankruptcy court’s discretion under § 2a(22) and Rule 119. It relies on the provision of the Rule that suspension or dismissal be considered with “regard to the rights and convenience of local creditors.” It contends that the “rights” protected by the dismissal were preferential claims of FNBB and Chase pursuant to their attachments, together with the claims which two other American parties had interposed in CBI’s interpleader action. See note 3 supra. The bankruptcy court agreed with this view of the meaning of local creditors’ “rights”, citing Disconto Gesellschaft v. Umbreit, 208 U.S. 570, 582 (1908), for the proposition that a country “first protect[s] the rights of its citizens in local property before permitting it to be taken out of the jurisdiction for administration in favor of those residing beyond its borders.” The district court, which also agreed, added that the dismissal would permit the Americans to recover “without having to rely on Swiss bankruptcy procedures which are enmeshed with the Swiss bank secrecy laws.” We disagree with this construction of § 2a(22) and Rule 119. Section 2a(22) was not intended to be the instrument by which jurisdiction over a foreign domiciliary grounded in § 2a(l) could be undercut for the purpose of validating preferential transfers to United States nationals. Section 2a(22) was enacted as an administrative reform. It was designed to avoid needless duplication of effort by courts and creditors in those cases where an ancillary proceeding in this country could be coordinated with or entirely dismissed in favor of a domiciliary proceeding abroad. See S.Rep.No. 1954, 87th Cong., 2d Sess. (1962), reprinted in [1962] U.S.Code Cong. & Ad.News 2603; H.R. Rep.No. 1208, 87th Cong. 1st Sess. (1961). The construction of local “rights” most consonant with this objective was suggested by Professor Nadelmann nearly' thirty years ago. In exercising its discretion the district court is to guard against forcing American creditors to participate in foreign proceedings in which their claims will be treated in some manner inimical to this country’s policy of equality. See Nadelmann, Compositions — Reorganizations and Arrangements — In the Conflict of Laws, 61 Harv.L. Rev. 804, 829-30 (1948); Revised Report of The National Bankruptcy Conference Special Committee on Insurance Companies and Foreign Banks, at 12, 13-14 (1976). We hold that the construction of § 2a(22) urged by FNBB would impose a substantive impact on § 2a(l) which Congress did not intend, and that neither § 2a(22) nor Rule 119 support the bankruptcy court’s dismissal. (B) Bankruptcy Act § 376 and Rule 11— 42(b). The circumstances upon which the bankruptcy court relied in exercising its inherent power — Finabank’s repeated defaults in filing a plan and its failure to file a complete list of creditors — could constitute grounds for dismissal “for want of prosecution” under Rule ll-42(b)(l). Advisory Committee’s Note to Bankruptcy Rule ll-42(b). But Rule ll-42(b) imposes the substantive requirement that the dismissal be in the “best interest of the estate” —a matter upon which the bankruptcy court did not rule. It of course would be inappropriate for us to rule upon such an issue until the courts below have an opportunity to do so. Having held that the bankruptcy court erred in dismissing the petition pursuant to its inherent power, we note only that the dismissal in any event may not be sustained by the retrospective application of Rule 11-42(b). The “best interests]” to be considered are those of the debtor and the creditors. Advisory Committee’s Note to Bankruptcy Rule 11-42(b); 9 Collier on Bankruptcy, supra, ¶ 10.03[2], at 520 & n. 5. In view of the existence of alternative courses of action, dismissal of the petition at the stage of the proceedings at which the bankruptcy court acted in itself would be questionable. Of the entire group of unsecured creditors, only the interests of FNBB and Chase would be served. Here the best interests of the estate for purposes of Rule ll-42(b) and the general principle of equality among creditors appear to coalesce. IV. PROCEEDINGS ON REMAND We reverse the judgment dismissing the petition and remand the case to the district court with instructions to refer the case to the bankruptcy court for an evidentiary hearing on the present viability of an administration under the Bankruptcy Act in this country. We were advised at the argument of the instant appeal that Finabank went into liquidation in Switzerland during the pendency of this appeal. Earlier questions regarding Finabank’s failure to file a plan therefore appear to be moot. The problem presented by the Swiss banking secrecy laws however remains alive. The bankruptcy court should ascertain what those laws require at this stage of the proceedings. If they are applicable, the court should consider, in accordance with this opinion, the alternative procedures suggested by the parties to ascertain whether they satisfactorily fulfill the function of the list of creditors. Reversed and remanded with instructions. . The rehabilitation contemplated by this procedure under Swiss law occurs out of court and entails the payment of all debts in full. . As of May 31, 1975 Finabank had liabilities of Swiss Fr. 188,021,614.62 and assets of Swiss Fr. 98,361,001. According to the July 14 opinion of the Court of Justice, “the unprotected amount of about Swiss Fr. 90 million shown by the balance-sheet... is indisputably due to the nonfulfillment by Edilcentro... of its engagements... The court concluded that “all things considered... a liquidation by a proceeding of arrangement with creditors is likely to produce results which are more advantageous to creditors than a liquidation through bankruptcy proceedings.” . On January 21, CBI commenced an inter-pleader action to obtain adjudication of the rights of various claimants to certificates of deposit and other funds which CBI was holding for the account of Finabank. Continental Bank International v. Banque de Financement, S.A., 75 Civ. 299 (S.D.N.Y.). The contract actions by FNBB and Chase against Finabank were consolidated with the interpleader action on September 19, 1975. In the consolidated action FNBB and Chase claim priority based on their attachments. Two other American parties have filed claims totalling $298,803. Several foreign corporations and individuals have filed claims totalling several million dollars. Finabank as a party to the interpleader action claims that $11,000,000 of its account with CBI “represents trust assets held by Finabank as custodian” which are not “a potential pool asset for Finabank’s general creditors.” . FNBB’s motion of June 26, 1975 to dismiss the Chapter XI petition claimed that the petition was deficient in the following additional respects: (1) the schedules of debts, property and executory contracts and the statement of affairs failed to satisfy the requirements of Rule 11-11(a) and Bankruptcy Forms 6 and 8; (2) the allegations required by Bankruptcy Act § 323, 11,U-S.C. § 723 (1970), were lacking; (3) Exhibit A under Bankruptcy Form 11-F1 was lacking; and (4) FIDES had no authority to file the petition. Judge Babitt noted but did not pass on these claims. . We do not hold that the inherent power of the bankruptcy court never may be relied upon for a dismissal based on facts which arise after the filing of the petition. Normally, of course, such a situation would be covered by Rule 11-42. After a good faith filing, a rehabilitation that subsequently becomes hopeless would manifest itself in grounds for dismissal — such as failure to propose a plan or withdrawal or abandonment of a plan — which would fall squarely within Rule 11-42. . Bankruptcy Act § 376, 11 U.S.C. § 776 (1970), in relevant part provides: “If the statement of the executory contracts and the schedules and statement of affairs, as provided by paragraph (1) of section 724 of this title, are not duly filed, or if an arrangement is not proposed in the manner and within the time fixed by the court, or if an arrangement is withdrawn or abandoned prior to its acceptance, or is not accepted at the meeting of creditors or within such further time as the court may fix, or if the money or other consideration required to be deposited is not deposited, or the application for confirmation is not filed within the time fixed by the court, or if confirmation of the arrangement is refused, the court shall— * sb * (2) where the petition was filed under section 722 of this title, enter an order, upon hearing after notice to the debtor, the creditors, and such other persons as the court may direct, either adjudging the debtor a bankrupt and directing that bankruptcy be proceeded with pursuant to the provisions of this title or dismissing the proceeding under this chapter, whichever in the opinion of the court may be in the interest of the creditors: Provided, however, That an order adjudging the debtor a bankrupt may be entered without such hearing upon the debtor’s consent.” . Bankruptcy Rule ll-42(b) in relevant part provides: “(b) Dismissal or Conversion to Bankruptcy for Want of Prosecution, Denial or Revocation of Confirmation, Default, or Termination of Plan. The court shall enter an order, after hearing on such notice as it may direct, dismissing the case, or adjudicating the debt- or a bankrupt if he has not been previously so adjudged, or directing that the bankruptcy case proceed, whichever may be in the best interest of the estate— (1) for want of prosecution; or (2) for failure to comply with an order under Rule 11-20(d) for indemnification; or (3) if confirmation of a plan is denied; or (4) if confirmation is revoked for fraud and a modified plan is not confirmed pursuant to Rule 11-41; or (5) where the court has retained jurisdiction after confirmation of a pian: (A) if the debtor defaults in any of the terms of the plan; or (B) if a plan terminates by reason of the happening of a condition specified therein. The court may reopen the case, if necessary, for the purpose of entering an order under this subdivision.” . Under its inherent power, by contrast, the bankruptcy court may act sua sponte, without giving notice. See In re Ettinger, 76 F.2d 741 (2 Cir. 1935). . Bankruptcy Act § 324(1), 11 U.S.C. § 724(1) (1970), in relevant part provides: “Statements and fees accompanying petition. The petition shall be accompanied by— (1) a statement of the executory contracts of the debtor, and the schedules and statement of affairs, if not previously filed: Provided, however, That if the debtor files with the petition a list of his creditors and their addresses and a summary of his assets and liabilities, the court may, on application by the debtor, grant for cause shown further time, not exceeding ten days Question: What is the total number of respondents in the case? Answer with a number. Answer:
sc_petitioner	040	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. WHITE v. NEW HAMPSHIRE DEPARTMENT OF EMPLOYMENT SECURITY et al. No. 80-5887. Argued November 30, 1981 Decided March 2, 1982 Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, Rehnquist, Stevens, and O’Con-nor, JJ., joined. Blackmun, J., filed an opinion concurring in the judgment, post, p. 455. E. Richard Larson argued the cause for petitioner. With him on the briefs were Bruce J. Ennis and Raymond J. Kelly. Marc R. Scheer, Assistant Attorney General of New Hampshire, argued the cause for respondents. With him on the brief was Gregory H. Smith, Attorney General. Briefs of amici curiae urging reversal were filed by Donald E. Ware and Scott C. Moriearty for the Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Association et al.; and by Jack Greenberg, James M. Nabrit III, and Charles Stephen Ralston for the NAACP Legal Defense and Educational Fund, Inc. Marc L. Parris, Charles Apotheker, and Martin Hurwitz filed a brief for the County of Rockland, New York, as amicus curiae. Justice Powell delivered the opinion of the Court. The issue in this case arises from a postjudgment request for an award of attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U. S. C. § 1988. The question is whether such a request is a “motion to alter or amend the judgment,” subject to the 10-day timeliness standard of Rule 59(e) of the Federal Rules of Civil Procedure. W This litigation began in March 1976, when the petitioner Richard White filed suit against respondent New Hampshire Department of Employment Security (NHDES) and its Commissioner. White claimed that the respondent failed to make timely determinations of certain entitlements to unemployment compensation, thereby violating an applicable provision of the Social Security Act, 42 U. S. C. § 503(a)(1), the Due Process Clause of the Constitution of the United States, and 42 U. S. C. § 1983. Alleging federal jurisdiction under 28 U. S. C. § 1343, he sought declaratory and injunctive relief and “such other and further relief as may be equitable and just.” App. 15. His complaint did not specifically request attorney’s fees. Following certification of the case as a class action, the District Court granted relief on petitioner’s claim under the Social Security Act. Pending an appeal by NHDES to the Court of Appeals, however, the parties signed a settlement agreement. The case was then remanded to the District Court, which approved the consent decree and gave judgment accordingly on January 26, 1979. Five days after the entry of judgment, counsel to White wrote to respondent’s counsel, suggesting that they meet to discuss the petitioner’s entitlement to attorney’s fees as a prevailing party under 42 U. S. C. § 1988. No meeting appears to have been held. On June 7, 1979, approximately four and one-half months after the entry of a final judgment, the petitioner White filed a motion in which an award of fees formally was requested. In a hearing in the District Court, respondent’s counsel claimed he had been surprised by petitioner’s postjudgment requests for attorney’s fees. He averred he understood that the consent decree, by its silence on the matter, implicitly had waived any claim to a fee award. White’s counsel asserted a different understanding. Apparently determining that the settlement agreement had effected no waiver, the District Court granted attorney’s fees in the sum of $16,644.40. Shortly thereafter, respondent moved to vacate the consent decree. It argued, in effect, that it had thought its total liability fixed by the consent decree and that it would not have entered a settlement knowing that further liability might still be established. The District Court denied the motion to vacate. On appeal, the Court of Appeals for the First Circuit reversed the District Court’s decision to award attorney’s fees under § 1988. 629 F. 2d 697 (1980). The court held that petitioner’s postjudgment motion for attorney’s fees constituted a motion to alter or amend the judgment, governed by Rule 59(e) of the Federal Rules of Civil Procedure and its 10-day time limit. 629 F. 2d, at 699. In holding as it did, the Court of Appeals recognized that § 1988 provided for the award of attorney’s fees “as part of the costs.” But it declined to follow a recent decision of the Court of Appeals for the Fifth Circuit that treated a § 1988 fee request as a motion for “costs” under Federal Rules of Civil Procedure 54(d) and 58 — Rules that contain no explicit time bars. Despite the language of § 1988, the Court of Appeals reasoned that attorney’s fees could not be the kind of “costs” contemplated by Rules 54(d) and 58. It reached this conclusion by looking to 28 U. S. C. § 1920, which specifies various “costs” that can be assessed by a clerk of court under Rule 54. The court found all -to be “capable of routine computation” on a day’s notice. 629 F. 2d, at 702. By contrast, an award of attorney’s fees must be made by a judge. Further, as in this case, a fee award could affect substantially the total liability of the parties. The Court of Appeals found this case distinguishable from Hutto v. Finney, 437 U. S. 678 (1978), in which this Court characterized attorney’s fees, under the Fees Act, as “costs” taxable against a State. In Hutto, the Court of Appeals reasoned, the narrow question was whether the States have Eleventh Amendment immunity against liability for attorney’s fees. The question was not whether attorney’s fees are costs under Rule 54. The court also dismissed the argument that a request for attorney’s fees is “a collateral and independent claim” properly adjudicated separately from a claim on the merits. Because other Courts of Appeals have reached different conclusions about the applicability of Rule 59(e) to post-judgment motions for the award of attorney’s fees, we granted certiorari in this case to resolve the conflict. We now reverse. II A Rule 59(e) was added to the Federal Rules of Civil Procedure in 1946. Its draftsmen had a clear and narrow aim. According to the accompanying Advisory Committee Report, the Rule was adopted to “mak[e] clear that the district court possesses the power” to rectify its own mistakes in the period immediately following the entry of judgment. The question of the court’s authority to do so had arisen in Boaz v. Mutual Life Ins. Co. of New York, 146 F. 2d 321, 322 (CA8 1944). According to their report, the draftsmen intended Rule 59(e) specifically “to care for a situation such as that arising in Boaz.” B Consistently with this original understanding, the federal courts generally have invoked Rule 59(e) only to support reconsideration of matters properly encompassed in a decision on the merits. E. g., Browder v. Director, Illinois Dept. of Corrections, 434 U. S. 257 (1978). By contrast, a request for attorney’s fees under § 1988 raises legal issues collateral to the main cause of action — issues to which Rule 59(e) was never intended to apply. Section 1988 provides for awards of attorney’s fees only to a “prevailing party.” Regardless of when attorney’s fees are requested, the court’s decision of entitlement to fees will therefore require an inquiry separate from the decision on the merits — an inquiry that cannot even commence until one party has “prevailed.” Nor can attorney’s fees fairly be characterized as an element of “relief’ indistinguishable from other elements. Unlike other judicial relief, the attorney’s fees allowed under § 1988 are not compensation for the injury giving rise to an action. Their award is uniquely separable from the cause of action to be proved at trial. See Hutto v. Finney, 437 U. S., at 695, n. 24. As the Court of Appeals for the Fifth Circuit recently stated: “[A] motion for attorney’s fees is unlike a motion to alter or amend a judgment. It does not imply a change in the judgment, but merely seeks what is due because of the judgment. It is, therefore, not governed by the provisions of Rule 59(e).” Knighton v. Watkins, 616 F. 2d 795, 797 (1980). III In holding Rule 59(e) applicable to the postjudgment fee request in this case, the Court of Appeals emphasized the need to prevent fragmented appellate review and unfair postjudgment surprise to nonprevailing defendants. See 629 F. 2d, at 701-704. These are important concerns. But we do not think that the application of Rule 59(e) to § 1988 fee requests is either necessary or desirable to promote finality, judicial economy, or fairness. A The application of Rule 59(e) to postjudgment fee requests could yield harsh and unintended consequences. Section 1988 authorizes the award of attorney’s fees in constitutional and civil rights litigation of various kinds. In civil rights actions, especially in those involving "relief of an injunctive nature that must prove its efficacy only over a period of time,” this Court has recognized that “many final orders may issue in the course of the litigation. ” Bradley v. Richmond School Bd., 416 U. S. 696, 722-723 (1974). Yet sometimes it may be unclear even to counsel which orders are and which are not “final judgments.” If Rule 59(e) were applicable, counsel would forfeit their right to fees if they did not file a request in conjunction with each “final” order. Cautious to protect their own interests, lawyers predictably would respond by entering fee motions in conjunction with nearly every interim ruling. Yet encouragement of this practice would serve no useful purpose. Neither would litigation over the “finality” of various interim orders in connection with which fee requests were not filed within the 10-day period. The 10-day limit of Rule 59(e) also could deprive counsel of the time necessary to negotiate private settlements of fee questions. If so, the application of Rule 59(e) actually could generate increased litigation of fee questions — a result ironically at odds with the claim that it would promote judicial economy. B Section 1988 authorizes the award of attorney’s fees “in [the] discretion” of the court. We believe that this discretion will support a denial of fees in cases in which a postjudgment motion unfairly surprises or prejudices the affected party. Moreover, the district courts remain free to adopt local rules establishing timeliness standards for the filing of claims for attorney’s fees. And of course the district courts generally can avoid piecemeal appeals by promptly hearing and deciding claims to attorney’s fees. Such practice normally will permit appeals from fee awards to be considered together with any appeal from a final judgment on the merits. IV For the reasons stated in this opinion, the decision of the Court of Appeals is reversed, and the case is remanded for action consistent with this opinion. So ordered. Rule 59(e) provides: “(e) Motion to Alter or Amend a Judgment “A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment-.” Civ. No. 76-71 (NH, Nov. 15, 1977), as amended, Civ. No. 76-71 (NH, Dec. 16, 1977). Transcript of the District-Court Hearing on Plaintiffs’ Motion for Attorney’s Fees (Aug. 21, 1979), App. 56, 68-69. The District Court found specifically that the parties’ prejudgment “attempts” to negotiate a waiver of costs and fees had proved “nugatory.” Id., at 75. The pertinent language of 42 U. S. C. § 1988 provides that “[i]n any action or proceeding to enforce a provision of sections 1981, 1982, 1983,1985, and 1986 of this title, title IX of Public Law 92-318 [20 U. S. C. 1681 et seq.], ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” Knighton v. Watkins, 616 F. 2d 795 (1980). Rule 54(d) provides: “(d) Costs “Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs .... Costs may be taxed by the clerk on one day’s notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.” Unless so defined by statute, attorney’s fees are not generally considered “costs” taxable under Rule 54(d). Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 (1975). Rule 58 states in pertinent part: “Entry of the judgment shall not be delayed for taxing of costs.” Courts of Appeals for the Fifth, Sixth, and Seventh Circuits have held that postjudgment requests for attorney’s fees are not motions to alter or amend a judgment under Rule 59(e), but rather applications for “costs” under Rules 54(d) and 58. See Johnson v. Snyder, 639 F. 2d 316, 317 (CA6 1981); Bond v. Stanton, 630 F. 2d 1231, 1234 (CA7 1980); Knighton v. Watkins, supra, at 797-798. Like the Court of Appeals for the First Circuit in this case, the Court of Appeals for the Tenth Circuit has held squarely that postjudgment requests for fees are motions to alter or amend a judgment under Rule 59(e). Glass v. Pfeffer, 657 F. 2d 252 (1981). The Court of Appeals for the Eighth Circuit has taken still a third position: that a postjudgment motion for attorney’s fees raises a “collateral and independent claim” that is not governed either by Rule 59(e) or by the “costs” provisions of Rules 54(d) and 58. Obin v. District No. 9, Int’l Assn. of Machinists and Aerospace Workers, 651 F. 2d 574, 582 (1981). 451 U. S. 982 (1981). Notes of Advisory Committee on 1946 Amendment to Rules, 28 U. S. C., p. 491; 5 F. R. D. 433, 476 (1946). Ibid. Petitioner argues that the “collateral” and “independent” character of his request for attorney’s fees is conclusively established by Sprague v. Ticonic National Bank, 307 U. S. 161 (1939). In Sprague this Court considered- the power of a federal court to award counsel fees pursuant to an application filed several years after the entry of a judgment on the merits. Rejecting arguments that the request sought an impermissible reopening of the underlying judgment, the Court held that the petition for reimbursement represented “an independent proceeding supplemental to the original proceeding and not a request for a modification of the original decree.” Id., at 170. The passage of time thus presented no bar to an award of fees. Although Sprague was decided under the then-applicable rules of equity, the Court suggested that the same result would follow under the new Federal Rules of Civil Procedure. Id., at 169, n. 9. This case arises in a posture different from that of Sprague. In Sprague the prevailing plaintiff had produced a “benefit” commonly available to others similarly situated. Although she “neither avowed herself to be the representative of a class nor. . . established] a fund in which others could participate,” id., at 166, her lawsuit had a stare decisis effect that inured to the benefit of others asserting similar claims. It was from the benefits accrued by them — not, as in this case, from the defendant — that the plaintiff sought an equitable award of fees. Because of this difference between the cases, we cannot agree that Sprague controls the question now before us. Nonetheless, we agree with petitioner to this extent: Sprague at least establishes that fee questions are not inherently or necessarily subsumed by a decision on the merits. See also New York Gaslight Club, Inc. v. Carey, 447 U. S. 54, 66 (1980) (a claimed entitlement to attorney’s fees is sufficiently independent of the merits action under Title VII to support a federal suit “solely to obtain an award of attorney’s fees for legal work done in state and local proceedings”). There is implicit support for this view in decisions of the Courts of Appeals holding that decisions on the merits may be “final” and “appealable” prior to the entry of a fee award. See, e. g., Memphis Sheraton Corp. v. Kirkley, 614 F. 2d 131, 133 (CA6 1980); Hidell v. International Diversified Investments, 520 F. 2d 529, 532, n. 4 (CA7 1975); see also Obin v. District 9, Int’l Assn. of Machinists and Aerospace Workers, 651 F. 2d, at 583-584. If a merits judgment is final and appealable prior to the entry of a fee award, then the remaining fee issue must be “collateral” to the decision on the merits. Conversely, the collateral character of the fee issue establishes that an outstanding fee question does not bar recognition of a merits judgment as “final” and “appealable.” Obin v. District No. 9, Int’l Assn. of Machinists and Aerospace Workers, supra, at 584. Although “piecemeal” appeals of merits and fee questions generally are undesirable, district courts have ample authority to deal with this problem. See infra, at 454, and n. 16. As an additional reason for finding Rule 59(e) inapplicable to postjudgment fee requests, the petitioner and amici have urged that prejudgment fee negotiations could raise an inherent conflict of interest between the attorney and client. Because the defendant is likely to be concerned about his total liability, it is suggested, he may offer a lump-sum settlement, but remain indifferent as to its distribution as “damages” or “attorney’s fees.” In pursuing negotiations, the argument continues, the lawyer must decide what allocation to seek as between lawyer and client. Accordingly, petitioner argues, to avoid this conflict of interest any fee negotiations should routinely be deferred until after the entry of a merits judgment. Although sensitive to the concern that petitioner raises, we decline to rely on this proffered basis. In considering whether to enter a negotiated settlement, a defendant may have good reason to demand to know his total liability from both damages and fees. Although such situations may raise difficult ethical issues for a plaintiffs attorney, we are reluctant to hold that no resolution is ever available to ethical counsel. See, e. g., Obin v. District No. 9, Int’l Assn. of Machinists and Aerospace Workers, supra, at 583 (recommending adoption of “a uniform rule requiring the filing of a claim for attorney’s fees within twenty-one days after entry of judgment”); Knighton v. Watkins, 616 F. 2d, at 798, n. 2 (practices governing requests for attorney’s fees “can be handled best by local rule”). As different jurisdictions have established different procedures for the filing of fee applications, there may be valid local reasons for establishing different time limits. The petitioner has urged us to hold expressly that the § 1988 provision for attorney’s fees “as part of. . . costs” establishes that postjudgment fee requests constitute motions for “costs” under Rules 54(d) and 58, which specify no time barrier for motions for “costs.” Because this question is unnecessary to our disposition of this case, we do not address it. We note that the district courts would be free to adopt local rules establishing standards for timely filing of requests for costs, even if attorney’s fees were so treated. See Knighton v. Watkins, supra, at 798, n. 2. Further, the district courts retain discretion under Rules 54(d) and 58 to deny even motions for costs that are filed with unreasonable tardiness. 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_caseorigin	160	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. DEAN MILK CO. v. CITY OF MADISON et al. No. 258. Argued December 7, 1950. Decided January 15, 1951. George S. Geffs and Jacob Geffs argued the cause and filed a brief for appellant. J. Arthur Moran was also of counsel. Walter P. Ela and Harold E. Hanson argued the cause and filed a brief for appellees. Mr. Justice Clark delivered the opinion of the Court. This appeal challenges the constitutional validity of two sections of an ordinance of the City of Madison, Wisconsin, regulating the sale of milk and milk products within the municipality’s jurisdiction. One section in issue makes it unlawful to sell any milk as pasteurized unless it has been processed and bottled at an approved pasteurization plant within a radius of five miles from the central square of Madison. Another section, which prohibits the sale of milk, or the importation, receipt or storage of milk for sale, in Madison unless from a source of supply possessing a permit issued after inspection by Madison officials, is attacked insofar as it expressly relieves municipal authorities from any duty to inspect farms located beyond twenty-five miles from the center of the city. Appellant is an Illinois corporation engaged in distributing milk and milk products in Illinois and Wisconsin. It contended below, as it does here, that both the five-mile limit on pasteurization plants and the twenty-five-mile limit on sources of milk violate the Commerce Clause and the Fourteenth Amendment to the Federal Constitution. The Supreme Court of Wisconsin upheld the five-mile limit on pasteurization. As to the twenty-five-mile limitation the court ordered the complaint dismissed for want of a justiciable controversy. 257 Wis. 308, 43 N. W. 2d 480 (1950). This appeal, contesting both rulings, invokes the jurisdiction of this Court under 28 U. S. C. § 1257 (2). The City of Madison is the county seat of Dane County. Within the county are some 5,600 dairy farms with total raw milk production in excess of 600,000,000 pounds annually and more than ten times the requirements of Madison. Aside from the milk supplied to Madison, fluid milk produced in the county moves in large quantities to Chicago and more distant consuming areas, and the remainder is used in making cheese, butter and other products. At the time of trial the Madison milkshed was not of “Grade A” quality by the standards recommended by the United States Public Health Service, and no milk labeled “Grade A” was distributed in Madison. The area defined by the ordinance with respect to milk sources encompasses practically all of Dane County and includes some 500 farms which supply milk for Madison. Within the five-mile area for pasteurization are plants of five processors, only three of which are engaged in the general wholesale and retail trade in Madison. Inspection of these farms and plants is scheduled once every thirty days and is performed by two municipal inspectors, one of whom is full-time. The courts below found that the ordinance in question promotes convenient, economical and efficient plant inspection. Appellant purchases and gathers milk from approximately 950 farms in northern Illinois and southern Wisconsin, none being within twenty-five miles of Madison. Its pasteurization plants are located at Chemung and Huntley, Illinois, about 65 and 85 miles respectively from Madison. Appellant was denied a license to sell its products within Madison solely because its pasteurization plants were more than five miles away. It is conceded that the milk which appellant seeks to sell in Madison is supplied from farms and processed in plants licensed and inspected by public health authorities of Chicago, and is labeled “Grade A” under the Chicago ordinance which adopts the rating standards recommended by the United States Public Health Service. Both the Chicago and Madison ordinances, though not the sections of the latter here in issue, are largely patterned after the Model Milk Ordinance of the Public Health Service. However, Madison contends and we assume that in some particulars its ordinance is more rigorous than that of Chicago. Upon these facts we find it necessary to determine only the issue raised under the Commerce Clause, for we agree with appellant that the ordinance imposes an undue burden on interstate commerce. This is not an instance in which an enactment falls because of federal legislation which, as a proper exercise of paramount national power over commerce, excludes measures which might otherwise be within the police power of the states. See Currin v. Wallace, 306 U. S. 1, 12-13 (1939). There is no pertinent national regulation by the Congress, and statutes enacted for the District of Columbia indicate that Congress has recognized- the appropriateness of local regulation of the sale of fluid milk. D. C. Code, 1940, §§ 33-301 et seq. It is not contended, however, that Congress has authorized the regulation before us. Nor can there be objection to the avowed purpose of this enactment. We assume that difficulties in sanitary regulation of milk and milk products originating in remote areas may present a situation in which “upon a consideration of all the relévant facts and circumstances it appears that the matter is one which may appropriately be regulated in the interest of the safety, health and well-being of local communities . . . Parker v. Brown, 317 U. S. 341, 362-363 (1943); see H. P. Hood & Sons v. Du Mond, 336 U. S. 525, 531-532 (1949). We also assume that since Congress has not spoken to the contrary, the subject matter of the ordinance lies within the sphere of state regulation even though interstate commerce may be affected. Milk Control Board v. Eisenberg Farm Products, 306 U. S. 346 (1939); see Baldwin v. Seelig, Inc., 294 U. S. 511, 524 (1935). But this regulation, like the provision invalidated in Baldwin v. Seelig, Inc., supra, in practical effect excludes from distribution in Madison wholesome milk produced and pasteurized in Illinois. “The importer . . . may keep his milk or drink it, but sell it he may not.” Id., at 521. In thus erecting an economic barrier protecting a major local industry against competition from without the State, Madison plainly discriminates against interstate commerce. This it cannot do, even in the exercise of its unquestioned power to protect the health and safety of its people, if reasonable nondiscriminatory alternatives, adequate to conserve legitimate local interests, are available. Cf. Baldwin v. Seelig, Inc., supra, at 524; Minnesota v. Barber, 136 U. S. 313, 328 (1890). A different view, that the ordinance is valid simply because it professes to be a health measure, would mean that the Commerce Clause of itself imposes no limitations on state action other than those laid down by the Due Process Clause, save for the rare instance where a state artlessly discloses an avowed purpose to discriminate against interstate goods. Cf. H. P. Hood & Sons v. Du Mond, supra. Our issue then is whether the discrimination inherent, in the Madison ordinance can be justified in view of the character of the local interests and the available methods of protecting them. Cf. Union Brokerage Co. v. Jensen, 322 U. S. 202, 211 (1944). It appears that reasonable and adequate alternatives are available. If the City of Madison prefers to rely upon its own officials for inspection of distant milk sources, such inspection is readily open to it without hardship for it could charge the actual and reasonable cost of such inspection to the importing producers and processors. Cf. Sprout v. City of South Bend, 277 U. S. 163, 169 (1928); see Miller v. Williams, 12 F. Supp. 236, 242, 244 (D. Md. 1935). Moreover, appellee Health Commissioner of Madison testified that as proponent of the local milk ordinance he had submitted the provisions here in controversy and an alternative proposal based on § 11 of the Model Milk Ordinance recommended by the United States Public Health Service. The model provision imposes no geographical limitation on location of milk sources and processing plants but excludes from the municipality milk not produced and pasteurized conformably to standards as high as those enforced by the receiving city. In implementing such an ordinance, the importing city obtains milk ratings based on uniform standards and established by health authorities in the jurisdiction where production and processing occur. The receiving city may determine the extent of enforcement of sanitary standards in the exporting area by verifying the accuracy of safety ratings of specific plants or of the milkshed in the distant jurisdiction through the United States Public Health Service, which routinely and on request spot checks the local ratings. The Commissioner testified that Madison consumers “would be safeguarded adequately” under either proposal and that he had expressed no preference. The milk sanitarian of the Wisconsin State Board of Health testified that the State Health Department recommends the adoption of a provision based on the Model Ordinance. Both officials agreed that a local health officer would be justified in relying upon the evaluation by the Public Health Service of enforcement conditions in remote producing areas. To permit Madison to adopt a regulation not essential for the protection of local health interests and placing a discriminatory burden on interstate commerce would invite a multiplication of preferential trade areas destructive of the very purpose of the Commerce Clause. Under the circumstances here presented, the regulation must yield to the principle that “one state in its dealings with another may not place itself in a position of economic isolation.” Baldwin v. Seelig, Inc., supra, at 527. For these reasons we conclude that the judgment below sustaining the five-mile provision as to pasteurization must be reversed. The Supreme Court of Wisconsin thought it unnecessary to pass upon the validity of the twenty-five-mile limitation, apparently in part for the reason that this issue was made academic by its decision upholding the five-mile section. In view of our conclusion as to the latter provision, a determination of appellant's contention as to the other section is now necessary. As to this issue, therefore, we vacate the judgment below and remand for further proceedings not inconsistent with the principles announced in this opinion. It is so ordered. General Ordinances of the City of Madison, 1949, § 7.21 provides as follows: “It shall be unlawful for any person, association or corporation to sell, offer for sale or have in his or its possession with intent to sell or deliver in the City of Madison, any milk, cream or milk products as pasteurized unless the same shall have been pasteurized and bottled in the manner herein provided within a radius of five miles from the central portion of the City of Madison otherwise known as the Capitol Square, at a plant housing the machinery, equipment and facilities, all of which shall have been approved by the Department of Public Health.” Id., § 7.11, provides in pertinent part as follows: “It shall be unlawful for any person to bring into or receive into the City of Madison, Wisconsin, or its police jurisdiction, for sale, or to sell, or offer for salé therein, or to have in storage where milk or milk products are sold or served, any milk or milk product as defined in this ordinance from a source not possessing a permit from the Health Commissioner of the City of Madison, Wisconsin. “Only a person who complies with the requirements of this ordinance shall be entitled to receive and retain such a permit. “On the filing of an application for a permit with the Health Commissioner, he shall cause the source of supply named therein to be inspected and shall cause all other necessary inspections and investigations to be made. The Department of Public Health shall not be obligated to inspect and issue permits to farms located beyond twenty-five (25) miles from the central portion of the City of Madison otherwise known as the Capitol Square. . . .” In upholding § 7.21, note 1, supra, the court relied upon the principles announced by it in Dyer v. City Council of Beloit, 250 Wis. 613, 27 N. W. 2d 733 (1947), judgment vacated, 333 U. S. 825 (1948). It is immaterial that Wisconsin milk from outside the Madison area is subjected to the same proscription as that moving in interstate commerce. Cf. Brimmer v. Rebman, 138 U. S. 78, 82-83 (1891). Section 11 of the United States Public Health Service Milk Ordinance as recommended in 1939 provides: “Milk and milk products from points beyond the limits of routine inspection of the city of.may not be sold in the city of ., or its police jurisdiction, unless produced and/or pasteurized under provisions equivalent to the requirements of this ordinance; provided that the health officer shall satisfy himself that the health officer having jurisdiction over the production and processing is properly enforcing such provisions.” The following comment on this section is contained in the Public Health Service Milk Code: “It is suggested that the health officer approve milk or milk products from distant points without his inspection if they are produced and processed under regulations equivalent to those of this ordinance, and if the milk or milk products have been awarded by the State control agency a rating of 90 percent or more on the basis of the Public Health Service rating method.” Federal Security Agency, Public Health Bulletin No. 220 (1939), 145. 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_certreason	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. GUNN, SHERIFF, et al. v. UNIVERSITY COMMITTEE TO END THE WAR IN VIET NAM et al. No. 7. Argued January 13-14, 1969 Reargued April 29-30, 1970— Decided June 29, 1970 David W. Louisell argued the cause for appellants on the original argument and on the reargument. With him on the brief on the reargument were Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, Robert C. Flowers and Howard M. Fender, Assistant Attorneys General, and Charles Alan Wright. On the brief on the original argument were Messrs. Martin, Flowers, and Fender, and Miss White. Sam Houston Clinton, Jr., argued the cause for appel-lees on the original argument and on the reargument. With him on the brief were Morton Stavis, Arthur Kinoy, and William M. Kunstler. Mr. Justice Stewart delivered the opinion of the Court. On December 12, 1967, President Lyndon Johnson made a speech in Bell County, Texas, to a crowd of some 25,000 people, including many servicemen from nearby Fort Hood. The individual appellees arrived at the edge of the crowd with placards signifying their strong opposition to our country’s military presence in Vietnam. Almost immediately after their arrival, they were set upon by members of the crowd, subjected to some physical abuse, promptly removed from the scene by military police, turned over to Bell County officers, and taken to jail. Soon afterwards, they were brought before a justice of the peace on a complaint signed by a deputy sheriff, charging them with “Dist the Peace.” They pleaded not guilty, were returned briefly to jail, and were soon released on $500 bond. Nine days later they brought this action in a federal district court against Bell County officials, asking that a three-judge court be convened, that enforcement of the state disturbing-the-peace statute be temporarily and permanently enjoined, and that the statute be declared unconstitutional on its face, “and/or as applied to the conduct of the Plaintiffs herein.” The statute in question is Article 474 of the Texas Penal Code, which then provided as follows: “Whoever shall go into or near any public place, or into or near any private house, and shall use loud and vociferous, or obscene, vulgar or indecent language or swear or curse, or yell or shriek or expose his or her person to another person of the age of sixteen (16) years or over, or rudely display any pistol or deadly weapon, in a manner calculated to disturb the person or persons present at such place or house, shall be punished by a fine not exceeding Two Hundred Dollars ($200).” A few days after institution of the federal proceedings the state charges were dismissed upon motion of the county attorney, because the appellees’ conduct had taken place within a military enclave over which Texas did not have jurisdiction. After dismissal of the state charges the defendants in the federal court filed a motion to dismiss the complaint on the ground that “no useful purpose could now be served by the granting of an injunction to prevent the prosecution of these suits because same no longer exists.” The appellees filed a memorandum in opposition to this motion, conceding that there was no remaining controversy with respect to the prosecution of the state charges, but asking the federal court nonetheless to retain jurisdiction and to grant in-junctive and declaratory relief against the enforcement of Article 474 upon the ground of its unconstitutionality. A stipulation of facts was submitted by the parties, along with memoranda, affidavits, and other documentary material. With the case in that posture, the three-judge District Court a few weeks later rendered a per curiam opinion, expressing the view that Article 474 is constitutionally invalid, 289 F. Supp. 469. The opinion ended with the following final paragraph: “We reach the conclusion that Article 474 is impermissibly and unconstitutionally broad. The Plaintiffs herein are entitled to their declaratory judgment to that effect, and to injunctive relief against the enforcement of Article 474 as now worded, insofar as it may affect rights guaranteed under the First Amendment. However, it is the Order of this Court that the mandate shall be stayed and this Court shall retain jurisdiction of the cause pending the next session, special or general, of the Texas legislature, at which time the State of Texas may, if it so desires, enact such disturbing-the-peace statute as will meet constitutional requirements.” 289 F. Supp., at 475. The defendants took a direct appeal to this Court, relying upon 28 U. S. C. § 1253, and we noted probable jurisdiction. 393 U. S. 819. The case was originally argued last Term, but was, on June 16, 1969, set for reargument at the 1969 Term. 395 U. S. 956. Reargument was held on April 29 and 30, 1970. We now dismiss the appeal for want of jurisdiction. The jurisdictional statute upon which the parties rely, 28 U. S. C. § 1253, provides as follows: “Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.” The statute is thus explicit in authorizing a direct appeal to this Court only from an order of a three-judge district court “granting or denying ... an interlocutory or permanent injunction.” Earlier this Term we had occasion to review the history and construe the meaning of this statute in Goldstein v. Cox, 396 U. S. 471. In that case a divided Court held that the only interlocutory orders that this Court has power to review under § 1253 are those granting or denying preliminary injunctions. The present case, however, involves no such refined a question as did Goldstein. For here there was no order of any kind either granting or denying an injunction — interlocutory or permanent. Cf. Rockefeller v. Catholic Medical Center, 397 U. S. 820; Mitchell v. Donovan, 398 U. S. 427. All that the District Court did was to write a rather discursive per curiam opinion, ending with the paragraph quoted above. Although the Texas Legislature at its next session took no action with respect to Article 474, the District Court entered no further order of any kind. And even though the question of this Court’s jurisdiction under § 1253 was fully exposed at the original oral argument of this case, the District Court still entered no order and no injunction during the 15-month period that elapsed before the case was argued again. What we deal with here is no mere technicality. In Goldstein v. Cox, supra, we pointed out that: “This Court has more than once stated that its jurisdiction under the Three-Judge Court Act is to be narrowly construed since ‘any loose construction of the requirements of [the Act] would defeat the purposes of Congress . . . to keep within narrow confines our appellate docket.’ Phillips v. United States [312 U. S. 246], at 250. See Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368, 375 (1949); Moore v. Fidelity & Deposit Co., 272 U. S. 317, 321 (1926).” 396 U. S., at 478. But there are underlying policy considerations in this case more fundamental than mere economy of judicial resources. One of the basic reasons for the limit in 28 U. S. C. § 1253 upon our power of review is that until a district court issues an injunction, or enters an order denying one, it is simply not possible to know with any certainty what the court has decided — a state of affairs that is conspicuously evident here. The complaint in this case asked for an injunction “[restraining the appropriate Defendants, their agents, servants, employees and attorneys and all others acting in concert with them from the enforcement, operation or execution of Article 474.” Is that the “injunctive relief” to which the District Court thought the appellees were “entitled”? If not, what less was to be enjoined, or what more? And against whom was the injunction to run? Did the District Court intend to enjoin enforcement of all the provisions of the statute? Or did the court intend to hold the statute unconstitutional only as applied to speech, including so-called symbolic speech? Or was the court confining its attention to that part of the statute that prohibits the use, in certain places and under certain conditions, of “loud and vociferous . . . language”? The answers to these questions simply cannot be divined with any degree of assurance from the per curiam opinion. Rule 65 (d) of the Federal Rules of Civil Procedure provides that any order granting an injunction “shall be specific in terms” and “shall describe in reasonable detail . . . the act or acts sought to be restrained.” As we pointed out in International Longshoremen’s Assn. v. Philadelphia Marine Trade Assn., 389 U. S. 64, 74, the “Rule . . . was designed to prevent precisely the sort of confusion with which this District Court clouded its command.” An injunctive order is an extraordinary writ, enforceable by the power of contempt. “The judicial contempt power is a potent weapon. When it is founded upon a decree too vague to be understood, it can be a deadly one. Congress responded to that danger by requiring that a federal court frame its orders so that those who must obey them will know what the court intends to require and what it means to forbid.” Id., at 76. That requirement is essential in cases where private conduct is sought to be enjoined, as we held in the Longshoremen’s case. It is absolutely vital in a case where a federal court is asked to nullify a law duly enacted by a sovereign State. Cf. Watson v. Buck, 313 U. S. 387. The absence of an injunctive order in this case has, in fact, been fully recognized by the parties. In their motion for a new trial, the appellants pointed out to the District Court that it had given no more than “an advisory opinion.” And the appellees, in their brief in this Court, emphasized that “[n]o final relief — of any kind — has been ordered below.” Accordingly, they said, “no question is now properly raised as to the precise form of federal remedy which may be granted.” They asserted that “the issuance of declaratory and injunctive relief will ... be appropriate at an appropriate time, to wit, on remand to the court below.” But it is precisely because the District Court has issued neither an injunction, nor an order granting or denying one, that we have no power under § 1253 either to “remand to the court below” or deal with the merits of this case in any way at all. The restraint and tact that evidently motivated the District Court in refraining from the entry of an injunc-tive order in this case are understandable. But when a three-judge district court issues an opinion expressing the view that a state statute should be enjoined as unconstitutional — and then fails to follow up with an injunction — the result is unfortunate at best. For when confronted with such an opinion by a federal court, state officials would no doubt hesitate long before disregarding it. Yet in the absence of an injunctive order, they are unable to know precisely what thé three-judge court intended to enjoin, and unable as well to appeal to this Court. It need hardly be added that any such result in the present case was doubtless unintended or inadvertent. We make the point only for the guidance of future three-judge courts when they are asked to enjoin the enforcement of state laws as unconstitutional. The appeal is dismissed for want of jurisdiction. It is so ordered. Me. Justice Blackmun took no part in the consideration or decision of this case. The appellee University Committee to End the War in Viet Nam is an unincorporated association centered in Austin, Texas. The individual appellees are two members of the association and one nonmember who is sympathetic with its purposes. The court did also write an “addendum” in response to a motion for a new trial. 289 F. Supp., at 475. Rule 65 (d) reads as follows: “(d) Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” This is not to suggest that lack of specificity in an injunctive order would alone deprive the Court of jurisdiction under § 1253. But the absence of any semblance of effort by the District Court to comply with Rule 65 (d) makes clear that the court did not think that its per curiam opinion itself constituted an order granting an injunction. Even if the opinion and subsequent inaction of the District Court could be considered a denial of an injunction because the injunctive relief demanded was not forthcoming, the appellants could not appeal from an order in their favor. Public Service Comm’n v. Brashear Freight Lines, Inc., 306 U. S. 204 (1939). “We do not decide whether the District Court’s opinion might-have constituted a “judgment” so as to be appealable to the Court of Appeals for the Fifth Circuit. Cf. United States v. Hark, 320 U. S. 531, 534; United States v. Schaefer Brewing Co., 356 U. S. 227, 232-233; Burns v. Ohio, 360 U. S. 252, 254-257. See R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court of the United States § 45 (Wolfson & Kurland ed. 1951). In any event, we assume the District Court will now take formal action of sufficient precision and clarity to insure to any aggrieved party the availability of an appeal. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:
songer_weightev	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America, Appellee, v. Harold HAMILTON, Appellant. No. 77-2900. United States Court of Appeals, Ninth Circuit. Feb. 6, 1978. Robert J. Lyman (argued), of Debus, Busby & Green, Phoenix, Ariz., for appellant. John G. Hawkins, Asst. U. S. Atty. (argued), Phoenix, Ariz., for appellee. Before WRIGHT and HUG, Circuit Judges, and INGRAM, District Judge. Of the Northern District of California. PER CURIAM: Appellant asks this court to vacate convictions for two drug-offenses to which he pleaded guilty in the district court. FACTS: On March 3, 1977, Hamilton withdrew a general plea of not guilty and substituted guilty pleas on two counts of a four-count indictment. Pursuant to a plea agreement, the prosecutor successfully moved to dismiss the remaining counts. Hamilton moved to withdraw his plea after consecutive sentences were imposed. He appeals from the denial of that motion. At the hearing on the change of plea, the trial judge relied on the prosecutor to advise appellant of the potential penalties on each of the two counts. The judge asked Hamilton, specifically whether he understood the penalties as explained by the prosecutor. Hamilton responded that he did. Neither the prosecutor nor the judge expressly informed Hamilton that the sentences could run consecutively. Hamilton contends that his conviction must be vacated because the trial judge himself did not explain the potential penalties and because he was not told of the possibility of consecutive sentencing. This appeal squarely presents the question of what procedures must be followed by a trial judge to satisfy the requirements of Fed.R.Crim.P. 11 governing acceptance of guilty pleas. DISCUSSION: Fed.R.Crim.P. 11 reads: Rule 11. PLEAS (c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands the following: (1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; . Prior to its amendment in 1975, Rule 11 required only that a judge determine that a defendant’s plea was made with an understanding of its “consequences.” See Notes of the Advisory Committee on 1966 Amendments to Rule 11, reprinted in 8 Moore’s Federal Practice K 11.01[3] at 11-6 (1977). If Rule 11’s requirements are not met, the defendant must be given the opportunity to plead anew. McCarthy v. United States, 394 U.S. 459, 471-472, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). 1. Consecutive Sentences. Hamilton argues that Rule 11 requires a judge to advise a defendant of the possibility of consecutive sentences before a guilty plea is entered. The 1975 version of the rule “summarizes roughly the holdings of the post-McCarthy decisions” interpreting the word “consequences.” J. Bond, Plea Bargaining and Guilty Pleas 84 (1977). Those decisions held that any factor which necessarily affected the maximum term of imprisonment was a Rule 11 “consequence.” E. g., United States v. Myers, 451 F.2d 402, 404 (9th Cir. 1972). However, they did not require explanation of the possibility of consecutive sentencing, reasoning that the court’s power to impose consecutive sentences is explained implicitly “in the separate explanation of the possible sentences on each count.” Paradiso v. United States, 482 F.2d 409, 415 (3d Cir. 1973) (acknowledging that better practice would be to specifically advise); see also cases cited infra at n.4. This reasoning is equally persuasive under the amended rule. Although at first glance the Notes of the Advisory Committee on 1975 Amendments to the Federal Rules of Criminal Procedure appear to suggest a contrary conclusion, they do not. They indicate that the objective of the 1975 amendments was to insure that a defendant knows the maximum sentence a judge may impose. Notes of the Advisory Committee on 1975 Amendments to Rules, Fed.R. Crim.P. 11, reprinted in 8 Moore’s Federal Practice ¶ 11.01[4] at 11-7 to 11-18 (1977) (hereinafter 1975 Committee Notes). The 1975 Committee Notes, however, interpreted the rule as promulgated by the Supreme Court, prior to its alteration in Congress. The rule as originally proposed required disclosure of the “maximum possible penalty provided by law for the offense to which the plea is offered.” Id. at 11-9 (emphasis added). The proposed rule thus reaffirmed the proposition that a defendant need be specifically advised of possible sentences only with respect to each offense. The 1975 Committee Notes suggest that because the penalty for an offense appears on the face of the statute defining the crime, a judge can ascertain exactly what to tell a defendant: “Giving this advice tells a defendant the shortest mandatory sentence and also the longest possible sentence for the offense to which he is pleading guilty.” Id. (emphasis added). In Congress the proposed rule generated controversy for its failure to enumerate important rights that are waived by offering a plea of guilty. Those were enumerated by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When the House Judiciary Committee reported the measure which became Rule 11, the rule had been modified to include a requirement that a defendant be advised of the rights waived by a plea and the phrase, “for the offense to which the plea is offered,” was deleted from the section regarding advice about potential penalties. See H.R.Rep.No. 247, 94th Cong., 1st Sess. 21 (1975), reprinted in [1975] U.S.Code Cong. & Admin. News, p. 674, 693. It appears that clearer explanation of the rights discussed in Boykin v. Alabama, supra, was the purpose of the committee’s revisions. We think that the accompanying deletion was merely a technical amendment to the rule’s text rather than an intentional enlargement of the judge’s duty to inform. Although one could argue that Congress, in deleting the phrase, intended to require disclosure of the possibility of consecutive sentences, in the absence of an indication of such intent, we think amended Rule 11 was meant merely to simplify a judge’s task by emphasizing that the crucial consequences of entering a plea which must be explained to a defendant are the sentencing consequences, rather than other, less direct, implications of entering a guilty plea. See 1975 Committee Notes, supra at 11-10 (by implication). See generally J. Bond, Plea Bargaining and Guilty Pleas 148 (1975) (noting pre-amendment confusion in classifying consequences as direct or indirect). Cf. Sanchez v. United States, 572 F.2d 210 (9th Cir., 1977) (parole revocation is a collateral consequence). Hamilton was advised by the prosecutor of a possible 15-year sentence, a $25,-000 fine, and a three-year special parole term (by the judge’s interjection) as to each of the two counts. The court reasonably concluded that this explanation implicitly alerted Hamilton to the possibility of consecutive sentencing. We agree. 2. Reliance on the Prosecutor. Relying on McCarthy v. United States, supra, 394 U.S. at 471-72, 89 S.Ct. 1166, Hamilton contends that the trial judge’s reliance on the prosecutor to inform him of possible penalties renders his plea invalid and affords him the opportunity to plead anew. The judge asked Hamilton whether he understood the penalties as explained by the prosecutor. That procedure satisfied the pre-1975 rule’s command that the judge determine that a defendant understands the consequences of his plea. United States v. Yazbeck, 524 F.2d 641, 642-43 (1st Cir. 1975) (per curiam) (dictum). Accord United States v. Coronado, 554 F.2d 166, 173-74 & nn. 11 & 12 (5th Cir. 1977) (direct appeal from conviction on a plea entered under the former version of Rule 11). The question remains whether it met the post-amendment requirement that the “court address the defendant personally” and “inform him of, and determine that he understands” the penalties that may be imposed. See id. at 174 n.12. Requiring the court to inform a defendant of penalties does not necessarily mean that the words must literally issue from the judge’s lips. We conclude that a reasonable interpretation of Rule 11 is that it means a judge must insure that the defendant understands the possible penalties before his plea is accepted. The court can, within certain limits, satisfy the requirement by directing that another advise the defendant in the court’s presence. The crucial requirement is that the judge be satisfied that the defendant understands the possible sentences and that such understanding be apparent in the record. Our conclusion conforms to McCarthy v. United States, supra, which instructed federal judges to spread a defendant’s state of mind on the record at the time of the plea in order to avoid resort to after-the-fact speculation. 394 U.S. at 467, 89 S.Ct. 1166. Furthermore, permitting partial delegation in a case such as this is supported by repeated admonitions that Rule 11 not become the vehicle to transform plea hearings into ritualistic performances. See McCarthy, supra, at 467 n.20, 89 S.Ct. 1166; Guthrie v. United States, 517 F.2d 416, 418 (9th Cir. 1975); United States v. Youpee, 419 F.2d 1340, 1344 (9th Cir. 1969). Finally, it is supported by some evidence that the draftsmen attached no new special significance to the word “inform” as used in ■ the 1975 version of the rule. United States v. Crook, 526 F.2d 708 (5th Cir. 1976), upon which appellant relies, is inapposite. In Crook the judge completely delegated his responsibilities, allowing the prosecutor to conduct nearly all of the Rule 11 examination. Moreover, only the prosecutor questioned the defendant on the voluntariness of his plea. The reviewing court properly concluded that the potentially intimidating effect of prosecutorial questioning raised fatal doubts regarding the voluntariness of the plea. Id. at 710. In this case the trial judge carefully advised the defendant of all Rule 11 matters except penalties. He satisfied himself that Hamilton understood the penalties as explained by the prosecutor. He failed to “inform” Hamilton of possible penalties only in a literal sense. Moreover, Hamilton, unlike the appellant in Crook, does not challenge the voluntariness of his plea except insofar as he alleges it was uninformed. However, his understanding of the penalties is readily discerned from his recorded responses in the Rule 11 hearing transcript. The procedure followed by the trial court was consistent with both the mandate of Rule 11 and the holding of McCarthy v. United States, supra. We caution district judges, however, that deviation from literal compliance with the rule should be undertaken only with the utmost caution to insure that the record reflects observance of the rule’s substantive import. In this case the requisite caution was displayed. The convictions are affirmed. . The transcript of the Rule 11 hearing, with questions by the prosecutor, reads in relevant part: Q: Are you aware of the fact that these [two] charges carry with them penalties of 15 years each? A: I am, sir. Q: And a possible fine of $25,000? A: Yes, sir. THE COURT: Just a moment. You have also got a minimum three-year special parole term. Q (the prosecutor): And a minimum special parole term as to each count? A: I understand. Q: You have previously entered not guilty pleas as to all of these counts. Is it now your desire to withdraw as to Counts I and II your not guilty plea? A: Right, and plead guilty. Q: And enter a plea of guilty as to both counts. A: Yes. Q: You are aware of the maximum penalty as to each of those counts? A: A 15-year maximum. Q: And up to a $25,000 fine and a three-year special parole term as to each. A: Yes. THE COURT: That is a minimum three years. . Boykin v. Alabama, supra, held that offering a guilty plea involves waiver of important constitutional rights (e. g., jury trial, confrontation, right against self-incrimination) and that a knowing, voluntary waiver of those rights cannot be presumed from a silent record. . During four days of hearings, only one reference was made to Rule ll(c)’s sentencing provision. See Amendments to Federal Rules of Criminal Procedure: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 94th Cong., 1st Sess. 36 (1975) (Charles Sevilla) (referring to United States v. Myers, 451 F.2d 402 (9th Cir. 1972)). See also Proposed Amendments to Federal Rules of Criminal Procedure: Hearing Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 93d Cong., 2d Sess. (1974). . See, e. g., Villarreal v. United States, 508 F.2d 1132, 1133 (9th Cir. 1974); Johnson v. United States, 460 F.2d 1203 (9th Cir.), cert. denied, 409 U.S. 873, 93 S.Ct. 206, 34 L.Ed.2d 125 (1972); Hinds v. United States, 429 F.2d 1322, 1323 (9th Cir. 1970) (per curiam). See also United States v. Myers, 451 F.2d 402, 405 (9th Cir. 1972). . The draftsmen noted that the former rule required the court to “inform” a defendant of the consequences of his plea. 1975 Committee Notes, supra at 11-9. . However, in addressing the delegation issue, the court relied on authorities which dealt not with who should ask the questions, but rather with who should answer them. See 526 F.2d at 709-10. We think reliance on those cases was mistaken. . Even as to penalties, the judge carefully followed the prosecutor’s explanation and interrupted to explain the special parole term. . See n.1, supra. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_respondent	027	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them. Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. CLANCY et al. v. UNITED STATES. No. 88. Argued January 10, 1961. Decided February 27, 1961. Paul P. Waller, Jr. and John F. O’Connell argued the cause and filed a brief for petitioners. Daniel M. Friedman argued the cause for the United States. With him on the briefs were Solicitor General Rankin, Assistant Attorney General Wilkey, Robert S. Erdahl, Philip R. Monahan, Beatrice Rosenberg and Jerome M. Feit. MR. Justice Douglas delivered the opinion of the Court. This case presents an important question under 71 Stat. 595, 18 U. S. C. § 3500, the statute sometimes referred to as the Jencks Act, as it deals with the problems presented in our decision by that name. Jencks v. United States, 353 U. S. 657. Petitioners were charged with making false statements (18 U. S. C. § 1001), with attempting to evade the wagering excise tax (26 U. S. C. § 7201), and with conspiring to defraud the United States of internal revenue taxes (18 U. S. C. § 371). They were found guilty and the judgments of conviction were affirmed. 276 F. 2d 617. The case is here on a writ of certiorari. 363 U. S. 836. At the trial Minton, a government agent, testified concerning an interview with petitioner, Kastner, at which he was present. Minton testified “I did not take any notes at the time, but afterwards I returned to the office and made a memorandum of the interview.” Counsel for Kastner asked the court for the production of that memorandum pursuant to the Jencks Act. Other government witnesses testified to conversations they had had with Clancy, Kastner, and a third partner in petitioners’ wagering business. One of the witnesses, Agent Buescher, testified he tad taken no notes during these interviews, but had “compiled a memorandum” from notes taken at the time of the interview by the second witness, Agent Mochel. Both Buescher and Mochel testified that they had signed the later memoranda of the conversations. Counsel for petitioners requested production of the memoranda, and the requests were refused. The trial court, though directing delivery to the defense of notes made by the witnesses at the time of the interviews, refused the requests for the memoranda, saying that written statements were not covered by the Jencks Act unless they were made “contemporaneously” with the interview. The Government now concedes that this was an erroneous ruling, as indeed it was. Each of these statements related “to the subject matter as to which the witness has testified.” Each was a “statement” as that word is defined in the Act. The requirement that it be contemporaneous applies only to “a substantially verbatim recital of an oral statement” made to a government agent. By the terms of the Act, “a written statement made by said witness and signed or otherwise adopted or approved by him” is also included. These statements fell in that category and should have been produced. Campbell v. United States, ante, p. 85. And see United States v. Sheer, 278 F. 2d 65, 67-68. As the Senate Report on the bill that became the Jencks Act states: “The committee believes that legislation would clearly be unconstitutional if it sought to restrict due process. On the contrary, the proposed legislation, as reported, reaffirms the decision of the Supreme Court in its holding that a defendant on trial in a criminal prosecution is entitled to reports and statements in possession of the Government touching the events and activities as to which a Government witness has testified at the trial. “The purpose of the proposed legislation is to establish a procedural device that will provide such a defendant with authenticated statements and reports of Government witnesses which relate directly upon his testimony.” The Government, however, contends that as to Agent Minton the error was harmless. It also asserts — though the record is silent and counsel for petitioners deny it— that verbatim carbon copies of the reports of Agents Buescher and Mochel were delivered to the defense at the trial. But since its version of what transpired is contested, the Government urges that the most we do is to remand the case to the District Court to determine whether verbatim copies of the reports were delivered to the defense at the trial. If they were so delivered, the Government argues, the court’s denial of their production was harmless error. We do not follow that suggestion. We deal with the record as we find it, which gives no support to the Government’s assertion that verbatim reports were delivered to the defense. Moreover, the Government’s assertion is not a positive statement of the prosecution. Those who present the case here say with candor that they speak only “according to our information,” which admittedly falls short of an assertion that the copies were delivered to the defense at the trial. Since the defense earnestly denies the statement, we can only conclude that on the record before us petitioners were denied an inspection of the documents to which they were entitled. We put to one side Rosenberg v. United States, 360 U. S. 367, where a failure to produce a document was considered to be harmless error under the particular circumstances of that case. We do not reach the harmless error point because, if applicable, it is relevant only to the report of one of the agents, not to those of the other two. Since the production of at least some of the statements withheld was a right of the defense, it is not for us to speculate whether they could have been utilized effectively. As we said in Jencks v. United States, supra, 667: “Flat contradiction between the witness’ testimony and the version of the events given in his report is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness’ trial testimony.” Accordingly we conclude that at least as respects some of these statements reversible error was committed and that petitioners are entitled to a new trial. There are other questions raised that we do not reach, as we have no way of knowing whether they will arise on a new trial. Reversed. 18 U. S. C. § 3500 provides in relevant part: “(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) to an agent of the Government shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case. “(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use. “(e) The term ‘statement’, as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means— “(1) a written statement made by said witness and signed or otherwise adopted or approved by him; or “(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement.” 18 U. S. C. § 3500 (b), supra, note 1. 18 U. S. C. § 3500 (e), supra, note 1. 18 U. S. C. § 3500 (e) (2), supra, note 1. 18 U. S. C. § 3500 (e) (1), supra, note 1. S. Rep. No. 569, 85th Cong., 1st Sess., p. 2. Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
sc_adminactionstate	54	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the state agency associated with the administrative action that occurred prior to the onset of litigation. BARNARD, CHAIRMAN OF THE COMMITTEE OF BAR EXAMINERS OF THE VIRGIN ISLANDS v. THORSTENN et al. No. 87-1939. Argued January 11, 1989 Decided March 6, 1989 Kennedy, J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, Stevens, and Scalia, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which White and O’Connor, JJ., joined, post, p. 559. Maria Tankenson Hodge argued the cause for petitioners in both cases. With her on the briefs were Vincent A. Coli-anni and Geoffrey W. Barnard, pro se. Cornish F. Hitchcock argued the cause for respondents. With him on the brief were Alan B. Morrison and William L. Blum. Together with No. 87-2008, Virgin Islands Bar Association v. Thor-stenn et al., also on certiorari to the same court. Godfrey R. de Castro, Attorney General of the Virgin Islands, Rosalie Shnmonds Ballentine, Solicitor General, and Susan Frederick Rhodes, Assistant Attorney General, filed a brief for the Government of the Virgin Islands as amicus curiae urging reversal. John Cary Sims filed a brief for Paul Hoffman et al. as amici curiae urging affirmance in both cases. Justice Kennedy delivered the opinion of the Court. In order to be admitted to the Bar of the District Court of the Virgin Islands, an otherwise qualified attorney must demonstrate that he or she has resided in the Virgin Islands for at least one year and that, if admitted, the attorney intends to continue to reside and practice in the Virgin Islands. The question before us is whether these residency requirements are lawful. I Local Rule 56(b) of the District Court of the Virgin Islands provides that before an otherwise qualified attorney is admitted to the Virgin Islands Bar, he must “allege and prove to the satisfaction” of the Committee of Bar Examiners that he has “resided in the Virgin Islands for at least one year immediately preceding his proposed admission to the Virgin Islands Bar,” V. I. Code Ann., Tit. 5, App. V., Rule 56(b)(4) (1982); and that, “[i]f admitted to practice, he intends to continue to reside in and to practice law in the Virgin Islands,” Rule 56(b)(5). The rule applies not only to practice before the District Court, but also to practice before the local territorial courts. Respondents Susan Esposito Thorstenn and Lloyd DeVos are attorneys who are members in good standing of the Bars of the States of New York and New Jersey, and who practice law in New York City. Neither respondent resides in the Virgin Islands. In the spring of 1985, respondents applied to take the Virgin Islands bar examination, but their applications were rejected by the Committee of Bar Examiners because they did not satisfy the residency requirements of Local Rule 56(b). Respondents filed this suit in the District Court against petitioner Geoffrey W. Barnard, the Chairman of the Committee of Bar Examiners, seeking a declaration that the residency requirements of Rule 56(b) violate the Privileges and Immunities Clause of Article IV of the Constitution, as interpreted by our decision in Supreme Court of New Hampshire v. Piper, 470 U. S. 274 (1985). Respondents also sought to enjoin the enforcement of Rule 56(b) against them. On June 21, 1985, while reserving a decision on the merits, the District Court ordered that respondents be allowed to take the bar examination. They took the examination and passed. Petitioner Virgin Islands Bar Association intervened, and all parties submitted motions for summary judgment with supporting affidavits. The District Court granted summary judgment for petitioners, concluding that the reasons offered for Rule 56(b)’s residency requirements, grounded in the unique conditions in the Virgin Islands, were substantial enough to justify the discrimination against nonresidents. App. to Pet. for Cert. 64a-67a. While the District Court’s decision was pending on appeal in the Third Circuit, we decided Frazier v. Heebe, 482 U. S. 641 (1987), where we invoked our supervisory power to invalidate certain residency requirements contained in the local rules of the United States District Court for the Eastern District of Louisiana. A divided panel of the Court of Appeals reversed the District Court’s judgment for petitioners, concluding that the reasons given for Rule 56(b) were in essence the same as those we rejected in Heebe. See Esposito v. Barnard, No. 87-3034 (CA3, Sept. 30, 1987), vacated sub nom. Thorstenn v. Barnard, 833 F. 2d 29 (1987). The case was reheard en banc, and a majority of the full Court of Appeals agreed with the original panel decision that the residency requirements of Rule 56(b) were invalid under Heebe. See 842 F. 2d 1393 (1988). The en banc court emphasized that alternative and less restrictive means, short of a residency requirement, were available to the District Court to assure that nonresident bar members would bear professional responsibilities comparable to those imposed on resident attorneys. Id., at 1396. In view of its determination that Heebe controlled the case, the Court of Appeals did not address respondents’ claim under the Privileges and Immunities Clause. 842 F. 2d, at 1397, n. 6. We granted certiorari, 487 U. S. 1232 (1988), and now affirm. II In Frazier v. Heebe, supra, we invoked supervisory power over district courts of the United States to invalidate discriminatory residency requirements for admission to the Bar of the United States District Court for the Eastern District of Louisiana. The Court of Appeals in the case now before us expressed “no doubt” that our supervisory power extends to the bar requirements of the District Court of the Virgin Islands. 842 F. 2d, at 1396. Without attempting to define the limits of our supervisory power, we decline to apply it in this case. Both the nature of the District Court of the Virgin Islands and the reach of its residency requirements implicate interests beyond the federal system. As to the former, the District Court, which was given its current form and jurisdiction by Congress in the Revised Organic Act of 1954, 68 Stat. 506, see 48 U. S. C. §§ 1611-1616 (1982 ed. and Supp. IV); see generally §§ 1541-1645, is not a United States district court, but an institution with attributes of both a federal and a territorial court. Although it is vested with the jurisdiction of a United States district court, see 48 U. S. C. § 1612(a) (1982 ed., Supp. IV), the District Court also has original jurisdiction over certain matters of local law not vested in the local courts of the Virgin Islands, see § 1612(b), as well as concurrent jurisdiction with the local courts over certain criminal matters, see § 1612 (c). It also serves as an appellate court for decisions rendered by the local courts. See 48 U. S. C. § 1613a (1982 ed., Supp. IV). In fact, Congress provides in the Revised Organic Act that, for certain purposes, the District Court “shall be considered a court established by local law.” § 1612(b). The application of Rule 56(b) itself similarly extends beyond practice in the federal system. Unlike the rule in Heebe, which was confined to practice before the United States District Court, Rule 56(b) applies to admission to the Bar of the Virgin Islands, and so governs practice before the territorial courts. See n. 1, supra. Because these territorial interests are intertwined with the operation of Rule 56, we decline to examine this case as an issue of supervisory power. HH I — I 1 — 4 Respondents also contend that Rule 56(b) violates the Privileges and Immunities Clause of Article IV of the Constitution, which Congress has made applicable to the Virgin Islands in the Revised Organic Act. See 48 U. S. C. § 1561. Petitioners concede that the District Court is an instrumentality of the Government of the Virgin Islands and is subject to the Privileges and Immunities Clause through the Revised Organic Act. Tr. of Oral Arg. 5-6. Article IV, § 2, of the Constitution provides that the “Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” When a challenged restriction deprives nonresidents of a privilege or immunity protected by this Clause, it is invalid unless “(i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a substantial relationship to the State’s objective.” Supreme Court of New Hampshire v. Piper, supra, at 284; see Supreme Court of Virginia v. Friedman, 487 U. S. 59, 65 (1988). In deciding whether the discrimination bears a substantial relation to the State’s objectives, we consider, among other things, whether less restrictive means of regulation are available. Piper, 470 U. S., at 284. It is by now well settled that the practice of law is a privilege protected by Article IV, § 2, and that a nonresident who passes a state bar examination and otherwise qualifies for practice has an interest protected by the Clause. See Friedman, supra, at 65; Piper, supra, at 279-283. We need consider here only whether there are substantial reasons to support treating qualified nonresident attorneys differently, and whether the means chosen by the District Court, total exclusion from the Bar, bear a close or substantial relation to the Territory’s legitimate objectives. Petitioners offer five justifications for the residency requirements of Rule 56(b), which track the reasons recited by the District Court. First, petitioners contend that the geographical isolation of the Virgin Islands, together with irregular airline and telephone service with the mainland United States, will make it difficult for nonresidents to attend court proceedings held with little advance notice. Second, petitioners cite the District Court’s finding that the delay caused by trying to accommodate the schedules of nonresident attorneys would increase the massive caseload under which that court suffers. Third, petitioners contend that delays in publication and lack of access to local statutes, regulations, and court opinions will prevent nonresident attorneys from maintaining an adequate level of competence in local law. Fourth, petitioners argue that the Virgin Islands Bar does not have the resources for adequate supervision of a nationwide bar membership. Finally, petitioners exert much energy arguing that the residency requirements of Rule 56(b) are necessary to apply Local Rule 16 in a strict and fair manner. That Rule requires all active members of the Bar to represent indigent criminal defendants on a regular basis. See V. I. Code Ann., Tit. 5, App. V, Rule 16 (1982). We find none of these justifications sufficient to meet the Virgin Island’s burden of demonstrating that the discrimination against nonresidents by Rule 56(b) is warranted by a substantial objective and bears a close or substantial relation to that objective. The answer to petitioners’ first justification, based on the geographical isolation of the Virgin Islands and the unreliable airline and telephone service, is found in Piper. In that case, as here, the Bar argued that “[e]ven the most conscientious lawyer residing in a distant State may find himself unable to appear in court for an unscheduled hearing or proceeding.” 470 U. S., at 286. We did not find this a sufficient justification for a residency requirement for two reasons. First, we found it likely that a high percentage of nonresidents who took the trouble to take the state bar examination and to pay the annual dues would reside in a place convenient to New Hampshire. Id,., at 286-287. Although that observation is not applicable here, we went on to hold in Piper that, for lawyers who reside a great distance from New Hampshire, the State could protect its interests by requiring the lawyer to retain a local attorney who will be available for unscheduled meetings and hearings. Id., at 287. The same solution is available to the Virgin Islands. The exclusion of nonresidents from the bar is not substantially related to the District Court’s interest in assuring that counsel will be available on short notice for unscheduled proceedings. Petitioners’ second proffered justification is similar to their first. The District Court found that because of its unusually large and increasing caseload, it could not countenance interruptions caused by nonresident lawyers attempting to reach the Virgin Islands from the mainland, or conflicts with their appearances on the mainland. To the extent this justification reiterates the point we have addressed above, the same response applies. Any burden on the Virgin Islands court system to accommodate travel schedules of nonresidents can be relieved in substantial part by requiring nonresidents to associate with local counsel. The large caseload of the Virgin Islands District Court does not alter the analysis. Quite aside from the paradox in citing extreme caseload as the reason to exclude more attorneys, it is clear that a State, or a Territory to which the Privileges and Immunities Clause applies, may not solve the problem of congested court dockets by discriminating against nonresidents. Nor do we see the problem of conflicting court appearances as justifying the exclusion of nonresidents from the bar. The problem is not unique to the Virgin Islands. A court in New Jersey may be inconvenienced to some extent by a request to accommodate the conflicting court appearance of a nonresident attorney in New York. But that does not justify closing the New Jersey Bar to New York residents. Further, the District Court may make appropriate orders for prompt appearances and speedy trials. Nor are we persuaded by petitioners’ claim that the delay in publication of local law requires exclusion of nonresidents because they will be unable to maintain an adequate level of professional competence. As we said in Piper, we will not assume that “a nonresident lawyer — any more than a resident — would disserve his clients by failing to familiarize himself with the [local law].” Id., at 285. We can assume that a lawyer who anticipates sufficient practice in the Virgin Islands to justify taking the bar examination and paying the annual dues, see ibid., will inform himself of the laws of the Territory. And although petitioners allege that the most recent legal materials, such as District Court opinions and local statutes and regulations, are not available on a current basis, this does not justify exclusion of nonresidents. If legal materials are not published on a current basis, we do not see how this is more of a problem for nonresidents than residents. All that petitioners allege on this point is that residents can review slip opinions by visiting the offices of the law clerks for the District Court judges. See Affidavit of Patricia D. Steele, App. 45. We do not think it either realistic or practical to assume that residents resort to this practice with regularity, or that nonresidents, faced with the occasional need to do so, cannot find some adequate means to review unpublished materials. We note, moreover, that the record discloses that after the initial affidavits were submitted by petitioners in this case, the Virgin Islands Bar Association Committee on Continuing Legal Education began a subscription service for all opinions of the District Court and the territorial courts, available to all members of the bar. See Affidavit of William L. Blum, App. 51. In short, we do not think the alleged difficulties in maintaining knowledge of local law can justify the drastic measure of excluding all nonresidents as a class. Petitioners’ fourth contention, that the Virgin Islands Bar Association does not have the resources and personnel for adequate supervision of the ethics of a nationwide bar membership, is not a justification for the discrimination imposed here. Increased bar membership brings increased revenue through dues. Each lawyer admitted to practice in the Virgin Islands pays an initial fee of $200 to take the bar examination, annual bar association dues of $100, and an annual license fee of $500. There is no reason to believe that the additional moneys received from nonresident members will not be adequate to pay for any additional administrative burden. To the extent petitioners fear that the Bar will be unable to monitor the ethical conduct of nonresident practitioners, respondents note that petitioners can, and do, rely on character information compiled by the National Conference of Bar Examiners. In this regard, the monitoring problems faced by the Virgin Islands Bar are no greater than those faced by any mainland State with limited resources. The final reason offered by petitioners for Rule 56(b)’s residency requirements is somewhat more substantial, though ultimately unavailing. Under District Court Rule 16, each active member of the Virgin Islands Bar must remain available to accept appointments to appear on behalf of indigent criminal defendants. See V. I. Code Ann., Tit. 5, App. V, Rule 16(A) (1982). According to the affidavit of the President of the Virgin Islands Bar Association, each member can expect to receive appointments about four times per year. App. 44. Once appointed, it is the duty of the lawyer “to communicate with the defendant at his place of incarceration as promptly as possible and not later than five days from the date of the clerk’s mailing of the order of appointment.” Rule 16(B)(f). Although the statute does not specifically so provide, the District Court interprets Rule 16 tc require that only the appointed attorney may appear on behalf of the criminal defendant. See App. to Pet. for Cert. 66a. The District Court found that, in light of this individual appearance requirement and the strict time constraints imposed by the Speedy Trial Act, 18 U. S. C. §§3161-3174, it would be virtually impossible for this system of appointed counsel to work with nonresident attorneys. App. to Pet. for Cert. 65a-66a. In Piper, we recognized that a State can require nonresidents to share in the burden of representing indigent criminal defendants as a condition for practice before the Bar. 470 U. S., at 287. That, however, is not quite what is at issue here. The question in this case is whether bar admission can be denied to a nonresident because at times it may not be feasible for him to appear personally to represent his share of indigent defendants. We determine that this requirement is too heavy a burden on the privileges of nonresidents and bears no substantial relation to the District Court’s objective. Petitioners offer no persuasive reason why the strong interests in securing representation for indigent criminal defendants cannot be protected by allowing an appointed nonresident attorney to substitute a colleague in the event he is unable to attend a particular appearance. Further, contrary to the District Court’s characterization of the personal appearance requirement as a hard and fast rule, we must assume that in some circumstances it would in fact be detrimental to the goal of competent representation for criminal defendants to require the appointed attorney, whether a resident or nonresident, to appear personally. For instance, where the bar member is an expert in trusts and estates, but has no prior experience in criminal procedure, it would seem counterproductive to the interests that Rule 16 is designed to serve to require the appointed attorney to make an individual appearance. The text of Rule 16 appears to recognize as much in its explicit provision that, where the interests of justice so require, the District Court may substitute one appointed counsel for another. See V. I. Code Ann., Tit. 5, App. V, Rule 16(B)(j) (1982). Petitioners’ only effort to explain why this seemingly more sensible and less intrusive alternative would not work is to predict that resident attorneys would not be willing to make the additional appearances required where nonresidents are unavailable. Such speculation, however, is insufficient to justify discrimination against nonresidents. As respondents point out, if handling indigent criminal cases is a requirement of admission to the Bar, a nonresident knows that he must either appear himself or arrange with a resident lawyer to handle the case when he is unavailable. If the nonresident fails to make all arrangements necessary to protect the rights of the defendant, the District Court may take appropriate action. This possibility does not, however, justify a blanket exclusion of nonresidents. IV In sum, we hold that petitioners neither advance a substantial reason for the exclusion of nonresidents from the Bar, nor demonstrate that discrimination against nonresidents bears a close or substantial relation to the legitimate objectives of the court’s Rule. When the Privileges and Immunities Clause was made part of our Constitution, commercial and legal exchange between the distant States of the Union was at least as unsophisticated as that which exists today between the Virgin Islands and the mainland United States. Nevertheless, our Founders, in their wisdom, thought it important to our sense of nationhood that each State be required to make a genuine effort to treat nonresidents on an equal basis with residents. By extending the Privileges and Immunities Clause to the Virgin Islands, Congress has made the same decision with respect to that Territory. The residency requirements of Rule 56(b) violate the Privileges and Immunities Clause of Article IV, § 2, of the Constitution, as extended to the Virgin Islands by 48 U. S. C. § 1561. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. This is true because “[t]he Virgin Islands Bar Association [is] an integrated bar association comprising all attorneys admitted to practice in the District Court of the Virgin Islands pursuant to the provisions of Rule 56 . . . Rule 51(a), and “[n]o attorney may practice law in the Virgin Islands who is not an active or government member of the Virgin Islands Bar Association . . . except pursuant to the provisions in the District Court’s rules governing pro hac vice participation in litigation and limited participation by inactive members of the bar, Rule 51(b). The District Court decided this case on cross-motions for summary-judgment after the parties had submitted affidavits that offered conflicting accounts of, inter alia, the ease of travel and communications between the Virgin Islands and the continental United States. See App. 32-46. The Court of Appeals concluded that, in light of the justifications we rejected in Piper and Heebe, these conflicting affidavits did not create an issue of material fact. See 842 F. 2d 1393, 1395, and n. 3 (CA3 1988). To the extent that any points of factual disagreement are material to our analysis here, we have assumed the facts included in petitioners’ affidavits to be true. Question: What is the state of the state agency associated with the administrative action? 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_initiate	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. UNITED STATES of America, Plaintiff-Appellee, v. ONE PARCEL OF REAL ESTATE AT 1012 GERMANTOWN ROAD, PALM BEACH COUNTY, FLORIDA also known as “D’s” Grocery, Defendant-Appellant, Roberto Chang, Claimant-Appellant. No. 89-5590. United States Court of Appeals, Eleventh Circuit. June 26, 1992. James L. Eisenberg, West Palm Beach, Fla., Joel Kaplan, Miami, Fla., for defendant-appellant. Dexter Lehtinen, U.S. Atty., Lynn M. Summers, Linda Collins Hertz, Anne M. Hayes, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee. Before KRAVITCH, Circuit Judge, HILL and SMITH, Senior Circuit Judges. See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit. Honorable Edward S. Smith, Senior U.S. Circuit Judge for the Federal Circuit, sitting by designation. KRAVITCH, Circuit Judge: In a special verdict rendered in the United States District Court for the Southern District of Florida, a jury determined that the property of claimant Roberto Chang was subject to forfeiture pursuant to 21 U.S.C. § 881(a)(7). Chang appeals this verdict challenging a) the district court’s decision to allow the jury to overhear hearsay evidence and b) a special interrogatory equating consent with a property owner’s failure to take all reasonable efforts to prevent illicit use of his property. Because the district court committed reversible error when it allowed the jury to overhear inadmissible hearsay evidence, we remand for a new trial at which the judge should thoroughly instruct the jury on the legal definition of consent. I. THE FACTS The defendant real estate is a parcel of land situated at the intersection of 10th Street and Germantown Road, Delray Beach, Palm Beach County, Florida (1012 Germantown Road). Located on this real estate is a convenience store where such items as fresh coffee, soda, beer, bread and canned foods are sold. The store is referred to as “D’s Grocery,” and is owned, along with the accompanying real estate, by Roberto Chang (“claimant”), the proprietor of the store. Claimant purchased the property in 1979 or 1980 following a period during which he leased the store from the prior owner. In January, 1987, a task force was formed to address the drug trafficking problems plaguing the greater German-town Road area. The force consisted of agents from the Federal Bureau of Investigation and other federal agencies, as well as officers from the local police and sheriffs offices. The local law enforcement agencies had proposed the creation of such a task force after realizing that their increased commitment of resources had led to even less success in controlling the drug traffic. The initial focus of the task force was the source of supply of narcotics in the targeted areas, including the 10th Street/Germantown Road neighborhood. Because street arrests had proven ineffective, the strategy of the task force was to incapacitate the source of the drug supply. The local agencies, prior to the formation of the task force, had developed an intelligence base that indicated that an individual named Deniz Fernandez and an associate were the source of the narcotics in the area. The FBI agent assigned to head the task force used this information to identify specific locations in the 10th Street/German-town Road area associated with the sale of cocaine and other drugs. Two of these properties were identified as “The Hole” and D’s Grocery. The Hole was owned by Deniz Fernandez, Abraham Oliva, and Roberto Rodriguez, and D’s Grocery was owned by claimant. As a result of the task force investigation, Deniz Fernandez, Abraham Oliva, Roberto Rodriguez, and others were indicted. Civil forfeiture actions commenced on numerous properties in the 10th Street/Ger-mantown area, including D’s Grocery. The indictment was received into evidence. The government presented numerous witnesses who testified to buying and selling drugs at the 1012 Germantown location. Many of these witnesses discussed the relationship between The Hole and the parking lot of D’s Grocery. According to these witnesses, the sale would commence on the grounds of the grocery, but the supplies were stored at The Hole. Often the dealers would run from the parking lot to The Hole to obtain more drugs for sale. The government offered no witnesses who admitted selling or buying drugs inside of D’s Grocery or who ever saw drugs within the Grocery. Claimant Chang was aware of the drug activity occurring on and around his property. He testified, however, that he never saw drugs or drug transactions occurring within his store. Chang also introduced corroborating testimony from fourteen witnesses who were either residents of the area or otherwise familiar with the Ger-mantown location. Chang and several of his witnesses testified that he tried constantly to halt the drug traffic. On numerous occasions he or one of his employees would call the police. Often, he would personally leave the store to chase away the dealers. He placed large yellow signs in both front windows of the store which said “No Loitering.” He installed cameras and mirrors inside his store to detect illegal activity. He removed the telephones on the north side of his building because he suspected they were being used to facilitate drug sales. He paved over the dirt parking lot to prevent drug dealers from burying their drugs in the dirt. He erected tall fences, installed a burglar alarm and kept watchdogs. He asked several of his friends and some drug dealers to assist him in moving the drug traffic off his property. The government claims that Chang made insufficient efforts to prevent drug dealings on his property. They question the number of calls he made to police, arguing that claimant should have obtained phone logs to prove his calls. In addition, they claim that Chang only chased away the drug dealers when the police were able to observe him doing so. Finally, the government suggested, during closing arguments, that Chang should have released his dogs to drive away the loiterers. Through the task force investigation, the police compiled information linking Roberto Chang with the convicted drug supplier, Deniz Fernandez. A search of Fernandez’ home uncovered an album containing a photograph of Deniz Fernandez, Abraham Oliva and claimant Roberto Chang in an obviously social setting. In addition, Fernandez’ business (a plant nursery) had originally been located in a shed on claimant’s property that Fernandez had leased from Chang. In the past, Chang had lent money to Fernandez to start his nursery business, and Fernandez had paid him back completely. Chang acknowledged that Fernandez was his friend due to their connections in Cuba but denied that he knew of Fernandez’ involvement in drug dealing. II. COURSE OF PROCEEDINGS On June 1, 1988, the government filed a claim against D’s Grocery, alleging that the property was subject to forfeiture under 21 U.S.C. § 881(a)(7) as real property used to commit, or facilitate, the commission of a violation of Title 21. Claimant requested a jury trial. Following argument of counsel on the order of proof and the admissibility of hearsay evidence during the government’s initial probable cause case, the district court issued a ruling concerning the appropriate procedure to be utilized during the trial. The district court ruled that: (1) the issue of probable cause was a question for the court; (2) the government’s probable cause evidence would be heard in the “presence of the jury because, otherwise, the case [would not] make any sense at all to let the defendant go forward with proof, and disprove something not at issue”; (3) the government would present its probable cause evidence first, then the court would make a legal determination of probable cause;’ and (4) if probable cause was established, then claimant would have the burden of proving his defense, and the government would be permitted to offer rebuttal evidence. Trial commenced pursuant to this procedure. The government presented its evidence before the jury, and the district court ruled that the government had met its probable cause burden. Chang then presented his case, and the government had the opportunity to rebut. After completion of the closing arguments, the judge instructed the jury concerning the issues on which a verdict was necessary. The judge specifically modified Requested Jury Instruction No. 18 to eliminate the language requiring claimant to do “all he could do to prevent the illegal use of the defendant real estate” in order to prevent a section 881(a)(7) forfeiture. The jury was instructed to make its determination in the form of a special verdict, consisting of four interrogatories. The claimant made no objection to the jury instructions but objected to the last special interrogatory. The jury returned a verdict in favor of the United States. The special interrogatory verdict form stated the jury’s findings that claimant had not proven: (1) that the property had not been used to commit drug violations; (2) that claimant did not know of the illegal use of the property; (3) that claimant did not consent to the illegal use of the property; and (4) that claimant did not do everything that he could reasonably be expected to do to prevent the illegal use of the property. The district court subsequently entered a final judgment of forfeiture in accordance with the jury verdict. Claimant now appeals. III. THE CLAIMS Claimant raises four issues on appeal. First he argues that the district court erred when it chose to hear the government’s probable cause hearsay evidence in the presence of the jury. Second, he claims that the district court erred by submitting the fourth special interrogatory to the jury in which the jury was asked whether claimant had proven that he had taken all reasonable actions to prevent his property from being used in violation of the drug laws. The other two issues raised by claimant are without merit, and in any case, need not be addressed given our decision to remand for a new trial on the basis of Chang’s first claim. IV. STANDARD OF REVIEW The propriety of procedures involved in a 21 U.S.C. § 881 case where an innocent owner defense is presented is a question of law and is consequently reviewed de novo. United States v. One Single Family Residence, 894 F.2d 1511 (11th Cir.1990). The content of a special interrogatory is reviewed for abuse of discretion. Stewart & Stevenson Services, Inc. v. Pickard, 749 F.2d 635, 641 (11th Cir.1984). V. THE STATUTE 21 U.S.C. § 881 provides for forfeiture of property used to facilitate illicit acts. Section 881(a)(7) deals specifically with the forfeiture of real property. Such property shall be subject to forfeiture if it: is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this title punishable by more than one year’s imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner. This circuit has noted that “[t]he language of section 881(a)(7) reflects two interrelated aims of Congress: to punish criminals while ensuring that innocent persons are not penalized for their unwitting association with wrongdoers.” United States v. 15621 S.W. 209th Avenue, 894 F.2d 1511, 1513 (11th Cir.1990) (finding no forfeiture of property owned in the entire-ties by an innocent spouse). The latter purpose, the protection of innocent owners, is guaranteed by the statutory language exempting owners who have no knowledge of or do not consent to the illegal activity affecting their property. This protection of innocent owners goes beyond the language of section 881. In evaluating forfeiture actions, courts must not only consider the statutory limitations, but the constitutional guarantees of core individual rights. See United States v. $38,000 in United States Currency, 816 F.2d 1538, 1548-49 (11th Cir.1987). This court has explicitly cautioned against the overzealous prosecution of drug related crimes at the expense of constitutional rights: We are not unsympathetic to the government’s strong desire to eradicate drug trafficking: we recognize that illegal drugs pose a tremendous threat to the integrity of our system of government. We must not forget, however, that at the core of this system lies the Constitution, with its guarantees of individuals’ rights. We cannot permit these rights to become fatalities of the government’s war on drugs. Id. at 1548-49. See also Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689-690, 94 S.Ct. 2080, 2094-95, 40 L.Ed.2d 452 (1974). Accordingly, courts must cautiously balance the government’s strong desire to eradicate illicit drug trafficking against constitutional guarantees of individual rights. VI.PROCEDURE The structure of a section 881 forfeiture proceeding is well settled by statute and case law. First, a claimant must establish standing as an owner of the contested property. United States v. Certain Real Property, 724 F.Supp. 908, 913 (S.D.Fla.1989). In this case, claimant’s ownership is uncontested. Once a claimant has established standing, the burden shifts to the government to prove probable cause for the institution of the forfeiture action. 19 U.S.C. § 1615; United States v. One 1979 Porsche Coupe, 709 F.2d 1424, 1426 (11th Cir.1983). The trial court bears the responsibility for determining whether the government has proven probable cause. 19 U.S.C. § 1615. The government must convince the judge that it had a “reasonable ground for belief of guilt, supported by less than prima facie proof, but more than reasonable suspicion.” United States v. A Single Family Residence, 803 F.2d 625, 628 (11th Cir.1986). In presenting its case, the government is permitted to present otherwise inadmissible hearsay evidence. Id. at 629 n. 2. Once probable cause is established, the burden shifts to the claimant to prove by a preponderance of the evidence a defense to the forfeiture. United States v. 15603 8th Avenue North, Lake Park, 933 F.2d 976, 979 (11th Cir.1991). It is a “statutory requirement” that the claimant, and not the government, bear the burden of proving an innocent owner defense. 19 U.S.C. § 1615; United States v. Four Million Two Hundred Fifty-five Thousand Dollars, 162 F.2d 895, 906-07 (11th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 772 (1986). The question of whether a claimant has sufficiently established an innocent owner defense is a question of fact to be determined by the fact finder. United States v. 5000 Palmetto Drive, 928 F.2d 373 (11th Cir.1991); United States v. Hayes, 943 F.2d 1292 (11th Cir.1991). VII. BIFURCATION Because the government is permitted to use hearsay evidence to prove its probable cause case to the court, A Single Family Residence, 803 F.2d at 629, n. 2, an issue arises concerning the propriety of allowing the jury to overhear this evidence. Usually, this situation is easily resolved because forfeiture cases are typically tried as bench trials, making it relatively easy for the judge as factfinder to sort out the hearsay evidence from the admissible evidence before making a factual determination. In the instant case, a potential for prejudice arose because Chang exercised his right to a jury trial. In an attempt to avoid such prejudice, claimant Chang asked the district court to bifurcate the trial into a) a bench trial to determine probable cause and b) a subsequent jury trial on the issue of the innocent owner defense. The trial judge refused the request, reasoning that it would not “make any sense at all to let the defendant go forward with proof, and disprove something not at issue.” By allowing the government to present hearsay evidence before the jury, the court committed reversible error. A. Case Law Two other district courts and one other circuit court have dealt with similar requests to bifurcate a section 881 forfeiture trial in order to shield the jury from prejudicial hearsay. In each of these cases, the courts found that a trial must be bifurcated in order to avoid reversible error. In United States v. $150,000 In Currency, 686 F.Supp. 133 (E.D.Va.1988), the “claimants ask[ed] the court to conduct the probable cause hearing outside the presence of the jury to avoid infecting the jury with inadmissible hearsay relating to probable cause.” Id. at 134. The government in $150,000 In Currency contested claimant’s bifurcation request. Finding no case law and no principle in favor of allowing hearsay into the jury’s consideration of the government’s forfeiture claim, the court honored the claimant’s request: “there is no reason to distinguish a civil forfeiture proceeding from any other civil proceeding. Absent an exception under Rules 803 or 804, Fed.R.Evid., hearsay is not admissible for the truth of the matters asserted. Fed.R.Evid. 801(c), 802.” Id. at 134. Similarly, a different district court held that “[p]roperly admitted hearsay evidence on the issue of whether there was probable cause to find that the property was used to further trafficking of illegal narcotics is inadmissible in a forfeiture case on the issue of whether an owner falls within the innocent owner exception.” United States v. Property Identified as 908 T Street, N. W., 770 F.Supp. 697, 702-03 (D.D.C.1991). The Third Circuit has held that even in a bench trial, the improper use of hearsay evidence during the innocent owner portion of the trial is grounds for remand. “It is well settled law that evidence which is relevant and admissible as to one issue, here probable cause, can be inadmissible as to another.” United States v. 6109 Grubb Road, 886 F.2d 618, 622 (3rd Cir.1989). In Grubb, the district court relied on hearsay as well as other evidence to find that claimant had failed to sufficiently establish that he was an innocent owner. Because the use of hearsay depositions to rebut claimant’s innocent owner defense was an “improper use of hearsay evidence” that had been admitted for the purpose of establishing probable cause, the Third Circuit was compelled to remand. Id. at 623. B. Curative Instruction Not Sufficient The government contends that the judge’s curative instruction was sufficient to erase any prejudice created by the admission of hearsay evidence. The judge had instructed the jury, on claimant’s request that: Obviously, if he’s telling you what he personally observed and saw, of course you can consider that. But when he’s telling you about his sources, that’s only offered for the purpose of giving background, and you’re not to consider that as evidence against the defendant, because it’s hearsay. That is, he can’t say of his own personal knowledge what somebody told him. We’re receiving that totally for the — so you can put it in some context. (Emphasis added). This instruction fails to erase the prejudice for several reasons. First, a curative instruction is not tantamount to deletion of prejudice. “[Tjhere are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968). In this case, it would be unreasonable to expect a jury to not only ignore the hearsay evidence, but to remember which bits of information they acquired from hearsay evidence rather than from admissible evidence. The error from exposure to this much hearsay evidence cannot be fixed by curative instructions. See $150,000 In Currency, 686 F.Supp. at 134. Second, the hearsay evidence was not an accidental slip on the part of counsel or a witness. All parties and the judge knew well in advance that the testimony would contain a great deal of hearsay. Failure to reverse on this issue, will lend credibility to the argument that judges need not avoid prejudicing the jury — even when avoidance does not impose hardship on any party or the court — because an instruction can undo the harm. The district court in $150,000 In Currency recognized this rationale when it noted that: a curative instruction [would not] be sufficient to dispel any prejudice to claimants flowing from the admission of hearsay. To conclude otherwise would be to create a new rule that hearsay is admissible if accompanied by a curative instruction. No such rule exists. Accordingly, the issue of probable cause for forfeiture will be heard by the Court prior to the jury trial on the issue of whether claimants are innocent owners of the seized property. $150,000 In Currency, 686 F.Supp. at 134 (emphasis added). Third, the judge’s instruction was inadequate. He did not tell the jury that it could not use hearsay for the truth of the matter asserted. It merely told them to use the hearsay as background evidence. This instruction tells the jury to use the information, but to weigh it less heavily than other information. Such an instruction is insufficient to cure the prejudice incurred, especially when the prejudice could have been easily and appropriately avoided by bifurcation. Finally, the judge never itemized the hearsay for the jury. In effect he told them, after hearing numerous witnesses and affidavits, to remember what each witness said and then to remember whether the witness said he saw something or whether the witness was recounting what he had heard from other sources. From reading the record it is obvious that this is an impossible task for any jury. There were many witnesses talking about numerous other individuals. It is unreasonable to expect the jury, without guidance, to remember which of its impressions were created by direct evidence and which were created by hearsay. Clearly, the best way to have prevented prejudice was bifurcation and the judge’s instructions did not mitigate the damage caused by the court’s failure to bifurcate the trial. C. Remedy Admission of hearsay evidence can constitute reversible error. In Bruton, a new trial was necessary because inadmissible hearsay was presented to the jury, and the curative instruction was not sufficient to outweigh prejudice. 391 U.S. at 126, 88 S.Ct. at 1622. Similarly, this circuit has reversed district courts for improperly admitting certain hearsay statements. Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1562 (11th Cir.1991). The hearsay evidence presented in this case was sufficiently prejudicial to merit remand. This circuit’s predecessor has held that admission of hearsay requires a new trial if the jury may have relied upon it in reaching its verdict, Elizarraras v. Bank of El Paso, 631 F.2d 366, 375 (5th Cir.1980). In this case, the hearsay evidence admitted to show probable cause contained references to Chang’s supposed financial backing of Fernandez, a known and convicted drug lord. It also contained references to a large number of reports detailing incidents of drug dealing near the 1012 address. The jury may well have relied on this improperly admitted evidence in returning a verdict in favor of the government. In addition, remand is warranted if a jury is invited to consider the truth of the hearsay. Gulbranson v. Duluth, Missabe and Iron Range Railway Company, 921 F.2d 139 (8th Cir.1990). As mentioned previously, the Chang jury was specifically invited to consider the hearsay evidence, albeit as mere “background” and “contextual” evidence. In sum, the district court erred in refusing to bifurcate the trial. Given this failure to bifurcate, the inadequacy of the cautionary instruction, and the extent and importance of the hearsay statements, we are compelled to remand for a new trial in which the jury will not overhear the government’s probable cause hearsay evidence. VIII. INNOCENT OWNER DEFENSE In Chang’s second claim, he challenges the implied definition of consent contained in the fourth special interrogatory presented to the jury. Because this court has not specifically defined consent for the purposes of establishing an innocent owner defense under section 881(a)(7), we now resolve this issue so that it can be properly addressed on remand. Section 881(a)(7) explicitly permits a defense to forfeiture for those owners who can prove that they had no knowledge of illegal activity occurring on their property or who did not consent to that activity. Therefore, an owner can avoid forfeiture by proving either ignorance or non-consent. At trial, Chang admitted that he was aware of the drug activity occurring on and around his property, but asserted an innocent owner defense based on his lack of consent to this activity. After closing arguments, the jury was presented with the following four special interrogatories concerning the innocent owner defense: I. Did the claimant, Roberto Chang, prove by a preponderance of the evidence that the subject property was not used to commit or to facilitate the commission of violation of the drug laws? II. Did the claimant, Roberto Chang, prove by a preponderance of the evidence that he had no knowledge that the subject property was being used to commit, or to facilitate the commission of violation of the drug laws? III. Did the claimant, Roberto Chang, prove by a preponderance of the evidence that he did not consent to the subject property being used to commit, or to facilitate the commission of violation of the drug laws? IV. Did the claimant, Roberto Chang, prove by a preponderance of the evidence that he did everything that he could reasonably be expected to do to prevent the subject property from being used to commit, or to facilitate the commission of violation of the drug laws? (Emphasis added). The jury answered “no” to all four questions. Consequently, the court ruled that claimant had failed to avoid forfeiture as an innocent owner. Chang argues that the district court erred by presenting the fourth interrogatory to the jury because this interrogatory implies that a claimant can only avoid a section 881 forfeiture by proving that he made “all reasonable efforts” to prevent the illicit use of his property. Chang challenges the application of this standard, claiming that he is not required to make an “all reasonable efforts” showing in order to avoid an 881 forfeiture as an innocent owner. We disagree with Chang’s interpretation of the standard. However, we agree with Chang that the district court failed to adequately instruct the jury as to the definition of consent. A. Calero-Toledo Standard The “all reasonable efforts” language is derived from Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 686, 689-90, 94 S.Ct. 2080, 2094-95, 40 L.Ed.2d 452 (1974), in which property had been seized pursuant to a Puerto Rican forfeiture statute. In that case, the Supreme Court noted, in dictum, that it might be “difficult” to reject the constitutional claim of an owner whose property has been subject to forfeiture, when that owner has proven not only that he was uninvolved in and unaware of wrongful activity, but who has proven that he has done all that reasonably could be expected to prevent the proscribed use of his property. Id. Although the Calero-Toledo dicta is not binding, it nevertheless indicates a definition of consent which this court may choose to apply to the 881(a)(7) innocent owner defense. Recently, this court chose to adopt the Calero-Toledo standard for purposes of defining the innocent owner exception contained in section 881(a)(6): “a claimant who has actual knowledge of the commingling of legitimate and drug funds may be spared forfeiture as an innocent owner if the claimant can prove that everything reasonably possible was done” to disentangle the property from the illegal activity. United States v. 15603 85th Avenue North, 933 F.2d 976, 982 (11th Cir.1991) (emphasis added). See also 141st Street Corporation, 911 F.2d 870, 879 (2nd Cir.1990) (Given the extent of the current drug problem, “defining ‘consent’ in section 881(a)(7) as the failure to take all reasonable steps to prevent illicit use of premises once one acquires knowledge of that use is entirely appropriate.”). 15603 85th Avenue North dealt exclusively with a section 881(a)(6) forfeiture and did not directly address the issue of the appropriate standard to apply in a section 881(a)(7) situation. However, section 881(a)(6) parallels section 881(a)(7), providing for forfeiture of “moneys” and other valuable properties and containing an identically worded innocent ownership exception. Indeed, when the innocent owner defense of 881(a)(7) is discussed in the legislative history, the 881(a)(6) defense is mentioned by way of comparison. It is, therefore, appropriate to apply the section 881(a)(6) definition of consent to a section 881(a)(7) proceeding. Thus, the district court did not err by presenting the jury with a special interrogatory asking the jury whether Chang had done “everything that he could reasonably be expected to do to prevent the subject property from being used to commit, or to facilitate the commission of violation of the drug laws.” That question accurately reflects the law of this circuit: proof of non-consent for the purposes of 881(a)(7) requires a claimant to show that he took all reasonable steps to prevent the illegal use of his property. B. Jury Instructions Re: Consent At the time of Chang’s trial, the Eleventh Circuit had not yet adopted the Calero-Toledo standard as it pertains to the innocent owner exceptions of 881(a)(6) and 881(a)(7). Therefore, when claimant questioned the legal propriety of the fourth interrogatory, the district judge himself was unsure what standard applied to 881(a)(7). Presumably because of this ambivalence over the appropriate standard, the trial judge failed to instruct the jury on the definition of consent. He did not allude to a “reasonable efforts” standard anywhere in his jury instructions. In fact, the judge modified a requested jury instruction to eliminate the language requiring claimant to do “all he could do to prevent the illegal use of the defendant real estate.” In the end, the judge merely stated that the burden is on the claimant to prove that the “real property was used to facilitate the illegal trafficking of narcotics without the knowledge or consent of Roberto Chang.” He then defined “facilitate” and ‘.‘knowledge” but did not further discuss “consent.” The only time “reasonable efforts” was mentioned was in the fourth interrogatory. The ultimate determination of consent and the “reasonableness” of a claimant’s actions are questions of fact to be answered by the factfinder, in this case, the jury. United States v. 418 57th Street, 922 F.2d 129, 132 (2nd Cir.1990). However, the trial judge bears the exclusive burden of properly instructing the jury as to any relevant legal principles necessary to the proper determination of the case. Jones v. Miles, 656 F.2d 103, 107 n. 6 (5th Cir. Unit B, 1981). In the instant case, the trial judge failed to fulfill this duty, leaving the jury inadequately instructed concerning the definition of consent and the “all reasonable efforts” requirement. The district court should have defined consent for the jury as a failure to take all reasonable steps to prevent the illicit use of one’s property. Further, that court should have made clear that the Calero standard does not require that the claimant make all efforts, he need merely make all reasonable efforts. Although an innocent, knowledgeable owner must affirmatively demonstrate his lack of consent, “reasonableness limits the burden.” United States v. Forfeiture, Stop Six Center, 781 F.Supp. 1200, 1209 n. 6 (N.D.Texas 1991). Indeed, an owner cannot “reasonably” be expected to succeed at preventing illegal use of his property when the police have been incapable of doing the same. Courts “do not expect the common land owner to eradicate a problem which our able law enforcement organizations cannot control.” Id. See also United States v. 171-02 Liberty Avenue, 710 F.Supp. 46, 51 (E.D.N.Y.1989); U.S. v. Sixty Acres in Etowah County, 930 F.2d 857, 861, n. 2 (11th Cir.1991). The reasonable efforts criteria can be satisfied by contacting and cooperating with law enforcement authorities, especially when a claimant is unable to halt the drug traffic on his own. “Although we do not require claimants to work alongside these agents in their effort to combat drug dealers, we insist that claimants under no immediate threat of reprisal either communicate their knowledge to police, or attempt to remove themselves from the scene of illegal activity.” Etowah, 930 F.2d at 861. On remand, the district court should properly instruct the jury on the definition of consent and the reasonable efforts necessary to avoid a section 881(a)(7) forfeiture. IX. CONCLUSION For the foregoing reasons, we REMAND the forfeiture action for a new trial in accordance with this opinion. . The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. . Reference to these reports prejudiced Claimant because the jury was not made aware that most of the incidents detailed in these reports occurred near, but not at, D’s Grocery and that none occurred inside the store. .There is case law in other circuits that incorrectly reads Section 881(a)(7) to require an owner to prove both non-consent and ignorance in order to succeed in an innocent owner defense. The plain words of the statute, however, as well as case law, mandate that either ignorance or non-consent is sufficient to make out an innocent owner defense. Reiter v. Sonotone Corp., 442 U.S. 330, 338-39, 99 S.Ct. 2326, 2330-31, 60 L.Ed.2d 931 (1979) (court cannot ignore the disjunctive "or" so as to rob the nouns it separates of their "independent and ordinary significance”); United States v. 6109 Grubb Road, 886 F.2d 618, 625 (3rd Cir.1989) ("We must construe the language of the statute keeping in mind the congressional purpose in enacting forfeiture statutes and that Congress does not generally place language in a statute without purpose.”). See also United States v. 141st Street Corporation, 911 F.2d 870, 878 (2nd Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 1017, 112 L.Ed.2d 1099 (1991). . 881(a)(6) provides for forfeiture of: All moneys, negotiable instruments, securities or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this sub-chapter, except that no property shall be forfeited under this paragraph to the extent of the interest of an owner by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner. . Section 881(a)(7) "would also include an ‘innocent owner' exception like that now included in those provisions permitting the civil forfeiture of certain vehicles and moneys or securities. [881(a)(6)].” Senate Report of Section 306, 98th Cong., 2nd Sess. in 1984 U.S.C.C.A.N. 3182, 3398. .During discussion with Chang’s counsel concerning the fourth interrogatory, the judge opined that Calero-Toledo did not require the “all reasonable efforts” standard. In fact, he suspected that if the Supreme Court were confronted with the question, it would not read an "all reasonable efforts” standard into section 881(a)(7). He included the fourth interrogatory, however, "for fear that [Congress] might change the law before it gets to the Supreme Court.” . The Eleventh Circuit has adopted as binding precedent decisions of Unit B of the former Fifth Circuit. Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.1982). . In the past, efforts similar to Chang’s efforts have been deemed reasonable and hence sufficient to avoid an 881(a)(7) forfeiture. In 908 T Street, N. W., claimant took all reasonable steps to prevent illicit use of his premises when he "nailed windows shut, put locks on the doors, kicked his drug-add Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_appfed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Otis MERRITT, Jr., Plaintiff-Appellee, v. Lt. Alfredo DE LOS SANTOS, Defendant-Appellant. Nos. 82-2336, 82-2486. United States Court of Appeals, Seventh Circuit. Submitted Oct. 24, 1983. Decided Nov. 17, 1983. Imelda R. Terrazino, Deputy Atty. Gen., Chicago, Ill., for defendant-appellant. Otis Merritt, Jr., pro se. Before BAUER, CUDAHY and FLAUM, Circuit Judges. The appellee herein never filed an appellate brief. The case has been submitted to the court for decision on the record and on appellant’s brief. We conclude oral argument will not significantly aid the court in deciding the case. See Rule 34(a), Fed.R.App.P.; Circuit Rule 14(f). PER CURIAM. Defendant-appellant, Lt. Alfredo De Los Santos, appeals from the judgment entered against him by the magistrate below for violating plaintiff’s due process right to an impartial Adjustment Committee. Nominal damages of $1 and punitive damages of $100 were awarded to the plaintiff. For the reasons which follow, we affirm the judgment in favor of plaintiff against defendant De Los Santos. I Plaintiff-appellee, Otis Merritt, Jr., filed the instant civil rights suit pursuant to 42 U.S.C. § 1983 alleging that the named defendants violated his constitutional rights by using excessive force without just cause; by denial of medical treatment; and by deprivation of his procedural due process right to an impartial disciplinary committee. The magistrate, after a bench trial, entered judgment against plaintiff on the first two counts and against defendant-appellant De Los Santos on the latter count. The propriety of the judgment in favor of the plaintiff is the issue presented to this court on appeal. II The factual findings of the magistrate are not in dispute. The incident which was the subject of this suit occurred on April 6, 1980. There was an altercation between the plaintiff and one guard. Several guards were called to assist. Eventually, defendant Lt. De Los Santos, the Command Officer, was summoned to the plaintiff’s cell. De Los Santos ordered the guards to enter the cell, handcuff the plaintiff, remove him from the cell, and search the cell. In following this order, a struggle ensued; however the task was completed. The officers were treated in the infirmary and De Los Santos requested that plaintiff be examined by medical personnel. One of the guards prepared a disciplinary report charging plaintiff with several violations. The charged violations occurred prior to De Los Santos’ arrival at the cell. One of the guards and De Los Santos prepared an incident report. An incident report is used only for the purpose of informing superiors of incidents occurring in the prison and is not used at the disciplinary proceeding. The incident report described De Los Santos’ involvement in the incident upon his arrival at the scene and also included a description of what occurred before his arrival, including the fact that a guard was injured. A disciplinary hearing was held on April 8, 1980. Lt. De Los Santos was a member of the Adjustment Committee. Plaintiff objected to defendant’s presence on the committee. After a discussion on the objection, the committee concluded that it would not violate Administrative Regulation 804 if defendant remained on the Adjustment Committee. The committee found plaintiff guilty of the charges and issued sanctions of one more year in segregation, loss of one year good time and loss of audio-visual. Petitioner filed a grievance challenging the disciplinary proceeding. The Administrative Review Board, with Warden Fairman’s approval, reversed the charges and expunged the charge from the prisoner’s record on approximately July 31, 1980. Petitioner served no time in segregation as a result of the committee’s guilty finding because he was already placed in the segregation unit at the time of the offense. Plaintiff did not lose any good time. The magistrate found that plaintiff was denied his right to an impartial decision maker because the defendant De Los Santos investigated the charges, if he was not an actual witness, thus making it improper for him to serve on the Adjustment Committee pursuant to Administrative Rule 804. The magistrate assessed nominal damages of $1. In addition, because De Los Santos testified that he was aware of Administrative Regulation 804, the magistrate found the violation to be willful and assessed punitive damages of $100. Defendant appeals from the judgment entered against him. Ill Defendant-appellant challenges as error the district court holding that plaintiff was denied his right to an impartial decision maker when De Los Santos remained on the Adjustment Committee over plaintiff’s objection. Defendant contends that his presence on the committee violated neither Administrative Regulation 804 nor the due process requirement of an impartial decision making body. We disagree. Defendant was called to the scene of the altercation to help subdue plaintiff when the guards were experiencing, difficulty. Defendant supervised the situation thereafter, including ordering plaintiff to be handcuffed, sending plaintiff to the infirmary and writing up an incident report. Defendant claims that this incident report did not constitute an investigation; however, we note that the incident report written by defendant described the events which occurred prior to his arrival. This may not have been a full-fledged investigation in defendant’s mind, but clearly defendant was required to inquire as to the events which took place before he came to plaintiff’s cell. Defendant cites Meyers v. Alldredge, 492 F.2d 296 (3d Cir.1974) and United States ex rel. Silverman v. Commonwealth of Pennsylvania, 527 F.Supp. 742 (W.D.Pa.1981), aff’d 707 F.2d 1397 (3d Cir.1983), in support of a reversal in this case. These cases, however, support an affirmance. In Meyers, an associate warden’s substantial involvement in negotiating an end to an inmate strike led the court to conclude that his service on the disciplinary committee in which many of the strikers were disciplined violated the due process rights of those inmates. Id., 492 F.2d at 305-307. In Sil-verman, the court held that a ranking officer who signs misconduct reports while on duty even though he is not the reporting officer did not violate the prisoner’s due process clause rights by serving on the disciplinary committee hearing the misconduct report. Both courts held that the requirement of impartiality mandates the disqualification of an official who is directly involved in the incident or is otherwise substantially involved in the incident but does not require the disqualification of someone tangentially involved. Defendant De Los Santos was not merely signing a report as ranking officer with no connection to the incident. He viewed the tail end of the incident even though no charges arose directly from what he witnessed. He directed the operation upon his arrival at the scene, and he wrote up an incident report which described some events which occurred prior to his arrival. This is not merely a tangential involvement in the incident charged. This court has recently reaffirmed the importance of impartial decision makers serving on prison disciplinary committees. Redding v. Fairman, 717 F.2d 1105 (7th Cir.1983). We find that the district court made no error in determining that De Los Santos violated Administrative Regulation 804 and plaintiff’s due process right to an impartial tribunal by serving on the Adjustment Committee. Under no circumstances may any person who initiated the allegations which serve the basis for the Resident Disciplinary Report, or who investigated those allegations, or who witnessed the incident sit on the Adjustment Committee hearing the Resident Disciplinary Report. IV Defendant-appellant also challenges the magistrate’s award of punitive damages because there was no evidence of aggravating circumstances or malicious intent. The magistrate, in assessing punitive damages, found that defendant’s violation of plaintiff’s due process right was willful. Punitive damages are recoverable in a § 1983 suit in an appropriate case. See Carey v. Piphus, 435 U.S. 247, 257 n. 11, 98 S.Ct. 1042, 1049 n. 11, 55 L.Ed.2d 252 (1978). The standard for determining whether it is appropriate to award punitive damages has been described in various ways. In a recent Supreme Court decision it was decided that punitive damages may be assessed “when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, — U.S. —, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). This court has required a “showing of aggravating circumstances or malicious intent” to justify the award of punitive damages. Endicott v. Huddleston, 644 F.2d 1208 (7th Cir.1980); Konczak v. Tyrrell, 603 F.2d 13 (7th Cir. 1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980). Punitive damages may be awarded for the purpose of deterring or punishing constitutional violations. See Endicott v. Huddleston, 644 F.2d at 1217; see also Smith v. Wade, 103 S.Ct. at 1636. In addition, the Supreme Court recently rejected the argument that “the deterrent purposes of punitive damages are served only if the threshold for punitive damages is higher in every case than the underlying standard for liability in the first instance.” Id., 103 S.Ct. at 1638. The instant case was a bench trial, therefore the decision to award punitive damages was within the discretion of the trial court. Busche v. Burkee, 649 F.2d 509 (7th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). A trial court cannot be required to award punitive damages. A determination to award punitive damages, however, must have support in the record. In Busche, this court refused to overturn an award of punitive damages because the award was not clearly erroneous. We find that the magistrate’s award of punitive damages is not clearly erroneous. The magistrate found defendant De Los Santos’ action was a willful violation because he was aware of Regulation 804 and its requirements. The magistrate found that the defendant willfully and knowingly violated plaintiff’s right to an impartial tribunal. We note that this case involves a clear violation of the Administrative Regulation and of plaintiff’s constitutional rights. Defendant’s attempts to argue otherwise are disingenuous at best. In addition, the award has a readily apparent deterrent effect on this type of willful violation of a plaintiff’s due process right. We will not disturb the magistrate’s award of $100 in punitive damages. V For the foregoing reasons, we affirm the magistrate’s entry of judgment against the defendant-appellant and the award of both nominal and punitive damages. . This finding of fact was an amendment to the district court’s original findings added upon defendant’s request. . The relevant portion of Administrative Regulation 804 reads as follows: . Other courts have concluded that punitive damages are appropriate when the defendant has acted with “actual knowledge that he was violating a federally protected right or with reckless disregard at whether he was doing so,” Cochetti v. Desmond, 572 F.2d 102, 106 (3d Cir.1978); or when a defendant was “by action or knowledgeable inaction, involved in the wrongdoing.” Marr v. Rife, 503 F.2d 735, 745 (6th Cir.1974). Defendant in the instant case falls within these two categories of persons who may have punitive damages awarded against them. Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
sc_casesource	022	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. BEAL, SECRETARY, DEPARTMENT OF PUBLIC WELFARE OF PENNSYLVANIA, et al. v. DOE et al. No. 75-554. Argued January 11, 1977 Decided June 20, 1977 Powell, J., delivered the opinion of the Court, in which BüRger, C. J., and Stewart, White, Rehnquist, and Stevens, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall and Blackmun, JJ., joined, post, p. 448. Marshall, J., filed a dissenting opinion, post, p. 454. Blackmun, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 462. Norman J. Watkins, Deputy Attorney General of Pennsylvania, argued the cause for petitioners. With him on the briefs were Robert P. Kane, Attorney General, and /. Justin Blewitt, Jr., Deputy Attorney General. Judd F. Crosby argued the cause and filed a brief for respondents. William F. Hyland, Attorney General, Stephen Skillman, Assistant Attorney General, and Erminie L. Conley, Deputy Attorney General, filed a brief for the State of New Jersey as amicus curiae urging reversal. David S. Dolowitz, Melvin L. Wulf, and Judith M. Mears filed a brief for the American Public Health Assn, et al. as amici curiae urging affirmance. Patricia A. Butler and Michael A. Wolff filed a brief for Jane Doe as amicus curiae. Mr. Justice Powell delivered the opinion of the Court. The issue in this case is whether Title XIX of the Social Security Act, as added, 79 Stat. 343, and amended, 42 U. S. C. § 1396 et seq. (1970 ed. and Supp. V), requires States that participate in the Medical Assistance (Medicaid) program to fund the cost of nontherapeutic abortions. I Title XIX establishes the Medicaid program under which participating States may provide federally funded medical assistance to needy persons. The statute requires participating States to provide qualified individuals with financial assistance in five general categories of medical treatment. 42 U. S. C. §§ 1396a (a) (13) (B) (1970 ed., Supp. V), 1396d (a) (l)-(5) (1970 ed. and Supp. V). Although Title XIX does not require States to provide funding for all medical treatment falling within the five general categories, it does require that state Medicaid plans establish “reasonable standards ... for determining . . . the extent of medical assistance under the plan which . . . are consistent with the objectives of [Title XIX] ” 42 U. S. C. § 1396a (a) (17) (1970 ed., Supp. V). Respondents, who are eligible for medical assistance under Pennsylvania’s federally approved Medicaid plan, were denied financial assistance for desired abortions pursuant to Pennsylvania regulations limiting such assistance to those abortions that are certified by physicians as medically necessary. When respondents’ applications for Medicaid assistance were denied because of their failure to furnish the required certificates, they filed this action in the United States District Court for the Western District of Pennsylvania seeking declaratory and in-junctive relief. Their complaint alleged that Pennsylvania’s requirement of a certificate of medical necessity contravened relevant provisions of Title XIX and denied them equal protection of the laws in violation of the Fourteenth Amendment. A three-judge District Court was convened pursuant to 28 U. S. C. § 2281. After resolving the statutory issue against respondents, the District Court held that Pennsylvania’s medical-necessity restriction denied respondents equal protection of the laws. Doe v. Wohlgemuth, 376 F. Supp. 173 (1974). Accordingly, the court granted a declaratory judgment that the Pennsylvania requirement was unconstitutional as applied during the first trimester. The United States Court of Appeals for the Third Circuit, sitting en banc, reversed on the statutory issue, holding that Title XIX prohibits participating States from requiring a physician’s certificate of medical necessity as a condition for funding during both the first and second trimesters of pregnancy. 523 F. 2d 611 (1975). The Court of Appeals therefore did not reach the constitutional issue. We granted certiorari to resolve a conflict among the federal courts as to the requirements of Title XIX. 428 U. S. 909 (1976). II The only question before us is one of statutory construction : whether Title XIX requires Pennsylvania to fund under its Medicaid program the cost of all abortions that are permissible under state law. “The starting point in every case involving construction of a statute is the language itself.” Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 756 (1975) (Powell, J., concurring). Title XIX makes no reference to abortions, or, for that matter, to any other particular medical procedure. Instead, the statute is cast in terms that require participating States to provide financial assistance with respect to five broad categories of medical treatment. See n. 2, supra. But nothing in the statute suggests that participating States are required to fund every medical procedure that falls within the delineated categories of medical care. Indeed, the statute expressly provides: “A State plan for medical assistance must . . . include reasonable standards ... for determining eligibility for and the extent of medical assistance under the plan which . . . are consistent with the objectives of this [Title] . . . 42 U. S. C. § 1396a (a) (17) (1970 ed., Supp. V). This language confers broad discretion on the States to adopt standards for determining the extent of medical assistance, requiring only that such standards be “reasonable” and “consistent with the objectives” of the Act. Pennsylvania’s regulation comports fully with Title XIX’s broadly stated primary objective to enable each State, as far as practicable, to furnish medical assistance to individuals whose income and resources are insufficient to meet the costs of necessary medical services. See 42 U. S. C. §§ 1396, 1396a (10) (C) (1970 ed., Supp. V). Although serious statutory questions might be presented if a state Medicaid plan excluded necessary medical treatment from its coverage, it is hardly inconsistent with the objectives of the Act for a State to refuse to fund unnecessary — though perhaps desirable— medical services. The thrust of respondents’ argument is that the exclusion of nontherapeutic abortions from Medicaid coverage is unreasonable on both economic and health grounds. The economic argument is grounded on the view that abortion is generally a less expensive medical procedure than childbirth. Since a pregnant woman normally will either have an abortion or carry her child full term, a State that elects not to fund nontherapeutic abortions will eventually be confronted with the greater expenses associated with childbirth. The corresponding health argument is based on the view that an early abortion poses less of a risk to the woman’s health than childbirth. Consequently, respondents argue, the economic and health considerations that ordinarily support the reasonableness of state limitations on financing of unnecessary medical services are not applicable to pregnancy. Accepting respondents’ assumptions as accurate, we do not agree that the exclusion of nontherapeutic abortions from Medicaid coverage is unreasonable under Title XIX. As we acknowledged in Roe v. Wade, 410 U. S. 113 (1973), the State has a valid and important interest in encouraging childbirth. We expressly recognized in Roe the “important and legitimate interest [of the State] ... in protecting the potentiality of human life.” Id., at 162. That interest alone does not, at least until approximately the third trimester, become sufficiently compelling to justify unduly burdensome state interference with the woman’s constitutionally protected privacy interest. But it is a significant state interest existing throughout the course of the woman’s pregnancy. Respondents point to nothing in either the language or the legislative history of Title XIX that suggests that it is unreasonable for a participating State to further this unquestionably strong and legitimate interest in encouraging normal childbirth. Absent such a showing, we will not presume that Congress intended to condition a State’s participation in the Medicaid program on its willingness to undercut this important interest by subsidizing the costs of nontherapeutic abortions. Our interpretation of the statute is reinforced by two other relevant considerations. First, when Congress passed Title XIX in 1965, nontherapeutic abortions were unlawful in most States. In view of the then-prevailing state law, the contention that Congress intended to require — rather than permit — participating States to fund nontherapeutic abortions requires far more convincing proof than respondents have offered. Second, the Department of Health, Education, and Welfare, the agency charged with the administration of this complicated statute, takes the position that Title XIX allows — but does not mandate — funding for such abortions. “[W]e must be mindful that The construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong New York Dept. of Soc. Services v. Dublino, 413 U. S. 405, 421 (1973), quoting Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 381 (1969). Here, such indications are completely absent. We therefore hold that Pennsylvania’s refusal to extend Medicaid coverage to nontherapeutic abortions is not inconsistent with Title XIX. We make clear, however, that the federal statute leaves a State free to provide such coverage if it so desires. HH t-H HH There is one feature of the Pennsylvania Medicaid program, not addressed by the Court of Appeals, that may conflict with Title XIX. Under the Pennsylvania program, financial assistance is not provided for medically necessary abortions unless two physicians in addition to the attending physician have examined the patient and have concurred in writing that the abortion is medically necessary. See n. 3, supra. On this record, we are unable to determine the precise role played by these two additional physicians, and consequently we are unable to ascertain whether this requirement interferes with the attending physician’s medical judgment in a manner not contemplated by the Congress. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for consideration of this requirement. It is so ordered. Title XIX establishes two groups of needy persons: (1) the “categorically” needy, which includes needy persons with dependent children and the aged, blind, and disabled, 42 U. S. C. § 1396a (a) (10) (A) (1970 ed., Supp. V); and (2) the “medically” needy, which includes other needy persons, § 1396a (a) (10) (C) (1970 ed., Supp. V). Participating States are not required to extend Medicaid coverage to the “medically” needy, but Pennsylvania has chosen to do so. The general categories of medical treatment enumerated are: “(1) inpatient hospital services (other than services in an institution for tuberculosis or mental diseases) ; “(2) outpatient hospital services; “(3) other laboratory and X-ray services; “(4) (A) skilled nursing facility services (other than services in an institution for tuberculosis or mental diseases) for individuals 21 years of age or older (B) effective July 1, 1969, such early and periodic screening and diagnosis of individuals who are eligible under the plan and are under the age of 21 to ascertain their physical or mental defects, and such health care, treatment, and other measures to correct or ameliorate defects and chronic conditions discovered thereby, as may be provided in regulations of the Secretary; and (C) family planning services and supplies furnished (directly or under arrangements with others) to individuals of childbearing age (including minors who can be considered to be sexually active) who are eligible under the State plan and who desire such services and supplies; “(5) physicians’ services furnished by a physician (as defined in section 1395x (r) (1) of this title), whether furnished in the office, the patient’s home, a hospital, or a skilled nursing facility, or elsewhere.” 42 U. S. C. § 1396d (a) (1970 ed. and Supp. V). Participating States that elect to extend coverage to the “medically” needy, see n. 1, supra, have the option of providing somewhat different categories of medical services to those individuals. 42 U. S. C. § 1396a (a) (13) (C) (ii) (1970 ed., Supp. V). An abortion is deemed medically necessary under the Pennsylvania Medicaid program if: “(1) There is documented medical evidence that continuance of the pregnancy may threaten the health of the mother; “ (2) There is docmnented medical evidence that an infant may be born with incapacitating physical deformity or mental deficiency; or “(3) There is documented medical evidence that continuance of a pregnancy resulting from legally established statutory or forcible rape or incest, may constitute a threat to the mental or physical health of a patient; and “(4) Two other physicians chosen because of their recognized professional competency have examined the patient and have concurred in writing; and “ (5) The procedure is performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals.” Brief for Petitioners 4, citing 3 Pennsylvania Bulletin 2207, 2209 (Sept. 29, 1973). In Doe v. Bolton, 410 U. S. 179, 192 (1973), this Court indicated that “[wjhether ‘an abortion is necessary’ is a professional judgment that . . . may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment.” We were informed during oral argument that the Pennsylvania definition of medical necessity is broad enough to encompass the factors specified in Bolton. Tr. of Oral Arg. 7-8. The dissent of MR. Justice Brennan emphasizes the “key” role of the physician within the Medicaid program, noting that “[t]he Medicaid statutes leave the decision as to the choice among pregnancy procedures exclusively with the doctor and his patient . . . .” Post, at 449-450. This is precisely what Pennsylvania has done. Its regulations provide for the funding of abortions upon certification of medical necessity, a determination that the physician is authorized to make on the basis of all relevant factors. The District Court was of the view that the regulation creates “an unlawful distinction between indigent women who choose to carry their pregnancies to birth, and indigent women who choose to terminate their pregnancies by abortion.” 376 F. Supp., at 191. In Maher v. Roe, post, p. 464, we today conclude that the Equal Protection Clause of the Fourteenth Amendment does not prevent a State from making the policy choice to fund costs incident to childbirth without providing similar funding for costs incident to nontherapeutic abortions. Petitioners appealed the District Court’s declaratory judgment to the Court of Appeals. Respondents cross-appealed from the denial of declaratory relief with respect to the second and third trimesters of pregnancy. Since respondents did not seek review of the District Court’s denial of injunctive relief, the Court of Appeals had jurisdiction over the appeals. Gerstein v. Coe, 417 U. S. 279 (1974). As a result of the decision of the Court of Appeals, petitioners issued a Temporary Revised Policy on September 25, 1975. This interim policy allows financial assistance for abortions without regard to medical necessity. Brief for Petitioners 3 n. 3. Two other Courts of Appeals have concluded that the federal statute does not require participating States to fund the cost of nontherapeutic abortions. Roe v. Norton, 522 F. 2d 928 (CA2 1975); Roe v. Ferguson, 515 F. 2d 279 (CA6 1975). See also, e. g., Doe v. Westby, 402 F. Supp. 140 (WDSD 1975) (three-judge court) (Title XIX requires funding of nontherapeutic abortions), appeal docketed, No. 75-813; Doe v. Stewart, Civ. No. 74-3197 (ED La., Jan. 26, 1976) (three-judge court) (Title XIX does not require funding of nontherapeutic abortions), appeal docketed, No. 75-6721. Respondents concede that Title XIX “indicates that the states will have wide discretion in determining the extent of services to be provided.” Brief for Respondents 9. Respondents also contend that Pennsylvania’s restriction on coverage is unreasonable within the meaning of Title XIX in that it interferes with the physician’s professional judgment concerning appropriate treatment. With one possible exception addressed in Part III, infra, the Pennsylvania program does not interfere with the physician’s medical judgment concerning his patient’s needs. If a physician certifies that an abortion is medically necessary, see n. 3, supra, the medical expenses are covered under the Pennsylvania Medicaid program. If, however, the physician concludes that the abortion is not medically necessary, but indicates a willingness to perform the abortion at the patient’s request, the expenses are not covered. The decision whether to fund the costs of the abortion thus depends solely on the physician’s determination of medical necessity. Respondents point to nothing in the Pennsylvania Medicaid plan that indicates state interference with the physician’s initial determination. Respondents rely heavily on the fact that in amending Title XIX in 1972 to include “family planning services” within the five broad categories of required medical treatment, see n. 2, supra, Congress did not expressly exclude abortions as a covered service. Since Congress had expressly excluded abortions as a method of family planning services in prior legislation, see 42 U. S. C. § 300a-6, respondents conclude that the failure of Congress to exclude coverage of abortions in the 1972 amendments to Title XIX “strongly indicates” an intention to require coverage of abortions. This fine of reasoning is flawed. The failure to exclude abortions from coverage indicates only that Congress intended to allow such coverage, not that such coverage is mandatory for nontherapeutic abortions. The Court of Appeals concluded that Pennsylvania’s regulations also violated the equality provisions of Title XIX requiring that an individual’s medical assistance “shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual.” 42 U. S. C. § 1396a (a) (10) (B) (1970 ed., Supp. V). See § 1396a (a) (10) (C) (1970 ed., Supp. V). According to the Court of Appeals, the Pennsylvania regulation “force[s] pregnant women to use the least voluntary method of treatment, while not imposing a similar requirement on other persons who qualify for aid.” 523 F. 2d 611, 619 (1975). We find the Pennsylvania regulation to be entirely consistent with the equality provisions of Title XIX. Pennsylvania has simply decided that there is reasonable justification for excluding from Medicaid coverage a particular medically unnecessary procedure — nontherapeutic abortions. At the time of our 1973 decision in Roe, some eight years after the enactment of Title XIX, at least 30 States had statutory prohibitions against nontherapeutic abortions. 410 U. S. 113, 118 n. 2 (1973). Federal funds are made available only to those States whose Medicaid plans have been approved by the Secretary of HEW. 42 U. S. C. § 1396 (1970 ed., Supp. V). Congress by statute has expressly prohibited the use during fiscal year 1977 of federal Medicaid funds for abortions except when the life of the mother would be endangered if the fetus were carried to term. Departments of Labor and Health, Education, and Welfare Appropriation Act, 1977, § 209, Pub. L. 94-439, 90 Stat. 1434. Our dissenting Brothers, in this case and in Maher v. Roe, post, p. 482, express in vivid terms their anguish over the perceived impact of today’s decisions on indigent pregnant women who prefer abortion to carrying the fetus to childbirth. We think our Brothers misconceive the issues before us, as well as the role of the judiciary. In these cases we have held merely that (i) the provisions of the Social Security Act do not require a State, as a condition of participation, to include the funding of elective abortions in its Medicaid program; and (ii) the Equal Protection Clause does not require a State that elects to fund expenses incident to childbirth also to provide funding for elective abortions. But we leave entirely free both the Federal Government and the States, through the normal processes of democracy, to provide the desired funding. The issues present policy decisions of the widest concern. They should be resolved by the representatives of the people, not by this Court. Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:
songer_genresp1	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 first listed respondent. CHRYSLER CORPORATION, Appellant in No. 76-1970 v. James A. SCHLESINGER, Secretary United States Department of Defense, Lt. Gen. Wallace Robinson, Director, Defense Supply Agency, Philip J. Davis, Director, Office of Federal Contract Compliance, and John Dunlop, Secretary United States Department of Labor, Appellants in No. 76-2238. Nos. 76-1970 and 76-2238. United States Court of Appeals, Third Circuit. Argued June 13, 1977. Decided Sept. 26, 1977. As Amended Oct. 18, 1977. Burt A. Braverman, Borovsky, Smetana, Ehrlich & Kronenberg, Alan Raywid, Washington, D. C., A. William Rolf, Detroit, Mich., for Chrysler Corp.; Michael Goldman, David Anderson, Potter, Anderson & Corroon, Wilmington, Del., of counsel. Irving Jaffe, Acting Asst. Atty. Gen., Washington, D. C., W. Laird Stabler, Jr., U. S. Atty., Wilmington, Del., Paul Blanken-stein, Morton Hollander, Attys., Appellate Section, Civ. Div., Dept, of Justice, Washington, D. C., for federal appellants. Victor H. Kramer, Charles E. Hill, Washington, D. C., for amicus. Before VAN DUSEN, ADAMS and GIBBONS, Circuit Judges. OPINION OF THE COURT GIBBONS, Circuit Judge. Plaintiff, Chrysler Corporation (Chrysler), appeals and defendants, federal government officials, cross-appeal from a final judgment of the district court in an action for injunctive and declaratory relief aimed at preventing public disclosure of certain documents furnished by Chrysler to federal governmental agencies. The action was originally prompted by the decision of the defendants to honor a request by third parties for public disclosure of the contested documents under the Freedom of Information Act (FOIA). The district court, after a trial de novo, permanently enjoined public disclosure of certain portions of the contested documents, but denied the full range of injunctive relief requested by Chrysler, and also denied its request for a declaratory judgment that any future disclosure of similar documents would violate federal law. Chrysler appeals from the denial of the full declaratory and injunctive relief it requested. The federal government defendants in their cross-appeal originally contended (1) that Chrysler has no right to judicial review of an agency decision to disclose information requested by third parties under the FOIA; (2) that even if judicial review is available, the scope of review is limited to that defined in the Administrative Procedure Act and does not include a trial de novo; and (3) that even if a trial de novo was proper, the district court erred in enjoining disclosure of portions of the contested documents. After the government’s initial brief was filed in this court, the Solicitor General, in a petition for a writ of certiorari to review the decision of the Fourth Circuit in Westinghouse Elec. Corp. v. Schlesinger, 542 F.2d 1190 (4th Cir. 1976), cert. denied sub nom., Brown v. Westinghouse Elec. Corp., 431 U.S. 924, 97 S.Ct. 2199, 53 L.Ed.2d 239 (1977), took the position that the exceptions to judicial review listed in 5 U.S.C. § 701 were inapplicable to so-called reverse FOIA actions and that Pub.L.No. 94-574, 90 Stat. 2721, eliminated federal sovereign immunity as a bar to such review. We have been advised by the Justice Department that it is now the government’s position that judicial review is available to parties objecting to disclosure of information under the FOIA, but that the Administrative Procedure Act controls our scope of review. Chrysler contended in the district court, and continues to urge here, that any disclosure of the contested documents was prohibited by several federal statutes to which specific reference will be made hereafter and by the due process clause of the fifth amendment. It maintained in the district court, and urges here, that a trial de novo was proper. Because we are in substantial agreement with the government’s present position, we vacate the judgment of the district court and remand for further proceedings. I THE REGULATORY FRAMEWORK Chrysler is a government contractor. As a condition of its doing business with the government it is required by an Executive Order, and regulations promulgated thereunder by the Secretary of Labor, to employ and treat all employees without regard to race, color, religion, sex, or national origin and to take affirmative action to eliminate discrimination in employment. In order to monitor compliance with these requirements, federal regulations require that every government contractor or subcontractor with fifty or more employees and a contract valued at $50,000 or more prepare and file an annual Employer Information Report, known as an EEO-1 report. The EEO-1 report contains data on the number of women and minority group members employed. Contractors must also prepare and make available for inspection by appropriate federal agencies an Affirmative Action Program (AAP), providing detailed information on their past and projected employment of women and minority group members. The AAP must contain a “utilization analysis” which describes the occupational levels of minority personnel employed by the contractor and “goals and time tables” by which opportunities for minority group members can be improved. The failure of a contractor to comply with the Executive Order and regulations can result in the cancellation, termination, or suspension of existing contracts and debarment from future awards. The Secretary of Labor has delegated administrative responsibility for the enforcement of the Executive Order to the Director of the Office of Federal Contract Compliance' (OFCC). The Director of OFCC has designated various federal agencies as “compliance agencies.” These compliance agencies have primary responsibility for assuring adherence to the Executive Order by contractors within certain geographic areas or industrial classifications. In Chrysler’s case the Defense Supply Agency of the Department of Defense (DSA) is the designated compliance agency. As part of its monitoring duties DSA has conducted “compliance reviews” of Chrysler’s employment practices. These reviews consist of an examination of Chrysler’s EEO-1 and AAP documents and on site inspections of its facilities. Compliance reviews result in a compliance review report (CRR), setting forth information supplied by the contractor, an analysis of his performance, and recommendations for sanctions or corrective measures. DSA is also responsible for investigation and resolution of complaints of violations of the Executive Order and must file a “complaint investigation report” (CIR) with OFCC within sixty days of the receipt of a complaint. Regulations promulgated by the Secretary of Labor contain rules providing for access by the public to information in the records of OFCC or its various compliance agencies. These regulations implement 5 U.S.C. § 552, the Freedom of Information Act and supplement the policy and regulations of the Department of Labor, 29 C.F.R. Part 70. It is the policy of the OFCC to disclose information to the public and to cooperate with other public agencies as well as private parties seeking to eliminate discrimination in employment.. 41 C.F.R. § 60-40.1. Consistent with the general policy of disclosure to aid in eliminating employment discrimination, the regulations provide: Upon the request of any person for identifiable records obtained or generated pursuant to Executive Order 11246 (as amended) such records shall be made available for inspection and copying, notwithstanding the applicability of the exemption from mandatory disclosure set forth in 5 U.S.C. 552 subsection (b), if it is determined that the requested inspection or copying furthers the public interest and does not impede any of the functions of the OFCC or the Compliance Agencies except in the case of records disclosure of which is prohibited by law. 41 C.F.R. 60-40.2(a). Thus the regulations contain a blanket waiver of any authority the government might have to resist disclosure of any information which falls into one of the nine categories of information which are exempt from mandatory disclosure under the FOIA. OFCC’s regulations also provide that.. all contract compliance documents within the custody of the OFCC and the Compliance Agencies shall be disclosed upon request unless specifically prohibited by law or as limited elsewhere herein.” 41 C.F.R. § 60-40.2(b). This blanket and mandatory disclosure requirement with respect to compliance documents is qualified in 41 C.F.R. § 60-40.3(a), which lists six categories of documents or parts thereof which “are exempt from mandatory disclosure by the OFCC and the compliance agencies, and should be withheld if it is determined that the requested information does not further the public interest and might impede the discharge of any of the functions of the OFCC or the Compliance Agencies.” Thus, even information within these six categories may be disclosed if OFCC determines that such disclosure is in the public interest and does not impede the discharge of the functions of OFCC or its compliance agencies. Finally, 41 C.F.R. §.60-40.4 provides that EEO-1 reports shall be disclosed, even though the same forms are furnished to the Equal Employment Opportunity Commission (EEOC) and EEOC is statutorily prohibited from disclosing EEO-1 reports in its possession. The contested documents in this case include Chrysler’s EEO-1 reports and information which falls under three of the six exempt categories defined in 41 C.F.R. § 60-40.3(a), namely: (1) those parts of Chrysler’s AAP’s which contain confidential commercial information indicating that a contractor plans major changes or shifts in his personnel requirements not yet publicly disclosed, (2) those parts of Chrysler’s AAP’s which set forth staffing patterns and pay scales the release of which would injure the business or financial position of the contractor, and (3) compliance investigation files and related documents to the extent that such information constitutes trade secrets and confidential commercial or financial information. II THE AGENCY PROCEEDINGS On May 14, 1975, DSA notified Chrysler that third parties had requested under the FOIA the disclosure of the 1974 AAP of Chrysler’s Newark, Delaware, assembly plant and the October 1974 CIR for that facility. Chrysler, on May 23, 1975, objected to the requested disclosure of the AAP, relying on the FOIA exemptions and OFCC disclosure regulations. It also requested a copy of the October 1974 CIR, which it had never seen, so that it could determine which parts of it should be treated as confidential. On May 30, 1975, DSA notified Chrysler that it had determined that the Newark AAP and CIR were subject to disclosure under the FOIA and OFCC disclosure rules, that Chrysler would not be furnished with a copy of the CIR prior to disclosure, and that both documents would be disclosed on June 4, 1975. On July 1, 1975, DSA notified Chrysler that it had received a request under the FOIA for disclosure of the AAP and CRR for Chrysler’s Hamtramck, Michigan, assembly plant. The July 1 notice indicated that under the recent amendments to the FOIA, Pub.L. No. 93-502, 5 U.S.C. § 552(a)(6)(A)(i), DSA was required to make a substantive decision on release of these documents within ten working days of receipt of the request and for that reason could not await the results of an appeal to OFCC under 41 C.F.R. § W-GOA^d) The DSA letter suggested that any comments Chrysler wished 'to make should be made promptly. Chrysler, by letters dated July 3 and July 11, 1975, objected to the disclosure of the documents relating to its Hamtramck plant, contending that both the AAP and CRR were exempt from disclosure under the FOIA and also that disclosure of certain information contained in the AAP, including EEO-1 data, was prohibited by 18 U.S.C. § 1905, by § 709(e) of the Civil Rights Act of 1964,42 U.S.C. § 2000e-8(e), and by 44 U.S.C. § 3508. Chrysler’s letter also requested a copy of the Hamtramck CRR, which it had never seen. On July 18, 1975, DSA replied in part: Full consideration has been given by this agency to your comments and objections. Nevertheless, a determination has been made to release both the Affirmative Action Plan and the Compliance Review Report to the requester, subject to the exceptions noted in the attached list for the reasons given therein. Your assertions of competitive harm were unsupported by any showing of the likelihood of such harm, and only in one context would we agree to the existence of such a likelihood without such a showing. This is reflected in the first ten exceptions on the attached list. This decision may be appealed to the Office of Federal Contract Compliance, Washington, D. C., 20210, within 10 days, per 41 C.F.R. 60-60.4. However, due to the time constraints imposed by the recent amendments to the Act (Public Law 93-502), we cannot wait for the results of such an appeal. Accordingly, the subject documents, with deletions as noted in the attached list, will be released 5 ■working days after your receipt of this letter. (JA-100). The July 18 letter also made clear DSA’s position that neither 18 U.S.C. § 1905,42 U.S.C. § 2000e-8(e), nor 44 U.S.C. § 3508 applied to any part of the AAP, report, including the EEO-1 data. Ill THE DISTRICT COURT PROCEEDINGS Faced with the DSA determination that the FOIA, as amended, prohibited the agency from withholding disclosure while Chrysler exhausted an administrative appeal to OFCC, Chrysler commenced this action in the district court on June 4, 1975. The initial complaint, which was filed before Chrysler learned of the request for disclosure of the Hamtramck documents, only sought injunctive relief against disclosure of the documents relating to the Newark, Delaware plant and a declaratory judgment that public disclosure of any similar documents was prohibited by law. The district court issued a temporary restraining order which prohibited disclosure of the Newark plant documents and which required the defendants to give Chrysler five days notice prior to the release of any similar documents relating to any of its other facilities. When DSA notified Chrysler of its intention to release the Hamtramck plant documents, it amended the complaint to refer to those documents and obtained from the district court temporary relief covering them as well. Chrysler’s amended complaint contained three counts. First, Chrysler charged that disclosure of any portion of its AAP’s, EEO-l’s, CIR’s, or CRR’s relating to any of its facilities would be unlawful under exemptions (b)(3)(4)(5) and (7) of the FOIA, 5 U.S.C. § 552(b)(3)(4)(5) and (7), under 42 U.S.C. § 2000e-8(e), under 18 U.S.C. § 1905, and under 44 U.S.C. § 3508. Second, it alleged that such disclosure would be an abuse of agency discretion since it would be contrary to 41 C.F.R. § 60-40.3(a) and 29 C.F.R. §§ 70.21, 70.-22, 70.24, and 70.31. Third, it contended that the POIA and OFCC disclosure rules as applied to Chrysler violate due process in that they afford no meaningful right to be heard initially or on appeal before disclosure of Chrysler’s confidential information. By a stipulation and consent order the pendente lite restraints were continued until final hearing. In its pre-trial papers the government defendants objected to the court’s jurisdiction and to the holding of an evidentiary hearing. The court reserved decision on these objections until a decision on the merits. Trial on the merits was held on August 25 and 26, 1975, and thereafter the parties filed a detailed “Stipulation of Facts and Issues.” The district court’s opinion correctly holds that there is subject matter jurisdiction under 28 U.S.C. § 1331(a). On the merits the court found that part of the information the agency proposed to release, described generically as the “manning tables,” was confidential commercial information, the release of which could cause Chrysler substantial competitive harm. On the basis of this finding the court con-eluded that the manning tables constituted information falling within exemption (b)(4) of the FOIA and was therefore exempt from its mandatory disclosure provisions. The court then reasoned that since the manning tables constituted exempt information under the FOIA, whether DSA possessed the power to disclose these documents was to be determined by reference to other federal disclosure statutes, apart from the FOIA. Thus the court rejected Chrysler’s argument that the FOIA creates a so-called reverse FOIA cause of action based on the theory that Congress, by exempting certain information from mandatory disclosure, intended to prohibit absolutely all agency disclosure of such exempt information under any circumstances. Instead, the court held that 18 U.S.C. § 1905, a criminal statute, made it a crime for a government employee to disclose the manning tables. Observing that the Secretary of Labor, on the authority of 5 U.S.C. § 301, a general statute providing for the use and custody of government records, promulgated 29 C.F.R. § 70.21(a), which forbids disclosure of confidential information the release of which would violate 18 U.S.C. § 1905, the court concluded that DSA was acting in violation of its own regulations and contrary to law. Thus, it construed what it held to be DSA’s governing regulation as consistent with 18 U.S.C. § 1905. It issued the injunction appealed from on the authority of 5 U.S.C. § 706(2)(A) to prevent agency action “not in accordance with law.” The court also held that 42 U.S.C. § 2000e-8(e) was inapplicable and rejected Chrysler’s due process contentions. IV DISCUSSION This case is one of a burgeoning number growing out of the conflict between the demands of federal regulatory agencies, as a necessary by-product of their regulatory activities, for the submission by private businesses of detailed financial, commercial and employee information, which would not voluntarily be disclosed to competitors, and the public access to most information in federal agency files which is mandated by the FOIA. It is, however, the first occasion which requires this Court to consider a reverse FOIA case, in which a corporate plaintiff (the submitter) seeks to enjoin an agency from disclosing submitter-generated business information The case presents several important issues about agency management of such information, about agency discretion to disclose information in the public interest, about submitter rights prior to disclosure, and about the availability of remedies for the prevention of disclosure. The FOIA requires agencies to disclose upon request any information not falling within one of nine specifically exempted categories. The arguments of Chrysler and other corporate submitters seeking to prevent disclosure break down into three broad categories. First, Chrysler and others have urged that the FOIA itself both prohibits agency disclosure of information falling within any of the nine exemptions and affords an implied cause of action for injunctive or declaratory relief to prevent such disclosure. Second, they have claimed that even if the FOIA does not prohibit agency disclosure of exempt FOIA information, other statutes, such as 18 U.S.C. § 1905 and 42 U.S.C. § 2000e-8(e) do so and afford an implied cause of action. Third, they contend that disclosure of submitter-generated business information that is exempt under the FOIA or protected by some other federal statute or regulation is an abuse of agency discretion subject to judicial review under the Administrative Procedure Act at the behest of a submitter adversely affected by such agency action. The first two categories would afford relief in the form of a trial de novo, while in the third judicial review would be limited to that available under 5 U.S.C. § 706. The posture of this appeal and cross-appeal requires that we address each theory on which a reverse FOIA action could be founded. A. The Freedom of Information Act The FOIA expressly creates a cause of action in favor of requesters of information to enjoin federal agencies from withholding information. It does not by its terms provide a cause of action for submitters of information to prevent disclosure. But while there is no express provision for an action by submitters, the FOIA’s nine categories of exempt information reveal a Congressional concern that disclosure of certain information might injure interests in privacy or confidentiality which may be as important as the public’s right to general access to agency information. The fourth FOIA exemption, for example, covers “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” There is ample Congressional history suggesting that Congress sought to afford some protection of submitters’ interest in the confidentiality of such information. Moreover we recognize that disclosure of submitter information is qualitatively different from disclosure of data directly relating to government operations and that the interest in privacy appears stronger with respect to the former than the latter. But while the Congressional concern over confidentiality of submitter information is clear, an intention to make mandatory the non-disclosure of exempt information is less so, and the evidence of an intent to create a submitter cause of action is practically non-existent. Among the circuits which have considered the issue, the District of Columbia and the Fifth Circuits have held that the FOIA exemptions are permissive and do not mandate agency withholding of exempt information. The Fourth Circuit has held that the exemptions mandate non-disclosure. The Ninth Circuit, while first holding that the exemptions are mandatory, on rehearing withdrew that part of its opinion as premature. The closest the Supreme Court has come to addressing the issue is the statement in E. P. A. v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973), that the FOIA exemptions represent “the congressional determination of the types of information that the Executive Branch must have the option to keep confidential, if it so chooses.” In our view, none of the opinions referred to contains a complete analysis of the myriad problems presented in reverse FOIA cases. We conclude that Congress in the FOIA intended neither that the exemptions make non-disclosure mandatory, nor that they provide the predicate for an implied cause of action. The two questions are interdependent, since it would obviously be difficult to imply a cause of action under the FOIA to bar government officials from releasing information the disclosure of which Congress intended to leave to agency discretion or other federal disclosure statutes. Both the plain language of § 552(b) and the Congressional reports and debates suggest that no more was intended than a discretionary exception to the general mandatory duty of disclosure. Nor can we ignore the contrast between the FOIA’s express grant of a cause of action for requesters of information and its silence respecting submitter relief. Moreover, we note that when Congress in the Privacy Act of 1974 decided to create a civil cause of action to enjoin agency disclosure of FOIA exempt information, it did so explicitly. See 5 U.S.C. § 552a(g)(l) (Supp. V 1975). But only private persons, not business entities, were afforded this protection. Finally, we think that judicial reconstruction of the statute to imply from the exemptions either a mandatory duty of non-disclosure or a cause of action to prevent disclosure would be inconsistent with the basic purpose of the FOIA, which was not to afford confidentiality, but to overcome restrictive agency interpretations of the original public information section of the Administrative Procedure Act. The general philosophy reflected in the FOIA is that of full agency disclosure to provide the public with speedy access to relevant information. Recognizing an implied cause of action to prevent agency disclosure of exempt FOIA information would, we think, be inconsistent with that general philosophy, since it would place in the hands of interested submitters of information, rather than those of presumably disinterested governmental officials, the authority to take steps which might impede the dissemination of information of public importance. Thus we hold that the FOIA’s language, legislative history, and philosophy of full disclosure bar a construction of the Act which mandates agency withholding of exempt information or recognizes an implied cause of action to prevent the disclosure of such information. B. Other Non-Disclosure Statutes Although we conclude that the FOIA does not limit the discretionary power of federal agencies to disclose exempt FOIA information, we recognize that the exercise of this discretionary authority may be prohibited, or substantially curtailed, by other federal non-disclosure statutes. See FAA Administrator v. Robertson, supra, 422 U.S. at 264-66, 95 S.Ct. 2140. Chrysler contends that, apart from the FOIA, at least three non-disclosure statutes prohibit DSA from releasing the contested documents. Our consideration of that contention requires, with respect to each statute, the same dual inquiry we made respecting the FOIA: (1) does the statute forbid disclosure of the documents in issue; and (2) if so, can a private cause of action be implied from it. 1. 18 U.S.C. § 1905. The statute on which Chrysler and most other reverse FOIA plaintiffs place principal reliance is 18 U.S.C. § 1905. On its face, this broadly worded criminal statute encompasses virtually every category of business information likely to be in the files of any federal agency. However, in Westinghouse Elec. Corp. v. Nuclear Regulatory Commission, supra, we noted that § 1905’s broad non-disclosure prohibitions apply only to disclosures “not authorized by law” and held that information disclosed pursuant to a validly enacted agency regulation is authorized by law. Chrysler urges that in Westinghouse we erred, that an agency regulation does not have the force of law for purposes of § 1905, and that only specific Congressional statutes can authorize the release of information covered by § 1905. Moreover, it urges that even assuming the correctness of Westinghouse, disclosures pursuant to the OFCC disclosure regulations are not authorized by law for purposes of § 1905, because these regulations were adopted under the authority of 5 U.S.C. § 301 and because Congress intended that § 301 not be used to limit the scope of § 1905. While our discussion of the scope of the “not authorized by law” qualification to § 1905 in Westinghouse was not extended, we are confident that the holding is correct. In Westinghouse we found authority for the promulgation of the Nuclear Regulatory Commission’s disclosure regulations in that agency’s Congressionally enacted enabling act. That holding was consistent with those of the Supreme Court in cases involving the disclosure of information by other federal agencies. Though OFCC has no statutory enabling act, it is authorized to promulgate disclosure regulations under the so-called housekeeping statute, 5 U.S.C. § 301, which provides in part: The head of an executive department or military department may prescribe regulations for the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public. Section 301 can be traced to the Act of July 27, 1789, Ch. 4, § 4, 1 Stat. 28, dealing with records of the State Department, and the Act of August 7,1789, Ch. 7, § 4,1 Stat. 49, dealing with records of the War Department. Various housekeeping statutes were collected and codified in 1874, and, as codified, granted authority to prescribe disclosure regulations. The present version, and in particular the last sentence, was enacted in 1958. The legislative history makes clear that the addition of the last sentence was aimed at stopping agencies from relying on the housekeeping statute as authority to deny the requests of citizens for information. In Non-Resident Taxpayers Ass’n v. Municipality of Philadelphia, 478 F.2d 456 (3d Cir. 1973), we held that § 301 authorized a Bureau of the Budget circular that instructs executive departments to furnish information to state and local taxing authorities regarding compensation paid to federal employees. Such a disclosure, absent the regulation, would clearly conflict with the broad language of § 1905. Thus, although we did not expressly address § 1905 in Non-Resident Taxpayers Ass’n, the holding is consistent with our conclusion in Westinghouse, that disclosures pursuant to validly adopted agency regulations are not subject to the strictures of § 1905. We have been referred to no legislative history suggesting that § 1905, a 1948 codification of a group of statutes applicable to specific agencies was intended to limit the longstanding rulemaking authority under the 1874 codification of the housekeeping statute. Nor do we attach to the statement of Congressman Moss, respecting the 1958 amendment to the housekeeping statute (adding the last sentence of § 301), the same significance as did the District of Columbia Circuit in Charles River Park “A”, Inc. v. Department of HUD, supra, 519 F.2d at 942-43. Relying on Congressman Moss’ statement that the 1958 amendment “does not affect the confidential status of infor'mation given to the government and carefully detailed in Title 18, United States Code, Section 1905.,”, that court concluded that “§ 301 does not authorize regulations limiting the scope of § 1905.” In doing so, however, the court took the statement out of context. Congressman Moss only stated that the amendment would not affect the confidential status of information covered by § 1905. He did not say that the amendment eliminated disclosure authority existing since 1789 or that it eliminated the “authorized by law” qualification in § 1905. Such an interpretation of the 1958 amendment is totally at odds with its central purpose — the elimination of governmental secrecy — as it would transmogrify § 1905 into a weapon for those parties who advocate government secrecy. Thus we adhere to the position we took in NonResident Taxpayers Ass’n, that § 301 is a separate source of agency authority for the promulgation of disclosure regulations and that disclosures pursuant to such regulations are authorized by law and immune from the prohibitions of § 1905. Since the OFCC disclosure regulations are valid under § 301, all disclosures pursuant to those regulations are authorized by law and therefore not subject to § 1905. Since we find authority for the promulgation of the OFCC disclosure regulations in § 301, we need not consider whether the FOIA itself, properly construed, is an independent source of authority for the promulgation of disclosure regulations for exempt information. Nor need we decide whether, absent § 301, Executive Order 11246, which confers authority on the Secretary of-Labor to adopt “such rules and regulations... as he deems necessary to achieve the' purposes of the order”, is a separate source of authority for such promulgation. Our deferment of these grounds for sustaining the regulations should not be considered an expression of doubt as to these sources of authority, but only of confidence in our prior § 301 holding. Even if we were incorrect in the Westinghouse holding that agency regulations are laws for purposes of the qualification to § 1905, we would, in any event, réject the proposition that § 1905, would serve as a predicate for a private civil cause of action. Recent pronouncements of the Supreme Court have severely limited' the circumstances in which a federal court may imply a private cause of action from a federal statute. Whatever the merits of this trend, the decisions bind us. Here the criminal statute provides for a fine of not more than $1000, imprisonment for not more than a year, and automatic removal from office upon conviction. The adequacy of these penalties would seem to assure the achievement of the Congressional objectives underlying § 1905. The very breadth of the prohibitions in § 1905 militates against opening the courts to civil suits which may involve substantial problems of construction. Moreover, as we hold hereafter, there is an available remedy under the Administrative Procedure Act, in which judicial review will be enlightened by agency interpretation. We do not believe we can properly imply a cause of action, and thus the right to a trial de novo, from § 1905. 2. 42 U.S.C. § 2000e-8(e) Section 709(e) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-8(e), is a criminal statute making it unlawful for any officer or employee of [EEOC] to make public in any manner whatever any information obtained by [EEOC] pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information. Like § 1905, the maximum fine is $1000 and the maximum imprisonment one year. And, as with § 1905 and the FOIA, we must determine both whether the prohibition in § 709(e) applies and, if it does, whether a private cause of action for its enforcement may be implied. By its terms § 709(e) applies only to employees of EEOC and only to information obtained by that agency on its own statutory authority. Since it is a criminal statute, ordinary rules of construction would seem to preclude its application, at least in a criminal enforcement context, to officers or employees of a different agency or to information obtained by a different agency under that agency’s separate authority. Two circuits have concluded that OFCC compliance agencies are not governed by the § 709(e) prohibition. Chrysler argues that those cases were wrongly decided, first, because OFCC and EEOC are performing identical antidiscrimination functions and, second, because the EEO-1 reports are filed initially with the Joint Reporting Committee, which it describes as the alter ego of EEOC. It has long since been settled in this circuit that the federal government’s anti-discrimination effort directed at government contractors rests upon a different authority and even serves a different, though complementary, purpose than the efforts of EEOC. The Executive Order program antedated the passage of Title VII, and Congress has rejected proposals to transfer the Executive Order functions of OFCC to EEOC. The two agencies function independently, and we decline the invitation to disregard that independence in order to read § 709(e) as applicable to OFCC compliance agencies such as DSA. The argument that the Joint Reporting Committee (JRC) is the alter ego of EEOC and that all EEO-1 forms filed with JRC must therefore fall within § 709(e) is no more persuasive. The JRC is a consequence of the 1972 amendments to Title VII which established the Equal Employment Opportunity Coordinating Council, 42 U.S.C. § 2000e-14. The Coordinating Council is responsible for, among other things, implementing inter-agency 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_othappth	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the appeals court level. That is, it is conceded that the trial court properly reached the merits, but the issue is whether, in spite of that concession, the appellant has a right to an appeals court decision on the merits (e.g., the issue became moot after the trial). The issue is: "Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial? (e.g., the case became moot after the original trial)" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Jesse W. TOLEFREE, Petitioner-Appellant, v. FORD MOTOR CREDIT COMPANY, a Delaware Corporation, Respondent-Appellee. No. 77-1046. United States Court of Appeals, Ninth Circuit. Nov. 30, 1977. Jesse W. Tolefree, pro se. John O. Stansbury, of Eskanos & Klein-man, Oakland, Cal., for respondent-appellee. Before ELY, WRIGHT and CHOY, Circuit Judges. PER CURIAM: On August 27, 1976 Ford Motor Credit Company (Ford), a Delaware corporation licensed to do business in California, sued Tolefree, a citizen of California, in a state superior court for $5,530.01 when Tolefree defaulted on his truck purchase installment sale contract with Ford. On September 22, 1976. Tolefree filed a petition for removal of the case to a federal district court alleging diversity of citizenship. After removal was granted on September 30,1976 Tolefree, without service on Ford, moved that the district court dismiss the action for lack of jurisdiction, the amount in controversy being less than $10,-000. On November 5, 1976 Ford moved that the district court remand the case to the state court on the grounds of improvident removal and lack of federal jurisdiction pursuant to 28 U.S.C. § 1447(c). The district court granted Ford’s motion for remand and declined to hear Tolefree’s motion to dismiss for lack of the required amount in controversy, for lack of diversity of citizenship, or absence of federal question. The order for remand is not appealable to this Court. 28 U.S.C. § 1447(d). See Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 345-52, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976); In re Southwestern Bell Telephone Co., 535 F.2d 859, 860, aff’d en banc, 542 F.2d 297 (5th Cir. 1976); Robertson v. Ball, 534 F.2d 63, 64-66 (5th Cir. 1976). Therefore, dismissal of the appeal is appropriate. . 28 U.S.C. § 1332(a) provides: The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs . . . . 28 U.S.C. § 1447(c) provides: If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs. A certified copy of the order of remand shall be mailed by its clerk to the clerk of the State court. The State court may thereupon proceed with such case. . 28 U.S.C. § 1447(d) provides: An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise. The exception made in § 1447(d) as to a case removed pursuant to § 1443 applies only to a civil rights case, which the instant case is not. 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:
songer_const1	101	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. The COMMUNITY FOR CREATIVE NON-VIOLENCE, et al., Appellants, v. James G. WATT, Secretary of the Interior, et al. The COMMUNITY FOR CREATIVE NON-VIOLENCE, et al., Appellants, v. James G. WATT, Secretary of the Interior, et al. Nos. 82-2445, 82-2477. United States Court of Appeals, District of Columbia Circuit. Argued Jan. 14, 1983. Decided March 9, 1983. Mikva, Circuit Judge, filed opinion in support of reversal in which Wald, Circuit Judge, concurred. Spottswood W. Robinson, III, Chief Judge, and J. Skelly Wright, Circuit Judge, filed concurring statement. Harry T. Edwards, Circuit Judge, concurred and filed opinion. Ginsburg, Circuit Judge, concurred in the judgment and filed opinion. Wilkey, Circuit Judge, dissented and filed opinion in which Tamm, MacKinnon, Bork, and Scalia, Circuit Judges, joined. Scalia, Circuit Judge, dissented and filed opinion in which MacKinnon and Bork, Circuit Judges, concurred. Burt Neubome, New York City, of the bar of the State of N.Y., by special leave of Court, pro hac vice, with whom were associated Arlene S. Kanter, Laura Macklin, Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., argued the case on behalf of appellants. John D. Bates, Asst. U.S. Atty., with whom were associated Stanley S. Harris, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., argued the case on behalf of appellees. Before ROBINSON, Chief Judge, WRIGHT, TAMM, MacKINNON, WIL-KEY, WALD, MIKVA, EDWARDS, GINSBURG, BORK and SCALIA, Circuit Judges. ON REHEARING EN BANC PER CURIAM: Circuit Judge Mikva files an opinion, in which Circuit Judge Wald concurs, in support of a judgment reversing. Chief Judge Robinson and Circuit Judge Wright file a statement joining in the judgment and concurring in Circuit Judge Mikva’s opinion with a caveat. Circuit Judge Edwards files an opinion joining in the judgment and concurring partially in Circuit Judge Mikva’s opinion. Circuit Judge Ginsburg files an opinion joining in the judgment. Circuit Judge Wilkey files a dissenting opinion, in which Circuit Judges Tamm, MacKinnon, Bork and Scalia concur. Circuit Judge Scalia files a dissenting opinion, in which Circuit Judges MacKinnon and Bork concur. The judgment appealed from is reversed, and the case is remanded to the District Court with instructions to enjoin appellees from prohibiting sleeping by demonstrators in tents on sites authorized for appellants’ demonstration. MIKVA, Circuit Judge: The Community for Creative Non-Violence (CCNV) applied for and was granted a renewable seven-day permit to conduct a round-the-clock demonstration, commencing on the first day of winter, on the Mall and in Lafayette Park in Washington, D.C. The declared purpose of the demonstration was to impress upon the Reagan Administration, the Congress, and the public the plight of the poor and the homeless. The National Park Service (Park Service) granted CCNV a permit to set up two symbolic campsites, one on the Mall with a maximum of one hundred participants and forty tents, and one in Lafayette Park with approximately fifty participants and twenty tents. Although the permit allowed the demonstration participants to maintain a twenty-four hour presence at their symbolic campsites, the Park Service denied the participants a permit to sleep. According to the government, such conduct would violate the Park Service’s recently revised anti-camping regulations, see 36 C.F.R. §§ 50.19, 50.-27 (1982). CCNV claims that this prohibition strikes at the core message the demonstrators wish to convey — that homeless people have no permanent place to sleep. Accordingly, CCNV and seven individuals who wish to participate in the demonstration seek a court order invalidating the permit’s limitation on sleeping as an unconstitutional restriction on their freedom of expression. Following cross-motions for summary judgment, the district court decided in favor of the Park Service and the case arose on expedited appeal. After briefing and oral argument before a motions panel, but before that panel issued a decision, the ease was heard en banc. Because we conclude that the government has failed to show how the prohibition of sleep, in the context of round-the-clock demonstrations for which permits have already been granted, furthers any of its legitimate interests, we reverse the district court’s decision and grant CCNV’s request for injunctive relief. I. Background A. The Regulatory Framework This case presents the second occasion in which the government has sought to apply anti-camping regulations to demonstrations proposed by this appellant. In 1981, the Park Service allowed CCNV to erect nine tents in Lafayette Park to symbolize the desperation of homeless persons, but denied the demonstrators permission to dramatize this concern by actually sleeping in the tents. Under the regulations then in effect, 36 C.F.R. § 50.19(e)(8) (1981) (use of temporary structures); id. § 50.27(a) (camping), the Park Service reasoned that overnight sleeping would carry the demonstration beyond the permissible “use of symbolic campsites reasonably related to First Amendment activit[y]” and into the impermissible realm of “camping primarily for living accommodation,” see 46 Fed.Reg. 55,961 (1981). CCNV appealed that ruling. In Community for Creative Non-Violence v. Watt (CCNV I), 670 F.2d 1213 (D.C.Cir. 1982), this court held that the Park Service had misapplied those regulations to CCNV’s proposed activity. Because the regulations precluded only camping “primarily for living accommodation,” and the act of sleeping in CCNV’s demonstration was not to be done for that purpose, the court found that such conduct fell outside of the Park Service’s proscription: [T]here is no evidence in the Record suggesting that the handful of tents in Lafayette Park is intended “primarily for living accommodation.” The appellees will not prepare or serve food there; they will not build fires or break ground; they will not establish sanitary or medical facilities. Indeed the uncontroverted evidence in the case is that the purpose of the symbolic campsite in Lafayette Park is “primarily” to express the protestors’ message and not to serve as a temporary solution to the problems of homeless persons. Thus the only activity at issue here — sleeping in already erected symbolic tents — cannot be considered “camping” Id. at 1217. As a result of the court’s decision, CCNV staged its demonstration, including sleeping, for approximately seven weeks last winter. The Park Service has since revised its camping regulations for the National Capital Region through a formal rulemaking. 47 Fed.Reg. 24,299-306 (1982) (codified at' 36 C.F.R. §§ 50.19, 50.27 (1982)). The new regulations, set out in the margin, specifically include within the definition of prohibited camping the act of sleeping “when it reasonably appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging.” 47 Fed.Reg. at 24,302. Although the amended regulation admittedly permits some leeway for administrative discretion, the Park Service has determined that the regulation prohibits the sleeping that would be done at CCNV’s demonstration this winter. To understand fully the government’s current policy on sleeping in the capital’s parks, it is important to note that sleeping is not, per se, illegal. Visitors to the capital,' or workers on their lunch breaks, may safely catnap for short periods of time without running afoul of the law. Sleeping, in these circumstances, conjures up no threats to peace and public order. Although the Park Service’s anti-loitering regulation prohibits sleeping with intent to remain for more than four hours, it contains an exception for those with the proper authorization of the Superintendent of the National Capital Parks. See 36 C.F.R. § 50.25(k) (1982). And, as mentioned, the government’s camping regulation also allows for “sleeping activities” that are not deemed to constitute use of the area for living accommodation. An example of the discretion inherent in this latter determination is evidenced by the Park Service’s authorization, for participants in a Vietnam veterans’ demonstration on the Mall in May 1982, of all-night sleep at a mock Vietnam War-era “firebase” where some of the demonstrators were periodically roused to stand symbolic “guard duty.” See Park Service Permit to Vietnam Veterans Against the War dated April 20,1982 and accompanying letter, reprinted in Record Document (RD) 5. The only apparent distinction between the sleeping in the veterans’ demonstration and the sleeping proposed by CCNV is that the veterans slept on the ground, without any shelter. According to the Park Service’s interpretation of the new regulations, one’s participation in a demonstration as a sleeper becomes impermissible “camping” when it is done within any temporary structure erected as part of the demonstration. The Park Service nonetheless allows the erection of temporary structures, including tents, in connection with permitted demonstrations under 36 C.F.R. § 50.19(e)(8) (1982). Originally worded to allow any “temporary structures... reasonably necessary for the conduct of the demonstration,” 41 Fed.Reg. 12,879,12,883 (1976), this regulation was amended in 1982 to state specifically that temporary structures “may be erected for the purpose of symbolizing a message,” 47 Fed.Reg. at 24,305. Since that amendment, the Park Service has, on at least two occasions besides this one, granted permits to groups of demonstrators to erect symbolic tents. See Park Service Permit to ACORN dated June 18, 1982, reprinted in RD 5 (50 tents dramatizing housing crisis); Park Service Permit to Palestine Congress of North America dated September 8, 1982, reprinted in RD 5 (107 tents symbolizing Palestinian refugee camp). Tents were also allowed prior to the amendment to symbolize conditions in Vietnam, the plight of American Indians, and the plight of the homeless. 47 Fed. Reg. at 24,301. B. The Case Law The dispute in this case over the Park Sérvice’s camping regulations bears similarities to numerous other disputes that this court has heard within the last fifteen years, each concerning the proper use of public park lands within the nation’s capital. Eg., CCNV I, 670 F.2d 1213 (D.C.Cir. 1982) (sleeping in Lafayette Park); United States v. Abney, 534 F.2d 984 (D.C.Cir.1976) (sleeping in Lafayette Park); Vietnam Veterans Against the War v. Morton (VVAW), 506 F.2d 53 (D.C.Cir.1974) (camping on Mall); A Quaker Action Group v. Morton (Quaker Action), No. 71-1276 (D.C.Cir. Apr. 19, 1971), vacated mem., 402 U.S. 926, 91 S.Ct. 1398, 28 L.Ed.2d 665 (1971) (camping on Mall); see also O’Hair v. Andrus, 613 F.2d 931 (D.C.Cir.1979) (papal mass on Mall); A Quaker Action Group v. Morton, 516 F.2d 717 (D.C.Cir.1975) (public gathering in Lafayette Park); Women Strike for Peace v. Morton, 472 F.2d 1273 (D.C.Cir. 1972) (display on Ellipse); Jeannette Rankin Brigade v. Chief of Capitol Police, 421 F.2d 1090 (D.C.Cir.1969) (assembly on Capitol grounds). It should not be surprising, therefore, to learn that from this considerable history of decisionmaking the court has on several occasions addressed the propriety vel non of sleeping, in connection with public demonstrations, on the Mall and in Lafayette Park. In 1971, in Quaker Action, No. 71-1276 (D.C.Cir. Apr. 19, 1971), this court modified a district court order limiting an anti-war demonstration on the Mall to the hours of 9:00 am to 4:30 pm. As a matter of summary reversal, the court lifted the district court’s nighttime curfew and allowed the demonstrators to use a section of the Mall “as part of their public demonstrations... for the purpose of sleeping in their own equipment, such as sleeping bags.... ” Id., cited in VVAW, 506 F.2d at 56 n. 9. The Supreme Court vacated our summary reversal in that case by a decree without opinion in Morton v. Quaker Action Group, 402 U.S. 926, 91 S.Ct. 1398, 28 L.Ed.2d 665 (1971), an action which a motions panel of this court recognized as controlling in a dispute between the same litigants and involving similar sleeping on the Mall three years later. See VVAW, 506 F.2d at 56. Despite the very specific nature of its holding, the VVAW panel expressed its view that camping overnight is an activity “whose unfettered exercise is not crucial to the survival of democracy ■ and... thus beyond the pale of First Amendment protection.” Id. at 57-58. In United States v. Abney, 534 F.2d 984 (D.C.Cir.1976), this court characterized the gratuitous statements in VVAW as non-binding dicta and held that, in the unusual circumstances of an individual protestor’s round-the-clock vigil in Lafayette Park, unavoidable sleeping “must be taken to be sufficiently expressive in nature to implicate First Amendment scrutiny in the first instance.” Id. at 985. The Abney court then held the Park Service’s anti-loitering regulation unconstitutional as applied, but stated in dicta that, “[i]t may well be that [a non-discretionary] across-the-board ban on sleeping outside official campgrounds would be constitutionally acceptable if duly promulgated and even-handedly enforced.” Id. at 986. The question left open by Abney was not squarely before us last term in CCNV I; the Park Service’s anti-camping regulation was construed to avoid the constitutional issue. As part of the court’s decision, however, it was necessary to categorize the sleeping activities of the protestors as falling within one of two administrative classifications: (1) the use of symbolic campsites reasonably related to first amendment activities or (2) camping primarily for living accommodations. The CCNV I court concluded: We have no doubt as to which category encompasses the activities in question here. First, the appellees are engaged in a political protest and a petition for redress of grievances. As part of their protest, the appellees desire permission to sleep in their tents in Lafayette Park. This appears to be no more than “the use of [a] symbolic campsiteQ” Moreover, as the District Court found, in this case sleeping itself may express the message that these persons are homeless and so have nowhere else to go. 670 F.2d at 1216-17 (footnote omitted) (emphasis in original). When the CCNV I decision is added to the decisions of this court in Abney and Quaker Action, it is quite clear that on several occasions this court has acknowledged that sleep can be “expressive,” or part of a political protest, for the purposes of either administrative or constitutional classifications. II. Discussion The district court’s decision in this ease necessarily followed from its conclusions that: (1) CCNV’s demonstration falls within the scope of the amended anti-camping regulations; (2) sleeping, within the context of. CCNV’s demonstration, falls outside the scope of the first amendment; and (3) even assuming first amendment scrutiny is required, the new anti-camping regulations are constitutional as applied to CCNV’s proposed sleeping activities. Although we agree that CCNV’s proposed activities fall within the government’s amended regulations, we cannot uphold the constitutionality of the regulations as applied to CCNV. A. The Scope of the New Regulations CCNV contends that it does not fall under the amended anti-camping regulations because it seeks to use sleep as a form of expression and not for “living accommodation” purposes. We cannot accept this argument. The regulation’s exclusion of “the intent of the participants or the nature of any other activities in which they may also be engaging,” 36 C.F.R. §§ 50.19(e)(8), 50.-27(a) (1982), underscores the evident purpose of the regulations to cover “living accommodations” that may also be expressive of the demonstrators’ message. Indeed, in the prefatory statement accompanying the 1982 amendments, the Park Service indicated that it was “amending § 50.19(e)(8) to forbid specifically the use of any such structures, including tents, for the purpose of conducting any living accommodation activity,” which was defined to include “sleeping.” 47 Fed.Reg. at 24,304 (emphasis added). As we stated in CCNV I, the court may rely upon an agency’s contemporaneously issued policy statement as an accurate representation of the agency’s purpose. 670 F.2d at 1216 (citing Environmental Defense Fund, Inc. v. EPA, 636 F.2d 1267, 1280 (D.C.Cir.1980)). It thus seems clear to us that these demonstrators come under the new regulations. B. The Scope of the First Amendment The scope of the first amendment’s protection of free expression is not as amenable to precise definition as the Park Service’s prohibition of “camping.” The Supreme Court has afforded first amendment scrutiny to government regulation of such expressive activities as demonstrating, marching, leafletting, picketing, wearing armbands, and affixing a peace symbol to an American flag. Although we acknowledge that all conduct need not be labelled “speech” merely because the doer “intends thereby to express an idea,” United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968), we also recognize that expressive conduct cannot be written out of the Constitution merely because the government may wish to label it “camping.” The values implicit in the first amendment are too multifaceted to be subject to wooden categorizations. In the present case, our evaluation of the government’s ban on sleeping in symbolic structures is underscored by first amendment scrutiny because, as applied to CCNV’s proposed demonstration, the government’s ban will clearly affect expression: there can be no doubt that the sleeping proposed by CCNV is carefully designed to, and in fact will, express the demonstrators’ message that homeless persons have nowhere else to go. The “test” used by the Supreme Court to determine whether conduct is “sufficiently imbued with elements of communication to fall within the scope of the First... Amendment[ ],” Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 2729, 41 L.Ed.2d 842 (1974) (per curiam), is to examine the intent of the would-be communicator and the context in which his or her conduct takes place. In Spence, for example, the Court held that displaying the American flag with an attached peace symbol in the context of demonstrations against the bombings of Cambodia and the Kent State killings: was not an act of mindless nihilism. Rather, it was a pointed expression of anguish by appellant about the then-current domestic and foreign affairs of his government. An intent to convey a particularized message was present, and in the surrounding circumstances the likeli hood was great that the message would be understood by those who viewed it. Id. at 410-11, 94 S.Ct. at 2730-2731 (emphasis added). This court has already held that, within the context of an individual’s round-the-clock vigil, sleeping could be taken as “sufficiently expressive in nature to implicate First Amendment scrutiny in the first instance.” Abney, 534 F.2d at 985. In the present case, within the context of a large demonstration with tents, placards, and verbal explanations, the communicative context is sufficiently clear that the participant’s sleeping cannot be arbitrarily ruled out of the arena of expressive conduct. Indeed, we cannot understand how the government can deny the indicia of political expression that permeate CCNV’s pointed use of the simple act of sleeping. The protestors choose to sleep, purposely across from the White House and Capitol grounds, in sparsely appointed tents which the Park Service has already designated as undeniably “symbolic.” Their permit application states that this conduct is intended to send the same message as this court recognized was sent in CCNV’s 1981-82 demonstration: that the problems of the homeless will not simply disappear into the night. Unlike the thousands of homeless men and women whose nights are spent on grates, in doorways, or in back alleys, these demonstrators propose to sleep within the conspicuous context of two organized demonstration sites that create a backdrop — by the combined use of structures, explanatory signs, and verbal discourse — to ensure that the message sought to be sent by the demonstrators’ conduct will, in all likelihood, be received. True, CCNV has devised a means of expression that also serves to provide the protestors with the “luxury” of a blanket and a bit of groundspace, within a tent, with which to pass a winter’s night. But for those genuinely homeless persons who choose to forsake temporarily their grates and doorways for these tents, the communicative dimension of the sleeping in this demonstration is not overshadowed by the simultaneous provision of a single amenity. The first amendment is not so rarefied that it cannot accommodate within its scope the conduct of these demonstrators who use their bodies to express the poignancy of their plight. We add, moreover, that even were we not to focus on the peculiarly expressive nature of sleeping, first amendment scrutiny would still be implicated. This conclusion stems from the fact that the protestors’ purpose, whether asleep or awake, is to maintain a “symbolic presence that makes more visible and concrete the results of [presidential and congressional] inaction” on the conditions of the homeless. See CCNV application to demonstrate filed September 7, 1982, reprinted in RD 1, at 2. In short, the demonstrators seek to create an inescapable night- and-day reminder to the nation’s political leadership that homeless persons exist. Given this undeniable intent, and the contextual fact that the demonstration will take place at the seat of our national government, it is clear that CCNV’s proposed “presence” is intended to be expressive regardless of whether the demonstrators sit down, lie down, or even sleep during the course of the demonstration. Thus, whatever the particular form of the protestors’ presence at night, their presence itself implicates the first amendment. In this respect, CCNV’s twenty-four hour presence is entitled to the same first amendment protection as a vigil. Although not as small, stylized, or silent as the “reproachful presence” in Brown v. Louisiana, 383 U.S. 131, 142, 86 S.Ct. 719, 724, 15 L.Ed.2d 637 (1965) (silent civil rights vigil in a segregated public library), it is identical in both concept and purpose to such conduct. See United States v. Abney, 534 F.2d 984 (D.C. Cir.1976) (sleeping as part of a vigil in Lafayette Square entitled to first amendment scrutiny in the first instance). We wish to make clear, however, that by holding sleeping to be expressive conduct within the context of this particular demonstration, we reject two subsidiary arguments urged on us by CCNV. First, we reject CCNV’s contention that sleeping in its demonstration is uniquely deserving of first amendment protection because it directly embodies the group’s message that homeless people have no place else to sleep. Under CCNV’s distinction, a group with a “no-place-to-sleep” message (such as the homelessness of refugees) could express it by deliberately sleeping, but a group with a different message (such as opposition to the nuclear arms race) could not sleep. Such a distinction is impermissible, however, because it would require the government to draw distinctions among groups desiring to express themselves through sleeping depending on the subject matter or content of their message and its alleged relationship to sleep, something the first amendment is designed to prevent. See, e.g., Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980); L. Tribe, American Constitutional Law § 12-2, at 580 (1978). Second, we also reject CCNV’s argument that its sleeping must be protected because it is the most effective means by which the group can convey its message. The first amendment does not guarantee individuals access to the most effective channels of communication. See, e.g, Adderley v. Florida, 385 U.S. 39, 47-48, 87 S.Ct. 242, 247-248, 17 L.Ed.2d 149 (1966). On the other hand, the fact that CCNV’s manner of expression may turn out to be quite effective does not make it any the less “speech.” C. The Regulation as Applied That CCNV’s conduct comes within the scope of the first amendment, however, only begins our constitutional analysis. In United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), the Supreme Court noted that “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” Id. at 376, 88 S.Ct. at 1678. The O’Brien Court then established that a governmental interest may be sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Id. at 377, 88 S.Ct. at 1679. In short, O’Brien requires us to engage in a balancing of first amendment freedoms and their societal costs that is structured to place a thumb on the first amendment side of the scales. In approaching this task, we are mindful that CCNV seeks a permit for the exercise of first amendment rights on public parkland whose use for communication is of special importance: There is an unmistakable symbolic significance in demonstrating close to the White House or on the Capitol grounds which, while not easily quantifiable, is of undoubted importance in the constitutional balance. Although this theory has been used to justify demonstrations near state capitols as well, see Edwards v. South Carolina, 372 U.S. 229 [83 S.Ct. 680, 9 L.Ed.2d 697] (1963), it is in Washington — where a petition for redress of national grievances must literally be brought — that the theory has its primary application. Women Strike for Peace v. Morton, 472 F.2d 1273, 1287 (D.C.Cir.1972) (Wright, J., concurring). As the Supreme Court added in Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972), “[t]he right to use a public place for expressive activity may be restricted only for weighty reasons.” The Park Service argues that its prohibition of CCNV’s sleeping in the symbolic tents is justified because such activity could: (1) deprive others of the use of nationally significant space; (2) cause significant damage to park resources; (3) create serious sanitation problems; (4) seriously tax law enforcement resources; and (5) increase requests for such activity in connection with other demonstrations that would, in turn, create pressure from nondemonstrating visitors for similar accommodations. 47 Fed.Reg. 24,302 (1982). These interests are identified by the Park Service in its brief in this case and were also identified in its 1982 rulemaking to justify the flat prohibition of “camping.” Id. “Camping,” however, includes such non-sleeping activities as making fires, digging, earth breaking, and cooking. Id. at 24,305. Because CCNV neither seeks to do any of these activities, nor requests permission to establish medical or sanitation facilities, to store personal belongings, or even to serve food, the government’s interests must be weighed against only that activity which CCNV seeks to do: sleep within tents that they have been given permission to erect and at which they have been allowed to maintain a twenty-four hour presence. This is not to say, however, that the government’s interest in prohibiting expressive sleeping at symbolic campsites that is part of a demonstration must be weighed in a vacuum. In Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981), the Supreme Court held that the government’s interest in prohibiting first amendment activity must be assessed not in terms of letting just one group pursue the activity but in terms of letting all similarly situated groups do so. Id. at 654, 101 S.Ct. at 2567. Transposed to the first amendment activity involved in this case, therefore, Heffron requires us to determine if the government’s interests in park preservation, law enforcement, and the like (outlined above) are furthered by prohibiting expressive sleeping by all individuals or groups similarly situated to CCNV — that is, by all those who wish to engage in sleeping as part of their demonstration and have been granted renewable permits to demonstrate on a twenty-four hour basis on sites at which they have also been allowed to erect temporary symbolic structures. The dissent insists that we weigh the government’s interests in prohibiting sleeping by all groups— whether for first amendment purposes or not — lest we “nickle and dime every regulation to death.” Dissenting Opinion at-616. The dissent’s addition of makeweights to the government’s side of the balance, however, shortchanges the first amendment’s premium on precision. Here, the Park Service has already established a renewable permit procedure that limits the number of people who are allowed to demonstrate or to erect symbolic structures. The interests of people who do not possess a permit are simply not at issue in this case. Having properly focused the inquiry, it is difficult to imagine how the application of the Park Service’s regulations to groups similarly situated to CCNV will further any important interest. Because such groups are already allowed to erect tents and maintain an all-night presence during which time they may sit, stand, or even lie down in the tents, there are no incremental savings of park resources, sanitation facilities, or law enforcement personnel to be gained by proscribing only sleep. Indeed, allowing an all-night presence by wakeful protestors would seem to tax sanitation facilities, law enforcement personnel, and the park resource itself to a greater extent than would allowing those same protestors simply to sleep. Our review of the prefatory rationale to the revised regulations reveals at most only one attenuated governmental interest in precluding CCNV’s demonstrators from sleeping: Experience with administering the court’s decision allowing sleeping has revealed that sleeping activity by demonstrators expands to include other aspects of living accommodations such as the storage of personal belongings and the performance of necessary functions which have converted the sleeping area into actual campsites. 47 Fed.Reg. at 24,301. But this justification must be found wanting under O’Brien’s “no greater [restriction] than is essential” test; any interest in preventing other “camping” activity can be furthered by less restrictive means. Here, the Park Service’s renewable permit procedure provides a mechanism whereby permits can be revoked if illegal activities occur. See 36 C.F.R. § 50.19(f) (1982). The government’s interest in preserving parkland for the use of others is also not furthered by its ban on sleep. If anything, the nighttime enjoyment of Lafayette Park and the Mall by nondemonstrators would probably be enhanced if the 150 CCNV demonstrators were asleep. Because CCNV has already been granted a renewable seven-day, twenty-four hour permit to demonstrate at its two discrete sites, a ban on sleeping simply does not preserve those parts of the parks for the use of others. To the extent that other demonstrators wish to use the space temporarily allocated to CCNV, the Park Service’s permit procedures already provide for nonrenewal of CCNV’s weekly permit. See id. § 50.-19(e)(5). We are next urged to consider the government’s interest in preventing “pressure” for similar living accommodations from nondemonstrating visitors to Washington, D.C. 47 Fed.Reg. at 24,302. As a practical matter, we seriously question whether there is a large market for living accommodations in sparse tents on the Mall, in the winter, without heating, cooking, medical, or sanitation facilities. Even assuming that such a market is theoretically possible, we note that such an “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Tinker v. Des Moines School District, 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969). As a constitutional matter, moreover, the Park Service is free to apply its anti-camping regulations to such nondemonstrators who, by definition, have no first amendment interests to “balance” against the regulation. We add that any governmental interest in not treating certain groups — even those exercising first amendment rights — differently from others would appear to be marginally insignificant. Demonstrators are already accorded privileges not permitted nondemonstrators, such as the right to stay in the park all night despite the anti-loitering regulation, 36 C.F.R. § 50.25(k) (1982), and the right to erect temporary structures, id. § 50.19(e)(8). The additional privilege of sleeping at the demonstration site as part of the demonstration would seem of minimal consequence to the distinctions on treatment already drawn. Finally, the government suggests that requests for convenient camping by persons pursuing speech activities would increase. If by this the government means that additional camping requests will be made by those who merely wish to sleep in parks near the sites of daytime demonstrations, such requests may be denied. It would seem an entirely permissible distinction to permit sleeping that is expressive as part of a twenty-four hour vigil, but not to permit sleeping that is a mere convenience to daytime demonstrators. See Quaker Action Group v. Morton, 402 U.S. 926, 91 S.Ct. 1398, 28 L.Ed.2d 665 (1971); VVAW, 506 F.2d 53 (D.C.Cir.1974). If, on the other hand, the government anticipates an increase in applications for symbolic campsites, with requests for permission to sleep during all night demonstrations, it may not deny all such requests merely because it expects a large number of people to apply. Our holding does not mean, however, that the Park Service must grant every request, at any time, for any number of temporary structures or sleepers. Merely because we have held that expressive sleep may not be prohibited on the basis of the message conveyed does not mean that all forms of regulation are foreclosed to the government. Thus, the government may use valid, content-neutral, time, place, or manner regulations provided that such regulations are both reasonable and narrowly tailored to further the government’s substantial interests. See Police Department of Chicago v. Mosley, 408 U.S. 92, 101 n. 8, 92 S.Ct. 2286, 2293 n. 8, 33 L.Ed.2d 212 (1972); Grayned, 408 U.S. at 115, 92 S.Ct. at 2302. The government may, for example, limit the number of tents, the size of tents or campsites, and the number of persons allowed to sleep. It may continue its current practice of issuing permits on a renewable weekly basis, under which one group’s permit will not be renewed if another group requests the space, and under which the permit may be revoked if the demonstrators engage in such prohibited activities as cooking or making fires. It may set aside certain times when no demonstrations are allowed in order to accommodate other particularly heavy uses of the parks. Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:
songer_district	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". Pablo VINA, Plaintiff-Appellant, v. HUB ELECTRIC COMPANY, Defendant-Appellee. No. 72-1599. United States Court of Appeals, Seventh Circuit. Argued April 18, 1973. Decided June 29, 1973. Allen R. Kamp, Chicago, Ill., for plaintiff-appellant. Rody P. Biggert, Chicago, Ill., for defendant-appellee. Before SWYGERT, Chief Judge, and MURRAH and BARNES, Senior Circuit Judges. Senior Circuit Judge Alfred P. Murrah of the Tenth Circuit is sitting by designation. Senior Circuit Judge Stanley N. Barnes of the Ninth Circuit is sitting by designation. SWYGERT, Chief Judge. Pablo Vina appeals from the decision of the district court dismissing his complaint for want of prosecution. Vina filed a pro se complaint on November 26, 1971, against Hub Electric Company alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. The form complaint was apparently provided him by the district court clerk along with a form affidavit of indigency. In the form complaint, Vina asked that fees for bringing the suit be waived and that the district court appoint counsel to represent him. The district judge, on November 20, 1971, denied the requests for appointment of counsel and leave to proceed in forma pauperis. The following day, the clerk of the district court billed Vina for the cost of filing the complaint, and Vina paid the $15 filing fee. Although the complaint was filed and the filing fee paid, the clerk never issued summons. Rule 4(a) of the Federal Rules of Civil Procedure provides a clear mandate to the clerk to immediately issue a summons and deliver it to the marshal for service: “Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal or to a person specially appointed to serve it.” (emphasis added). There is no explanation in the record as to why the clerk did not follow the rule. Vina thereafter obtained counsel through the Legal Aid Bureau who filed an amended complaint on March 27, 1972. Rule 15(a) of the Federal Rules of Civil Procedure allows for such an amended complaint to be filed without leave of court since no responsive pleading had yet been filed by Hub Electric, the defendant. Summons then issued and the amended complaint was served on April 28, 1972. Hub Electric did not file an answer, but on May 18, 1972, the last day for filing the answer, it filed a motion to dismiss for failure to obtain leave of court prior to filing the amended complaint and a motion for extension of time to answer or otherwise plead. At a hearing on May 18 on defendant’s motion, Vina’s counsel argued that he was an attorney employed by Legal Aid and that due to the number of poor persons seeing attorneys, there was a two to three month wait before a client could be interviewed by an attorney. The district judge, sua sponte, dismissed the cause for want of prosecution and treated Hub Electric’s motions as moot. It is obvious from the judge’s remarks that he considered the “case closed” as of November 30, 1971, when he denied leave to proceed on appeal in forma pauperis even though Vina later paid the filing fee. The judge also informed Vina’s counsel that he should have specifically advised the court of the filing of his appearance and requested leave to file the amended complaint (although such leave was not required by Rule 15(a)). The question on appeal is whether the district judge abused his discretion in dismissing Vina’s case for want of prosecution. We hold that he did and accordingly reverse. The district judge and Hub Electric both rely on Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed. 2d 734 (1962), to support the proposition that a district court may dismiss a case for want of prosecution on its own motion. That case involved the dismissal of a six year old case which had previously been assigned two fixed trial dates which had been postponed. Plaintiff’s counsel failed to attend a pretrial conference and later gave a lame excuse for his absence. The case before us is not of the same genre. The other cases cited by Hub Electric are similarly inapropos. Hub Electric argues that Vina should have investigated and made sure that service of the summons had been obtained and that he had “familiarize [d] himself with court procedures before proceeding pro se.” Hub Electric further argues that the same standards must be applied to pro se plaintiffs as are applied to plaintiffs represented by counsel. Such a statement is highly questionable. Cf. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). In its argument for requiring pro se complainants to be skilled in the law, Hub Electric ignores the thirty day time limit which Vina had to file his complaint. 42 U.S.C. § 2000e-5(e). He also ignores the fact that Vina diligently sought counsel by court appointment and later by Legal Aid. Even if the same standards were to be applied to pro se litigants as to litigants represented by counsel (which we do not hold), it would not affect this case since Vina, whether pro se or represented, cannot be held responsible for the clerk’s failure to perform his duties of issuing the summons and delivering it to the marshal. Vina had the right to file an amended complaint without leave of court pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. There was no basis in the record to support a finding that Vina had not been diligent in prosecuting his case. Nor has there been any showing of prejudice to defendant in the delay. The dismissal is reversed and the ease is remanded under Circuit Rule 23 to be assigned to another district judge. . Vina received a “right to sue” letter from the Equal Employment Opportunity Commission on November 11, 1971, notifying him that lie may institute a civil action under Title VII of the Civil Rights Act of 1964 in the district court within thirty days of receipt of the letter. . This was the first notice Hub Electric received of the suit. . Rule 21(a) of the local rules of the United States District Court for the Northern District of Illinois provides that “[c]ases which have been inactive for more than six months may be dismissed for want of prosecution.” This case does not fall under that rule since the inactivity was not six months in duration. Question: 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_appfed	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 "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. W. E. CROSS, trading as Virginia Tours and Gray Line of Richmond, Appellee, v. UNITED STATES of America, Appellant. No. 8709. United States Court of Appeals Fourth Circuit. Argued Oct. 10, 1962. Decided Dec. 13, 1962. Michael I. Smith, Atty., Dept. of Justice (Louis F. Oberdorfer, Asst. Atty. Gen., Meyer Rothwacks, Atty., Dept. of Justice, Claude V. Spratley, Jr., U. S. Atty., and Granville R. Patrick, Asst. U. S. Atty., on brief), for appellant. Charles L. Reed, Richmond, Va. (John W. Edmonds, III, and Tucker, Mays, Moore & Reed, Richmond, Va., on brief), for appellee. Before SOBELOFF, Chief Judge, BRYAN, Circuit Judge, and WINTER, District Judge. ALBERT V. BRYAN, Circuit Judge. The Federal 10% impost on transportation fares, the District Court has concluded, was not assessable on the amounts paid the Gray Line of Richmond, Virginia, for its bus tours in sightseeing and visiting the City’s historic and other points of interest. Therefore, the Government is ordered to refund the “penalty” exacted by the tax statute and paid under protest by Gray Line for its failure to collect from the passengers and remit to the Government the excise claimed for 1957 and 1958. The United States appeals and, we hold, successfully. Ground for his determination was found by the District Judge in these assertions of Gray Line: 1. While tour tickets were $3.00 for an adult and $1.50 for a child, the taxpayer’s books fairly show that no more than 60<j: of either was allocable to transportation, the remainder being for non-transportation or tour services, and no tax is levied on fares of 60^5 and less. 2. In any case, the failure to collect the tax was not willful, the statutory prerequisite to liability for the penalty. Gray Line of Richmond is a proprietorship of W. E. Cross, taxpayer-appellee here. In a related enterprise he trades as Virginia Tours. Buses and accompanying drivers as needed are rented by Gray Line from Virginia Tours. Either a 7-passenger Volkswagen or a 29-pas-senger Ford bus is engaged, as the number of tourists demands. For the Volkswagen Gray Line pays 20}! per mile and for the Ford 40}!. There are two trips daily, one in the morning, the other in the afternoon. Besides the individual tickets a group ticket is sold at a somewhat lower rate, but this difference is not significant in the case. The tour is 10% miles; with travel to and from the garage it is 12 miles. En route the driver lectures and points out places of interest. Four stops are made, three historical sites and one at an important industry. The occupants of the bus are taken through the plant by hostesses it provides, while the driver and his bus wait. At the other attractions the driver is the guide. The whole trip occupies approximately 2% hours, during an hour of which the bus is in motion. Prior to 1957 and since 1958 Gray Line has paid the toll out of the price of the ticket, reducing the price so that the flat rates of $3.00 and $1.50 remained constant. For 1957 and 1958 taxpayer Cross, as proprietor of Gray Line, entered each adult fare on his books as 60}! for transportation and $2.40 for tour service, and a corresponding breakdown was made of the child’s fare, 30^ to transportation and $1.20 to tour service. Preliminarily the Government urges that “the sum of the services performed by the taxpayer for his passengers constituted ‘taxable transportation’ ” within the meaning of the tax statute, and therefore the fare was not subject to division between transportation and non-transportation phases of the trip, citing White House Sightseeing Corp. v. United States, 300 F.2d 449 (Ct.C1.1962); Armour & Co. v. United States, 169 F.Supp. 521, 144 Ct.Cl. 697, cert. denied, 361 U. S. 821, 80 S.Ct. 67, 4 L.Ed.2d 66 (1959). To the contrary, the taxpayer urges that the primary and overtopping purpose of the tour was sightseeing, or that at the most the Government could look only to such part of each fare as was allocable to transportation cost, citing Smith v. United States, 110 F.Supp. 892 (N.D.Fla. 1953); Treas.Reg. §§ 42.4261-2(d) and 42.4261-8 (f) post. However, we need not resolve this dispute. Even if the fare is divisible between transportation and tour service,, as the taxpayer maintains, still he cannot prevail. Decisive of this case, as the Government next insists, is that the burden was the taxpayer’s to show also, and with precision, the correctness of his; divorcement of the two costs, and this he did not do. Reinecke v. Spalding, 280 U.S. 227, 232-233, 50 S.Ct. 96, 74 L.Ed. 385 (1930); United States v. Pfister, 205 F.2d 538, 542 (8 Cir. 1953); Lightsey v. Commissioner, 63 F.2d 254, 255 (4 Cir. 1933). While the statute does not deal with segregation of the constituents of a fare, speaking directly to the problem are Treasury Regulations on Excise Taxes-(1954 Code): “SEC. 42.4261-2 Rate and Application to Tax. — * * * «-** * “(d) Where a payment covers-charges for nontransportation services as well as for transportation of a person, such as charges for meals,, hotel accommodations, etc., the-charges for the nontransportation services may be excluded in computing the tax payable with respect to such payment, provided such charges are separable and are shoion in the exact amounts thereof in the records pertaining to the transportation charge. If the charges for nontransportation services are not separable from the charge for transportation of the person, the tax must be computed upon the full amount of the payment. “SEC. 42.4261-8 Examples of Payments not Subject to Tax. — In addition to a payment specifically exempt the following are examples of payments not subject to tax: «•»** “(f) Miscellaneous charges.— Where the charge is separable from the payment for the transportation of a person and is shown in the exact amount thereof on the records pertaining to the transportation payment, the tax on the transportation of persons does not apply to the following and similar charges: # # S # “(4) Charges for admissions, guides, meals, hotel accommodations, and other nontransportation services, for example, where such items are included in a lump sum payment for an all-expense tour. “(5) Charges in connection with the charter of a land, water, or air conveyance for the transportation of persons, such as for parking, icing, sanitation, ‘layover’ or ‘waiting time’, movement of equipment in deadhead service, dockage, wharfage, etc.” [Emphasis added.] The basis of our denial of plaintiff’s suit, to repeat, is the absence of a showing in his records of the “exact amounts * * * pertaining to transportation”. The inexactness of his transportation cost figure is evinced in the taxpayer’s method of reckoning it. He testified that the 60$ and 30$ allocations were justified on “the mileage rate * * * charged per charter, the size of the bus, the number of passengers to be accommodated plus the fact that other companies operate at certain rates and [I figured] fixed cost and arrived from that”. By “per charter” he emphasizes, he means that the allocation by Gray Line is greater than the amount charged to other persons for the same equipment. He demonstrates the latter argument as follows: In 1957, according to his books, 170 trips were made by the Volkswagen. At 12 miles per trip the total mileage would be 2040, and at 20$ per mile this would amount to $408. The same year 368 trips were made by the Ford bus. Multiplied by 12 that would mean an aggregate of 4416 miles, and at 40$ per mile would produce $1766.40. The grand total would be $2174.40. But upon the basis-of 60$ per adult and 30$ per child the transportation costs allocable for 1957 would be a greater sum, to-wit, $2646.00. Like contrasts exist for 1958. Taxpayer notes also that transportation to the four tour points by ordinary transit bus would cost only 45$ per passenger. Against these arguments, however, the uncontroverted evidence is that the overall transportation cost allocated by Gray Line on its books in 1957 is $4183.80 which is only about a half of the $7917.40 Gray Line paid to Virginia Tours in that year for buses and drivers. In 1958 the ratio of the same items is $3127.50 to $7967.60. Taxpayer accounts for the excess of the rental paid for buses and drivers in this way: the larger figure included driver-guide service and bus rental during the hour and a half in which the bus was not in motion. But this explanation will not bear scrutiny. First, the evidence is that the taxpayer-proprietor did not incur extra cost for drivers during the stop-periods and the drivers were not paid extra for guide-work. Secondly, no amount is proved to establish the figure charged for the stand-by time of the bus, and, further, taxpayer has said throughout that only mileage was used for tax purposes. Finally, the total expenses of operation of Gray Line for 1957 and 1958 appear on the taxpayer’s books in the following amounts: 1957 Amount paid to Virginia Tours for lease of buses and drivers .....................$ 7,917.40 Advertising................ 1,912.79 Telephone ................. 370.69 Licenses................... 450.00 Office Supplies ............. 101.02 Convention expenses ........ 100.00 Commissions............... 2,159.53 Total .................$13,011.43 1958 Amount paid to Virginia Tours for lease of buses and drivers .................$ 7,967.60 Advertising................ 1,628.26 Telephone ................. 454.97 Licenses................... 250.00 Office Supplies ............. 251.91 Commissions............... 1,551.40 Total .................$12,104.14 No explanation is attempted of the failure to include in the cost of transportation the items of advertising and those following. It thus reasonably appears that the actual cost of transportation in 1957 and 1958 could well have been far more than the 600 and 300 apportionment made by the taxpayer for excise tax purposes. At least neither the vague exposition of the apportionment by the taxpayer nor his book figures show a compliance with the regulation’s requirement that the transportation charges when separable and separated be “shown in the exact amounts thereof in the records pertaining to the transportation charge.” See White House Sightseeing Corp. v. United States, supra, 300 F.2d 449 (Ct.Cl.1962); Loew’s, Inc. v. United States, 99 F.Supp. 100 (S.D.Cal. 1951). Furthermore, exemptions exampled in the Treasury Regulations already quoted do not save taxpayer. True, they allow deduction of charges for “guides” and “waiting time” in charter hires, but both of these exceptions are contingent upon charges being “shown in the exact amount thereof on the records pertaining to the transportation payment”. The “penalty” for failure of the taxpayer to collect the excise is not, as the term generally implies, a forfeiture or amercement. Actually, the statute uses the word to describe “the total amount of the tax * * * not collected, * * * ” . It is not a super-added sum. Only when the carrier “willfully fails” to obey the levying statute is the penalty assessed. The District Judge’s definition of “willfully” is well-phrased and accurate: “One who acts intentionally, conscientiously and voluntarily, acts wilfully.” Bloom v. United States, 272 F.2d 215, 223 (9 Cir. 1959), cert. denied, 363 U.S. 803, 80 S.Ct. 1236, 4 L.Ed.2d 1146 (1960). But cf. Gray Line Co. v. Granquist, 237 F.2d 390, 395 (9 Cir. 1956), cert. denied, 353 U.S. 911, 77 S.Ct. 667, 1 L.Ed.2d 664 (1957). In previous years, as already noted, taxpayer Cross had recognized the excise. He was led to renounce further acknowledgment by a casual conversation with an unidentified lawyer in Florida. Before denying the obligation, he obtained an opinion from the Internal Revenue Service. It advised him of the duty to collect. Taxpayer’s adoption of a different course, while by no means morally culpable, was deliberate. He preferred to take his chances in litigation. Though all in good faith, nonetheless he thereby “willfully” failed to follow the statute. He does not escape the penalty. The judgment in review will be reversed and the action dismissed. Reversed with final judgment. . Sections 4261(a) and (d), 4262(a), 4263 (a), 4291 and 6672 I.R.C.1954 (as amended by §§ 1(a) and 4(b), 3, 2 and 4(c), Act of July 25, 1956, 70 Stat. 644), 26 U.S.C. §§ 4261, 4262, 4263, 4291 and 6672 (1958 ed.). . Section 4263 supra note 1, . § 6672, 26 U.S.C. § 6672 (1958 ed). Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_state	30	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". PORTER v. GRANITE STATE PACKING CO. et al. No. 4143. Circuit Court of Appeals, First Circuit. June 5, 1946. Albert M. Dreyer, of Washington, D. C. (George Moncharsh, Deputy Adm’r of Enforcement, Milton Klein, Director, Litigation Division, and David London, Chief, Appellate Branch, all of Washington, D. C., and William B. Sleigh, Jr., Regional Litigation Atty., of Boston, Mass., on the brief), for appellant. Joseph Kruger, of Boston, Mass. (Harold Widett and Widett & Kruger, all of Boston, Mass., and John P. Carleton, of Manchester, N. H., on the brief), for ap-pellees. Before DOBIE, MAHONEY and WOODBURY, Circuit Judges. PER CURIAM. These are consolidated cases coming before us on appeal from an order of the district court denying the application by the Price Administrator for an injunction restraining defendants from violating § 4(a) of the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, §§ 901 et seq., 904 (a). The Granite State Packing Company is the owner and operator of a slaughtering establishment in Manchester, New Hampshire. Alex Shapiro is the president and treasurer of the Packing Company and is also a director of that company and its majority shareholder. Mitchell Muskat is a director of the corporation, its office manager and one of its shareholders. The corporation and the two individuals above named are the defendants in these actions. Pursuant to the authority vested in him by the Price Control Act, the Administrator promulgated certain regulations fixing maximum prices for the purchase of cattle. In March, 1945, the Packing Company paid a total of $6,979.43 in excess of the price permitted by the Administrator’s regulations. In April, 1945, overpayments amounted to $4,771.48 and in May, 1945, overpayments totalled $6,816.69. The defendants did not deny these overpayments but contended that the violations were unintentional and attributable only to the difficulties inherent in the application of the regulations. They asserted that they had made a diligent effort to comply with the statute and regulations and acted in complete good faith. The district court [62 F.Supp. 585, 587], found that the defendants made some effort to comply with the regulations but said that it was “not impressed with their claim that good faith was exercised and that sufficient and proper precautions were taken. These violations were of a substantial character” and occurred in consecutive months. The court added that: “Their failure to comply with the regulation was not wholly involuntary.” But the court refused to grant an injunction on the ground that the cessation of hostilities after the actions were instituted had caused the requirements of the government in respect to its demand for meat to be drastically revised. It did, however, order that the cases be retained on its docket “with the right of the administration on reasonable notice, and a showing that violations of the Act have been resumed, to again apply * * * for injunctive relief.” The court said that had it not been for the cessation of hostilities and the consequential drop in government demand for meat “a different conclusion than the one herein reached would have probably been indicated.” It is clear that the granting of relief under the Price Control Act, as in all suits in equity, rests in the sound discretion of the court. The Hecht Company v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754. But a court cannot deny injunctive relief because of the occurrence of an event which is not pertinent to the case at bar. The fact that hostilities had ceased is not a relevant consideration in the instant case. That event did not lessen the necessity for price control. But more significant, Congress has not seen fit to abolish price control. We cannot vitiate an Act of Congress on the theory that that Act is no longer necessary. Only Congress can repeal the Emergency Price Control Act. Until Congress sees fit to do so, we must enforce that Act as vigorously as we enforce any other legislative enactment. The district court in denying the injunction placed great emphasis on the fact that hostilities had ceased. It should redetermine the question of the relief to be granted without consideration of that fact, and set forth in clear terms the basis for its conclusion. The judgments of the District Court are vacated and the case is remanded to that court for further proceedings not inconsistent with this opinion. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_genresp1	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. Glenn Roy MILLER, Appellant, v. R. L. EKLUND, etc., et al., Appellee. No. 20365. United States Court of Appeals Ninth Circuit. Aug. 8, 1966. Glenn Roy Miller, in pro. per. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., James E. Kline, Deputy Atty. Gen., Los Angeles, Cal., for respondent. Before CHAMBERS, MERRILL and DUNIWAY, Circuit Judges. DUNIWAY, Circuit Judge: On March 6, 1960, Miller was sentenced, following his conviction by a jury in California Superior Court, on two counts of armed robbery (Calif.Pen.Code § 211). He seeks habeas corpus. The trial court denied the writ without issuing an order to show cause and without a hearing. I. Unlawful arrest. Miller says that he was arrested without a warrant and without probable cause. “The arresting officer was basing his probable cause on informer information.” It appears that a preliminary hearing was held, at which he was represented by counsel, that the magistrate found probable cause, and that he was held for trial. Standing alone, these allegations do not support a claim for federal habeas corpus. Fernandez v. Klinger, 9 Cir., 1965, 346 F.2d 210, 211-212; Latimer v. Cranor, 9 Cir., 1954, 214 F.2d 926, 928; Hampson v. Smith, 9 Cir., 1946, 153 F.2d 417, 418. II. Unlawful search. Miller asserts that the unlawful arrest was followed by an unlawful search of his home. He says that at the preliminary hearing two items of clothing, a brown cap and a gray plaid jacket, “that was taken from the defendant during a secret interrogation” and were the fruits of the unlawful arrest, were introduced. He does not allege that these or any items were taken from his home during the search. He does allege that when he was arrested, he was wearing the jacket. Just where or when the police obtained his cap is not stated. It would appear, in view of the language we have quoted, that he probably wore the cap when taken to jail. He also says that the victims of the robbery identified the cap and jacket in a one man lineup during secret pre-trial investigation, and testified about them at the preliminary examination. So far as appears from the petition, neither item was used against him at the trial. The use, as evidence, of items of clothing worn by the accused when arrested does not, in our opinion, violate any of his federal constitutional rights. His clothing was no more the “fruit” of an unlawful arrest than he was. At the trial, fingerprints taken from Miller when he was booked at the jail were used against him. This did not deprive him of any federal constitutional right. Cf. Schmerber v. State of California, 1966, 384 U.S. 757, 764, 86 S.Ct. 1826, 16 L.Ed.2d 908. III. Interrogation. Miller says that, after his arrest, he was interrogated without counsel, not advised of his right to counsel, and was denied counsel although he asked to call his lawyer. He states that when arrested at his home, he was “pistol-whipped,” handcuffed, kicked in the stomach and “knocked down and out” because he would not sign an incriminating statement, and that he was later interrogated repeatedly. It does not appear, however, that he ever gave an incriminating statement,. or that, if he did, it was used against him. Assuming the truth of these charges, they do not entitle him to relief in federal habeas corpus. Misconduct by the police, however reprehensible, is not a ground for federal habeas corpus if it does not contribute to a conviction. IV. Lack of counsel. Miller says that he had no counsel when brought before a magistrate. However, all that he alleges is that bail was set and he was bound over to preliminary examination. He did have counsel at that examination. He pleaded not guilty. These facts do not entitle him to federal habeas corpus. Wilson v. Harris, 9 Cir., 1965, 351 F.2d 840, 844-845; Marcella v. United States, 9 Cir., 1965, 344 F.2d 876, 881-882. He then discharged his counsel — the public defender — and proceeded to trial in pro. per. This was done with the permission of the court. There is no allegation that the court did not then determine that his decision was voluntary within the rule in Johnson v. Zerbst, 1938, 304 U.S. 458, 468-469, 58 S.Ct. 1019, 82 L.Ed. 1461. The Los Angeles County Superior Court, where Miller was tried, operates on the master calendar system. Miller first moved to dismiss his counsel before Judge Drucker, who denied the motion. He again made the same motion before Judge Wheatcraft, which was granted. He came to trial before Judge Beck, who accepted without further inquiry Miller's decision to represent himself. This was proper; absent some motion on Miller’s part, or other facts indicating to the contrary, Judge Beck was entitled to assume, as he evidently did, that Judge Wheat-craft, in granting the motion, had fully performed his constitutional duty. Miller had a right to act as his own counsel if he chose to do so. So far as his allegations of fact are concerned, all that they show is that he did so choose. These allegations do not, without more, raise a federal question. V. Confrontation. Miller says that the arresting officer and an alleged confederate were not called as witnesses by the prosecution. He does not allege that he did not know of their existence or that he asked to call them, much less that any such request was denied. The prosecution is not obliged to call every known witness. Moreover, Miller does not allege that the testimony of either of the witnesses would have been of any assistance to him. His only claim is that he had no chance to cross-examine them. This is a far cry from Pointer v. State of Texas, 1965, 380 U.S. 400, 85 S.Ct. 1065,13 L.Ed.2d 923, on which Miller relies. VI. Self-incrimination. Miller took the stand in his own behalf. He says that he “testified to facts that was treated as a confession by the prosecution and the Trial Court.” The contention apparently is that this violated his privilege against self-incrimination. The claim is frivolous. Affirmed. . His conviction was affirmed on appeal, People v. Miller, D.C.A.Cal.1961, 190 Cal.App.2d 361, 11 Cal.Rptr. 920. His conviction became final 90 days thereafter, or on August 14, 1961 (see People v. Polk, Cal.1965, 63 Cal.2d 443, 47 Cal.Rptr. 1, 406 P.2d 641.) His conviction thus became final after the decision in Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. See Linkletter v. Walker, 1965, 381 U.S. 618, 622 n. 5, 85 S.Ct. 1731, 14 L.Ed.2d 601. . We are not to be understood to hold that a mere conclusionary statement that the arrest was unlawful, or without probable cause, is a sufficient allegation to require the habeas corpus court to act upon it. We do not reach that question. 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_appfiduc	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "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. REESE v. LOUISVILLE TRUST CO. No. 6138. Circuit Court of Appeals, Sixth Circuit. May 13, 1932. ■ R. Ruthenburg, of Louisville, Ky., for appellant. H. H. Nettelroth, of Louisville, Ky. (Robert G. Gordon, Squire R. Ogden, and Gordon, Laurent & Ogden, all of Louisville, Ky., on the brief), for appellee. Before HICKS, HICKENLOOPER, and SIMONS, Circuit Judges. PER CURIAM. The state eourt, having appointed a receiver for the Louisville Trust Company, terminated the receivership upon a plan of reorganization being carried into effeet. Appellant appeared in such proceeding and objected to the termination of the receivership. His objections were overruled and he appealed to the Court of Appeals of 'Kentucky, where the decree of the lower eourt was affirmed. Thereupon he instituted the present action in the District Court, suing in behalf of himself and all others similarly situated and claiming that the judgment of the Court of Appeals of Kentucky, affirming the decree of the circuit court of that state, deprived plaintiff of his property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States. No other ground of jurisdiction appearing, plaintiff’s appeal wa$ dismissed upon appropriate motion. We are not here concerned with the merits of plaintiff’s other contentions, viz., that he is entitled to restitution of certain trust funds alleged to have been illegally invested by the appellee and to the appointment of a receiver to effeet such restitution. No contention was made that the state courts did not have jurisdiction in originally appointing the receiver or in the conduct of such receivership, including its termination. The only contention is that in the exercise of such jurisdiction the state eourt erred in granting the relief sought by other parties to such action and in denying relief to appellant. Under such circumstances the District Court has no jurisdiction to entertain an action on appellant’s behalf in effect to set aside the judgments of the state courts whether such judgments involved the decision of constitutional questions or otherwise. Rooker et al. v. Fidelity Trust Co. et al., 263 U. S. 413, 44 S. Ct. 149, 68 L. Ed. 362. Affirmed. Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number. 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. AIR-SHIELDS, INC., Petitioner, v. Honorable John P. FULLAM, Chief Judge, United States District Court for the Eastern District of Pennsylvania, Nominal Respondent, and Neomed Corporation, Respondent. No. 89-1295. United States Court of Appeals, Third Circuit. Submitted Under Rule 12(6) Oct. 3, 1989. Decided Dec. 7, 1989. John J. Barrett, Jr., Mark C. Levy, Saul, Ewing, Remick & Saul, Philadelphia, Pa., for petitioner. Adam P. Schiffer, Vinson & Elkins, Houston, Tex., John J. Speicher, Rhoda, Stoudt & Bradley, Reading, Pa., for respondent. Before SLOVITER, GREENBERG, and ROSENN, Circuit Judges. OPINION OF THE COURT ROSENN, Circuit Judge. The principal issue presented by this petition for mandamus is whether this court may review a federal district court’s order remanding a diversity case, in the face of a Congressional enactment barring appellate review, except in civil rights cases, of an order remanding a case to the state court from which it had been removed. 28 U.S.C. § 1447(d). The district court relied on a former but recently abolished statutory remand ground of improvident removal. See 28 U.S.C. § 1447(c) (1982), as amended by 28 U.S.C. § 1447(c) (1988). The United States District Court in Texas, to which the case had been removed after petition, transferred the case to the federal district court in Pennsylvania after granting a motion for change of venue. The United States District Court in Pennsylvania remanded the case to the Texas state court and the petitioner-defendant, Air-Shields, Inc. (Air-Shields), appealed. We vacate and remand. In its petition for mandamus, Air-Shields asserts that the district court had no basis for remand under the Removal Statute, 28 U.S.C. § 1447(c) (1982), as amended by 28 U.S.C. § 1447(c) (1988). Though it does not raise the issue of which remand statute the district court should have followed, Air-Shields contests the court’s findings of defects in its petition for removal and surety bond. Air-Shields, therefore, petitions this court, pursuant to 28 U.S.C. § 1651 (1982), for a writ of mandamus directing the district court to vacate its remand order. I. Plaintiff-respondent Neomed Corporation, a Texas corporation, instituted a breach of contract suit, Neomed v. Air-Shields, Vickers, in a state court in Harris County, Texas, against Air-Shields, Vicker, a corporation chartered under the laws of Delaware. Thereafter, the court issued a citation which directed the service of process upon “Air-Shields, Vickers’ ” agent, CT Corporation. CT Corporation is a commercial corporation which, for a fee, acts as a registered agent for service of process throughout the United States. CT was Air-Shields’ registered agent in Texas. Some time before May 9, 1988, the process server attempted to serve CT as agent for “Air-Shields, Vickers.” CT refused service because it was not authorized to accept service for a company designated as “Air-Shields Vick-ers.” CT did not notify Air-Shields of this attempted service. A second attempt was made to serve CT on May 9, 1988. On this occasion, the process server orally represented to CT’s employees that the defendant in the suit was actually “Air-Shields, Inc.,” and then physically altered the citation cover sheet by changing the name of the defendant from “Air-Shields, Vickers” to “Air-Shields, Inc.” At that point, CT consented to accept service of process. On June 8, 1988, Air-Shields filed a petition for removal in the United States District Court for the Southern District of Texas on the basis of diversity of citizenship. The court granted the petition for removal, whereupon Air-Shields filed a motion for change of venue to the United States District Court for the Eastern District of Pennsylvania. The federal district court in Texas granted Air-Shields’ motion and transferred the case to the federal district court in Eastern Pennsylvania. Once in the Pennsylvania district court, Air-Shields filed a motion for leave to amend its answer. Rather than addressing the motion, the court, sua sponte, issued a memorandum and order, dated January 11, 1989, remanding the case to the Texas state court where it had originated. The district court in Pennsylvania found that the defendant had actually received service of process before May 9, 1988 but had merely “rejected” it. The defendant’s petition for removal was filed June 8, 1988. The court concluded that the removal petition was untimely, not having been filed as required by statute within "30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief....” 28 U.S.C. § 1446(b). The court also found that the removal petition was not accompanied by the required surety bond. Therefore, the court held that the case had been improvidently removed. II. The Removal Statutes, 28 U.S.C. §§ 1441-1452, govern the removal of a state court case to a federal district court. The Removal Statutes were recently revised under the Judicial Improvements and Access to Justice Act (“Judicial Improvements Act”). Judicial Improvements Act, Pub.L. No. 100-702, 102 Stat. 4642 (1988). Congress enacted the Judicial Improvements Act on November 19, 1988. Although most revisions under the Judicial Improvements Act were given explicit effective dates, the amendments made in §§ 1441, 1446, and 1447 of the Removal Statutes have no stated effective date. Absent provisions to the contrary, federal legislation becomes effective on the day of enactment. United States v. York, 830 F.2d 885, 892 (8th Cir.1987); 2 Sutherland’s Statutory Construction § 33.06 (4th ed. Sands Rev.1986). Therefore, the amendments to the foregoing sections of the Removal Statutes became effective on November 19, 1988. In its January 11,1989 memorandum and remand order, the district court cited the 1982 edition of Section 1447(c), though the 1988 revisions were in effect at the time of the memorandum. We conclude that the district court entered its remand order unaware of the newly enacted revision by the Judicial Improvements Act. In the case of United States v. The Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49 (1801), Chief Justice Marshall authored the simple but now famous doctrine that a “court must decide according to existing laws.” Id. at 110. Courts are sometimes, however, faced with a situation where, as here, the law changes while a case is pending. In Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1973), the Supreme Court held that “even where the intervening law does not explicitly recite that it is to be applied in pending cases, it is to be given recognition and effect.” Id. at 715, 94 S.Ct. at 2018 (citing Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969)). According to the above doctrine, the district court was obliged to proceed under the recently amended, rather than the 1982 version, of Section 1447(e). The 1988 version of Section 1447(c) omits the previous “improvidently removed” grounds for removal and restricts the time for remand motions based on procedural defects. It provides: A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. 28 U.S.C. § 1447(c). Even if the district court’s sua sponte action qualifies as a motion under the revised 28 U.S.C. § 1447(c), the district court could only remand within 30 days of the filing of notice to remove for procedural defects. Here, the district court issued its remand order more than seven months after the defendant filed its removal petition. Revised Section 1447(c) prohibits such untimely remand. Usually, our review of such remand orders is strictly limited by subsection (d) of Section 1447. The subsection provides, with one exception, that an order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise. 28 U.S.C. § 1447(d). In Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 346, 96 S.Ct. 584, 590, 46 L.Ed.2d 542 (1975), the United States Supreme Court explained that “only remand orders issued under § 1447(c) and invoking the grounds specified therein ... are immune from review under § 1447(d).” In the Court’s view, Congress did not intend to “extend carte blanche authority to the district courts to revise the federal statutes governing removal by remanding cases on grounds that seem justifiable to them but which are not recognized by the controlling statute.” Id. at 351, 96 S.Ct. at 593 (emphasis supplied). In Thermtron, the district court remanded a case to the state court solely on the ground that its heavy docket would unjustly delay the plaintiffs from proceeding to trial on the merits. Because the district court’s remand decision in this case also was not based on the “controlling statute,” our review is not limited by subsection (d) of Section 1447. See Bloom v. Barry, 755 F.2d 356 (3d Cir.1985); Levy v. Weissman, 671 F.2d 766 (3d Cir.1982). By remanding the case for procedural defects after the thirty day limit imposed by the revised Section 1447(c) had expired, the district court “exceeded [its] statutorily defined power.” Thermtron, supra, at 351, 96 S.Ct. at 593. Therefore, the “issuance of the writ of mandamus [is] not barred by § 1447(d).” Id. Accordingly, the petition for mandamus will be granted and the case remanded with direction to the district court to vacate its remand order of January 11, 1989. . A Citation under the Texas Rules of Civil Procedure appears to be the equivalent to a summons under the Federal Rules of Civil Procedure. . Because the district court sua sponte issued its remand order, the petitioner did not have the opportunity to raise the issue of the revised remand statute before the district court. The petitioner's failure to raise that issue in this court is not as excusable. However, the matter is one affecting our jurisdiction and therefore we are free to consider it. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1975). . The 1982 version of Section 1447(c) provided that if “at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case....” 28 U.S.C. § 1447(c) (1982) (emphasis supplied). . Blacks Law Dictionary defines "sua sponte" as "of his or its own will or motion." 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_numresp	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. CONKLIN & GARRETT, LTD. Plaintiff-Appellant, v. M/V FINNROSE, Etc., et al. Defendants-Appellees. No. 86-6040. United States Court of Appeals, Fifth Circuit. Sept. 17, 1987. Malinda G. York, Houston, Tex., for plaintiff-appellant. William C. Bullard, Houston, Tex., for Enso-Gutzeit & Atlantic Cargo Services AB. Before WISDOM, HIGGINBOTHAM, and DAVIS, Circuit Judges. WISDOM, Circuit Judge: The question this appeal presents is the enforceability of a choice of forum clause in a bill of lading covered by the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 1300 et seq. We hold that the clause must yield to COGSA. We reverse and remand. I. Plaintiff/appellant, Conklin & Garrett, a Canadian corporation, sued for cargo damage in the Southern District of Texas against the M/V FINNROSE, a vessel that sails under a flag of the Bahamas, in rem and in personam against the defendants/appellees: Atlantic Cargo Services (ACS), a Swedish company, the charterer of the M/V FINNROSE; South Atlantic Cargo Shipping N.V. (SACS), a Finnish Company, the present owner of the M/V FINN-ROSE; and Enso-Gutzeit O/Y, also a Finnish company, the previous owner of the M/V FINNROSE. The lawsuit arises out of damage to a merry-go-round that Conklin & Garrett had shipped from Felixstowe, United Kingdom, to Port Everglades, Florida, in February 1985. ACS issued the bill of lading for this cargo. The bill of lading provides: “any dispute arising under this bill of lading shall be decided in Finland and Finnish law shall apply except as provided elsewhere herein”. The bill of lading also provides: “[njotwithstanding any provisions found elsewhere in this B/L, insofar as the ... carriage covered by this ... contract is performed within the territorial limits of the United States it shall be subject to the provisions of the Carriage of Goods by Sea Act ... which shall be deemed to be incorporated herein”. The defendants filed a motion to dismiss for lack of jurisdiction based on the provision in the bill of lading providing that all disputes were to be resolved in Finland. The district court granted the motion. II. COGSA provides: “Every bill of lading ... which is evidence of a contract for the carriage of goods by sea to or from ports of the United States, in foreign trade, shall have effect subject to the provisions of this chapter.” 46 U.S.C. § 1300. Because the merry-go-round was shipped to an American port, it is undisputed that COGSA covers the bill of lading. COGSA also provides that “[a]ny clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with the goods, arising from negligence, ... or lessening such liability otherwise than as provided in this chapter, shall be null and void and of no effect”. 46 U.S.C. § 1303(8) (section 3(8)). In the light of this congressional command, the question here is whether Finland is the forum where the dispute at issue must be litigated. The defendants contend that M/S BREMEN and Unterweser Reederei v. Zapata Off-shore Co., which arose in this circuit, controls the decision. Bremen held that the forum selection clauses are “prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances”. Defendants argue that there has been no showing that selection of Finland as the forum is unreasonable. Conklin and Garrett respond that Bremen is not controlling because the towage contract at issue in Bremen was not covered by COG-SA. III. In Bremen the “contract was not between some indigent American seaman and [a] Greek shipowner to try disputes in Piraeus, Greece. It was not a towing contract in inland American waterways with the towage company having superior bargaining leverage. The contract required the towage company to tow a six million dollar drilling rig from Venice, Louisiana, near the mouth of the Mississippi, through the Gulf of Mexico, [across the Atlantic], across the Mediterranean and up the Adriatic to Ravenna, Italy”. Zapata advertised for bids. In short, it involved a negotiated contract for unusual towage, not a bill of lading. Essential elements in the contract were an exculpatory clause for negligence and an agreément for trial of disputes by British courts, which recognize the validity of such a clause. Earlier, however, the Supreme Court had declined to enforce a clause exempting a tug from liability for negligent towage in inland waters. In Bremen the contract was entered into by two large companies, after arms-length negotiations by experienced attorneys. Moreover, the Supreme Court expressly noted that COGSA was not applicable to the case. “The ruling in Zapata [Bremen] controls the field of admiralty to the extent that no federal legislation to the contrary is on the books.” We hold that in this case COGSA is applicable and controlling. IV. This Court has not addressed the issue squarely. In Carbon Black Export v. The S.S. Monrosa, an American exporter sued to recover for nondelivery of a cargo placed in the United States aboard the Monrosa for shipment to Italy. The action was in rem against the vessel and in in personam against the owner, an Italian corporation. Under a provision in the contract any action for loss or damage was to be brought only in Genoa. This Court concluded (1) that the forum selection, by its own terms, did not apply to in rem proceedings against the vessel and (2) that agreements to oust the jurisdiction of United States courts are contrary to public policy. The Supreme Court granted certiorari but after hearing argument, dismissed the writ as improvidently granted. A majority of the Court agreed that the clause did not cover an in rem action and that the case was not an “appropriate instance to pass on the extent to which effect can be given to stipulations in ocean bills of lading not to resort to the courts in this country”. Bremen, however, overrules the broad reading this Court gave to the clause in Monrosa. The Monrosa panel did observe that the bills of lading were printed in English “tending to indicate that the Courts of the United States were in a good position to pass upon the rights of the parties”. This Court did not rely on COG-SA. In Indussa Corporation v. S.S. Ranborg, decided before Bremen, the Court of Appeals for the Second Circuit, sitting en banc, held that section 3(8) of COGSA invalidates a forum selection clause requiring litigation of a dispute in a foreign forum even if the bill of lading (such as the one at issue here) provides for the application of COGSA in the foreign forum. Judge Friendly, for the Court, pointed out: “Even when the foreign court would apply [COGSA] ..., requiring trial abroad might lessen the carrier’s liability since there could be no assurance that [the foreign court] would apply [COGSA] in the same way as would an American tribunal subject to the uniform control of the Supreme Court, and section 3(8) can be read as covering a potential and not simply a demonstrable lessening of liability____ We think that Congress meant to invalidate any contractual provision in a bill of lading for a shipment to or from the United States that would prevent cargo able to obtain jurisdiction over a carrier in an American court from having that court entertain the suit and apply the substantive rules Congress had prescribed.” In Union Ins. Soc. of Canton, Ltd. v. S.S. Elikon, the Fourth Circuit reached the same result as the Second Circuit. The Court pointed out that although “Bremen holds that forum selection clauses are presumptively valid, ... [the Supreme Court] only expressed this view in the absence of any congressional policy on the subject, much less a contrary congressional policy____ We think the general policy here must recede before the specific policy enunciated by Congress through COGSA.” Gilmore and Black in their well-known work, The Law of Admiralty, fully support Ranborg and anticipate Elikon. They go so far to say: “COGSA allows a freedom of contracting out of its terms, but only in the direction of increasing the shipowner’s liability, and never in the direction of diminishing them. This apparent onesideness is a commonsense recognition of the inequality in bargaining power which both Harter [27 Stat. 445 (1893), 46 U.S.C. §§ 190-196] and COGSA were designed to redress, and of the fact that one of the great objectives of both acts is to prevent the impairment of the value and negotiability of the ocean bill of lading.” “It is entirely unrealistic to look to an obligation to sue overseas as not ‘lessening’ the liability of the carrier”. In view of the statutory language of COGSA and also considering the pertinent authorities, we hold that the district court erred in declining to take jurisdiction. Bremen is inapposite. V. The district court summarily dismissed the case “for want of jurisdiction”. We reverse and remand the case to the district court. In doing so we do not foreclose consideration of the forum non conveniens issue. See Elikon. The judgment of the district court is reversed and remanded for further proceedings consistent with this opinion. . 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). . Id. at 10, 92 S.Ct. at 1913. . Id. at n. 11, 92 S.Ct. at 1913 n. 11. . See Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955); Dixilyn Drilling Corp. v. Crescent Towing & Salvage Co., 372 U.S. 697, 83 S.Ct. 967, 10 L.Ed.2d 78 (1963). . Unterweser Reederei and Zapata Off-shore Co. v. M/S BREMEN, 446 F.2d 907, 908-9(5th Cir.1971) (Wisdom, J., dissenting (en banc)). . See n. 4. . 407 U.S. at 10 n. 11, 92 S.Ct. at 1913 n. 11. . Nadelman, Choice-of-Court Clauses in the United States, 21 Am.J.Comp.L. 124, 134 (1973). . 254 F.2d 297 (5th Cir.1958), cert. improvidently granted and writ dismissed, 359 U.S. 180, 79 S.Ct. 710, 3 L.Ed.2d 723 (1959). The dissent in Bremen criticized Monrosa, considered it "outmoded", and called for our Court to overrule it. . 254 F.2d at 301. . 377 F.2d 200 (2d Cir.1967). . Id. at 203 (emphasis in original, citations omitted). . 642 F.2d 721 (4th Cir.1981). . Id. at 724, 725. The Court distinguished Bremen stating: The Supreme Court upheld the London forum selection clause because of the bargained nature of the contract, the reasonableness of the forum selected and the general policy encouraging private contractual choice for dispute resolution, particularly in the context of international trade. The Court specifically distinguished Indussa, noting the nonapplicability of COGSA to the towage contract before it. Id at 724. Again, in a footnote the court added: 'The inapplicability of COGSA apparently was not contested [in Bremen ] in the Supreme Court or' in the litigation before the lower courts. Two reasons suggest themselves as to why COGSA did not apply: (1) there was no bill of lading, and (2) a mobile offshore drilling rig is not a ‘good’ while being towed. See 46 U.S.C. § 1301(b)(c).” 642 F.2d at 724. . See also Black, The Bremen, COGSA, and the Problem of Conflicting Interpretation, 6 Vand.J. Transnat’l L. 363 (1973); Nadelman, Choice-of-Court Clauses in the United States, 21 Am.J.Comp.L. 124 (1973). . G. Gilmore & C. Black, The Law of Admiralty 145-47 (1975). . Id. at 146 n. 23. . 642 F.2d at 725. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_circuit	C	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. DELAWARE & H. R. CORPORATION v. BONZIK, and five other cases. Nos. 6587-6592. Circuit Court of Appeals, Third Circuit. March 22, 1938. Paul Bedford, of Wilkes-Barre, Pa. (Joseph Rasch and Thomas L. Ennis, both of New York City, of counsel), for appellant. R. L. Levy and A. M. Lucks, both of Scranton, Pa., for appellees. Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges. PER CURIAM. In the court below the plaintiffs brought suit against the defendant railroad to recover damages suffered by them while riding on a freight train, through the alleged negligence of the railroad. The court refused the defendant’s request to give binding instructions and submitted the case to the jury. It, however, failed to agree. Thereupon, defendant moved for judgment n. o. v., which the court refused and'granted a new trial. Following this the railroad took these appeals. Without discussing the facts or indicating any opinion on the defendant’s motion, we regard the cases before us as appeals from the court’s grant of a new trial. In the absence of abuse of discretion, which cannot be contended in these cases, and regarding them as appeals from the grant of a new trial, no appeal lies, and accordingly the appeals are dismissed. 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_state	06	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". Milton MENDE, Appellant, v. UNITED STATES of America, Appellee. No. 17363. United States Court of Appeals Ninth Circuit. June 16, 1961. Thomas T. Johnson, Los Angeles, Cal., for appellant. Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Div., David Y. Smith, Asst. U. S. Atty., Los Angeles, Cal., for appellee. Before CHAMBERS, JERTBERG and KOELSCH, Circuit Judges. PER CURIAM. On September 26,1960, we affirmed the judgment of Mende’s conviction. Mende v. United States, 9 Cir., 282 F.2d 881. With prison facing him, Mende has obtained new counsel who has made below a collateral attack on the judgment, claiming the indictment was so fatally defective that the trial court did not have jurisdiction to try him. The trial court rejected it. The government makes a number of suggestions as to why Mende had no standing below or here to now be heard. But in our opinions its objections do not go to the naked right of a court to hear the collateral attack. Therefore, we consider the attack on its merits. Under critical examination, the indictment could be improved. But the whole point defendant-appellant makes, could have been taken care of by proffering a precautionary instruction. Such was not done. We hold the indictment was not so fatally defective as to deprive the court of jurisdiction. The order appealed from is affirmed. Question: 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_adminrev	N	What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable". Vesta I. WILLIAMS, Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Appellee. No. 91-1891. United States Court of Appeals, Eighth Circuit. Submitted Dec. 13, 1991. Decided March 27, 1992. Timothy C. Harlan, Columbia, Mo. (Karen Kraus Bill, on brief), for appellant. Claire Schenk, St. Louis, Mo., argued (Stephen B. Higgins, Joseph B. Moore, of counsel), Frank V. Smith, III, and Mary Dey Purcell, Kansas City, Mo., on brief for appellee. Before LAY, Chief Judge, WOLLMAN and HANSEN, Circuit Judges. The Honorable Donald P. Lay was Chief Judge of the United States Court of Appeals for the Eighth Circuit at the time this case was submitted and took senior status on January 7, 1992, before the opinion was filed. WOLLMAN, Circuit Judge. Vesta I. Williams appeals from the district court’s order denying her motion for summary judgment and granting the motion of the Secretary of Health and Human Services for summary judgment. We affirm. I. Williams was sixty years of age at the time of the benefits hearing and had sold Avon products through December of 1985. She has a history of a nervous condition, for which she has taken Ativan since 1963. She was diagnosed in 1980 with esophagitis and in 1987 with gastric ulcers and duoden-itis. These conditions have responded to medication and have not recurred. In December of 1987, Williams underwent a hysterectomy for in situ carcinoma of the endometrium. Williams takes progesterone, which she claims is to prevent the recurrence of the cancer, but which is a medication commonly prescribed to postmenopausal women to prevent adverse symptoms of menopause. Williams applied for disability benefits in 1988, alleging that she was disabled from chronic and acute anxiety, gastric ulcers, cancer of the uterus, and side effects from her “cancer medication.” Her initial application was denied because she was not insured as of the date she claimed the disability began. She amended her income tax returns and was then determined to have additional quarters of eligibility for disability benefits. Upon reconsideration of her application, Williams was determined not to have a condition severe enough to be disabling. Williams then requested a hearing before an administrative law judge (AU). The AU found that Williams’ impairment “resulted in only slight abnormality which ha[d] minimal effect on her physical or mental ability to perform basic work-related activities.” In making this finding, the AU took into account Williams’ work record, her daily activities, and her functional restrictions, as well as her complaints of pain, including precipitating and aggravating factors and the dosage, effectiveness, and side effects of pain medication. The AU concluded that because Williams’ cancer was cured and because Williams remained active and able to care for herself and her home, had not sought treatment for any mental condition, and took no prescription medication for pain, her complaints of incapacitating fatigue and nervousness were not supported by the evidence. Williams’ request for a review of the AU’s decision was denied by the Appeals Council. Thus, the AU’s decision is the final decision of the Secretary. Williams then appealed to the district court, which referred the matter to a magistrate judge. The magistrate judge recommended that the AU’s decision be upheld. The district court adopted the magistrate’s recommendation, denying Williams’ motion for summary judgment and granting the Secretary’s motion for summary judgment. Williams now appeals to this court, claiming that the decision of the AU is not supported by substantial evidence. II. The Social Security Act provides for payment of insurance benefits to persons who have contributed to the program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1)(D). A “disability” is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment.” Id., § 423(d)(1)(A). The disability must last for a continuous period of at least twelve months or be expected to result in death. Id. An individual is under a disability only if the impairments “are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work.” Id., § 423(d)(2)(A). The Secretary has established a five-step process for determining whether a person is disabled. See 20 C.F.R. § 404.1520. First, the Secretary determines whether an applicant for disability benefits is engaged in “substantial gainful activity.” Id., § 404.1520(b). If the answer is yes, the person is not disabled and benefits are denied; if no, the Secretary moves on to step two in the determination. It was at this step in the process that Williams was denied benefits. At this step, the claimant bears the initial burden of proof to demonstrate that she is unable to perform her past relevant work, part of which is demonstrating a “severe” impairment. See Conley v. Bowen, 781 F.2d 143, 146 (8th Cir.1986); McCoy v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir.1982). To show a severe impairment, she must show that she has “any impairment or combination of impairments which significantly limits [the applicant’s] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If not, the applicant does not have a severe impairment and benefits are denied. The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do most jobs.” Id., § 404.1521(b). Examples include physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; capacities for seeing, hearing, and speaking; understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co workers and usual work situations; and dealing with changes in a routine work setting. Id. Step two of this process has been upheld as a valid exercise of the Secretary’s power. Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297, 96 L.Ed.2d 119 (1987) (“The severity regulation increases the efficiency and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account.”). We will uphold the Secretary’s decision if it is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Whitehouse v. Sullivan, 949 F.2d 1005 (8th. Cir.1991). “Substantial evidence is that which a reasonable mind might accept as adequate to support the Secretary’s conclusion,” Whitehouse, 949 F.2d at 1007 (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)), and “[w]e may not reverse ‘merely because substantial evidence would have supported an opposite decision.’ ” Id. (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.1984)). III. The AU determined that Williams’ impairments did not significantly limit her physical or mental ability to do basic work activities. He applied the examples given in section 404.1521(b) and found that Williams could drive, read, watch television, visit and entertain friends, attend church, shop, do laundry and care for the house with her husband’s help, and cook meals. He found that Williams’ anxiety was situational and had not required counseling, psychiatric treatment or hospitalization, and that Williams had taken Ativan so long that it “probably has minimal effect.” He further found that her alleged weakness and trembling had similarly required no treatment, that Williams took progesterone to prevent menopausal symptoms, and that Williams claimed disability because her husband had retired and she was no longer motivated to work. We find substantial evidence in the record to support the AU’s decision. There is no record of treatment for anxiety save a twenty-eight year history of taking Ativan, a mild anti-anxiety agent. Williams takes no prescription pain medications, and the medication which she claims to take to prevent recurrence of the cancer is commonly prescribed to prevent menopausal symptoms in those women who have had their ovaries removed during a hysterectomy. Williams’ gastric symptoms are controlled by medication. She was told by all of her doctors that she need not return on any regular basis, but that she should return as needed. Accordingly, the judgment of the district court is affirmed. .The Honorable George F. Gunn, United States District Judge for the Eastern District of Missouri. . This is a localized cancer of the mucous membrane in the inner layer of the wall of the uterus. . This includes both women who experience menopause due to natural aging of the reproductive system and women who experience menopause after surgical removal of the ovaries. . The Honorable Robert D. Kingsland, United States Magistrate Judge for the Eastern District of Missouri. Question: What federal agency's decision was reviewed by the court of appeals? A. Benefits Review Board B. Civil Aeronautics Board C. Civil Service Commission D. Federal Communications Commission E. Federal Energy Regulatory Commission F. Federal Power Commission G. Federal Maritime Commission H. Federal Trade Commission I. Interstate Commerce Commission J. National Labor Relations Board K. Atomic Energy Commission L. Nuclear Regulatory Commission M. Securities & Exchange Commission N. Other federal agency O. Not ascertained or not applicable Answer:
songer_district	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". PENNSYLVANIA CO. FOR INSURANCES ON LIVES AND GRANTING ANNUITIES et al. v. PHILADELPHIA INQUIRER CO. Circuit Court of Appeals, Third Circuit. March 5, 1928. No. 3709. 1. Landlord and tenant <§=>81 (2) — On consolidation of lessee and owner of fee terminating lease, mortgagee of leasehold held not entitled, under after-acquired property clause, to enforce lien against leased property which owner of fee had previously agreed to sell. Mortgagee of leasojbold under mortgage containing after-acquired property clause held, not entitled, on consolidation of lessee and owner of fee to terminate lease, to enforce lien of mortgage against leased property which owner of fee had previously agreed to sell, where purchaser’s first proven knowledge of mortgage was after contract to purchase and before consolidation, since purchaser under Pennsylvania law obtained complete equitable title at time sale contract was signed, subject only to vendor’s right to receive balance of purchase money. 2. Courts <§=>367(3) — Questions relating to title to land are determined by law of state . where land is situated. Whore real estate owned by Delaware corporations is located in Pennsylvania, all questions relating to its title in general and to equitable estate acquired by contract of purchase in particular are determined by law of Pennsylvania. 3. Courts <§=>367(3) — In determining questions relative to title to land, federal courts must follow rules of courts of state where land is situated. In determining questions relating to title to land and particularly to equitable estate acquired by contract of purchase, federal court must follow rules established by highest court of state in which land is situated. 4. Appeal and error <§=>984(2) — Reference <§=> 76(1) — Fixation and allowance of master’s compensation is within trial court’s discretion. Fixation and allowance of compensation for master is within discretion of trial judge, whose determination will not be disturbed in absence of abuse of such discretion. Appeal from the District Court of the United States for the' Eastern District of Pennsylvania; J. Whitaker Thompson, Judge. Suit by the Pennsylvania Company for Insurances on Lives and Granting Annuities and another against the Philadelphia Inquirer Company. Decree for defendant, and plaintiffs appeal. Affirmed. Francis H. Bohlen, Jr., and Saul, Ewing, Remick & Saul, all of Philadelphia, Pa., and Chapman & Cutler, of Chicago, Ill., for appellants. Percival H. Granger and Reber, Granger & Montgomery, all of Philadelphia, Pa., for receivers. Boyd Lee Spahr and Ballard, Spahr, Andrews & Ingersoll, all of Philadelphia, Pa., for appellee. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges, WOOLLEY, Circuit Judge. This suit was instituted in the District Court by a bill to foreclose a mortgage issued to seeure corporate bonds. The case arose out of a contract of sale of real property and concerns the claimed lien of the mortgage, containing an after-acquired property clause, on property of a constituent corporation 'after > its consolidation with the mortgagor corporation, and the claim that the lien, if it exists, is good against the property in the hands of the purchaser whose agreement to purchase was entered into prior to the consolidation and whose first proven knowledge of the mortgage was after the contract of purchase and before the consolidation. The ease is more difficult to state than to* decide. That is because of corporate devolutions of which the following outline may be sufficient. (1) Hoopes and Brother, Inc., originally; owned the property in question. (2) Hoopes and Brother, Inc., leased the premises to Hoopes & Townsend Steel Company, referred to throughout the litigation as the “old” Hoopes & Townsend Steel' Company. The lease provided, inter alia, that the lessee might mortgage its leasehold interest; subject to the rights of the lessor under the lease, and further the lessor might sell the leased property to the Hoopes and Townsend Company (another corporation) and assign the lease to that company, and that in the event of such a sale and assignment and the further event of a merger of Hoopes and Townsend Company with the old Hoopes & Townsend Steel Company, the lease should ipso facto terminate. (3) Pursuant to this authority the old Hoopes & Townsend Steel Company executed a mortgage to the Pennsylvania Company for Insurances on Lives and Granting Annuities and George M. Clarke, trustees, the present appellants, covering several properties including the leasehold on the property in question. (4) Hoopes and Brother, Inc., the lessor, still holding the title to the property, then conveyed the premises to the Hoopes and Townsend Company in fee subject to the lease and also assigned all its interest in the lease to that company. (5) Hoopes and Townsend Company, then owning the title and standing in the relation of lessor of the premises, entered into a written contract of sale of the premises, clear of liens and encumbrances, to the Philadelphia Inquirer Company, with the lease to the old Hoopes & Townsend Steel Company in force. The purchase price was $190,000 of which $25,000 was paid on account at the time of signing the contract and the balance was payable at the settlement sixty days thereafter. (6) The deed was executed within that period but was withheld from actual or manual delivery to the purchaser by reason of the outstanding lease which before a title company would pass and guarantee a fee simple unencumbered title had to be gotten rid of. (7) Hoopes and Townsend Company, still owner and potential lessor of the property, joined with the old Hoopes & Townsend Steel Company, lessee, in an agreement formally canceling and terminating the lease; and the Penn National Bank as trustee under a prior mortgage, thought to be the only lienor, released the premises from the lien of its mortgage. (8) Doubtless fearing that this was not enough, the Hoopes and Townsend 'Company and the old Hoopes & Townsend Steel Company then merged by appropriate proceedings of consolidation, the new company bearing the old title of Hoopes & Townsend Steel Company, thereafter called the “new” Hoopes & Townsend Steel Company. (9) The effect of the consolidation of the corporation which held the title to the premises and stood as lessor with the lessee corporation which had mortgaged the leasehold was, under the express terms of the lease, ipso facto to work its termination. (10) With the lease out of the way and believing that all liens had been released, the title company passed the title and delivered to the vendee the vendor’s deed which had been previously delivered to it pending the search of the title and the vendee paid the vendor the balance of the purchase price. The Pennsylvania Company and its co-trustee, the appellants, do not challenge the termination of the lease thus brought about but say that the mortgage given them by the old Hoopes & Townsend Steel Company containing an after-acquired property elause spread on the consolidation of that company with the Hoopes and Townsend Company to the property of the latter company (which includes, inter alia, the property in question) and that in consequence the lien of their mortgage attached to and now rests on the property it had previously contracted to sell and later conveyed to the Philadelphia Inquirer Company, the appellee. The case was referred to a master who, on facts largely stipulated and otherwise orally proved, discussed and applied the law of after-acquired property clauses and found that the mortgage to the Pennsylvania Company and Clarke does not constitute a valid and subsisting lien on the premises. The District Court, on exceptions, affirmed the report of the master and entered a decree dismissing the bill. Whereupon the plaintiffs took this appeal. While the law of after-acquired property clauses as they affect the property of constituent companies on consolidation is as the master stated, we recognize enough in the mortgage in suit to raise a question, fairly debatable, whether the peculiar terms of the mortgage take it outside the general law of the subject. Though we incline to the view of the master and the trial court, our opinion is that the whole subject was cut under and displaced by a legal situation which arose before th© consolidation and therefore before the after-aequired property clause could operate and that rendered the property in question not capable of being after-acquired and therefore not an object to which the lien of the mortgage could under its after-acquired property clause attach. This is the interest which the appellee-vendee acquired in the property not on final delivery of the deed after consolidation but on entering into the contract of purchase and on making part payment of the purchase price before consolidation. Looking at that, interest generally, any court would say it was an equitable estate; but because of different ways courts in different jurisdictions have viewed, such estates and the different qualities they have attributed to them, it would hesitate to express an opinion on the precise character of this equitable estate in relation to the rights of the vendor and vendee and to rights of lien creditors without looking at the law of the place where the property is situated. While the Hoopes and Townsend Company, the old Hoopes & Townsend Steel Company and the consolidated new Hoopes & Townsend Steel Company are all Delaware corporations, the real estate iin question is located in Philadelphia and a court would know that all questions relating to its title in general and to the equitable estate acquired by contract of purchase in particular are to be determined by the law of Pennsylvania. .But a federal court would also know that it is bound to follow those rules which have been established by the highest court of that state with respect to real property within its borders. De Vaughn v. Hutchison, 165 U. S. 566, 17 S. Ct. 461, 41 L. Ed. 827; Von Baumbach v. Sargent Land Co., 242 U. S. 503, 518, 37 S. Ct. 201, 61 L. Ed. 460; Rosenberger v. McCaughn (C. C. A.) 25 F.(2d) 699. And so this court looks to the real property law of Pennsylvania for guidance. Fortunately, the courts of that state when defining and measuring an equitable estate acquired by contract of purchase have left nothing in doubt. Indeed, the Pennsylvania law is the broadest and clearest law on the subject that has come to our notice. By a line) of decisions extending through a century, it has been uniformly held that on the execution of an agreement of sale, the purchaser becomes vested with a complete equitable title to the property. Richter v. Selin, 8 Serg. & R. 425 (1822). In the most recent case on the subject, that of Spratt v. Greenfield, 279 Pa. 437 (1924) 124 A. 126, the Supreme Court of Pennsylvania defined that estate by saying that: “The purchaser to all intents and purposes becomes the owner of the land; the vendor retaining title merely as trustee to seeure payment of the unpaid purchase money. * * * So much is the vendee considered, in contemplation of equity, as actually seized of the estate, that he must bear any loss which may happen to the estate between the agreement and the conveyance, and he will be entitled to any benefit which may accrue to it in the interval, because by the contract he is owner of the premises to every intent and purpose in equity.” In the intermediate case of Millville Mutual Fire Insurance Co. v. Wilgus, 88 Pa. 107 (1878), the court said: “The plaintiff’s title was an equitable one, but it nevertheless vested in him the entire unconditional and sole ownership, subject to the payment of the balance of the purchase money. This balance was practically an encumbrance. It is true the legal title was in the vendors, but they could use it only to enforce the payment of the price agreed upon.” Pennsylvania courts have consistently applied this principle to a great variety of cases arising under articles, of sale. The purchaser has, as always, the right to specific performance. He has an insurable interest in the property on which he can recover in ease of fire. Millville Mutual Fire Insurance Co. v. Wilgus, supra. Moreover, the estate of the vendee is not affected by a judgment obtained against the vendor subsequent to the signing of the contract of purchase and prior to the delivery of the deed. Gratz v. Ewalt, 2 Bin. 95 (1809). In such case a levy under the judgment cannot be made on the land but only on the unpaid purchase prie,e which is the vendor’s only interest. Fasholt v. Reed, 16 Serg. & R. 266 (1827); Patterson’s Estate, 25 Pa. (1 Casey) 71 (1855); McCleery v. Stoup, 32 Pa. Super. Ct. 42 (1906). From these authorities it is dear that by force of the contract of purchase in this case the complete equitable title to the premises passed from the Hoopes and Townsend Company to the Philadelphia Inquirer Company at the time the contract was signed subject only to the right of the vendor or its successor to demand and receive the balance of the purchase money. In the light of this law we are not concerned with the question repeatedly raised and vigorously contested — whether the delivery of the deed by the vendor to the title company pending the title search before consolidation was in eserow or a formal delivery to the vendee' through the title company as its agent, and whether, accordingly, the after-acquired property clause of the mortgage operated or did not operate, for the vendee’s rights were established not by the delivery of the deed or by the legal character of the delivery but by its contract of purchase and by the estate which local law accorded the purchaser on its execution. True, the legal title to the property remained in the vendor with the right to demand and receive the balance of the purchase price and we hold that that right is all that could and did pass on merger to the consolidated corporation. At the time of the consolidation neither the old Hoopes & Townsend Steel Company nor its mortgagees, the present appellants, had any interest whatever in the property which the Hoopes and Townsend Company, the vendor, had sold, except momentarily under the lease which the merger automatically terminated. As the consolidated corporation did not acquire any interest in the property which, Hoopes and Townsend Company had sold before the consolidation, the after-acquired property clause of the mortgage' of the old Hoopes & Townsend Steel Company could not leap back and become a lien upon property which before consolidation the Hoopes and Townsend Company had parted with. When the consolidation was effected, the property of the Hoopes and Townsend Company, one of the constituents, had gone and, as in the case of a judgment against the vendor, there was nothing on which the mortgage of the Hoopes & Townsend Steel Company could become á lien under Pennsylvania law. The legal title, as we have said, remained in the former company with the right to receive the balance of the purchase money, but, again under Pennsylvania law, it held the title solely as trustee for the Philadelphia Inquirer Company with the duty to hand it over when that company paid what remained due of the purchase money. That being the law, we are not presently concerned with what the consolidated company did with the balance of the purchase money when it got it or what thereafter were the rights of any one else in respect to it, because in this suit we are only concerned with the right of the trustees under the old Hoopes & Townsend Steel Company mortgage to assert a lien of that mortgage on property which the Hoopes and Townsend Company had parted with before the consolidation and the right of the trustees to recover by bill of foreclosure on sueh a lien against the purchaser, the Philadelphia Inquirer Company. We subscribe to the finding of the master and the District Court that the mortgage given by the old Hoopes & Townsend Steel Company to the Pennsylvania Company and Clarke does not by reason of its after-acquired property clause constitute a valid and subsisting lien on the premises in question. The only other matter that calls for discussion is raised by the assignment which charges error to the court in affirming that part of the master’s report which names his fee and in assessing the costs of the reference to the appellants. The appellants say the fee is excessive. •The character of the service is a matter in respeet to which the learned District Judge had peculiar knowledge. The master’s labors, doubtless, are not to be measured alone by the size of the record, which in itself is substantial. Moreover, the case called for and received attention of a kind that can best be' obtained from one skilled and experienced in judicial work. The fixation and allowance of compensation for such a service is a matter properly within the discretion of the trial judge who knows the ease and can appraise the work of his master much better than an appellate court on a cold review of the printed record. As we have not found that the learned trial judge abused his discretion, we are constrained, in the orderly administration of justice, not to disturb his action. The decree of the District Court is in all respects 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_timely	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Rebecca Simon WOLFSOHN, Executrix of the Estate of Joel David Wolf-solm, deceased, Appellant, v. Gregory HANKIN et al., Appellees. No. 17449. United States Court of Appeals District of Columbia Circuit. May 6, 1964. Motion for Rehearing en Banc Denied June 23, 1964. Certiorari Denied Dec. 14, 1964. See 85 S.Ct. 437. Mr. Fred I. Simon, Silver Spring, Md., for appellant. Mr. Gregory Hankin, Washington, D. C., filed pleadings pro se. Before Edgerton, Senior Circuit Judge, and Wright and McGowan, Circuit Judges, in Chambers. ORDER PER CURIAM. Whereas this court on May 29, 1963, entered a judgment dismissing the appeal in the above-entitled case, and whereas a certified copy of the judgment was issued to the District Court on September 24, 1963, and whereas the Supreme Court of the United States granted a petition for writ of certiorari to this court reversing and remanding this case for further proceedings, and appellant having filed a motion for summary reversal, and this case having been heard on the merits on the record on appeal from the United States District Court for the District of Columbia and was argued by counsel, on consideration whereof it is Ordered that the certified copy of the judgment and opinion issued to the District Court is hereby recalled, and it is Further ordered that the judgment and opinion dated May 29, 1963, 116 U.S. App.D.C. 127, 321 F.2d 393, are hereby vacated, and it is Further ordered that appellant’s motion for summary reversal is hereby denied, and it is Further ordered that the judgment of the District Court appealed from in this cause be and it is hereby affirmed, and it is Further ordered by the court that appellee Hankin recover from appellant his taxable costs on this appeal and have execution therefor. Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_usc1	35	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. PRIES v. UNION RY. EQUIPMENT CO. et al. Circuit Court of Appeals, Seventh Circuit. December 9, 1927. No. 3929. 1. Patents <§=328 — 1,172,904, for railroad car brake, held invalid for lack of invention. Fries patent, No. 1,172,904, for improvement in railroad car brake which may be lowered, so that hand wheel and appurtenances of shaft may drop to or below level of the upper surface of the floor of the car during unloading, held invalid for lack of invention. 2. Patents <3=328 — ' ,137,082, for railroad car brake, held invalid for lack of invention as to claims 1, 2, 7, 8, and valid, but not infringed, as to claims 3, 4, 5, 6, 9. Pries patent, No. 1,137,082, for railroad car brake, which may be lowered so as to bring wheel of brake on level with car floor, while the car is being loaded or unloaded, held invalid for lack of invention as to claims 1, 2, 7, and 8, and valid, but not infringed, as to claims 3, 4, 5, 6, and 9. 3. Patents <§=I29(2) — Complaint in patent Infringement suit alleging conveyance to defendant of perpetual selling rights showed mere “license” and not “assignment,” estopping defendant from denying validity of patents (35 USCA § 36). Complaint in patent infringement suit, alleging that patentee conveyed the perpetual selling rights under his patents to one of defendants, held to show that conveyance amounted to a license only, and not an assignment of the patents, within Rev. St. § 4893 (35 USCA § 36; Comp. St. § 9437), and fact that transfer from defendant to plaintiff, who was patentee’s widow, was called an assignment and that letter written by one of defendant’s officials characterized conveyance from patentee to said defendant as a “complete assignment” of the patents did not estop defendants from questioning validity of patents. Appeal frocn the District Court of the United States for the Eastern Division of the Northern District of Blinois. Patent infringement suit by Amelia Pries against the Union Railway Equipment Company and others. Decree for defendants, and plaintiff appeals. Affirmed. Louis K. Grillson, of Chicago, Ill., for appellant. Max W. Zabel, of Chicago, Ill., for appellees. Before ALSCHULER, EVANS, and ANDERSON, Circuit Judges. EVAN A. EVANS, Circuit Judge. Appellant, as the owner of patents Nos. 1,137,-082 and 1,172,904, each covering an improvement in a “Brahe Shaft,”- brought this suit against appellees, who, it is charged, were wrongfully infringing both patents. The District Court held the second patent and claims 1, 2, 7, and 8 of the first patent invalid. It held claim's 3, 4, 5, 6, and 9 of this first patent valid and infringed, but not infringed by Appellees’ Exhibit 7. The product represented by Exhibit 7 was the one which appellees were making at the time suit was begun. They did not contest infringement of an abandoned structure which they had made and sold in a very limited quantity. Appellant also argued that' appellees were estopped to deny validity of either patent because of a written contract binding both parties. The court held, however, that the contract was a license agreement which had been terminated. Patent No. 1,172,904. In the specifications the patentee said: “The object of the present invention is to provide a construction whereby the hand wheel and all of the appurtenances of the shaft may drop to or below the level of the upper surface of the floor of the car. “It has .long been the practice in unloading gravel cars to use a plow which will travel the entire length of the train, the plow being attached to the engine by a cable, the brakes being set on all of the cars and the engine being detached from the train. This practice can be followed only when the brake mechanism is so disposed that it will not obstruct the movement of the plow.” Figure 1 of the drawings is reproduced, that the language of the specification may be better understood: Of this drawing the patentee says: “The ratchet wheel, 17, is recessed in its upper face, as shown at 22, to receive the lateral offset hub portion 23, of the hand wheel 20. By offsetting the hub of the hand wheel, a downwardly extending recess 24 is provided for the reception of the projecting upper end of the shaft member 13, and a nut 25 applied thereto for securing it to the hand wheel, so that neither the rim of the wheel nor_ the upper end of the brake shaft will project above the upper face of the car floor when the shaft is not in use.” Claim No. 3, more or less typical of the seven claims of the patent, reads: “In a brake shaft, in combination, a pair of telescoping shaft members, the outer member having on its upper end a ratchet wheel provided with a recess in its upper face, a pawl co-operating with the ratchet wheel, and a hand wheel attached to the upper end oí the inner shaft member and having a downwardly offset recessed portion adapted to enter the recess in the ratchet wheel.” The asserted patentable novelty resides in the combination of a ratchet wheel recessed in its upper face and a hand wheel having a downwardly offset portion adapted to enter the recess of the ratchet wheel. Appellant, speaking of this patent, says: “This improvement consisted in centrally recessing the upper face of the ratchet wheel and offsetting downwardly the hub of the hand wheel to fit within this recess, the hand wheel being secured to the staff by means of a nut which did not project above the upper face of the wheel.” It would seem unnecessary to do moré than state our conclusion respecting this asserted advance in the art. Countersinking is an old mechanical expedient. Its adoption in a brake shaft structure, so that neither the rim of the wheel nor the front end of the brake shaft would project above the upper face of the ear floor when the shaft is not in use, does not rise to the dignity of invention. Patent No. 1,137,082. The District Court held claims 1, 2, 7, and 8 to be invalid. They read as follows: “1. In a brake shaft for railway cars, in combination, a sleeve adapted to be journaled in suitable boxes, a rod slidable in the sleeve, a hand piece carried by the rod, means for attaching a brake chain to the sleeve, and a latch pivotally carried by the sleeve for supporting the rod. “2. In a brake shaft for railway ears, in combination, a sleeve adapted to be journaled in suitable boxes, a rod slidable in the sleeve, a hand piece carried by the rod, means for attaching a brake chain to the sleeve, a ratchet wheel carried by the sleeve, a holding pawl co-operating with the ratchet wheel, and a latch pivotally carried by the sleeve for supporting the rod.” “7. In a brake mast, an operated part and an operating part adapted to be operatively connected to said operated part, said operated part having formed therein an opening for the telescopic reception of said operating part, and means pivotally mounted within said operated part adapted to support said operating part. “8. In a brake mast comprising an operated part and an operating part, one of said parts having formed therein an opening for the telescopic reception of the other of said parts and means pivotally mounted within said operated part adapted to support said operating part.” These four claims are all broader than the other claims of the patent which were sustained. In his specifications, Pries said: “The object of the invention is to provide a drop down brake shaft, that is to say, a shaft which may be lowered from service position to bring the hand wheel down to the floor of the ea,r. “The invention consists of a shaft composed of sections telescopically related, one of the sections being journaled in boxes fixed to the car and constituting the shaft drum, the other section carrying the hand wheel and being slidably mounted within the drum; means being provided for locking it in the elevated or service position.” The novel element in the combination in each claim resides in a “latch pivotally carried by the sleeve for supporting the rod.” Appellees place much reliance on the Small patent, No. 234,622. Both patents deal “with a car brake which may be lowered while the car is being loaded or unloaded so as to bring the wheel of the brake on a level with the car floor or platform so that it will not be bent or broken when the freight is being handled on or off the car.” Both structures make use of telescoped and collapsible shafts. Each is provided with a means (a catch or latch) to lock it in its elevated or service position. Whether Small anticipates Pries, or whether Pries’ means constitute invention over Small, turns upon the differences in this element. As before stated, Pries’ means consists of a “latch pivotally carried by the sleeve.” Appellees argue that Small’s combination is provided with a spring attached to a shaft member and whose lower extremity may swing inwardly or outwardly thus providing a pivotally mounted extremity which is properly a pivotally mounted catch or lateh. The outer extremity of this spring swings outwardly whenever the shaft section B is raised and thereupon prevents the shaft section B from falling down into its collapsed position.” Appellees say: “The function of this pivoted catch F of Small is exactly the same as the function of the catch 23 of the Pries patent” The only difference is that, whereas Pries’ catch is associated with what is termed the “operated part,” Small’s catch is associated with the “operating part” of the shaft. Appellant takes issue with this statement of the similarity of the two structures and says: “It is true that the leaf spring was proposed by Small and a pivoted latch was employed by Pries, for supporting this sliding element; but it is not true that they perform their functions in the same way” nor is “the assertion that the location of the latch upon the operated, instead of upon the operating, part is a mere reversal” of parts. We may the more readily reach the heart of this controversy by stating (without discussing certain propositions with the soundness of which we are satisfied) that Pries was not entitled to a claim which described means generally for supporting the sliding member of the brake staff. If there be invention at all, it resided in the particular means which he provided for supporting the slidable rod. A pivoted latch, it must be admitted, is not an unusual means to support and ordinarily does not bear the earmark of patentable novelty. But we are not inclined to accept appellees’ contention that Small’s spring anticipates Pries’ latch as described in these four claims. Nor can we say it is the mechanical equivalent of Pries’ latch. But does the use of a latch so generally described as being one “pivotally carried by the sleeve” constitute such an advance over Small’s spring eateh as to spell invention? We think not. Concede that a latch pivotally carried by the spring is not met by a spring catch, yet what would a mechanic do if the spring did not always work because of the dirt, the ice, and the snow that made successful operation difficult. Having before him the problem of providing means in the nature of a catch which would permit of the operation of two collapsible telescoping shafts, he would use a common mechanical device such as a latch or a eateh. He would relocate the eateh and mount it so that it would pivot; provided he wanted to get away from the spring. Such a mechanical expedient would be old. The use of two collapsible, telescoping parts, one of which members is called the operated part and the other the operating part, is likewise old. Our attention is called to a patent to Schoening, No. 887,701, which covered collapsible automobile wheels. It provided “means in connection with the sections for preventing rotary movement thereof with respect to each other and a locking device for locking the sections in the adjusted position.” Surely the use of a pivotal latch or a latch so located as to pivot was the mere selection of a means well known to the mechanic. ' We agree with the District Court that these claims were void for want of invention. Respecting the other five claims (3, 4, 5, 6, and 9) of this patent, the District Court held them valid, but not infringed. They are more limited in their scope than the four claims just considered. Each combination has one element which defines particularly, or locates definitely; the latch. Claim 3 describes this element thus: “And a latch for supporting the rod within the sleeve and being housed within the sleeve aperture and held m place by the bridge piece.” Claim 4 describes it thus: “And a latch for supporting the rod within the sleeve and being housed within the sleeve aperture and having a downwardly facing shoulder engageable with the bridge piece.” Claim 5 describes it thus: “An operated part, an operating part, and means pivotally and slidably mounted within said operated part for supporting said operating part.” Claim 6 describes it thus: “Means pivotally and slidably mounted within one of said parts adapted to support the other of said parts,” etc. Claim 9 describes it thus: “And means slidably and pivotally mounted within said operated part for supporting said operating part when in operative position.” Appellees’ eateh is not so located nor so constructed. If the claims are to be strictly construed, infringement does not appear. In view of 'the emphasis that must be given to the specific form of catch in order that the claim may be upheld, we cannot give its language a wide range of equivalency. We conclude, therefore, that claims 3, 4, 5, 6, and 9 are not infringed. Estoppel. — Contending that the appellees were once the owners of the patent, appellant denies its adversary right to question the validity of the patent. In support of this position appellant introduced a so-called assignment from appellees to appellant, also a letter, the effective portions of which read as follows : “I note, however, you mention Mr. Pries’ patents and in this connection, beg to sáy that Mr. Pries made a complete assignment of the. patents which were issued prior to his death also any patents that might be issued to him in the future, to this company and in return for this he received a certain amount of stoek, consequently, all of these patents, subject to shop rights held by Haskell & Barker Car Company, are controlled by our company.” The assignment from one of the appellees to appellant recited that it “sold, assigned, and transferred and does hereby sell, assign and transfer unto Amelia Pries * * * any and all rights, title, and interest, it has or may have in and to the inventions and patents enumerated below, including any and all sales, licenses, or other rights which it has or may have therein.” There were some 46 patents described in this assignment including the 2 here under consideration. Because the instrument was described as an assignment, appellant argues that appellees sold the patents in question. But the word “assignment” would apply to the sale of a license or to certain rights in and to a patent as well as to the patent. The expression “complete assignment of the patent,” as used in the letter, is more descriptive; but, in view of the transaction to which the letter referred, we cannot accept appellant’s construction of this letter, and say it irrevocably commits appellees to the position of having purchased the patent. Appellant argues that because the transfer from appellee to Mrs. Pries, the widow of patentee, was called an assignment and the letter offered in evidence and written by an official of one of the appellees speaks of a complete assignment, the court is compelled to find that appellees were at one time the owners of the patent and later sold it to appellant. It is unfortunate that the agreement of December, 1912, was not offered in evidence. The embarrassment under which appellees labor would be thereby avoided. However, we think the complaint and the answer establish the character of the interest the patentee conveyed. We quote from the complaint: “Plaintiff further represents that by an arrangement entered into by and between the said Herman Pries and Union Railway Equipment Company (a corporation of South Dakota), and consummated by an instrument in writing on the 3d day of December, 1912, the said Herman Pries conveyed to the said corporation the perpetual selling rights under patents owned and controlled by him, and relating to railway devices, and including all patents on inventions relating to such devices which he might subsequently make, such conveyance being in consideration of the sum of fifty thousand dollars ($50,-000), to be paid in a like amount of the preferred and common stoek of said corporation, which stoek was in due time 'issued to and held by him; and such conveyance was recognized by both parties thereto as including the right of manufacture, which right was exercised by the said Union Railway Equipment Company (a corporation of South Dakota) thereafter.” The learned District Judge we think properly described the relationship of the parties when he said: “It is perfectly obvious that the transfer by Herman Pries to the Union Railway Equipment Company of the perpetual selling rights, and adding to that what is averred in the answer, the right to manufacture (something which is not in the document itself) amounted to a lieepse only, and did not constitute an assignment of the patents within the meaning of the patent law. It is only necessary to refer in that connection to the leading case of Waterman v. Mackenzie, 138 U. S. 252 [11 S. Ct. 334, 34 L. Ed. 923]. * * * The ease states the tests to be applied in determining whether a document is an assignment or a license and whether the transferee is entitled to sue for infringement, or the suit must be brought by the original patentee. Again, in Crown Company v. Nye Tool & Machine Works, 261 U. S. 24 [43 S. Ct. 254, 67 L. Ed. 516], there is a review of the eases. * * * “Starting out with the proposition that this basic document in the case is not an assignment within the meaning of the Patent Law, but is a license, then this paper of the 10th of June, 1919, in which the plaintiff here is named as the assignee, was in effect a surrender of a license. It must be borne in mind that this transferee in the papel of the 10th of June, 1919, is the one who had acquired the legal title to the patent as devisee under the will of Herman Pries. In this paper of the 10th of June, 1919, the company did not undertake to transfer to Amelia Pries more than it had received by the transfer from Herman. There is no claim that the company had any interest of any kind in these patents except that which had been received by the transfer from Herman Pries. The writing, then, though it is designated as an assignment, is not an assignment of an interest in a patent within the meaning of section 4893 of the Revised Statutes [35 USCA § 36; Comp. St. § 9437].” The relationship between these parties having been that of a licensor and licensee which relationship terminated prior to the alleged infringement, appellees are not es-topped to attack the validity of the patent. The decree is affirmed. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_r_fed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. AUTOMATED BUILDING COMPONENTS, INC., Appellant, v. HYDRO-AIR ENGINEERING, INC., Appellee. HYDRO-AIR ENGINEERING, INC., Appellant, v. AUTOMATED BUILDING COMPONENTS, INC., Appellee. Nos. 17985, 18103, 18104, 18004, 18105. United States Court of Appeals Eighth Circuit. July 7, 1966. Robert E. LeBlanc, of LeBlanc & Shur, Washington, D. C., for Automated Building Components, Inc., Henry Shur, of LeBlanc & Shur, Washington, D. C., and Estill E. Ezell, of Kingsland, Rogers, Ezell, Eilers & Robbins, St. Louis, Mo., were with him on the brief. Stuart N. Senninger and Donald G. Leavitt, of Koenig, Senninger, Powers & Leavitt, St. Louis Mo., for Hydro-Air Engineering, Inc., and filed brief. Before VOGEL, Chief Judge, BLACK-MUN, Circuit Judge, and STEPHENSON, District Judge. VOGEL, Chief Judge. Automated Building Components, Inc. (hereafter Automated), the assignee of the entire interest in United States Letters Patent No. 2,877,520 (hereafter the Jureit Patent), has appealed from the District Court’s determination that Claims 1, 3 and 4 of the Jureit Patent are invalid because of being obvious to a person having' ordinary skill in the art to which the claims pertain and also because of having been anticipated by the prior art. This determination effectively curtails a patent infringement action brought on the Jureit Patent by Automated against Hydro-Air Engineering, Inc. (hereafter Hydro-Air). Hydro-Air itself appeals from a dismissal of its counterclaim against Automated for treble damages under the Clayton Act, 38 Stat. 731, 15 U.S.C.A. § 15. Hydro-Air’s counterclaim is based on allegations of patent misuse and antitrust law violations by Automated through the use of illegal tying agreements entered into between Automated and its customers. Without deciding if there were such antitrust violations, Judge Regan determined that Hydro-Air proved no damages so as to be entitled to recover under the Clayton Act. Certain procedural questions are also involved on these appeals. The District Court’s opinion, published at 237 P.Supp. 247, sets out the facts of these cases in sufficient detail so as to make any further statement unnecessary. With a few additional comments, we affirm the District Court on the basis of Judge Regan’s opinion. See, also, Automated Bldg. Components, Inc. v. Structomatic, Inc., Civil No. 61 C 262, N.D.Ill, March 25, 1965, an unreported case which also holds Claims 1, 3 and 4 of the Jureit Patent invalid in law. § 103 of the Patent Act of 1952 provides as follows, at 66 Stat. 798, 35 U.S.C.A. § 103: “A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” The Supreme Court recently rendered its first patent decisions since the enactment of the Patent Act of 1952 in the cases of United States v. Adams, 1966, 383 U.S. 39, 86 S.Ct. 708, 15 L.Ed.2d 572, and Graham v. John Deere Co., 1966, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545. Mr. Justice Clark interpreted § 103 in the Graham case, at 383 U.S. 14, 86 S. Ct. 692, 15 L.Ed.2d 554, as follows: “The section is cast in relatively unambiguous terms. Patentability is to depend, in addition to novelty and utility, upon the ‘non-obvious’ nature of the ‘subject matter sought to be patented’ to a person having ordinary skill in the pertinent art.” At page 252 of 237 F.Supp. Judge Regan stated, in regard to the Jureit Patent: “ * * * It was not only obvious to one skilled in the art in 1956 and within the ordinary skill of a worker in the nailing art to modify nail-like fasteners to vary withdrawal resistance but was actually demonstrated in prior art patents, i. e., Kalischer and Berth-aud. Without going into what is obvious to this Court but by way of illustration it certainly does not take inventive genius to make joints with plates differing from the French connector plates only in that the Jureit plates have nails struck out from the plate instead of being welded to the plate as shown by Berthaud. “This Court finds that substantial evidence has been introduced attacking the validity of the Jureit claims and that defendant has overcome the presumption of .validity by showing that the subject matter of Jureit’s Claims 1, 3, and 4 as a whole was obvious, at the time the alleged invention occurred, to a person having ordinary skill in the art to which the Claims pertain.” From a careful reading of the entire record we agree with Judge Regan’s conclusion. His opinion, not being clearly erroneous, is conclusive on appeal. Steffan v. Weber Heating & Sheet Metal Co., 8 Cir., 1956, 237 F.2d 601, 602; Trico Products Corp. v. Delman Corp., 8 Cir., 1950, 180 F.2d 529, 530. Though drafted before Graham and Adams, the opinion clearly follows the dictates of § 103, as interpreted by the Supreme Court, in discussing a proper standard of invention. Automated’s allegations questioning the qualification of Hydro-Air’s expert witness, Donald A. Fischer, the Dean of the School of Engineering at Washington University, to testify as to the art here involved, clearly must relate to credibility rather than to the admissibility of Fischer’s testimony, since the trial court has determined that Fischer qualified as an expert witness. See, generally, 2 Wigmore, Evidence, § 561 (3d Ed. 1940), as supplemented, and the authorities cited therein. Automated challenges the right of Hydro-Air to appeal on the denial of its counterclaim since Hydro-Air did not present a timely appeal thereon after the entry cf judgment by the District Court on December 14, 1964. Hydro-Air’s appeal was perfected only after Judge Regan vacated the initial judgment and purported to reenter it on June 4, 1965, under Rule 60(b) of the Fed.Rules of Civ. Proc., 28 U.S.C.A., on the grounds that counsel for Automated violated an oral agreement entered into with counsel for Hydro-Air. Such agreement allegedly provided that Automated would not appeal on its infringement claim if Hydro-Air would not appeal on its counterclaim. Automated filed an appeal at the last possible moment, thus leaving Hydro-Air no time to perfect its own appeal. While we have serious doubts concerning the jurisdiction of the District Court to grant the re-entry of judgment once an appeal had been taken by Automated, we do not deem it necessary to rule on this point since on the basis of the record, as ably interpreted in Judge Regan’s opinion, Hydro-Air’s counterclaim must fail in any event. A viewing of the record as a whole can yield no logical or reasonable inference that Hydro-Air’s damage, if any, was caused by patent misuse or antitrust violations, if any, on the part of Automated. These cases are in all things affirmed. . As provided in the Clayton Act, 38 Stat. 731, 15 U.S.C.A. § 15: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” . The amended Rule 73(a) (3) of the Fed. Rules of Civ.Proc., effective July 1, 1966, prevents this situation from arising as it gives “any other party” 14 additional days to file an appeal after the first notice of appeal is filed. . See, e. g., Janousek v. Doyle, 8 Cir., 1963, 313 F.2d 916, 920. But cf. Oliver v. City of Shattuck ex rel. Versluis, 10 Cir., 1946, 157 F.2d 150. 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_appnatpr	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Willie Ray JACKSON, Defendant-Appellant. No. 88-5204. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 16, 1988. Decided Sept. 29, 1988. Mark F. Adams, San Diego, Cal., for defendant-appellant. Michael J. Dowd, Asst. U.S. Atty., Criminal Div., San Diego, Cal., for plaintiff-ap-pellee. Before NORRIS, HALL and KOZINSKI, Circuit Judges. PER CURIAM: The district court refused to sentence the appellant pursuant to the Sentencing Reform Act of 1984 (SRA), Pub.L. No. 98-473, tit. II, ch. II, 98 Stat.1987 (codified as amended at 18 U.S.C. §§ 3551-3742 and 28 U.S.C. §§ 991-998 (Supp. IV 1986)), sentencing him, instead, according to prior law. The district court did, however, place the appellant on supervised release for a period of one year following release from prison, as provided in the SRA, 18 U.S.C. § 3583 (Supp. IV 1986). We subsequently held the Sentencing Reform Act to be unconstitutional. Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir.1988). The only issue this appeal presents is whether the SRA’s supervised release provision is severable from the rest of the Act. We hold that it is not. The Act introduced a comprehensive revision of post-custodial supervision, abolishing parole and substantially curtailing the availability of good time credits. Gubiensio, at 1247. In Gubiensio, we considered the severability of the provision relating to good time credits and concluded: “Congress having chosen a ‘comprehensive’ approach to making sentencing more determinate, we will not sever companion sections of the guidelines system that would introduce piecemeal reforms.” Id. at 1268. We reach the same conclusion as to the supervised release provision. Severing the provision would leave in place two competing systems of post-custodial supervision — parole and probation under pre-SRA law and supervised release under the SRA. The simultaneous availability of both systems would be senseless. Accordingly, we vacate appellant’s sentence and remand for resentencing in light of Gubiensio and this opinion. The mandate shall issue immediately. Fed.R.App.P. 2. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
sc_partywinning	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. UNITED STATES et al. v. BENMAR TRANSPORT & LEASING CORP. et al. No. 78-1602. Decided October 15, 1979 Per Curiam. This case is here on certiorari to the United States Court of Appeals for the Second Circuit, which set aside an order of the Interstate Commerce Commission authorizing respondent Consolidated Truck Service, Inc., to begin contract carrier service in competition with respondent Benmar Transport & Leasing Corp. The order, issued October 5, 1977, was defective because it lacked the statutorily required finding that it was consistent “ 'with the public interest and with the national transportation policy' [§ 210] of the Interstate Commerce Act, 49 U. S. C. § 310 [now 49 U. S. C. § 10930 (a) (1976 ed., Supp. II)].” Benmar Transport & Leasing Corp. v. ICC, 582 F. 2d 246, 248 (1978). The case was argued in the Court of Appeals on July 17, 1978, and decided August 16, 1978. In reaching its decision, the Court of Appeals refused to consider two subsequent Commission orders that remedied the defect. The first of these orders, issued with the consent of all interested parties almost six months before oral argument in the Court of Appeals, reopened the administrative proceedings and made the finding required by 49 U. S. C. § 310. The second, issued on April 18, 1978, denied respondent Benmar’s petition for administrative review of the former order. This denial became the Commission’s final administrative order and had the effect of reaffirming its earlier decision to grant Consolidated’s application for a contract carrier permit. Although the question briefed by the parties in the Court of Appeals was whether the order of April 18, 1978, was supported by the evidence, the Court of Appeals declined to examine the question on the ground that the only order properly before it was the defective order of October 5, 1977. It thus vacated the order and remanded the case for further proceedings. We grant the petition of the United States and the Commission and reverse the judgment of the Court of Appeals. In American Farm Lines v. Black Ball Freight Service, 397 U. S. 532 (1970), this Court held that the Commission’s broad powers to “reverse, change, or modify” its decisions “are plainly adequate to add to the findings or firm them up as the Commission deems desirable, absent any collision or interference with the District Court.” Id., at 541. (The applicable statute then provided for review of orders of the Commission by a three-judge District Court, rather than by the Court of Appeals.) Here the Commission’s action did not interfere in any manner with the proceedings in the Court of Appeals, and the Commission acted before that court was ready to hear arguments on the merits and before it received the record. All parties concurred in the Commission’s decision to reopen the proceedings and to hold judicial review in abeyance pending the Commission’s final disposition of Ben-mar’s petition for administrative review. The position of the parties — both those who prevailed and those who lost before the Commission — is convincingly demonstrated by the fact that no party has filed a brief in support of the decision reached by the Court of Appeals. As the Court said in American Farm Lines, supra, “[t]he concept ‘of an indivisible jurisdiction which must be all in one tribunal or all in the other may fit’ some statutory schemes, . . . but it does not fit this one.” 397 U. S., at 541. After the abolition of the “forms of action” in the early common law, it was said that “[t]he forms of action we have buried, but they still rule us from their graves.” F. Maitland, The Forms of Action at Common Law 2 (1936). Orderly rules of procedure are necessary in order that appellate review may be had of agency findings, but empty formalities devoid of either substantive or procedural benefit have no place in the normal scheme for administrative review unless Congress chooses to place them there. Here Congress has quite clearly not chosen to impose such virtually meaningless requirements as the Court of Appeals insisted upon. The judgment of the Court of Appeals is inconsistent with the spirit which animated American Farm Lines v. Black Ball Freight Service, supra, and is therefore Reversed. The dissenting opinion makes the bald statement that “[t]he ICC simply ignored the time limits established by the Court of Appeals and thereby prevented judicial review altogether. The Court of Appeals was not ready to hear argument and had not received the record solely because the ICC did not deign to comply with the scheduling orders of the court.” The opinion of the Court of Appeals, Benmar Transport & Leasing Corp. v. ICC, 582 F. 2d 246 (1978), lends no support to this statement. Respondent Benmar petitioned the court to set aside the Commission’s order but consented along with other interested parties to the reopening of the Commission proceedings before the record had been filed with the Court of Appeals or oral argument heard by that court. After the Commission completed these proceedings, it issued its final order of April 18,11978 — an order which was reviewable by the Court of Appeals pursuant to 28 U. S. C. §§ 2341-2349. The Court of Appeals thus was not deprived of its jurisdiction over this dispute. Rather, for no apparent reason other than to insist that the parties comply with an “empty formality,” the Court of Appeals stated in its opinion that “when an agency seeks to reconsider its action, it should move the court to remand or to hold the case in abeyance pending reconsideration by the agency.” 582 F. 2d, at 248. If such action were necessary in order to avoid genuine interference “in any manner with the proceedings in the Court of Appeals,” supra, at 5, we would have a different case. But since we conclude that there was no such interference, the mere fact that application for reopening was not made to the Court of Appeals was not fatal when all interested parties consented to such reopening. See American Farm Lines v. Black Ball Freight Service, 397 U. S. 532 (1970). 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_numresp	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JONES PACKING COMPANY, Respondent. No. 17934. United States Court of Appeals Sixth Circuit. June 21, 1968. Joseph A. Yablonski, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Gary Green, Marsha Swiss, Attys., N. L. R. B., Washington, D. C., on brief, for petitioner. Joseph A. Yocum, Evansville, Ind., Arthur R. Donovan, Harry P. Dees, Joseph A. Yocum, Evansville, Ind., on brief; Kahn, Dees, Donovan & Kahn, Evansville, Ind., of counsel, for respondent. Before WEICK, Chief Judge, and PHILLIPS and EDWARDS, Circuit Judges. PER CURIAM. On review of this entire record, this court finds substantial evidence to support the findings of § 8(a) (1) and § 8 (a) (5) violations of the National Labor Relations Act, 29 U.S.C. § 158 (1964). NLRB v. Winn-Dixie Stores, Inc., 341 F.2d 750 (6th Cir.), cert. denied, 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74 (1965) ; NLRB v. Cumberland Shoe Corp., 351 F. 2d 917 (6th Cir. 1965); NLRB v. Delight Bakery, Inc., 353 F.2d 344 (6th Cir. 1965). Enforcement of the Board’s order is granted. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_respond1_1_3	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the 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. Gemeral Earnest BERRY, Jr., Plaintiff-Appellant, v. CIGNA/RSI-CIGNA, Defendant-Appellee. No. 92-1316 Summary Calendar. United States Court of Appeals, Fifth Circuit. Oct. 29, 1992. C. Victor Lander, Lander and Associates, P.C., Dallas, Tex., for plaintiff-appellant. Walter C. Davis, III, Walter Davis & Associates, Dallas, Tex., for defendant-ap-pellee. Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges. EMILIO M. GARZA, Circuit Judge: Plaintiff, Gemeral Earnest Berry, Jr., brought an employment discrimination suit against his employer, CIGNA/RSI-CIGNA (“Cigna”). Berry appeals the district court’s sua sponte order dismissing his suit for failure to prosecute. Finding that the district court abused its discretion by dismissing Berry’s suit, we reverse and remand. I Gemeral Earnest Berry, Jr., an African-American employee of Cigna, filed an employment discrimination complaint with the Equal Employment Opportunity Commission (“EEOC”), alleging that after being promoted, Cigna paid him less than white employees holding identical positions, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981. On June 26, 1991, Berry received a right-to-sue letter from the EEOC. The ensuing litigation proceeded as follows: 1. On September 23, 1991, Berry filed a Title VII and § 1981 suit against Cigna in federal district court. 2. On October 1, 1991, Berry filed his first amended complaint. 3. On October 28, 1991, Cigna filed a motion to dismiss Berry’s § 1981 claim. On November 8, 1991, Berry filed an opposition to Cigna’s motion to dismiss. On November 26, 1991, the district court granted Cigna’s motion to dismiss. 4. On December 6, 1991, Berry filed a motion for reconsideration concurrently with a motion to amend his original complaint. Cigna replied to Berry’s motion for reconsideration on January 3, 1992. 5. On January 6, 1992, Berry moved for leave to file a second amended complaint. On that same day, the district court denied Berry’s motion for reconsideration. On January 29, 1992, the district court denied Berry’s motion to file a second amended complaint. On March 17, 1992, the district court dismissed Berry’s complaint (consisting now of the Title VII claim only), without prejudice and without notice, because Berry had failed to move for default judgment against Cigna. The district court’s order for dismissal cited Rule 3.1(h), Local Rules for the United States District Court for the Northern District of Texas, (“Local Rule 3.1(h)”) which directs the district court to dismiss an action summarily if a plaintiff fails to move for default judgment after a defendant is in default for ninety days. On March 20, 1992, Berry filed a motion to reinstate his suit. The district court denied the motion, stating that the dismissal was proper under Local Rule 3.1(h), and that Berry had failed to show why the rule should not apply to his case. Berry appeals the district court’s dismissal of his Title VII suit against Cigna. II A dismissal for failure to file a motion for default judgment is equivalent to a dismissal for failure to prosecute. See Williams v. Brown & Root, Inc., 828 F.2d 325, 326-27 (5th Cir.1987) (dismissal of plaintiff’s suit for failure to file a motion for default judgment, as required by local rule, treated as dismissal for failure to prosecute). Furthermore, we treat the dismissal of Berry’s suit for failure to prosecute as an involuntary dismissal under Fed.R.Civ.P. 41(b). See Boudwin v. Graystone Ins. Co., 756 F.2d 399, 400 n. 1 (5th Cir.1985) (where district court dismissed plaintiff’s suit for failure to prosecute, this Court on appeal treated the dismissal as an involuntary dismissal under Fed.R.Civ.P. 41(b)). Rule 41(b) allows the district court to dismiss an action upon the motion of a defendant, or upon its own motion, for failure to prosecute. Morris v. Ocean Sys tems, 730 F.2d 248, 251 (5th Cir.1984); Rogers v. Kroger Co., 669 F.2d 317, 319-20 (5th Cir.1982). This authority is based on the “courts’ power to manage and administer their own affairs to ensure the orderly and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962). Berry argues that (1) he is time-barred from reasserting a Title VII claim against CIGNA, and (2) because he is time-barred from bringing another Title VII suit, we should treat the dismissal without prejudice as if it were a dismissal with prejudice. A civil action under Title VII must be brought within ninety days of receipt of a right-to-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f); Price v. Digital Equip. Corp., 846 F.2d 1026, 1027 (5th Cir.1988). If a Title VII complaint is timely filed pursuant to an EEOC right-to-sue letter and is later dismissed, the timely filing of the complaint does not toll the ninety-day limitations period. See Digital Equip. Corp., 846 F.2d at 1027 (where plaintiffs Title VII suit had been dismissed for failure to prosecute, ninety-day limitations period had not been tolled by timely filing of Title VII suit, and second Title VII lawsuit was time-barred). Consequently, we conclude that Berry is time-barred from reasserting a Title VII claim against Cigna. We also agree that we should treat the dismissal of Berry’s case as a dismissal with prejudice. “Where further litigation of [a] claim will be time-barred, a dismissal without prejudice is no less severe a sanction than a dismissal with prejudice, and the same standard of review is used.” McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 556 (5th Cir.1981); see also Williams, 828 F.2d at 329; Boazman v. Economics Lab., Inc., 537 F.2d 210, 213 (5th Cir.1976). We review a dismissal with prejudice for failure to prosecute for abuse of discretion. Price v. McGlathery, 792 F.2d 472, 474 (5th Cir.1986); Callip v. Harris County Child Welfare Dept., 757 F.2d 1513, 1519 (5th Cir.1985). A dismissal with prejudice “ ‘is an extreme sanction that deprives the litigant of the opportunity to pursue his claim.’ ” Callip, 757 F.2d at 1519 (quoting McGowan, 659 F.2d at 556); see also McGlathery, 792 F.2d at 474. Consequently, this Court has limited the district court’s discretion in dismissing cases with prejudice. McGlathery, 792 F.2d at 474; Callip, 757 F.2d at 1519. We will affirm dismissals with prejudice for failure to prosecute only when (1) there is a clear record of delay or contumacious conduct by the plaintiff, and (2) the district court has expressly determined that lesser sanctions would not prompt diligent prosecution, or the record shows that the district court employed lesser sanctions that proved to be futile. Callip, 757 F.2d at 1519-21; McGlathery, 792 F.2d at 474; Boudwin, 756 F.2d at 401; Morris, 730 F.2d at 252. Additionally, in most cases where this Court has affirmed dismissals with prejudice, we found at least one of three aggravating factors: “(1) delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct.” McGlathery, 792 F.2d at 474; see also Callip, 757 F.2d at 1529. Applying the standards pertaining to Fed.R.Civ.P. 41(b) to this case, we find that the district court abused its discretion by involuntarily dismissing Berry’s suit for failure to prosecute. The order of dismissal for failure to prosecute does not contain express findings upon which the dismissal was based. It merely states that the case was being dismissed because Berry had failed to move for default judgment against Cigna. Furthermore, nothing in the record indicates a clear record of delay or contumacious conduct. In fact, the record contains no evidence showing significant periods of total inactivity.” See Morris, 730 F.2d at 252. In addition, there is no evidence that the district court determined that lesser sanctions would be appropriate. Neither does the record contain any of the aggravating factors discussed in McGlathery. The district court apparently dismissed Berry’s lawsuit merely because of Berry’s failure to file a motion for default judgment. Because this does not amount to a clear record of delay or contumacious conduct, and because there has been no showing of the futility of lesser sanctions, we hold that the district court abused its discretion in involuntarily dismissing Berry’s case for failure to prosecute. Ill For the foregoing reasons, we REVERSE the judgment of the district court and REMAND for further proceedings. . Cigna was in default because it had not yet filed an answer to Berry’s Title VII complaint. . Local Rule 3.1(h) provides: Where a defendant has been in default for a period of 90 days, but plaintiff has failed to move for default judgment, the action will be summarily dismissed as to that defendant, without prejudice and without notice. . Berry argues that the district court should have applied Fed.R.Civ.P. 55(a) rather than Local Rule 3.1(h). Rule 55(a) only authorizes the court to enter a default judgment against a defendant who fails to file pleadings; it does not state whether a court may dismiss a case where the plaintiff fails to file a motion for default judgment. Because Fed.R.Civ.P. 41(b) governs involuntary dismissals for failure to prosecute, we consult decisions applying Rule 41(b). .Fed.R.Civ.P. 41(b) provides: Involuntary Dismissal: Effect Thereof.... For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or any claim against the defendant. . A clear record of delay is found where there have been " 'significant periods of total inactivity.’ ” Morris, 730 F.2d at 252. . Generally, where a plaintiff has failed only to comply with a few court orders or rules, we have held that the district court abused its discretion in dismissing the suit with prejudice. See, e.g., Morris v. Ocean Systems, 730 F.2d 248, 252 (5th Cir.1984) (no clear record of delay or contumacious conduct where counsel failed twice to comply with court-imposed deadlines requiring counsel to notify court of plaintiff’s rejection of settlement offers), Burden v. Yates, 644 F.2d 503, 504-05 (5th Cir.1981) (no clear record of delay or contumacious conduct where counsel failed to file three documents on time); McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 556-58 (5th Cir.1981) (no clear record of delay or contumacious conduct where counsel failed to comply with scheduling and other pretrial orders); Silas v. Sears, Roebuck & Co., 586 F.2d 382, 384-85 (5th Cir.1978) (no clear record of delay or contumacious conduct where counsel failed to answer interrogatories, failed to confer with defendant on pretrial order, and failed to appear at a pretrial conference). On the other hand, where a plaintiff has failed to comply with several court orders or court rules, we have held that the district court did not abuse its discretion in involuntarily dismissing the plaintiffs suit with prejudice. See, e.g., Price v. McGlathery, 792 F.2d 472, 474-75 (5th Cir.1986) (clear record of delay and contumacious conduct where counsel failed to file pretrial order, failed to appear at a pretrial conference, and failed for almost a year to certify that he would comply with the district court’s order); Callip v. Harris County Child Welfare Dept., 757 F.2d 1513, 1515-17, 1521 (5th Cir.1985) (clear record of delay or contumacious conduct where counsel failed to comply with nine deadlines imposed by the rules of procedure or by orders of the court). . In Williams, the district court dismissed the plaintiffs case pursuant to a local rule — similar to the local rule at issue here — which required the plaintiff to file a motion for default judgment within 60 days after the defendant defaulted. See Williams, 828 F.2d at 326-27. On appeal, this Court stated that the local rule apparently allowed the district court to dismiss a case where the plaintiff merely failed to move for a default judgment. See id. at 329. The Court stated that, "without other evidence of delay and without the consideration of lesser sanctions, such an application of [the local rule] would not meet the involuntary dismissal standards [of Fed.R.Civ.P. 41(b) ].” Id. 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_circuit	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PEPSI-COLA DISTRIBUTING COMPANY OF KNOXVILLE, TENNESSEE, INC., Respondent. No. 79-1314. United States Court of Appeals, Sixth Circuit. Argued Feb. 2, 1981. Decided May 1, 1981. Elliott Moore, Deputy Associate Gen. Counsel, John Ferguson, Joseph Norelli, N.L.R.B., Washington, D. C., Curtis L. Mack, Director, Region 10, N.L.R.B., Atlanta, Ga., for petitioner. J. W. Alexander, Jr., Blakeney, Alexander & Machen, Charlotte, N. C., for respondent. Before EDWARDS, Chief Judge, BROWN, Circuit Judge, and BATTISTI, District Judge. Honorable Frank J. Battisti, Chief Judge, United States District Court for the Northern District of Ohio, sitting by designation. EDWARDS, Chief Judge. The National Labor Relations Board petitions for enforcement of its order entered April 13, 1979, reported at 241 NLRB No. 136. Pepsi-Cola Distributing Company of Knoxville, Tennessee, Inc. purchased a distributorship previously owned and operated by Hartman Beverage Company. For a considerable number of years, Hartman had paid its route salesmen a year-end bonus calculated at one cent per case sold by individual route salesmen during the previous year. The bonus was paid annually approaching the Christmas season and had been so paid before the union, Teamsters Local Union No. 519, negotiated a one year contract, effective November 27, 1975. At the time of these negotiations, no mention was made of the year-end bonus for route salesmen but Hartman paid the bonus in late 1975. The following year, Hartman and the union executed another contract and the bonus was discussed but no reference to it was put in the labor management contract. During the year 1976, respondent Pepsi-Cola Distributing Company purchased Hartman’s business without actual knowledge of the Hartman practice of paying a one cent a case bonus to its salesmen. While the new ownership became effective February 1,1977, and the management told the route salesmen that there would be no change in pay structure, the record indicates that the new management did not become aware of the bonus until some time in May. Respondent did not discuss the matter with the union or with its route salesmen until some of them began asking about the bonus, at which time General Manager Moore reviewed Hartman’s payroll records and found that Hartman had paid its route salesmen the full rate due under the contract and that the one cent per case bonus was paid in addition to wages under the contract. At that point, Moore informed the route salesmen that he would not pay the year-end bonus. On complaint filed by the General Counsel alleging that the company had violated Section 8(a)(5) and (1) of the National Labor Relations Act by unilaterally withholding the 1977 bonus, the Administrative Law Judge who heard this case initially found that the Christmas bonus “was essentially part of [the route salesmen’s] employment as distinguished from being in nature a gift or gratuity” and that the employer was under a duty to negotiate with the union prior to effecting any change therewith, citing NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962); Leeds & Northrup Co. v. NLRB, 391 F.2d 874 (3rd Cir. 1968), unless the union had previously waived its bargaining rights. On his analysis, the ALJ concluded that the waiver clause in the contract previously signed by Hartman with the union served to relieve the successor Pepsi-Cola Distributing Company of any obligation to continue the bonus or to negotiate with the union in relation to discontinuing it in advance of doing so even though the ALJ acknowledged “that employees hired after respondent’s takeover were told that their pay and conditions would remain the same.” In this respect, the ALJ relied upon Bancroft-Whitney Co., Inc., 214 NLRB 57 (1974). On review by the NLRB, a three-member panel thereof held that the Bancroft-Whitney decision was not determinative in relation to this case. Its reasoning concerning Bancroft-Whitney bears quotation here: ... the Board found that the union had clearly waived any right to bargain about the payment of an annual wage dividend during the contract’s duration. In that case, bargaining was extensive and the contract contained a clear and specific provision that “all wages and other benefits to be received are contained in this agreement.” The law is settled that the right to be consulted concerning unilateral changes in terms of employment is a right given by statute and not one obtained by contract and that, in order to establish a waiver of a statutory right, there must be a showing of a clear relinquishment of the right. Whether there has been a clear relinquishment of the right is to be decided on the facts and circumstances surrounding the making of the contract. Having considered all the circumstances herein, we conclude that there has been no showing that the Union relinquished its statutory right to bargain over the year-end bonus. The Board thereupon ordered respondent to cease and desist from “unilaterally without notification of or consultation with the union discontinuing its past practice of conferring upon its route salesmen a year-end bonus” and required the respondent to pay the 1977 year-end bonus and to bargain collectively in relation to any change of practice concerning it. While this case is not beyond dispute, we conclude that the union had a statutory right to be consulted about changes in relation to the bonus paying practices before it was discontinued and that the Board’s order is consistent with Section 8(d) of the Act which requires the parties to “confer in good faith with respect to wages, hours and other terms and conditions of employment.” In the unanimous decision in NLRB v. Katz, supra, the opinion for the court said as follows: The duty “to bargain collectively” enjoined by § 8(a)(5) is defined by § 8(d) as the duty to “meet ... and confer in good faith with respect to wages, hours, and other terms and conditions of employment.” Clearly, the duty thus defined may be violated without a general failure of subjective good faith; for there is no occasion to consider the issue of good faith if a party has refused even to negotiate in fact—“to meet . .. and confer”— about any of the mandatory subjects.10 A refusal to negotiate in fact as to any subject which is within § 8(d), and about which the union seeks to negotiate, violates § 8(a)(5) though the employer has every desire to reach agreement with the union upon an over-all collective agreement and earnestly and in all good faith bargains to that end. We hold that an employer’s unilateral change in conditions of employment under negotiation is similarly a violation of § 8(a)(5), for it is a circumvention of the duty to negotiate which frustrates the objectives of § 8(a)(5) much as does a flat refusal.11 10 See, e. g., Labor Board v. Allison & Co., 165 F.2d 766 (6 Cir. 1948). 11 Compare Medo Corp. v. Labor Board, 321 U.S. 678, 64 S.Ct. 830, 88 L.Ed. 1007; May Department Stores v. Labor Board, 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145; Labor Board v. Crompton-Highland Mills, 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320. In Medo, the Court held that the employer interfered with his employees’ right to bargain collectively through a chosen representative, in violation of § 8(1), 49 Stat. 452 (now § 8(a)(1)), when it treated directly with employees and granted them a wage increase in return for their promise to repudiate the union they had designated as their representative. It further held that the employer violated the statutory duty to bargain when he refused to negotiate with the union after the employees had carried out their promise. May held that the employer violated § 8(1) when, after having unequivocally refused to bargain with a certified union on the ground that the unit was inappropriate, it announced that it had applied to the War Labor Board for permission to grant a wage increase to all its employees except those whose wages had been fixed by “closed shop agreements.” Crompton-Highland Mills sustained the Board’s conclusion that the employer’s unilateral grant of a wage increase substantially greater than any it had offered to the union during negotiations which had ended in impasse clearly manifested bad faith and violated the employer’s duty to bargain. 369 U.S. at 742-743, 82 S.Ct. at 1111-1112. The dissent in this case relies upon NLRB v. Southern Materials Co., 447 F.2d 15 (4th Cir. 1971). There on somewhat similar facts, enforcement of a Board order to pay Christmas bonuses was denied. In that case, however, the bonuses were small and consistent with being Christmas gifts, as opposed to part of regular compensation. In our instant case, Pepsi-Cola had assured employees that their compensation would be the same as it had been under the Hartman administration. Additionally, it appears clear to us that the year-end payments were not mere bonuses, but were a regularly calculated part of the route salesmen’s compensation, based upon a formula of one cent per case. Thus, what we deal with here, as opposed to Southern Materials, is a unilateral management change of one of the fundamental issues of collective bargaining; namely, wages. On this record, where a successor employer has promised to continue previously established compensation, a general waiver clause, which does not refer specifically to waiver of a portion of the promised compensation, should not be regarded as a clear and unmistakable waiver of the union’s right to collective bargaining. The petition of the Board to enforce its order is hereby granted. McDonnell Douglas Corporation, 224 NLRB 881, 887 (1976). 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_st_v_st	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court rule in favor of the appellant on the issue of a conflict of laws ( which laws or rules apply ) other than federal v state or foreign v domestic (e.g., one state vs second state)?" 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". In re ARCHIBALD HARRIS CO. GREENE et al. v. HARRIS et al. Circuit Court of Appeals, Seventh Circuit. October 21, 1927. Rehearing Denied November 14, 1927. No. 3905. Bankruptcy <®=^20(2) — Order that receiver in bankruptcy turn over assets to state court receiver held not prejudicial to claimants having claims filed in state court. Claimants of wages in bankruptcy proceeding, having before the filing of the petition in bankruptcy! filed the same claims by intervention, in a suit in state court by H. against the bankrupt corporation to compel it to turn over to him its property as acquired by it from him by fraud, and the state court having found for H. against the corporation, but reserved for further adjudication the intervening wage claims, and such claims, so far as appears, being still there pending for adjudication, such claimants have no proper ground of complaint of order of the bankruptcy court, directing the receiver in bankruptcy, who had acquired certain assets apparently theretofore undiscovered by the receiver appointed in the state court action for the property of the corporation, to turn, over those assets to the state court receiver. Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois. In the matter of the Archibald Harris Company, bankrupt. From an order that the receiver in bankruptcy turn over certain assets to the state court receiver, J.'Menard Greene and others appeal; H. Archibald Harris and others being the appellees. Affirmed. George C. Tripp and Robert R. Mix, both of Chicago, Ill., for appellants. Maurice J. Moriarty, of Chicago, Ill., for appellees. Before ALSCHULER, EVANS, and PAGE, Circuit Judges. PER CURIAM. We perceive no error in the action of the District Court. Before the filing of petition in bankruptcy, the appellants had filed their same wage claims in a proceeding in the state court wherein H. A. Harris had brought suit to require the alleged bankrupt, Archibald Harris Company, to turn over to him its property, on the allegation that the corporation acquired it from him by fraud. In that action a receiver had been appointed for the property of the corporation, and appellants intervened, contending that out of the property under the jurisdiction of that court their claims for wages should first be paid. The state court has jurisdiction of the intervening petition, and in its decree finding that as against the corporation Harris was entitled to the property it distinctly reserved for further adjudication the intervening wage claims there filed by these appellants. So far as here appears, the intervening claims are still there pending for adjudication, and we are of opinion that these appellants have no proper ground of complaint of the order of the District Court directing the receiver in bankruptcy, who had acquired certain assets apparently theretofore undiscovered by the receiver of the state court, to turn over those assets, less certain expenses, to the state court receiver. The order of the District Court is affirmed. Question: Did the court rule in favor of the appellant on the issue of a conflict of laws ( which laws or rules apply ) other than federal v state or foreign v domestic (e.g., one state vs second state)? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_caseoriginstate	26	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. FIRST NATIONAL BANK OF BOSTON et al. v. BELLOTTI, ATTORNEY GENERAL OF MASSACHUSETTS No. 76-1172. Argued November 9, 1977 Decided April 26, 1978 Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Blackmun, and Stevens, JJ., joined. Burger, C. J., filed a concurring opinion, post, p. 795. White, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 802. Rehnquist, J., filed a dissenting opinion, post, p. 822. Francis H. Fox argued the cause for appellants. With him on the briefs was E. Susan Garsh. Thomas R. Kiley, Assistant Attorney General of Massachusetts, argued the cause for appellee. With him on the brief were Francis X. Bellotti, Attorney General, pro se, and Stephen Schultz, Assistant Attorney General. Briefs of amici curiae urging reversal were filed by Henry Paul Monaghan for the Associated Industries of Massachusetts, Inc., et al., and by Jerome H. Torshen, Jeffrey Cole, Stanley T. Kaleczyc, Jr., and Lawrence B. Kraus for the Chamber of Commerce of the United States. William C. Oldaker filed a brief for the Federal Election Commission as amicus curiae urging affirmance. Briefs of amici curiae were filed by Mike Greely, Attorney General, and Jack Lowe, Special Assistant Attorney General, for the State of Montana; by James S. Hostetler for the New England Council; and by Ronald A. Zumbrun, Robert K. Best, John H. Findley, Albert Ferri, Jr., and W. Hugh O’Riordan for the Pacific Legal Foundation. Me. Justice Powell delivered the opinion of the Court. In sustaining a state criminal statute that forbids certain expenditures by banks and business corporations for the purpose of influencing the vote on referendum proposals, the Massachusetts Supreme Judicial Court held that the First Amendment rights of a corporation are limited to issues that materially affect its business, property, or assets. The court rejected appellants’ claim that the statute abridges freedom of speech in violation of the First and Fourteenth Amendments. The issue presented in this context is one of first impression in this Court. We postponed the question of jurisdiction to our consideration of the merits. 430 U. S. 964 (1977). We now reverse. I The statute at issue, Mass. Gen. Laws Ann., ch. 55, § 8 (West Supp. 1977), prohibits appellants, two national banking associations and three business corporations, from making contributions or expenditures “for the purpose of... influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation.” The statute further specifies that “[n]o question submitted to the voters solely concerning the taxation of the income, property or transactions of individuals shall be deemed materially to affect the property, business or assets of the corporation.” A corporation that violates § 8 may receive a maximum fine of $50,000; a corporate officer, director, or agent who violates the section may receive a maximum fine of $10,000 or imprisonment for up to one year, or both. Appellants wanted to spend money to publicize their views on a proposed constitutional amendment that was to be submitted to the voters as a ballot question at a general election on November 2,1976. The amendment would have permitted the legislature to impose a graduated tax on the income of individuals. After appellee, the Attorney General of Massachusetts, informed appellants that he intended to enforce § 8 against them, they brought this action seeking to have the statute declared unconstitutional. On April 26, 1976, the case was submitted to a single justice of the Supreme Judicial Court on an expedited basis and upon agreed facts, in order to settle the question before the upcoming election. Judgment was reserved and the case referred to the full court that same day. Appellants argued that § 8 violates the First Amendment, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and similar provisions of the Massachusetts Constitution. They prayed that the statute be declared unconstitutional on its face and as it would be applied to their proposed expenditures. The parties’ statement of agreed facts reflected their disagreement as to the effect that the adoption of a personal income tax would have on appellants’ business; it noted that “[t]here is a division of opinion among economists as to whether and to what extent a graduated income tax imposed solely on individuals would affect the business and assets of corporations.” App. 17. Appellee did not dispute that appellants’ management believed that the tax would have a significant effect on their businesses. On September 22, 1976, the full bench directed the single justice to enter judgment upholding the constitutionality of § 8. An opinion followed on February 1,1977. In addressing appellants’ constitutional contentions, the court acknowledged that § 8 “operate [s] in an area of the most fundamental First Amendment activities,” Buckley v. Valeo, 424 U. S. 1, 14 (1976), and viewed the principal question as “whether business corporations, such as [appellants], have First Amendment rights coextensive with those of natural persons or associations of natural persons.” 371 Mass. 773, 783, 359 N. E. 2d 1262, 1269. The court found its answer in the.contours of a corporation’s constitutional right, as a “person” under the Fourteenth Amendment, not to be deprived of property without due process of law. Distinguishing the First Amendment rights of a natural person from the more limited rights of a corporation, the court concluded that “whether its rights are designated ‘liberty’ rights or ‘property’ rights, a corporation’s property and business interests are entitled to Fourteenth Amendment protection.... [A] s an incident of such protection, corporations also possess certain rights of speech and expression under the First Amendment.” Id., at 784, 359 N. E. 2d, at 1270. (citations and footnote omitted). Accordingly, the court held that “only when a general political issue materially affects a corporation’s business, property or assets may that corporation claim First Amendment protection for its speech or other activities entitling it to communicate its position on that issue to the general public.” Since this limitation is “identical to the legislative command in the first sentence of [§8],” the court concluded that the legislature “has clearly identified in the challenged statute the parameters of corporate free speech.” Id., at 785, 359 N. E. 2d, at 1270. The court also declined to say that there was “no rational basis for [the] legislative determination,” embodied in the second sentence of § 8, that a ballot question concerning the taxation of individuals could not materially affect the interests of a corporation. Id., at 786, 359 N. E. 2d, at 1271. In rejecting appellants’ argument that this second sentence established a conclusive presumption in violation of the Due Process Clause, the court construed § 8 to embody two distinct crimes: The first prohibits a corporation from spending money to influence the vote on a ballot question not materially affecting its business interests; the second, and more specific, prohibition makes it criminal per se for a corporation to spend money to influence the vote on a ballot question solely concerning individual taxation. While acknowledging that the second crime is “related to the general crime” stated in the first sentence of § 8, the court intimated that the second sentence was intended to make criminal an expenditure of the type proposed by appellants without regard to specific proof of the materiality of the question to the corporation’s business interests. Id., at 795 n. 19, 790-791, 359 N. E. 2d, at 1276 n. 19, 1273-1274. The court nevertheless seems to have reintroduced the “materially affecting” concept into its interpretation of the second sentence of § 8, as a limitation on the scope of the so-called “second crime” imposed by the Federal Constitution rather than the Massachusetts Legislature. Id., at 786, 359 N. E. 2d, at 1271. But because the court thought appellants had not made a sufficient showing of material effect, their challenge to the statutory prohibition as applied to them also failed. Appellants’ other arguments fared no better. Adopting a narrowing construction of the statute, the Supreme Judicial Court rejected the contention that § 8 is overbroad. It also found no merit in appellants’ vagueness argument because the specific prohibition against corporate expenditures on a referendum solely concerning individual taxation is “both precise and definite.” Id., at 791, 359 N. E. 2d, at 1273-1274. Finally, the court held that appellants were not denied the equal protection of the laws. II Because the 1976 referendum has been held, and the proposed constitutional amendment defeated, we face at the outset a question of mootness. As the case falls within the class of controversies “capable of repetition, yet evading review,” Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911), we conclude that it is not moot. Present here are both elements identified in Weinstein v. Bradford, 423 U. S. 147, 149 (1975), as precluding a finding of mootness in the absence of a class action: “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.” Under no reasonably foreseeable circumstances could appellants obtain plenary review by this Court of the issue here presented in advance of a referendum on a similar' constitutional amendment. In each of the legislature’s four attempts to obtain constitutional authorization to enact a graduated income tax, including this most recent one, the period of time between legislative authorization of the proposal and its submission to the voters was approximately 18 months. This proved too short a period of time for appellants to obtain complete judicial review, and there is every reason to believe that any future suit would take at least as long. Furthermore, a decision allowing the desired expenditures would be an empty gesture unless it afforded appellants sufficient opportunity prior to the election date to communicate their views effectively. Nor can there be any serious doubt that there is a “reasonable expectation,” Weinstein v. Bradford, supra, that appellants again will be subject to the threat of prosecution under § 8. The 1976 election marked the fourth time in recent years that a proposed graduated income tax amendment has been submitted to the Massachusetts voters. Appellee’s suggestion that the legislature may abandon its quest for a constitutional amendment is purely speculative. Appellants insist that they will continue to oppose the constitutional amendment, and there is no reason to believe that the Attorney General will refrain from prosecuting violations of § 8. Compare Nebraska Press Assn. v. Stuart, 427 U. S. 539, 546-547 (1976), with Spomer v. Littleton, 414 U. S. 514, 521 (1974). Meanwhile, § 8 remains on the books as a complete prohibition of corporate expenditures related to individual tax referenda, and as a restraining influence on corporate expenditures concerning other ballot questions. The criminal penalties of § 8 discourage challenge by violation, and the effect of the statute on arguably protected speech will persist. Storer v. Brown, 415 U. S. 724, 737 n. 8 (1974); see American Party of Texas v. White, 415 U. S. 767, 770 n. 1 (1974); Rosario v. Rockefeller, 410 U. S. 752, 756 n. 5 (1973); Dunn v. Blumstein, 405 U. S. 330, 333 n. 2 (1972). Accordingly, we conclude that this cáse is not moot and proceed to address the merits. Ill The court below framed the principal question in this case as whether and to what extent corporations have First Amendment rights. We believe that the court posed the wrong question. The Constitution often protects interests broader than those of the party seeking their vindication. The First Amendment, in particular, serves significant societal interests. The proper question therefore is not whether corporations “have” First Amendment rights and, if so, whether they are coextensive with those of natural persons. Instead, the question must be whether § 8 abridges expression that the First Amendment was meant to protect. We hold that it does. A The speech proposed by appellants is at the heart of the First Amendment’s protection. “The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.... Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.” Thornhill v. Alabama, 310 U. S. 88, 101-102 (1940). The referendum issue that appellants wish to address falls squarely within this description. In appellants’ view, the enactment of a graduated personal income tax, as proposed to be authorized by constitutional amendment, would have a seriously adverse effect on the economy of the State. See n. 4, supra. The importance of the referendum issue to the people and government of Massachusetts is not disputed. Its merits, however, are the subject of sharp disagreement. As the Court said in Mills v. Alabama, 384 U. S. 214, 218 (1966), “there is practically universal agreement that á major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.” If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual. The court below nevertheless held that corporate speech is protected by the First Amendment only when it pertains directly to the corporation’s business interests. In deciding whether this novel and restrictive gloss on the First Amendment comports with the Constitution and the precedents of this Court, we need not survey the outer boundaries of the Amendment’s protection of corporate speech, or address the abstract question whether corporations have the full measure of rights that individuals enjoy under the First Amendment. The question in this case, simply put, is whether the corporate identity of the speaker deprives this proposed speech of what otherwise would be its clear entitlement to protection. We turn now to that question. B The court below found confirmation of the legislature’s definition of the scope of a corporation’s First Amendment rights in the language of the Fourteenth Amendment. Noting that the First Amendment is applicable to the States through the Fourteenth, and seizing upon the observation that corporations “cannot claim for themselves the liberty which the Fourteenth Amendment guarantees,” Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925), the court concluded that a corporation’s First Amendment rights must derive from its property rights under the Fourteenth. This is an artificial mode of analysis, untenable under decisions of this Court. “In a series of decisions beginning with Gitlow v. New York, 268 U. S. 652 (1925), this Court held that the liberty of speech and of the press which the First Amendment guarantees against abridgment by the federal government is within the liberty safeguarded by the Due Process Clause of the Fourteenth Amendment from invasion by state action. That principle has been followed and reaffirmed to the present day.” Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 500-501 (1952) (footnote omitted) (emphasis supplied). Freedom of speech and the other freedoms encompassed by the First Amendment always have been viewed as fundamental components of the liberty safeguarded by the Due Process Clause, see Gitlow v. New York, 268 U. S. 652, 666 (1925) (opinion of the Court); id., at 672 (Holmes, J., dissenting); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460 (1958); Stromberg v. California, 283 U. S. 359, 368 (1931); De Jonge v. Oregon, 299 U. S. 353, 364 (1937); Warren, The New “Liberty” Under the Fourteenth Amendment, 39 Harv. L. Rev. 431 (1926), and the Court has not identified a separate source for the right when it has been asserted by corporations. See, e. g., Times Film Corp. v. Chicago, 365 U. S. 43, 47 (1961); Kingsley Int’l Pictures Corp. v. Regents, 360 U. S. 684, 688 (1959); Joseph Burstyn, supra. In Grosjean v. American Press Co., 297 U. S. 233, 244 (1936), the Court rejected the very reasoning adopted by the Supreme Judicial Court and did not rely on the corporation's property rights under the Fourteenth Amendment in sustaining its freedom of speech. Yet appellee suggests that First Amendment rights generally have been afforded only to corporations engaged in the communications business or through which individuals express themselves, and the court below apparently accepted the “materially affecting” theory as the conceptual common denominator between appellee’s position and the precedents of this Court. It is true that the “materially affecting” requirement would have been satisfied in the Court’s decisions affording protection to the speech of media corporations and corporations otherwise in the business of communication or entertainment, and to the commercial speech of business corporations. See cases cited in n. 14, supra. In such cases, the speech would be connected to the corporation’s business almost by definition. But the effect on the business of the corporation was not the governing rationale in any of these decisions. None of them mentions, let alone attributes significance to, the fact that the subject of the challenged communication materially affected the corporation’s business. The press cases emphasize the special and constitutionally recognized role of that institution in informing and educating the public, offering criticism, and providing a forum for discussion and debate. Mills v. Alabama, 384 U. S., at 219; see Saxbe v. Washington Post Co., 417 U. S. 843, 863-864 (1974) (Powell, J., dissenting). But the press does not have a monopoly on either the First Amendment or the ability to enlighten. Cf. Buckley v. Valeo, 424 U. S., at 51 n. 56; Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 389-390 (1969); New York Times Co. v. Sullivan, 376 U. S. 254, 266 (1964); Associated Press v. United States, 326 U. S. 1, 20 (1945). Similarly, the Court’s decisions involving corporations in the business of communication or entertainment are based not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas. See Red Lion Broadcasting Co. v. FCC, supra; Stanley v. Georgia, 394 U. S. 557, 564 (1969); Time, Inc. v. Hill, 385 U. S. 374, 389 (1967). Even decisions seemingly based exclusively on the individual’s right to express himself acknowledge that the expression may contribute to society’s edification. Winters v. New York, 333 U. S. 507, 510 (1948). Nor do our recent commercial speech cases lend support to appellee’s business interest theory. They illustrate that the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw. A commercial advertisement is constitutionally protected not so much because it pertains to' the seller’s business as because it furthers the societal interest in the “free flow of commercial information.” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U. S. 748, 764 (1976); see Linmark Associates, Inc. v. Willingboro, 431 U. S. 85,95 (1977). C We thus find no support in the First or Fourteenth Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property. The “materially affecting” requirement is not an identification of the boundaries of corporate speech etched by the Constitution itself. Rather, it amounts to an impermissible legislative prohibition of speech based on the identity of the interests that spokesmen may represent in public debate over controversial issues and a requirement that the speaker have a sufficiently great interest in the subject to justify communication. Section 8 permits a corporation to communicate to the public its views on certain referendum subjects — those materially affecting its business — but not others. It also singles out one kind of ballot question — individual, taxation — as a subject about which corporations may never make their ideas public. The legislature has drawn the line between permissible and impermissible speech according to whether there is a sufficient nexus, as defined by the legislature, between the issue presented to the voters and the business interests of the speaker. In the realm of protected speech, the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue. Police Dept. of Chicago v. Mosley, 408 U. S. 92, 96 (1972). If a legislature may direct business corporations to “stick to business,” it also may limit other corporations— religious, charitable, or civic — to their respective “business” when addressing the public. Such power in government to channel the expression of views is unacceptable under the First Amendment. Especially where, as here, the legislature’s suppression of speech suggests an attempt to give one side of a debatable public question an advantage in expressing its views to the people, the First Amendment is plainly offended. Yet the State contends that its action is necessitated by governmental interests of the highest order. We next consider these asserted interests. IV The constitutionality of § 8’s prohibition of the “exposition of ideas” by corporations turns on whether it can survive the exacting scrutiny necessitated by a state-imposed restriction of freedom of speech. Especially where, as here, a prohibition is directed at speech itself, and the speech is intimately related to the process of governing, “the State may prevail only upon showing a subordinating interest which is compelling,” Bates v. Little Rock, 361 U. S. 516, 524 (1960); see NAACP v. Button, 371 U. S. 415, 438-439 (1963); NAACP v. Alabama ex rel. Patterson, 357 U. S., at 463; Thomas v. Collins, 323 U. S. 516, 530 (1945), “and the burden is on the government to show the existence of such an interest.” Elrod v. Burns, 427 U. S. 347, 362 (1976). Even then, the State must employ means “closely drawn to avoid unnecessary abridgment....” Buckley v. Valeo, 424 U. S., at 25; see NAACP v. Button, supra, at 438; Shelton v. Tucker, 364 U. S. 479, 488 (1960). The Supreme Judicial Court did not subject § 8 to “the critical scrutiny demanded under accepted First Amendment and equal protection principles,” Buckley, supra, at 11, because of its view that the First Amendment does not apply to appellants’ proposed speech. For this reason the court did not even discuss the State’s interests in considering appellants’ First Amendment argument. The court adverted to the conceivable interests served by § 8 only in rejecting appellants’ equal protection claim. Appellee nevertheless advances two principal justifications for. the prohibition of corporate speech. The first is the State’s interest in sustaining the active role of the individual citizen in the electoral process and thereby preventing diminution of the citizen’s confidence in government. The second is the interest in protecting the rights of shareholders whose views differ from those expressed by management on behalf of the corporation. However weighty these interests may be in the context of partisan candidate elections, they either are not implicated in this case or are not served at all, or in other than a random manner, by the prohibition in § 8. A f Preserving the integrity of the electoral process, preventing ^corruption, and “sustain [ing] the active, alert responsibility of the individual citizen in a democracy for the wise conduct of government” are interests of the highest importance. Buckley, supra; United States v. Automobile Workers, 352 U. S. 567, 570 (1957); United States v. CIO, 335 U. S. 106, 139 (1948) (Rutledge, J., concurring); Burroughs v. United States, 290 U. S. 534 (1934). Preservation of the individual citizen’s confidence in government is equally important. Buckley, supra, at 27; CSC v. Letter Carriers, 413 U. S. 548, 565 (1973). Appellee advances a number of arguments in support of his view that these interests are endangered by corporate participation in discussion of a referendum issue. They hinge upon the assumption that such participation would exert an undue influence on the outcome of a referendum vote, and — • in the end — destroy the confidence of the people in the democratic process and the integrity of government. According to appellee, corporations are wealthy and powerful and their views may drown out other points of view. If appellee’s arguments were supported by record or legislative findings that corporate advocacy threatened imminently to undermine democratic processes, thereby denigrating rather than serving First Amendment interests, these arguments would merit our consideration. Cf. Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969). But there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts, or that there has been any threat to the confidence of the citizenry in government. Cf. Wood v. Georgia, 370 U. S. 375, 388 (1962). Nor are appellee’s arguments inherently persuasive or supported by the precedents of this Court. Referenda are held on issues, not candidates for public -office. The risk of corruption perceived in cases involving candidate elections, e. g., United States v. Automobile Workers, supra; United States v. CIO, supra, simply is not present in a popular vote on a public issue. To be sure, corporate advertising may influence the outcome of the vote; this would be its purpose. But the fact that advocacy may persuade the electorate is hardly a reason to suppress it: The Constitution “protects expression which is eloquent no less than that which is unconvincing.” Kingsley Int’l Pictures Corp. v. Regents, 360 U. S., at 689. We noted only recently that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment... Buckley, 424 U. S., at 48-49. Moreover, the people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments. They may consider, in making their judgment, the source and credibility of the advocate. But if there be any danger that the people cannot evaluate the information and arguments advanced by appellants, it is a danger contemplated by the Framers of the First Amendment. Wood v. Georgia, supra. In sum, “[a] restriction so destructive of the right of public discussion [as § 8], without greater or more imminent danger to the public interest than existed in this case, is incompatible with the freedoms secured by the First Amendment.” B Finally, appellee argues that § 8, protects corporate shareholders, an interest that is both legitimate and traditionally within the province of state law. Cort v. Ash, 422 U. S. 66, 82-84 (1975). The statute is said to serve this interest by preventing the use of corporate resources in furtherance of views with which some shareholders may disagree. This purpose is belied, however, by the provisions of the statute, which are both underinclusive and overinclusive. The underinclusiveness of the statute is self-evident. Corporate expenditures with respect to a referendum are prohibited, while corporate activity with respect to the passage or defeat of legislation is permitted, see n. 31, supra, even though corporations may engage in lobbying more often than they take positions on ballot questions submitted to the voters. Nor does § 8 prohibit a corporation from expressing its views, by the expenditure of corporate funds, on any public issue until it becomes the subject of a referendum, though the displeasure of disapproving shareholders is unlikely to be any less. The fact that a particular kind of ballot question has been singled out for special treatment undermines the likelihood of a genuine state interest in protecting shareholders. It suggests instead that the legislature may have been concerned with silencing corporations on a particular subject. Indeed, appellee has conceded that “the legislative and judicial history of the statute indicates... that the second crime was ‘tailor-made' to prohibit corporate campaign contributions to' oppose a graduated income tax amendment." Brief for Appellee 6. Nor is the fact that § 8 is limited to banks and business corporations without relevance. Excluded from its provisions and criminal sanctions are entities or organized groups in which numbers of persons may hold an interest or membership, and which often have resources comparable to those of large corporations. Minorities in such groups or entities may have interests with respect to institutional speech quite comparable to those of minority shareholders in a corporation. Thus the exclusion of Massachusetts business trusts, real estate investment trusts, labor unions, and other associations undermines the plausibility of the State’s purported concern for the persons who happen to be shareholders in the banks and corporations covered by § 8. The overinclusiveness of the statute is demonstrated by the fact that § 8 would prohibit a corporation from supporting or opposing a referendum proposal even if its shareholders unanimously authorized the contribution or expenditure. Ultimately shareholders may decide, through the procedures of corporate democracy, whether their corporation should engage in debate on public issues. Acting through their power to elect the board of directors or to insist upon protective provisions in the corporation’s charter, shareholders normally are presumed competent to protect their own interests. In addition to intracorporate remedies, minority shareholders generally have access to the judicial remedy of a derivative suit to challenge corporate disbursements alleged to have been made for improper corporate purposes or merely to further the personal interests of management. Assuming, arguendo, that protection of shareholders is a “compelling” interest under the circumstances of this case, we find “no substantially relevant correlation between the governmental interest asserted and the State’s effort” to prohibit appellants from speaking. Shelton v. Tucker, 364 U. S., at 485. V Because that portion of § 8 challenged by appellants prohibits protected speech in a manner unjustified by a compelling state interest, it must be invalidated. The judgment of the Supreme Judicial Court is Reversed. Appellants are the First National Bank of Boston, New England Merchants National Bank, the Gillette Co., Digital Equipment Corp., and Wyman-Gordon. Co. Massachusetts Gen. Laws Ann., ch. 55, §8 (West Supp. 1977), provides (with emphasis supplied): “No corporation carrying on the business of a bank, trust, surety, indemnity, safe deposit, insurance, railroad, street railway, telegraph, telephone, gas, electric light, heat, power, canal, aqueduct, or water company, no company having the right to take land by eminent domain or to exercise franchises in public ways, granted by the commonwealth or by any county, city or town, no trustee or trustees owning or holding the majority of the stock of such a corporation, no business corporation incorporated under the laws of or doing business in the commonwealth and no officer or agent acting in behalf of any corporation mentioned in this section, shall directly or indirectly give, pay, expend or contribute, or promise to give, pay, expend or contribute, any money or other valuable thing for the purpose of aiding, promoting or preventing the nomination or election of any person to public office, or aiding, promoting or antagonizing the interests of any political party, or influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation. No question submitted to the voters solely concerning the taxation of the income, property or transactions of individuáis shall be deemed materially to affect the property, business or assets of the corporation. No person or persons, no political committee, and no person acting under the authority of a political committee, or in its behalf, shall solicit or receive from such corporation or such holders of stock any gift, payment, expenditure, contribution or promise to give, pay, expend or contribute for any such purpose. “Any corporation violating any provision of this section shall be punished by a fine of not more than fifty thousand dollars and any officer, director or agent of the corporation violating any provision thereof or authorizing such violation,... shall be punished by a fine of not more than ten thousand dollars or by imprisonment for not more than one year, or both.” This was not the first challenge to § 8. The statute’s legislative and judicial history has been a troubled one. Its successive re-enactments have been linked to the legislature’s repeated submissions to the voters of a constitutional amendment that would allow the enactment of a graduated tax. The predecessor of § 8, Mass. Gen. Laws, ch. 55, § 7 (as amended by 1946 Mass. Acts, ch. 537, § 10), was first challenged in Lustwerk v. Lytron, Inc., 344 Mass. 647, 183 N. E. 2d 871 (1962). Unlike § 8, § 7 did not dictate that questions concerning the taxation of individuals could not satisfy the “materially affecting” requirement. The Supreme Judicial Court construed §7 not to prohibit a corporate expenditure urging the voters to reject a proposed constitutional amendment authorizing the legislature to impose a graduated tax on corporate as well as individual income. After Lustwerk the legislature amended § 7 by adding the sentence: “No question submitted to the voters concerning the taxation of the income, property or transactions of individuals shall be deemed materially to affect the property, business or assets of the corporation.” 1972 Mass. Acts, ch. 458. The statute was challenged in 1972 by four of the present appellants; they wanted to oppose a referendum proposal similar to the one submitted to and rejected by the voters in 1962. Again the expenditure was held to be lawful. First Nat. Bank of Boston v. Attorney General, 362 Mass. 570,290 N. E. 2d 526 (1972). The most recent amendment was enacted on April 28, 1975, when the legislature further refined the second sentence of § 8 to apply only to ballot questions "solely” concerning the taxation of individuals. 1975 Mass. Acts, ch. 151, § 1. Following this amendment, the legislature on May 7, 1975, voted to submit to the voters on November 2, 1976, the proposed constitutional amendment authorizing the imposition of a graduated 'personal income tax. It was this proposal that led to the case now before us. Appellants believe that the adoption of a graduated personal income tax would materially affect their business in a variety of ways, including, in the words of the court below, “discouraging highly qualified executives and highly skilled professional personnel from settling, working or remaining in Massachusetts; promoting a tax climate which would be considered unfavorable by business corporations, thereby discouraging them from settling in Massachusetts with ‘resultant adverse effects’ on the plaintiff banks’ loans, deposits, and other services; and tending to shrink the disposable income of individuals available for the purchase of the consumer products 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_respond1_1_3	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the 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. WHITE, Collector of Internal Revenue, v. HOOD RUBBER CO. Circuit Court of Appeals, First Circuit. June 25, 1929. No. 2338. Wright Matthews, Sp. Atty., Bureau of Internal Revenue, and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, both of Washington, D. C. (Frederick H. Tarr, U. S. Atty., and J. Duke Smith, Sp: U. S. Atty., both of Boston, Mass., on the brief), for appellant. Harold C. Haskell, of Watertown, Mass. (Charles C. Gammons, of Boston, Mass., on the brief), for appellee. Before BINGHAM, Circuit Judge, and MORRIS and BREWSTER, District Judges. BINGHAM, Circuit Judge. This is a suit brought by the Hood Rubber Company, appellee, in the federal District Court for Massachusetts, to recover $391,043.99’, the amount of an additional income and excess profits tax for the year 1918, which was collected by distraint on December 15,1926. By stipulation in writing the case was tried before the court without a jury. The plaintiff, -appellee, on March 14, 1919, filed its income and excess profits tax return for the calendar year 1918, in which it estimated its tax at $300,009. This return was made on a form prescribed and furnished by the Treasury Department, known as “Form 1031-T” and designated as a “tentative return.” At the time of filing this return the plaintiff paid one-quarter ($75,000) of the tax as shown by its return. And June 16, 1919, upon the demand of the collector, it paid as a seeond installment of the tax the further sum of $75,000. July 14, 1919) the plaintiff filed a completed, revised, or amended return, showing its total tax for the calendar year 1918 to be $169,772.65, and on December 12, 1919, paid the balance of the tax, $19,772.65, as shown by this completed or amended return. January 26,1924, while the Revenue Act of 1921 was in force, the plaintiff and the Commissioner of Internal Revenue entered into a written agreement, authorized by section 250(d) of the Revenue • Act of 1921 (42 Stat. 264), extending the statutory period of limitation (five years) an additional period of one year, in which to determine, assess, and collect the amount of income and excess profits taxes due under any return made by the plaintiff for the year 1918 under the Revenue Act of 1921, or under prior income and excess profits acts. Thereafter the Commissioner determined that an additional tax for the year 1918 was due, and on March 18, 1925, after the Revenue Act of 1924 was enacted (43 Stat. 253), assessed an additional tax against the plaintiff, which amounted to $39,043.99, after making certain deductions and allowance of credits. On December 15, 1926, a collection of this tax was had by distraint. A daim for refund was duly filed and rejected, and on January 12,1928, this suit was brought. In the District Court it was held that, if the word “return,” as used in section 250(d) of the act of 1921, meant the tentative return, the government did not assess the tax in time; but, if it meant the return of July 14, 1919, the assessment was made within the required five years plus the additional year provided for in the waiver agreement. It said, however, that the question need not be decided, for if it be granted that the completed or amended return fixed the time from which to reckon, and the assessment was seasonably made, the tax was- not collected either within five or within six years from the filing of the completed return; that the government, having taken advantage of the six-year period for assessment, could not say that the six-year period for collection was changed by the subsequent act of 1924, which allowed six years after the assessment for collection; that either the agreement of waiver conferred no power on the government to make the assessment later than the statutory period allowed (five years), or the agreement applied to the time fixed for the collection as well as the assessment; that it was to the advantage of both parties that the period of limitation should be extended — of advantage to the government 'for the reason that, at the time the agreement of waiver was made, the statutory limitation of five years had nearly expired, and of advantage to the plaintiff to know when the tax would become unenforceable, so that it might properly arrange its financial affairs. And, such being the ease, the agreement of waiver constituted a binding contract, which Congress did not intend to have affected by the provisions of the act of 1924. Chicago & N. W. R. Co. v. United States, 104 U. S. 680, 26 L. Ed. 891. Having reached this conclusion, the court entered judgment for the plaintiff in the sum. of $39,043.99, with interest amounting to $4,-568.15, and cost of suit. It is from this judgment that this appeal is taken. Eor reasons that will later appear, we do not find it necessary to consider whether the ground upon which the court below reached its conclusion was right or not. The first question presented is whether the return filed March 14, 1919 is the one from which the five-year period of limitation (fixed by the Revenue Acts of 1918 and 1921 [40 Stat. 1057; 42 Stat. 227]), as extended by the waiver agreement of January 26, 1924, for one year, under the authority of the act of 1921, or whether the revised or amended return is the one from which the period of limitation is to be reckoned; for, if the former is the one, the additional tax of March 18, 1925, was not seasonably assessed. There are apparently three eases in which this question has been under-consideration in the federal courts. Florsheim Bros. Dry Goods Co., Limited, v. United States, 29 F.(2d) 895, 896 (5th Cir. Ct. of App.), decided December 19, 1928; Rasmussen v. Brownfield-Canty Carpet Co., 31 F.(2d) 89, 91 (9th Cir. Ct. of App.), decided February 11, 1929; and Brandon Corp. v. Jones, Collector, 33 F.(2d) 969, decided March 30, 1929 (Eastern Dist. of So. Car.). In the first case no discussion of the question was had. All that was said concerning the matter was: “It is suggested in argument that the statutory period of limitations began to run from the date of the tentative return in March of 1919; but we are of opinion that the return meant by the statute was the final or completed return.” In the second case Judge Gilbert pointed out that the Board of Tax Appeals had entertained contrary views, and he took the position that the original or tentative return, and not the completed or amended one; fixed the date for the beginning of the running of the statutes of limitation as outlined in section 250(d) of the act of 1921; but his associates refrained from expressing an opinion upon the question, as the distraint proceedings there in question were barred, whether the period of limitation began to run from the filing of the tentative return or of the completed or amended one. In the third ease the facts and circumstances attending the filing of the so-ealled tentative return (Form 1031-T, prescribed by the Commissioner of Internal Revenue) were presented and considered, and it was held that the period of limitation began- to run from the filing of the original or tenta^ti^e return, and not from the filing of the completed or amended return. It was there said: “The Revenue Act for 1918 was enacted on February 24,1919'. Under the act, returns were to be filed by March 15, 1919, and the tax paid in quarterly installments on March 15, June 15, September 15, and December 15, 1919. The law also provided that in case an extension of time for filing the return was granted, the date for payment of the first installment should be correspondingly extended [section 250(a)], It was evident that many taxpayers would be unable to prepare their returns by March 15. The requirements of the government, however, were such that it was advisable that the first installment should be paid by him by that time. In order to meet this situation, the Commissioner of Internal Revenue issued two rulings, one on February 13, 1919, and the other on February 27,1919. In the first ruling, it was stated that no general extension of time would be authorized, but that the Commissioner had approved a novel feature of tax collection whieh would serve for all practical purposes as a possible extension of 45 days for the filing of the return, where the parties Were unable to complete and file their returns by March 15. * * * He also announced in that ruling that if a corporation finds it impossible to complete its return in time, it might make a return of the estimated tax due and make payment thereof not later than March 15; and if a meritorious reason was shown why the corporation was unable to complete its return, the collector would accept the payment of the estimated tax and agree to accept a revised and completed tax return within a period of not more than forty-five days. The ruling of February 27, 1919', contains the following pertinent clauses: “ ‘Income tax payers, both corporation and individual, were to-day granted by the Internal Revenue Bureau further relief with respect to the filing of their completed tax returns for 1918. The statement that the taxpayer is unable by Mareh 15, to execute and file the complete return will be accepted, under the new procedure, as sufficient reason for extending for 45 days the time for filing complete income and excess profits-returns, provided in every ease the taxpayer pays on or before Mareh 15, at least 25% of the estimated amount of the tax due. “‘A supply of blanks of Form 1040-T, for the use of individuals as tentative return on the estimated tax basis, were shipped to each collector of internal revenue to-day. Collectors will furnish this form to any individual requesting an extension of time for the filing of this complete return for 1918. “ ‘The tentative return to be used by corporations who make payment of the estimated tax due on or before Mareh 15 is being printed, and a supply will be forwarded tomorrow to each collector, who will mail these forms to every corporation on his list. (To be known as Form 1031-T.) “ ‘Under the estimated tax procedure, which is now available to every taxpayer under the income and excess profits section of the new Revenue Law [40 Stat. 1057], there is no extension beyond the legal due date, March 15, for the payment of the taxes then falling due. “ ‘It is urged by the Bureau that the estimates be computed on the most exaet basis available. Should the first payment to be made on or before Mareh 15, under this plan, be greater than the amount eventually found to have been due upon examination of the completed return the excess payment will be automatically credited against the next installment^ which will be due June 15. “ ‘The taxpayer will not be relieved, however, under this plan, of the interest due upon any amount by which his payment on Mareh 15 may fall short of the amount found to have been due upon examination of the completed return.’ * * e “Pursuant to these rulings, the taxpaper on Mareh 14, 1919, filed its tentative return on Form 1031-T together with a statement of the estimated amount of the tax accompanied by a remittance of one-fourth thereof. This form contains the statement that the form and remittance covering one-fourth of the estimated tax must reach the collector’s office on or before Mareh 15, 1919. On the duplicate under the head of ‘Penalties’ it is stated that there is a penalty of $1000 for failure to make return on time. On June 16, 1919, the completed return was filed.” After stating the respective contentions of the parties — that of the government, that the tentative return did not contain the information which the law required and amounted to nothing more than an agreement for an extension of time; and that of the taxpayer, that conceding that the tentative return did not contain all the information required by law, nevertheless it was a return for several purposes and must therefore be deemed a return from the filing of which the statute starts to run — the opinion continues: “The tentative return certainly cannot be construed to be merely an agreement for extension of time, and to constitute no return in any aspect. The Commissioner in his ruling of February 13,1919, called it a ‘return’ and in the ruling of February 27, 1919’, a ‘tentative return.’ In Form 1031-T itself, it is called a tentative return. There was certainly some reason for insisting that the paper be styled a tentative return. If it was not a return at all, but merely an agreement for an extension of time, the taxpayer was not bound to pay the first installment of his taxes until he filed the completed return. It is clear, therefore, that the filing of Form 1031-T constituted such a return as to prevent the extension of time for payment of the first installment which the statute provided in all cases of an extension of time for the filing of a return. See sections 227 (a) and 241(a) of the Revenue Act of 1918 (40 Stat. 1075, 1082), and section 250(a) of the same act (40 Stat. 1082). “It is common knowledge that the Revenue Aet of 1918 constituted the greatest single levy of any tax in the history of the country, and that the financial condition of the government was such that it could not permit any extension of time for the collection of the first installment. It was for its own benefit largely that the government devised the plan of tentative returns. This procedure established by the Commissioner of Internal Revenue under the Rulings of February 13,1919, and February 27,' 1919, expressly required therefore the filing of a return on Mareh 15, 1919, and expressly provided that there was no extension beyond that date of the time for the payment of the first installment. The Commissioner therefore elected not to grant any extension of time for filing these returns, and it necessarily follows that the return which he then required, must be deemed the return contemplated by the statute whether termed merely a tentative return or not. “But the tentative return was sufficient to constitute a return in another aspect. Section 250(e) of the same act (40 Stat. 1083) provides that if any tax remains unpaid after it is due and for 10 days after notice and demand, there should be added a'penalty. Notice and demand were a condition prerequisite to the collection of the tax; but the same section provided that in the case of the first installment, the instructions printed on the return should be deemed sufficient notice of the date when the tax is due, and sufficient demand. Form 1031-T contained instructions complying therewith, and was a sufficient notice and demand to make the first installment payable on Mareh 15,1919. * * * “Again, Form 1031-T contained an explicit statement of the penalty that would attach in case of failure to make return. The filing of this form prevented the attaching of the penalty. It must, therefore, be deemed a sufficient return so far as the imposition of this penalty is concerned. It is clearly therefore a return for that purpose. * * * “The law clearly contemplates, so far as the starting of the statute of limitation is concerned, but one return. That return may not be complete in all particulars. It may be the subject of amendment; but if it is presented bona fide, and is a return for any purpose under the statute, then it must be a sufficient return to start the running of the statute. The government cannot blow hot and cold. It cannot say to the taxpayer, ‘File a paper which we know to be incomplete and does not give all the information required by law, and pay us the first installment and we will allow you later to complete your returns, and readjust the amount of taxes in accordance with the completed return,’ and then say later, that ‘the first paper which you filed was no return and the statute must start from the date of the final completed return.’ It cannot say, when its interests require it to do so, that the tentative return is .a return and then when its interests require the contrary, say that it is no return.” There are also decisions involving questions of like import, where the original return was incomplete in certain respects, and it was held that the supplemental return operated as an amendment of and related back to the original return, which fixed the time for reckoning the period of limitation. Thomas v. United States (D. C.) 22 F.(2d) 1000; United States v. Mabel Elevator Co. (D. C.) 17 F.(2d) 109. Thé original or tentative return filed in this ease disclosed a tax of $300,000, based on the best information then available — a tax in fact much larger than was the tax actually due. It was made on the form and in the manner required by the Commissioner and was the only return that could then have reasonably been made. It did not extend the time for payment of the tax disclosed, for the taxpayer'was required to pay and did pay the first installment of $75,000 on the filing of the return, when under the law it was mandatory that payment of the first installment of the tax should be extended, if it was not the return required, but the mere grant of an extension of time for filing a return. It was the return that put the tax statute into operation as respects the payment of, the particular tax, and caused the penalty feature of the law to become operative in ease the taxpayer failed to pay at the appointed time. And the logical conclusion is that it was the return that also put the statutory period of limitation into operation; and we so hold. The Commissioner unquestionably had authority to inaugurate and require the tentative return method of collecting the tax and the presumption is that he did so in conformity with law. Updike v. United States (C. C. A.) 8 F.(2d) 913; sections 1305 and 1309 of the Revenue Act of 1918 (40 Stat. 1142, 1143); and sections 1300 and 1303 of the Revenue Act of 1921 (42 Stat. 308, 309 [26 USCA §§ 1244, 1254]). As the time for assessing and collecting the additional tax expired March 14, 1925, before the tax was assessed or collected, the assessment and collection was unauthorized, and the judgment of the court below must be affirmed. The judgment of the District Court is affirmed, with eosts to appellee in this court. 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_r_fed	6	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. ZIBELL et al. v. MEACHAM & BABCOCK SHIPBUILDING CO. et al. (Court of Appeals of District of Columbia. Submitted October 7, 1926. Decided December 6, 1926.) No. 4411. 1. Bankruptcy <§=>18-1/2 — Petition in suit for appointment of receiver of shipbuilding company held properly dismissed, in view of appointment of receiver in bankruptcy in another jurisdiction and . other facts. Petition in creditors’ suit in District of Columbia for appointment of receiver for shipbuilding company, whose principal asset was a claim against the United States Shipping Board and Emergency Fleet Corporation, held properly dismissed, in view of nature of plaintiff’s claim, appointment of receiver in bankruptcy for shipbuilding company in another jurisdiction, and noncompliance with Code, § 1587, relating to service of process on foreign corporations. 2. Appeal and error <§=»I043(4) — Hearing evidence on motion to dismiss petition in suit for appointment of receiver held not prejudicial error. That court heard evidence in support of motion to dismiss petition in suit for appointment of receiver for want of jurisdiction held not prejudicial error. Appeal from the Supreme Court of the District of Columbia. . Action by William F. Zibell, trustee in bankruptcy of Michael P. Kraffmiller and others, against the Meacham & Babcock Shipbuilding Company and others. From a decree dismissing the original and supplemental bills, plaintiffs appeal. Affirmed. Edward Stafford, J. I. Peyser, and G. E. Edelin, all of Washington, D. C., for appellants. F. E. Scott, Peyton Gordon, and L. A. Rover, all of Washington, D. C., for appellees. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. MARTIN, Chief Justice. This is an appeal from a decree of the lower court dismissing the original bill and the amended and supplemental bill of the plaintiff upon motions filed by the defendants. In the original bill of complaint, filed on January 2, 1925, the plaintiff alleged that on February 6, 1924, he was appointed and qualified as trustee in bankruptcy of Michael P. Kraffmiller by the United States District Court for the Northern District of Illinois, and he brings this suit in that capacity; that the defendant Meacham & Babcock Shipbuilding Company is a corporation organized under the laws of the state of Washington, with its principal office in the city of Seattle in that state, but having an attorney or agent, to wit, the defendant Thomas Lyle, either in the District of Columbia or about to return immediately thereto; that the other defendants are respectively the commissioners of the United States Shipping Board, the United States Shipping Board Emergency Fleet Corporation, and the president and treasurer thereof, the Secretary of the Treasury, and the Treasurer of the United States. The plaintiff alleges that the Meacham & Babcock Shipbuilding Company became indebted to Kraffmiller prior to his bankruptcy in various sums of money loaned by him to the company, which debts are due and unpaid; and that on June 14, 1921, the company had a certain large daim for money pending before the United States Shipping Board, growing out of the building of certain wooden ships for the Emergency Fleet Corporation during the World War, and that the Shipbuilding Company on that day employed Kraffmiller, who was a public accountant and auditor in Washington, D. C., to present and “handle exclusively” its said claim before the board, for which services he was to be paid a present retainer fee of $5,000, and “in the event that the settlement referred to realized payment to the Shipbuilding Company of a sum of money not exceeding $750,000, payment to you [Kraffmiller] of 10 per cent, thereof,” and similarly 25 per cent, of any sum collected in excess of $750,000; that Kraffmiller fáithfully rendered the services required of him by the contract, both before and since his bankruptcy, but no part of the claim has yet been collected, nor has any amount ever been determined as due from the United States Shipping Board on account of said claim; that the defendant Shipbuilding Company has ceased to engage in active business and has no valuable asset, except its said pending claim, which accordingly is the only asset from which the plaintiff can realize his claim against the company for services rendered under the aforesaid contract; that plaintiff is not at liberty to attach or garnishee the said fund, if specifically set aside, and consequently is without remedy at law to enforce his rights, and must depend upon a court of equity for relief in the premises;’ that'the several officers of the Shipbuilding .Company have disagreed • among themselves concerning the management of said claim, and have refused to co-operate with Kraffmiller in the collection thereof, and that the affairs of the company are being grossly mismanaged, and its assets will be dissipated, unless relief in equity be granted to the plaintiff; that there are outstanding obligations, exceeding $260,000, against the company now past due, exclusive of plaintiff's claims; and plaintiff avers that it is the intention of the Shipping Board to disregard the rights of plaintiff and Kraffmiller to collect the funds set up in the said claim, and it is the intention of the officers of the Shipbuilding Company, in case of the payment of the claim to them, to remove the funds from this District and dissipate the same m payment of extravagant salaries and favored claims; that any attempt by plaintiff to enforce his claim against the company would lead to similar action by other creditors, resulting in wasteful strife and controversy. Wherefore plaintiff prayed for the appointment of a receiver by the court, with full authority to collect all the assets of the Shipbuilding Company and to fully liquidate its business, and that in the meantime the defendants, together with all stockholders, creditors, and other parties in interest be enjoined from interfering with the control of said assets by such receiver, and for all general relief. After the filing of the foregoing bill, to wit, on January 13, 1925, Tracy E. Griffin was appointed and qualified as receiver in bankruptcy for said Meaeham & Babcock Shipbuilding Company, by the United States District Court for the Western District of the state of Washington, and was expressly ordered by the court to proceed through other representatives with the prosecution of the claim of the bankrupt against the United States Shipping Board. The plaintiff then filed an amended and supplemental bill of complaint, alleging said appointment’ and making the receiver a party defendant to the bill; also repeating in substance the allegations and prayers of the original bill. Thereupon the defendants the Meaeham & Babcock Shipbuilding Company and Tracy E. Griffin, receiver in bankruptcy, appeared specially in the suit and moved the court to vacate the alleged service of summons in the ease, showing by affidavits therewith filed that service was attempted to be made in the state of Washington upon Thomas Lyle as the agent of said company, whereas in fact Lyle was not an officer or agent of the company at the time, and that no other serivee of summons was ever made upon the company in this suit. The defendants United States Shipping Board, the United States Shipping Board Emergency Eleet Corporation, the Secretary of the Treasury, and the Treasurer of the United States filed a motion to dismiss the bill of complaint, upon the ground that the suit was against the Shipping Board, and therefore one against the United States, which is not a party to the suit, and has not consented to be sued in the proceedings; also that the plaintiff is attempting to attach, by way of garnishment, funds in the Treasury of the United States. A certificate was also filed by the United States Shipping Board, reciting the disallowance on April 10, 1923, of the claim presented to the board by the Shipbuilding Company, being the claim underlying this suit. The lower court sustained the motions to dismiss the original and the amended and supplemental bills of complaint, and so decreed. This appeal was then taken. We think the ruling of the lower court was right. The object of the present suit, as set out in the bill of complaint, was the liquidation of the affairs of the Meaeham & Babcock Shipbuilding Company, by the appointment of a receiver who was to take exclusive possession of all of its assets and finally administer upon them under the orders of the court in this ease. Such general relief, however, could in no event be granted until after jurisdiction was acquired by the court over the company by a lawful service of summons upon it. Section 1537, Code D. C., provides the method of service upon foreign corporations within the District of Columbia, but none of its requirements was complied with in this ease. The record discloses that no lawful service was ever made upon the company, and no effective service for the purposes of this case can be made, owing to the bankruptcy proceedings begun in another court having full jurisdiction. If, on the other hand, the present suit be regarded simply as one for the enforcement of an alleged lien in favor of Kraffmiller upon the proceeds of the claim pending before the Shipping Board, it is a sufficient answer to say that the plaintiff, of course, cannot claim such a lien as security for the money loaned by Kraffmiller to the Shipbuilding Company on notes and accounts, and as to the claim pending before the Shipping Board, no part thereof has been allowed or collected, and consequently no part of the contingent fee provided for by the contract has accrued to Kraffmiller. The pending claim in fact has been rejected and disallowed by the Shipping Board. The plaintiff complains that officers of the Shipbuilding Company have not aided Kraffmiller in his prosecution of the claim, as they were bound to do under the contract, and that others have since been called in without his consent to prosecute the claim. We think that the terms of Kraffmiller’s contract gave him no lien capable of enforcement under these circumstances. De Winter v. Thomas, 34 App. D. C. 84, 27 L. R. A. (N. S.) 634. Moreover, the appointment of a receiver in bankruptcy for the Meacham & Babcock Shipbuilding Company, made at a time when the lower court had not acquired jurisdiction over the company, together with the order of the bankruptcy court upon the receiver in bankruptcy to proceed with the collection of the claim against the Shipping Board, renders ineffectual any orders such as are sought by the plaintiff in this suit, even if granted; for the bankrupt estate, including the pending claim, must necessarily be administered in the bankruptcy court. In re Watts & Sachs, 190 U. S. 1, 23 S. Ct. 718, 47 L. Ed. 933. The appellant contends that it was error for the lower court to hear evidence in support of the motion to dismiss for want of jurisdiction. We do not think this was prejudicial error. With these conclusions in mind, we find it unnecessary to discuss the various other questions presented by the case. The decree of the lower court is affirmed, with costs. 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_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. SHAPIRO & SON BEDSPREAD CORP., Plaintiff-Appellant-Cross-Appellee, v. ROYAL MILLS ASSOCIATES, a partnership, Isadore Gindi, Joseph Gindi, Sam Gindi, Joseph Home Decoration, Inc., and Roto-Print Machinery Corp., Defendants-Appellees, Royal Mills Associates, Isadore Gindi, Joseph Gindi, and Sam Gindi, Defendants-Appellees-Cross-Appellants. Nos. 544, 677, Dockets 84-7739, 84-7765. United States Court of Appeals, Second Circuit. Argued Dec. 21, 1984. Decided May 22, 1985. Donald L. Kreindler, New York City (Kreindler & Relkin, P.C., New York City, of counsel), for plaintiff-appellant-cross-ap-pellee. Ezra Sutton, Woodbridge, N.J., for defendants-appellees-cross-appellants. Before VAN GRAAFEILAND, PIERCE and WINTER, Circuit Judges. PIERCE, Circuit Judge: This case involved cross-suits before Robert Sweet, Judge, in the United States District Court for the Southern District of New York. It arose from a dispute between two competitors that manufacture bedspreads and accessories (hereinafter referred to simply as “bedspreads”). The plaintiff and appellant Shapiro & Son Bedspread Corp. (“Shapiro”) contends that the district court erred in dismissing its complaint of copyright infringement on a motion for summary judgment. The defendants and cross-appellants Royal Mills Associates, and three of its individual partners (“Royal”) claim error in the district court’s dismissal of their counterclaim, which alleged that Shapiro’s action was brought in bad faith and sought damages and a declaratory judgment that Shapiro’s claimed copyright was invalid. For the reasons hereinafter stated, we reverse the district court’s dismissal of Shapiro’s claim, and we affirm the dismissal of Royal’s counterclaim. Background The essential facts of this case are few and garnered from an undeveloped record, but are largely undisputed. On October 28, 1978, Shapiro published a new fabric design, entitled “6723-4 Lace Fantasy” (“Lace Fantasy”), to be incorporated into bedspreads. Lace Fantasy soon became Shapiro’s best-selling line, with sales aggregating more than 500,000 units from the design’s inception until this action was commenced on May 26, 1983. The bedspreads were distributed and sold in heat-sealed plastic bags. During the above period, all of the Lace Fantasy bedspreads distributed by Shapiro contained a printed flyer inserted into the heat-sealed bags containing the bedspreads. The flyer bore the words “Design Copyrighted.” In April, 1983, Shapiro learned that its competitor, Royal, was selling bedspreads under the name “Lace Splendor” with a design strikingly similar to Lace Fantasy, but at a lower price than Shapiro’s product. Shapiro then took steps to register a claim of copyright for its Lace Fantasy design. During this process, Shapiro became aware that the flyers it was inserting into the bags containing its bedspreads were legally insufficient to sustain a claim of copyright. The record indicates, and Royal concedes, that Shapiro took measures to affix an appropriate copyright notice to all bedspreads already manufactured but still in its possession, and to all those subsequently manufactured. Joint Appendix at 37-38, 122-25; Brief for Defendants-Appellees-Cross-Appellants at 6. The copyright registration form submitted to the Library of Congress contained, in addition to a copy of the flyer bearing the defective notice, a photograph of a Lace Fantasy bedspread with a sewn-in label bearing the typewritten words “Copyright by Everwear.” This copyright notice apparently was not identical to the corrected notice that was actually affixed to Shapiro bedspreads after the deficiency in the earlier notice was discovered. Royal claims this constitutes a misrepresentation, but does not contest the sufficiency of the labels now affixed by Shapiro, nor does it argue that the label submitted with the copyright registration application was insufficient. After it obtained registration of its copyright, Shapiro wrote to Royal demanding that Royal cease infringing the Lace Fantasy design. Royal rejected the demand, and this action followed. In a decision dated July 25, 1983, Judge Sweet denied Shapiro’s motion for a preliminary injunction. This decision was based on his finding that Shapiro’s publication of the Lace Fantasy design for close to five years, coupled with its failure to present evidence showing that a “cure” of the publication without proper notice had been effected, left Shapiro with only a slim chance of success on the merits and did not raise sufficiently serious questions going to the merits to make them a fair ground for litigation. Shapiro & Son Bedspread Corp. v. Royal Mills Associates, 568 F.Supp. 972 (S.D.N.Y.1983). By order dated February 10,1984, Judge Sweet granted Royal’s motion for summary judgment. This ruling, which is now before us, relied heavily upon his earlier denial of a preliminary injunction, and was predicated specifically upon the court’s determination that Shapiro had failed to demonstrate that it had made any effort to add proper notice of copyright to those bedspreads bearing deficient notice, and which had not yet been “distributed to the public” within the meaning of section 405(a) of title 17, U.S.Code. Accordingly, the court held Shapiro’s copyright to be invalid and dismissed the complaint. Some months later, by order dated August 9, 1984, Judge Sweet dismissed Royal’s counterclaim, which had alleged that Shapiro’s action was brought in bad faith and sought damages and a declaratory judgment that Shapiro’s copyright was invalid. Judge Sweet observed that his earlier holdings regarding Shapiro’s failure to cure its defective notice involved issues of first impression in this Circuit and elsewhere, and thus that Shapiro’s action was not brought with malice, but rather was colorable. He further found that Shapiro, in its application for registration of copyright, made no misrepresentations to the Register of Copyrights that would sustain a finding that the action was brought maliciously. Discussion A. The Shapiro Appeal Shapiro jeopardized its present claim of copyright in the Lace Fantasy design by publishing it without proper notice of copyright for the period October 1978 to April 1984, during which the only notice on the product was the words “Design Copyrighted” which appeared on the flyer inserted into the bags containing the bedspreads. Shapiro’s original notice was deficient in two respects: (1) it was not in the form specified by 17 U.S.C. section 401(b), which requires that in the case of a copyrighted design reproduced in or on a “useful article,” the legend “Copyright,” “Copr.” or the symbol © be followed by the name of the owner of copyright in the work; and (2) it was not “affixed to” the work, as required by section 401(c). In general, publication of a work without a proper notice of copyright affixed injects the work into the public domain. See 17 U.S.C. § 405(a) (1982); 2 M. Nimmer, Nimmer on Copyright § 7.14[A] (1984). Section 405(a), however, permits a defective notice to be cured and copyright to attach, if certain conditions are met: (1) proper notice was omitted from only a relatively small number of works distributed to the public; or (2) copyright registration for the work is effected within five years of the publication without proper notice, and a reasonable effort is made to add proper notice to all works that are distributed to the public after the omission of proper notice has been discovered; or (3) proper notice was omitted by a third party in violation of the copyright owner’s express written requirement that it be included. See 17 U.S.C. § 405(a) (1982). In view of the eoncededly large number of works bearing defective notice that Shapiro distributed (more than 500,-000), and of the absence of any suggestion that anyone other than Shapiro was responsible for the defective notice, it appears that the only applicable section 405 curative provision is subsection (a)(2). Consequently, the principal issue presented is whether Shapiro’s efforts to add proper notice to all works distributed to the public after the defectiveness of the original notice was discovered were “reasonable” within the meaning of section 405. If they were, Shapiro may be found to have cured its earlier omission of proper copyright notice by making a reasonable effort to add notice, and by effecting copyright registration within five years of the initial publication without notice. Shapiro would then have several possible remedies against infringers. See 17 U.S.C. §§ 501-509 (1982). If, on the other hand, Shapiro’s efforts were not “reasonable” within the meaning of section 405, it would have no valid claim to copyright in the Lace Fantasy design, and that design, by virtue of its publication without proper notice, now would be in the public domain. 17 U.S.C. § 405(a) (1982). The question whether efforts made to cure defective notice are “reasonable” has not yet been exhaustively examined by the courts. See 2 M. Nimmer, Nimmer on Copyright § 7.13JTB], at 7-94 (1984). It nevertheless seems clear that if no effort is made to add proper notice to copies distributed to the public after the defective notice is discovered, no cure is accomplished. When, however, some effort is made, the question whether it was “reasonable” is one of fact. Cf. In re M/T Alva Cape, 405 F.2d 962, 969 (2d Cir.1969) (whether precautions taken to avert explosion were “reasonable” requires full exploration of surrounding circumstances). Section 405(a)(2) requires reasonable efforts to add notice to “all copies ... that are distributed to the public in the United States after the omission has been discovered.” A fair reading of this language indicates that it covers all copies bearing defective notice at the time the defect is discovered, and which have not yet been distributed to the public — that is, all those copies which are distributed to the public after the defect is discovered. In Shapiro’s case, these copies include those in its own hands when the defective notice was discovered and thereafter, as well as those at an intermediate state in the distribution chain, having left Shapiro’s facilities but not yet sold to consumers. All of these are copies which bore defective notice, and which had not yet been distributed to the public within the meaning of section 405(a)(2). In dismissing Shapiro’s complaint, the district court held that “no action to affix the required notice [was taken] by Shapiro,” and accordingly granted Royal’s motion for summary judgment. Slip op. at 4 (S.D.N.Y. Feb. 3, 1984). In doing so, however, the court seems to have disregarded the inventory of defective bedspreads that Shapiro itself had on hand. Upon discovering that the notice was defective, it appears that Shapiro took prompt steps to correct the notice on the bedspreads in its inventory and to ensure that it shipped no further units without proper notice affixed. Consequently, the record does not support the conclusion that “no action” to cure the defective notice was undertaken by Shapiro. Rather, the question becomes .whether the efforts that were undertaken may be held to be unreasonable as a matter of law, in order to sustain the district court’s grant of summary judgment to the defendants. In our view, Shapiro’s actions cannot be deemed to be unreasonable as a matter of law. The number of bedspreads in Shapiro’s possession vis-a-vis those already shipped is a still-unresolved question of fact. Shapiro concedes, however, that although it re-la-belled the inventory still in its possession, it took no steps to add proper notice to those bedspreads already shipped to retailers but not yet sold to consumers. This decision, according to the affidavit of Shapiro’s president, was made because the bedspreads were typically sold in small quantities to numerous retailers, whose turnover of the bedspreads was rapid. In Shapiro’s view, efforts to add notice to these bedspreads would have been unavailing, chiefly because by the time the information regarding distribution of the product could be gathered and proper notice prepared and distributed, the defective inventory would already have been sold. Additionally, Shapiro asserts that attempts by retailers to properly “affix” notice to the bedspreads would render the bedspreads unsaleable to consumers, because the retailers would have to open the heat-sealed bags in which the bedspreads were contained and would not be able to re-seal those bags. Royal, however, chiefly relying upon Beacon Looms, Inc. v. S. Lichtenberg & Co., 552 F.Supp. 1305 (S.D.N.Y.1982), contends that Shapiro’s failure to undertake efforts to add proper notice to the already-distributed bedspreads rendered summary judgment appropriate in this case. We disagree. In Beacon Looms, which involved allegations of infringement of a design for curtain panels, the district court held that the sending of only 50,000 pressure-sensitive labels to customers, who had ordered 900,-000 panels in the preceeding nine months, was not a “reasonable” attempt to cure the omitted notice. Accordingly, the court granted a preliminary injunction against the assertion by the defendant of copyright in the curtain design. 552 F.Supp. at 1313-14. We do not believe that the rationale of Beacon Looms applies to the case before us. In Beacon Looms, there did not appear to be any evidence regarding the turnover rate of the panels distributed to retailers. Further, no notice at all had been affixed to the panels, possibly misleading a purchaser into believing no copyright was claimed. Finally, there was testimony in Beacon Looms that the purported copyright claimants themselves believed that the number of pressure-sensitive labels they had sent in order to remedy the defect was insufficient to cover the number of units remaining in the hands of retailers. Id. at 1313. Here, by contrast, the record suggests that there was a rapid turnover of inventory, which could lead to a finding that efforts to re-label product already shipped would have been unavailing; moreover, some form of notice, albeit defective, had been included, so that a purchaser would be aware that some proprietary-claim was being asserted. Other district court cases that have considered whether efforts to add curative notice are “reasonable” have also involved efforts by the copyright claimants to add notice to units no longer in their own possession. E.g., Florists’ Transworld Delivery v. Reliable Glassware Co., 213 U.S. P.Q. (BNA) 808 (N.D.Ill.1981). We do not, however, believe that the mere consideration of this factor elevates it to the status of a statutory requirement under section 405. Although such a factor is clearly relevant, the fundamental inquiry remains whether the efforts undertaken in a given case, viewed as a whole, were “reasonable.” See O’Neill Developments, Inc. v. Galen Kilbum, Inc., 524 F.Supp. 710 (N.D. Ga.1981). Here, where the record indicates that at least some of the bedspreads bearing defective notice and not yet distributed to the public were apparently properly relabelled, there remains an issue of fact as to how many were re-labelled compared to those not re-labelled. Further, there is an issue as to whether Shapiro’s efforts to relabel product already shipped would have been unavailing. In sum, there remains a material question of fact as to whether Shapiro’s efforts, taken as a whole, were reasonable. It is well-settled that summary judgment is improper where material issues of fact remain to be determined; the burden is upon the movant to show the absence of such issues, and we read the record in the light most favorable to the party opposing the motion. E.g., Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49, 54 (2d Cir.1985). We accordingly conclude that the district court’s grant of summary judgment on the question of the reasonableness of Shapiro’s efforts was error, and therefore reverse and remand for further proceedings in the matter. B. The Royal Cross-Appeal Royal has cross-appealed from Judge Sweet’s dismissal of its counterclaim, which sought a declaratory judgment that Shapiro’s copyright was invalid, and damages caused by Shapiro’s allegedly bringing this action in bad faith. Whether or not Shapiro ultimately prevails on its claim, however, we see no basis for a ruling that its action was brought in bad faith. Accordingly, we affirm the dismissal of Royal’s counterclaim. Royal also contends that in view of the alleged invalidity of Shapiro's copyright claim, Shapiro’s actions in notifying Royal’s customers that Royal was infringing Shapiro’s copyright and that this could have adverse legal consequences for sellers of Royal’s allegedly infringing product unlawfully interfered with Royal’s business. In our view, however, Shapiro’s actions were not improper, since if in fact Shapiro has a valid copyright in the Lace Fantasy design, as may prove to be the case, sellers of infringing works may indeed be subject to certain sanctions. 17 U.S.C. §§ 106, 501 (1982). Finally, Royal alleges that Shapiro “made a misrepresentation” to the Register of Copyrights by submitting, in connection with its copyright application, a photograph of a Lace Fantasy bedspread with a sewn-in copyright notice that was not identical to the one actually affixed to the bedspreads. This, Royal claims, warrants reversal of the district court’s grant of summary judgment to Shapiro on Royal’s counterclaims. We disagree. Since the notice submitted to the Register apparently complied with the statutory requirements, as did the notice actually affixed by Shapiro after it discovered the original defect, in our opinion any “misrepresentation” that may have taken place is de minimis and does not warrant reversing the dismissal of the counterclaim. Conclusion For the reasons hereinabove stated, we affirm the district court’s dismissal of Royal’s counterclaim, and reverse and remand the dismissal of Shapiro’s claim of copyright infringement for further proceedings on the question of the reasonableness of Shapiro’s efforts to cure the defective copyright notice packaged with its bedspreads. . Judge Sweet noted that "[t]he identity of size, dimension, curve and angle is so striking that the conclusion that Royal’s design was created by laying tracing paper on Shapiro's pattern would not be an unreasonable one.” 568 F.Supp. 972, at 979 (S.D.N.Y.1983). . Shapiro asserts on appeal that it had approximately 25,000 defectively-labelled bedspreads on hand, which it re-labelled. We are unable to find support in the record for this, but in any event do not rely upon this figure, noting only that the number of bedspreads re-labelled by Shapiro remains a material fact in dispute, bearing upon the reasonableness of Shapiro’s efforts. . Although section 405(a) speaks in terms of the “omission" of notice, "[t]he legal consequences are the same regardless of whether there has been an omission of any notice whatsoever, or whether an improper notice ... is used." 2 M. Nimmer, Nimmer on Copyright § 7.14, at 7-102 n. 1 (1984). This conclusion, moreover, is completely consistent with the language of section 405, which expressly relates to the "omission of the copyright notice prescribed by sections 401 through 403” — that is, the omission of proper notice, which encompasses the inclusion of defective notice. See also 17 U.S.C. § 406(c) (1982) (copies publicly distributed by authority of copyright owner without a notice containing name and date are considered to be published without notice and claims of copyright therein are governed by section 405). . We note, however, that by publishing the design for some 41/2 years before effecting copyright registration, Shapiro may no longer seek the remedies of statutory damages or attorney’s fees. 17 U.S.C. § 412 (1982). . We note that the time of "discovery” of improper notice, at least where the claimant has intentionally failed to include notice, has been considered by some to take place at the time of the first publication of the work. See Beacon Looms, Inc. v. S. Lichtenberg & Co., 552 F.Supp. 1305 (S.D.N.Y.1982); 2 M. Nimmer, Nimmer on Copyright § 7.13[B][3] (1984). Here, however, there was clearly some attempt made by Shapiro to protect its rights by including a copyright notice, albeit defective; in such a case, "discovery” of the omission of proper notice takes place when the claimant is apprised that the notice is for some reason insufficient for its intended purpose. 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_respond1_3_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 "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant. NG HEU YIM v. BONHAM, District Director of Immigration and Naturalization. No. 7944. Circuit Court of Appeals, Ninth Circuit. Oct. 28, 1935. Fred H. Lysons, of Seattle, Wash., for appellant. J. Charles Dennis, U. S. Atty., and F. A. Pellegrini, Asst. U. S. Atty., both of Seattle, Wash., for appellee. Before WILBUR, GARRECHT, and MATHEWS, Circuit Judges. Rehearing denied Dec. 20, 1935. MATHEWS, Circuit Judge. Appellant, a Chinese person, sought admission to the United States, claiming to be a native-born citizen thereof who, as a child, had gone to China, and was entitled to re-enter. A Special Board of Inquiry, appointed under section 17 of the Immigration Act of February 5, 1917, c. 29, 39 Stat. 887, 8 USCA § 153, determined, after hearing, that appellant should not be admitted. On appeal, the Secretary of Labor upheld this determination. Appellant then petitioned the District Court for a writ of habeas corpus, and, from an order denying his petition, has appealed to this court. The Secretary’s decision denying appellant admission to the United States is final and conclusive upon the courts, unless it be shown that the proceedings were manifestly unfair or conducted in an unlawful or improper ■ way, or that there was a manifest abuse of discretion. Quon Quon Poy v. Johnson, 273 U. S. 352, 358, 47 S. Ct. 346, 71 L. Ed. 680; Kwock Jan Fat v. White, 253 U. S. 454, 457, 40 S. Ct. 566, 64 L. Ed. 1010; Low Wah Suey v. Backus, 225 U. S. 460, 468, 32 S. Ct. 734, 56 L. Ed. 1165; Tang Tun v. Edsell, 223 U. S. 673, 675, 32 S. Ct. 359, 56 L. Ed. 606; Chin Yow v. United States, 208 U. S. 8, 11, 28 S. Ct. 201, 52 L. Ed. 369; United States v. Ju Toy, 198 U. S. 253, 261, 25 S. Ct. 644, 49 L. Ed. 1040. Appellant charges that the Board of Special Inquiry and the Secretary of Labor acted unfairly, arbitrarily, and capriciously in rejecting and dismissing from consideration evidence which, appellant says, established his birth in the United States, and which, he says, was “uncontroverted and free from material discrepancy.” This charge is not supported by the record. Appellant produced no birth certificate or other documentary proof that he was born in the United States. He testified before the Board on August 13, 1934, that he was born at Ogden, Utah, on February 2, 1903, and that when he was nine or ten years old he, with his father, mother, two brothers, and a sister, went to China, all of them traveling on the same ship and sleeping in the same room during the voyage. On March 2, 1935, at a further hearing before the Board, appellant testified that, in going to China, he and other members of his family did not travel together or on the same ship, but that he and one brother went on one ship from San Francisco to China, that the other members of his family went first to Mexico, and thence, on another ship, to China, and that his previous testimony on this subject was false. In view of this admitted falsity, the Board and the Secretary were warranted in rejecting the whole of appellant’s testimony. Ngai Kwan Ying v. Nagle (C. C. A.) 62 F.(2d) 166; Yee Sing Jong v. Nagle (C. C. A.) 40 F. (2d) 907; Chin Lim v. Nagle (C. C. A.) 38 F.(2d) 474; Moy Chee Chong v. Weedin (C. C. A.) 28 F.(2d) 263; Weedin v. Ng Bin Fong (C. C. A.) 24 F.(2d) 821. John Walker, a white witness of good character and unquestioned veracity, testified that between 1900 and 1912 he was well acquainted with Ng Ah Lim, the alleged father of appellant; that Ng Ah Lim and his wife then lived at Ogden, Utah, and had several children, one of whom was a boy known to the witness as Ng Heu Yim; that the witness first saw this boy when he (the boy) was two or three months old; that he was “more or less familiar” with him thereafter until the family left Ogden in 1912 or 1913, the boy being then about nine or ten years old; that the witness did not see the boy again until 1933, at which time he went to the Immigration Office at Seattle for the purpose of identifying, and did then and there identify, appellant as the boy whom he had last seen at Ogden more than twenty years before. The witness stated that he was able to make this identification because of the “very striking resemblance” between appellant and his alleged father; that appellant “looks exactly like I expected him to look. He is just like his father was when I first saw his father, except that he is a little thinner. He looks like he looked when he was a little boy.” Asked if he could positively identify appellant, the witness stated: “He looks like Heu Yim to me. I could be fooled, but I do not think so.” This is far from constituting “uncontroverted evidence” that appellant was born in the United States. All it amounts to is that the witness Walker believed that appellant and the Chinese boy whom he had known twenty years previously were one and the same person. The Board of Special Inquiry, who saw and observed appellant, did not accept or share this belief. It cannot be said that, in rejecting it, the Board abused its discretion or acted unfairly or improperly. Tang Tun v. Edsell, supra, 223 U. S. 673, page 681, 32 S. Ct. 359, 56 L. Ed. 606; Hung You Hong v. United States (C. C. A.) 68 F.(2d) 67; Au Wee Sheung v. United States (C. C. A.) 44 F.(2d) 681. No other witness testified that appellant was born in the United States. There is, therefore, no basis for the claim that the Board or the Secretary unfairly, arbitrarily, or capriciously rejected “uncoutroverted” evidence to that effect. Appellant complains of the Board’s action in rejecting a statement by the Honorable L. B. Schwelienbach, United States Senator from the state of Washington, to the effect that appellant was “the most distinctive looking Chinese” he had ever seen. In his brief appellant refers to Senator Schwelienbach as a “witness” and to his statement as “testimony.” As a matter of fact, the Senator was not a witness and gave no testimony in the case. The statement referred to was contained in a letter to the Commissioner of Immigration. Though not sworn to, it appears to have been given respectful consideration. The Board concluded, however, and we think was justified in concluding, that the Senator’s statement had no materiality “with respect to the identity or admissibility of the applicant.” Appellant’s contention that, in so holding, the Board showed prejudice or unfairness cannot be sustained. Order affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant? A. Food & Drug Administration B. General Services Administration C. Government Accounting Office (GAO) D. Health Care Financing Administration E. Immigration & Naturalization Service (includes border patrol) F. Internal Revenue Service (IRS) G. Interstate Commerce Commission H. Merit Systems Protection Board I. National Credit Union Association J. National Labor Relations Board K. Nuclear Regulatory Commission Answer:
songer_indict	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the indictment was defective?" 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". Peggy R. HAMMOND, Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Appellee. No. 84-2185. United States Court of Appeals, Fourth Circuit. Submitted April 8, 1985. Decided June 24, 1985. (Robert L. White, Greenville, N.C., on brief), for appellant. (Samuel T. Currin, U.S. Atty., R.A. Renter, Jr., Asst. U.S. Atty., Raleigh, N.C., on brief), for appellee. Before MURNAGHAN, ERVIN and WILKINSON, Circuit Judges. PER CURIAM: Peggy Hammond appeals from a judgment of the district court affirming the Secretary’s decision to deny Hammond’s applications for social security disability insurance benefits and supplemental security income. Because we find that the Secretary improperly compressed Hammond’s claim to fit within one of the Department of Health and Human Services’ recognized medical-vocational categories, we vacate the denial of benefits and remand for further individualized proceedings. Hammond, forty-four years old at the time of the incident precipitating this case, has graduated from high school and has received training as a hospital technician. This training prepared her to work at Pitt Memorial Hospital in Greenville, North Carolina, where her duties included assistance in the movement of bed-ridden patients. On May 29, 1980, Hammond sprained her back while lifting one such patient whom she later estimated to weigh two hundred thirty-five to two hundred forty pounds. Hammond found that the injury left her unable to perform substantial gainful activity, and she applied for social security benefits. The Social Security Administration denied the claims in October 1982 and again on reconsideration in December 1982, upon which Hammond sought a hearing in her case. In April 1983, an administrative law judge listened to Hammond’s testimony and received in evidence the medical records made at the time of the injury by Pitt Memorial Hospital and the medical reports made subsequently by Hammond’s physician, Dr. Andrew Best, and by a consultative examiner, Dr. Richard Rawl. The AU concluded from this information that Hammond was too severely impaired to return to her position as a hospital technician but that she retained the residual functional capacity to perform a full range of sedentary work. After that step, the adjudicative process was entirely mechanical. The AU simply referred to a “grid” published by the Department of Health and Human Services which stated that the national economy provides employment opportunities for a person of Hammond’s age and experience who can perform sedentary work. See Rule 201.21, Table No. 1 of Appendix 2, 20 C.F.R. § 404, Subpart P. On the basis of that reading, the AU rejected Hammond’s benefits claims. The decision became the final action of the Secretary when the Appeals Council declined Hammond’s request for review. This court has recently remarked that “when an AU uses the grid, the most important finding that the AU must make is what kind of physical activity the claimant can sustain.” Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir.1984). Given the obvious difficulties in encompassing a very large number of cases within a few general categories, the questions of whether and how to classify claimants raise to a high level the special AU “duty of inquiry” described by Justice Brennan in Heckler v. Campbell, 461 U.S. 458, 470-473, 103 S.Ct. 1952, 1959-1960, 76 L.Ed.2d 66 (1984). The regulations themselves accordingly require that individual attention be devoted to cases with parameters different from those in the official matrices. See Heckler v. Campbell, 461 U.S. at 462 n. 5, 103 S.Ct. at 1955 n. 5. In applying this principle of caution, we have discussed two types of claimants that the grids inadequately describe: the claimant who suffers a disability present in the absence of physical exertion and the claimant who suffers in exertion a disability that restricts her from performing the full range of activity covered by a category. Hall v. Harris, 658 F.2d 260, 265 (4th Cir.1981). In these types of cases, the AU may not give preclusive effect to the grids and must produce specific vocational evidence showing that the national economy offers employment opportunities to the claimant. See respectively Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir.1983); Wilson v. Heckler, 743 F.2d 218, 221-222 (4th Cir.1984). Hammond’s claim illustrates both of the limitations to the grid that are explained in Hall v. Harris. First, uncontradicted evidence shows that Hammond cannot perform the full range of sedentary work as defined by 20 C.F.R. § 404.1567(a). Hammond suffers from chronic lumbar strain that requires her to wear a back brace, to take both oral and injected analgesics, and to return several times each week to her treating physician, Dr. Best. She testified that she can neither sit nor stand for a full hour, cannot bend, stoop, lift, or climb, and cannot walk more than a few hundred yards twice a week. Dr. Best, whose opinion is entitled to great weight, DeLoatche v. Heckler, 715 F.2d 148, 150 n. 1 (4th Cir.1983), concluded that Hammond — even if she could find a position that required none of these prescribed activities — would be fifty to fifty-five percent disabled from performing the job. Hammond’s testimony and Best’s opinion are completely consistent with the consultative report of Dr. Rawl, which merely confirmed the presence of back strain with associated tenderness and noted the absence of arthritis and scoliosis. The evidence thus unanimously indicates that Hammond is in the same position as the plaintiff in Wilson v. Heckler: she cannot perform the full range of sedentary work because she cannot bend or squat or sit for six hours in an eight-hour day, even if she could perform the walking and standing that might be necessary. Cf. Wilson, 743 F.2d 221-222. Apart from Hammond’s imperfect correspondence to the sedentary listing in the Health and Human Services’ grid, reliance on the exertional table is inappropriate in this case because the Secretary has not adequately accounted for the nonexertional limitation suggested by Hammond’s claim that she is constantly in pain. The AU simply stated that “In view of the objective medical evidence of record, the undersigned does not find credible the claimant's subjective symptoms including pain of a level of severity as to preclude sedentary work activity.” In light of the apparent consensus among Hammond, Best, and Rawl that Hammond suffers steady pain, this statement may not stand without some support. The AU is required to make credibility determinations— and therefore sometimes must make negative determinations — about allegations of pain or other nonexertional disabilities. Smith v. Schweiker, 719 F.2d 723, 725 n. 2 (4th Cir.1984). But such decisions should refer specifically to the evidence informing the AU’s conclusion. This duty of explanation is always an important aspect of the administrative charge, see Gordon v. Schweiker, 725 F.2d at 235-236 (citing cases), and it is especially crucial in evaluating pain, in part because the judgment is often a difficult one, and in part because the AU is somewhat constricted in choosing a decisional process, Van Huss v. Heckler, 572 F.Supp. 160, 167 (W.D.Va.1983). As the grids may not alone support a denial of Hammond’s disability claim, the Secretary retains the burden of producing evidence that the national economy offers employment opportunities to Hammond. The judgment of the district court is therefore vacated and the case is remanded to the district court with instructions to remand to the Secretary. If the Secretary offers additional evidence, Hammond’s claim should be reconsidered in light of that evidence and any additional evidence that the plaintiff may choose to advance. If no additional evidence is presented, the judgment shall go for the plaintiff. VACATED AND REMANDED. This case was decided prior to the enactment of 42 U.S.C. § 423(d)(5)(A), which created a requirement of medical corroboration for a claimant's allegations of pain. As the findings of "pain” and "tenderness" by Best and Rawl satisfy the burden of production imposed by the statute, we need not consider the application of the provision in detail. Question: Did the court rule that the indictment was defective? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_geniss	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". HOLLYWOOD-MAXWELL CO. v. STREET’S OF TULSA et al. No. 4016. United States Court of Appeals Tenth Circuit. June 22, 1950. John Flam, Los Angeles, Cal. (Paul Dudley, Oklahoma City, Okl. and C. M. Me-Knight, Tulsa, Okl., were on the brief with him), for appellant. Frank L. Durr, New York City (Orville N. Greene, New York City, and David R. Milsten, Tulsa, Okl., were with him on the brief), for appellees. Before BRATTON, MURRAH and PICKETT, Circuit Judges. MURRAH, Circuit Judge. Appellant sued for infringement of its patent 1,997,995 (filed 1933 and issued to J. R. Bowen in 1935), relating to a brassiere designed to hold the breasts firmly in a conical shaped upright position, so as to lend attractiveness to the female figure. The prayer was for a decree of validity, infringement, and the usual injunctive relief. The trial court first held the patent valid and infringed. On remand for further evidence, however, the patent was held invalid for anticipation in view o'f a French patent number 613,888 (filed 1925 in Paris and issued in 1926), not considered in the first trial. This appeal is from that judgment. The claims and specifications of the patent in suit discloses a pair of breast cups of conformable fabric material, capable of closely overlying the breasts of the wearer. These cups are outwardly sewed or fastened to two members, preferably of the same material, which extend around the body and fasten together on the back by any suitable means. The cups are inwardly sewed or fastened to a center piece of a relatively inelastic fabric material extending along the inner arid lower edges of the cups and side members. The concavity in the lower center between the cups, formed by the extension of the center piece, is bridged by a piece of elastic. The usual shoulder straps run from the top edges of the breast cups to the side members in the rear. Each of the breast cups is formed from three sections of the fabric material, cut or fashioned so that when they are sewed or fastened together, they provide the desired conical or dome shape. One section is a triangular shaped insert adjacent the lower center part of the cup to provide a steep rise from the hollow between the breasts to the apex of the cups. Each cup is reinforced with spiral line stitching from the apex to its base. The salient and patentable features claimed for the patent are: the spiral stitching for reinforcement; the use of the triangular insert in the cup to give the abrupt rise; and the center piece joining the cups, with elastic bridging its lower extensions. The spiral stitching is intended to give strength and support to the cups. The center piece between the cups and extending along the lower edges is intended to maintain the definite hollow between the breasts by keeping them separated. The elastic strap bridging the concavity, formed by the extension of the center piece along the lower edges of the cups, is intended to urge the center fabric inwardly against the body of the wearer, and also to keep the cups firmly in place over the breasts, thus at all times molding the contours of the breast to the predetermined conical shape of the cups. Without describing the accused device, it is fair to state that it is “almost identical’’ to the patent in suit, and infringes if the patent is valid. The trial court so held, and that holding is not challenged on appeal. ■ And, for the patentee, it is conceded that the patent is invalid if, as the trial court held, it is clearly and definitely anticipated by the French patent. According to the agreed translation, the purpose of the French patent was to construct a brassiere in a manner to “complete the graceful and supple silhouette of every elegant woman, concerned about her good appearance.” It was pointed out that existing brassieres made of a fabric in the direction of the ground thread did not properly suit the globular form of the breasts, but tended to flatten and displace them by pushing them toward the center of the bust, thus giving the silhouette an “uncomely appearance * * * contrary to good taste”; and sometimes causing discomfort and interfering with the regular respiratory organs. In resume, the brassiere was described as “two globes or pockets in the form of funnels, intended to fix the breasts without compressing them, and each constituted by two pieces cut on the bias of the fabric and joined to each other by a seam.” These globes or pockets are sewed at their base on a frame of fabric cut in the direction of the ground thread, and intended to form an indeformable support for the two globes or pockets, by extension around the body and fastened in the rear. Another piece of fabric is then sewed to the lower edge of the frame, forming a band around the body below the breasts and above the corset. This band is made double in the part covering the abdomen, and at this point, is equipped with intercrossed stitching to insure a smooth graceful silhouette. The drawings in three figures exhibit the funnel shaped pockets with dotted lines, indicating circular or concentric stitching from the apex to the base, fastened to the frame with the band below, both equipped with suitable fastenings in the rear. It also indicates stitching of the frame in the center between the funnels, and cross stitching of the band as it is applied to the abdomen in front. This drawing depicts a close-fitting garment, intended to encase the upper part of the body, and in particular to mold and hold the breasts into predetermined accentuated contours. The French patent was issued and published more than one year before the patent in suit, and it is therefore competent to anticipate the domestic patent if, but only if, it teaches the invention with sufficient clarity and explicitness to enable those skilled in the art to understand its nature, and to carry it into practical use without further experimentation. Seymour v. Osborne, 11 Wall. 516, 78 U.S. 516, 20 L.Ed. 33; Cohn v. U.S. Corset Co., 93 U.S. 366, 23 L.Ed. 907; General Electric Co. v. Alexander, 2 Cir., 280 F. 852; Wisconsin Alumni Research Foundation v. George A. Breom & Co., 8 Cir., 85 F.2d 166; Steiner Sales Co. v. Schwartz Sales Co., 10 Cir., 98 F.2d 999; Dewey & Almy Chemical Co. v. Mimex, 2 Cir., 124 F.2d 986; Kelley-Koett Mfg. Co. v. McEuen, 6 Cir., 130 F.2d 488; Baldwin-Southwark Corp. v. Coe, 76 U.S.App.D.C. 412, 133 F.2d 359, 365; Application of Shepherd, 172 F.2d 560, 36 C.C.Pa.Patents 810. And, the burden is upon one relying upon anticipation to sustain it by clear and convincing proof. General Electric Co. v. Alexander, supra; Atlantic Gulf & Pac. Co. v. Wood, 5 Cir., 288 F. 148; Elec. Storage Battery Co. v. Shimadzu, 3 Cir., 123 F.2d 890. But precise identity between the claims and specifications of the domestic and foreign patent is not required — substantial identity is sufficient, and experimentation must be more than the work of a mechanic. Electric Storage Battery Co. v. Shimadzu, supra. Appellant asserts and offered evidence to the effect that the drawing and specifications of the French patent, properly translated, teach the art of stitching the constituent parts of the cups or funnels before they are sewed together, and that such stitching is circular and concentric, as distinguished from the continuous spiral stitching on the patent in suit. It is insisted that the spiral stitching from the apex to the base, after the cups have been formed, gives them durability and molding qualities which the French patent does not possess. It is suggested that the circular or concentric stitching of the fabric, before it is sewed together, leaves the stitching threads more susceptible to breakage and raveling with wear, thereby causing uncomfortable thread “whiskers” in the cups. The point of this argument is that the French patent does not teach the patentable art of spiral stitching after the cups are formed for purposes of strength and durability without further experimentation. It is also suggested that the cups in the French patent are formed from two segments of the material cut on the bias, and does not teach the art of using the triangular insert on the lower inside to give the cup the desired steepness. In any event, it is said that the French patent, is vague and susceptible of conflicting theories, rendering it incompetent as an anticipatory device. See Cimiotti Unhairing Co. v. Comstock Unhairing Co., C.C., 115 F. 524; Atlantic, Gulf & Pac. Co. v. Wood, 5 Cir., 288 F. 148, 155. The trial court explicitly recognized all of these distinguishing features in the two patents. It also recognized the rule of requisite definiteness and clarity to anticipate, and the heavy burden of proof to establish it. But it was nevertheless of the opinion that the French patent “teaches with the required degree of clarity the features upon which the claims of the Bowen patent are based; the distinct separation of the breasts by a garment which fits the wearer snugly about the body and in the hollow between the breasts; the uplifting molding of the breasts into conical contours by means of shaped cups constructed of segments of conformable material, strengthened by stitching; and the production of a pleasing contour by immobilizing, although not compressing the breasts.” And, recognizing the rule that perfection of workmanship to achieve an even better result by the same or substantially the same means, does not involve invention, i. e. see Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58; Dow Chemical Co. v. Halliburton Co., 324 U.S. 320, 65 S.Ct. 647, 89 L.Ed. 973; Risdon Iron & Locomotive Works v. Medart, 158 U.S. 68, 15 S.Ct. 745, 39 L.Ed. 899 the trial court concluded that the use of spiral instead of circular stitching; the formation of the breast cups by three segments instead of two; and the use of a center strip and elastic stabilizer, instead of the more cumbersome cloth frame and abdomen band, were all changes in form or substitutions of mechanical equivalents involving only mechanical skill which did not alter the purpose or functions of the brassiere or any of its parts. We agree with the trial court. See Walker on Patents, Deller’s Ed., p. 136 et seq. But we think the court’s judgment rests on even firmer ground. Conceding arguendo that the French patent does not, when read within, its four comers, disclose the invention with sufficient clarity, to 'invalidate, it - is not incompetent as a part of the prior art to negative invention. See In re Eitzen, 86 F.2d 411, 24 C.C.Pa.Patents 772; Himmel Bros. Co. v. Serrick Corp., 7 Cir., 122 F.2d 740, 745. Spiral stitching for reinforcing various types of garments is not new since Levy 272,385 and Fritsch 403,93.4. The construction of breast cups from three segments, one of which is triangular and inserted on the inside, sewed together to give a conical shape, is disclosed by Cox 1,771,917, issued in 1928; the center piece or “spacing member” at the front used in a combination to maintain the hollow between the breasts and to urge them into place by the use of elastic at the lower edges, is disclosed by Malnick 1,882,023 .(1930), and Kunstadter 1,841,960 (1931). While separate features of different prior patents cannot be combined to constitute anticipation, Lincoln Stores, Inc. v. Nashua Mfg. Co., 1 Cir., 157 F.2d 154; Cover v. Chicago Eye Shield Co., 7 Cir., 111 F.2d 854, they are competent to show that what is claimed to be invention is no more than an aggregation of known elements to produce an improved result. Superior Seperator Co. v. Ottawa Steel Products, 10 Cir., 174 F.2d 483; Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58; Dow Chemical Co. v. Halliburton Co., 324 U.S. 320, 65 S.Ct. 647, 89 L.Ed. 973; Zephyr American Corp. v. Bates Mfg. Co., 3 Cir., 128 F.2d 380. “To prevent extention of a patent’s scope beyond what was actually invented, courts have viewed claims to combinations and improvements or additions to them with very close scrutiny.” Halliburton Oil Well Cementing Co. v. Walker, 329 U.S. 1, 10, 67 S.Ct. 6, 11, 91 L.Ed. 3. The appellant earnestly contends that it has combined known elements to produce a new and novel product, and points to its exceptional commercial success as balancing any doubt in its favor. It is .claimed that its product converted the brassiere from a mere retainer to a garment of fashion, and that it is entitled to the statutory' reward for its ingenuity. The degree of commercial success enjoyed by various devices of the prior art is not shown on this record, but we do know from the crowded ' prior art and common knowledge that such devices have historically been familiar attributes of the feminine toilet. It is not clear whether this particular brassiere created the stylish trend in accentuated breast contours, or whether its success was merely attributable to a bolder era. But in any event, we are convinced that when the patent in suit is considered against the background of the prior art, it amounts to, no more than the skillful arrangement of elements or features well known to the crowded art. See Walker on Patents, Deller’s Ed., p. 136. The judgment is affirmed. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_initiate	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. UNITED STATES of America, Plaintiff-Appellee, v. William Oliver JOHNSON, Defendant-Appellant. No. 16962. United States Court of Appeals Seventh Circuit. April 18, 1969. Jerry P. Belknap, Jon D. Noland, Indianapolis, Ind., for defendant-appellant; Barnes, Hickam, Pantzer & Boyd, Indianapolis, Ind., of counsel. K. Edwin Applegate, U. S. Atty., Robert L. Baker, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee. Before CASTLE, Chief Judge, and FAIRCHILD and CUMMINGS, Circuit Judges. CUMMINGS, Circuit Judge. Defendant was indicted for storing and concealing a stolen 1965 Chrysler, knowing it to have been stolen, in violation of Section 2313 of the Criminal Code (18 U.S.C. § 2313). The jury returned a verdict of guilty, and defendant received a six-month sentence with 1% years of probation to follow. The appeal is from this conviction. According to the evidence, this automobile was stolen in Berkeley, California, in early November 1966. Ira Summers delivered the car to defendant in St. Louis. Summers testified that he asked defendant to give him $75 for the car and that defendant promised to pay that amount but never did so. Defendant drove the car from St. Louis to Indianapolis some time in November. He testified that he employed the car from his personal use, that it was stolen from him and later recovered. Although defendant intended to have the Chrysler repaired after its recovery, he first took the wheels off the car and placed it on blocks in January 1967 so that no one could take it out of his yard. Two Indianapolis police officers observed it there, arrested defendant and impounded the car. After his January 12, 1967, arrest, defendant was twice questioned by FBI agents at the Indianapolis Police Department. At each of these 50-minute interviews, defendant signed inconsistent written statements. He refused to execute a written statement during a third interview in April 1967, but orally furnished the same information as in his second signed statement. On each of these three occasions, he executed a standard waiver of rights form. Over defendant’s objections, his two written statements and the three executed waiver of rights forms were admitted in evidence, and FBI agent Stuart was permitted to testify as to defendant’s oral statements. As grounds for reversal, defendant asserts that the trial judge should have conducted a preliminary hearing out of the presence of the jury as to the voluntariness of these statements. Defendant also assails the interstate commerce instruction and claims that there was inconsistency in the instructions relating to perpetration of the overt acts. We agree that a new trial is required. Necessity for Preliminary Evidentiary Hearing on Voluntariness of Defendant’s Statements The principal error raised is the admission of the three statements made by defendant to FBI agents without a preliminary hearing and determination of voluntariness by the trial court, outside the presence of the jury. Although apparently not bringing Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205, to the trial court’s attention, defendant’s counsel did request such a preliminary hearing. The Government now concedes that the exculpatory statements introduced were subject to the same standards of voluntariness as confessions and that the failure to hold a hearing in order to make an initial determination of this question was erroneous and requires a remand. On the other hand, the Government opposes a new trial. Our conclusion is that a new trial is necessary. To relegate defendant in the present case to a hearing on the issue of voluntariness of statements admitted in his trial almost four years after the decision in Jackson v. Denno would in effect make the protections afforded by that decision optional with the trial judge in future cases. Moreover, where, as here, the voluntariness of the statements has been raised on direct appeal in federal post -Jackson cases in which the defendant did not voluntarily testify prior to the Government’s attempt to introduce the statements, the Supreme Court intended to require a new trial, for it stated “It is both practical and desirable that in cases to be tried hereafter a proper determination of voluntariness be made prior to the admission of the confession to the jury which is adjudicating guilt or innocence” (378 U.S. at p. 395, 84 S.Ct. at p. 1791). Jackson was not given a new trial because he had been convicted in a state court prior to the Supreme Court’s new holding and was seeking collateral relief. Id. We cannot believe that the Supreme Court contemplated that defendants should continue to face the difficult choice of allowing such statements to go to the jury unchallenged or waiving the privilege not to testify in order to contest the voluntariness of the statements. Cf. United States v. Nielsen, 392 F.2d 849, 852 (7th Cir. 1968). Here the trial court’s refusal to conduct a preliminary evidentiary hearing and to make a preliminary finding of voluntariness compelled defendant to make this choice. Defendant is entitled to a new trial at which the district court must conduct a preliminary hearing outside the presence of the jury on the issue of voluntariness. Adequacy of Interstate Commerce Instruction In the interest of eliminating doubt as to the validity of the challenged instructions on retrial, we examine the asserted errors. The trial court sent all given instructions to the jury for consideration during its deliberations. The first instruction repeated the words of the indictment which claimed that the Chrysler “was moving as interstate commerce” from Berkeley, California, to Indianapolis, Indiana, at the time defendant stored it and concealed it “on or about January 11, 1967.” The ninth instruction quoted the pertinent part of Section 2313 of the Criminal Code proscribing the storage or concealment of a motor vehicle “moving as * * * interstate * * * commerce, knowing the same to have been stolen * * The final reference to interstate commerce in the court’s charge was contained in the tenth instruction, providing as follows: “In order to warrant the conviction of the defendant under the indictment in this case, the government must prove beyond reasonable doubt by the evidence: “1. That the vehicle described in the indictment was stolen; “2. That the said motor vehicle was moving as interstate commerce from Berkeley, California to Indianapolis, Indiana; “3. That the defendant stored and concealed the said motor vehicle in question; “4. That the defendant, when he stored and concealed the motor vehicle described in the indictment, if he stored and concealed it, knew that it was stolen property.” Defendant did not object to these instructions but successfully moved to amend the tenth one to read “stored and concealed” where, as proposed by the Government, it said “stored and received.” Defendant later tendered his own interstate commerce instruction providing : “You are instructed that unless you find that the defendant actually stored and concealed the motor vehicle described in the indictment while it was moving in interstate commerce, knowing it to be stolen, you must find the defendant not guilty.” This proposed instruction was denied because the district court concluded it was already covered. Defendant was not charged in the indictment with having stolen the Chrysler, nor with having transported it across state lines; the acts of concealing and storing the car in Indianapolis on or about January 11, 1967, are the gravamen of the crime charged. If the court had instructed the jurors that they could find the Chrysler was moving in interstate commerce from Berkeley, California, to St. Louis, Missouri, and no evidence had been adduced to show that the car was still in commerce on or about January 11 when defendant was discovered in possession of it in Indianapolis, defendant’s proposed instruction certainly would have been necessary. It has been held that where the defendant is not shown to have stolen the car or transported it, and there is no proof as to when or where the car entered the state, it is error to refuse an instruction that the Government had the burden of showing that the car was in interstate commerce at the time of the alleged acts of concealment. McAdams v. United States, 74 F.2d 37, 39 (8th Cir. 1934); Davidson v. United States, 61 F.2d 250, 255 (8th Cir. 1932); Wolf v. United States, 36 F.2d 450, 452 (7th Cir. 1929). However, the proof in the present case was ample to permit the jury to conclude that defendant himself transported the car from St. Louis to Indianapolis, knowing it to have been stolen. As the defendant rightly observes, the question whether a stolen car was a part of interstate commerce at the time of the alleged offense must be submitted to the jury. Schwachter v. United States, 237 F.2d 640, 644 (6th Cir. 1956). In our view, the first, ninth and tenth instructions taken together sufficiently advised the jury that it could not find defendant guilty if the car was not still “moving as interstate commerce” from Berkeley, California, to Indianapolis, Indiana, at the time of the storage and concealment in Indianapolis. Defendant urges that it was the theory of the defense that even if the ear was in commerce in November when defendant first brought it into Indianapolis, it had come to rest by reason of its intervening use and the alleged theft and recovery of the car during the period between November 1966 and January 11, 1967. But the fact that one who transports a stolen car in interstate commerce allows it to remain in the state or fails to exercise control over the car for a period of time does not mean that a jury is required to find that the car was no longer moving in interstate commerce. United States v. Meek, 388 F.2d 936, 938 (7th Cir. 1968). The jury’s guilty verdict found against the defendant on this issue, and he does not argue that its verdict was unsupported by the evidence. In the circumstances of this case, no prejudicial error occurred by reason of the court’s refusal to give the interstate commerce instruction tendered by the defendant. However, at the new trial, a single instruction to the effect that the jury must find the car to be moving in interstate commerce at the time of the acts of storage and concealment would eliminate any possibility of confusion. Alleged Inconsistency in Instructions 6 and 10 Instruction 10 charged that the Government must prove beyond a reasonable doubt that the defendant stored and concealed the Chrysler. Defendant concedes that this instruction “may have correctly charged the jury as to the law applicable to this case.” However, defendant contends that the following Instruction 6, “in the abstract * * * a correct statement of the law,” is inconsistent with Instruction 10: “Every person who wilfully participates in the commission of a crime may be found guilty of that offense. A defendant need not personally perpetrate' every act constituting the offense charged in order to be found guilty.” At the trial, defense counsel objected to Instruction 6 on the ground that it “would mislead the jury into thinking that the defendant need not be personally involved” and accordingly conflict with Instruction 10. Since Instruction 6 refers to wilful participation in the commission of the crime, it is not truly inconsistent with the statement in Instruction 10 that the Government must prove beyond a reasonable doubt “That the defendant stored and concealed the said motor vehicle in question.” Taken together, it iá obvious that the defendant could be found guilty if he participated in the storage and concealment even though he did not personally perpetrate every act of storage and concealment. This accords with Section 2 of the Criminal Code (18 U.S.C. § 2) relating to principals. The verdict was proper whether the jury found defendant guilty because he personally perpetrated the storage and concealment or because he wilfully participated in it. Therefore, there was no reversible error in giving Instructions 6 and 10. But on retrial it would be desirable to give the jury more guidance as to the criminal liability of an aider and abetter if the evidence should warrant any instruction on this issue. Jerry P. Belknap and Jon D. Noland of the Indianapolis bar were appointed to represent defendant here under the provisions of the Criminal Justice Act of 1964. They are to be complimented for the excellence of their services on this appeal. Reserved and remanded for a new trial. . Compare United States v. Feinberg, 383 F.2d 60, 70 (2d Cir. 1967), certiorari denied, 389 U.S. 1044, 88 S.Ct. 788, 19 L.Ed.2d 836. In that case the court noted in dictum that a remand might be all that is required in a post -Jackson case, but there Feinberg had independently-chosen to take the stand prior to the admission of his statement. . See also Smith v. Texas, 395 F.2d 958, 962-963 (5th Cir. 1968); Fisher v. United States, 382 F.2d 31, 34-35 (5th Cir. 1967); Trotter v. Stephens, 241 F.Supp. 33, 48-49 (E.D.Ark.1965). Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_appnatpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. WILLIAMS v. HUGHES TOOL CO. No. 3915. United States Court of Appeals, Tenth Circuit. Dec. 2, 1950. Rehearing Denied Dec. 29, 1950. Robert F. Davis, Washington, D. C., and Charles M. McKnight, Tulsa, Okl., for appellant. George I. Haight, Chicago, 111. (Edward A. Haight, Chicago, 111., Robert F. Campbell, Houston, Tex., Ray L. Smith, Houston, Tex., Lynn Adams, Oklahoma City, Okl., on the brief), for appellee. Before PHILLIPS, Chief Judge, and BRATTON, HUXMAN, MURRAH and PICKETT, Circuit Judges. PHILLIPS, Chief Judge. This is an appeal from a judgment adjudging two patents owned by Hughes Tool Co. valid and infringed, and that Williams had interfered with the contract rights of Hughes under leases by which it licenses the use of the patented devices. Williams pleaded invalidity, non-infringement, and misuse of the patents and by counterclaim sought damages for injury to his business and reputation, and an injunction restraining Hughes from alleged unfair competition. The patents in suit are Fletcher No. 1,-856,627 and Scott and Garfield No. 1,983,-316. They relate to rotary drilling bits used in drilling for oil and gas. The Fletcher patent was held valid in Williams Iron Works Co. v. Hughes Tool Co., 10 Cir., 109 F.2d 500, and the Scott and Garfield patent was held, valid in Robertson Rock Bit Co. v. Hughes Tool Co., 5 Cir., 176 F.2d 783. Prior to the Fletcher patent the teeth on rotary bits were arranged in rows longitudinally of the cutters and diminished in size from the base to the apex of the cutters. Due to the fact that the teeth near the apex of the cutters were smaller and all the teeth in each longitudinal row simultaneously came in contact with the formation at the bottom of the hole, the maximum of penetration by the teeth into the formation was not obtained. Furthermore, teeth arranged in longitudinal rows had a tendency to track in the same depressions in the formation each time the cutter revolved, thereby lessening the efficiency of the cutter. The Fletcher device embraces a head with shafts mounted thereon and approximately frusto-conical shaped cutters mounted On the shafts. The teeth are arranged in circumferential rows around the cutters, but longitudinal of the cutters they are staggered, so that the teeth in each row are out of alignment longitudinally with the teeth in the rows adjacent thereto. Each row of teeth has a lesser number of teeth than the next outer adjacent row. The teeth are chisel-shaped and approximately uniform in size and pitch, except that those in the outer row may be slightly longer than the others. By designing a cutter with teeth of approximately equal size and pitch from the base to the apex of the cutter and teeth out of alignment longitudinally, Fletcher overcame the defects we have adverted to in the prior cutters. The teeth, being of approximately equal size, have substantially equal penetration and wearing life. This increases the effectiveness and the useful life of the cutters. The staggered arrangement of the teeth eliminates the tendency of the rows of teeth to track and to bounce from one row to the other as the cutter revolves, and effects uniform cutting of the entire bottom of the hole. It also results in the weight of the drill being brought to bear upon a lesser number of teeth as the rotation of the cutter brings the teeth in contact with the formation, thereby increasing their penetration and effectiveness. Fletcher’s device was a smoother-operating, faster-cutting, more efficient, and longer-lived drill than the bits of the prior art. So great were the improvements that Hughes immediately discarded a large number of costly machines used in manufacturing the older type of cutters and supplanted them with machines adapted to manufacture cutters embodying the Fletcher patent and thereafter incorporated Fletcher’s conception into the cutters which it manufactured. The Fletcher patent was not anticipated by Griffin patent, No. 1,195,208. The cutters in Fletcher are frusto-conical cutters, which, as the bit is rotated, revolve, and bring the cutter teeth into contact with the bottom of the hole to chip and crush the rock or other strata. Griffin discloses a pair of hemispherical cutters so arranged that the teeth contact both the bottom and side of the hole. Fletcher discloses circumferential rows of teeth separated by grooves, with the teeth out of alignment longitudinally of the cutter, and the number of teeth diminished in each succeeding row from the base to the apex of the cutter, thus permitting inner teeth of ample size and eliminating tracking of longitudinal rows. Griffin discloses hundreds of different conical projections nested together as closely as possible. It discloses no alternate rows of teeth and grooves and no suggestion of longitudinal alignment or staggering of teeth in different rows. The only staggering is that which incidentally results from the crowding of many teeth on the cutter. While it does not appear that the Griffin device has ever been used, it is obvious that with such device it would be difficult to maintain a straight hole, to keep the teeth clean and to prevent them from balling up; and it would lose gauge very rapidly, have poor penetration and a very short life. Neither was Fletcher anticipated by Hughes No. 1,119,163. This patent was pleaded unsuccessfully in Robertson Rock Bit Co. v. Hughes Tool Co., supra. Hughes shows a pair of cutters. Each -of these cutters has but a single circumferential set or row of teeth, each tooth extending from the base of the cone to the apex. These teeth grow smaller toward the apex of the cutter, and they diverge from the apex to the base of the cutter. There is no staggering of teeth in adjacent rows on a cutter and the teeth on the two cutters are aligned longitudinally. We adhere to our former decision sustaining the validity of the Fletcher patent. The Scott and Garfield patent discloses a well drill comprising a head, three downwardly and inwardly inclined cutter shafts on the lower end of such head, three cutters mounted on such shafts, teeth in circumferential rows on each of such cutters, offset longitudinally from the rows- of teeth of adjacent cutters, and the rows of teeth on each cutter interfitting with the rows of teeth on the two adjacent cutters. Prior to Scott and Garfield, non-interfit-ting three-cone bits were known to the art. An example is the bit disclosed by Hughes patent, No. 959,540. However, such three-cone prior-art bits were not used. The bits in daily use were two-cone bits. Prior to Scott and Garfield, Scott had invented a two-cone bit, in which the rows of teeth on the cutter interfitted into grooves between the rows of teeth on the adjacent cutter. Examples are the bits disclosed in Scott patent, No. 1,480,014, and Scott and Wel-lensiek patent, No. 1,647,753 (see discussion of those patents- in Williams Iron Works Co. v. Hughes Tool Co., supra.) Prior to Scott and Garfield, it was regarded as impossible to form and position the teeth on the cutters o-f a three-cone bit so they would interfit in use, in other words, so the rows of teeth on each cutter would interfit into the circumferential grooves between the rows of teeth on the other two cutters. The advantages of the Scott and Garfield three-cone bit over prior-art bits are these: It has a broader base, resulting from the use of three cones instead of two, giving a more uniform distribution of weight. It permits the use of longer teeth and will carry greater weight. It produces less torque and runs more smoothly. It produces less stress and shock on the component parts of the bit and the other drilling equipment, reducing fatigue failures. It may be rotated more rapidly. It maintains better gauge, making less reaming of the -hole necessary. It is more easily cleaned. It increases drilling speed approximately 100 per cent. It lasts longer. Because of the improved results obtained by the Scott and Garfield device, it almost completely supplanted the prior-art two-cone bits. Scott and Garfield conceived a new combination of old elements, whereby new results were obtained and old results were obtained in a more facile, economical and efficient way. It is our conclusion that their conception arose to the dignity of an invention. Moreover, the decision of the Fifth Circuit in Robertson Rock Bit Co. v. Hughes Tool Co., supra, was rendered upon facts substantially identical with those presented on this record, and that decision, while not binding -on this court, is strongly persuasive under the doctrine of comity. Hughes does not sell the bits manufactured by it under the patents in suit. It leases them to users under a contract which provides that: “Hughes Roller Rock Bits and Core Bit Heads are never sold but are leased. When the original cutter teeth and/ or bearing have served their useful life, the user will surrender the bits to Hughes Tool Company upon request. In accepting delivery, the user agrees not to surrender any of the tools as mentioned above to other than a duly authorized representative” of Hughes. Each bit is stamped with the words, “Property of Hughes Tool Co.” Hughes maintains an active research department and a large laboratory at Houston, Texas, equipped to test bits, make metallurgical investigations and chemical an-alyses, and carry on other like research. It maintains a field organization of approximately 175 men. These men deliver new hits to the drilling rigs of the users and pick up the worn-out bits. On each delivery the user signs a delivery ticket bearing the lease agreement referred to above. Each bit produced by Hughes is given an identifying serial number, which enables Hughes’ field organization to follow the history of each bit, and to maintain records of footage drilled, hours run, weight carried, speed of rotation, quantity of fluid circulated and formations drilled. In other words, field men follow the life of the bit from the time it is received by the driller until the time it has served its useful life. They make certain that the right type of bit is delivered for the particular drilling conditions existing at each drilling rig. The field man examines the bits picked up and if he thinks further examination is desirable, sends them to Houston. Many of the bits are sent to the laboratory at Houston for further examination, accompanied by information with respect to each bit as to the conditions of use, the formation drilled and its performance. Laboratory tests produce further information. The information gathered by Hughes’, field organization as to the performance of the bits in particular formations and areas under specific conditions is made available to users of Hughes’ bits and is of substantial value to them. Ordinarily, when the teeth of a bit have become so worn from use that the original cutter teeth have served their useful life, the bearings are practically worn out and the useful life of the bit is at an end. Generally, a bit once placed in use in a hole is not withdrawn until its useful life has ended. However, in a limited number of the bits the bearings survive the life of the original teeth, and the restoring of the original teeth by retipping makes possible the further use of such bits in the drilling of soft formations. One of Williams’ witnesses testified that only a small percentage of the bits used by his company could thus be retipped. Another witness for Williams, a drilling contractor, placed the percentage at 12 to 15 per cent. Williams is engaged in the business of re-tipping bits on which the original teeth are worn out, and returning the bits to the lessees thereof for further use. Williams first washes the bits. With an acetylene torch and tungsten tube metal, he then restores each worn tooth as nearly as possible to its original form, size and position. He keeps the bit and those teeth on which he is not working during the retipping process submerged in water to prevent loss of temper. Williams retipped bits which have been worn through use to an extent that the original teeth have served their useful life. Where a patented device of long life has among its integrated elements a part which, as a result of use of the device, quickly wears out and, therefore, is temporary in duration, and the patentee licenses the use of the device, it will be presumed that the patentee and the licensee contemplated and intended that such temporary part would be replaced by the licensee and that replacing it would constitute permissible repair and not reconstruction amounting to infringement of the patent. In Wilson v. Simpson, 9 How. 109, 13 L.Ed. 66, the patent involved was on a woodworking machine. Included as elements of the claims were wheels carrying detachable knives. The operative life of the machine was several years, but the machine could not be continued in use without successive replacements of the detachable knives every 30 to 60 days. The court held that a temporary part wearing out in a machine may be replaced to preserve the machine, in accordance with the implied intention of the vendor, and that such a replacement does not amount to a reconstruction of the machine. In Heyer v. Duplicator Mfg. Co., 263 U.S. 100, 44 S.Ct. 31, 68 L.Ed. 189, the court following the principle announced in Wilson v. Simpson, supra, held that the sale by the patentee of a costly and durable copying machine, which depended for its operation on bands of gelatine attached to spools, which cost little and were quickly used up, implied a right in the purchaser to replace such bands as they wore out, without further consent of the patentee. The principle was again applied in Lan-dis Machinery Co. v. Chaso Tool Co., 6 Cir., 141 F.2d 800. There, the patent covered die heads for cutting threads in mass production. The patented machine utilized replaceable cutters, called chasers. The patented machine was long-lived; the cutters were expendable. The court held that the expendable cutters could be replaced by purchasers without infringing the patent. Here, it cannot be said that the teeth are expendable or constitute temporary parts. In the great majority of instances, the economic life of the original teeth and the economic life of the original bearings are approximately equal, so that when the teeth wear out, the usefulness of the entire bit is at an end. In a relatively small percentage of instances, the bearings have a longer life than the teeth and the teeth may be retipped and the useful life of the bit for drilling in soft formations extended. It cannot be said, we think, that the teeth are expendable, or that they constitute temporary parts of short life in a long-lived machine, nor that Hughes contemplated and intended that the lessees might replace worn-out teeth by retipping and devoting the bits to further use. Moreover, the provision of the lease that the lease should terminate and the right of the lessee to use the bit should cease at the end of the useful life of either the original teeth or the original bearing negatives any such intention on the part of Hughes. And it should be noted that in Wilson v. Simpson, supra, the court, while holding the detachable knives could be replaced, said: “The other constituent parts of this invention, though liable to be worn out, are not made with reference to any use of them which will require them to be replaced. These, without having a definite duration, are contemplated by the inventor to last so long as the materials of which they are formed can hold together in use in such a combination. No replacement of them at intermediate intervals is meant or is necessary. * * * With such intentions, they are put into the structure. So it is understood by a purchaser, and beyond the duration of them a purchaser of the machine has not a longer use." (Italics ours.) It is true that Scott and Garfield is a combination patent for a device which embraces a head, three cutter shafts, cutters mounted on the shafts, and circumferential rows of teeth specifically formed and positioned ; and that Fletcher is a combination patent for a device embracing a head, two frusto-conical cutters mounted on the head, and concentric rows of teeth specifically arranged in their relation to each other. However, in Scott and Garfield the arrangement of the rows of teeth on each cutter in relation to the rows of teeth on the adjacent cutters, the size of the teeth, and the inter-fitting of the rows of teeth on each cutter with the rows of teeth on the adjacent cutters constitute, in the main, the novelty in the invention and produce the improved results. Likewise, in Fletcher, the uniform size, number in each row and specific arrangement of the teeth, in the main, constitute the novelty in the invention and produce the improved results. In these respects, we think the instant case is analogous to the case of Davis Electrical Works v. Edison Electric Light Co., 1 Cir., 60 F. 276, 278, 282, where a combination patent for an electric lamp was involved. The claim in suit read: “The combination of carbon filaments with a receiver made entirely of glass, and conductors passing through the glass, and from which receiver the air is exhausted, for the? purposes set forth.” The court held that the replacement of an attentuated carbon filament, one element in the combination, was reconstruction and not permissible repair, because all of the elements other than the filament were old, and the filament and its use in the relation described was the new element in the combination and produced the improved results. The instant case is also analogous- to Morrin v. Robert White Engineering Works, 2 Cir., 143 F. 519, where a combination patent for a steam generator was involved. Tiers of generating tubes of specified form and shape constituted the vital element of the combination. The improvement over the prior art and the advantages resulting therefrom were found in the new tube. The court held that the replacement of sets of tubes in the patented device was not permissible repair, but was, in fact, furnishing a new boiler essentially reconstructed in a-ll of its novel features, and constituted infringement. Williams, by his process of retipping, undertakes to restore the worn-out teeth as nearly as possible to their original form, size, and position. He thus reconstructs and replaces that element of each patent wherein lies the novel features of the combination. We hold that so doing is not permissible repair, but reconstruction, constituting infringement. This conclusion finds support in Hughes Tool Co. v. Owen, 5 Cir., 123 F.2d 950, in Southwestern Tool Co. v. Hughes Tool Co., 10 Cir., 98 F.2d 42, 45, American Cotton Tie Co. v. Simmons, 106 U.S. 89, 1 S.Ct. 52, 27 L.Ed. 79, and Hughes Tool Co. v. United Machine Company, D.C.N.D.Tex., 35 F.Supp. 879. We may concede, without so deciding, that retipping or replacement on a cutter of a defective or inefficient tooth, or a tooth destroyed by accident, would constitute permissible repair, rather than reconstruction. But that is not this case. Here, Williams takes the bits, the life of the original teeth of which has ended through use and wear, and restores all of such teeth to their original size, shape, -and position. The patent law confers on the patentee a limited monopoly. It operates to create and grant to the patentee an exclusive right to make, use and vend the particular device described and claimed in the patent. The extent of the right is limited by the definition of the invention and its boundaries are marked by the specifications and claims of the patent. In licensing the use of his patented device, the patentee may impose restrictions on the -use thereof by the licensee, either as to time or space, or any other restriction upon the exercise of the granted privilege, save only, that he may not attach a condition to his license that will enlarge the monopoly granted him by his patent, and thus acquire -a monopoly which the statutes and the patent did not give him. Had the lease agreements, instead of providing for their termination when the useful life of the original cutter teeth and/or bearing ended, provided they should terminate on specific dates, the use or repair of a bit leased under such an -agreement after the expiration date stated therein would have constituted infringement. The lease agreements provided that the right of the lessee to use the bits should terminate upon the occurrence of a future event, namely, the end of the useful life of the original teeth, an event which would occur in normal course as the result of the use of the bits. That provision imposed nothing more than a restriction as to time. When such event occurred the right of the lessee to use the bit ceased and with it his right to repair the bit, and the repair of the bit thereafter constituted an infringement. It is urged, however, that Hughes, by incorporating in each lease the provision that the lease shall terminate and the lessee-user shall return the bit, when either the original bearing or teeth have served their useful life, misuses its patent monopoly contrary to public policy, destroys the utility of the bits before they are completely worn out, and imposes forbidden restraints upon the right of retippers who carry on their business in competition with Hughes in its leasing of new bits. The reasons which motivated Hughes in leasing, rather than selling its bits, and in requiring the return thereof for inspection, testing and research are obviously to enable Hughes to improve the quality of its bits, to provide the proper bit for drilling in particular formations or in a particular area, to provide valuable information to drillers who use the Hughes bits; to maintain the high standard of its products and protect their reputation. . Failures of retipped bits would tend to injure the reputation of Hughes’ bits. The lease agreement and the practice of recovering used bits, as stated by the Fifth Circuit in Robertson Rock Bit Co. v. Hughes Tool Co., supra, is practical, reasonable and fair. The challenged lease provision does not bring the instant case within the “Tie-in” cases. In Automatic Radio Manufacturing Company v. Hazeltine Research, 339 U.S. 827, 70 S.Ct. 894, the Supreme Court classified the “Tie-in” cases as cases involving schemes “requiring the purchase of unpat-ented goods for use with patented apparatus or processes, prohibiting production or sale of competing goods, and conditioning the granting of a license under one patent upon the acceptance of another and different license.” In that case the court also said, “That which is condemned as against public policy by the ‘Tie-in’ cases is the extension of the monopoly of the patent to create another monopoly or restraint of competition — a restraint not countenanced by the patent grant.” Here, the provision imposes a restriction on the use in point of time and a duty to surrender the bit when the right to use has ended. Beyond that it imposes no requirement, no prohibition and no condition on the lessee. It is not, in our judgment, within the principle of the “Tie-in” cases. A patentee, in granting a license, may not require a licensee to purchase unpatented goods for use with the patented apparatus, prohibit the use by the licensee of goods of a competitor, condition the granting of the license upon the acceptance of another and different license, control the resale prices of patented articles after he has sold them, use his patent to protect an unpatented element from competition, or otherwise enlarge the monopoly granted by the patent. But here, as we have indicated, Hughes, by the lease agreements, merely imposes a limitation as to the time the bits may be used, a limitation clearly within the range of its patent monopoly, and it does so, not for ulterior purposes, but to carry out a practical, reasonable and fair business practice that will enable it to better serve its lessee, maintain a high standard of quality in its products and protect its business reputation. We conclude that Hughes is not guilty of a misuse of its patents and has not violated the Clayton Act, 15 U.S.C.A. § 12 et seq., or unlawfully interfered with the business of Williams. The Fletcher patent expired May 3, 1949, after the judgment below was entered. The case is remanded, with instructions to terminate the injunction in so far as it enjoins further infringement of the Fletcher patent. In all other respects the judgment is Affirmed. . Hereinafter called Hughes. . Warren Brothers Co. v. City of New York, 2 Cir., 187 F. 831, 835; Penfield v. C. & A. Potts & Co., 6 Cir., 126 F. 475, 478; Cincinnati Butchers’ Supply Co. v. Walker Bin Co., 6 Cir., 230 F. 453, 454; Stoody Co. v. Osage Metal Co., 10 Cir., 95 F.2d 592, 593; Cf. Mast, Foos & Co. v. Stover Mfg. Co., 177 U.S. 485, 488, 489, 20 S.Ct. 708, 44 L.Ed. 856. . In the opinion the court said: “The right of the assignee to replace the cutter-knives is not because they are of perishable materials, but because the inventor of the machine has so arranged them as a part of its combination, that the machine could not be continued in use without a succession of knives at short intervals. Unless they were replaced, the invention would have been but of little use to the inventor or to others. The other constituent parts of this invention, though liable to be worn out, are not made with reference to any use of them which will require them to be replaced. * * * But if another constituent part of the combination is meant to be only temporary in the use of the whole, and to be frequently replaced, because it will not last as long as the other parts of the combination, its inventor cannot complain, if he sells the use of his machine, that the purchaser uses it in the way the inventor meant it to be used, and in the only way in which the machine can be used.” . See also Morgan Envelope Co. v. Albany Paper Co., 152 U.S. 425, 434-435, 14 S.Ct. 627, 38 L.Ed. 500. . Ethyl Gasoline Corporation v. United States, 309 U.S. 436, 456, 60 S.Ct. 618, 84 L.Ed. 852; Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 491, 62 S.Ct. 402, 86 L.Ed. 363; Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 509, 510, 37 S.Ct. 416, 61 L.Ed. 871. . Ethyl Gasoline Corporation v. United States, 309 U.S. 436, 456, 60 S.Ct. 618, 84 L.Ed. 852; American Lecithin Co. v. Warfield Co., 7 Cir., 105 F.2d 207, 212. . Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 491, 62 S.Ct. 402, 86 L.Ed. 363; International Salt Co. v. U. S., 332 U.S. 392, 394-396, 68 S.Ct. 12, 92 L.Ed. 20. . United Shoe Machinery Corp. v. United States, 258 U.S. 451, 456, 457, 458, 463, 464, 42 S.Ct. 363, 66 L.Ed. 708. . United States v. Paramount Pictures, 334 U.S. 131, 156, 157, 68 S.Ct 915, 92 L.Ed. 1260. . United States v. Univis Lens Co., 316 U.S. 241, 250, 62 S.Ct. 1088, 86 L.Ed. 1408; Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 456, 457, 60 S.Ct. 618, 84 L.Ed. 852. . Mercoid Corporation v. Minneapolis-Honeywell Regulator Co., 320 U.S. 680, 64 S.Ct. 278, 88 L.Ed. 396; Mercoid Corporation v. Midcontinent Inv. Co., 320 U.S. 661, 665, 64 S.Ct. 268, 88 L.Ed. 376. . United States v. Masonite Corp., 316 U.S. 265, 277, 62 S.Ct. 1070, 86 L.Ed. 1461. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_othcrim	A	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". UNITED STATES of America, Plaintiff-Appellee, v. Ruth ZICREE, Harold Kaufman and Fredesvinda Mercedes Gonzalez, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Harold KAUFMAN and Ruth Zicree, Defendants-Appellants. Nos. 78-5613, 79-1875. United States Court of Appeals, Fifth Circuit. Nov. 8, 1979. Rehearings Denied Jan. 11, 1979 in No. 78-5613. Michael J. Osman, Miami, Fla., for Zicree & Kaufman. Angus M. Stephens, Jr., Coral Gables, Fla., for Gonzalez. Marsha L. Lyons, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee in case no. 78-5613. Robert M. Duboff, Michael J. Osman, Miami, Fla., for defendants-appellants in case no. 79-1875. Jack V. Eskenazi, U. S. Atty., Miami, Fla., for plaintiff-appellee in case no. 79-1875. Joel N. Rosenthal, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee in both cases. Before THORNBERRY, CLARK and KRAVITCH, Circuit Judges. THORNBERRY, Circuit Judge: In this consolidated appeal from multiple convictions for mail fraud, we must decide whether the evidence adduced at trial is sufficient to support the convictions, whether the appellants were improperly joined together in one trial, whether the trial judge erred in denying appellants’ motion for a new trial on the basis of newly discovered evidence, whether the trial judge erred in presenting a particular Allen charge, and whether the trial judge erred in allowing an expert witness to testify for the government. Because we believe that the trial judge ruled correctly on each of these issues, we affirm the convictions in the court below. I. The government brought mail fraud and conspiracy charges against eleven participants in an alleged scheme to inflate medical bills for personal injury plaintiffs in the Miami area. The alleged participants included the appellants — Dr. Kaufman, his assistant, Ruth Zicree, and his former associate, Dr. Gonzalez — plus attorney Anthony Capodilupo and seven of Capodilupo’s employees. The scheme allegedly began in January, 1972, when Florida’s no-fault insurance statute took effect. The statute required automobile accident victims to accumulate over $1,000 in medical expenses before they could sue for pain and suffering. The government alleged that Capodilupo employed several “runners” who contacted accident victims and offered to help the victims make money from the accident. The runners referred these victims to Capodilupo, who would explain how the victims needed to run up their medical bills above the $1,000 threshold in the no-fault statute. Capodilupo then referred the victims to doctors such as Kaufman and Gonzalez. These doctors allegedly gave the victims unnecessary treatments and billed the victims for these treatments plus other treatments and services that the doctora never actually performed. After the victims’ bills exceeded the $1,000 statutory threshold, Capodilupo would bring suit on behalf of the victims against the other drivers’ insurance carriers for pain and suffering. Most of the suits were settled for a few thousand dollars. The indictment covered alleged acts over the period from January, 1972, to November, 1977. Throughout this period Ruth Zicree worked as Dr. Kaufman’s secretary; she helped prepare medical reports and bills among other jobs. Dr. Gonzalez worked with Dr. Kaufman in his office from January, 1973, until January, 1974. In 1974, Dr. Gonzalez opened her own office a few blocks down the street from Dr. Kaufman’s office, and continued her medical practice throughout the period covered in the indictment. The government brought one count of conspiracy and 188 counts of mail fraud relating to thirty-three different accident victims against the eleven defendants. At the conclusion of the government’s case at trial, appellants moved for a severance and for acquittal. The judge granted a severance of the eight-person “lawyer group” from the appellants, and denied the motion for acquittal. Before submitting the case to the jury the judge dismissed twenty-eight counts of mail fraud relating to eight patients against the appellants. The jury returned guilty verdicts against Kaufman and Zicree on eight mail fraud counts relating to two patients, and against Gonzalez on eighteen mail fraud counts relating to four patients. The jury acquitted all appellants of the conspiracy charges. Kaufman received a sentence of three years on one count to run consecutively with concurrent three-year sentences on the other counts. He was fined $1,000 for each count. Zicree received a sentence of one year on each count, all sentences to run concurrently. Zicree’s sentence was modified to require one day’s imprisonment, plus probation for the remainder of her concurrent sentences. She was fined $300 for each count. Gonzalez received a sentence of three years on each count, all sentences to run concurrently. She was fined $500 for each count. II. Appellants contend that the evidence adduced at trial is insufficient to support their mail fraud convictions. Under the mail fraud statute, 18 U.S.C. § 1341, the government must prove beyond a reasonable doubt (1) a scheme to defraud, and (2) causing a mailing for the purpose of executing the scheme. United States v. Shryock, 537 F.2d 207, 209 (5 Cir. 1976), cert. denied, 429 U.S. 1100, 97 S.Ct. 1123, 51 L.Ed.2d 549 (1977). In evaluating the sufficiency of the evidence,- we must consider the evidence 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). The test for sufficiency of the evidence necessary to support denial of a motion for acquittal is whether the jury might reasonably conclude that the evidence is inconsistent with the hypothesis of the defendant’s innocence. United States v. Lonsdale, 577 F.2d 923, 925 (5 Cir. 1978). Appellants contend that our decision in United States v. Herberman, 583 F.2d 222 (5 Cir. 1978), requires a reversal of their convictions. In Herberman a jury convicted a doctor on twenty of twenty-eight counts for making false Medicare statements requesting payment for services he allegedly did not perform. On appeal we reversed four of the twenty convictions because the evidence was insufficient to establish guilt. These four counts related to four different patients. Three of the patients testified at trial that the treatments they received were actually consistent with the doctor’s Medicare statements. The fourth patient testified repeatedly that he did not know whether or not he had received a treatment that the government contended had never been given. Because the testimony by these patients failed to indicate that the doctor’s statements about these particular patients were false, and because the government produced no other testimony specifically relating to these four charges, we held that general evidence about the doctor’s practices would be insufficient by itself to establish that he made false statements with particular regard to these four patients: The government’s proof depended primarily on the testimony of the patients of Dr. Herberman and the testimony of the patients on these four counts was clearly insufficient. The general testimony of the investigators, the people from HEW and the ex-employees was not tied to any particular count. Without the patients’ testimony, there was no case. 583 F.2d at 231. We agree with appellants that the Herberman decision should guide our analysis in this case, but we find that the evidence adduced by the government at trial satisfies the requirements in Herberman. As in Herberman, the government provided ample background evidence to establish that a fraudulent scheme existed. Witness Patricia Hope worked as a secretary in Kaufman’s office for eight or nine months from mid-1972 until the beginning of 1973. She testified that Kaufman instructed her to record treatments for patients who did not actually receive them. According to Hope, many patients signed the office register, then left the office without seeing a doctor or receiving treatment. In January, 1974, Hope began secretarial work for Gonzalez. She testified that Gonzalez instructed her to follow Kaufman’s practice of recording treatments that had not been performed. Another of Gonzalez’s employees, Wendy Jones, confirmed Hope’s testimony and added other examples of fraudulent billing by Gonzalez. Kaufman himself testified that he was aware of the .$1,000 no-fault threshold, and that he kept special records for patients referred to him as automobile accident victims by attorneys such as Capodilupo. Against this background of general evidence indicating the existence of a mail fraud scheme, the government presented specific testimony from each of the patients related to the counts upon which the appellants were convicted. Kaufman and Zicree were convicted upon counts relating to patients Lacey and Raiford. Lacey testified that he made only six visits to Kaufman’s office, although the government produced mailings to show that Kaufman had billed Lacey for sixteen visits. Raiford testified that he made no more than six visits to Kaufman’s office, although Kaufman billed him for twenty-eight visits. Gonzalez was convicted on the count relating to Lacey, a patient at Kaufman’s office during the period that Gonzalez worked with Kaufman, as well as on counts relating to Durden, Patricia Hope, and Rickford Hope, who were Gonzalez’s patients after she opened her separate office. Durden testified that she made only two visits to Gonzalez’s office, although Gonzalez billed her for fifteen visits. Patricia Hope, who worked as Gonzalez’s secretary, testified that she made ten to fifteen visits to Gonzalez as a patient, although Gonzalez billed her for forty-nine visits. Rickford Hope testified that he made about thirty-one visits to Gonzalez; but Gonzalez billed him for fifty-seven visits. In contrast to the testimony of the four patients examined in Herberman, the testimony of the patients related to convictions in this case shows that the number of treatments that they received is inconsistent with the number of treatments for which they were billed. This testimony satisfies the requirements in Herberman for specific evidence about each count relating to a conviction. Although the evidence strongly establishes Gonzalez’s guilt with regard to Durden, Patricia Hope and Rickford Hope, all of whom Gonzalez treated after she opened her own separate office, the evidence establishing Gonzalez’s guilt with regard to Lacey, a patient at Kaufman’s office while Gonzalez worked with Kaufman, is less strong because Lacey did not testify that he was treated by Gonzalez. Lacey testified that he visited Kaufman’s office about six times over a period of three months beginning in January, 1973. Throughout this period Gonzalez worked full time with Kaufman in the office. Patricia Hope’s testimony indicates that Gonzalez participated in the mail fraud scheme during the period that she worked for Kaufman because Gonzalez used the same fraudulent techniques as Kaufman when Gonzalez opened her own office a year later. For example, Hope testified that Kaufman told her to enter the mark “physio” on patients’ records whether or not they received this or any other treatment, and that Gonzalez gave identical instructions when Hope began work in her office a year later. Hope testified that in both offices patients often signed the register and left without receiving treatment. Viewed in the light most favorable to the government as required by Glasser, this evidence is sufficient to establish Gonzalez’s participation in a scheme relating to inflated records and bills for the patient Lacey during the period that Gonzalez worked with Kaufman in his office. Zicree specially contends that the evidence relating to her role as a secretary is insufficient to establish her guilt in the scheme. Evidentiary exhibits show, however, that Zicree signed or initialed medical reports and bills concerning both Lacey and Raiford. Patricia Hope and Zicree herself testified that Zicree prepared the reports and bills for Kaufman’s office. We also find that the evidence showing each appellant’s participation in the scheme is sufficient to show that they knowingly intended to further the scheme through their acts. See, e. g., United States v. Perez, 489 F.2d 51, 73 (5 Cir. 1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974) (repeated actions of participants in scheme sufficient to show intent and to preclude finding of mistake or naivete). None of the appellants contests use of the mails to further the scheme. III. At the beginning of the trial the three appellants were tried jointly with Attorney Capodilupo and his seven employees. At the close of the government’s case, the judge granted appellants’ motion to sever the “lawyer group” from appellants. The judge denied appellants’ motion to sever Gonzalez from the trial of Kaufman and Zicree. All appellants now contend that they were improperly joined together for trial, and that the trial judge erred in denying their motion to sever Gonzalez from the trial of Kaufman and Zicree. A claim of misjoinder is reviewable on appeal as a matter of law. United States v. Park, 531 F.2d 754, 760 (5 Cir. 1976). Joinder of defendants requires a balancing of the right of the accused to a fair trial and the public’s interest in the efficacious administration of justice. Unit ed States v. Gentile, 495 F.2d 626, 630 (5 Cir. 1974). This balancing is governed by Fed.R.Crim.P. 8(b), which provides that Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count. In deciding whether to allow joinder of defendants under Rule 8(b), the judge must accept as true the factual allegations of the indictments. United States v. Levine, 546 F.2d 658, 663 (5 Cir. 1977). The indictment in this case appears to satisfy Rule 8(b) because it alleges that all defendants participated in the same series of acts or transactions constituting the offense of mail fraud and conspiracy to commit mail fraud. For example, the last count in the indictment alleges a single conspiracy between the lawyer group and all three appellants to inflate medical bills for the purpose of satisfying the $1,000 no-fault threshold for automobile accident litigation. Each count alleges participation by all eleven defendants in the mail fraud scheme. The indictment specifically alleges that Gonzalez worked together in the same office with Kaufman and Zicree during one period of the scheme. Even though the allegations in the indictment indicate that joinder of Gonzalez with Kaufman and Zicree was proper, appellants contend that the Levine case still requires us to reverse their convictions on grounds of misjoinder. After recognizing in Levine that the factual allegations in the indictment should be accepted as true for purposes of deciding joinder, we also stated that Where, however, the defendant can show that the charge of a joinder of defendants in conspiratorial action is based on a legal interpretation that is improper, the court cannot base its 8(b) ruling on the written words alone but must determine if, under correct legal theory, joint action was actually involved. 546 F.2d at 663. In Levine the government alleged a single conspiracy among several defendants when the indictment itself showed that two separate and independent conspiracies actually existed. Because the “only real underpinning for the government’s conspiracy count was the false legal premise that proof of proximate or simultaneous conspiracies with one common conspirator was sufficient to establish the existence of a single conspiracy,” we reversed one appellant’s conviction because he was improperly joined with the other defendants. 546 F.2d at 665. In Levine defendant Abrams contracted with a filmmaker, Harvard, to make an obscene film promoting the career of a particular female dancer. During the same period of time defendant Levine contracted separately with Harvard to produce a series of sixteen obscene films. The government alleged no facts to show that Abrams and Levine had any interaction with each other, or were even cognizant of each other’s activity. Neither defendant had any financial or other interest in the other’s films. The government attempted to show that Abrams and Levine participated in a single “wheel” conspiracy based on the fact that Harvard used some of the same actors and studios for the separate films of Abrams and of Levine. We rejected the government’s argument: For a wheel conspiracy to exist those people who form the wheel’s spokes must have been aware of each other and must do something in furtherance of some single, illegal enterprise. ... If there is not some interaction between those conspirators who form the spokes of the wheel as to at least one common illegal object, the “wheel” is incomplete, and two conspiracies rather than one are charged. 546 F.2d at 663. Appellants’ attempt to show that the government’s indictment in this case rests upon a similar, false legal premise involving multiple conspiracies is not persuasive. Unlike Abrams and Levine, who were strangers to each other throughout the time period in issue, Kaufman and Gonzalez worked with each other in the same office for one year covered in the indictment. In addition to this interaction, other evidence indicates the existence of a common scheme between Kaufman and Gonzalez. When Gonzalez left Kaufman’s office, she opened her own office a few blocks down the street. Gonzalez employed Patricia Hope, a former secretary for Kaufman. Throughout the period covered in the indictment Gonzalez received patients referred by the lawyer Capodilupo, who also continued to refer other patients to Kaufman’s office. The government alleged, and Hope later testified, that Gonzalez used the same methods to inflate medical bills in her office as Kaufman had used in his office. These facts showing interaction between Kaufman and Gonzalez, and a common method to defraud, suggest that Kaufman, his assistant Zicree, and Gonzalez were involved in the-same series of acts or transactions constituting an offense or offenses, as required for proper joinder under Rule 8(b). The government has shown a “substantial identity of facts or participants” between the offenses to make joinder proper according to our decision in United States v. Marionneaux, 514 F.2d 1244, 1248—49 (5 Cir. 1975). The facts in this case do not resemble the one-time commercial transactions charged in Levine, in which the only link between two customers for obscene films was each one’s independent relation to a common filmmaker. This case more closely resembles the ongoing mail fraud scheme in United States v. Perez, 489 F.2d 51 (5 Cir. 1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). In Perez the government alleged that twenty-one defendants participated in a scheme to stage fake automobile accidents for the purpose of collecting insurance proceeds. Except for a core group of three organizers, only a few of the other defendants participated in more than one of the staged accidents. Despite this fact, we found that all participants must have intended to serve the same common objective and must have been aware of a larger scheme. 489 F.2d at 57-64. For this reason, we held that joinder was proper for all participants in the ongoing scheme. 489 F.2d at 64-65. Having found that Kaufman, Zicree, and Gonzalez were properly joined together at the beginning of the trial, we must now decide whether the trial judge erred in denying appellants’ motion for a severance of Gonzalez from the trial of Kaufman and Zicree at the close of the government’s case. The judge’s decision whether to grant a severance is governed by Fed.R.Crim.P. 14, which provides: If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. As for joinder, the judge considering a motion for severance must balance the right of a defendant to a fair trial against the interests of judicial economy. This balancing process is within the discretion of the trial judge, and an appellate court will not reverse the judge’s decision without an affirmative showing that the lower court abused its discretion. United States v. McLaurin, 557 F.2d 1064, 1075 (5 Cir. 1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 743, 54 L.Ed.2d 767 (1978). In order to obtain severance under Rule 14, the defendants have the difficult burden of proving that they will suffer the most compelling prejudice from continued joinder; a mere showing of some prejudice is insufficient. Perez, 489 F.2d at 65. The test for such prejudice is [Wjhether under all the circumstances of the particular case, as a practical matter, it is within the capacity of the jurors to follow the court’s admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant’s own acts, statements and conduct. In sum, can the jury keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted. ****** In determining on appeal whether the jury was in fact confused, the court will look to the verdict. Convictions will invariably be sustained if it may be inferred from the verdict that the jury “meticulously sifted the evidence,” as where it acquits on certain counts. United States v. Wasson, 568 F.2d 1214, 1222 (5 Cir. 1978), quoting Tillman v. United States, 406 F.2d 930, 935-36 (5 Cir.), vacated in part on other grounds, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969). Kaufman and Zicree contend that they were prejudiced because the jury might have considered testimony about Gonzalez when they decided to convict Kaufman and Zicree. The record does not indicate, however, that the jury was confused about the testimony. All of the witnesses clearly identified whether their testimony related to Gonzalez, or to Kaufman and Zicree. Moreover, the judge carefully instructed the jury to consider specific testimony relating to only one defendant, such as Patricia Hope’s testimony about activities in Gonzalez’s office, only against that defendant, and not against the others. The verdict shows that the jury actually sifted the evidence in reaching their decision on the various counts. Out of 189 counts, the jury convicted Kaufman and Zicree on only eight counts and convicted Gonzalez on only eighteen. The jury appeared to understand the restrictive instructions about the evidence because they convicted Kaufman and Zicree only on counts relating to patients at Kaufman’s office, and they convicted Gonzalez only on counts relating to patients at Gonzalez’s office, with the exception of the patient Lacey. Gonzalez worked together with Kaufman while Lacey was a patient in Kaufman’s office, however, and the evidence sufficiently shows that Gonzalez participated with Kaufman in the mail fraud scheme during this period. For these reasons, we hold that the trial judge did not abuse his discretion when he denied appellants’ motion to sever Gonzalez from the trial of Kaufman and Zicree. IV. In appeal number 79-1875 appellants Kaufman and Zicree contend that the trial judge erred when he denied their motion for a new trial on the basis of newly discovered evidence. The evidence newly discovered by appellants is the grand jury testimony of Dr. Gaston Maya, who worked in Kaufman’s office for two and a half years beginning in the middle of 1974. Appellants claim that the testimony is strongly exculpatory because Maya generally denies seeing any wrongdoing in Kaufman’s office. Although the government included Maya’s testimony on a 274-item discovery list presented to appellants five and a half months before the trial, appellants contend that they did not read Maya’s testimony because they assumed it would be hostile, and because the government did not alert them to its exculpatory nature. Maya asserted his fifth amendment right against self-incrimination and did not testify at the trial. The test for consideration of a motion for new trial on the grounds of newly discovered evidence can be summarized as follows: . The evidence must be discovered following trial; there must have been diligence on the part of the movant to discover the new evidence; the evidence is not merely cumulative or impeaching; the evidence is material; and a new trial would probably produce a new result. United States v. Prior, 546 F.2d 1254, 1258 (5 Cir. 1977). We hold that the trial judge correctly denied appellants’ motion for at least two reasons: Maya’s testimony would probably not have produced a different result, and appellants did not exercise diligence in discovering the evidence. Although Maya generally denied seeing or participating in any wrongdoing while he worked in Kaufman’s office, Maya admitted several facts that undercut the exculpatory nature of his testimony. He conceded that records for accident victims were treated separately in the office, and that ninety percent of these patients were hospitalized. Even with regard to the patients that Maya treated in the office, Maya testified that he never filled out accident reports, and that Kaufman or a secretary filled out all the records. Maya also testified that Kaufman almost always made the decision whether to hospitalize a patient. None of Maya’s testimony specifically contradicted the firsthand account of any of the government witnesses who testified at trial. For these reasons, Maya’s grand jury testimony would probably not have produced a different result at trial. The second justification for upholding the judge’s denial of a new trial involves the lack of diligence by appellants. During the five and a half months before trial appellants had ample opportunity to read Maya’s testimony presented to them on the government’s discovery list. Even though the list contained 274 items, these primarily involved specific mailings and records except for the last seven items, which were clearly marked as grand jury testimony. The government had no duty to alert appellants about the questionably exculpatory nature of Maya’s testimony, especially when Maya was well known to Kaufman and Zicree as an employee in their own office for two and a half years. V. Appellants’ two remaining contentions involve the judge’s use of a modified Allen charge, and the judge’s decision to qualify a witness as an expert. We find that neither of these contentions requires reversal on appeal. After the jury had deliberated for about two and a half days, they reported that they had reached a verdict with regard to all appellants on some counts, but had reached no verdict on about half of the 189 counts. The judge gave the jury a modified Allen charge. Despite an express invitation by the judge, appellants’ counsel did not object to the charge or propose curative instructions. We find that the charge was not unduly coercive. The judge did not set a time restraint for the jury, nor did he pressure the jurors in the minority to compromise. The judge remarked to the jury that a new trial would be expensive and exhausting to the litigants, but this observation was obvious to jurors who had already participated in the eight-week trial. We recently upheld an Allen charge that alluded to the expense of a retrial in United States v. Dixon, 593 F.2d 626, 630-31 (5 Cir. 1979). We find no error with the judge’s Allen charge in the trial below. Appellants contend that the judge erred in allowing witness McEachen to qualify as an expert and to give specific testimony about the appellants’ patients. The government presented McEachen, a handwriting analyst with the Dade County Public Safety Department for a year and a half, to testify that some of the patients’ signatures on the doctors’ office registers had been forged. We find that the judge did not abuse his broad discretion in qualifying McEachen as an expert or in admitting his testimony. See United States v. Viglia, 549 F.2d 335, 337 (5 Cir.), cert. denied, 434 U.S. 834, 98 S.Ct. 121, 54 L.Ed.2d 95 (1977). Although appellants showed a few discrepancies in McEachen’s testimony on cross examination, these discrepancies were not significant enough to show that the judge erred in qualifying McEachen as an expert. The judge later ruled that McEachen’s testimony about patients Lang and Freeman should be stricken from the record, but that McEachen’s other testimony could remain in the record. We find that this ruling was correct. VI. We find that the evidence is sufficient to convict appellants on all counts, and that the judge did not err when he joined the appellants together in the same trial, denied their motion for a new trial on grounds of newly discovered evidence, gave the modified Alien charge, or qualified the expert witness. For this reason, we affirm the appellants’ convictions in the court below. AFFIRMED. . Fla.Gen.Stat.Ann. §§ 627.730-.741 (West 1972). . § 1341. Frauds and swindles Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent ór delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or 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. . Of the twenty counts in the indictment, only one count alleged specific joint action by Abrams, Levine, and Harvard. We concluded that Levine’s name must have been added by mistake in that count, and that, in the alternative, such an allegation in only one count out of twenty would be insufficient to show a single conspiracy. 546 F.2d at 665. . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim. A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_usc1sect	3005	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 39. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". UNITED STATES of America and United States Postal Service, Appellants, v. INTERNATIONAL TERM PAPERS, INC., et al., Appellees. No. 72-1397. United States Court of Appeals, First Circuit. Heard March 5, 1973. Decided May 3, 1973. Frederic R. Kellogg, Asst. U. S. Atty., with whom Harlington Wood, Jr., Asst. Atty. Gen., James N. Gabriel, U. S. Atty., Robert E. Kopp, and Anthony J. Steinmeyer, Attys., Department of Justice, were on brief, for appellants. Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges. COFFIN, Chief Judge. The United States Postal Service seeks to invoke 39 U.S.C. § 3007 and Rule 65, Fed.R.Civ.P. to detain defendants’ incoming mail pending statutory proceedings under 39 U.S.C. § 3005. Defendants-appellees are four “term paper” companies, engaged in selling academic papers to students for submission to universities and other institutions as the work of the students. The question before the district court was whether there is probable cause to believe that appellees are “engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations”. 39 U.S.C. § 3005. The district court, 351 F.Supp. 76, while recognizing that a companion criminal statute, 18 U.S.C. § 1341, might well embrace appellees’ conduct, held that, since there was no allegation that the mails were used to communicate with the persons intended to be defrauded, § 3005 did not apply and dismissed the complaint. 18 U.S.C. § 1341 makes it a federal offense to use the mails in connection with a scheme to defraud. It is not necessary that the mailing be between the perpetrator and the victim; any mailing in connection with the scheme is enough. Thus the use of the mails to realize on a check previously received from the victim satisfies the statute. Pereira v. United States, 347 U.S. 1, 74 S.Ct. 359, 98 L.Ed. 435 (1954). Of greater present relevancy, the mailing of a false medical certificate to a person who intends to commit fraud by posing as a licensed physician is a covered offense. Alexander v. United States, 95 F.2d 873 (8th Cir.), cert. denied, 305 U. S. 637, 59 S.Ct. 99, 83 L.Ed. 409 (1938). We do not say that § 1341, more explicitly covering use of the mails in connection with schemes exploiting third party victims of false representations, who themselves may have had nothing to do with use of the mails, compels a similar interpretation of § 3005. But we see no bander, in construing this civil statute dealing with commercial fraud, to give it as broad an interpretation as the language can gracefully bear, particularly in the light of the general “purpose of Congress to utilize its powers, particularly over the mails and in interstate commerce, to protect people against fraud.” Donaldson v. Read Magazine, Inc., 333 U.S. 178, 190, 68 S.Ct. 591, 598, 92 L.Ed. 628 (1948). Cf. United States v. Seuss, 474 F.2d 385, p. 388 (1st Cir. 1973) (slip op. p. 5). Concededly, all of the injunctive cases which have come to our attention have involved a seller of goods, investment opportunities, or services sending false information about them through the mails to the intended victims. But the technology of merchandising false representations is not confined to selling directly to the consumer. We can see no basis for a policy which would allow a § 3007 injunction against one who mails false advertising to a prospective buyer but would forbid an injunction against one who mails false advertising and fraudulent selling advice to sales representatives for use in calling on prospective buyers. Nor is the language of § 3005 limited to one who falsifies to another and subsequently receives money. Unlike the language in similar statutes aimed at preventing the use of the mails for fraudulent purposes, neither the timing, the source, nor the target of the false representation is here specified. The critical requirement here is that the scheme contemplate the receipt of money through the mail generated by means of false representations. That the student first pays for that which will enable him to make a subsequent false representation to his college does not affect the means-end relationship. That it is not the seller but the buyer who makes the false representation seems equally irrelevant. The reality is that the appellees receive money through the mail by means of assisting students to make false representations to universities. We are aware of Congress’ intent, in amending this statute in 1968, to eliminate the requirement of proving the sender’s intent to deceive. P.L. 90-590, 82 Stat. 1153, 1968 U.S. Code Cong. & Admin.News, pp. 1327, 4290-4302. Lynch v. Blount, 330 F.Supp. 689, 693 (S.D.N.Y.1971) (three-judge court) aff’d, 404 U.S. 1007, 92 S.Ct. 673, 30 L.Ed.2d 676 (1972). This was sought to be accomplished by substituting “false representations” for “false or fraudulent pretenses, representations, or promises”, 1968 U.S.Code Cong & Admin.News, at p. 4297, while retaining the phrase “engaged in conducting a scheme or device”. In a two-party, sender-receiver situation, the requirement of a “scheme or device” offers no problem of proof; it is simply the intentional mailing-for-money transaction in which a false statement was sent. The Congressional purpose of imposing strict liability for even innocent falsehoods is thus not impeded by the reference to “scheme”. In a three-party situation — not, so far as we can discern, considered during the Congressional deliberations — the phrase “scheme or device” becomes important. Encyclopedia Britanniea could not be enjoined from distributing its sets simply because a student purchaser submits its essay on Jefferson as his own term paper. For the statute to apply to a sender, where a third party is deceived by a recipient, the sender must contemplate a “scheme” which involves a misrepresentation based on the materials which he sends. In such a case, therefore, the intent of the seller, in the sense of his knowing cooperation in a scheme, is, by the words of the statute, a necessary prerequisite for injunctive remedy — a prerequisite obviously present in this case. Finally, it is clear that the fraudulent transaction need not itself be illegal to permit a postal injunction. Public Clearing House v. Coyne, 194 U.S. 497, 24 S.Ct. 789, 48 L.Ed. 1092 (1904); Durland v. United States, 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709 (1896); Harris v. Rosenberger, 145 F. 449 (8th Cir. 1906) and cases cited therein. Indeed, no such underlying illegality is required for conviction under the criminal mail fraud statute. Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954). The purpose of both statutes was and is to protect the public against, fraud of all kinds, whether or not already legally condemned. The judgment is vacated and cause is remanded for further proceedings consistent with this opinion. . Nothing we say here is to be construed as deciding what connection between the mailing and the fraudulent scheme is necessary for conviction under the criminal statute. (Compare United States v. Maze, 468 F.2d 529 (6th Cir. 1972), pet. for cert. filed 41 U.S.L.W. 3530 (U.S. Apr. 3, 1973), with United States v. Thomas, 429 F.2d 407 (5th Cir. 1970). . In the Investment Advisers Act, Congress made unlawful “by use of the mails directly or indirectly — (1) to employ any device, scheme, or artifice to defraud any client or prospective client.” 15 U.S.C. § 80b-6. [Emphasis added.] In the Federal Trade Commission Act, Congress explicitly limited a prohibition to direct misrepresentations by the sender to the recipient, by making it “unlawful for any person ... to disseminate any false advertisement — (1) by United States mails.” 15 U.S.C. § 52(a). Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 39? Answer with a number. 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 WILLIAMS et al. v. ZBARAZ et al. No. 79-4. Argued April 21, 1980 Decided June 30, 1980 Stewart, J., delivered the opinion of the Court, in which Burger, C. J.. and White, Powell, and Rehnquist, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall and Blackmun, JJ., joined, ante, p. 329. Marshall, J., ante, p. 337, Blacemun, J., ante, p. 348, and Stevens, J., ante, p. 349, filed dissenting opinions. Victor G. Rosenblum argued the cause for appellants in No. 79-4. With him on the briefs were Dennis J. Horan, John D. Gorby, and Patrick A. Trueman. William A. Wen-zel III, Special Assistant Attorney General of Illinois, argued the cause for appellants in No. 79-5. With him on the briefs were William J. Scott, Attorney General, and James C. O’Connell and Ellen P. Brewin, Special Assistant Attorneys General. Solicitor General McCree argued the cause for the United States in No. 79-491. With him on the briefs were Assistant Attorney General Daniel and Eloise E. Davies. Robert W. Bennett argued the cause for appellees in each case. With him on the brief were Lois J. Lipton, David Goldberger, Aviva Futorian, Robert E. Lehrer, and James D. Weill. Together with No. 79-5, Miller, Acting Director, Department of Public Aid of Illinois, et al. v. Zbaraz et al., and No. 79-491, United States v. Zbaraz et al., also on appeal from the same court. Briefs of amici curiae urging reversal in all cases were filed by Robert B. Hansen, Attorney General, Paid M. Tinker, Assistant Attorney General, and Lynn D. Wardle for the State of Utah; by Bronson C. La Follette, Attorney General of Wisconsin, F. Joseph Sensenbrenner, Jr., Assistant Attorney General, and William J. Brown, Attorney General of Ohio, for the States of Wisconsin et al.; by George E. Reed and Patrick F. Geary for the United States Catholic Conference; and by Daniel J. Popeo for the Washington Legal Foundation. John J. Degnan, Attorney General, Erminie L. Conley, Assistant Attorney General, and Andrea M. Silkowitz, Deputy Attorney General, filed a brief for the State of New Jersey as amicus curiae urging reversal in No. 79-5. James Bopp, Jr., and David D. Haynes filed a brief for the National Right to Life Committee, Inc., as amicus curiae urging reversal in No. 79-4. Briefs of amici curiae urging affirmance in all cases were filed by Paul Bender, Thomas Harvey, and Roland Morris for Jane Roe et al.; and by Margo K. Rogers and Eve W. Paul for the Planned Parenthood Federation of America, Inc., et al. Briefs of amici curiae in all cases were filed by Francis X. Bellotti, Attorney General of Massachusetts, Garrick F. Cole, Assistant Attorney General, John D. Ashcroft, Attorney General of Missouri, Paul L. Douglas, Attorney General of Nebraska, and William J. Brown, Attorney General of Ohio, for the Commonwealth of Massachusetts et al.; by Dorothy T. Lang for the Physicians National Housestaff Association et al.; and by Francis D. Morrissey for Certain Physicians, Professors and Fellows of the American College of Obstetrics and Gynecology. Mr. Justice Stewart delivered the opinion of the Court. This suit was brought as a class action under 42 U. S. C. i 1983 in the District Court for the Northern District of Illinois to enjoin the enforcement of an Illinois statute that prohibits state medical assistance payments for all abortions except those “necessary for the preservation of the life of the woman seeking such treatment.” The plaintiffs were two physicians who perform medically necessary abortions for indigent women, a welfare rights organization, and Jane Doe, an indigent pregnant woman who alleged that she desired an abortion that was medically necessary, but not necessary to save her life. The defendant was the Director of the Illinois Department of Public Aid, the agency charged with administering the State’s medical assistance programs. Two other physicians intervened as defendants. The plaintiffs challenged the Illinois statute on both federal statutory and constitutional grounds. They asserted, first, that Title XIX of the Social Security Act, commonly known as the “Medicaid” Act, 42 U. S. C. § 1396 et seq. (1976 ed. and Supp. II), requires Illinois to provide coverage in its Medicaid plan for all medically necessary abortions, whether or not the life of the pregnant woman is endangered. Second, the plaintiffs argued that the public funding by the State of medically necessary services generally, but not of certain medically necessary abortions, violates the Equal Protection Clause of the Fourteenth Amendment. The District Court initially held that it would abstain from considering the complaint until the state courts had construed the challenged statute. The plaintiffs appealed, and the Court of Appeals for the Seventh Circuit reversed. Zbaraz v. Quern, 572 F. 2d 582. The appellate court held that abstention was inappropriate under the circumstances, and remanded the case for further proceedings, including consideration of the plaintiffs’ motion for a preliminary injunction. On remand, the District Court certified two plaintiff classes: (1) a class of all pregnant women eligible for the Illinois medical assistance programs who desire medically necessary, but not life-preserving, abortions, and (2) a class of all Illinois physicians who perform medically necessary abortions for indigent women and who are certified to obtain reimbursement under the Illinois medical assistance programs. Addressing the merits of the complaint, the District Court concluded that Title XIX and the regulations promulgated thereunder require a participating State under the Medicaid program to provide funding for all medically necessary abortions. According to the District Court, the so-called “Hyde Amendment” — under which Congress has prohibited the use of federal funds to reimburse the costs of certain medically necessary abortions — does not relieve a State of its independent obligation under Title XIX to provide Medicaid funding for all medically necessary abortions. Thus, the District Court permanently enjoined the enforcement of the Illinois statute insofar as it denied payments for abortions that are “medically necessary or medically indicated according to the professional medical judgment of a licensed physician in Illinois, exercised in light of all factors affecting a woman’s health.” The Court of Appeals again reversed. Zbaraz v. Quern, 596 F. 2d 196. Reaching the same conclusion as had the Court of Appeals for the First Circuit in Preterm, Inc., v. Dukakis, 591 F. 2d 121, the court held that the Hyde Amendment “alters Title XIX in such a way as to allow states to limit funding to the categories of abortions specified in that amendment.” 596 F. 2d, at 199. It further held, however, that a participating State may not, consistent with Title XIX, withhold funding for those medically necessary abortions for which federal reimbursement is available under the Hyde Amendment. Accordingly, the case was remanded to the District Court with instructions that the permanent injunction be modified so as to require continued state funding only “for those abortions fundable under the Hyde Amendment.” Id., at 202. The Court of Appeals also directed the District Court to proceed expeditiously to resolve the constitutional questions it had not reached. The District Court was specifically directed to consider “whether the Hyde Amendment, by limiting funding for abortions to certain circumstances even if such abortions are medically necessary, violates the Fifth Amendment.” Ibid, (footnote omitted). On the second remand, the District Court notified the Attorney General of the United States that the constitutionality of an Act of Congress had been drawn into question, and the United States intervened, pursuant to 28 U. S. C. § 2403 (a), to defend the constitutionality of the Hyde Amendment. Zbaraz v Quern, 469 F. Supp. 1212, 1215, n. 3. In view of the fact that the plaintiffs had not challenged the Hyde Amendment, but rather only the Illinois statute, the District Court expressed misgivings about the propriety of passing on the constitutionality of the federal law. . But noting that the same reasoning would apply in determining the constitutional validity of both the Illinois statute and the Hyde Amendment, the District Court observed: “Although we are not persuaded that the federal and state enactments are inseparable and would hesitate to inject into the proceeding the issue of the constitutionality of a law not directly under attack by plaintiffs, we are obviously constrained to obey the Seventh Circuit’s mandate. Therefore, while our discussion of the constitutional questions will address only the Illinois statute, the same analysis applies to the Hyde Amendment and the relief granted will encompass both laws.” Ibid. The District Court then concluded that both the Illinois-statute and the Hyde Amendment are unconstitutional insofar as they deny funding for “medically necessary abortions prior to the point of fetal viability.” Id., at 1221. If the public funding of abortions were restricted to those covered by the Hyde Amendment, the District Court thought that the effect would “be to increase substantially maternal morbidity and mortality among indigent pregnant women.” Id., at 1220. The District Court held that the state and federal funding restrictions violate the constitutional standard of equal protection because “a pregnant woman’s interest in her health so outweighs any possible state interest in the life of a non-viable fetus that, for a woman medically in need of an abortion, the state’s interest is not legitimate. At the point of viability, however, 'the relative weights of the respective interests involved’ shift, thereby legitimizing the state’s interests. After that point, therefore, ... a state may withhold funding for medically necessary abortions that are not life-preserving, even though it funds all other . medically necessary operations.” Id., at 1221. Accordingly, the District Court enjoined the Director of the Illinois Department of Public Aid from enforcing the Illinois statute to deny payment under the state medical assistance programs for medically necessary abortions prior to fetal viability. The District Court did not, however, enjoin any action by the United States. The intervening-defendant physicians, the Director of the Illinois Department of Public Aid, and the United States each appealed directly to this Court, averring jurisdiction under 28 U. S. C. § 1252. This Court consolidated the appeals and postponed further consideration of the question of jurisdiction until the hearing on the merits. 444 U. S. 962. I The asserted basis for this Court’s jurisdiction over these appeals is 28 U. S. C. § 1252, which provides in relevant part: “Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party.” It is quite obvious that the literal requirements of § 1252 are satisfied in the present cases, for these appeals were taken from the final judgment of a federal court declaring unconstitutional an Act of Congress — the Hyde Amendment — in a civil action to which the United States was a party by reason of its intervention pursuant to 28 U. S. C. § 2403 (a). It is equally clear, however, that the appellees and the United States are correct in asserting that the District Court in fact lacked jurisdiction to consider the constitutionality of the Hyde Amendment, for the court acted in the absence of a case or controversy sufficient to permit an exercise of judicial power under Art. Ill of the Constitution. None of the parties to these eases ever challenged the validity of the Hyde Amendment, and the appellees could have been awarded all the relief they sought entirely on the basis of the District Court’s ruling with regard to the Illinois statute. The constitutional validity of the Hyde Amendment was interjected as an issue in these cases only by the erroneous mandate of the Court of Appeals. But, even though the District Court was simply following that mandate, the directive of the Court of Appeals could not create a case or controversy where none otherwise existed. It is clear, therefore, that the District Court exceeded its jurisdiction under Art. Ill in declaring the Hyde Amendment unconstitutional. The question thus arises whether the District Court’s lack of jurisdiction in declaring the Hyde Amendment unconstitutional divests this Court of jurisdiction over these appeals. We think not. As the Court in McLucas v. DeChamplain, 421 U. S. 21, 31-32, observed: “Our previous cases have recognized that this Court’s jurisdiction under § 1252 in no way depends on whether the district court had jurisdiction. On the contrary, an appeal under § 1252 brings before us, not only the constitutional question, but the whole ease, including threshold issues of subject-matter jurisdiction, and whether a three-judge court was required.” (Citations omitted.) Thus, in the McLucas case, which involved an appeal under § 1252 from a single-judge District Court, this Court preter-mitted the question whether the single-judge District Court had had jurisdiction to enter the challenged preliminary injunction, and instead resolved the appeal on the merits. It follows from McLucas that, notwithstanding the fact that the District Court was without jurisdiction to declare the Hyde Amendment unconstitutional, this Court has jurisdiction over these appeals and thus may review the “whole case.” II Disposition of the merits of these appeals does not require extended discussion. Insofar as we have already concluded that the District Court lacked jurisdiction to declare the Hyde Amendment unconstitutional, that portion of its judgment must be vacated. See, e. g., United States v. Johnson, 319 U. S. 302; Muskrat v. United States, 219 U. S. 346. The remaining questions concern the Illinois statute. The ap-pellees argue that (1) Title XIX requires Illinois to provide coverage in its state Medicaid plan for all medically necessary abortions, whether or not the life of the pregnant woman is endangered, and (2) the funding by Illinois of medically necessary services generally, but not of certain medically necessary abortions, violates the Equal Protection Clause of the Fourteenth Amendment. Both arguments are foreclosed by our decision today in Harris v. McRae, ante, p. 279. As to the appellees’ statutory argument, we have concluded in McRae that a participating State is not obligated under Title XIX to pay for those medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment. As to their constitutional argument, we have concluded in McRae that the Hyde Amendment does not violate the equal protection component of the Fifth Amendment by withholding public funding for certain medically necessary abortions, while providing funding for other medically necessary health services. It follows, for the same reasons, that the comparable funding restrictions in the Illinois statute do not violate the Equal Protection Clause of the Fourteenth Amendment. Accordingly, the judgment of the District Court is vacated, and the cases are remanded to that court for further proceedings consistent with this opinion. It is so ordered. [For dissenting opinion of Mr. Justice Brennan, see ante, p. 329.] [For dissenting opinion of Mr. Justice Marshall, see ante, p. 337.] [For dissenting opinion' of Mr. Justice Blackmun, see ante, p. 348.] [For dissenting opinion of Mr. Justice Stevens, see ante, p. 349.] The statute is codified as Ill. Rev. Stat., ch. 23 (1979). It provides in relevant part: “§ 5-5. [Medical services.] The Illinois Department, by rule, shall determine the quantity and quality of the medical assistance for which payment will be authorized, and the medical services to be provided, which may include all or part of the following: [listing 16 categories of medical services], but not including abortions, or induced miscarriages or premature births, unless, in the opinion of a physician, such procedures are necessary for the preservation of the life of the woman seeking such treatment. . . "§ 6-1. Eligibility requirements. . . . Nothing in this Article shall be construed to permit the granting of financial aid where the purpose of such aid is to obtain an abortion, induced miscarriage or induced premature birth unless, in the opinion of a physician, such procedures are necessary for the preservation of the life of the woman seeking such treatment. ...” “§ 7-1. Eligibility requirements. Aid in meeting the costs of necessary medical, dental, hospital, boarding or nursing care, or burial shall be given under this Article [to eligible persons], except where such aid is for the purpose of obtaining an abortion, induced miscarriage nr induced premature birth unless, in the opinion of a physician, such procedures are necessary for the preservation of the life of the woman seeking such treatment. . . The medical assistance programs at issue here are the Illinois Medicaid plan, which is jointly funded by the Federal Government and the State of Illinois, and two fully state-funded programs, the Illinois General Assistance and Local Aid to Medically Indigent Programs. All opinions of the District Court other than that now under review are unreported. Since September 1976, Congress has prohibited — by means of the “Hyde Amendment” to the annual appropriations for the Department of Health, Education, and Welfare (now divided into the Department of Health and Human Services and the Department of Education) — the use of any federal funds to reimburse the cost of abortions under the Medicaid program except under certain specified circumstances. The current version of the Hyde Amendment, applicable for fiscal year 1980, provides: “[N]one of the funds provided by this joint resolution shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest when such rape or incest has been reported promptly to a law enforcement agency or public health service.” Pub. L. 96-123, § 109, 93 Stat. 926. See also Pub. L. 96-86, § 118, 93 Stat. 662. This version of the Hyde Amendment is broader than that applicable for fiscal year 1977, which did not include the “rape or incest” exception, Pub. L. 94-439, § 209, 90 Stat. 1434, but narrower than that applicable for most of fiscal year 1978 and all of fiscal year 1979, which had an additional exception for “instances where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term when so determined by two physicians,’' Pub. L. 95-205, §101, 91 Stat. 1460; Pub. L. 95-480, § 210, 92 Stat. 1586. In this opinion, the term “Hyde Amendment” is used generically to refer to all three versions, except where indicated otherwise. Neither the Director of the Illinois Department of Public Aid nor the intervening-physicians sought review of the judgment of the Court of Appeals. The District Court in the proceedings now on appeal proceeded on the premise that Title XIX obligates Illinois to fund all abortions reimbursable under the Hyde Amendment. That issue, therefore, is not before us on these appeals. Although the medical assistance programs funded exclusively by the State are not governed directly by either Title XIX or the Hyde Amendment, the Court of Appeals concluded that the modified injunction requiring state payments for abortions fundable under the Hyde Amendment should apply to all three Illinois medical assistance programs, see n. 2, supra. 596 F. 2d, at 202-203. Relying on a statement in the State’s brief, the Court of Appeals held that the challenged Illinois statute was intended to represent the State’s understanding of the congressional purpose reflected in the original Hyde Amendment. Id., at 203. The Court of Appeals thus declined to sever the various funding restrictions in the Illinois statute. Section 2403 (a) provides: “In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The United States shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.” The District Court refused to stay its order, and the Director of the Illinois Department of Public Aid and the intervening-defendant physicians moved in this Court for a stay pending appeal. That motion was denied. 442 L’. S. 1309 (Stevens, J., in chambers). A reapplication by the intervening-defendant physicians also was denied. 442 U. S. 915. Title XIX does not prohibit “[a] participating State . . . [from] including] in its Medicaid plan those medically necessary abortions for which federal reimbursement is unavailable [under the Hyde Amendment].” Harris v. McRae, ante, at 311, n. 16. Although this Court need not pass on the remainder of the judgment in a case in which an appeal under § 1252 is taken from a court that lacked jurisdiction to declare a federal statute unconstitutional, see FHA v. The Darlington, Inc., 352 U. S. 977, we are empowered to do so because “an appeal under § 1252 brings before us, not only the constitutional question, but the whole case.” McLucas v. DeChamplain, 421 U. S., at 31. Here, there is no reason not to resolve the “whole case” on the merits. The remainder of the case that is properly before this Court, and which clearly involves a justiciable controversy, includes both the appellees’ federal statutory and constitutional challenges to the Illinois statute. This case was decided by the District Court under the version of the Hyde Amendment applicable during fiscal year 1979, and Congress has since narrowed the ambit of the Hyde Amendment for fiscal year 1980, see n. 4, supra. The recent statutory revision does not, however, affect the outcome of either issue now before the Court. The statutory issue is not affected, because we today conclude in Harris v. McRae, ante, at 306-311, that Title XIX does not require a participating State to fund those medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment, including the version of the Hyde Amendment applicable for fiscal year 1980. The constitutional issue is not affected, because, regardless of whether the State of Illinois is obligated to fund all abortions for which federal reimbursement is available under the Hyde Amendment, we conclude in Harris v. McRae that even the most restrictive version of the Hyde Amendment — which is similar to the Illinois statute at issue here — does not violate the equal protection standard of the Constitution. Since the outcome of these issues is not affected by the recent changes in the Hyde Amendment, we need not defer review in order to provide the District Court with an opportunity to evaluate the effects of these changes in the federal law. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable 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. COMMISSIONER OF INTERNAL REVENUE v. STIDGER et ux. No. 173. Argued January 16, 1967. Decided March 20, 1967. Assistant Attorney General Rogovin argued the cause for petitioner. With him on the brief were Solicitor General Marshall, Jack S. Levin, Robert N. Anderson and Albert J. Beveridge III. John A. Reed, by invitation of the Court (385 U. S. 925), argued the cause and filed a brief, as amicus curiae, in support of the judgment below. Mr. Chief Justice Warren delivered the opinion of the Court. In this case we are required to determine whether, under the ,1954 Internal Revenue Code, expenditures for meals by a military officer stationed at a post to which his dependents were prohibited from accompanying him were deductible “traveling expenses . . . [incurred] while away from home” within the meaning of § 162 (a) (2) or whether instead they were nondeduetible “personal, living, or family expenses” within the meaning of § 262. At all pertinent times, respondent was a captain in the United States Marine Corps, attached to an aviation squadron. Immediately prior to October 1957, his permanent duty station was a Marine Corps base located at El Toro, California, and he lived nearby with his wife and children. On October 1, 1957, however, respondent and his squadron were transferred to Iwakuni, Japan, where they were to be based while serving a standard 15-month tour of duty in the Far East. Because dependents were prohibited from accompanying Marine Corps personnel to that duty station, respondent’s wife and children remained in California. Of the 14½ months’ actual duration of respondent’s Far Eastern tour of duty, he was physically located at the Iwakuni base for 10 months. The remaining time was consumed by travel and short periods of duty at various other military bases; respondent was declared to be in a “travel status” for a period of 49 days, and he received additional compensation for those days on a per diem basis. .During the entire period of his service as a Marine Corps captain, both while, he served at bases in the United States and while he served abroad away from his family, respondent also received tax-free monthly allowances for quarters and subsistence. On his 1958 income tax return, respondent claimed a deduction of $650, representing the cost of his meals at a rate of $65 per month for the 10 months spent at the Iwakuni base. The Commissioner of Internal . Revenue disallowed the deduction, ruling that the expenditure for meals was a “personal, living” expense under § 262 and not a travel expense under § 162 (a)(2). In the Commissioner’s view respondent’s “home” during the period in question was his permanent duty station at Iwakuni rather than California where his family resided; therefore, he was not “away from home” when he incurred the expenditure. The Tax Court upheld the Commissioner (40 T. C. 896), and respopdelit petitioned for review in the Court of Appeals for the Ninth Circuit. That court, in a per curiam decision with one judge dissenting, reversed the Tax Court and rejected the Commissioner’s definition of “home” for purposes of the deduction. 355 F.2d 294. The majority of the Court of Appeals ruled that the word “home” as used in § 162 (a) (2) of the Code must be given its usual meaning as the place of residence, not the place of business, of the taxpayer and his family. And since it was not reasonable for this taxpayer to move his family residence closer to his place of business, the “ordinary and necessary” requirement applicable to all § 162 deductions was met and the cost of meals at Iwakuni was deductible To resolve a direct conflict between this decision and a 1948 decision of the Court of Appeals for the Fourth Circuit in another case involving a military officer, Bercaw v. Commissioner, 165 F. 2d 521, wé granted certiorari. 385 U. S. 809. This case , then requires us to focus upon one of the three conditions which must be met before an item is deductible.as a travel expense under § 162 (a)(2). There is no question but that the expenditure here was “ordinary and necessary” and that there was a “direct connection between the expenditure and the carrying on of the trade or business of the taxpayer or of his employer.” Cf. Commissioner v. Flowers, 326 U. S. 465, 470 (1946); Peurifoy v. Commissioner, 358 U. S. 59 (1958). The essence of the case is whether respondent was “away from home” when he incurred the expenditure. And the answer to that question turns upon a determination of whether, under the circumstances related above, respondent’s “home”, in 1958 was his permanent duty station at Iwakuni, Japan, or, instead, the residence of his family in California. From the Revenue Act of 1921 down to § 162 (a) (2) of the 1954 Internal Revenue Code Congress has provided a deduction from taxable income for travel expenses, including amounts expended for meals and lodging, while “away from home.” Although Congress has not defined the crucial phrase “away from home,” administrative rulings and regulations have been directed toward that problem. In 1921, a general rule was established to the Cfect that “home” meant the taxpayer’s principal place of business or employment whether or not it coincided with his place of residence. This interpretation prevented deductions of day-to-day commuting expenses which were not the unusual type of “traveling expense” to which the statute was directed. Cf. Commissioner v. Flowers, 326 U. S. 465, 470 (1946). Its logic has been applied to a host of other situations. Although certain refinements have been added, the essential position of the Commissioner has remained unchanged. While the court below, together with the Courts of Appeals for the Fifth and Sixth Circuits, has not always agreed with this interpretation, the Tax Court and all of the other courts of appeals which have considered it have sustained the Commissioner. The Commissioner’s interpretation of the word “home” in connection with travel-expense deductions was also made clear to Congress when in 1936 it was held that Members of Congress could not deduct expenses which they incurred in Washington, D. C., even though each also maintained a residence in the district from which he had been elected. Lindsay v. Commissioner, 34 B. T. A. 840. Congress did not respond to this ruling by amending the statutory language generally to provide that “home” was. intended to be synonymous with “residence,” but instead merely carved out an exception to cover the special travel-expense problems inherent in service as a national legislator. The Commissioner argues that the fact that Congress has reviewed and re-enacted the pertinent language with an awareness of the administrative interpretation constitutes a legislative endorsement of the Commissioner’s position and is sufficient reason for reversing the judgment below. Helvering v. Winmill, 305 U. S. 79 (1938). But it is not necessary for us to decide here whether this congressional action (or inaction) constitutes approval and adoption of the Commissioner’s interpretation of “home” in all of its myriad applications since, in the context of the. military taxpayer, the Commissioner’s position has a firmer foundation. The Commissionerffias long held that a military taxpayer’s permanent duty station is also his home for purposes of determining deductibility of travel expenses. This position builds on the terminology employed by the military services to categorize various assignments and tours of duty, and also on the language and policy of the statutory provisions prescribing travel and transportation allowances for military personnel. For example, a Marine Corps directive, which was effective during respondent’s Far Eastern tour of duty, defined the length of standard tours of duty in terms of the commencement and termination dates of “permanent change[s] of station.” (Emphasis supplied.) Similarly, eligibility for certain statutory travel allowances turns upon whether an assignment constitutes a “change of permanent station” (emphasis supplied) or whether the serviceman is “away from his designated post of duty.” 37 U. S. C. § 404 (a)(1). Thus, the Commissioner’s position recognizes, as do the relevant statutes and the military services themselves, that the “permanence” of location in civilian life cannot find a complete parallel in military life which necessarily contemplates relatively frequent changes of location. The nondeductibility of expenses incurred by a military taxpayer while at a permanent duty station was previously challenged in Bercaw v. Commissioner, 165 F. 2d 521 (C. A. 4th Cir. 1948). There, the taxpayer, a reserve army officer who was called to active duty and assigned to Fort Meade in Maryland where there were no quarters for dependents, sought to deduct expenditures for his meals and janitorial service as costs of traveling “away from home” in pursuit of his trade or business. The Court of Appeals affirmed the Tax Court’s disallowance of the deduction, stating: “The taxpayer was engaged in the business of an Army officer. His place of business was his particular Army post. If his Army duties required him to travel, he would have received a per diem travel allowance which would not have been taxable. . . . But whenever he made a permanent change of station that place of duty became his place of business and there was his ‘home’ within the meaning of Section 23(a)(1)(A). . . . Thus the expenditures for meals . . . while at this post were personal living expenses and nondeductible . . . .” 165 F. 2d, at 524. Since the Bercaw decision, the Commissioner has reiterated his position in Rev. Rui. 55-571,1955-2 Cum. Bull. 44. And until the decision of the court below in the 'present case, neither the courts nor Congress had disturbed the Commissioner’s interpretation of “home” as it pertained to military personnel. Additional support for the Commissioner’s position is found in the fact that Congress traditionally has provided a special system of tax-free allowances for military personnel. These allowances now range from monthly payments for quarters and subsistence to per diem payments when the serviceman is declared in a “travel status.” Provision may also be made for financial relief to assist dependents in relocating when they are prohibited from accompanying a serviceman on a change of permanent duty station. In the present case, respondent received the per diem payments while he was away from his permanent duty station. His quarters at Iwakuni were provided without cost to him, and at the same time he continued to receive á tax-free quarters allowance of approximately $102.50 per month; he also received a tax-free subsistence allowance of approximately $42.50 per month at all relevant times.. Moreover, because his assignment to Iwakuni was a change of permanent station, his wife and children could have moved their residence to another part of the United States at the Government’s expense; however, they elected not to exercise that option. Underlying the system of special allowances is congressional recognition of the fact that military life poses unusual financial problems. The system is designed to provide complete and direct relief from such problems as opposed to the incomplete and indirect relief which an income tax deduction affords to a civilian business traveler. If the system of allowances is in fact inadequate, or if there are inconsistencies in the Commissioner's application of the travel-expense provision to military personnel, it is the province of Congress and the Commissioner, not the courts, to make the appropriate adjustments. Given the Commissioner’s long-standing and judicially approved interpretation, the knowledge of that interpretation by Congress, and the fact that Congress has chosen to deal specially by tax-free, allowances with the financial problems peculiar to military life, we must agree with the Commissioner that the military taxpayer is not “away from home” when he is at his permanent duty station whether or not it is feasible or even permissible for his family to reside with him there. The judgment is, therefore, Reversed. “There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the: taxable year in carrying on any trade or business, including— “(2) traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business . . . .” § 162 (a) (2) of the Internal Revenue Code. of 1954, 26 U. S. C. § 162 (a)(2) (1958 ed.). “Except as otherwise expressly provided in this chapter, no deduction shall be allowed for personal; living, or family expenses.” § 262 of the Internal Revenue Code of 1954, 26 U. S. C. § 262. Since a joint income tax return was filed by Captain and Mrs. Stidger, both are respondents here. In this opinion, however, the terms “respondent” and “taxpayer” refer only to Captain Stidger. Revenue Act of 1921, c. 136, §214 (a), 42 Stat. 239. O. D. 864, 4 Cum. Bull. 211 (1921); O. D. 1021, 5 Cum. Bull. 174 (1921). See, e. g.; I. T. 1490, 1-2 Cum. Bull. 89 (1922); Rev. Rul. 60-189, 1960-1 Cum. Bull. 60. See also note 22, infra. In addition to the instant case, see also Wright v. Hartsell, 305 F. 2d 221 (C. A. 9th Cir. 1962). Steinhort v. Commissioner, 335 F. 2d 496 (C. A. 5th Cir. 1964); United States v. Le Blanc, 278 F. 2d 571 (C. A. 5th Cir. 1960). Burns v. Gray, 287 F. 2d 698 (C. A. 6th Cir. 1961). See, e. g., Friedman v. Commissioner, 37 T. C. 539 (1961); Carroll v. Commissioner, 20 T. C. 382 (1953). The facts of the Carroll case are closely analogous to the circumstances surrounding the claimed deduction here. The taxpayer there was an employee of the War Department who in 1947 was transferred to a “permanent duty station” in Korea for a minimum of one year. His wife and child remained in the United States. A deduction for the cost of meals and lodging while in Korea was not allowed by the Tax Court which noted that the taxpayer’s employer (1) designated Korea as a “permanent duty station” and (2) granted per diem travel allowances only while the taxpayer was en route to and from Korea, not while he was based there. See also Todd v. Commissioner, 10 T. C. 655 (1948). See, e. g., O’Toole v. Commissioner, 243 F. 2d 302 (C. A. 2d Cir. 1957); Coerver v. Commissioner, 297 F. 2d 837 (C. A: 3d Cir. 1962), affirming 36 T. C. 252 (1961); Bercaw v. Commissioner, 165 F. 2d 521 (C. A. 4th Cir. 1948); England v. United States, 345 F. 2d 414 (C. A. 7th Cir. 1965); Cockrell v. Commissioner, 321 F. 2d 504 (C. A. 8th Cir. 1963); and York v. Commissioner, 82 U. S. App. D. C. 63, 160 F. 2d 385 (1947). The Courts of Appeals for the First and Tenth Circuits apparently have not taken a position on this question. 66 Stat. 467. The exception was carried over to the 1954 Code and now reads: “For purposes of the preceding sentence, the place of residence of a Member of Congress . . . within the State, congressional district, Territory, or possession which he represents in Congress shall be considered his'home, but amounts expended by such Members within each taxable year for living expenses shall not be deductible for income tax purposes in excess of $3,000.” 26 U. S. C. §162 (a). Marine Corps Order 1300.8B, c. 1, issued July 1, 1958,- Record, p. 24. See generally Advisory Commission on Service Pay, Career Compensation for the Uniformed Forces, Appendix 13-18 (1948). 37 U. S. C. §403. 37 U. S. C. § 402. 37 U. S. C. § 404. See also 37 U. S. C. §§ 405-412. 37 U. S. C. §406 (h). 37 U. S. C. § 403 (d) provides: “A member of a uniformed service who is assigned to quarters of the United States or a housing facility under the jurisdiction of a uniformed service may not be denied the basic allowance for quarters if, because of orders of competent authority, his dependents are prevented from occupying those quarters.” In 1948, the Hook Commission, which had been appointed by the Secretary of Defense to study military compensation, issued its report and recommendations. Advisory Commission on Service Pay, Career Compensation for the Uniformed Forces (1948). That report formed a principal basis for the Career Compensation Act of 1949, c. 681, 63 Stat. 802. On the subjects of subsistence and quarters allowances, the Commission state! (Appendix," p. 17): • “The theory behind the subsistence allowance is that since the officer is required to arrange and provide his subsistence at all times and since he has no choice as to the place where he is to be stationed and therefore does not have the choice of the average citizen as to the place and manner of subsisting himself, it is necessary to provide him with an allowance at all times so that he may bear that expense wherever stationed. “Because an officer is transferred frequently from place to place and is required to dig up his roots at the old station and transplant them to the new station, the Government has acknowledged for years its obligation to furnish quarters to the officer for occupancy by himself and his dependents.” Congress has through the years evidenced a determination to maintain the various allowances at levels consistent with the necessary financial burdens borne by servicemen. See, e. g., id., at 35 and Appendix 13-48; H. R. Rep. No. 779, 81st Cong., 1st Sess., p. 19. In 1963, Congress enacted yet another measure designed to provide direct relief for dependents separated from servicemen on permanent duty outside this country or in Alaska. 37 U. S. C. §427 (b). Under specified conditions, this provision authorizes an allowance of $30 monthly. It was established because Congress recognized that separated families incur additional expenses. See H. R. Rep. No. 208, 88th Cong., 1st Sess., p. 29. That recognition is, of course, the same one that underlies the travel-expense deduction for civilian taxpayers. The Commissioner has. taken the position that a naval officer may deduct as a traveling expense the cost of his meals aboard ship while the ship is away from its home port. Rev. Rui. 55-571,1955-2 Cum. Bull. 44. It is contended that respondent’s situation at Iwa-kuni was directly analogous to that of a naval officer on a ship at sea for an extended period of time. The Commissioner justifies the discrepant treatment by arguing that a naval officer should be treated like the engineer of a train, a bus driver, or an airplane pilot for purposes of the travel-expense deduction; the principal place of business of such taxpayers is their home terminal and they are allowed the deduction when away from that terminal on business trips. We are not.convinced that respondent’s situation was in all relevant respects analogous to that of a naval officer at sea. In any event, during oral orgument we were advised that the Commissioner is re-examining his position with respect to naval officers. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_juryinst	A	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury instructions were improper?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". UNITED STATES of America, Appellee, v. Clarence SMITH, a/k/a "Texas Shorty,” Appellant. No. 74-1353. United States Court of Appeals, Tenth Circuit. Aug. 22, 1975. Mark L. Bennett, Jr., Topeka, Kan., for appellant. Mary K. Briscoe, Asst. U. S. Atty. (E. Edward Johnson, U. S. Atty., and Bruce E. Miller, Asst. U. S. Atty., with her on the brief), for appellee. Before SETH, McWILLIAMS and BARRETT, Circuit Judges. SETH, Circuit Judge. The defendant, Clarence Smith, was indicted and tried for the first degree murder of a fellow inmate in the federal penitentiary at Leavenworth, Kansas. The jury returned a verdict of guilty of voluntary manslaughter, and defendant appeals. Appellant’s first argument is that the trial court abused its discretion in allowing evidence of his prior convictions to be admitted. Prior to the start of the trial, the trial court heard appellant’s motion for a protective order to prevent the Government from cross-examining him about his prior criminal record. This record included convictions of armed robbery, burglary, and forgery, the latter being the record for his incarceration at Leavenworth. The motion was directed to the convictions of- robbery and burglary on the theory they did not pertain to credibility and therefore are beyond the permissible scope of cross-examination for impeachment purposes. The motion was denied, and appellant revealed each of his prior convictions on direct examination. In United States v. Williams, 445 F.2d 421 (10th Cir.), coappellant Johnson had been advised the Government would be allowed to cross-examine him about his prior conviction of assault with intent to kill. This was before he took the stand in his trial for stealing television sets from an interstate shipment, and he then revealed the prior conviction on direct examination. This court there said: “ . . . There appears to be a trend in legal thinking away from the traditional right of unlimited cross examination of defendants as to prior convictions when they testify in their own defense. “This court, however, has continuously followed the time honored rule that when .a defendant in a criminal case takes the stand in his own defense, his credibility may be impeached and his testimony attacked in the same manner as any other witness, including reference to prior convictions. United States v. Perea, 413 F.2d 65 (10th Cir. 1969), cert. denied, 397 U.S. 945, 90 S.Ct. 960, 25 L.Ed.2d 125 (1970); Butler v. United States, 408 F.2d 1103 (10th Cir. 1969); Martin v. United States, 404 F.2d 640 (10th Cir. 1968); Burrows v. United States, 371 F.2d 434 (10th Cir. 1967). To minimize undue prejudice, we have recognized that the trial court has discretion in limiting cross examination of an accused on the subject of prior convictions. United States v. Bartello, 432 F.2d 1030 (10th Cir. 1970); United States v. Perea, supra; Butler v. United States, supra; Burroughs v. United States, supra; Maguire v. United States, 358 F.2d 442 (10th Cir. 1966). We find no abuse of discretion.” Appellant relies on Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763, for the proposition that in exercising its discretionary power, the trial court must hold a hearing to determine whether the prejudice resulting from the use of prior convictions outweighs their probative value. A pretrial hearing was held on the motion in the case before us, and appellant’s argument therefore appears to challenge the adequacy of that hearing. We do not read Luck or any other case as requiring a hearing as to the admissibility of prior convictions for impeachment purposes. Luck involved the District of Columbia’s statutory prior conviction rule and while it is obviously distinguishable in that it involved a statutory prior conviction rule, none of its reasoning requires a hearing in the exercise of the court’s discretionary power. The hearing in the case before us was occasioned by appellant’s pretrial motion for a protective order, and we find no abuse of discretion in its denial. The indictment charged murder within a penitentiary. The defendant, the victim, and the eye witness were all inmates incarcerated on prior convictions. It was of practical necessity, therefore, that on voir dire of the jury panel and before the motion hearing, defendant’s counsel examined the panel with regard to defendant’s obvious status as a convict. During the trial, defendant freely cross-examined the Government’s eye witness about his prior convictions. After defendant took the stand, he called the prison records officer for the purpose of showing the victim’s convictions. He then called seven inmates, some of whom testified about violence in general at the penitentiary, most of whom testified about the violent reputation of the victim, and all of whom were questioned on direct or cross-examination about their own convictions. Viewing this record as a whole, we cannot see that the trial court abused its discretion or the defendant was unduly prejudiced by either denial of the pretrial motion or subsequent introduction of his prior convictions. Appellant’s second argument is the trial court erred in giving an additional “Allen” type instruction to the jury after they had deliberated only three hours. The jury had so deliberated when released overnight, and was given the challenged instruction upon returning the following morning. Defendant immediately objected on the ground of coercion and prejudice, especially in light of the length of the trial, the volume of evidence received, the possibility of four different verdicts, and the fact that the last indication made by the jury was they were making progress. The instruction here concerned is basically the same as considered by this court in Munroe v. United States, 424 F.2d 243 (10th Cir.). Munroe is dispositive of appellant’s contention as to the Allen type instructions given during the deliberation of the jury, and before any deadlock was indicated. We are of the view that “Allen” instructions are not per se coercive, and each case is reviewed individually to determine whether the taint of coercion was present. See United States v. Wynn, 415 F.2d 135 (10th Cir.); Munroe v. United States, 424 F.2d 243 (10th Cir.); Goff v. United States, 446 F.2d 623 (10th Cir.); United States v. Cowley, 452 F.2d 243 (10th Cir.); United States v. Abbadessa, 470 F.2d 1333 (10th Cir.). Appellant’s third argument concerns the trial court’s refusal to instruct on the lesser included offense of involuntary manslaughter. The theory of appellant’s case was self-defense, and the trial court properly instructed the jury that such a defense is a complete defense. The crime of involuntary manslaughter is inconsistent with the theory of self-defense. Appellant’s fourth argument concerns denial of his motion for new trial on the ground that he was under the influence of drugs during trial and therefore incapable of assisting in his own defense. It was while the jury was deliberating that appellant first advised his counsel he had been under the influence of drugs throughout the trial. An evidentiary hearing on his motion revealed appellant had requested and received a prescription of ten milligrams of Valium to be given three times per day. Medical testimony showed Valium to be a mild tranquilizer having possible but unlikely effects upon an individual’s mental capacities. Appellant testified that during his trial he would save his evening dosage and take it with the morning dosage, with the result that he would be “drowsy” and things would “pass right on by >1 The test of competency to stand trial is “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824; Arnold v. United States, 432 F.2d 871 (10th Cir.). This test raises issues of fact as to which the defendant has the burden of proof. Johnston v. United States, 292 F.2d 51 (10th Cir.). Ignoring the self-administered aspect of the matter, the record does not show, and we have no reason to believe, that appellant’s use of Valium per se rendered him incompetent to stand trial. United States v. Tom, 340 F.2d 127 (2d Cir.). On the other hand, the record does show that appellant appeared to both the trial court and his own counsel to understand the proceedings and communicate rationally with counsel. We conclude there is adequate evidentiary support for the trial court’s conclusion that appellant failed to sustain his burden of proving his incompetency. Appellant’s final argument is that he was denied trial by a jury of his peers. Before voir dire commenced, appellant, a Black, objected to the fact there were no Blacks on the jury panel. In making the objection he conceded he knew of nothing unlawful in the selection of the panel. His argument is that the result speaks for itself and constitutes a prima facie case of purposeful discrimination. We find no case in which such a broad and unspecified objection has been held to constitute a prima facie case. As we recently stated in Leggroan v. Smith, 498 F.2d 168 (10th Cir.), a claim of discriminatory selection of jurors “necessarily requires a showing that a recognizable, identifiable class of persons, otherwise entitled to be jury members, has been purposefully and systematically excluded from jury service.” While the actual result of exclusion may by inference contribute to a showing of such system or purpose, result alone is insufficient to establish a prima facie case shifting the burden of proof to the Government. Appellant’s argument that the summary overruling of his objection prevented him from developing facts which would support his claim of discriminatory selection is equally without merit. Not only is the argument an admission that at the time he knew of no such facts, but also it ignores the statutory procedure available for challenging the selection process, 28 U.S.C. § 1867. Affirmed. Question: Did the court conclude that the jury instructions were improper? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed 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. REID, SUPERINTENDENT, DISTRICT OF COLUMBIA JAIL, v. COVERT. No. 701, October Term, 1955. Argued May 3, 1956; decided June 11, 1956; rehearing granted November 5, 1956; reargued February 27, 1957. Decided June 10, 1957. Solicitor General Rankin reargued the cause for appellant in No. 701 and petitioner in No. 713. With him on the brief were Assistant Attorney General Olney, Roger Fisher, Beatrice Rosenberg, Carl B. Klein and William M. Burch II. Frederick Bernays Wiener reargued the cause for appel-lee in No. 701 and respondent in No. 713. With him on the brief was Adam Richmond. Mr. Justice Black announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Mr. Justice Douglas, and Mr. Justice Brennan join. These cases raise basic constitutional issues of the utmost concern. They call into question the role of the military under our system of government. They involve the power of Congress to expose civilians to trial by military tribunals, under military regulations and procedures, for offenses against the United States thereby depriving them of trial in civilian courts, under civilian laws and procedures and with all the safeguards of the Bill of Rights. These cases are particularly significant because for the first time since the adoption of the Constitution wives of soldiers have been denied trial by jury in a court of law and forced to trial before courts-martial. In No. 701 Mrs. Clarice Covert killed her husband, a sergeant in the United States Air Force, at an airbase in England. Mrs. Covert, who was not a member of the armed services, was residing on the base with her husband at the time. She was tried by a court-martial for murder under Article 118 of the Uniform Code of Military Justice (UCMJ). The trial was on charges preferred by Air Force personnel and the court-martial was composed of Air Force officers. The court-martial asserted jurisdiction over Mrs. Covert under Article 2 (11) of the UCMJ, which provides: “The following persons are subject to this code: “(11) Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States... Counsel for Mrs. Covert contended that she was insane at the time she killed her husband, but the military tribunal found her guilty of murder and sentenced her to life imprisonment. The judgment was affirmed by the Air Force Board of Review, 16 CMR 465, but was reversed by the Court of Military Appeals, 6 USCMA 48, because of prejudicial errors concerning the defense of insanity. While Mrs. Covert was being held in this country pending a proposed retrial by court-martial in the District of Columbia, her counsel petitioned the District Court for a writ of habeas corpus to set her free on the ground that the Constitution forbade her trial by military authorities. Construing this Court's decision in United States ex rel. Toth v. Quarles, 350 U. S. 11, as holding that “a civilian is entitled to a civilian trial” the District Court held that Mrs. Covert could not be tried by court-martial and ordered her released from custody. The Government appealed directly to this Court under 28 U. S. C. § 1252. See 350 U. S. 985. In No. 713 Mrs. Dorothy Smith killed her husband, an Army officer, at a post in Japan where she was living with him. She was tried for murder by a court-martial and despite considerable evidence that she was insane was found guilty and sentenced to life imprisonment. The judgment was approved by the Army Board of Review, 10 CMR 350, 13 CMR 307, and the Court of Military Appeals, 5 USCMA 314. Mrs. Smith was then confined in a federal penitentiary in West Virginia. Her father, respondent here, filed a petition for habeas corpus in a District Court for West Virginia. The petition charged that the court-martial was without jurisdiction because Article 2 (11) of the UCMJ was unconstitutional insofar as it authorized the trial of civilian dependents accompanying servicemen overseas. The District Court refused to issue the writ, 137 F. Supp. 806, and while an appeal was pending in the Court of Appeals for the Fourth Circuit we granted certiorari at the request of the Government, 350 U. S. 986. The two cases were consolidated and argued last Term and a majority of the Court, with three Justices dissenting and one reserving opinion, held that military trial of Mrs. Smith and Mrs. Covert for their alleged offenses was constitutional. 351 U. S. 470, 487. The majority held that the provisions of Article III and the Fifth and Sixth Amendments which require that crimes be tried by a jury after indictment by a grand jury did not protect an American citizen when he was tried by the American Government in foreign lands for offenses committed there and that Congress could provide for the trial of such offenses in any manner it saw fit so long as the procedures established were reasonable and consonant with due process. The opinion then went on to express the view that military trials, as now practiced, were not unreasonable or arbitrary when applied to dependents accompanying members of the armed forces overseas. In reaching their conclusion the majority found it unnecessary to consider the power of Congress “To make Rules for the Government and Regulation of the land and naval Forces” under Article I of the Constitution. Subsequently, the Court granted a petition for rehearing, 352 U. S. 901. Now, after further argument and consideration, we conclude that the previous decisions cannot be permitted to stand. We hold that Mrs. Smith and Mrs. Covert could not constitutionally be tried by military authorities. I. At the beginning we reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government. It was recognized long before Paul successfully invoked his right as a Roman citizen to be tried in strict accordance with Roman law. And many centuries later an English historian wrote: "In a Settled Colony the inhabitants have all the rights of Englishmen. They take with them, in the first place, that which no Englishman can by expatriation put off, namely, allegiance to the Crown, the duty of obedience to the lawful commands of the Sovereign, and obedience to the Laws which Parliament may think proper to make with reference to such a Colony.' But, on the other hand, they take with them all the rights and liberties of British Subjects; all the rights and liberties as against the Prerogative of the Crown, which they would enjoy in this country.” The rights and liberties which citizens of our country enjoy are not protected by custom and tradition alone, they have been jealously preserved from the encroachments of Government by express provisions of our written Constitution. Among those provisions, Art. Ill, § 2 and the Fifth and Sixth Amendments are directly relevant to these cases. Article III, § 2 lays down the rule that: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” The Fifth Amendment declares: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;....” And tfte"Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed....” The language of Art. Ill, § 2 manifests that constitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as here at home. After declaring that all criminal trials must be by jury, the section states that when a crime is “not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” If this language is permitted to have its obvious meaning, § 2 is applicable to criminal trials outside of the States as a group without regard to where the offense is committed or the trial held. From the very first Congress, federal statutes have implemented the provisions of § 2 by providing for trial of murder and other crimes committed outside the jurisdiction of any State “in the district where the offender is apprehended, or into which he may first be brought.” The Fifth and Sixth Amendments, like Art. Ill, § 2, are also all inclusive with their sweeping references to “no person” and to “all criminal prosecutions.” This Court and other federal courts have held or asserted that various constitutional limitations apply to the Government when it acts outside the continental United States. While it has been suggested that only those constitutional rights which are “fundamental” protect Americans’ abroad, we can find no warrant, in logic or otherwise, for picking and choosing among the remarkable collection of “Thou shalt nots” which were explicitly fastened on all departments and agencies of the Federal Government by the Constitution and its Amendments. Moreover, in view of our heritage and the history of the adoption of the Constitution and the Bill of Rights, it seems peculiarly anomalous to say that trial before a civilian judge and by an independent jury picked from the common citizenry is not a fundamental right. As Blackstone wrote in his Commentaries: “... the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. And if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened when it is applied to criminal cases!... [I]t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals.” Trial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness. These elemental procedural safeguards were embedded in our Constitution to. secure their inviolateness and sanctity against the passing demands of expediency or convenience. The keystone of supporting authorities mustered by the Court’s opinion last June to justify its holding that Art. Ill, § 2, and the Fifth and Sixth Amendments did not apply abroad was In re Ross, 140 U. S. 453. The Ross case is one of those cases that cannot be understood except in its peculiar setting; even then, it seems highly unlikely that a similar result would be reached today. Ross was serving as a seaman on an American ship in Japanese waters. He killed a ship’s officer, was seized and tried before a consular “court” in Japan. At that time, statutes authorized American consuls to try American citizens charged with committing crimes in Japan and certain other “non-Christian” countries. These statutes provided that the laws of the United States were to govern the trial except: “... where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others in those countries; and if neither the common law, nor the law of equity or admiralty, nor the statutes of the United States, furnish appropriate and sufficient remedies, the ministers in those countries, respectively, shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies.” The consular power approved in the Ross case was about as extreme and absolute as that of the potentates of the “non-Christian” countries to which the statutes applied. Under these statutes consuls could and did make the criminal laws, initiate charges, arrest alleged offenders, try them, and after conviction take away their liberty or their life — sometimes at the American consulate. Such a blending of executive, legislative, and judicial powers in one person or even in one branch of the Government is ordinarily regarded as the very acme of absolutism. Nevertheless, the Court sustained Ross’ conviction by the consul. It stated that constitutional protections applied “only to citizens and others within the United States, or who are brought there for trial for alleged offences committed elsewhere, and not to residents or temporary sojourners abroad.” Despite the fact that it upheld Ross’ conviction under United States laws passed pursuant to asserted constitutional authority, the Court went on to make a sweeping declaration that “[t]he Constitution can have no operation in another country.” The Ross approach that the Constitution has no applicability abroad has long since been directly repudiated by numerous cases. That approach is obviously erroneous if the United States Government, which has no power except that granted by the Constitution, can and does try citizens for crimes committed abroad. Thus the Ross case rested, at least in substantial part, on a fundamental misconception and the most that can be said in support of the result reached there is that the consular court jurisdiction had a long history antedating the adoption of the Constitution. The Congress has recently buried the consular system of trying Americans. We are not willing to jeopardize the lives and liberties of Americans by disinterring it. At best, the Ross case should be left as a relic from a different era. The Court’s opinion last Term alsp relied on the “Insular Cases” to support its conclusion that Article III and the Fifth and Sixth Amendments were not applicable to the trial of Mrs. Smith and Mrs. Covert. We believe that reliance was misplaced. The “Insular Cases,” which arose at the turn of the century, involved territories which had only recently been conquered or acquired by the United States. These territories, governed and regulated by Congress under Art. IV, § 3, had entirely different cultures and customs from those of this country. This Court, although closely divided, ruled that certain constitutional safeguards were not applicable to these territories since they had not been “expressly or impliedly incorporated” into the Union by Congress. While conceding that “fundamental” constitutional rights applied everywhere, the majority found that it would disrupt long-established practices and would be inexpedient to require a jury trial after an indictment by a grand jury in the insular possessions. The "Insular Cases” can be distinguished from the present cases in that they involved the power of Congress to provide rules and regulations to govern temporarily territories with wholly dissimilar traditions and institutions whereas here the basis for governmental power is American citizenship. None of these cases had anything to do with military trials and they cannot properly be used as vehicles to support an extension of military jurisdiction to civilians. Moreover, it is our judgment that neither the cases nor their reasoning should be given any further expansion. The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government. If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes. But we have no authority, or inclination, to read exceptions into it which are not there. HH 1 — 1 At the time of Mrs. Covert's alleged offense, an executive agreement was in effect between the United States and Great Britain which permitted United States' military courts to exercise exclusive jurisdiction over offenses committed in Great Britain by American servicemen or their dependents. For its part, the United States agreed that these military courts would be willing and able to try and to punish all offenses against the laws of Great Britain by such persons. In all material respects, the same situation existed in Japan when Mrs. Smith killed her husband. Even though a court-martial does not give an accused trial by jury and other Bill of Rights protections, the Government contends that Art. 2 (11) of the TJCMJ, insofar as it provides for the military trial of dependents accompanying the armed forces in Great Britain and Japan, can be sustained as legislation which is necessary and proper to carry out the United States’ obligations under the international agreements made with those countries. The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution. Article VI, the Supremacy Clause of the Constitution, declares: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;....” There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in “pursuance” of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights — let alone alien to our entire constitutional history and tradition — to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined. There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. For example, in Geofroy v. Riggs, 133 U. S. 258, 267, it declared: “The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.” This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument. There is nothing in Missouri v. Holland, 252 U. S. 416, which is contrary to the position taken here. There the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution. The Court was concerned with the Tenth Amendment which reserves to the States or the people all power not delegated to the National Government. To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier. In summary, we conclude that the Constitution in its entirety applied to the trials of Mrs. Smith and Mrs. Covert. Since their court-martial did not meet the requirements of Art. Ill, § 2 or the Fifth and Sixth Amendments we are compelled to determine if there is anything within the Constitution which authorizes the military trial of dependents accompanying the armed forces overseas. III. Article I, § 8, cl. 14 empowers Congress “To make Rules for the Government and Regulation of the land and naval Forces.” It has been held that this creates an exception to the normal method of trial in civilian courts as provided by the Constitution and permits Congress to authorize military trial of members of the armed services without all the safeguards given an accused by Article III and the Bill of Rights. But if the language of Clause 14 is given its natural meaning, the power granted does not extend to civilians — even though they may be dependents living with servicemen on a military base. The term “land and naval Forces” refers to persons who are members of the armed services and not to their civilian wives, children and other dependents. It seems inconceivable that Mrs. Covert or Mrs. Smith could have been tried by military authorities as members of the “land and naval Forces” had they been living on a military post in this country. Yet this constitutional term surely has the same meaning everywhere. The wives of servicemen are no more members of the “land and naval Forces” when living at a military post in England or Japan than when living at a base in this country or in Hawaii or Alaska. The Government argues that the Necessary and Proper Clause when taken in conjunction with Clause 14 allows Congress to authorize the trial of Mrs. Smith and Mrs. Covert by military tribunals and under military law. The Government claims that the two clauses together constitute a broad grant of power “without limitation” authorizing Congress to subject all persons, civilians and soldiers alike, to military trial if “necessary and proper” to govern and regulate the land and naval forces. It was on a similar theory that Congress once went to the extreme of subjecting persons who made contracts with the military to court-martial jurisdiction with respect to frauds related to such contracts. In the only judicial test a Circuit Court held that the legislation was patently unconstitutional. Ex parte Henderson, 11 Fed. Cas. 1067, No. 6,349. It is true that the Constitution expressly grants Congress power to make all rules necessary and proper to govern and regulate those persons who are serving in the “land and naval Forces.” But the Necessary and Proper Clause cannot operate to extend military jurisdiction to any group of persons beyond that class described in Clause 14 — “the land and naval Forces.” Under the grand design of the Constitution civilian courts are the normal repositories of power to try persons charged with crimes against the United States. And to protect persons brought before these courts, Article III and the Fifth, Sixth, and Eighth Amendments establish the right to trial by jury, to indictment by a grand jury and a number of other specific safeguards. By way of contrast the jurisdiction of military tribunals is a very limited and extraordinary jurisdiction derived from the cryptic language in Art. I, § 8, and, at most, was intended to be only a narrow exception to the normal and preferred method of trial in courts of law. Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts, and, more important, acts as a deprivation of the right to jury trial and of other treasured constitutional protections. Having run up against the steadfast bulwark of the Bill of Rights, the Necessary and Proper Clause cannot extend the scope of Clause 14. Nothing said here contravenes the rule laid down in McCulloch v. Maryland, 4 Wheat. 316, at 421, that: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” In McCulloch this Court was confronted with the problem of determining the scope of the Necessary and Proper Clause in a situation where no specific restraints on governmental power stood in the way. Here the problem is different. Not only does Clause 14, by its terms, limit military jurisdiction to members of the “land and naval Forces,” but Art. Ill, § 2 and the Fifth and Sixth Amendments require that certain express safeguards, which were designed to protect persons from oppressive governmental practices, shall be given in criminal prosecutions — safeguards which cannot be given in a military trial. In the light of these as well as other constitutional provisions, and the historical background in which they were formed, military trial of civilians is inconsistent with both the “letter and spirit of the constitution.” Further light is reflected on the scope of Clause 14 by the Fifth Amendment. That Amendment which was adopted shortly after the Constitution reads: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;....” (Emphasis added.) Since the exception in this Amendment for “cases arising in the land or naval forces” was undoubtedly designed to correlate with the power granted Congress to provide for the “Government and Regulation” of the armed services, it is a persuasive and reliable indication that the authority conferred by Clause 14 does not encompass persons who cannot fairly be said to be “in” the military service. Even if it were possible, we need not attempt here to precisely define the boundary between “civilians” and members of the “land and naval Forces.” We recognize that there might be circumstances where a person could be “in” the armed services for purposes of Clause 14 even though he had not formally been inducted into the military or did not wear a uniform. But the wives, children and other dependents of servicemen cannot be placed in that category, even though they may be accompanying a serviceman abroad at Government expense and receiving other benefits from the Government. We have no difficulty in saying that such persons do not lose their civilian status and their right to a civilian trial because the Government helps them live as members of a soldier’s family. The tradition of keeping the military subordinate to civilian authority may not be so strong in the minds of this generation as it was in the minds of those who wrote the Constitution. The idea that the relatives of soldiers could be denied a jury trial in a court of law and instead be tried by court-martial under the guise of regulating the armed forces would have seemed incredible to those men, in whose lifetime the right of the military to try soldiers for any offenses in time of peace had only been grudgingly conceded. The Founders envisioned the army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds. Their fears were rooted in history. They knew that ancient republics had been overthrown by their military leaders. They were familiar with the history of Seventeenth Century England, where Charles I tried to govern through the army and without Parliament. During this attempt, contrary to the Common Law, he used courts-martial to try soldiers for certain non-military offenses. This court-martialing of soldiers in peacetime evoked strong protests from Parliament. The reign of Charles I was followed by the rigorous military rule of Oliver Cromwell. Later, James II used the Army in his fight against Parliament and the people. He promulgated Articles of War (strangely enough relied on in the Government’s brief) authorizing the trial of soldiers for non-military crimes by courtsmartial. This action hastened the revolution that brought William and Mary to the throne upon their agreement to abide by a Bill of Rights which, among other things, protected the right of trial by jury. It was against this general background that two of the greatest English jurists, Lord Chief Justice Hale and Sir William Blackstone — men who exerted considerable influence on the Founders — expressed sharp hostility to any expansion of the jurisdiction of military courts. For instance, Blackstone went so far as to assert: “For martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions, is, as Sir Matthew Hale observes, in truth and reality no law, but something indulged rather than allowed as a law. The necessity of order and discipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king’s courts are open for all persons to receive justice according to the laws of the land.” The generation that adopted the Constitution did not distrust the military because of past history alone. Within their own lives they had seen royal governors sometimes resort to military rule. British troops were quartered in Boston at various times from 1768 until the outbreak of the Revolutionary War to support unpopular royal governors and to intimidate the local populace.. The trial of soldiers by courts-martial and the interference of the military with the civil courts aroused great anxiety and antagonism not only in Massachusetts but throughout the colonies. For example, Samuel Adams in 1768 wrote: “... [I] s it not enough for us to have seen soldiers and mariners forejudged of life, and executed within the body of the county by martial law? Are citizens to be called upon, threatened, ill-used at the will of the soldiery, and put under arrest, by pretext of the law military, in breach of the fundamental rights Of subjects, and contrary to the law and franchise of the land?... Will the spirits of people as yet unsubdued by tyranny, unawed by the menaces of arbitrary power, submit to be governed by military force? No! Let us rouse our attention to the common law, — which is our birthright, our great security against all kinds of insult and oppression... Colonials had also seen the right to trial by jury subverted by acts of Parliament which authorized courts of admiralty to try alleged violations of the unpopular “Molasses” and “Navigation” Acts. This gave the admiralty courts jurisdiction over offenses historically triable only by a jury in a court of law and aroused great resentment throughout the colonies. As early as 1765 delegates from nine colonies meeting in New York asserted in a “Declaration of Rights” that trial by jury was the “inherent and invaluable” right of every citizen in the colonies. With this background it is not surprising that the Declaration of Independence protested that George III had “affected to render the Military independent of and superior to the Civil Power” and that Americans had been deprived in many cases of “the benefits of Trial by Jury.” And those who adopted the Constitution embodied their profound fear and distrust of military power, as well as their determination to protect trial by jury, in the Constitution and its Amendments. Perhaps they were aware that memories fade and hoped that in this way they could keep the people of this Nation from having to fight again and again the same old battles for individual freedom. In light of this history, it seems clear that the Founders had no intention to permit the trial of civilians in military courts, where they would be denied jury trials and other constitutional protections, merely by giving Congress the power to make rules which were “necessary and proper” for the regulation of the “land and naval Forces.” Such a latitudinarian interpretation of these clauses would be at war with the well-established purpose of the Founders to keep the military strictly within its proper sphere, subordinate to civil authority. The Constitution does not say that Congress can regulate “the land and naval Forces and all other persons whose regulation might have some relationship to maintenance of the land and naval Forces.” There is no indication that the Founders contemplated setting up a rival system of military courts to compete with civilian courts for jurisdiction over civilians who might have some contact or relationship with the armed forces. Courts-martial were not to have concurrent jurisdiction with courts of law over nonmilitary America. On several occasions this Court has been faced with an attempted expansion of the jurisdiction of military courts. Ex parte Milligan, 4 Wall. 2, one of the great landmarks in this Court’s history, held that military authorities were without power to try civilians not in the military or naval service by declaring martial law in an area where the civil administration was not deposed and the courts were not closed. In a stirring passage the Court proclaimed: “Another guarantee of freedom was broken when Milligan was denied a trial by jury. The great minds of the country have differed on the correct interpretation to be given to various provisions of the Federal Constitution; and judicial decision has been often invoked to settle their true meaning; but until recently no one ever doubted that the right of trial by jury was fortified in the organic law against the power of attack. It is now assailed; but if ideas can be expressed in words, and language has any meaning, this right — one of the most valuable in a free country — is preserved to everyone accused of crime who is not attached to the army, or navy, or militia in actual service.” In Duncan v. Kahanamoku, 327 U. S. 304, the Court reasserted the principles enunciated in Ex parte Milligan and reaffirmed the tradition of military subordination to civil authorities and institutions. It refused to sanction the military trial of civilians in Hawaii during wartime despite government claims that the needs of defense made martial law imperative. Just last Term, this Court held in United States ex rel. Toth v. Quarles, 350 U. S. 11, that military courts could not constitutionally try a discharged serviceman for an offense which he had allegedly committed while in the armed forces. It was decided (1) that since Toth was a civilian he could not be tried by military court-martial, and (2) that since he was charged with murder, a “crime” in the constitutional sense, he was entitled to indictment by a grand jury, jury trial, and the other protections contained in Art. Ill, § 2 and the Fifth, Sixth, and Eighth Amendments. The Court pointed out that trial by civilian courts was the rule for persons who were not members of the armed forces. There are no supportable grounds upon which to distinguish the Toth case from the present cases. Toth, Mrs. Covert, and Mrs. Smith were all civilians. All three were American citizens. All three were tried for murder. All three alleged crimes were committed in a foreign country. The only differences were: (1) Toth was an ex-serviceman while they were wives of soldiers; (2) Toth was arrested in the United States while they were seized in foreign countries. If anything, Toth had closer connection with the military than the two women for his crime was committed while he was actually serving in the Air Force. Mrs. Covert and Mrs. Smith had never been members of the army, had never been employed by the army, had never served in the army in any capacity. The Government appropriately argued in Toth that the constitutional basis for court-martialing him was clearer than for court-martialing wives who are accompanying their husbands abroad. Certainly Toth’s conduct as a soldier bears a closer relation to the maintenance of order and discipline in the armed forces than the conduct of these wives. The fact that Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
sc_issue_2	18	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. SCHALL, COMMISSIONER OF NEW YORK CITY DEPARTMENT OF JUVENILE JUSTICE v. MARTIN et al. No. 82-1248. Argued January 17, 1984 Decided June 4, 1984 Judith A. Gordon, Assistant Attorney General of New York, argued the cause for appellants in both cases. With her on the briefs for appellant in No. 82-1278 were Robert Abrams, Attorney General, pro se, Peter H. Schiff, Melvyn R. Leventhal, Deputy First Assistant Attorney General, George D. Zuckerman, Deputy Solicitor General, and Robert J. Schack, Assistant Attorney General. Frederick A. 0. Schwarz, Jr., Leonard Koerner, and Ronald E. Sternberg filed a brief for appellant in No. 82-1248. Martin Guggenheim argued the cause for appellees in both cases. With him on the brief were Burt Neuborne, Janet R. Fink, and Charles A. Hollander Together with No. 82-1278, Abrams, Attorney General of New York v. Martin et al., also on appeal from the same court. A brief of amici curiae urging reversal was filed for the Commonwealth of Pennsylvania et al. by LeRoy S. Zimmerman, Attorney General of Pennsylvania, Kathleen F. McGrath, Deputy Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Charles Graddick of Alabama, Norman C. Gorsuch of Alaska, Robert K. Corbin of Arizona, John K. Van De Kamp of California, Jim Smith of Florida, Tany S. Hong of Hawaii, Jim Jones of Idaho, Neil F. Hartigan of Illinois, Linley E. Pearson of Indiana, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, Frank J. Kelley of Michigan, Michael T. Greeley of Montana, Paul L. Douglas of Nebraska, Gregory H. Smith of New Hampshire, Anthony J. Celebrezze, Jr., of Ohio, Dave Frohnmayer of Oregon, T. Travis Medlock of South Carolina, David L. Wilkinson of Utah, John J. Easton, Jr., of Vermont, Kenneth 0. Eikenberry of Washington, A. G. McClintock of Wyoming, and Aviata F. Faalevao of American Samoa. Briefs of amici curiae urging affirmance were filed for the American Bar Association by Wallace D. Riley, Andrew J. Shookhoff, and Steven H. Goldblatt; for the Association for Children of New Jersey by Dennis S. Brotman; for the National Juvenile Law Center by Harry F. Swanger; for the National Legal Aid and Defender Association by Michael J. Dale; for the Public Defender Service for the District of Columbia by Francis D. Carter and James H. McComas; and for the Youth Law Center et al. by Mark I. Soler, Loren M. Warboys, James R. Bell, and Robert G. Schwartz. David Crump filed a brief for the Texas District and County Attorneys Association et al. as amici curiae. Justice Rehnquist delivered the opinion of the Court. Section 320.5(3)(b) of the New York Family Court Act authorizes pretrial detention of an accused juvenile delinquent based on a finding that there is a “serious risk” that the child “may before the return date commit an act which if committed by an adult would constitute a crime.” Appellees brought suit on behalf of a class of all juveniles detained pursuant to that provision. The District Court struck down §320.5(3)(b) as permitting detention without due process of law and ordered the immediate release of all class members. United States ex tel. Martin v. Strasburg, 513 F. Supp. 691 (SDNY 1981). The Court of Appeals for the Second Circuit affirmed, holding the provision “unconstitutional as to all juveniles” because the statute is administered in such a way that “the detention period serves as punishment imposed without proof of guilt established according to the requisite constitutional standard.” Martin v. Strasburg, 689 F. 2d 365, 373-374 (1982). We noted probable jurisdiction, 460 U. S. 1079 (1983), and now reverse. We conclude that preventive detention under the FCA serves a legitimate state objective, and that the procedural protections afforded pretrial detainees by the New York statute satisfy the requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Appellee Gregory Martin was arrested on December 13, 1977, and charged with first-degree robbery, second-degree assault, and criminal possession of a weapon based on an incident in which he, with two others, allegedly hit a youth on the head with a loaded gun and stole his jacket and sneakers. See Petitioners’ Exhibit lb. Martin had possession of the gun when he was arrested. He was 14 years old at the time and, therefore, came within the jurisdiction of New York’s Family Court. The incident occurred at 11:30 at night, and Martin lied to the police about where and with whom he lived. He was consequently detained overnight. A petition of delinquency was filed, and Martin made his “initial appearance” in Family Court on December 14th, accompanied by his grandmother. The Family Court Judge, citing the possession of the loaded weapon, the false address given to the police, and the lateness of the hour, as evidencing a lack of supervision, ordered Martin detained under §320.5(3)(b) (at that time §739(a)(ii); see n. 2, supra). A probable-cause hearing was held five days later, on December 19th, and probable cause was found to exist for all the crimes charged. At the factfinding hearing held December 27-29, Martin was found guilty on the robbery and criminal possession charges. He was adjudicated a delinquent and placed on two years’ probation. He had been detained pursuant to § 320.5(3)(b), between the initial appearance and the completion of the factfinding hearing, for a total of 15 days. Appellees Luis Rosario and Kenneth Morgan, both age 14, were also ordered detained pending their factfinding hearings. Rosario was charged with attempted first-degree robbery and second-degree assault for an incident in which he, with four others, allegedly tried to rob two men, putting a gun to the head of one of them and beating both about the head with sticks. See Petitioners’ Exhibit 2b. At the time of his initial appearance, on March 15, 1978, Rosario had another delinquency petition pending for knifing a student, and two prior petitions had been adjusted. Probable cause was found on March 21. On April 11, Rosario was released to his father, and the case was terminated without adjustment on September 25, 1978. Kenneth Morgan was charged with attempted robbery and attempted grand larceny for an incident in which he and another boy allegedly tried to steal money from a 14-year-old girl and her brother by threatening to blow their heads off and grabbing them to search their pockets. See Petitioners’ Exhibit 3b. Morgan, like Rosario, was on release status on another petition (for robbery and criminal possession of stolen property) at the time of his initial appearance on March 27, 1978. He had been arrested four previous times, and his mother refused to come to court because he had been in trouble so often she did not want him home. A probable-cause hearing was set for March 30, but was continued until April 4, when it was combined with a factfinding hearing. Morgan was found guilty of harassment and petit larceny and was ordered placed with the Department of Social Services for 18 months. He was detained a total of eight days between his initial appearance and the factfinding hearing. On December 21, 1977, while still in preventive detention pending his factfinding hearing, Gregory Martin instituted a habeas corpus class action on behalf of “those persons who are, or during the pendency of this action will be, preven-tively detained pursuant to” § 320.5(3)(b) of the FCA. Rosario and Morgan were subsequently added as additional named plaintiffs. These three class representatives sought a declaratory judgment that § 320.5(3)(b) violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. In an unpublished opinion, the District Court certified the class. App. 20-32. The court also held that appellees were not required to exhaust their state remedies before resorting to federal habeas because the highest state court had already rejected an identical challenge to the juvenile preventive detention statute. See People ex rel. Waybum v. Schupf, 39 N. Y. 2d 682, 350 N. E. 2d 906 (1976). Exhaustion of state remedies, therefore, would be “an exercise in futility.” App. 26. At trial, appellees offered in evidence the case histories of 34 members of the class, including the three named petitioners. Both parties presented some general statistics on the relation between pretrial detention and ultimate disposition. In addition, there was testimony concerning juvenile proceedings from a number of witnesses, including a legal aid attorney specializing in juvenile cases, a probation supervisor, a child psychologist, and a Family Court Judge. On the basis of this evidence, the District Court rejected the equal protection challenge as “insubstantial,” but agreed with appellees that pretrial detention under the FCA violates due process. The court ordered that “all class members in custody pursuant to Family Court Act Section [320.5(3)(b)] shall be released forthwith.” Id., at 93. The Court of Appeals affirmed. After reviewing the trial record, the court opined that “the vast majority of juveniles detained under [§ 320.5(3)(b)] either have their petitions dismissed before an adjudication of delinquency or are released after adjudication.” 689 F. 2d, at 369. The court concluded from that fact that § 320.5(3)(b) “is utilized principally, not for preventive purposes, but to impose punishment for unadjudi-cated criminal acts.” Id., at 372. The early release of so many of those detained contradicts any asserted need for pretrial confinement to protect the community. The court therefore concluded that § 320.5(3)(b) must be declared unconstitutional as to all juveniles. Individual litigation would be a practical impossibility because the periods of detention are so short that the litigation is mooted before the merits are determined. There is no doubt that the Due Process Clause is applicable in juvenile proceedings. “The problem,” we have stressed, “is to ascertain the precise impact of the due process requirement upon such proceedings.” In re Gault, 387 U. S. 1, 13-14 (1967). We have held that certain basic constitutional protections enjoyed by adults accused of crimes also apply to juveniles. See id., at 31-57 (notice of charges, right to counsel, privilege against self-incrimination, right to confrontation and cross-examination); In re Winship, 397 U. S. 358 (1970) (proof beyond a reasonable doubt); Breed v. Jones, 421 U. S. 519 (1975) (double jeopardy). But the Constitution does not mandate elimination of all differences in the treatment of juveniles. See, e. g., McKeiver v. Pennsylvania, 403 U. S. 528 (1971) (no right to jury trial). The State has “a parens patriae interest in preserving and promoting the welfare of the child,” Santosky v. Kramer, 455 U. S. 745, 766 (1982), which makes a juvenile proceeding fundamentally different from an adult criminal trial. We have tried, therefore, to strike a balance — to respect the “informality” and “flexibility” that characterize juvenile proceedings, In re Winship, supra, at 366, and yet to ensure that such proceedings comport with the “fundamental fairness” demanded by the Due Process Clause. Breed v. Jones, supra, at 531; McKeiver, supra, at 543 (plurality opinion). The statutory provision at issue in these cases, § 320.5(3)(b), permits a brief pretrial detention based on a finding of a “serious risk” that an arrested juvenile may commit a crime before his return date. The question before us is whether preventive detention of juveniles pursuant to §320.5(3)(b) is compatible with the “fundamental fairness” required by due process. Two separate inquiries are necessary to answer this question. First, does preventive detention under the New York statute serve a legitimate state objective? See Bell v. Wolfish, 441 U. S. 520, 534, n. 15 (1979); Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963). And, second, are the procedural safeguards contained in the FCA adequate to authorize the pretrial detention of at least some juveniles charged with crimes? See Mathews v. Eldridge, 424 U. S. 319, 335 (1976); Gerstein v. Pugh, 420 U. S. 103, 114 (1975). A Preventive detention under the FCA is purportedly designed to protect the child and society from the potential consequences of his criminal acts. People ex rel. Wayburn v. Schupf, 39 N. Y. 2d, at 689-690, 350 N. E. 2d, at 910. When making any detention decision, the Family Court judge is specifically directed to consider the needs and best interests of the juvenile as well as the need for the protection of the community. FCA §301.1; In re Craig S., 57 App. Div. 2d 761, 394 N. Y. S. 2d 200 (1977). In Bell v. Wolfish, supra, at 534, n. 15, we left open the question whether any governmental objective other than ensuring a detainee’s presence at trial may constitutionally justify pretrial detention. As an initial matter, therefore, we must decide whether, in the context of the juvenile system, the combined interest in protecting both the community and the juvenile himself from the consequences of future criminal conduct is sufficient to justify such detention. The “legitimate and compelling state interest” in protecting the community from crime cannot be doubted. De Veau v. Braisted, 363 U. S. 144, 155 (1960). See also Terry v. Ohio, 392 U. S. 1, 22 (1968). We have stressed before that crime prevention is “a weighty social objective,” Brown v. Texas, 443 U. S. 47, 52 (1979), and this interest persists undiluted in the juvenile context. See In re Gault, supra, at 20, n. 26. The harm suffered by the victim of a crime is not dependent upon the age of the perpetrator. And the harm to society generally may even be greater in this context given the high rate of recidivism among juveniles. In re Gault, supra, at 22. The juvenile’s countervailing interest in freedom from institutional restraints, even for the brief time involved here, is undoubtedly substantial as well. See In re Gault, supra, at 27. But that interest must be qualified by the recognition that juveniles, unlike adults, are always in some form of custody. Lehman v. Lycoming County Children’s Services, 458 U. S. 502, 510-511 (1982); In re Gault, supra, at 17. Children, by definition, are not assumed to have the capacity to take care of themselves. They are assumed to be subject to the control of their parents, and if parental control falters, the State must play its part as parens patriae. See State v. Gleason, 404 A. 2d 573, 580 (Me. 1979); People ex rel. Waybum v. Schupf, supra, at 690, 350 N. E. 2d, at 910; Baker v. Smith, 477 S. W. 2d 149, 150-151 (Ky. App. 1971). In this respect, the juvenile’s liberty interest may, in appropriate circumstances, be subordinated to the State’s “parens patriae interest in preserving and promoting the welfare of the child.” Santosky v. Kramer, supra, at 766. The New York Court of Appeals, in upholding the statute at issue here, stressed at some length “the desirability of protecting the juvenile from his own folly.” People ex rel. Wayburn v. Schupf, supra, at 688-689, 350 N. E. 2d, at 909. Society has a legitimate interest in protecting a juvenile from the consequences of his criminal activity — both from potential physical injury which may be suffered when a victim fights back or a policeman attempts to make an arrest and from the downward spiral of criminal activity into which peer pressure may lead the child. See L. O. W. v. District Court of Arapahoe, 623 P. 2d 1253, 1258-1259 (Colo. 1981); Morris v. D’Amario, 416 A. 2d 137, 140 (R. I. 1980). See also Eddings v. Oklahoma, 455 U. S. 104, 115 (1982) (minority “is a time and condition of life when a person may be most susceptible to influence and to psychological damage”); Bellotti v. Baird, 443 U. S. 622, 635 (1979) (juveniles “often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them”). The substantiality and legitimacy of the state interests underlying this statute are confirmed by the widespread use and judicial acceptance of preventive detention for juveniles. Every State, as well as the United States in the District of Columbia, permits preventive detention of juveniles accused of crime. A number of model juvenile justice Acts also contain provisions permitting preventive detention. And the courts of eight States, including the New York Court of Appeals, have upheld their statutes with specific reference to protecting the juvenile and the community from harmful pretrial conduct, including pretrial crime. L. O. W. v. District Court of Arapahoe, supra, at 1258-1259; Morris v. D’Amario, supra, at 139-140; State v. Gleason, 404 A. 2d, at 583; Pauley v. Gross, 1 Kan. App. 2d 736, 738-740, 574 P. 2d 234, 237-238 (1977); People ex rel. Wayburn v. Schupf, 39 N. Y. 2d, at 688-689, 350 N. E. 2d, at 909-910; Aubrey v. Gadbois, 50 Cal. App. 3d 470, 472, 123 Cal. Rptr. 365, 366 (1975); Baker v. Smith, 477 S. W. 2d, at 150-151; Commonwealth ex rel. Sprowal v. Hendrick, 438 Pa. 435, 438-439, 265 A. 2d 348, 349-350 (1970). “The fact that a practice is followed by a large number of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ Snyder v. Massachusetts, 291 U. S. 97, 105 (1934).” Leland v. Oregon, 343 U. S. 790, 798 (1952). In light of the uniform legislative judgment that pretrial detention of juveniles properly promotes the interests both of society and the juvenile, we conclude that the practice serves a legitimate regulatory purpose compatible with the “fundamental fairness” demanded by the Due Process Clause in juvenile proceedings. Cf. McKeiver v. Pennsylvania, 403 U. S., at 548 (plurality opinion). Of course, the mere invocation of a legitimate purpose will not justify particular restrictions and conditions of confinement amounting to punishment. It is axiomatic that “[d]ue process requires that a pretrial detainee not be punished.” Bell v. Wolfish, 441 U. S., at 535, n. 16. Even given, therefore, that pretrial detention may serve legitimate regulatory purposes, it is still necessary to determine whether the terms and conditions of confinement under § 320.5(3)(b) are in fact compatible with those purposes. Kennedy v. Mendoza-Martinez, 372 U. S., at 168-169. “A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” Bell v. Wolfish, supra, at 538. Absent a showing of an express intent to punish on the part of the State, that determination generally will turn on “whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].” Kennedy v. Mendoza-Martinez, supra, at 168-189. See Bell v. Wolfish, supra, at 538; Flemming v. Nestor, 363 U. S. 603, 613-614 (1960). There is no indication in the statute itself that preventive detention is used or intended as a punishment. First of all, the detention is strictly limited in time. If a juvenile is detained at his initial appearance and has denied the charges against him, he is entitled to a probable-cause hearing to be held not more than three days after the conclusion of the initial appearance or four days after the filing of the petition, whichever is sooner. FCA § 325.1(2). If the Family Court judge finds probable cause, he must also determine whether continued detention is necessary pursuant to §320.5(3Xb). §325.3(3). Detained juveniles are also entitled to an expedited factfinding hearing. If the juvenile is charged with one of a limited number of designated felonies, the factfinding hearing must be scheduled to commence not more than 14 days after the conclusion of the initial appearance. §340.1. If the juvenile is charged with a lesser offense, then the factfinding hearing must be held not more than three days after the initial appearance. In the latter case, since the times for the probable-cause hearing and the factfinding hearing coincide, the two hearings are merged. Thus, the maximum possible detention under §320.5(3)(b) of a youth accused of a serious crime, assuming a 3-day extension of the factfinding hearing for good cause shown, is 17 days. The maximum detention for less serious crimes, again assuming a 3-day extension for good cause shown, is six days. These time frames seem suited to the limited purpose of providing the youth with a controlled environment and separating him from improper influences pending the speedy disposition of his case. The conditions of confinement also appear to reflect the regulatory purposes relied upon by the State. When a juvenile is remanded after his initial appearance, he cannot, absent exceptional circumstances, be sent to a prison or lockup where he would be exposed to adult criminals. FCA § 304.1(2). Instead, the child is screened by an “assessment unit” of the Department of Juvenile Justice. Testimony of Mr. Kelly (Deputy Commissioner of Operations, New York City Department of Juvenile Justice), App. 286-287. The assessment unit places the child in either nonsecure or secure detention. Nonsecure detention involves an open facility in the community, a sort of “halfway house,” without locks, bars, or security officers where the child receives schooling and counseling and has access to recreational facilities. Id., at 285; Testimony of Mr. Benjamin, id., at 149-150. Secure detention is more restrictive, but it is still consistent with the regulatory and parens patriae objectives relied upon by the State. Children are assigned to separate dorms based on age, size, and behavior. They wear street clothes provided by the institution and partake in educational and recreational programs and counseling sessions run by trained social workers. Misbehavior is punished by confinement to one’s room. See Testimony of Mr. Kelly, id., at 292-297. We cannot conclude from this record that the controlled environment briefly imposed by the State on juveniles in secure pretrial detention “is imposed for the purpose of punishment” rather than as “an incident of some other legitimate governmental purpose.” Bell v. Wolfish, 441 U. S., at 538. The Court of Appeals, of course, did conclude that the underlying purpose of §320.5(3)(b) is punitive rather than regulatory. But the court did not dispute that preventive detention might serve legitimate regulatory purposes or that the terms and conditions of pretrial confinement in New York are compatible with those purposes. Rather, the court invalidated a significant aspect of New York’s juvenile justice system based solely on some case histories and a statistical study which appeared to show that “the vast majority of juveniles detained under [§320.5(3)(b)] either have their petitions dismissed before an adjudication of delinquency or are released after adjudication.” 689 F. 2d, at 369. The court assumed that dismissal of a petition or failure to confine a juvenile at the dispositional hearing belied the need to detain him prior to factfinding and that, therefore, the pretrial detention constituted punishment. Id., at B73. Since punishment imposed without a prior adjudication of guilt is per se illegitimate, the Court of Appeals concluded that no juveniles could be held pursuant to §320.5(3)(b). There are some obvious flaws in the statistics and case histories relied upon by the lower court. But even assuming it to be the case that “by far the greater number of juveniles incarcerated under [§320.5(3)(b)] will never be confined as a consequence of a disposition imposed after an adjudication of delinquency,” 689 F. 2d, at 371-372, we find that to be an insufficient ground for upsetting the widely shared legislative judgment that preventive detention serves an important and legitimate function in the juvenile justice system. We are unpersuaded by the Court of Appeals’ rather cavalier equation of detentions that do not lead to continued confinement after an adjudication of guilt and “wrongful” or “punitive” pretrial detentions. Pretrial detention need not be considered punitive merely because a juvenile is subsequently discharged subject to conditions or put on probation. In fact, such actions reinforce the original finding that close supervision of the juvenile is required. Lenient but supervised disposition is in keeping with the Act’s purpose to promote the welfare and development of the child. As the New York Court of Appeals noted: “It should surprise no one that caution and concern for both the juvenile and society may indicate the more conservative decision to detain at the very outset, whereas the later development of very much more relevant information may prove that while a finding of delinquency was warranted, placement may not be indicated.” People ex rel. Wayburn v. Schupf, 39 N. Y. 2d, at 690, 350 N. E. 2d, at 910. Even when a case is terminated prior to factfinding, it does not follow that the decision to detain the juvenile pursuant to § 320.5(3)(b) amounted to a due process violation. A delinquency petition may be dismissed for any number of reasons collateral to its merits, such as the failure of a witness to testify. The Family Court judge cannot be expected to anticipate such developments at the initial hearing. He makes his decision based on the information available to him at that time, and the propriety of the decision must be judged in that light. Consequently, the final disposition of a case is “largely irrelevant” to the legality of a pretrial detention. Baker v. McCollan, 443 U. S. 137, 145 (1979). It may be, of course, that in some circumstances detention of a juvenile would not pass constitutional muster. But the validity of those detentions must be determined on a case-by-ease basis. Section 320.5(3)(b) is not invalid “on its face” by reason of the ambiguous statistics and case histories relied upon by the court below. We find no justification for the conclusion that, contrary to the express language of the statute and the judgment of the highest state court, §320.5(3)(b) is a punitive rather than a regulatory measure. Preventive detention under the FCA serves the legitimate state objective, held in common with every State in the country, of protecting both the juvenile and society from the hazards of pretrial crime. B Given the legitimacy of the State’s interest in preventive detention, and the nonpunitive nature of that detention, the remaining question is whether the procedures afforded juveniles detained prior to factfinding provide sufficient protection against erroneous and unnecessary deprivations of liberty. See Mathews v. Eldridge, 424 U. S., at 335. In Gerstein v. Pugh, 420 U. S., at 114, we held that a judicial determination of probable cause is a prerequisite to any extended restraint on the liberty of an adult accused of crime. We did not, however, mandate a specific timetable. Nor did we require the “full panoply of adversary safeguards — counsel, confrontation, cross-examination, and compulsory process for witnesses.” Id., at 119. Instead, we recognized “the desirability of flexibility and experimentation by the States.” Id., at 123. Gerstein arose under the Fourth Amendment, but the same concern with “flexibility” and “informality,” while yet ensuring adequate predetention procedures, is present in this context. In re Winship, 397 U. S., at 366; Kent v. United States, 383 U. S. 541, 554 (1966). In many respects, the FCA provides far more predetention protection for juveniles than we found to be constitutionally required for a probable-cause determination for adults in Gerstein. The initial appearance is informal, but the accused juvenile is given full notice of the charges against him and a complete stenographic record is kept of the hearing. See 513 F. Supp., at 702. The juvenile appears accompanied by his parent or guardian. He is first informed of his rights, including the right to remain silent and the right to be represented by counsel chosen by him or by a law guardian assigned by the court. FCA §320.3. The initial appearance may be adjourned for no longer than 72 hours or until the next court day, whichever is sooner, to enable an appointed law guardian or other counsel to appear before the court. §320.2(3). When his counsel is present, the juvenile is informed of the charges against him and furnished with.a copy of the delinquency petition. §320.4(1). A representative from the presentment agency appears in support of the petition. The nonhearsay allegations in the delinquency petition and supporting depositions must establish probable cause to believe the juvenile committed the offense. Although the Family Court judge is not required to make a finding of probable cause at the initial appearance, the youth may challenge the sufficiency of the petition on that ground. FCA § 315.1. Thus, the juvenile may oppose any recommended detention by arguing that there is not probable cause to believe he committed the offense or offenses with which he is charged. If the petition is not dismissed, the juvenile is given an opportunity to admit or deny the charges. §321.1. At the conclusion of the initial appearance, the presentment agency makes a recommendation regarding detention. A probation officer reports on the juvenile’s record, including other prior and current Family Court and probation contacts, as well as relevant information concerning home life, school attendance, and any special medical or developmental problems. He concludes by offering his agency’s recommendation on detention. Opposing counsel, the juvenile’s parents, and the juvenile himself may all speak on his behalf and challenge any information or recommendation. If the judge does decide to detain the juvenile under §320.5(3)(b), he must state on the record the facts and reasons for the detention. As noted, a detained juvenile is entitled to a formal, adversarial probable-cause hearing within three days of his initial appearance, with one 3-day extension possible for good cause shown. The burden at this hearing is on the presentment agency to call witnesses and offer evidence in support of the charges. §325.2. Testimony is under oath and subject to cross-examination. Ibid. The accused juvenile may call witnesses and offer evidence in his own behalf. If the court finds probable cause, the court must again decide whether continued detention is necessary under § 320.5(3)(b). Again, the facts and reasons for the detention must be stated on the record. In sum, notice, a hearing, and a statement of facts and reasons are given prior to any detention under § 320.5(3)(b). A formal probable-cause hearing is then held within a short while thereafter, if the factfinding hearing is not itself scheduled within three days. These flexible procedures have been found constitutionally adequate under the Fourth Amendment, see Gerstein v. Pugh, and under the Due Process Clause, see Kent v. United States, supra, at 557. Appellees have failed to note any additional procedures that would significantly improve the accuracy of the determination without unduly impinging on the achievement of legitimate state purposes. Appellees argue, however, that the risk of erroneous and unnecessary detentions is too high despite these procedures because the standard for detention is fatally vague. Detention under §320.5(3)(b) is based on a finding that there is a “serious risk” that the juvenile, if released, would commit a crime prior to his next court appearence. We have already seen that detention of juveniles on that ground serves legitimate regulatory purposes. But appellees claim, and the District Court agreed, that it is virtually impossible to predict future criminal conduct with any degree of accuracy. Moreover, they say, the statutory standard fails to channel the discretion of the Family Court judge by specifying the factors on which he should rely in making that prediction. The procedural protections noted above are thus, in their view, unavailing because the ultimate decision is intrinsically arbitrary and uncontrolled. Our cases indicate, however, that from a legal point of view there is nothing inherently unattainable about a prediction of future criminal conduct. Such a judgment forms an important element in many decisions, and we have specifically rejected the contention, based on the same sort of sociological data relied upon by appellees and the District Court, “that it is impossible to predict future behavior and that the question is so vague as to be meaningless.” Jurek v. Texas, 428 U. S. 262, 274 (1976) (opinion of Stewart, Powell, Question: What is the issue of the decision? 01. voting 02. Voting Rights Act of 1965, plus amendments 03. ballot access (of candidates and political parties) 04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action) 05. desegregation, schools 06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions. 07. affirmative action 08. slavery or indenture 09. sit-in demonstrations (protests against racial discrimination in places of public accommodation) 10. reapportionment: other than plans governed by the Voting Rights Act 11. debtors' rights 12. deportation (cf. immigration and naturalization) 13. employability of aliens (cf. immigration and naturalization) 14. sex discrimination (excluding sex discrimination in employment) 15. sex discrimination in employment (cf. sex discrimination) 16. Indians (other than pertains to state jurisdiction over) 17. Indians, state jurisdiction over 18. juveniles (cf. rights of illegitimates) 19. poverty law, constitutional 20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision. 21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits 22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes 23. residency requirements: durational, plus discrimination against nonresidents 24. military: draftee, or person subject to induction 25. military: active duty 26. military: veteran 27. immigration and naturalization: permanent residence 28. immigration and naturalization: citizenship 29. immigration and naturalization: loss of citizenship, denaturalization 30. immigration and naturalization: access to public education 31. immigration and naturalization: welfare benefits 32. immigration and naturalization: miscellaneous 33. indigents: appointment of counsel (cf. right to counsel) 34. indigents: inadequate representation by counsel (cf. right to counsel) 35. indigents: payment of fine 36. indigents: costs or filing fees 37. indigents: U.S. Supreme Court docketing fee 38. indigents: transcript 39. indigents: assistance of psychiatrist 40. indigents: miscellaneous 41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty) 42. miscellaneous civil rights (cf. comity: civil rights) Answer:
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 SOSA v. ALVAREZ-MACHAIN et al. No. 03-339. Argued March 30, 2004 — Decided June 29, 2004 Deputy Solicitor General Clement argued the cause for the United States, as petitioner in No. 03-485, and respondent under this Court’s Rule 12.6 in support of petitioner in No. 03-339. With him on the briefs were Solicitor General Olson, Acting Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, Deputy Assistant Attorney General Katsas, Gregory G. Garre, Jeffrey A. Lamken, Douglas N. Letter, Barbara L. Herwig, Robert M. Loeb, and William H. Taft IV. Carter G. Phillips argued the cause for petitioner in No. 03-339. With him on the briefs were Joseph R. Guerra, Marinn F. Carlson, Maria T. DiGiulian, Ryan D. Nelson, and Charles S. Léeper. Paul L. Hoffman argued the cause for respondent Alvarez-Machain in both cases. With him on the brief were Erwin Chemerinsky, Ralph G. Steinhardt, Mark D. Rosenbaum, Steven R. Shapiro, Douglas E. Mirell, and W. Allan Edmiston. Together with No. 03-485, United States v. Alvarez-Machain et al., also on certiorari to the same court. Briefs of amici curiae urging reversal in No. 03-339 were filed for the National Association of Manufacturers by Paul R. Friedman, John Townsend Rich, William F. Sheehan, Jan S. Amundson, and Quentin Riegel; for the National Foreign Trade Council et al. by Daniel M. Petrocelli, M. Randall Oppenheimer, Walter E. Dellinger III, Pamela A. Harris, and Robin S. Conrad; for the Pacific Legal Foundation by Anthony T. Caso; for the Washington Legal Foundation et al. by Donald B. Ayer, Christian G. Vergonis, Daniel J. Popeo, and Richard A Samp; and for Samuel Estreicher et al. by Paul B. Stephan and Mr. Estreicher, pro se. Briefs of amici curiae urging affirmance in No. 03-339 were filed for Alien Friends Representing Hungarian Jews and Bougainvilleans Interests by Steve W. Berman, R. Brent Walton, Jonathan W. Cuneo, David W. Stanley, Michael Waldman, and Samuel J. Dubbin; for Amnesty International et al. by Beth Stephens; for the Center for Justice and Accountability et al. by Laurel E. Fletcher, Peter Weiss, and Jennifer Green; for the Center for Women Policy Studies et al. by Rhonda Copelon; for the Presbyterian Church of Sudan et al. by Carey R. D’Avino, Stephen A. Whinston, and Lawrence Kill; for the World Jewish Congress et al. by Bill Lawn, Lee, Stanley M. Chesley, Paul De Marco, Burt Neuborne, and Michael D. Hausfeld; for Wendy A. Adams et al. by William J. Aceves and David S. Weissbrodt; and for Mary Robinson et al. by Harold Hongju Koh, John M. Townsend, and William R. Stein. Briefs of amici curiae were filed in No. 03-339 for the Government of the Commonwealth of Australia et al. by Donald I. Baker and W. Todd Miller; for the International Labor Rights Fund et al. by Terrence P. Col-lingsworth and Natacha Thys; for the European Commission by Jeffrey P. Cunará; for James Akins et al. by Thomas E. Bishop; for Vikram Amar et al. by Nicholas W. van Aelstyn; and for Barry Amundsen et al. by Penny M. Venetis. Justice Souter delivered the opinion of the Court. The two issues are whether respondent Alvarez-Machain’s allegation that the Drug Enforcement Administration instigated his abduction from Mexico for criminal trial in the United States supports a claim against the Government under the Federal Tort Claims Act (FTCA or Act), 28 U. S. C. §§ 1346(b)(1), 2671-2680, and whether he may recover under the Alien Tort Statute (ATS), 28 U. S. C. § 1350. We hold that he is not entitled to a remedy under either statute. I We have considered the underlying facts before, United, States v. Alvarez-Machain, 504 U. S. 655 (1992). In 1985, an agent of the Drug Enforcement Administration (DEA), Enrique Camarena-Salazar, was captured on assignment in Mexico and taken to a house in Guadalajara, where he was tortured over the course of a 2-day interrogation, then murdered. Based in part on eyewitness testimony, DEA officials in the United States came to believe that respondent Humberto Alvarez-Machain (Alvarez), a Mexican physician, was present at the house and acted to prolong the agent’s life in order to extend the interrogation and torture. Id., at 657. In 1990, a federal grand jury indicted Alvarez for the torture and murder of Camarena-Salazar, and the United States District Court for the Central District of California issued a warrant for his arrest. 331 F. 3d 604, 609 (CA9 2003) (en banc). The DEA asked the Mexican Government for help in getting Alvarez into the United States, but when the requests and negotiations proved fruitless, the DEA approved a plan to hire Mexican nationals to seize Alvarez and bring him to the United States for trial. As so planned, a group of Mexicans, including petitioner Jose Francisco Sosa, abducted Alvarez from his house, held him overnight in a motel, and brought him by private plane to El Paso, Texas, where he was arrested by federal officers. Ibid. Once in American custody, Alvarez moved to dismiss the indictment on the ground that his seizure was “outrageous governmental conduct,” Alvarez-Machain, 504 U. S., at 658, and violated the extradition treaty between the United States and Mexico. The. District Court agreed, the Ninth Circuit affirmed, and we reversed, id., at 670, holding that the fact of Alvarez’s forcible seizure did not affect the jurisdiction of a federal court. The case was tried in 1992, and ended at the close of the Government’s case, when the District Court granted Alvarez’s motion for a judgment of acquittal. In 1993, after returning to Mexico, Alvarez began the civil action before us here. He sued Sosa, Mexican citizen and DEA operative Antonio Garate-Bustamante, five unnamed Mexican civilians, the United States, and four DEA agents. 331 F. 3d, at 610. So far as it matters here, Alvarez sought damages from the United States under the FTCA, alleging false arrest, and from Sosa under the ATS, for a violation of the law of nations. The former statute authorizes suit “for... personal injury... 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.” 28 U. S. C. § 1346(b)(1). The latter provides in its entirety that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” § 1350. The District Court granted the Government’s motion to dismiss the FTCA claim, but awarded summary judgment and $25,000 in damages to Alvarez on the ATS claim. A three-judge panel of the Ninth Circuit then affirmed the ATS judgment, but reversed the dismissal of the FTCA claim. 266 F. 3d 1045 (2001). A divided en banc court came to the same conclusion. 331 F. 3d, at 641. As for the ATS claim, the court called on its own precedent, “that [the ATS] not only provides federal courts with subject matter jurisdiction, but also creates a cause of action for an alleged violation of the law of nations.” Id., at 612. The Circuit then relied upon what it called the “clear and universally recognized norm prohibiting arbitrary arrest and detention,” id., at 620, to support the conclusion that Alvarez’s arrest amounted to a tort in violation of international law. On the FTCA claim, the Ninth Circuit held that, because “the DEA had no authority to effect Alvarez’s arrest and detention in Mexico,” id., at 608, the United States was liable to him under California law for the tort of false arrest, id., at 640-641. We granted certiorari in these companion cases to clarify the scope of both the FTCA and the ATS. 540 U. S. 1045 (2003). We now reverse in each. II The Government seeks reversal of the judgment of liability under the FTCA on two principal grounds. It argues that the arrest could not have been tortious, because it was authorized by 21 U. S. C. §878, setting out the arrest authority of the DEA, and it says that in any event the liability asserted here falls within the FTCA exception to waiver of sovereign immunity for claims “arising in a foreign country,” 28 U. S. C. § 2680(k). We think the exception applies and decide on that ground. A The FTCA “was designed primarily to remove the sovereign immunity of the United States from suits in tort and, with certain specific exceptions, to render the Government liable in tort as a private individual would be under like circumstances.” Richards v. United States, 369 U. S. 1, 6 (1962); see also 28 U. S. C. § 2674. The Act accordingly gives federal district courts jurisdiction over claims against the United States for injury “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 in accordance with the law of the place where the act or omission occurred.” § 1346(b)(1), But the Act also limits its waiver of sovereign immunity in a number of ways. See §2680 (no waiver as to, e. g., “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter,” “[a]ny claim for damages caused by the imposition or establishment of a quarantine by the United States,” or “[a]ny claim arising from the activities of the Panama Canal Company”). Here the significant limitation on the waiver of immunity is the Act’s exception for “[a]ny claim arising in a foreign country,” §2680(k), a provision that on its face seems plainly applicable to the facts of this action. In the Ninth Circuit’s view, once Alvarez was within the borders of the United States, his detention was not tortious, see 331 F. 3d, at 636-637; the appellate court suggested that the Government’s liability to Alvarez rested solely upon a false arrest claim. Id., at 640-641. Alvarez's arrest, however, was said to be “false,” and thus tortious, only because, and only to the extent that, it took place and endured in Mexico. The actions in Mexico are thus most naturally understood as the kernel of a “claim arising in a foreign country,” and barred from suit under the exception to the waiver of immunity. Notwithstanding the straightforward language of the foreign country exception, the Ninth Circuit allowed the action to proceed under what has come to be known as the “headquarters doctrine.” Some Courts of Appeals, reasoning that “[t]he entire scheme of the FTC A focuses on the place where the negligent or wrongful act or omission of the government employee occurred,” Sami v. United States, 617 F. 2d 755, 761 (CADC 1979), have concluded that the foreign country exception does not exempt the United States from suit “for acts or omissions occurring here which have their operative effect in another country,” id., at 762 (refusing to apply § 2680(k) where a communique sent from the United States by a federal law enforcement officer resulted in plaintiff’s wrongful detention in Germany). Headquarters claims “typically involve allegations of negligent guidance in an office within the United States of employees who cause damage while in a foreign country, or of activities which take place within a foreign country.” Cominotto v. United States, 802 F. 2d 1127, 1130 (CA9 1986). In such instances, these courts have concluded that §2680(k) does not bar suit. The reasoning of the Ninth Circuit here was that, since Alvarez’s abduction in Mexico was the direct result of wrongful acts of planning and direction by DEA agents located in California, “Alvarez’s abduction fits the headquarters doctrine like a glove.” 331 F. 3d, at 638. “Working out of DEA offices in Los Angeles, [DEA agents] made the decision to kidnap Alvarez and... gave [their Mexican intermediary] precise instructions on whom to recruit, how to seize Alvarez, and how he should be treated during the trip to the United States. DEA officials in Washington, D. C., approved the details of the operation. After Alvarez was abducted according to plan, DEA agents supervised his transportation into the United States, telling the arrest team where to land the plane and obtaining clearance in El Paso for landing. The United States, and California in particular, served as command central for the operation carried out in Mexico.” Id., at 638-639. Thus, the Ninth Circuit held that Alvarez’s claim did not “aris[e] in” a foreign country. The potential effect of this sort of headquarters analysis flashes the yellow caution light. “[I]t will virtually always be possible to assert that the negligent activity that injured the plaintiff [abroad] was the consequence of faulty training, selection or supervision — or even less than that, lack of careful training, selection or supervision — in the United States." Beattie v. United States, 756 F. 2d 91, 119 (CADC 1984) (Scalia, J., dissenting). Legal malpractice claims, Knisley v. United States, 817 F. Supp. 680, 691-693 (SD Ohio 1993), allegations of negligent medical care, Newborn v. United States, 238 F. Supp. 2d 145, 148-149 (DC 2002), and even slip-and-fall cases, Eaglin v. United States, Dept. of Army, 794 F. 2d 981, 983-984 (CA5 1986), can all be repackaged as headquarters claims based on a failure to train, a failure to warn, the offering of bad advice, or the adoption of a negligent policy. If we were to approve the headquarters exception to the foreign country exception, the “'headquarters claim’ [would] become a standard part of FTCA litigation” in cases potentially implicating the foreign country exception. Beattie, supra, at 119 (Scalia, J., dissenting). The headquarters doctrine threatens to swallow the foreign country exception whole, certainly at the pleadings stage. The need for skepticism is borne out by two considerations. One of them is pertinent to cases like this one, where harm was arguably caused both by individual action in a foreign country as well as by planning in the United States; the other is suggested simply because the harm occurred on foreign soil. B Although not every headquarters case is rested on an explicit analysis of proximate causation, this notion of cause is necessary to connect the domestic breach of duty (at headquarters) with the action in the foreign country (in a case like this) producing the foreign harm or injury. It is necessary, in other words, to conclude that the act or omission at home headquarters was sufficiently close to the ultimate injury, and sufficiently important in producing it, to make it reasonable to follow liability back to the headquarters behavior. Only in this way could the behavior at headquarters properly be seen as the act or omission on which all FTCA liability must rest under §2675. See, e. g., Cominotto, supra, at 1130 (“[A] headquarters claim exists where negligent acts in the United States proximately cause harm in a foreign country”); Eaglin, supra, at 983 (noting that head-. quarters cases require “a plausible proximate nexus or connection between acts or omissions in the United States and the resulting damage or injury in a foreign country”). Recognizing this connection of proximate cause between domestic behavior and foreign harm or injury is not, however, sufficient of itself to bar application of the foreign country exception to a claim resting on that same foreign consequence. Proximate cause is causation substantial enough and close enough to the harm to be recognized by law, but a given proximate cause need not be, and frequently is not, the exclusive proximate cause of harm. See, e. g., 57A Am. Jur. 2d § 529 (2004) (discussing proper jury instructions in cases involving multiple proximate causes); Beattie, swpra, at 121 (Scalia, J., dissenting) (“[I]n the ordinary case there may be several points along the chain of causality” pertinent to the enquiry). Here, for example, assuming that the direction by DEA officials in California was a proximate cause of the abduction, the actions of Sosa and others in Mexico were just as surely proximate causes, as well. Thus, understanding that California planning was a legal cause of the harm in no way eliminates the conclusion that the claim here arose from harm proximately caused by acts in Mexico. At most, recognition of additional domestic causation under the headquarters doctrine leaves an open question whether the exception applies to the claim. C Not only does domestic proximate causation under the headquarters doctrine fail to eliminate application of the foreign country exception, but there is good reason to think that Congress understood a claim “arising in” a foreign country in such a way as to bar application of the headquarters doctrine. There is good reason, that is, to conclude that Congress understood a claim “arising in a foreign country” to be a claim for injury or harm occurring in a foreign country. 28 U. S. C. § 2680(k). This sense of “arising in” was the common usage in state borrowing statutes contemporary with the Act, which operated to determine which State’s statute of limitations should apply in cases involving transjurisdic-tional facts. When the FTCA was passed, the general rule, as set out in various state statutes, was that “a cause of action arising in another jurisdiction, which is barred by the laws of that jurisdiction, will [also] be barred in the domestic courts.” 41 A. L. R. 4th 1025,1029, §2 (1985). These borrowing statutes were typically restricted by express terms to situations where a cause of action was time barred in the State “where [the] cause of action arose, or accrued, or originated.” 75 A. L. R. 203, 211 (1931) (emphasis in original). Critically for present purposes, these variations on the theme of “arising in” were interpreted in tort cases in just the same way that we read the FTCA today. A commentator noted in 1962 that, for the purposes of these borrowing statutes, “[t]he courts unanimously hold that a cause of action sounding in tort arises in the jurisdiction where the last act necessary to establish liability occurred”; i. e., “the jurisdiction in which injury was received.” Ester, Borrowing Statutes of Limitation and Conflict of Laws, 15 U. Fla. L. Rev. 33, 47. There is, moreover, specific reason to believe that using “arising in” as referring to place of harm was central to the object of the foreign country exception. Any tort action in a court of the United States based on the acts of a Government employee causing harm outside the State of the district court in which the action is filed requires a determination of the source of the substantive law that will govern liability. When, the FTCA was passed, the dominant principle in choice-of-law analysis for tort cases was lex loci delicti: courts generally applied the law of the place where the injury occurred. See Richards v. United States, 369 U. S., at 11-12 (“The general conflict-of-laws rule, followed by a vast majority of the States, is to apply the law of the place of injury to the substantive rights of the parties” (footnote omitted)); see also Restatement (First) of Conflict of Laws §379 (1934) (defendant’s liability determined by “the law of the place of wrong”); id., §377, Note 1 (place of wrong for torts involving bodily harm is “the place where the harmful force takes effect upon the body ” (emphasis in original)); ibid. (same principle for torts of fraud and torts involving harm to property). For a plaintiff injured in a foreign country, then, the presumptive choice in American courts under the traditional rule would have been to apply foreign law to determine the tortfeasor’s liability. See, e. g., Day & Zimmermann, Inc. v. Challoner, 423 U. S. 3 (1975) (per curiam) (noting that Texas would apply Cambodian law to wrongful-death action involving explosion in Cambodia of an artillery round manufactured in United States); Thomas v. FMC Corp., 610 F. Supp. 912 (MB Ala. 1985) (applying German law to determine American manufacturer’s liability for negligently designing and manufacturing a Howitzer that killed, decedent in Germany); Quandt v. Beech Aircraft Corp., 317 F. Supp. 1009 (Del. 1970) (noting that Italian law applies to allegations of negligent manufacture in Kansas that resulted in an airplane crash in Italy); Manos v. Trans World Airlines, 295 F. Supp. 1170 (ND Ill. 1969) (applying Italian law to determine American corporation’s liability for negligent manufacture of a plane that crashed in Italy); see also, e. g., Dallas v. Whitney, 118 W. Va. 106, 188 S. E. 766 (1936) (Ohio law applied where blasting operations on a West Virginia highway caused property damage in Ohio); Cam eron v. Vandegriff, 53 Ark. 381, 13 S. W. 1092 (1890) (Arkansas law applied where a blasting of a rock in Indian territory inflicted injury on plaintiff in Arkansas). The application of foreign substantive law exemplified in these cases was, however, what Congress intended to avoid by the foreign country exception. In 1942, the House Committee on the Judiciary considered an early draft of the FTCA that would have exempted all claims “arising in a foreign country in behalf of an alien.” H. R. 5373, 77th Cong., 2d Sess., § 303(12). The bill was then revised, at the suggestion of the Attorney General, to omit the last five words. In explaining the amendment to the House Committee on the Judiciary, Assistant Attorney General Shea said that “[c]laims arising in a foreign country have been exempted from this bill, H. R. 6463, whether or not the claimant is an alien. Since liability is to be determined by the law of the situs of the wrongful act or omission it is wise to restrict the bill to claims arising in this country. This seems desirable because the law of the particular State is being applied. Otherwise, it will lead I think to a good deal of difficulty.” Hearings on H. R. 5373 et al. before the House Committee on the Judiciary, 77th Cong., 2d Sess., 35 (1942). The amended version, which was enacted into law and constitutes the current text of the foreign country exception, 28 U. S. C. §2680(k), thus codified Congress’s “unwillingness] to subject the United States to liabilities depending upon the laws of a foreign power.” United States v. Spelar, 338 U. S. 217, 221 (1949). See also Sami v. United States, 617 F. 2d, at 762 (noting Spelar’s explanation but attempting to recast the object behind the foreign country exception); Leaf v. United States, 588 F. 2d 733, 736, n. 3 (CA9 1978). The object being to avoid application of substantive foreign law, Congress evidently used the modifier “arising in a foreign country” to refer to claims based on foreign harm or injury, the fact that would trigger application of foreign law to determine liability. That object, addressed by the quoted phrase, would obviously have been thwarted, however, by applying the headquarters doctrine, for that doctrine would have displaced the exception by recasting claims of foreign injury as claims not arising in a foreign country because some planning or negligence at domestic headquarters was their cause. And that, in turn, would have resulted in applying foreign law of the place of injury, in accordance with the choice-of-law rule of the headquarters jurisdiction. Nor, as a practical matter, can it be said that the headquarters doctrine has outgrown its tension with the exception. It is true that the traditional approach to choice of substantive tort law has lost favor, Simson, The Choice-of-Law Revolution in the United States: Notes on Rereading Von Mehren, 36 Cornell Int’l L. J. 125 (2002) (“The traditional methodology of place of wrong... has receded in importance, and new approaches and concepts such as governmental interest analysis, most significant relationship, and better rule of law have taken over center stage” (footnotes omitted)). But a good many States still employ essentially the same choice-of-law analysis in tort cases that the First Restatement exemplified. Symeonides, Choice of Law in the American Courts, 51 Am. J. Comp. L. 1, 4-5 (2003) (“Ten states continue to adhere to the traditional method in tort conflicts”); see, e. g., Raskin v. Allison, 30 Kan. App. 2d 1240, 1242, 1241, 57 P. 3d 30, 32 (2002) (under “traditional choice of law principles largely reflected in the original Restatement,” Mexican law applied to boating accident in Mexican waters because “the injuries were sustained in Mexican waters”). Equally to the point is that in at least some cases that the Court of Appeals’s approach would treat as arising at headquarters, not the foreign country, even the later methodologies of choice point to the application of foreign law. The Second Restatement itself, encouraging the general shift toward using flexible balancing analysis to inform choice of law, includes a default rule for tort cases rooted in the traditional approach: “[i]n an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless... some other state has a more significant relationship... to the occurrence and the parties.” Restatement 2d §146; see also id., Comment e (“On occasion, conduct and personal injury will occur in different states. In such instances, the local law of the state of injury will usually be applied to determine most issues involving the tort”). In practice, then, the new dispensation frequently leads to the traditional application of the law of the jurisdiction of injury. See, e. g., Dorman v. Emerson Elec. Co., 23 F. 3d 1354 (CA8 1994) (applying Canadian law where negligent saw design in Missouri caused injury in Canada); Bing v. Halstead, 495 F. Supp. 517 (SDNY 1980) (applying Costa Rican law where letter written and mailed in Arizona caused mental distress in Costa Rica); McKinnon v. F. H. Morgan & Co., 170 Vt. 422, 750 A. 2d 1026 (2000) (applying Canadian law where a defective bicycle sold in Vermont caused injuries in Quebec). In sum, current flexibility in choice-of-law methodology gives no assurance against applying foreign substantive law if federal courts follow headquarters doctrine to assume jurisdiction over tort claims against the Government for foreign harm. Based on the experience just noted, the expectation is that application of the headquarters doctrine would in fact result in a substantial number of cases applying the very foreign law the foreign country exception was meant to avoid. Before concluding that headquarters analysis should have no part in applying the foreign country exception, however, a word is needed to answer an argument for selective application of headquarters doctrine, that it ought to be permitted when a State’s choice-of-law approach would not apply the foreign law of place of injury. See In re “Agent Orange” Product Liability Litigation, 580 F. Supp. 1242, 1254 (EDNY 1984) (noting that the purpose of the exception did not apply to the litigation at hand because foreign law was not implicated). The point would be well taken, of course, if Congress had written the exception to apply when foreign law would be applied. But that is not what Congress said. Its provision of an exception when a claim arises in a foreign country was written at a time when the phrase “arising in” was used in state statutes to express the position that a claim arises where the harm occurs; and the odds are that Congress meant simply this when it used the “arising in” language. Finally, even if it were not a stretch to equate “arising in a foreign country” with “implicating foreign law,” the result of accepting headquarters analysis for foreign injury cases in which no application of foreign law would ensue would be a scheme of federal jurisdiction that would vary from State to State, benefiting or penalizing plaintiffs accordingly. The idea that Congress would have intended any such jurisdictional variety is too implausible to drive the analysis to the point of grafting even a selective headquarters exception onto the foreign country exception itself. We therefore hold that the FTCA’s foreign country exception bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred. Ill Alvarez has also brought an action under the ATS against petitioner Sosa, who argues (as does the United States supporting him) that there is no relief under the ATS because the statute does no more than vest federal courts with jurisdiction, neither creating nor authorizing the courts to recognize any particular right of action without further congressional action. Although we agree the statute is in terms only jurisdictional, we think that at the time of enactment the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law. We do not believe, however, that the limited, implicit sanction to entertain the handful of international law cum common law claims understood in 1789 should be taken as authority to recognize the right of action asserted by Alvarez here. A Judge Friendly called the ATS a “legal Lohengrin,” IIT v. Vencap, Ltd., 519 F. 2d 1001, 1015 (CA2 1975); “no one seems to know whence it came,” ibid., and for over 170 years after its enactment it provided jurisdiction in only one case. The first Congress passed it as part of the Judiciary Act of 1789, in providing that the new federal district courts “shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where -an alien sues for a tort only in violation of the law of nations or a treaty of the United States.” Act of Sept. 24, 1789, ch. 20, §9, 1 Stat. 77. The parties and amici here advance radically different historical interpretations of this terse provision. Alvarez says that the ATS was intended not simply as a jurisdictional grant, but as authority for the creation of a new cause of action for torts in violation of international law. We think that reading is implausible. As enacted in 1789, the ATS gave the district courts “cognizance” of certain causes of action, and the term bespoke a grant of jurisdiction, not power to mold substantive law. See, e. g., The Federalist No. 81, pp. 447, 451 (J. Cooke ed. 1961) (A. Hamilton) (using “jurisdiction” interchangeably with “cognizance”). The fact that the ATS was placed in §9 of the Judiciary Act, a statute otherwise exclusively concerned with federal-court jurisdiction, is itself support for its strictly jurisdictional nature. Nor would the distinction between jurisdiction and cause of action have been elided by the drafters of the Act or those who voted on it. As Fisher Ames put it, “there is a substantial difference between the jurisdiction of the courts and the rules of decision.” 1 Annals of Cong. 807 (Gales ed. 1834). It is unsurprising, then, that an authority on the historical origins of the ATS has written that “section 1350 clearly does not create a statutory cause of action,” and that the contrary suggestion is “simply frivolous.” Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 479, 480 (1986) (hereinafter Casto, Law of Nations); cf. Dodge, The Constitutionality of the Alien Tort Statute: Some Observations on Text and Context, 42 Va. J. Int’l L. 687, 689 (2002). In sum, we think the statute was intended as jurisdictional in the sense of addressing the power of the courts to entertain cases concerned with a certain subject. But holding the ATS jurisdictional raises a new question, this one about the interaction between the ATS at the time of its enactment and the ambient law of the era. Sosa would have it that the ATS was stillborn because there could be no claim for relief without a further statute expressly authorizing adoption of causes of action. Amici professors of federal jurisdiction and legal history take a different tack, that federal courts could entertain claims once the jurisdictional grant was on the books, because torts in violation of the law of nations would have been recognized within the common law of the time. Brief for Vikram Amar et al. as Amici Curiae. We think history and practice give the edge to this latter position. 1 ‘When the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement.” Ware v. Hylton, 3 Dall. 199, 281 (1796) (Wilson, J.). In the years of the early Republic, this law of nations comprised two principal elements, the first covering the general norms governing the behavior of national states with each other: “the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights,” E. de Vattel, Law of Nations, Preliminaries §3 (J. Chitty et al. transí, and ed. 1883) (hereinafter Vattel) (footnote omitted), or “that code of public instruction which defines the Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_respond2_1_4	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant. DUNCAN SHAW CORP. et al. v. STANDARD MACHINERY CO. et al. No. 4615. United States Court of Appeals First Circuit. April 22, 1952. William H. Edwards, Providence, R. I. (John L. Clark and Edwards & Angelí, all of Providence, R. I., on brief), for appellants. Fred B. Perkins, Providence, R. I. (James A. Higgins, Perkins, Higgins & McCabe and Elisha C. • Mowry, Providence, R. I., on brief), for appellees. Before MAGRUDER, 'Chief Judge, WOODBURY, Circuit' Judge, and WYZANSKI, District Judge. WOODBURY, Circuit Judge. This is an appeal from a final judgment for the defendants, entered after a trial without a jury, in a suit by two New York corporations against a Rhode Island corporation and an individual citizen of that State. Three causes of action are alleged. Each of the two plaintiffs alleges that the corporate defendant failed to perform its obligations under a certain tripartite contract under seal to be described presently, and the plaintiff, Shaw Standard Corporation, alleges that the individual defendant, Robert F. Moyer, failed to perform his fiduciary duty as one of its directors. As relief the plaintiffs seek damages totaling well over $3,000 exclusive of interest and costs, and also an injunction restraining the defendant Moyer from continuing his alleged violations of fiduciary duty. Federal jurisdiction based upon diversity of citizenship and amount in controversy under 28 U.S.C. § 1332(a)(1) is clearly established, and this court’s appellate jurisdiction under 28 U.S.C. § 1291 is obvious. The following facts are undisputed. The plaintiff, Duncan Shaw Corporation, which for simplicity we shall call Shaw hereinafter, was organized under the laws of New York in 1946 primarily to engage in the business of designing, selling and distributing builders’ hardware; locks, latches, hinges and the like. The business associates who formed the corporation had in mind, designing and marketing a line of hardware which they thought could 'be manufactured by new and economical techniques, and in the spring or early summer of 1947 they were actively in search for someone interested in manufacturing their products for them. Their search ended when they met the defendant Moyer, who was the president, a director, and a substantial stockholder in the defendant, Standard Machinery Company, a Rhode Island corporation, which apparently for a number of years had been in the business of manufacturing machine tools of one kind or another, and which at that time was interested in embarking upon the manufacture of a line of consumer goods but reluctant to develop a selling organization of its own for such wares. During the summer of 1947, the leading officials of the two corporations held several conferences, sometimes in New York and sometimes in Rhode Island, and eventually reached agreement on the basic terms of a contract which they thought would be advantageous to both corporations. Had the two corporations merely entered into a contract, and proceeded with their transaction, this case would be a simple one. Instead, however, Moyer proposed, and the officers of Shaw agreed, that the stockholders of Shaw and Standard should organize a third corporation as an intermediary through which the other two corporations would transact their business with one another. It appears from the evidence that it was thought that a third intermediate corporation would provide a means of raising new capital for the venture, and for equitably distributing anticipated profits between the stockholders of Shaw and Standard, and perhaps that it would also achieve certain income tax advantages. This, and numerous other contractual details which had already been orally agreed upon were embodied in a letter from one Gillmore, vice president of Shaw, to one McCabe, a director of and counsel for Standard, dated August 20, 1947, which Moyer, as president of Standard, “accepted” toy endorsement on August 29, 1947. Thereupon in conformity with the agreement already reached the plaintiff Shaw Standard Corporation, to be referred to sometimes hereafter as S.S., was organized under the laws of New York. The stock in this latter corporation, also in accordance with prior agreement, was to be privately issued to the stockholders of the two other corporations— the stockholders of Standard taking half of the stock in the new corporation, and the stockholders of Shaw taking the remaining half, so that ownership of the new corporation would be equally divided between the two groups. In fact, however, although the Standard group of stockholders took and paid for their half of the S.S. stock, not all of the Shaw group paid for the S.S. stock allotted to them, so some of their stock remained unissued. Nevertheless actual control of S.S., also as previously agreed upon, was placed in the Shaw group by means of an assignment by Moyer of 10% of his personal stock in S.S. to Gillmore, the vice president of Shaw, under a voting trust. At Shaw Standard’s initial stockholders’ meeting five directors were elected. The Standard group elected two directors, Moyer afrd another, both of whom were also directors of Standard. Thus the defendant Moyer was the president, a director, and a stockholder of Standard, and also a director and a stockholder of Shaw Standard. The Shaw group elected three directors, two of whom were also directors of Shaw. As a result, although the two end corporations, Shaw and Standard, had no common directors, the new middle corporation, Shaw Standard, had two directors in common with Standard and two directors in common with Shaw. Early in September 1947 officials of the three corporations signed the tripartite written contract under seal upon which this suit was brought. It clearly appears that the contract was executed on behalf of the two New York corporations, Shaw and Shaw Standard, in New York. The evidence does not clearly establish whether it was executed on behalf of the Rhode Island corporation, Standard, in New York or in Rhode Island. The place of execution, however, is of no consequence in the view we take of the Rhode Island law as will appear hereafter. The separate notarized acknowledgments appended to the contract recite that the seal of each -corporation was “affixed by order of the Board of Directors of said corporation,” and that the official who signed on behalf of each corporation “signed his name thereto by like order.” It was stipulated by the parties, however, that as a matter of fact this was not so with respect to Standard, but that actually “there was no vote or resolution a-t any meeting of directors or stockholders of Standard Machinery Company that specifically had reference to the execution of the subject contract or had to do with the ratification of that contract.” It is not necessary to recite the terms of the contract in detail, because the breach of contract issue which was tried in the court below is not before us on this appeal. In its essence, however, the contract provided that Standard would manufacture Shaw’s hardware line, and sell exclusively to the intermediate corporation, Shaw Standard, at prices fixed by application of an agreed formula, and that the latter would sell, also according to an agreed price formula, exclusively to Shaw which in turn would sell the line on the open market. To accomplish this Shaw agreed to grant Shaw Standard a license under all of its (Shaw’s) patents, issued and pending, with the power to sub-license Standard, and Shaw also agreed to disclose all of its unpatented models and plans to Shaw Standard provided that they would not be disclosed to any one else without Shaw’s consent. Standard obligated itself to make deliveries within ten weeks after receipt of purchase orders, plans and models, and to employ its resources to the fullest extent in various specified ways so that Shaw’s line of hardware could be rapidly expanded. It appears from the unchallenged findings of the District Court that by December 1947 the plaintiffs had begun to deliver models and plans to Standard and to place production orders with Standard, and that from December on Moyer repeatedly promised imminent production but that it was not until June, 1948, that workable samples were developed by Standard. It further appears from the findings that late in May or early in June Moyer can-celled or held up orders for materials, dies and tools for the hardware project having decided at that time to liquidate Standard and dispose of all its property and business of every kind. Moyer informed Gill-more on June 18 of Standard’s decision not to go on with the hardware project, but did not tell Gillmore of the plan to liquidate Standard, although on the same day Moyer conferred with counsel and an auditor and laid plans for stockholder action with respect to liquidation. On June 23, Moyer told Gillmore that Standard intended to drop the hardware project altogether unless modifications were made in the contract, but even then he did not tell Gillmore that he was not only considering, but also had actually taken steps to liquidate Standard. At this point, hardware production being at a standstill, without waiting for a reply from Gillmore tp Moyer’s proposal for altering the contract, Standard’s stockholders met and formally adopted a plan of liquidation whereby all of Standard’s assets would be distributed to its stockholders in exchange for surrender of all outstanding stock, which, the court below found, would “result in a net financial gain to said stockholders, including Moyer, the holder of over 24% of the total shares outstanding, both voting and non-voting, and approximately 42% of the voting stock alone.” Moyer at no time notified either of the plaintiffs, or told his co-directors on the board of S.S., that liquidation of Standard was contemplated, planned, voted, or actually in process. Indeed the plaintiffs only learned of Standard’s pending liquidation from a newspaper announcement in August, 1948, and soon thereafter they brought this suit. On March 12, 1949, six months after the plaintiffs brought this suit and more than eighteen months after the contract was signed, Standard’s stockholders formally voted that the contract be “disaffirmed, disapproved and voided.” The District Court found that although the plaintiffs had substantially performed their part of the bargain, the defendant, Standard, had committed breaches of contract by refusing to proceed with manufacturing and failing to deliver according to schedule, by disclosing Shaw’s models and plans to competitors without permission to do so, and by failing to employ its resources to the promised extent. Moreover the court below found that the defendant Moyer had violated his fiduciary duty as a director of the plaintiff Shaw Standard Corporation by making false representations of imminent hardware production while simultaneously acting to liquidate Standard and discontinue the hardware project, and by disclosing the hardware models and plans to competitors and offering them for sale without the knowledge or consent of Shaw Standard. After making these findings the District Court stated that “The foregoing findings of facts would lead me to award substantial damages to the plaintiffs if it were not for the fact that Standard is a Rhode Island corporation and that there has been a failure to show compliance with the provisions of Chapter 116, Art. II, § 21, General Laws of Rhode Island, 1938,” which reads: “§ 21. Any corporation may contract for any lawful purpose with one or more of its directors or with any corporation having with it a common director or directors, if the contract is entered into in good faith and is approved or ratified by a majority vote at any meeting of its board of directors: Provided, that the contracting or common director or directors shall not vote on the question and shall not be counted in ascertaining whether or not a quorum is present for this purpose at the meeting. A contract made in compliance with the foregoing provisions shall be voidable by the corporation complying with said provisions only in case it would be voidable if made with a stranger.” This section is part of the General Corporation Law of Rhode Island. It would seem clear, therefore, that the section is part of Standard’s charter, and as such imposes a limitation upon Standard’s power to make contracts not only in Rhode Island, but in any other state into which it might go to transact business. We therefore agree with the reasoning of the Supreme Court of Errors of Connecticut in Sundlun v. Noank Shipbuilding Company, 1948, 135 Conn. 108, 112, 113, 61 A.2d 665, wherein it was held that the section under consideration limited the power of a Rhode Island corporation to mortgage its personal property in Connecticut to one of its directors. No Rhode Island case in point has been cited to us and we have found none ourselves, and obviously Rhode Island law controls, but the above 'Connecticut case seems to us correct in principle, and furthermore the Supreme Court of Rhode Island did not take occasion to criticize the holding of the Connecticut court on the point when in Goldberg v. Peltier, 1949, 75 R.I. 314, 320, 66 A.2d 107, 110, it said that the court in the Sundlun case had quite correctly applied the Rhode Island statute “following the reasoning” in Matteson v. Wm. S. Sweet & Son, Inc., 1937, 58 R.I. 411, 193 A. 171, 114 A.L.R. 293, which we shall consider in more detail presently. Thus we hold that the above quoted section of the general corporation law of Rhode Island is not a limitation on the power of corporations generally to contract in Rhode Island, but on the contrary is a limitation on the power of corporations organized under the law of Rhode Island to contract anywhere. Hence we are not concerned with the question whether the situs of the contract in suit was New York or Rhode Island. We turn, therefore, to the question of the applicability of the statute to the facts in the case at bar. The language of the statute is broad and sweeping, and in Matteson v. Wm. S. Sweet & Son, Inc., supra, which the court below felt constrained to follow and upon which the appellees heavily rely, the Supreme Court of Rhode Island construed that language strictly. In that case the corporate owner, of a building leased part of its premises to another corporation having a director in common with the lessor. Indeed the common director signed the lease on behalf of both the lessor and the lessee corporations. The lease contained a provision to the effect that all of the lessee’s fixtures and stock in trade stood pledged for the fulfillment of the covenants of the lease, and, default having occurred, a receiver appointed for the benefit of the lessee’s creditors sold the lessee’s stock and fixtures and the lessor attempted to impose an equitable lien on the proceeds of the sale. The receiver rested his defense on the statute under consideration, and, it appearing that the requirement of the statute had not been complied with, the court sustained the defense. The Supreme Court of Errors of Connecticut in the Sundlun case, supra, summarized the holding of the Supreme Court of Rhode Island in the Matteson case in the statement that “It was there held that the general assembly had definitely legislated on the matter (58 R.I. page 415, 193 A. page 173); that the provisions of the statute must be complied with to make a valid contract (58 R.I. page 416, 193 A. page 173); that no question of good faith was involved (58 R.I. page 417, 193 A. page 173); and that the burden was upon the one claiming on the contract to prove that the provisions of the statute had been met (58 R.I. page 418, 193 A. page 174).” [61 A.2d 667.]. And, as already appears, the Supreme Court of Rhode Island in Goldberg v. Peltier, supra, said that in the Sundlun case the statute was “quite correctly applied” by the Connecticut court in accordance with the reasoning in Matteson v. Sweet. However, the court in the Matteson case did not make its view of the effect of non-compliance with the statute entirely clear, for although the court unmistakably indicated that the contract under consideration having been made without conformity to the statutory procedure was “invalid,” it nowhere used the more technically definite term “void,” and moreover in 58 R.I. on page 419, 193 A. 171, on page 174, it said: “Under our construction of the statute, the contract, in this, instance the lease and the renewal thereof, is at least voidable, if the provisions of the statute have not been complied with by both parties, and the receiver has elected to avoid it. Under these circumstances, we perceive no reason why he is not entitled to question the validity of the contract, in spite of the fact that the lessee may have received certain benefits thereunder.” Furthermore in the Goldberg case the Court after distinguishing the Matteson case said: “The statute simply means that where the vote of a director with whom the corporation is dealing is necessary to constitute a majority in favor of the transaction or to make a quorum at the meeting, the transaction between the corporation and such director shall be voidable; but where the statute has been complied with it shall be voidable by the corporation only in case it would be voidable if made with a stran-' ger.” The above language from the Matteson and Goldberg cases leaves some doubt in our minds as to whether the Rhode Island Supreme Court has in fact construed the statute so strictly as to mean that a contract not executed according to the statutory provision is an absolute nullity, void from the beginning, in which event it would be impossible for two Rhode Island corporations having a majority of their directors in common ever to contract with one another, or whether such a contract is only voidable at the option of a corporation which has failed to act in the manner prescribed. However, we think the Matteson case distinguishable. It may perhaps be distinguished on the ground that whereas there was no question of good faith therein, in the case at bar the good faith of the corporation sought to be charged on the contract, Standard, may be open to question on the ground that its president after signing the contract acknowledged before a notary public that he did so, and also affixed the corporate seal, pursuant to order of the board of directors when in fact that was not the case. There is also a broader ground for distinction. The’ statute was obviously enacted for the protection of stockholders, and it is established law in Rhode Island that provisions in a corporate charter designed to protect stockholders from ill considered or self-serving actions of their directors can be waived by stockholders, and indeed are waived by them when they knowingly accept the benefits of a transaction within the corporate powers entered into in violation of a charter provision designed for stockholder protection. Thus in John W. Bishop & Co. v. Kent & Stanley Company, 1898, 20 R.I. 680, 41 A. 255, it was held that a mortgage of corporate property authorized by vote of the holders of a majority of the corporate stock, but not by the holders of 'record of 75% of the stock as required by charter provision to authorize such a transaction, was only voidable, and hence not only could be ratified by the beneficiary class but also was ratified by them when they knowingly accepted the benefits of the mortgage. Omitting citation of cases the court in that case, 20 R.I. on page 684, 41 A. on page 257, said: “Even if the charter had expressly provided that a mortgage given without the consent of the holders of the requisite amount of -stock ‘should be void and of no effect/ there is abundance of authority to the effect that then it would be only voidable. [’Cases cited.] The reason upon which these and other similar cases are based is that where the evident intention of the statute is to furnish protection to certain determinate individuals, and no question of public policy is involved, the purpose of the statute is sufficiently accomplished if such persons are given the liberty of avoiding it. The statute in the case at bar was manifestly passed for the protection of the stockholders of the defendant corporation only. The corporate property, represented by both the preferred and common stock was not to be incumbered without the consent of stockholders holding at least three-fourths of said stock. Hasty and ill-considered action would thus be avoided, and the will of the large majority of the stockholders only would control. But, while it was clearly the right of the stockholders to insist upon the strict observance of said provision, . yet, as it was made solely for their benefit, they could undoubtedly waive their right to such observance, and thereby make valid and binding what otherwise, would not have been binding upon them.” Now in the Matteson case no mention is made of the participation, if any, of the lessee corporation’s stockholders in the contract of lease involved therein, perhaps for the reason that because of the receivership their interest in the corporation had been supplanted by the interest of the corporation’s general creditors. At any rate the rule of the Bishop & Co. case was not mentioned. In our case, however, there can be no doubt that all of Standard’s stockholders were fully aware of the existence of Shaw Standard, for they subscribed and paid for all of the S.S. stock allotted to them by the letter agreement, and it is inconceivable that they did not know the purpose for which S.S. was organized and the role it was designed to play in the transaction pending between Standard and Shaw. Moreover, the role of S.S. was in reality that of an intermediary in an arms-length transaction ¡between Shaw and Standard, two corporations which had no common directors and so could contract without reference to the statute. While it is true that Shaw Standard was a separate corporate entity, it was nevertheless organized only to serve as a contractual device in the transaction between the two end corporations and it is only when the contract is broken down into its triple parts and each part viewed separately that the statute becomes important in view of the purpose it was meant to serve. Looking at the contract as a whole, and in the light of its overall purpose, it was actually one designed for the mutual benefit and advantage of Shaw and Standard, and S.S. had no reason for existence but to serve their ends. This is not to suggest that S.S. 'be ignored as a corporate entity. It is only to say that its separate corporate existence is not relevant in view of the purpose of the statute to protect stockholders in Rhode Island corporations, for Standard’s stockholders were entitled to no protection in Standard’s dealings with Shaw, and S.S. was but an incident to those dealings. While it may be that other contracts between Standard and S.S. with respect to matters not covered by the original letter agreement between Shaw and Standard would have to be executed in conformity with the statutory procedure, we are loath to conclude that the Supreme Court of Rhode Island would hold that the general terms of the statute make it applicable in the circumstances here disclosed. Putting ourselves as best we may in the place of the Supreme Court of Rhode Island, we think that Court would take either one of two courses. We think it would either clarify its decision in the Matteson case in view of the language of other decisions cited herein, and hold categorically that non-compliance with the statute makes a contract only voidable, and hence subject to ratification by knowing acceptance of its benefits by stockholders as was the case here, in which event the subsequent vote of Standard’s stockholders disaffirming the contract is of no moment, or else that the Rhode Island Court would distinguish the Matteson case on some or all of the grounds we have suggested. Thus we feel justified in the conclusion that were this case before it, the Rhode Island Court would hold the statute inapplicable. The judgment of the District Court is vacated and set aside and the case is remanded to that Court for further- consistent proceedings; the appellants recover costs on appeal. . Apparently the acknowledgment was regarded by Duncan Shaw Corporation as pretty much a formality also, for it appears that the execution of the contract on behalf of that corporation was not in fact authorized by a vote of its directors until a month after the contract was signed and acknowledged. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant? A. auto B. chemical C. drug D. food processing E. oil refining F. textile G. electronic H. alcohol or tobacco I. other J. unclear Answer:
songer_r_stid	01	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your task is to identify the state of the first listed state or local government agency that is a respondent. ROUTZAHN v. PETROLEUM IRON WORKS CO. OF OHIO. No. 5769. Circuit Court of Appeals, Sixth Circuit. March 11, 1932. E. O. Hanson, of Washington, D. C. (Wilfred J. Mahon and John B. Osmun, both of Cleveland, Ohio, and C. M. Charest and R. P. Hertzog, both of Washington, D. C., on the brief), for appellant. H. H. Hoppe, of Cleveland, Ohio (John Walsh, of Washington, D. C., and Taplin & Fillius, of Cleveland, Ohio, on the brief), for respondent. Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges. HICKENLOOPER, Circuit Judge. Plaintiff obtained a judgment in the court below for the recovery of federal income and excess profits taxes alleged to have been illegally assessed for the fiscal years ending June 30, 1918, and June 30, 1919, and to have been paid under protest and duress. Defendant appeals. A jury was waived by written stipulation, and the first question to be considered is the sufficiency of the record to permit this court to consider the meritorious questions involved. In addition to the testimony taken in open court, the parties agreed upon a partial stipulation of the facts, and all relevant documents of the official file were introduced in evidence. At the conclusion of all the evidence the attorney for the defendant moved the court “for judgment on the ground [that] there is no evidence whatsoever to support a judgment in favor of the plaintiff.” Counsel for plaintiff also moved for judgment in its favor. Thereupon the court announced, orally, that he had “determined to find judgment in favor of the plaintiff; and the Government may have its exceptions,” but no formal entry of judgment was then placed of record. This was the full equivalent of a denial of the motion of the defendant and the reservation of an exception to the action thus taken. Formal judgment was subsequently entered, separate findings of fact and conclusions of law being incorporated therein. To this “final order of judgment” defendant was also allowed an exception. The conclusions of law contained in the judgment entry are each separately assigned as error, including the “holding as a conclusion of law that the payment of the taxes herein in question was an overpayment * * * and that the same should be refunded to the plaintiff.” While the defendant may be barred, upon this record, from contesting the accuracy or propriety of, or the justification for, any of the findings of fact, we are of the opinion that the questions (1) of the sufficiency of the facts found to support the judgment, and (2) whether the court erred in denying the defendant’s motion for judgment, and granting that'of the plaintiff, are sufficiently preserved for our consideration. 28 USCA §§ 875 and 879. There was no dispute as to the facts, either actual or as found by the court; but only as to the conclusions of law to be drawn therefrom. To the conclusion of the court that the plaintiff was entitled to recover, the defendant saved his exceptions, at all stages of the trial. This is enough, especially in view of that liberality of interpretation of the acts and language of the parties which should be applied in the furtherance of justice. Indeed, the questions of law are so apparent upon the face of the record, and the attention of the court below was so clearly directed to them, that no express exception would seem to have been necessary. Cf. Nalle v. Oyster, 230 U. S. 165, 33 S. Ct. 1043, 57 L. Ed. 1439; U. S. v. La Franca, 282 U. S. 568, 570, 51 S. Ct. 278, 75 L. Ed. 551. The ease was tried by the plaintiff in the District Court upon the theory that the statute of limitations had run against the collection of taxes for the year ending June 30, 1918, because, after jeopardy assessment within the period of such limitation, “plaintiff had no right to file a claim in abatement as to such additional tax and its purported claim -in abatement thereof filed May 12, 1924, was not a pending claim in abatement,” and because the fact that the plaintiff had received no formal notice and demand for payment prevented the claim from being considered as an effective claim in abatement. As to the tax for the year ending June 30, 1919, it was contended by plaintiff, and found by the court, that the filing of a claim in abatement without bond did not stay the collection of the tax sought to be abated, and that, as the claim in abatement was definitely rejected approximately seven months prior to the expiration of the period of limitation, and the tax was not collected within such period, the statute must be considered as a bar and section 611 of the Revenue Act of 1928 (26 USCA § 2611) must be regarded as inapplicable. The position taken by the plaintiff in the court below as to these matters is completely answered by the decisions of the Supreme Court in Graham & Foster v. Goodcell, 282 U. S. 409, 51 S. Ct. 186, 75 L. Ed. 415, and Magee v. United States, 282 U. S. 432, 51 S. Ct. 195, 75 L. Ed. 442. The latter ease is particularly relevant to plaintiffs present position in respect of taxes for the year ending June 30, 1918, for here, as there, “the taxpayer benefited by the claim [in abatement] and is not in a position to contest its legality.” But this fact aside, it is equally clear that the court found, in its findings of fact, every fact, condition, and circumstance necessary to make section 611 of the Revenue Act of 1928 effective, including the fact that what was denominated a claim in abatement for the 1918 taxes was filed after receipt of notice of the deficiency assessment. The filing of such a claim was invited by this notice. The claim was treated as a claim in abatement by both parties, and was allowed in large part. In our opinion its filing was not precluded by section 250 (d) of the Revenue Act of 1921 (42 Stat. 264), the purpose of which, we think, was to obviate the necessity of such claims after opportunity to be heard had been afforded upon the giving of the thirty-day notice and before final action. It was only “then” and “in such cases” that the section provided “no claim in abatement of the amount so assessed shall be entertained.” ’ Such is not the ease here, for the jeopardy assessment was made without notice and without opportunity to be heard. We see nothing in the nature of the claim, or in the time or manner in which it was filed, which can in any way take the case out of the operation of section 611. The situation in respect of 1919 taxes is even more clearly within the doctrine of Graham & Foster v. Goodcell, supra, if such a thing were possible. The plaintiff has abandoned the position taken in the court below in regard to these taxes and now asserts that the record is devoid of evidence of the “assessment” of these taxes prior to June 2, 1924 (see section 611, Revenue Act of 1928). On December 15, 1919, plaintiff" filed its return for the year ending July 30, 1919. The total tax liability shown by this return was $862,120.55. Of this sum plaintiff paid all but $86,563.51, and, in lieu of paying this balance, filed its claim in abatement without 'bond on June 15, 1920. This claim was rejected May 5,1924. It is idle to say that no part of the tax for this year was ever assessed. When a return is received it is, under the regulations, examined and listed by the collector and forwarded to the commissioner. The initial assessment is then made “on the basis of the collector’s list,” subject always to correction and redetermination. See Commissioner v. Ohio Falls Dye & Finishing Works, 50 F.(2d) 660 (C. C. A. 6). The claim in abatement admits the assessment. The specific allegation in defendant’s answer that "the taxes in question were assessed prior to June 2, 1924, is not denied. The fact of assessment was assumed by court and counsel in the hearing below, and the point may not be made here for the first time. The contention is without merit. Lastly, it is claimed by the plaintiff that recovery of the 1919 taxes should be allowed because in the warrants for distraint, and in the receipts given upon payment, the taxes for that year were erroneously designated and described as “1918 Fisc. Income— 1919 list.” This was an error and irregularity, which, however, does not invalidate the collection. No one was deceived. In the findings of fact the court below recognizes the error and allocates the respective portions of the gross payment to the proper years. In order to recover it was necessary for the plaintiff to show an overpayment of its taxes. This cannot be done by a showing merely of misnomer and clerical error in connection with a payment otherwise clearly due. Lewis et al., Trustees, v. Reynolds, Collector, 284 U. S. 281, 52 S. Ct. 145, 76 L. Ed. -; cf. Champ Spring Co. v. United States, 47 F.(2d) 1 (C. C. A. 8). The court below erred in denying the defendant’s motion for judgment and in granting that of the plaintiff. The facts found are insufficient to support the judgment which is accordingly reversed, and the cause is remanded for a new trial. Appellant is awarded costs in this court. Question: What is the state of the first listed state or local government agency that is a respondent? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
sc_caseorigin	036	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. McLANE COMPANY, INC., Petitioner v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. No. 15-1248. Supreme Court of the United States Argued Feb. 21, 2017. Decided April 3, 2017. As Revised April 3, 2017. Allyson N. Ho, Dallas, TX, for Petitioner. Rachel P. Kovner, Washington, DC, for Respondent. Stephen B. Kinnaird, appointed by this Court, as amicus curiae. P. David Lopez, General Counsel, Jennifer S. Goldstein, Associate General Counsel, Margo Pave, Assistant General Counsel, James M. Tucker, Attorney, U.S. Equal Employment Opportunity Commission, Washington, DC, Ian Heath Gershengorn, Acting Solicitor General, James L. Lee, Deputy General Counsel, Irving L. Gornstein, Counselor to the Solicitor General, Rachel P. Kovner, Assistant to the Solicitor General, Noel J. Francisco, Acting Solicitor General, Department of Justice, Washington, DC, for Respondent. Andrew M. Jacobs, Snell & Wilmer LLP, Tucson, AZ, William R. Peterson, Morgan, Lewis & Bockius LLP, Houston, TX, Allyson N. Ho, Ronald E. Manthey, John C. Sullivan, Morgan, Lewis & Bockius LLP, Dallas, TX, for Petitioner. Justice SOTOMAYOR delivered the opinion of the Court. Title VII of the Civil Rights Act of 1964 permits the Equal Employment Opportunity Commission (EEOC) to issue a subpoena to obtain evidence from an employer that is relevant to a pending investigation. The statute authorizes a district court to issue an order enforcing such a subpoena. The question presented here is whether a court of appeals should review a district court's decision to enforce or quash an EEOC subpoena de novo or for abuse of discretion. This decision should be reviewed for abuse of discretion. I A Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of "race, color, religion, sex, or national origin." § 703(a), 78 Stat. 255, 42 U.S.C. § 2000e-2(a). The statute entrusts the enforcement of that prohibition to the EEOC. See § 2000e-5(a) ; EEOC v. Shell Oil Co., 466 U.S. 54, 61-62, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984). The EEOC's responsibilities "are triggered by the filing of a specific sworn charge of discrimination," University of Pa. v. EEOC, 493 U.S. 182, 190, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990), which can be filed either by the person alleging discrimination or by the EEOC itself, see § 2000e-5(b). When it receives a charge, the EEOC must first notify the employer, ibid., and must then investigate "to determine whether there is reasonable cause to believe that the charge is true," University of Pa., 493 U.S., at 190, 110 S.Ct. 577 (internal quotation marks omitted). This case is about one of the tools the EEOC has at its disposal in conducting its investigation: a subpoena. In order "[t]o enable the [EEOC] to make informed decisions at each stage of the enforcement process," Title VII "confers a broad right of access to relevant evidence." Id., at 191, 110 S.Ct. 577. It provides that the EEOC "shall... have access to, for the purposes of examination,... any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by" Title VII and "is relevant to the charge under investigation." 42 U.S.C. § 2000e-8(a). And the statute enables the EEOC to obtain that evidence by "authoriz[ing] [it] to issue a subpoena and to seek an order enforcing [the subpoena]." University of Pa., 493 U.S., at 191, 110 S.Ct. 577 ; see § 2000e-9. Under that authority, the EEOC may issue "subp [o]enas requiring the attendance and testimony of witnesses or the production of any evidence." 29 U.S.C. § 161(1). An employer may petition the EEOC to revoke the subpoena, see ibid., but if the EEOC rejects the petition and the employer still "refuse[s] to obey [the] subp[o]ena," the EEOC may ask a district court to issue an order enforcing it, see § 161(2). A district court's role in an EEOC subpoena enforcement proceeding, we have twice explained, is a straightforward one. See University of Pa., 493 U.S., at 191, 110 S.Ct. 577 ; Shell Oil, 466 U.S., at 72, n. 26, 104 S.Ct. 1621. A district court is not to use an enforcement proceeding as an opportunity to test the strength of the underlying complaint. Ibid. Rather, a district court should "'satisfy itself that the charge is valid and that the material requested is "relevant" to the charge.' " University of Pa., 493 U.S., at 191, 110 S.Ct. 577. It should do so cognizant of the "generou[s]" construction that courts have given the term "relevant." Shell Oil, 466 U.S., at 68-69, 104 S.Ct. 1621 ("virtually any material that might cast light on the allegations against the employer"). If the charge is proper and the material requested is relevant, the district court should enforce the subpoena unless the employer establishes that the subpoena is "too indefinite," has been issued for an "illegitimate purpose," or is unduly burdensome. Id., at 72, n. 26, 104 S.Ct. 1621. See United States v. Morton Salt Co., 338 U.S. 632, 652-653, 70 S.Ct. 357, 94 L.Ed. 401 (1950) ( "The gist of the protection is in the requirement... that the disclosure sought shall not be unreasonable" (internal quotation marks omitted)). B This case arises out of a Title VII suit filed by a woman named Damiana Ochoa. Ochoa worked for eight years as a "cigarette selector" for petitioner McLane Co., a supply-chain services company. According to McLane, the job is a demanding one: Cigarette selectors work in distribution centers, where they are required to lift, pack, and move large bins containing products. McLane requires employees taking physically demanding jobs-both new employees and employees returning from medical leave-to take a physical evaluation. According to McLane, the evaluation "tests... range of motion, resistance, and speed" and "is designed, administered, and validated by a third party." Brief for Petitioner 6. In 2007, Ochoa took three months of maternity leave. When she attempted to return to work, McLane asked her to take the evaluation. Ochoa attempted to pass the evaluation three times, but failed. McLane fired her. Ochoa filed a charge of discrimination, alleging (among other things) that she had been fired on the basis of her gender. The EEOC began an investigation, and-at its request-McLane provided it with basic information about the evaluation, as well as a list of anonymous employees that McLane had asked to take the evaluation. McLane's list included each employee's gender, role at the company, and evaluation score, as well as the reason each employee had been asked to take the evaluation. But the company refused to provide what the parties call "pedigree information": the names, Social Security numbers, last known addresses, and telephone numbers of the employees who had been asked to take the evaluation. Upon learning that McLane used the evaluation nationwide, the EEOC expanded the scope of its investigation, both geographically (to focus on McLane's nationwide operations) and substantively (to investigate whether McLane had discriminated against its employees on the basis of age). It issued subpoenas requesting pedigree information as it related to its new investigation. But McLane refused to provide the pedigree information, and so the EEOC filed two actions in Federal District Court-one arising out of Ochoa's charge and one arising out of a separate age-discrimination charge the EEOC itself had filed-seeking enforcement of its subpoenas. The enforcement actions were assigned to the same District Judge, who, after a hearing, declined to enforce the subpoenas to the extent that they sought the pedigree information. See EEOC v. McLane Co., 2012 WL 1132758, 5 (D.Ariz., Apr. 4, 2012) (age discrimination charge); Civ. No. 12-2469, 2012 WL 5868959 (D Ariz., Nov. 19, 2012), App. to Pet. for Cert. 28-30 (Title VII charge). In the District Court's view, the pedigree information was not "relevant" to the charges because " 'an individual's name, or even an interview he or she could provide if contacted, simply could not shed light on whether the [evaluation] represents a tool of... discrimination.' " App. to Pet. for Cert. 29 (quoting 2012 WL 1132758, at 5 ; some internal quotation marks omitted). The Ninth Circuit reversed. See 804 F.3d 1051 (2015). Consistent with Circuit precedent, the panel reviewed the District Court's decision to quash the subpoena de novo, and concluded that the District Court had erred in finding the pedigree information irrelevant. Id., at 1057. But the panel questioned in a footnote why de novo review applied, observing that its sister Circuits "appear[ed] to review issues related to enforcement of administrative subpoenas for abuse of discretion." Id., at 1056, n. 3 ; see infra, at 1167 (reviewing Court of Appeals authority). This Court granted certiorari to resolve the disagreement between the Courts of Appeals over the appropriate standard of review for the decision whether to enforce an EEOC subpoena. 579 U.S. ----, 137 S.Ct. 30, 195 L.Ed.2d 902 (2016). Because the United States agrees with McLane that such a decision should be reviewed for abuse of discretion, Stephen B. Kinnaird was appointed as amicus curiae to defend the judgment below. 580 U.S. ----, 137 S.Ct. 461, 196 L.Ed.2d 339 (2016). He has ably discharged his duties. II A When considering whether a district court's decision should be subject to searching or deferential appellate review-at least absent "explicit statutory command"-we traditionally look to two factors. Pierce v. Underwood, 487 U.S. 552, 558, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). First, we ask whether the "history of appellate practice" yields an answer. Ibid. Second, at least where "neither a clear statutory prescription nor a historical tradition exists," we ask whether, " 'as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.' " Id., at 558, 559-560, 108 S.Ct. 2541 (quoting Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) ). Both factors point toward abuse-of-discretion review here. First, the longstanding practice of the courts of appeals in reviewing a district court's decision to enforce or quash an administrative subpoena is to review that decision for abuse of discretion. That practice predates even Title VII itself. As noted, Title VII confers on the EEOC the same authority to issue subpoenas that the National Labor Relations Act (NLRA) confers on the National Labor Relations Board (NLRB). See n. 1, supra. During the three decades between the enactment of the NLRA and the incorporation of the NLRA's subpoena-enforcement provisions into Title VII, every Circuit to consider the question had held that a district court's decision whether to enforce an NLRB subpoena should be reviewed for abuse of discretion. See NLRB v. Consolidated Vacuum Corp., 395 F.2d 416, 419-420 (C.A.2 1968) ; NLRB v. Friedman, 352 F.2d 545, 547 (C.A.3 1965) ; NLRB v. Northern Trust Co., 148 F.2d 24, 29 (C.A.7 1945) ; Goodyear Tire & Rubber Co. v. NLRB, 122 F.2d 450, 453-454 (C.A.6 1941). By the time Congress amended Title VII to authorize EEOC subpoenas in 1972, it did so against this uniform backdrop of deferential appellate review. Today, nearly as uniformly, the Courts of Appeals apply the same deferential review to a district court's decision as to whether to enforce an EEOC subpoena. Almost every Court of Appeals reviews such a decision for abuse of discretion. See, e.g., EEOC v. Kronos Inc., 620 F.3d 287, 295-296 (C.A.3 2010) ; EEOC v. Randstad, 685 F.3d 433, 442 (C.A.4 2012) ; EEOC v. Roadway Express, Inc., 261 F.3d 634, 638 (C.A.6 2001) ; EEOC v. United Air Lines, Inc., 287 F.3d 643, 649 (C.A.7 2002) ; EEOC v. Technocrest Systems, Inc., 448 F.3d 1035, 1038 (C.A.8 2006) ; EEOC v. Dillon Companies, Inc., 310 F.3d 1271, 1274 (C.A.10 2002) ; EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757, 760 (C.A.11 2014) (per curiam ). As Judge Watford-writing for the panel below-recognized, the Ninth Circuit alone applies a more searching form of review. See 804 F.3d, at 1056, n. 3 ("Why we review questions of relevance and undue burden de novo is unclear"); see also EPA v. Alyeska Pipeline Serv. Co., 836 F.2d 443, 445-446 (C.A.9 1988) (holding that de novo review applies). To be sure, the inquiry into the appropriate standard of review cannot be resolved by a head-counting exercise. But the "long history of appellate practice" here, Pierce, 487 U.S., at 558, 108 S.Ct. 2541 carries significant persuasive weight. Second, basic principles of institutional capacity counsel in favor of deferential review. The decision whether to enforce an EEOC subpoena is a case-specific one that turns not on "a neat set of legal rules," Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), but instead on the application of broad standards to "multifarious, fleeting, special, narrow facts that utterly resist generalization," Pierce, 487 U.S., at 561-562, 108 S.Ct. 2541 (internal quotation marks omitted). In the mine run of cases, the district court's decision whether to enforce a subpoena will turn either on whether the evidence sought is relevant to the specific charge before it or whether the subpoena is unduly burdensome in light of the circumstances. Both tasks are well suited to a district judge's expertise. The decision whether evidence sought is relevant requires the district court to evaluate the relationship between the particular materials sought and the particular matter under investigation-an analysis "variable in relation to the nature, purposes and scope of the inquiry." Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209, 66 S.Ct. 494, 90 L.Ed. 614 (1946). Similarly, the decision whether a subpoena is overly burdensome turns on the nature of the materials sought and the difficulty the employer will face in producing them. These inquiries are "generally not amenable to broad per se rules," Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 387, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008) ; rather, they are the kind of "fact-intensive, close calls" better suited to resolution by the district court than the court of appeals, Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 404, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (internal quotation marks omitted). Other functional considerations also show that abuse-of-discretion review is appropriate here. For one, district courts have considerable experience in other contexts making decisions similar-though not identical-to those they must make in this one. See Buford v. United States, 532 U.S. 59, 66, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001) ("[T]he comparatively greater expertise" of the district court may counsel in favor of deferential review). District courts decide, for instance, whether evidence is relevant at trial, Fed. Rule Evid. 401 ; whether pretrial criminal subpoenas are unreasonable in scope, Fed. Rule Crim. Proc. 16(c)(2) ; and more. These decisions are not the same as the decisions a district court must make in enforcing an administrative subpoena. But they are similar enough to give the district court the "institutional advantag[e]," Buford, 532 U.S., at 64, 121 S.Ct. 1276 that comes with greater experience. For another, as we noted in Cooter & Gell, deferential review "streamline[s] the litigation process by freeing appellate courts from the duty of reweighing evidence and reconsidering facts already weighed and considered by the district court," 496 U.S., at 404, 110 S.Ct. 2447 -a particularly important consideration in a "satellite" proceeding like this one, ibid., designed only to facilitate the EEOC's investigation. B Amicus'arguments to the contrary have aided our consideration of this case. But they do not persuade us that de novo review is appropriate. Amicus'central argument is that the decision whether a subpoena should be enforced does not require the exercise of discretion on the part of the district court, and so it should not be reviewed for abuse of discretion. On amicus'view, the district court's primary role is to test the legal sufficiency of the subpoena, not to weigh whether it should be enforced as a substantive matter. Cf. Shell Oil, 466 U.S., at 72, n. 26, 104 S.Ct. 1621 (rejecting the argument that the district court should assess the validity of the underlying claim in a proceeding to enforce a subpoena). Even accepting amicus'view of the district court's task, however, this understanding of abuse-of-discretion review is too narrow. As commentators have observed, abuse-of-discretion review is employed not only where a decisionmaker has "a wide range of choice as to what he decides, free from the constraints which characteristically attach whenever legal rules enter the decision[making] process"; it is also employed where the trial judge's decision is given "an unusual amount of insulation from appellate revision" for functional reasons. Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 Syracuse L. Rev. 635, 637 (1971); see also 22 C. Wright & K. Graham, Federal Practice and Procedure § 5166.1 (2d ed. 2012). And as we have explained, it is in large part due to functional concerns that we conclude the district court's decision should be reviewed for abuse of discretion. Even if the district court's decision can be characterized in the way that amicus suggests, that characterization would not be inconsistent with abuse-of-discretion review. Nor are we persuaded by amicus'remaining arguments. Amicus argues that affording deferential review to a district court's decision would clash with Court of Appeals decisions instructing district courts to defer themselves to the EEOC's determination that evidence is relevant to the charge at issue. See Director, Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1307 (C.A.D.C.1997) (district courts should defer to agency appraisals of relevance unless they are "obviously wrong"); EEOC v. Lockheed Martin Corp., Aero & Naval Systems, 116 F.3d 110, 113 (C.A.4 1997) (same). In amicus'view, it is "analytically impossible" for the court of appeals to defer to the district court if the district court must itself defer to the agency. Tr. of Oral Arg. 29. We think the better reading of those cases is that they rest on the established rule that the term "relevant" be understood "generously" to permit the EEOC "access to virtually any material that might cast light on the allegations against the employer." Shell Oil, 466 U.S., at 68-69, 104 S.Ct. 1621. A district court deciding whether evidence is "relevant" under Title VII need not defer to the EEOC's decision on that score; it must simply answer the question cognizant of the agency's broad authority to seek and obtain evidence. Because the statute does not set up any scheme of double deference, amicus'arguments as to the infirmities of such a scheme are misplaced. Nor do we agree that, as amicus suggests, the constitutional underpinnings of the Shell Oil standard require a different result. To be sure, we have described a subpoena as a " 'constructive' search," Oklahoma Press, 327 U.S., at 202, 66 S.Ct. 494 and implied that the Fourth Amendment is the source of the requirement that a subpoena not be "too indefinite," Morton Salt, 338 U.S., at 652, 70 S.Ct. 357. But not every decision that touches on the Fourth Amendment is subject to searching review. Subpoenas in a wide variety of other contexts also implicate the privacy interests protected by the Fourth Amendment, but courts routinely review the enforcement of such subpoenas for abuse of discretion. See, e.g., United States v. Nixon, 418 U.S. 683, 702, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (pretrial subpoenas duces tecum ); In re Grand Jury Subpoena, 696 F.3d 428, 432 (C.A.5 2012) (grand jury subpoenas); In re Grand Jury Proceedings, 616 F.3d 1186, 1201 (C.A.10 2010) (same). And this Court has emphasized that courts should pay "great deference" to a magistrate judge's determination of probable cause, Gates, 462 U.S., at 236, 103 S.Ct. 2317 (internal quotation marks omitted)-a decision more akin to a district court's preenforcement review of a subpoena than the warrantless searches and seizures we considered in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), on which amicus places great weight. The constitutional pedigree of Shell Oil does not change our view of the correct standard of review. III For these reasons, a district court's decision to enforce an EEOC subpoena should be reviewed for abuse of discretion, not de novo. The United States also argues that the judgment below can be affirmed because it is clear that the District Court abused its discretion. But "we are a court of review, not of first view," Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005), and the Court of Appeals has not had the chance to review the District Court's decision under the appropriate standard. That task is for the Court of Appeals in the first instance. As part of its analysis, the Court of Appeals may also consider, as and to the extent it deems appropriate, any arguments made by McLane regarding the burdens imposed by the subpoena. The judgment of the Court of Appeals is hereby vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. The statute does so by conferring on the EEOC the same authority 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. 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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_appel2_8_2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant. THOMAS et al. v. SPRUKS. No. 6241. Circuit Court of Appeals, Third Circuit. May 6, 1937. J. A. Welsh, of Shamokin, Pa., A. Allen Woodruff, of Philadelphia, Pa., and Penrose Hertzler, of Pottsville, Pa. (Morgan, Lewis & Bockius, of Philadelphia, Pa., of counsel), for appellants. George W. Morrow and Ralph W. Rymer, both of Scranton, Pa., for appellee. Before BUFFINGTON, DAVIS, and BIGGS, Circuit Judges. BUFFINGTON, Circuit Judge. In this case it appears that the Philadelphia & Reading Coal & Iron Company and the Fulton Coal Company owned’ the anthracite coal mining land here involved and leased the same to the Northumber-land Mining Company on a coal royalty per ton for all coal “mined and shipped from the Fulton lands and that may be taken and shipped from the Enterprise culm banks or sold upon the demised, premises." It further provided the lessee each month make a statement of all coal “mined and shipped from or sold upon the demised premises.” On May 30, 1934, Charles Spruks, the appellee, by written contract with the lessee, agreed to buy approximately 25,000 tons of coal which, when mined, was to be stored on the premises. This was done, Spruks paid for it, and on the huge pile of ■ coal thus paid for and stored on the premises he placed a conspicuous sign reading as follows: “Notice “No Trespassing “Property of Charles Spruks “Scranton, Pennsylvania” Thereafter Northumberland became in arrears for its coal royalty and on November 3, 1934, Reading and Fulton issued a landlord’s warrant and levied on Spruks’ coal. On November 5, 1934, Northumber-land petitioned the court below to reorganize under section 77B, Bankr.Act (11 U. S.C.A. § 207), and thereupon the court below restrained Reading and Fulton from taking action against Northumberland on the landlord’s warrant. Subsequently Reading and Fulton petitioned for leave to sell the coal. Spruks and Northumber-land denied such right, the former averring that “he purchased and paid for the coal for the purpose of removing it from the premises and selling it to purchasers as fast as orders for it were obtained.” Spruks further averred that, “although the coal in the bank referred to has been fully paid for by him, he has been obliged to leave the coal on the premises until a market for it could be obtained.” In its answer Northumberland averred that “Philadelphia & Reading Coal & Iron Company and the Fulton Coal Company were notified of the storing of said coal upon said premises for the account of said purchasers.” Subsequently, by consent, it was agreed by all parties that the coal should remain on the premises and Spruks be allowed to sell as he could and pay the money received by him into the registry of the court; that from the money so paid in, Reading and Fulton should be paid the tonnage royalty owing by Northumber-land on Spruk’s coal, and the claims of all parties on the stored coal should attach to the fund. Upon hearing the proofs and contentions of all parties, the trial judge held the fund paid in by Spruks should be paid to him less the royalty and costs of administration. Did the court below, sitting in bankruptcy, commit error in so decreeing? We are of opinion it did not. Putting aside the many questions discussed and assuming the right of Reading and Fulton to levy and sell on a landlord’s warrant, we feel that the decisive question is the one on which the court below based its decision, namely, whether the case presented a trade exemption from levy and sale on a landlord’s warrant. This case concerns the practical operations of a great industry, to wit, the mining and marketing of anthracite coal. The whole object of that industry is twofold, the steady mining of the coal which gives in royalty a continuous income to the land owner, and profit to the lessee arising from continuous mining. Now anthracite is a highly seasonal article and not only is it seasonal in general, but the character of each seasonal period is controlled by the weather conditions of the particular season. In other words, the winter months alone demand coal in large quantities, and unless those winter months are cold, even the seasonal demand drops off. In the face of these adverse trade conditions, it is clear, and a practical minded court will take judicial notice of the fact, that it is to the interest of land owner, lessee operator, miner, and the consuming public that the anthracite industry shall, as far as possible, be placed ón a nonseasonal basis. And this is done by the coal dealer buying coal at a nonseasonal time and avoiding the two handlings of it involved, first, in moving it to his yard, and, secondly, in delivering it to his customers when seasonal needs lead the consumer to buy. This is obviated by mining the coal in the Summer, storing it on the premises as mined, and removing the coal in the seasonal period when coal is in demand. In this way landlord, tenant, miner, coal buyer, and the consumer are benefited and co-ordinated, as far as possible, in making anthracite coal mining a nonseasonal industry. So regarding, the trial court, in view of the pleadings, facts, and provision quoted which contemplated, as we have noted, coal sold upon the demised premises, held this was a proper' trade exception which exempted stored coal from distraint for royalty rent, all of which was properly stated by it as follows: “The general exception in favor of trade as stated by the courts and set forth in 36 C.J. 562, § 1647, is as follows: ‘In the interest of trade and commerce, it has become a settled rule that, where the tenant in the course of his business is necessarily put in possession of the property of those with whom he deals or those who employ him, such property, although on the demised premises, is not liable to distress for rent due from the tenant.’ Karns v. McKinney, 74 Pa. 387. In observing this exception, Gibson, Ch. J., in Brown v. Sims, supra [17 Serg. & R. (Pa.) 138], said: ‘Where the course of the business must necessarily put the tenant in possession of the property of his customers, it would be against the plainest dictates of honesty and conscience, to permit the landlord to> use him as a decoy and pounce upon whatever should be brought within his grasp, after having received the price of its exemption in the enhanced value of the rent.' “The application of the exception in favor of trade must be made in the light of present-day trade and business. The trend of decisions, due to the exigencies of business, has been to broaden the scope of this exception. Manufacturers’ Finance Acceptance Corporation v. Jordan Distributors, Inc., 111 Pa.Super. 448, 170 A. 321. This court feels that the scope of the exception will not be broadened in holding as it does that the facts in the present case come within the exception. In mining coal, as it had the right to do under the lease, the Northumberland Mining Company could not continue business unless it dealt with others to dispose of the coal mined. Due to the exigencies of transportation and market conditions, it frequently happens that coal must be stored on the surface both before and after sale. In the interest of trade and commerce, coal sold by the tenant mining company, but stored and not removed by the purchaser, should not be subject to levy by the landlord. Accordingly, this court holds that the petitioner had no authority to levy on the coal owned by Spruks or to make sale thereof on a landlord’s distress warrant; that the fund in court, representing the proceeds of the said coal, which was owned by Spruks, must be paid to Spruks, the respondent.” Accordingly, its decree is affirmed. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant? A. fiduciary, executor, or trustee B. other C. nature of the litigant not ascertained Answer:
songer_appel2_1_2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". DUNCAN SHAW CORP. et al. v. STANDARD MACHINERY CO. et al. No. 4615. United States Court of Appeals First Circuit. April 22, 1952. William H. Edwards, Providence, R. I. (John L. Clark and Edwards & Angelí, all of Providence, R. I., on brief), for appellants. Fred B. Perkins, Providence, R. I. (James A. Higgins, Perkins, Higgins & McCabe and Elisha C. • Mowry, Providence, R. I., on brief), for appellees. Before MAGRUDER, 'Chief Judge, WOODBURY, Circuit' Judge, and WYZANSKI, District Judge. WOODBURY, Circuit Judge. This is an appeal from a final judgment for the defendants, entered after a trial without a jury, in a suit by two New York corporations against a Rhode Island corporation and an individual citizen of that State. Three causes of action are alleged. Each of the two plaintiffs alleges that the corporate defendant failed to perform its obligations under a certain tripartite contract under seal to be described presently, and the plaintiff, Shaw Standard Corporation, alleges that the individual defendant, Robert F. Moyer, failed to perform his fiduciary duty as one of its directors. As relief the plaintiffs seek damages totaling well over $3,000 exclusive of interest and costs, and also an injunction restraining the defendant Moyer from continuing his alleged violations of fiduciary duty. Federal jurisdiction based upon diversity of citizenship and amount in controversy under 28 U.S.C. § 1332(a)(1) is clearly established, and this court’s appellate jurisdiction under 28 U.S.C. § 1291 is obvious. The following facts are undisputed. The plaintiff, Duncan Shaw Corporation, which for simplicity we shall call Shaw hereinafter, was organized under the laws of New York in 1946 primarily to engage in the business of designing, selling and distributing builders’ hardware; locks, latches, hinges and the like. The business associates who formed the corporation had in mind, designing and marketing a line of hardware which they thought could 'be manufactured by new and economical techniques, and in the spring or early summer of 1947 they were actively in search for someone interested in manufacturing their products for them. Their search ended when they met the defendant Moyer, who was the president, a director, and a substantial stockholder in the defendant, Standard Machinery Company, a Rhode Island corporation, which apparently for a number of years had been in the business of manufacturing machine tools of one kind or another, and which at that time was interested in embarking upon the manufacture of a line of consumer goods but reluctant to develop a selling organization of its own for such wares. During the summer of 1947, the leading officials of the two corporations held several conferences, sometimes in New York and sometimes in Rhode Island, and eventually reached agreement on the basic terms of a contract which they thought would be advantageous to both corporations. Had the two corporations merely entered into a contract, and proceeded with their transaction, this case would be a simple one. Instead, however, Moyer proposed, and the officers of Shaw agreed, that the stockholders of Shaw and Standard should organize a third corporation as an intermediary through which the other two corporations would transact their business with one another. It appears from the evidence that it was thought that a third intermediate corporation would provide a means of raising new capital for the venture, and for equitably distributing anticipated profits between the stockholders of Shaw and Standard, and perhaps that it would also achieve certain income tax advantages. This, and numerous other contractual details which had already been orally agreed upon were embodied in a letter from one Gillmore, vice president of Shaw, to one McCabe, a director of and counsel for Standard, dated August 20, 1947, which Moyer, as president of Standard, “accepted” toy endorsement on August 29, 1947. Thereupon in conformity with the agreement already reached the plaintiff Shaw Standard Corporation, to be referred to sometimes hereafter as S.S., was organized under the laws of New York. The stock in this latter corporation, also in accordance with prior agreement, was to be privately issued to the stockholders of the two other corporations— the stockholders of Standard taking half of the stock in the new corporation, and the stockholders of Shaw taking the remaining half, so that ownership of the new corporation would be equally divided between the two groups. In fact, however, although the Standard group of stockholders took and paid for their half of the S.S. stock, not all of the Shaw group paid for the S.S. stock allotted to them, so some of their stock remained unissued. Nevertheless actual control of S.S., also as previously agreed upon, was placed in the Shaw group by means of an assignment by Moyer of 10% of his personal stock in S.S. to Gillmore, the vice president of Shaw, under a voting trust. At Shaw Standard’s initial stockholders’ meeting five directors were elected. The Standard group elected two directors, Moyer afrd another, both of whom were also directors of Standard. Thus the defendant Moyer was the president, a director, and a stockholder of Standard, and also a director and a stockholder of Shaw Standard. The Shaw group elected three directors, two of whom were also directors of Shaw. As a result, although the two end corporations, Shaw and Standard, had no common directors, the new middle corporation, Shaw Standard, had two directors in common with Standard and two directors in common with Shaw. Early in September 1947 officials of the three corporations signed the tripartite written contract under seal upon which this suit was brought. It clearly appears that the contract was executed on behalf of the two New York corporations, Shaw and Shaw Standard, in New York. The evidence does not clearly establish whether it was executed on behalf of the Rhode Island corporation, Standard, in New York or in Rhode Island. The place of execution, however, is of no consequence in the view we take of the Rhode Island law as will appear hereafter. The separate notarized acknowledgments appended to the contract recite that the seal of each -corporation was “affixed by order of the Board of Directors of said corporation,” and that the official who signed on behalf of each corporation “signed his name thereto by like order.” It was stipulated by the parties, however, that as a matter of fact this was not so with respect to Standard, but that actually “there was no vote or resolution a-t any meeting of directors or stockholders of Standard Machinery Company that specifically had reference to the execution of the subject contract or had to do with the ratification of that contract.” It is not necessary to recite the terms of the contract in detail, because the breach of contract issue which was tried in the court below is not before us on this appeal. In its essence, however, the contract provided that Standard would manufacture Shaw’s hardware line, and sell exclusively to the intermediate corporation, Shaw Standard, at prices fixed by application of an agreed formula, and that the latter would sell, also according to an agreed price formula, exclusively to Shaw which in turn would sell the line on the open market. To accomplish this Shaw agreed to grant Shaw Standard a license under all of its (Shaw’s) patents, issued and pending, with the power to sub-license Standard, and Shaw also agreed to disclose all of its unpatented models and plans to Shaw Standard provided that they would not be disclosed to any one else without Shaw’s consent. Standard obligated itself to make deliveries within ten weeks after receipt of purchase orders, plans and models, and to employ its resources to the fullest extent in various specified ways so that Shaw’s line of hardware could be rapidly expanded. It appears from the unchallenged findings of the District Court that by December 1947 the plaintiffs had begun to deliver models and plans to Standard and to place production orders with Standard, and that from December on Moyer repeatedly promised imminent production but that it was not until June, 1948, that workable samples were developed by Standard. It further appears from the findings that late in May or early in June Moyer can-celled or held up orders for materials, dies and tools for the hardware project having decided at that time to liquidate Standard and dispose of all its property and business of every kind. Moyer informed Gill-more on June 18 of Standard’s decision not to go on with the hardware project, but did not tell Gillmore of the plan to liquidate Standard, although on the same day Moyer conferred with counsel and an auditor and laid plans for stockholder action with respect to liquidation. On June 23, Moyer told Gillmore that Standard intended to drop the hardware project altogether unless modifications were made in the contract, but even then he did not tell Gillmore that he was not only considering, but also had actually taken steps to liquidate Standard. At this point, hardware production being at a standstill, without waiting for a reply from Gillmore tp Moyer’s proposal for altering the contract, Standard’s stockholders met and formally adopted a plan of liquidation whereby all of Standard’s assets would be distributed to its stockholders in exchange for surrender of all outstanding stock, which, the court below found, would “result in a net financial gain to said stockholders, including Moyer, the holder of over 24% of the total shares outstanding, both voting and non-voting, and approximately 42% of the voting stock alone.” Moyer at no time notified either of the plaintiffs, or told his co-directors on the board of S.S., that liquidation of Standard was contemplated, planned, voted, or actually in process. Indeed the plaintiffs only learned of Standard’s pending liquidation from a newspaper announcement in August, 1948, and soon thereafter they brought this suit. On March 12, 1949, six months after the plaintiffs brought this suit and more than eighteen months after the contract was signed, Standard’s stockholders formally voted that the contract be “disaffirmed, disapproved and voided.” The District Court found that although the plaintiffs had substantially performed their part of the bargain, the defendant, Standard, had committed breaches of contract by refusing to proceed with manufacturing and failing to deliver according to schedule, by disclosing Shaw’s models and plans to competitors without permission to do so, and by failing to employ its resources to the promised extent. Moreover the court below found that the defendant Moyer had violated his fiduciary duty as a director of the plaintiff Shaw Standard Corporation by making false representations of imminent hardware production while simultaneously acting to liquidate Standard and discontinue the hardware project, and by disclosing the hardware models and plans to competitors and offering them for sale without the knowledge or consent of Shaw Standard. After making these findings the District Court stated that “The foregoing findings of facts would lead me to award substantial damages to the plaintiffs if it were not for the fact that Standard is a Rhode Island corporation and that there has been a failure to show compliance with the provisions of Chapter 116, Art. II, § 21, General Laws of Rhode Island, 1938,” which reads: “§ 21. Any corporation may contract for any lawful purpose with one or more of its directors or with any corporation having with it a common director or directors, if the contract is entered into in good faith and is approved or ratified by a majority vote at any meeting of its board of directors: Provided, that the contracting or common director or directors shall not vote on the question and shall not be counted in ascertaining whether or not a quorum is present for this purpose at the meeting. A contract made in compliance with the foregoing provisions shall be voidable by the corporation complying with said provisions only in case it would be voidable if made with a stranger.” This section is part of the General Corporation Law of Rhode Island. It would seem clear, therefore, that the section is part of Standard’s charter, and as such imposes a limitation upon Standard’s power to make contracts not only in Rhode Island, but in any other state into which it might go to transact business. We therefore agree with the reasoning of the Supreme Court of Errors of Connecticut in Sundlun v. Noank Shipbuilding Company, 1948, 135 Conn. 108, 112, 113, 61 A.2d 665, wherein it was held that the section under consideration limited the power of a Rhode Island corporation to mortgage its personal property in Connecticut to one of its directors. No Rhode Island case in point has been cited to us and we have found none ourselves, and obviously Rhode Island law controls, but the above 'Connecticut case seems to us correct in principle, and furthermore the Supreme Court of Rhode Island did not take occasion to criticize the holding of the Connecticut court on the point when in Goldberg v. Peltier, 1949, 75 R.I. 314, 320, 66 A.2d 107, 110, it said that the court in the Sundlun case had quite correctly applied the Rhode Island statute “following the reasoning” in Matteson v. Wm. S. Sweet & Son, Inc., 1937, 58 R.I. 411, 193 A. 171, 114 A.L.R. 293, which we shall consider in more detail presently. Thus we hold that the above quoted section of the general corporation law of Rhode Island is not a limitation on the power of corporations generally to contract in Rhode Island, but on the contrary is a limitation on the power of corporations organized under the law of Rhode Island to contract anywhere. Hence we are not concerned with the question whether the situs of the contract in suit was New York or Rhode Island. We turn, therefore, to the question of the applicability of the statute to the facts in the case at bar. The language of the statute is broad and sweeping, and in Matteson v. Wm. S. Sweet & Son, Inc., supra, which the court below felt constrained to follow and upon which the appellees heavily rely, the Supreme Court of Rhode Island construed that language strictly. In that case the corporate owner, of a building leased part of its premises to another corporation having a director in common with the lessor. Indeed the common director signed the lease on behalf of both the lessor and the lessee corporations. The lease contained a provision to the effect that all of the lessee’s fixtures and stock in trade stood pledged for the fulfillment of the covenants of the lease, and, default having occurred, a receiver appointed for the benefit of the lessee’s creditors sold the lessee’s stock and fixtures and the lessor attempted to impose an equitable lien on the proceeds of the sale. The receiver rested his defense on the statute under consideration, and, it appearing that the requirement of the statute had not been complied with, the court sustained the defense. The Supreme Court of Errors of Connecticut in the Sundlun case, supra, summarized the holding of the Supreme Court of Rhode Island in the Matteson case in the statement that “It was there held that the general assembly had definitely legislated on the matter (58 R.I. page 415, 193 A. page 173); that the provisions of the statute must be complied with to make a valid contract (58 R.I. page 416, 193 A. page 173); that no question of good faith was involved (58 R.I. page 417, 193 A. page 173); and that the burden was upon the one claiming on the contract to prove that the provisions of the statute had been met (58 R.I. page 418, 193 A. page 174).” [61 A.2d 667.]. And, as already appears, the Supreme Court of Rhode Island in Goldberg v. Peltier, supra, said that in the Sundlun case the statute was “quite correctly applied” by the Connecticut court in accordance with the reasoning in Matteson v. Sweet. However, the court in the Matteson case did not make its view of the effect of non-compliance with the statute entirely clear, for although the court unmistakably indicated that the contract under consideration having been made without conformity to the statutory procedure was “invalid,” it nowhere used the more technically definite term “void,” and moreover in 58 R.I. on page 419, 193 A. 171, on page 174, it said: “Under our construction of the statute, the contract, in this, instance the lease and the renewal thereof, is at least voidable, if the provisions of the statute have not been complied with by both parties, and the receiver has elected to avoid it. Under these circumstances, we perceive no reason why he is not entitled to question the validity of the contract, in spite of the fact that the lessee may have received certain benefits thereunder.” Furthermore in the Goldberg case the Court after distinguishing the Matteson case said: “The statute simply means that where the vote of a director with whom the corporation is dealing is necessary to constitute a majority in favor of the transaction or to make a quorum at the meeting, the transaction between the corporation and such director shall be voidable; but where the statute has been complied with it shall be voidable by the corporation only in case it would be voidable if made with a stran-' ger.” The above language from the Matteson and Goldberg cases leaves some doubt in our minds as to whether the Rhode Island Supreme Court has in fact construed the statute so strictly as to mean that a contract not executed according to the statutory provision is an absolute nullity, void from the beginning, in which event it would be impossible for two Rhode Island corporations having a majority of their directors in common ever to contract with one another, or whether such a contract is only voidable at the option of a corporation which has failed to act in the manner prescribed. However, we think the Matteson case distinguishable. It may perhaps be distinguished on the ground that whereas there was no question of good faith therein, in the case at bar the good faith of the corporation sought to be charged on the contract, Standard, may be open to question on the ground that its president after signing the contract acknowledged before a notary public that he did so, and also affixed the corporate seal, pursuant to order of the board of directors when in fact that was not the case. There is also a broader ground for distinction. The’ statute was obviously enacted for the protection of stockholders, and it is established law in Rhode Island that provisions in a corporate charter designed to protect stockholders from ill considered or self-serving actions of their directors can be waived by stockholders, and indeed are waived by them when they knowingly accept the benefits of a transaction within the corporate powers entered into in violation of a charter provision designed for stockholder protection. Thus in John W. Bishop & Co. v. Kent & Stanley Company, 1898, 20 R.I. 680, 41 A. 255, it was held that a mortgage of corporate property authorized by vote of the holders of a majority of the corporate stock, but not by the holders of 'record of 75% of the stock as required by charter provision to authorize such a transaction, was only voidable, and hence not only could be ratified by the beneficiary class but also was ratified by them when they knowingly accepted the benefits of the mortgage. Omitting citation of cases the court in that case, 20 R.I. on page 684, 41 A. on page 257, said: “Even if the charter had expressly provided that a mortgage given without the consent of the holders of the requisite amount of -stock ‘should be void and of no effect/ there is abundance of authority to the effect that then it would be only voidable. [’Cases cited.] The reason upon which these and other similar cases are based is that where the evident intention of the statute is to furnish protection to certain determinate individuals, and no question of public policy is involved, the purpose of the statute is sufficiently accomplished if such persons are given the liberty of avoiding it. The statute in the case at bar was manifestly passed for the protection of the stockholders of the defendant corporation only. The corporate property, represented by both the preferred and common stock was not to be incumbered without the consent of stockholders holding at least three-fourths of said stock. Hasty and ill-considered action would thus be avoided, and the will of the large majority of the stockholders only would control. But, while it was clearly the right of the stockholders to insist upon the strict observance of said provision, . yet, as it was made solely for their benefit, they could undoubtedly waive their right to such observance, and thereby make valid and binding what otherwise, would not have been binding upon them.” Now in the Matteson case no mention is made of the participation, if any, of the lessee corporation’s stockholders in the contract of lease involved therein, perhaps for the reason that because of the receivership their interest in the corporation had been supplanted by the interest of the corporation’s general creditors. At any rate the rule of the Bishop & Co. case was not mentioned. In our case, however, there can be no doubt that all of Standard’s stockholders were fully aware of the existence of Shaw Standard, for they subscribed and paid for all of the S.S. stock allotted to them by the letter agreement, and it is inconceivable that they did not know the purpose for which S.S. was organized and the role it was designed to play in the transaction pending between Standard and Shaw. Moreover, the role of S.S. was in reality that of an intermediary in an arms-length transaction ¡between Shaw and Standard, two corporations which had no common directors and so could contract without reference to the statute. While it is true that Shaw Standard was a separate corporate entity, it was nevertheless organized only to serve as a contractual device in the transaction between the two end corporations and it is only when the contract is broken down into its triple parts and each part viewed separately that the statute becomes important in view of the purpose it was meant to serve. Looking at the contract as a whole, and in the light of its overall purpose, it was actually one designed for the mutual benefit and advantage of Shaw and Standard, and S.S. had no reason for existence but to serve their ends. This is not to suggest that S.S. 'be ignored as a corporate entity. It is only to say that its separate corporate existence is not relevant in view of the purpose of the statute to protect stockholders in Rhode Island corporations, for Standard’s stockholders were entitled to no protection in Standard’s dealings with Shaw, and S.S. was but an incident to those dealings. While it may be that other contracts between Standard and S.S. with respect to matters not covered by the original letter agreement between Shaw and Standard would have to be executed in conformity with the statutory procedure, we are loath to conclude that the Supreme Court of Rhode Island would hold that the general terms of the statute make it applicable in the circumstances here disclosed. Putting ourselves as best we may in the place of the Supreme Court of Rhode Island, we think that Court would take either one of two courses. We think it would either clarify its decision in the Matteson case in view of the language of other decisions cited herein, and hold categorically that non-compliance with the statute makes a contract only voidable, and hence subject to ratification by knowing acceptance of its benefits by stockholders as was the case here, in which event the subsequent vote of Standard’s stockholders disaffirming the contract is of no moment, or else that the Rhode Island Court would distinguish the Matteson case on some or all of the grounds we have suggested. Thus we feel justified in the conclusion that were this case before it, the Rhode Island Court would hold the statute inapplicable. The judgment of the District Court is vacated and set aside and the case is remanded to that Court for further- consistent proceedings; the appellants recover costs on appeal. . Apparently the acknowledgment was regarded by Duncan Shaw Corporation as pretty much a formality also, for it appears that the execution of the contract on behalf of that corporation was not in fact authorized by a vote of its directors until a month after the contract was signed and acknowledged. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_classact	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether the case is described in the opinion as a class action suit. If so, the opinion should specifically indicate that the action was filed as a representative of a class or of "all others similarly situated". Harry LEWIS and the Portland Gray Panthers, individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. Leo T. HEGSTROM, individually and in his capacity as Director of the Department of Human Resources of the State of Oregon; Keith Putman, individually and in his capacity as Administrator of the Adult and Family Services Division of the State of Oregon, et al., Defendants-Appellants. No. 84-3679. United States Court of Appeals, Ninth Circuit. Argued Jan. 15, 1985. Submitted Feb. 19, 1985. Decided Aug. 8, 1985. Michael H. Marcus, Portland, Or., for plaintiffs-appellees. Robert W. Muir, Asst. Atty. Gen., Salem, Or., for defendants-appellants. Before GOODWIN, SKOPIL and WIGGINS, Circuit Judges. WIGGINS, Circuit Judge: This class action civil rights suit involves the proper computation of the period of ineligibility for Medicaid applicants in the state of Oregon who transfer their home for less than fair market value within two years of applying for Medicaid assistance. The sole issue before this court is whether proposed Or.Admin.R. 461-04-070(6)(e), which defines the period of ineligibility for such applicants, is invalid under the Supremacy Clause on the ground that it conflicts with 42 U.S.C. § 1396p(c)(2)(B). The district court conducted a careful review of the statute and its legislative history. It concluded that “[t]he logical reading of [the language of the statute] supports plaintiffs’ position,” Lewis v. Hegstrom, 581 F.Supp. 183, 187 (D.Or.1983), and awarded judgment accordingly. We believe that the court below placed undue emphasis upon isolated words of the statute in seeking an understanding of Congress’ intent and in doing so failed to construe ambiguous statutory language in a manner which achieved the statute’s overall object. We hold that proposed Or. Admin.R. 461-04-070(6)(e) is consistent with federal law, and we reverse. BACKGROUND A. Medicaid Medicaid is a cooperative federal-state program established in 1965 as Title XIX of the Social Security Act (the Act), 79 Stat. 343, as amended, codified at 42 U.S.C. § 1396 et seq., to provide federal financial assistance to states that elected to reimburse specified costs of medical treatment for needy individuals. See generally Schweiker v. Gray Panthers, 453 U.S. 34, 36, 101 S.Ct. 2633, 2636, 69 L.Ed.2d 460 (1981). Participating states must each develop a plan containing “reasonable standards for determining eligibility for and the extent of medical assistance.” Id. (quoting 42 U.S.C. § 1396a(a)(17)). State plans must comply with the requirements imposed by the Act and the implementing regulations. See 42 U.S.C. 1396a(b); Schweiker v. Gray Panthers, 453 U.S. at 37, 101 S.Ct. at 2636. As long as a state complies with the requirements of the Act, it has wide discretion in administering its local program. Dawson v. Meyers, 622 F.2d 1304 (9th Cir.1980), vacated on other grounds sub nom, Beltran v. Myers, 451 U.S. 625, 101 S.Ct. 1961, 68 L.Ed.2d 495 (1981). An applicant is entitled to Medicaid if he or she satisfies the eligibility criteria established by the applicant’s state. Schweiker v. Gray Panthers, 453 U.S. at 36-37, 101 S.Ct. at 2636. In its state plan, each state determines the rate of reimbursement to medical facilities for medical care provided. 42 U.S.C. § 1396a(a)(13)(A). The state reimbursement rates are subject to the Secretary’s approval. Id. Once a state plan is approved by the Secretary, the state is reimbursed by the federal government for a portion of the funds expended by the state. Oregon has adopted a state plan which fixes the maximum rate at which a facility may be reimbursed at 75 percent of its actual allowable costs. Or.Admin.R. 411-70-440(2) (1983). In Oregon, Medicaid recipients are required to contribute to the cost of their care all of their income and resources above a minimal amount which may be kept for personal needs. Or.Admin.R. 411-70-045(2) and 411-70-095 (1983). In practice, participating medical facilities in Oregon receive, on the average, $1,350 per month per patient under this reimbursement formula, $1,000 of which is paid by the state and the balance of $350 is paid to the facility by the Medicaid patient for his or her own care. Since the enactment of the Boren-Long amendment in 1980, P.L. 96-611, § 5, 94 Stat. 3567 (1980), codified at 42 U.S.C. §§ 1382b(c) and 1396a(j)(l) (1981), the Medicare Act has recognized that the principle of providing assistance only to those in need could be defeated by transfers of assets for less than fair market value in order to establish eligibility. To bar improper claims by individuals who transfer assets for less than fair market value, the federal statute declared, in general, that applicants who make such transfers may be rendered temporarily ineligible for assistance. 42 U.S.C. § 1396a(j)(l) (1981). This statute was commonly referred to as the federal transfer of assets rule. A transfer of the home, however, continued to be accorded more solicitous treatment. In 1982, when this action was commenced, federal law provided that homes were exempt from the federal transfer of assets rule. 42 U.S.C. § 1382b(a)(l) (1982). Notwithstanding the federal exclusion of homes from the transfer of assets rule, Oregon elected to include homes as a resource in determining Medicare eligibility under its state transfer of assets rule. Or. Admin.R. 461-04-070 (1982). This action was filed in July 1982, to challenge that Oregon practice. While this suit was pending in district court, Congress enacted the Tax, Equity and Fiscal Responsibility Act, P.L. 97-248, 96 Stat. 370 (1982), (TEFRA). TEFRA repealed 42 U.S.C. § 1396a(j) (1981) and replaced it with a more detailed transfer of assets rule, 42 U.S.C. § 1396p(c). Effective September 3, 1982, TEFRA made the home countable as a resource for purposes of determining Medicaid eligibility, under specified circumstances. States were expressly authorized to establish a period of ineligibility in cases where Medicaid applicants had transferred their home for less than fair market value within two years of applying for benefits. 42 U.S.C. § 1396p(c)(2)(B)(i). Pursuant to the authority granted under 42 U.S.C. § 1396p(c)(2)(B)(i), Oregon amended various of its rules pertaining to Medicaid eligibility, including Or.Admin.R. 461-04-070. The amendment to Rule 461-04-070 initially was in the form of a temporary rule. Or.Admin.R. 461-04-070 (September 1982). On December 12, 1982, a second amended complaint was filed in this action challenging Oregon’s new regulations. The plaintiffs alleged that the temporary Rule 461-04-070, and other rules governing an applicant’s Medicaid eligibility, exceeded TEFRA’s limitations and, therefore, were invalid under the Supremacy Clause. After extensive settlement negotiations, the parties reached an agreement on all of the issues, with the exception of the validity of Rule 461-04-070(6)(e). Oregon adopted a “permanent” version of Rule 461-04-070 on March 11, 1988. The “permanent” version included a separate subsection addressing the computation of the period of ineligibility resulting from the transfer of a home for less than fair market value. Or.Admin.R. 461-04-070(6)(e) (1983). Subsection (6)(e) of the “permanent” rule provided: For purposes of this section, the period of ineligibility shall last for one month for every full $1000 [one thousand dollars] of uncompensated value beginning with the first month in which Title XIX medical assistance payments would be payable to the skilled nursing facility, intermediate care facility or medical institution. Or.Admin.R. 461-04-070(6)(e). The version of Rule 461-04-070(6)(e) proposed by Oregon during the settlement negotiations is identical to the permanent rule adopted on March 11, 1983. The plaintiff class rejected the proposed rule on the ground that it conflicted with federal law. The relevant federal statute, 42 U.S.C. § 1396p(c)(2)(B)(i), provides that in the event of a transfer of a home for less than fair market value the individual shall be ineligible for medical assistance for a period of 24 months, or for a lesser or longer period of time “as bears a reasonable relationship (based upon the average amount payable under the state plan as medical assistance for care in a skilled nursing facility) to the uncompensated value of the home.” The plaintiff class argues here, as it did in the district court, that the period of ineligibility must be determined by dividing the total amount actually paid to the institution ($1,350) into the uncompensated value of the home. Oregon contends that the period of ineligibility is properly determined by dividing the amount paid to the institution by the state ($1,000) into the uncompensated value of the home. It is apparent that the dispute between the parties is over the proper interpretation of the language “based upon the average amount payable under the state plan as medical assistance for care in a skilled nursing facility.” Dramatically different consequences flow from the two differing interpretations of this language. For example, the transfer of a home for $27,000 less than fair market value would result in 27 months of ineligibility, under Oregon’s interpretation of its regulation, but only 20 months of ineligibility if the plaintiff class is correct. The district court ruled in favor of the plaintiff class. Lewis v. Hegstrom, 581 F.Supp. 183. The crux of this appeal is whether proposed Oregon rule 461-04-070(6)(e) is inconsistent with 42 U.S.C. § 1396p(c)(2)(B)(i-i)(I) and (II) and must yield to the Supremacy Clause. ANALYSIS We begin with the settled proposition that state regulations which are inconsistent with federal law are invalid under the Supremacy Clause. See Townsend v. Swank, 404 U.S. 282, 285, 92 S.Ct. 502, 504, 30 L.Ed.2d 448 (1971); Carleson v. Remillard, 406 U.S. 598, 601, 92 S.Ct. 1932, 1934, 32 L.Ed.2d 352 (1972). 42 U.S.C. § 1396p(c)(2)(B)(i) clearly authorizes states to establish a period of ineligibility for Medicaid assistance for applicants who sold their home for less than fair market value during or after the 24 month period immediately prior to applying for Medicaid assistance. In determining whether proposed Or.Admin.R. 461-04-070(6)(e) comports with this grant of authority, we, like the district court, must construe the meaning of “the average amount payable under the state plan as medical assistance for care in a skilled nursing facility,” as used in 42 U.S.C. § 1396p(c)(2)(B)(ii)(I) and (II). The construction of a statute is subject to de novo review. United States v. Louisiana-Pacific Corp., 754 F.2d 1445, 1447 (9th Cir.1985); Callejas v. McMahon, 750 F.2d 729, 730 (9th Cir.1984). The interpretation of a statute begins with its plain language. Lynch v. Rank, 747 F.2d 528, 531 (9th Cir.1984); Donovan v. Southern California Gas Co., 715 F.2d 1405, 1407 (9th Cir.1983). If the language of the statute is ambiguous, we then look to congressional intent. See id.; Green v. Commissioner, 707 F.2d 404, 405 (9th Cir.1983). We must not hinge our interpretation of a statute upon a single word or phrase but rather look to the statute as a whole, as well as its object and policies. See Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962) (must examine provisions of the whole law not single sentence or word); Green, 707 F.2d at 405 (court should strive to interpret one section of a statute consistently with the language of other sections and the statute as a whole). Furthermore, in construing a statute we are duty bound to “consider time and circumstances surrounding the enactment as well as the object to be accomplished by it.” Callejas, 750 F.2d at 731. 1. Plain Language Both sides maintain that the plain language of section 1396p(c)(2)(B) supports their respective interpretations of the statute. The district court adopted the plaintiffs’ interpretation. It found significance in Congress’ selection of the word “payable” rather than the word “paid” in 42 U.S.C. § 1396p(c)(2)(B)(ii)(I) and (II). 581 F.Supp. at 186. According to the district court, and to the plaintiff class, the word “payable” indicates that the period of ineligibility must be based on the average reimbursement rates a state has determined to be appropriate, which includes both the state’s share and the recipient’s share. Id. The interpretation of the word “payable” by the district court is not an unreasonable one, but we believe that such an interpretation is not compelled in the face of other equally plausable explanations. We believe the proper meaning of the word “payable” depends upon its context. Here, the word is modified by the purpose of the payment — “payable ... as medical assistance.” The term “medical assistance” has a different meaning than “medical cost.” Section 1396p(c) plainly makes “medical assistance” available only to “individuals,” not to institutional providers. The services provided by such institutions are characterized as the “costs of medical care.” 42 U.S.C. § 1396(c)(2)(B)©. This analysis suggests that the state, on the average, pays $1,000 as “medical assistance” to beneficiaries. The $350 amount paid by the beneficiary can hardly be characterized as “medical assistance” to that beneficiary so as to justify the characterization of the entire amount of $1,350 as “medical assistance.” The varying plausable interpretations that might be given the term “payable” in this statute underscore the ambiguities in the federal statute’s plain language. We therefore examine the statute's legislative history in order to ascertain the true intent of Congress. 2. Legislative History The provision at issue in this litigation originated in a Senate Finance Committee amendment to HR 4961. See S.Rep. No. 494, 97th Cong., 2d Sess., reprinted in 1982 U.S.Code Cong. & Ad.News 781, 814 [hereinafter S.Rep. No. 494]. The Senate Finance Committee noted that under the existing law, ownership of a home by a Medicaid applicant generally would not defeat the applicant’s eligibility for Medicaid benefits. Id. The committee also noted that the home was specifically excluded from the federal transfer of assets statute. Id. This state of affairs, noted the committee, made it possible for a person “who anticipated needing nursing home care to give his/her home to a family member without fear of losing or being denied Medicaid eligibility.” Id. Moreover, through such a transfer, the prospective applicant was assured that the home would not be subject to any recovery action by the state upon his or her death. Id. The amendment proposed by the Senate Finance Committee authorized states to deny Medicaid eligibility temporarily, with certain exceptions, to patients in medical institutions who disposed of their home for less than fair market value at any time during or after the 24-month period immediately prior to admission to a skilled nursing facility or other medical institution. Id. Under the proposed Senate Finance Committee amendment, states could deny eligibility “for medical assistance” to all such individuals: (1) for a period bearing a reasonable relationship to the uncompensated value of the home, or (2) “for a period of at least 24 months, and (at State option) that all such individuals disposing of a home whose value exceeds the maximum amount payable under the State plan as medical assistance for 24 months of care in a skilled nursing facility shall be ineligible for a longer period which bears a reasonable relationship to the uncompensated value of the home.” 128 Cong.Rec.S. 8586 (daily ed., July 19, 1982). In explaining the purpose of this amendment, the Senate Committee stated: The amendment intends to assure that all of the resources available to an institutionalized individual, including equity in a home, which are not needed for support of a spouse or dependent children will be used to defray the costs of supporting the individual in the institution. In doing so, it seeks to balance government’s medicaid costs against the individual’s need to have the home available in the event discharge from the institution becomes feasible. S.Rep. No. 494 at 814. The committee further noted that the proposed amendment “would facilitate States’ efforts to recover medical assistance costs from [recipients’ homes or income-producing real property] and to assure that all resources available to an individual will be used to defray the public costs of supporting that individual in a long-term medical institution.” Id. The Senate Finance Committee carved out exceptions for applicants who: (1) reasonably expected to be discharged from the medical institution and returned home; (2) demonstrated that he or she intended to obtain fair market value or other consideration in exchange for their home; or (3) transferred title to a spouse or a minor or handicapped child. Id. at 814. Waivers could also be granted by the state where undue hardship would result from imposition of a disqualification period. Id. The House Committee provision was similar to the proposed Senate amendment except that the House’s provision would apply to transfers for less than fair market value within 24 months prior to application for Medicaid benefits. See H.Conf. Rep. No. 760, 97 Cong., 2d Sess., reprinted in 1982 U.S.Code Cong. & Ad.News 1190, 1218. The House Committee proposal also allowed “states to deny Medicaid coverage for a period computed in a manner such that the cost of the services that would otherwise be provided to the individual during this period bears a reasonable relationship to the amount of the uncompensated value of the home.” Id. Under the conference agreement the period of ineligibility was set at 24 months from the date of the transfer of the home for less than fair market value. In addition, states were allowed to provide for shorter or longer periods of ineligibility depending on the uncompensated value of the home in relation to the cost of 24 months of Medicaid benefits. Id. The conference agreement specified that, in all cases, the period of ineligibility “must be related to the uncompensated value of the home, based upon the beneficiary's equity, and the cost of medicaid benefits.” Id. The conference agreement also adopted the Senate Finance Committee’s proposal of allowing states to waive the ineligibility period in cases of undue hardship. The statute’s legislative history does not not provide direct evidence of the intent of Congress with respect to its meaning of the word “payable” as used in section 1396p(c)(2)(B). However, this same history makes the overall objective of Congress unmistakably clear. Congress intended to depart from the past policy of excluding the home as a resource for purposes of determining Medicaid eligibility and to establish a disincentive to the transferring of homes for less than fair market value by allowing states to establish a period of ineligibility where such a transfer had occurred. These objectives were achieved in the context of enacting the Tax Equity and Fiscal Responsibility Act of 1982, see S.Rep. No. 494, the central purpose of which was to reduce budget outlays as a partial response to the federal deficit. See id. at 836. The amendment proposed and adopted as the federal transfer of assets rule contributed to TEFRA’S central purpose by requiring greater patient participation in the overall cost of medical care, and, thereby reducing government outlays. We believe that in enacting section 1396p(e)(2)(B), Congress sought to reduce budget outlays and to create a strong disincentive to the transfer of homes for less than fair market value. Proposed Or.Admin.R. 461-04-070(6)(e) fully comports with these objectives. By pegging the period of ineligibility to the average amount the state actually pays for medical services to Medicaid recipients, government moneys are spread the furthest. A longer ineligibility period results through such a computation; a longer ineligibility period creates a stronger disincentive to the transfer of a home for less than fair market value. To interpret the ambiguous statutory language as found in section 1396p(c)(2)(B) as urged by the plaintiff class could produce consequences which are contrary to the goals Congress intended to achieve by the legislation. We do not accept the interpretation of the plaintiff class and the district court. To do so would disregard the circumstances surrounding the enactment of section 1396p(c)(2)(B), as well as the objectives it was intended to accomplish. See Callejas v. McMahon 750 F.2d at 731. The plaintiffs contend the interpretation we adopt is punitive against individuals who transferred their home with no intent to cheat the state because they may face a longer period of ineligibility than someone who sold his home at fair market value and “spends down” the proceeds to eligibility levels. In light of the various exceptions to section 1396p(c)(2)(B)(i) and (ii), which Congress enumerated in section 1396p(c)(2)(B) (iii), we are satisfied that our interpretation of section 1396p(c)(2)(B) is not punitive. Our interpretation more nearly achieves what Congress intended by enacting § 1396p(c)(2)(B) — that all available resources of an applicant will be used to defray the cost of medical services and to deter individuals from circumventing this requirement by transferring their home for less than fair market value. If plaintiffs regard the decision of Congress to be unfair, they must seek relief from the legislative branch. CONCLUSION In summary, although the plain language and legislative history are inconclusive with respect to the method of calculating the period of ineligibility authorized under section 1396p(c)(2)(B), they clearly reflect Congress’ intent to depart from its past practice of excluding an applicant’s home when computing Medicaid eligibility and to allow states to establish a period of ineligibility in specified circumstances where an applicant disposes of his or her home for less than fair market value. The time and circumstances surrounding the enactment of section 1396p(e) and its objectives convince us that proposed Or.Admin.R. 461-04-070(6)(e) is consistent with the federal statute. Accordingly, the district court’s judgment is reversed. The case is remanded to the district court for a proper adjustment of the award of attorneys fees to the plaintiff class. REVERSED and REMANDED. . Oregon did not seek a stay of the district court’s judgment pending this appeal, rather Oregon amended Or.Admin.R. 461-04-070(6)(e) (1984) to conform to the judgment of the district court. This action by Oregon does not moot this appeal. See Maher v. Roe, 432 U.S. 464, 468-69 n. 4, 97 S.Ct. 2376, 2379-80 n. 4, 53 L.Ed.2d 484 (1977). . 42 U.S.C. § 1396p(c) provides: (c) Denial of medical assistance; period of eligibility; exceptions (1) Notwithstanding any other provision of this subchapter, an individual who would otherwise be eligible for medical assistance under the State plan approved under this subchapter may be denied such assistance if such individual would not be eligible for such medical assistance but for the fact that he disposed of resources for less than fair market value. If the State plan provides for the denial of such assistance by reason of such disposal or resources, the State plan shall specify a procedure for implementing such denial which, except as provided in paragraph (2), is not more restrictive than the procedure specified in section 1382b(c) of this title, and which may provide for a waiver of denial of such assistance in any instance where the State determines that such denial would work an undue hardship. (2) (A) In any case where the uncompensated value of disposed of resources exceeds $12,000, the State plan may provide for a period of ineligibility which exceeds 24 months. If a State plan provides for a period of ineligibility exceeding 24 months, such plan shall provide for the period of ineligibility to bear a reasonable relationship to such uncompensated value. (B)(i) In the case of any individual who is an inpatient in a skilled nursing facility, intermediate care facility, or other medical institution, if such individual is required, as a condition of receiving services in such institution under the State plan, to spend for costs of medical care all but a minimal amount of his income required for personal needs, and, who, at any time during or after the 24-month period immediately prior to application for medical assistance under the State plan, disposed of a home for less than fair market value, the State plan (subject to clause (iii)) may provide for a period of ineligibility for medical assistance in accordance with clause (ii). (ii) If the State plan provides for a period of ineligibility under clause (i), such plan— (I) shall provide that such individual shall be ineligible for all medical assistance for a period of 24 months after the date on which he disposed of such home, except that, in the case where the uncompensated value of the home is less than the average amount payable under the State plan as medical assistance for 24 months of care in a skilled nursing facility, the period of ineligibility shall be such shorter time as bears a reasonable relationship (based upon the average amount payable under the State plan as medical assistance for care in a skilled nursing facility) to the uncompensated value of the home, and (II) may provide (at the option of the State) that, in the case where the uncompensated value of the home is more than the average amount payable under the State plan as medical assistance for 24 months of care in a skilled nursing facility, such individual shall be ineligible for all medical assistance for a period in excess of 24 months after the date on which he disposed of such home which bears a reasonable relationship (based upon the average amount payable under the state plan as medical assistance for care in a skilled nursing facility) to the uncompensated value of the home. (iii) An individual shall not be ineligible for medical assistance by reason of clause (ii) if: (I) a satisfactory showing is made to the State (in accordance with any regulations promulgated by the Secretary) that the individual can reasonably be expected to be discharged from the medical institution and to return to that home, (II) title to such home was transferred to the individual’s spouse or child who is under age 21, or (with respect to States eligible to participate in the State program established under subchapter XVI of this chapter) is blind or permanently and totally disabled, or (with respect to States which are not eligible to participate in such program) is blind or disabled as defined in section 1382c of this title, (III) a satisfactory showing is made to the State (in accordance with any regulations promulgated by the Secretary) that the individual intended to dispose of the home either at fair market value, or for other valuable consideration, or (IV) the State determines that denial of eligibility would work an undue hardship (3) In any case where an individual is ineligible for medical assistance under the State plan solely because of the applicability to such individual of the provisions of section 1382b(c) of this title, the State plan may provide for the eligibility of such individual for medical assistance under the plan if such individual would be so eligible if the State plan requirements with respect to disposal of resources applicable under paragraphs (1) and (2) of this subsection were applied in lieu of the provisions of section 1382b(c) of this title. (Emphasis added). . The plaintiff class also challenged the legality of Or.Admin.R. 413.170, 461-04-245, and 461-05-908. . Under Oregon law, a temporary rule may not remain in effect for more than 180 days. Or. Rev.Stat. § 183.335(6)(a) (1983). Question: Is the case described in the opinion as a class action suit? A. No B. Yes 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. ABEX CORPORATION v. MARYLAND CASUALTY COMPANY, et al. Liberty Mutual Insurance Company, Appellant. ABEX CORPORATION v. MARYLAND CASUALTY COMPANY, Appellant Liberty Mutual Insurance Company, et al. ABEX CORPORATION v. MARYLAND CASUALTY COMPANY, et al. Liberty Mutual Insurance Company, Appellant. Nos. 85-5602, 85-5659 and 85-5660. United States Court of Appeals, District of Columbia Circuit. Argued Feb. 21, 1986. Decided May 9, 1986. Margaret H. Warner, with whom Lawrence E. Carr, Jr., Washington, D.C., was on brief for Travelers Indem. Co., appellant in Nos. 85-5659, 85-5660 and 85-5602. Gerald V. Weigle, Jr., Cincinnati, Ohio, with whom Frank W. Gaines, Jr., New York City, was on brief for Liberty Mut. Ins. Co., appellant in Nos. 85-5602, 85-5659 and 85-5660. William A. Bradford, Jr., with whom Thomas W. Brunner and Jeffrey F. Liss, Washington, D.C., were on brief for Maryland Cas. Co., appellant in Nos. 85-5602, 85-5660 and 85-5659. Jerold Oshinsky, with whom Robert H. Shulman and David M. Halbreich, Washington, D.C., were on brief for appellee in Nos. 85-5602, 85-5659 and 85-5660. Judith Hall Howard, Washington, D.C., also entered an appearance for appellee in Nos. 85-5602, 85-5659 and 85-5660. Before WRIGHT, EDWARDS and BUCKLEY, Circuit Judges. Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS. HARRY T. EDWARDS, Circuit Judge: The Comprehensive General Liability (“CGL”) policy is a standard liability-insurance policy that, with only rare exception, is routinely used by the insurance industry in the United States. Under this policy an insurer must indemnify the insured for “all sums which the insured shall be legally obliged to pay as damages because of... bodily injury... caused by an occurrence. ” The insurer is additionally obligated to defend any suit against the insured to recover damages “on account of such injury... even if any of the allegations of the suit are groundless, false or fraudulent.” This case involves a now commonplace dispute between an asbestos manufacturer and several insurance companies over the interpretation of the standard CGL policy in the context of asbestos-induced disease. It is an “occurrence” that triggers the insurer’s liability. However, because the onset of asbestos-induced disease is difficult to pinpoint, the parties in this case have differing views on when an insurer’s duties to indemnify and defend are “triggered” under the CGL policy. The resolution of this dispute therefore requires us to interpret the definition of “occurrence” in the CGL policy. Abex Corporation, a brake-lining manufacturer whose products at one time contained asbestos, brought this action in the United States District Court for the District of Columbia seeking declaratory judgment that several insurance companies have obligations under the CGL policy to defend and indemnify Abex in over 200 pending asbestos tort actions. The parties have stipulated that this case is governed by New York law. The District Court granted Abex partial summary judgment and held that the insurers “are obliged to defend and pay for the asbestos claims and lawsuits against Abex and to pay its defense costs in accordance with” this circuit’s decision in Keene Corp. v. Insurance Co. of North America. Keene, however, did not specifically interpret the CGL policy under New York law. At issue on appeal is whether Keene is consistent with New York law. As a starting point in our review of this case, we first consider the Second Circuit’s opinion in American Home Products Corp. v. Liberty Mutual Insurance Co., in which the court construed the definition of “occurrence” under New York law. The New York Court of Appeals has yet to grapple with the issue; therefore, under general notions of comity within the federal judicial system, we are obliged to respect the Second Circuit’s interpretation of New York law absent clear error. Because we can find no such clear error, and because Keene is inconsistent with both American Home Products and our own reading of the insurance contracts, we adopt the American Home Products interpretation that the insurer’s obligation to indemnify Abex arises when the asbestos causes real bodily injury during the policy period. Under this view, the injury need not be compensable or diagnosable during the policy period if its existence during that period can be proved in retrospect. We remand the case to the District Court for further proceedings on the insurers’ duty to indemnify Abex under the so-called “injury-in-fact” trigger as specified in American Home Products. We further conclude that the insurers have a duty to defend Abex in all cases in which the complaint “permits proof” of facts establishing coverage. Only if the insurers establish as a matter of law that there is no possibility of coverage can they avoid their duty to defend Abex. We therefore hold that the insurers have an immediate duty to defend Abex in its asbestos cases until they present positive proof that no coverage is possible. Finally, we hold that Maryland Casualty Company has no duty to indemnify or defend Abex until the District Court expressly determines that Abex was covered by Maryland Casualty Company policies. I. Background Abex is a manufacturer engaged in the sale and distribution of brake-linings for railroad cars, automobiles, trucks and industrial machinery. These products once contained asbestos and, as a result, Abex is now a defendant in over 200 asbestos tort cases. Although Abex was insured between 1943 and 1974 by successive CGL policies issued by Maryland Casualty Company (“Maryland”), Travelers Insurance Company (“Travelers”), and Liberty Mutual Insurance Company (“Liberty”), these insurers have refused to defend or indemnify Abex in all but one of Abex’s asbestos cases. For the most part, all of the insurers have adopted identical language from the standard CGL policy in defining their obligations to Abex. Under the CGL policy, the insurers are obliged to indemnify Abex for all damages that result from bodily injury or property damage to which this policy applies caused by an occurrence.... An “occurrence” is defined as an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured. In addition to its duty to indemnify Abex, the insurers are obliged to defend any suit against the insured seeking damages on account of such injury or damage, even if any of the allegations of the suit are groundless, false or fraudulent____ While all of Travelers’ policies — covering Abex from March 1, 1971, until March 1, 1974 — are involved in this case, only eight of the sixteen Liberty policies are at issue. The Liberty policies covered Abex from January 1, 1966, through January 1, 1970, and from August 1, 1957, through August 1, 1961. Although in most relevant respects the Liberty and Travelers policies are identical, the Liberty policies include two additional provisions not usually found in CGL policies. Both of these provisions could significantly alter Liberty’s duty to indemnify Abex. First, the 1957-1960 Liberty policies include a so-called “deemer clause.” It provides: The policy applies only to personal injury and property damage which occur during the policy period any where in the world; provided personal injury or property damage caused by exposure to injurious conditions over a period of days, weeks, months or longer shall be deemed to occur only on the last day of exposure to such injurious conditions. Personal injury or property damage caused by such continuous or repeated exposure for which written claim is made against the insured during the policy period shall be deemed to occur only on the last day of the last exposure prior to the date such claim is made. Subject to the foregoing provisions, the policy does not apply to such personal injury or property damage caused by such continuous or repeated exposure, any part of which occurs after the policy period. Second, although the 1966-1970 Liberty contracts do not include this deemer clause, they too include a unique provision — the so-called “other insurance” provision: The insurance afforded by this policy does not apply to that portion of the loss for which the insured has other valid and collectible insurance, whether on a primary, excess or contingent basis. The Maryland policies at issue allegedly covered Abex during 1953-1954 and 1956-1957. Maryland, however, denies that it insured Abex during those years, and submitted affidavits contending that Maryland was unable to find any record of these policies in its files. Abex produced copies of these policies, but their authenticity is hotly contested by Maryland. Although the Maryland policies are much older than the version of the CGL policy used by the other carriers, the policies provide the same duty to defend and to indemnify as that found in the Travelers and Liberty policies, and use only slightly different language than the standard CGL policy: This policy applies only to occurrences which result in injury during the policy period.... Maryland does not contest that, if it insured Abex, its duty to indemnify is exactly the same as that arising from the version of the CGL policy applicable to Liberty and Travelers. After the insurers refused to defend Abex in the tort actions, Abex brought this action for declaratory judgment in July 1982. The insurers’ motion to transfer this action to the Southern District of New York was denied by the District Court. Abex filed a motion for partial summary judgment on December 6, 1982, seeking to require the insurers to undertake immediately their defense and indemnity obligations. Almost two and a half years later, on April 16, 1985, the District Court granted Abex’s motion in full with the following order: Under consideration of the motion of plaintiff, Abex Corporation, for partial summary judgment and the statements of points and authorities in support thereof and in opposition thereto, and the entire record herein, it is hereby ORDERED that, 1. Plaintiff’s motion for partial summary judgment is granted in all respects. 2. Defendant Maryland Casualty Company, under policy numbers 96-026450 and 96-105310, defendant Liberty Mutual Insurance Company, under policy numbers LP6021-904327-37, LP6021-90432738, LP-1-621-004078-040, LP1-621004078-046, LG1-621-004078-047, LG1621-004078-048, LG1-621-004078-049, and LG1-621-004078-319, and defendant Travelers Indemnity Company, under policy number TRNSL-957500-71, are obliged to defend and pay for the asbestos claims and lawsuits against Abex and to pay its defense costs in accordance with the decision in Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007 [102 S.Ct. 1644, 71 L.Ed.2d 875] (1982). 3. Upon the express finding that there is no just reason to delay, and pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the Court directs the entry of this order as a final judgment. This appeal followed. II. Analysis A. The Trigger The central and dispositive issue on appeal is the meaning of the word “occurrence” as defined in the CGL policy used by the insurers in this case. Our interpretation of the word “occurrence” will, in turn, determine what event or events will “trigger” the insurers’ duties to defend and indemnify Abex. The courts that have addressed this issue have come to significantly different conclusions. Some courts, for example, have held that the insurers’ obligations under the CGL policy are triggered only when an injury is manifest during the policy period. Others hold that liability is triggered by mere exposure to the harmful conditions during the policy period. In Keene Corp. v. Insurance Company of North America, we addressed this very issue and concluded “that inhalation exposure, exposure in residence, and manifestation all trigger coverage under the policies____ [and that] ‘bodily injury’... mean[s] any part of the single injurious process that asbestos-related diseases entail.” Under the mandate of Erie Railroad Co. v. Tompkins, however, our obligation in a diversity action such as this one is to interpret and apply state law — in this case, the law of New York. In Keene, we did not purport to apply the law of New York — nor did we even explicitly apply the law of any single state. Instead, because we determined that none of the states whose law was arguably applicable had addressed specifically the issue in dispute, we applied “the basic principles governing the interpretation of insurance policies,” in interpreting the CGL policy. Keene, therefore, does not necessarily identify the correct interpretation of the CGL policy under New York law. As we concluded in Eli Lilly & Co. v. Home Insurance Co., “Keene is relevant only insofar as we determine that the [state] courts would adopt it.” Indeed, in Eli Lilly, this court cited New York law as an example of a state whose law is possibly inconsistent with Keene. We must therefore look specifically to the law of New York. Fortunately, we are not without guidance. This is one of the rare instances in which a sister circuit has provided an unambiguous answer to our inquiry. In American Home Products Corp. v. Liberty Mutual Insurance Co., Judge Sofaer explicitly rejected the Keene multiple trigger as inconsistent with New York law, and instead adopted an “injury-in-fact” trigger. As modified on appeal by the Second Circuit; insurance obligations under the CGL policy arise when real injury occurs during the policy period. Real injury need not have been compensable or diagnosable during the policy period if its existence during that period can be proved in retrospect. Thus, unlike the approach in Keene, under the injury-in-fact trigger the central issue is when injury actually occurred. Injury need not be manifest, but it must exist in fact. According to Judge Sofaer, the plain meaning of the definition of “occurrence” in the CGL policy mandates that the insurers’ obligations to indemnify the insured arise when real injury occurs during the policy period. Under New York law, extrinsic evidence of intent is admissible only if a contract provision is susceptible of at least two fairly reasonable meanings. Because Judge Sofaer concluded that the plain meaning of the definition of occurrence permits only the injury-in-fact trigger, he looked to extrinsic evidence of the parties’ intent only to confirm his analysis of the plain language of the contracts. We will follow the American Home Products interpretation of the CGL policy under New York law. As Judge Newman wisely concluded in Factors Etc., Inc. v. Pro Arts, Inc., Where, as here, the pertinent court of appeals has essayed its own prediction of the course of state law on a question of first impression within that state, the federal courts of other circuits should defer to that holding, perhaps always, and at least in all situations except the rare instance when it can be said with conviction that the pertinent court of appeals has disregarded clear signals emanating from the state’s highest court pointing toward a different rule. The application of a contract interpretation different than that adopted by the Second Circuit would create the oddity of a split in the circuits over the correct application of New York law. The evils of forum shopping, which the Erie doctrine is designed in part to prevent, could only be exacerbated by such a split over an issue of state law. It seems obvious, for example, that this case was brought in the District Court for the District of Columbia because the holding in Keene is favorable to Abex. Furthermore, it is fair to assume that the circuit with jurisdiction over the state whose law is in question will inevitably have a better sense of the applicable state law than that of our own. The holding of a “home” circuit is especially strong when, as here, it substantially adopts the reading of state law offered by a district court in the pertinent state. For these reasons, we will defer to the local circuit’s view of the law of a state in its jurisdiction when that circuit has made a reasoned inquiry into state law, unless we are convinced that the court has ignored clear signals emanating from the state courts. Only when we are certain that the pertinent circuit has clearly misread state law would it make sense to reject that circuit’s view of state law. In such a case, our adoption of a clearly incorrect reading of state law would do nothing to prevent forum shopping. Litigants would still choose a federal forum whenever the circuit’s reading of state law is more favorable than that actually adopted by state courts. We are convinced, however, that such a clear misreading of state law will rarely occur. We are confident from our examination of the applicable case law of New York that the Second Circuit has not disregarded clear signals emanating from the New York courts. Indeed, several New York decisions cast doubt on the Keene approach by rejecting exposure as a sufficient basis for the triggering of coverage under the CGL policy. In American Motorists Insurance Co. v. E.R. Squibb & Sons, Inc., for example, a New York trial court suggested that an injury —and not mere exposure — must occur during a policy period: A reading of the [CGL] policy language would appear to indicate that coverage is predicated not on the act which might give rise to ultimate liability, but upon the result. It would be a strained interpretation to construe the occurrence clause as though it covered “exposure during the policy period which results in bodily injury.” It is the result which is keyed to the period, and not the accident or exposure. Similarly, the Appellate Division concluded that exposure after initial injury that “aggravated existing injuries or caused additional injuries” also triggered coverage. Clearly, these cases do not offer an unambiguous embrace of the injury-in-fact approach, but they are far more consistent with the injury-in-fact trigger than with the multiple trigger adopted by Keene and the manifestation theory adopted by other courts. Furthermore, American Home Products is more consistent with our own reading of the insurance contracts than is Keene. The plain language of the definition of “occurrence” used in the CGL policy requires exposure that “results, during the policy period, in bodily injury” in order for an insurer to be obligated to indemnify the insured. The unambiguous meaning of these words is that an injury — and not mere exposure — must result during the policy period. The CGL policies expressly distinguish exposure from injury; to equate the two as urged by Abex is to ignore this distinction. Any argument that mere exposure — without injury — triggers liability is simply unsound linguistically. Additionally, the manifestation theory, too, is inconsistent with the definition of “occurrence.” Although the language of these policies demands that the insured prove that an exposure caused an injury during the policy period, it imposes no requirement that the injury be discovered at that time. B. Application of the Trigger 1. Duty to Indemnify Because we adopt the injury-in-fact trigger as most consistent with New York law, summary judgment on the question of the insurers’ duty to indemnify is not appropriate in this case. It may be, as suggested by Abex, that in the context of asbestos cases, injury occurs simultaneously with exposure. The record below is devoid of evidence on when asbestos-induced injury occurs, however, and the inescapable dispute of fact over this issue prevents summary judgment. The CGL policy requires that real injury occur during the policy period before an insurer is obligated to indemnify an insured, and thus makes the existence of injury a material issue of fact. We therefore remand for further proceedings in the District Court on the insurers’ duty to indemnify under the injury-in-fact trigger. On remand, there will be no need for the District Court to examine extrinsic evidence on intent. In American Home Products, the court adopted the injury-in-fact trigger as mandated by the plain meaning of the definition of “occurrence” in the CGL policy. We adhere to this view. The contract language here is susceptible of only one reasonable interpretation; therefore, under New York law, extrinsic evidence of intent is irrelevant. The principal task for the District Court on remand will be to determine when injury-in-fact occurred. As Judge Sofaer observed, the trier of fact need not pinpoint the exact date of injury. Instead, “all that is necessary is reasonably reliable evidence that the injury, sickness, or disease more likely than not occurred during a period of coverage.” Once the court determines that asbestos exposure causes injury at a particular time and in a particular manner, it may be appropriate to apply these findings to all similar cases. Such an approach would avoid the need for repetitive minitrials on this issue for each of the tort claims against Abex. However, we will leave this matter for assessment by the District Court in the first instance. Finally, the District Court must consider the applicability of the “deemer” clauses and “other insurance” clauses in the Liberty policies. Although these provisions could significantly affect Liberty’s duty to indemnify Abex, there is no mention of these clauses in the District Court’s order. The deemer clause, for example, provides that injury caused by exposure to injurious conditions is deemed to occur on the last day of exposure. This could be read to eliminate Liberty’s duty to indemnify Abex for injuries caused by exposure that ceased before the beginning of Liberty’s policy period, as well as injuries caused in part by exposure occurring after the expiration of the Liberty policy. Unfortunately there is no Second Circuit interpretation of these two contract provisions, so we must leave the task of interpreting these provisions to the District Court. The District Court must first determine if these provisions have a plain meaning. If they are susceptible of at least two fairly reasonable meanings, under New York law the court must then examine any extrinsic evidence. Only “after all aids to construction have been employed but have failed to resolve the ambiguities” should the court apply the maxim that ambiguities are to be construed against the insurer. 2. The Duty to Defend Although the issues surrounding the insurers’ duty to indemnify Abex cannot be resolved on a motion for summary judgment, the same is not true with respect to the duty to defend Abex. Under well-settled principles of New York law, Abex is entitled to defense by the insurance companies if the underlying tort complaints “permit proof” of the facts establishing coverage, or if the complaints do not exclude the possibility that injury-in-fact occurred during the policy period. Only if the insurers establish, “as a matter of law, that there is no possible factual or legal basis on which the insurer might eventually be obligated to indemnify,” would they escape their duty to defend Abex. Recently, a New York trial court applied these principles and granted an insured summary judgment on the duty to defend when the insurers “failed to establish that there is no possible factual or legal basis on which they might eventually be obligated to indemnify [the insured] against liability.” Summary judgment is also appropriate in this case because the insurers here too have failed to establish that no coverage is possible as a matter of law. As we concluded above, indemnification is triggered by injury-in-fact. Thus, as long as there remains a possibility — however remote — that injury occurred during the policy periods of each insurer, the insurers must defend Abex. Because it is possible for asbestos-induced injuries to occur at any time following initial exposure, the tort complaints against Abex “permit proof” that the injury-in-fact occurred during the policy periods of all three insurers. We hold, therefore, that the insurers must immediately fulfill their duty to defend Abex. This obligation will continue until the insurers establish that, as a matter of law, there is no possibility that they will have to indemnify Abex. C. Maryland Insurance Although we hold that Travelers and Liberty have a duty to defend Abex, we are presently unable to make any such determination with respect to Maryland. Before the District Court imposes any duty on Maryland, it must first determine that Maryland insured Abex for the years claimed. Under New York law, Abex has the burden of establishing the existence of this coverage. On the record before us, there remains an unresolved dispute of fact concerning Maryland’s coverage of Abex. The evidence supporting this coverage is arguably persuasive, but the standard for summary judgment requires that the District Court find no dispute of material fact— mere persuasiveness is not enough. Although Abex presented two alleged policies found in the records of its London insurance broker, these policies are stamped “SAMPLE” and “CANCELLED.” Of course, as Abex suggests, this could merely denote the fact that only a copy of the policy was sent to London, and that the policy was cancelled at the end of the policy period. On a motion for summary judgment, however, we are not permitted to draw any inferences against Maryland. As Maryland argues, “SAMPLE” could mean that these policies were prepared as only an example of the coverage Maryland could provide. Similarly, the fact that neither Maryland nor Abex’s domestic insurance broker had a copy of the purported policies, and the fact that key provisions of the policies are missing, cast some doubt on the authenticity of these policies. On remand, the District Court must conduct further proceedings before imposing liability on Maryland. If a factual dispute persists after further discovery, the District Court must hold a trial on this issue. III. Conclusion We are fortunate that the Second Circuit has already resolved the principal issues of New York law dispositive of this appeal. Because the Second Circuit is the “home” circuit, we adopt its interpretation of New York law; the duty of each insurer to indemnify Abex is therefore triggered by injury-in-fact. We remand the case to the District Court for a trial on each insurer’s duty to indemnify under this trigger. We further conclude that the insurers are obligated under New York law to defend Abex until the insurers establish that, as a matter of law, there is no possibility of coverage. This duty, of course, includes a duty to reimburse Abex for defense costs already incurred, as well as a duty to assume Abex’s defense in all pending and future asbestos cases. Finally, we hold that the District Court must determine whether Maryland insured Abex before imposing either a duty to defend or a duty to indemnify upon Maryland. So ordered. . Comprehensive General Liability Policy (1966) (emphasis added), cited in Insurance Co. of N. Am. v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1216 (6th Cir.1980), clarified, 657 F.2d 814 (6th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981). . Id. . Under the CGL policy, occurrence is defined as an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured. Id. . 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982). . 748 F.2d 760 (2d Cir.1984). . As will be discussed in Part IIC, infra, Maryland disputes that it insured Abex during the years alleged. . Comprehensive General Liability Policy, note 1 supra. . Id. . Id. . This provision is called a deemer clause because it deems when injury occurs. . Liberty Mutual Insurance Policy (emphasis added), reprinted in Record Excerpts Submitted by Liberty Mutual Insurance Company (“R.E.”) 41. . R.E. 45. The 1966 policy uses different language: If the insured has other insurance against a loss covered by this policy, the insurance afforded by this policy shall be excess insurance over and above any other valid and collectible insurance available to the insured. R.E. 41. . Maryland Casualty Company Policy, reprinted in Record Excerpts Submitted by Appellee Abex Corporation 13. . Abex Corp. v. Maryland Casualty Co., Civil Action No. 82-2098 (D.D.C. April 16, 1986) (order), reprinted in R.E. 9-10. . See, e.g., Eagle-Picher Indus., Inc. v. Liberty Mut. Ins. Co., 523 F.Supp. 110 (D.Mass.1981), modified, 682 F.2d 12 (1st Cir.1982) (as modified, insurance coverage is triggered when "asbestos-related disease became reasonably capable of medical diagnosis”), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983). . See, e.g., 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 650 (1981). For a detailed study of the various approaches used to solve this problem, see Note, Adjudicating Asbestos Insurance Liability: Alternatives to Contract Analysis, 97 Harv.L.Rev. 739 (1984). . 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982). . Id. at 1047 (emphasis added). . 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). . 667 F.2d at 1041 n. 10. We further noted that these principles "are the same in each state.” Id. . 764 F.2d 876 (D.C.Cir.1985). . Id. at 883. . See id. at 880. . 565 F.Supp. 1485 (S.D.N.Y.1983), aff’d as modified, 748 F.2d 760 (2d Cir.1984). . See American Home Products, 748 F.2d at 765. . Judge Sofaer also mentioned several reasons why Keene is inconsistent with New York law. First, although the doctrinal basis for Keene was the reasonable-expectations doctrine, “New Hampshire appears to be the only state that adheres to the reasonable-expectations doctrine; no state law arguably applicable in this case would permit reliance upon the doctrine in connection with unambiguous passages." American Home Products, 565 F.Supp. at 1511. Second, Keene ignored the doctrine that, “[u]nder New York law... a court should apply its own construction to a policy’s terms only after it has exhausted every effort to derive the meaning of the terms that accurately reflects the intent of the parties.” Id. at 1492. Finally, Judge Sofaer rejected “manifestation” and "exposure” triggers as inconsistent with the plain meaning of the definition of occurrence. The definition requires that there be injury during the policy period and not mere exposure. See id. at 1494-95. . 652 F.2d 278 (2d Cir.1981), cert. denied, 456 U.S. 927, 102 S.Ct. 1973, 72 L.Ed.2d 442 (1982). . Id. at 283. Several other courts have followed Judge Newman’s lead. See Hammermill Paper Co. v. Pipe Sys., Inc., 581 F.Supp. 1189, 1193 (W.D.Pa.1984); Alcan Aluminum Ltd v. Franchise Tax Bd., 539 F.Supp. 512, 514-15 (S.D.N.Y.1982). . We note that federal courts often have given deference to district court interpretations of state law. "The rationale behind such deference is that a district court judge, who sits in a particular state and has practiced before that state’s courts, can better decide questions of unsettled state law than a circuit court judge, who frequently lacks such experience.” Note, Deference to Federal Circuit Court Interpretations of Unsettled State Law: Factors Etc., Inc. v. Pro Arts, Inc., 1982 DUKE L.J. 704, 711. . See id. at 726-27 (suggesting such a rule of deference). Obviously, we will not blind ourselves to state court decisions handed down after the circuit court opinion in question. . 95 Misc.2d 222, 406 N.Y.S.2d 658 (Sup.Ct.1978). . 95 Misc.2d at 223-24, 406 N.Y.S.2d at 659-60; see also Van Wyck Assocs. v. St. Paul Fire & Marine Ins. Co., 115 Misc.2d 447, 450-51, 454 N.Y.S.2d 266, 269 (Sup.Ct.1982) ("coverage is not upon the act or conditions during the period of existence of the policy which might give rise to ultimate liability, but rather upon the ‘result’ thereof taking place during said policy period of existence"), aff'd, 95 A.D.2d 989, 464 N.Y.S.2d 617 (1983). . Autotronic Sys., Inc. v. Aetna Life & Casualty Co., 89 A.D.2d 401, 456 N.Y.S.2d 504, 506 (1982) (emphasis added). Only one New York trial court decision is at variance with the otherwise uniform rejection of the exposure theory by the New York courts. In All-State Ins. Co. v. Colonial Realty Co., 121 Misc.2d 640, 468 N.Y.S.2d 800 (Sup.Ct.1983), the court used the exposure theory as grounds to deny an insurer’s motion for summary judgment in a case involving the duty to indemnify the insured for an infant’s lead poisoning. 121 Misc.2d at 641, 468 N.Y.S.2d at 801-02. One lower court decision, 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_procedur	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. Drew B. TUCKER, Appellant, v. LOCAL 26, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS. No. 84-5392. United States Court of Appeals, District of Columbia Circuit. Argued April 22, 1985. Decided May 21, 1985. June D.W. Kalijarvi, Washington, D.C., with whom George M. Chuzi, Washington, D.C., was on the brief, for appellant. Brian A. Powers, Washington, D.C., with whom Robert J. Henry, Washington, D.C., was on the brief, for appellee. Sally Armstrong, Robert Matisoff, and James R. O’Connell, Washington, D.C., entered appearances for appellee. Before WRIGHT, Circuit Judge, MAR-KEY, Chief Judge, United States Court of Appeals for the Federal Circuit, and SCA-LIA, Circuit Judge. Opinion for the court filed by Chief Judge MARKEY. Sitting by designation pursuant to 28 U.S.C. § 291(a) (1982). MARKEY, Chief Judge: Drew B. Tucker appeals from an order of the United States District Court for the District of Columbia dismissing his complaint. We reverse and remand with instructions to vacate the order. Background Tucker was a trainee in a Minority Training Program established by Local 26, International Brotherhood of Electrical Workers, D.C. (Local 26) and the Washington Chapter, National Electrical Contractors Association. In 1983, Tucker filed with the EEOC a charge of racial discrimination on the part of Local 6, seeking referral to work, union membership, and back pay. Local 26 granted membership and referred him to work, but refused back pay. In November 1983, the EEOC gave Tucker a Notice of Right to Sue (Notice). On February 23, 1984, Tucker sued Local 26 in the district court, seeking back pay for the 18 months he had not been referred to work. In Gray, et al. and EEOC v. International Brotherhood of Electrical Workers, et al., CA No. 74-944 (D.D.C. April 1, 1977) five black males sued Local 26 for violation of their rights under 42 U.S.C. § 1981 and Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Class action certification was denied, 73 F.R.D. 638 (1977), a consent decree was entered, and Judge Gasch retained jurisdiction. The consent decree established a Monitoring Board (Board) to resolve similar disputes in future. Any petitioner dissatisfied by the action or inaction (within 8 weeks) of the Board could seek review in the district court. Tucker filed his present complaint before Judge Gasch as “a related case”. The case was transferred to Judge Gesell. When Local 26 said the consent decree required Tucker to petition the Board before suing, the parties moved jointly for a 90-day stay to permit the Board to act. The court denied the motion and dismissed the complaint without prejudice to reopening if issues were not resolved by the Board. His request for reconsideration having been denied, Tucker filed this appeal. Issue Whether the district court erred in dismissing Tucker’s complaint. Opinion We agree with Judge Gesell’s characterization of the present litigation as days of wasted effort resulting from an unintelligent approach by both parties. Having obtained union membership and a job, Tucker is suing for 18 months’ pay. Local 26 is bound by the consent decree to avoid violation of 42 U.S.C. § 2000e, et seq. or 42 U.S.C. § 1981 and the Board is required to hear the petition of any person contending that Local 26 is not complying with the decree. Before the district court and this court, the parties have conducted a rain dance around the central question, i.e., whether Tucker can be required to petition the Board before suing. Tucker says the Board never met; Local 26 say's it did and Tucker failed to appear. Tucker says he need not have petitioned the Board because Local 26 submitted his case to the Boárd. Local 26 moved to strike all allegations concerning Board matters occurring after dismissal of the complaint. Having filed his complaint as “related” to Gray, supra, and joined a motion for stay to permit Board action, thus leading Judge Gesell to think he would seek resolution by the Board, Tucker now argues that he is not bound by the consent decree. The brief of Local 26 totally ignores that question, proceeding entirely on the assumption that Tucker is so bound. Each party accuses the other of misrepresentation of facts “not of record”, in an appeal devoid of an evidentiary record. Though Judge Gesell carefully provided for reopening the case before him if the Board did not resolve all issues, Tucker did not petition the Board. Nor did he move to reopen, citing what he now says is the Board’s unwillingness to function. Instead, he devoted a year to this appeal, seeking what equates essentially to a reopening. The rain dancers have produced no rain. Both are where they were when the dance began. We disregard entirely all assertions respecting action and inaction of the Board, because those allegations are irrelevant. For the same reason, we deny as moot Local 26’s motion to strike. Stated simply, the threshold question is whether the consent decree required Tucker to petition the Board before submitting his Title VII claim to judicial review. The law requires, even at this delayed stage, a negative answer to that question. Tucker filed his charge first with the EEOC and received his Notice. He had at that point exhausted his statutorily provided administrative remedies and had met the exhaustion requirements of Title VII before he filed the present complaint. 42 U.S.C. § 2000e-5. Tucker was not a party in Gray, supra. The parties’ assertions about whether he would have been a putative class member, and whether that would have had effect here, are part of the rain dance and irrelevant. Gray was not a class action. Similarly, Local 26’s assumption that a judicially supervised consent decree, unlike private arbitration agreements, may add to Tucker’s Title VII exhaustion requirement is irrelevant, Tucker being in no manner bound by that decree. Local 26 does not say Tucker was a party in Gray, or that he was told of the decree when he became a trainee, or that he consented to have his Title VII right to judicial review delayed by a Board proceeding under the decree, or that he signed or had anyone sign on his behalf any waiver of that right. As above indicated, Local 26 simply ignores the question of whether Tucker is bound by the consent decree; it assumes that the decree somehow establishes a waiver of Tucker’s right, on receipt of EEOC’s Notice, to judicial review of his claim that he was denied his Title VII right to be free of racial discrimination. In Alexander v. Gardener-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed. 147 (1974), employee Alexander had invoked the compulsory arbitration clause of his union’s collective-bargaining agreement, and had submitted, virtually simultaneously, a complaint to the EEOC. When the arbitrator ruled that he had been discharged for just cause and the EEOC issued its Notice, Alexander sued. The District Court granted summary judgment, dismissing the complaint, and the Court of Appeals affirmed. The Supreme Court reversed, making clear that a waiver of Title VII’s right to judicial review, if possible at all, must be voluntary and knowing and part of a settlement. 415 U.S. at 52 n. 15, 94 S.Ct. at 1021 n. 15. Though the court dealt in Alexander with an arbitration proceeding, its explication of the role of the judiciary under Title VII, 415 U.S. at 44, 45, 47, 94 S.Ct. at 1017, 1018, 1019, undergirds our conclusion that Tucker’s right to judicial review following receipt of his Notice cannot be detoured onto a siding created by a consent decree to which he is a total stranger. Though Tucker came late to a recognition that, in relation to his right to judicial review, his complaint and the consent decree are not related, that fact compels us to reverse and remand with instructions to vacate the order of dismissal. So ordered. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
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. The PANTS RACK, INC., Appellee, v. UNITED STATES of America, Appellant. No. 81-1231. United States Court of Appeals, Fourth Circuit. Argued Nov. 4, 1981. Decided Jan. 14, 1982. Melvin E. Clark, Jr., Tax Division, Dept, of Justice, Washington, D. C. (John F. Murray, Acting Asst. Atty. Gen., Michael L. Paup, Richard Farber, Tax Division, Dept, of Justice, Washington, D. C., James L. Blackburn, U. S. Atty., William Woodward Webb, Asst. U. S. Atty., Raleigh, N. C., on brief), for appellant. Curtis A. Twiddy (Thomas L. Norris, Jr., Poyner, Geraghty, Hartsfield & Townsend, Raleigh, N. C., on brief), for appellee. Before HAYNSWORTH, Senior Circuit Judge, and MURNAGHAN and CHAPMAN, Circuit Judges. HAYNSWORTH, Senior Circuit Judge: The question is the interpretation of 26 U.S.C.A. § 6655(d)(2) in the context of a corporation’s duty to pay in advance installments of estimated income tax liability during the first year after revocation of an' election to be taxed under Subehapter S. The district court held that, since in the preceding year the corporation’s net income was not subject to tax levied upon it, it could lawfully estimate its income tax for the current year as nothing and, hence, was not subject to a penalty for not having filed declarations of estimated income tax and not making the estimated payments. In 1971, when it was incorporated, The Pants Rack, Inc., elected to be taxed as a small business corporation under Subchap-ter S of the Internal Revenue Code of 1954. That election remained in effect through its 1976 fiscal year. During the first month of its next fiscal year, however, it revoked that election. In its fiscal year 1976, it had net income taxable under Subchapter S to its shareholders. Nevertheless, during its 1977 fiscal year it filed no declarations of estimated tax liability and paid no installments of estimated tax. The taxpayer’s 1977 return showed an income tax liability of $84,573.00, to which the Commissioner added a penalty of $2,786.96 under 26 U.S.C.A. § 6655(a) for not having paid installments of estimated tax. The penalty was paid under protest. This action was filed after administrative denial of the taxpayer’s claim for a refund. Section 6655 provides for the assessment of a penalty upon a corporate taxpayer for underpayment of its estimated income tax liability. Subsection (d), however, provides alternative means by which the taxpayer may be protected from the hazards of underestimation and assessment of the penalty. One of those alternatives, provided by subsection (d)(2), exempts a corporation from the penalty if it has paid “[a]n amount equal to the tax computed at the rates applicable to the taxable year but otherwise on the basis of the facts shown on the return of the corporation for, and the law applicable to, the preceding tax year.” On the basis of “the facts shown on the return . . ., and the law applicable to” language of this subsection, the taxpayer contends that it had no taxable income in 1976 since in that year it was taxable under Subchapter S and, hence, was required to make no estimated tax payments with respect to its 1977 income. We disagree. Subchapter S provides a means by which a small business corporation and its shareholders may avoid the double taxation which inevitably occurs when corporate profits are subjected to taxation at the corporate level and its dividends are again taxed when they are paid to shareholders. It is not an exemption from taxation, however. It is simply an attribution of taxable income to the shareholders, who must rat-ably report that income upon their individual tax returns. Of course, that attributed income enters into their estimates of their individual income tax liabilities. Thus, through the shareholders of a Subchapter S corporation, the Internal Revenue Service receives current payments of the estimated tax upon the corporation’s net taxable income. Upon revocation of the Subchapter S election, however, the stockholders become taxable only upon corporate distributions actually received by them. For income tax purposes, they are no longer treated as having received undistributed corporate profits. The theory of current collection of income taxes requires that, upon revocation of a Subchapter S election, the corporation immediately pick up the former duty of its stockholders to make payments of estimated taxes on corporate income. It is inconsistent with this theory to construe § 6655(d) to exempt a former Subchapter S corporation from making payments of estimated tax during the first year after revoking its earlier election. It is simply wrong to say that the net income of a Subchapter S corporation is not taxable. It must be reported on a proper return, and 26 U.S.C.A. § 1373 speaks specifically of the “undistributed taxable income” of such a corporation. Under the scheme, there is simply an attribution of such income to the corporation’s shareholders, but that does not mean, contrary to the language of § 1373, that its income is not taxable. There is no problem in the application of § 6655(d) in this situation. This taxpayer reported its 1976 net income on its 1976 return. That figure was available to it as the basis for the 1977 estimate. Had it used that and made the estimated installment payments, it would have been provided with absolute assurance against assessment of any penalty. It was not required to make any fresh or different calculations than those involved in computing its net income as reported upon its 1976 return. We read “the law applicable to” language of § 6655(d)(2) to serve only the purpose of avoiding any necessity of recalculating net income of the previous year based upon changes in the applicable statutes or controlling interpretations. The provision obviously relates only to the laws making the income, depending on its own attributes, taxable or nontaxable. It does not allow total disregard of the income simply because of the exempt status of the corporation in the preceding year. Thus the taxpayer is given assurance that, notwithstanding changes in the law relating to the calculation of net income, it may use the net income figure from the previous year’s return, to which, of course, it must apply current rates in computing estimated tax. Only a change in rates, however, involves any recomputation in preparing the estimated tax for the current year. Thus, § 6655(d) reads comfortably upon the situation of this taxpayer in the first year after revocation of its Subchapter S election. The facts are shown on its return for 1976, and its computation of its net income was presumptively in accordance with then applicable law. It had only to lift that net income figure as the basis for computing its estimated 1977 tax at 1977 rates. We cannot construe § 6655(d) as an exemption from the estimated tax payment requirements during all of the first year after revocation of its Subchapter S election. The judgment of the district court is reversed and the case remanded for the entry of a judgment in accordance with this opinion. REVERSED AND REMANDED. This is not to say that a corporation in the situation of this taxpayer may not take advantage of deductions available to ordinary corporate taxpayers but not allowable in computing the undistributed net income of a Subchapter S corporation. The “law relating to” language well may be construed to refer to all of that body of law applicable to ordinary corporate taxpayers. 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_habeas	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts. W. D. NOLEN, Appellant, v. Lawrence E. WILSON, Appellee. No. 20984. United States Court of Appeals Ninth Circuit. Feb. 1, 1967. W. D. Nolen, in pro. per. Thomas C. Lynch, Atty. Gen., of Cal., John T. Murphy, Frank C. Damrell, Jr., Albert W. Harris, Jr., Robert R. Gran-nucci, Jennifer F. Bain, Deputy Attys. Gen., San Francisco, Cal., for appellee. Before HAMLIN, JERTBERG and MERRILL, Circuit Judges. HAMLIN, Circuit Judge. In 1963, W. D. Nolen, appellant herein, was convicted by a jury in the Superior Court of Alameda County, California, of first degree robbery, a violation of California Penal Code § 211. He is now serving his sentence in the California State Prison at San Quentin. His conviction was affirmed on appeal by the California District Court of Appeal in an unpublished opinion, People v. Nolen, 1 Crim. 4385, June 16, 1964. During his arraignment, plea, trial and appeal, he was represented by counsel. On March 25, 1966, appellant filed an application for a writ of habeas corpus in the United States District Court for the Northern District of California, Southern Division, raising substantially the same legal issues presented to the California court on direct appeal. The application was denied by the district court and thereafter a certificate of probable cause and permission to appeal in forma pauperis was granted. Appellant raises seven issues on appeal. He contends that during his trial (1) there was deliberate misconduct by the district attorney; (2) the court erred in denying his motion to exclude certain evidence; (3) the court erred in failing to grant a mistrial and to admonish the jury concerning the handling of an exhibit; (4) he was improperly cross-examined; (5) certain comments of the trial judge concerning the effect of an admission by a co-defendant was error; (6) the testimony of an accomplice was not sufficiently corroborated; and (7) the evidence was insufficient to support the verdict. All of these contentions were determined adversely to appellant in a carefully written opinion of the District Court of Appeal, supra. Appellant contends that each of the claimed errors at the trial was a violation of his constitutional right to due process of law. We do not agree. Denial of due process within the meaning of the Constitution of the United States in the trial of a criminal case in a state court sufficient to justify federal court interference is “the failure to observe that fundamental fairness essential to the very concept of justice.” Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166. Hendrix v. Hand, 312 F.2d 147 (10th Cir. 1962); Chavez v. Dickson, 280 F.2d 727 (9th Cir. 1960). “[I]n the ordinary case of this kind a United States Court will refuse to grant habeas corpus if it is satisfied from the record as a whole that the state courts gave fair consideration to the issues, reached a satisfactory result, and protected the rights of the petitioner under the Constitution of the United States.” Hendrix v. Hand, supra, 312 F.2d at 149. Respecting appellant’s first contention, the record shows that the prosecutor asked appellant on cross-examination about a gun in the glove compartment of a car driven by appellant after the robbery in question. The gun was not the one used in the robbery. No adequate objection was made concerning this examination and the motion of appellant’s counsel to strike .certain of the testimony was granted. Thereafter, appellant without objection volunteered that he had placed a gun in a purse in the automobile. The District Court of Appeal stated that the prosecutor’s cross-examination was improper. However, “the fact that a trial court error is prejudicial to defendant [does not] necessarily transform an otherwise fair trial into one which offends Fifth Amendment due process. It does not do so unless it has the effect of converting what was otherwise a fair trial into one which is repugnant to an enlightened system of justice.” Vandergrift v. United States, 313 F.2d 93 (9th Cir. 1963). In view of the circumstances concerning this testimony we hold that there was neither prejudicial error nor fundamental unfairness to appellant. The other contentions of appellant have been carefully examined and are without merit. The evidence alleged to be erroneously admitted in point two was a gun identified by a witness as having been used in the robbery. It was properly admitted. This gun was unloaded at the bailiff’s desk in court during the trial. Some days later during the trial appellant claimed that the unloading of the gun was prejudicial and moved to admonish the jury to disregard it. After a conference in chambers the court refused to give such admonition unless there was evidence introduced as to whether or not the gun was loaded when it came into possession of the authorities. Appellant and his counsel refused to consent to the introduction of such evidence, and the court refused to give the admonition. We see no error in this procedure. Appellant’s contention number four is essentially the same as his contention number one. The basis of appellant’s contention number five is that while a witness for the prosecution was being examined as to statements made by a co-defendant the testimony of the witness established that in these statements the co-defendant implicated the appellant. At the suggestion of appellant’s counsel the court instructed the jury that the statements were offered only against the co-defendant and were not to be considered as any evidence against appellant. The District Court of Appeal held that the trial court had properly advised the jury of the limitation of the testimony. We agree. In contention number six appellant states that the testimony of an accomplice was not sufficiently corroborated as required by the California Penal Code. The record shows that there was ample corroboration of this accomplice. There was no denial of due process. Cf. Lisenba v. People of State of California, supra. It also may be pointed out that under the federal rule the testimony of an accomplice need not be corroborated. Appellant’s last contention equally has no merit. Witnesses positively identified him as having been the holdup man at the time of the robbery. Due process is denied only when there is a complete lack of evidence, Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. Obviously, there was sufficient evidence in this case to satisfy the due process standard. A consideration of the entire case indicates there was no lack of due process during appellant’s trial and that there was no failure to observe fundamental fairness essential to the very concept of justice. Lisenba v. People of State of California, supra. Judgment affirmed. . No objection or request for admonition was made at this time. Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus? A. no B. yes, state habeas corpus (criminal) C. yes, federal habeas corpus (criminal) D. yes, federal habeas corpus relating to deportation 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 Jessie E. MEIL, Plaintiff-Appellee, v. PIPER AIRCRAFT CORPORATION, Defendant-Appellant. No. 80-1477. United States Court of Appeals, Tenth Circuit. Argued July 16, 1981. Decided Sept. 11, 1981. Gerald Anderson (Ira Watrous of Watrous, Joyce & Ryan, Houston, Tex., and Elizabeth E. Whitefield, Albuquerque, N. M., with him on the brief), for plaintiff-appellee. W. R. Logan, Albuquerque, N. M. (C. LeRoy Hansen, Civerolo, Hansen & Wolf, P. A., Albuquerque, N. M., with him on the briefs), for defendant-appellant. Before LOGAN and BREITENSTEIN, Circuit Judges, and BROWN, United States District Judge for the District of Kansas. Honorable Wesley E. Brown, Senior Judge, United States District Court for the District of Kansas, sitting by designation. BREITENSTEIN, Circuit Judge. This is a product liability case with jurisdiction based on diversity. The plaintiff was injured when the Piper plane, which he was piloting to spray crops, crashed in New Mexico after striking a steel cable static line. The- case was tried on theories of both strict liability and negligence. Judgment of $840,000 was entered on a general jury verdict. The appeal is based on insufficiency of the evidence and alleged improper instructions. We affirm. Crop spraying, or dusting, is the dissemination of chemicals from an airplane flying over fields at low altitudes. It is a dangerous occupation requiring routine precautions. Plaintiff-appellee alleged that defendant-appellant, Piper Aircraft Corp., negligently designed, manufactured, and assembled the aircraft which was unsafe to operate and was not crashworthy. On this appeal Piper does not challenge either the absence of a finding that plaintiff was contributorily negligent or that the proof of damage was insufficient. The crash occurred on July 7, 1976, while plaintiff, an experienced agricultural pilot, was spraying parathion, a liquid insecticide, on cropland. The plane hit and broke a steel static cable which connected poles supporting electrical transmission lines. The contact point between the plane and the cable was a cutter blade attached to a landing gear strut of the plane. The purpose of the cutter blade was to cut wires which might be struck in flight. The cable was broken rather than cut. The plane landed upside down and the plaintiff was suspended by the seat belt. The rescuers were unable to unfasten the seat belt and had to cut it to release the pilot. The engine of the plane caught on fire and the flames went along the fuel lines to the fuel header tank located under the cockpit. The insecticide was released from the fiberglass hopper in which it was carried. The fire extinguisher, which was attached to the frame of the plane, broke loose and could not be operated. The plaintiff was burned and covered with insecticide. He received both orthopedic and burn injuries with respiratory complications. Applicable New Mexico law is controlling. The plaintiff claimed both strict liability and negligence in design, manufacture, assembly, and failure to provide a restraint system which would release the pilot after the crash. On strict liability New Mexico had adopted and applied Restatement, Second, Torts, § 402 A. Stang v. Hertz Corp., 83 N.M. 730, 497 P.2d 732, 734. See also Moomey v. Massey Ferguson, Inc., 10 Cir., 429 F.2d 1184, 1186. Section 402 A imposes liability on the seller of a product “in a defective condition unreasonably dangerous to the user.” We have held that both “defective condition” and “unreasonably dangerous” must be established. Bruce v. Martin-Marietta Corp., 10 Cir., 544 F.2d 442, 447. Piper sold the plane about a year before the crash. No showing is made on non-compliance with federal air safety regulations. Proof of injuries in an airplane crash does not prove, or raise a presumption of, defective design. Id. at 448. The negligence claim is based on the failure to use ordinary care in the design, manufacture and sale of the product. A distinction must be made between the crash and the crashworthiness of the plane to prevent enhancement of the injuries. Plaintiff says that the plane crashed because of the failure of the cutter to sever the static cable. He also says that his injuries were enhanced by the defective seat belt which would not unfasten, the fuel system which permitted the fire to spread, the bursting of the hopper which contained the insecticide, and failure of the support to the fire extinguisher which caused it to be inoperable. Without objection by either party to the form of verdict, the jury returned a general verdict in favor of the plaintiff. We do not know whether the jury was so persuaded by one or all of the plaintiff’s claims. The court denied the defendant’s motion to dismiss on the ground of evidence insufficiency. In the circumstances, we must consider each claim. Piper argues that it was entitled to a directed verdict on the issue of whether defective cutter blades proximately caused the crash. It says that plaintiff was required to, and did not, prove that an alternative safer design was available and should have been used. See Wilson v. Piper Aircraft Corp., 282 Or. 61, 577 P.2d 1322, 1327. Plaintiff counters with the argument that a prima facie case is made by showing a safety defect which failed to meet the reasonable expectations of an ordinary customer. See Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443, 451. New Mexico has not defined the elements for proof of strict liability for design defect and it is uncertain whether New Mexico would require proof that an alternative safer design was available in order to impose liability. Even if it be assumed that New Mexico would require a showing the cutter blades should have been capable of cutting the static cable and permitting the plane to keep on flying, the record satisfies that requirement. An expert metallurgist testified for the plaintiff that cutter blades should have a hardness of 55-65 on the Rockwell scale of C and the blades on the crashed Piper had a hardness of only 20 on that scále. He said that the metal used by Piper was unacceptable as a cutter blade and could not cut the cable which had a hardness of 43 on the C scale. Upon contact the cutter blade would act as an impacting rather than cutting device. This testimony was consistent with that of other witnesses who said that the cable was broken and not cut. The metallurgist also testified to the availability of other harder metals which would have cut through the cable. Pilots of crop spraying planes said that they had struck and severed wires, and continued to fly. Although no pilot testified to hitting a cable similar to that present in this crash, one pilot said that from his experience, which included contact with wires, he would expect a plane outfitted with cutter blades to fly through the cable. Through various experts, none of whom were agricultural pilots, Piper introduced contrary evidence. In ruling on a defense motion for directed verdict, the court is required to make every reasonable inference from the plaintiff’s evidence. See Wylie v. Ford Motor Co., 10 Cir., 502 F.2d 1292, 1294. From the expert testimony on the softness of the Piper cutter blades and the testimony of the agricultural pilots it could be reasonably inferred that the plane would not have crashed had it been equipped with proper cutter blades. Plaintiff’s remaining claims go to the crashworthiness of the plane. To recover on this ground plaintiff must show that the claimed defect enhanced the injuries received from the original crash. Fox v. Ford Motor Co., 10 Cir., 575 F.2d 774, 786-787. Defendant asserts that as to the crashworthy claims plaintiff did not prove alternative safer designs or enhanced injuries. The first claim is based on an alleged defective seat belt. Plaintiff was wearing the seat belt when the plane crashed. When the plane overturned he was suspended upside down. Plaintiff testified that he tried unsuccessfully to undo the seat belt buckle. The rescuer said that he was familiar with seat belt buckles, including the type used on the crashed plane, that he was unable to release the buckle, and finally had to cut the strap with a knife. An aeronautical expert testified that another type of buckle provided more leverage. This evidence plus that of the rescuer sufficed to justify a reasonable inference that the seat belt was defective. The record shows that plaintiff suffered extensive burns while he was trapped by the inoperative seat belt. The enhanced injuries which he received do not have to be quantified. The medical evidence of the extent of the burns was enough. The next claim relates to the fiberglass hopper which contained the insecticide. An aeronautical expert for plaintiff testified that available neopreme and stainless steel tanks would remain intact after the crash. Plaintiff was covered with the released chemical, the toxic nature of which is not contested. Rescuers of plaintiff suffered nausea and breathing problems. The doctor who examined plaintiff when he was brought to the hospital testified to the respiratory problems of plaintiff. The evidence shows an alternative safer design and enhanced injuries and supports the denial of the motion for a directed verdict and the verdict of the jury. The next claim relates to the fuel header tank which was positioned below the feet of the pilot when he was seated in the cockpit. This tank received gasoline from the wing tanks and fed it to the engine. Evidence showed that the fire began in the engine and spread along the fuel line to the header tank. A plaintiffs witness, who was an expert aeronautical engineer, testified that the design was faulty and that another design would have prevented the engine fire from spreading. Enhancement of injuries by severe burns was established. The evidence was sufficient to sustain the actions of both the court and the jury. The first two arrivals at the accident scene were unable to extinguish the engine fire. The plane’s fire extinguisher was held in place by two brackets, one of which broke in the crash, and the extinguisher was thrown loose from the plane. The bracket which broke was of much softer metal than the one which remained intact. The rescuers could not make the extinguisher work and the flames spread. An expert testified that the fire would not have spread if the bracket had not broken and rendered the extinguisher inoperative. The record sustains a finding of both faulty design and enhanced injury. The court instructed the jury on res ipsa loquitur. After defining the phrase the court said: “The plaintiff relies upon this doctrine to prove that the claimed defective conditions of the product existed at the time the product was supplied to the defendant, and that the defective condition was the result of failure to use ordinary care.” Plaintiff’s claims were based on strict tort liability and negligence. The court had previously defined ordinary care. Res ipsa is available in a products case brought under a negligence theory. Tafoya v. Las Cruces Coca-Cola Bottling Co., 59 N.M. 43, 278 P.2d 575, 578. During the pendency of this appeal the New Mexico Supreme Court adopted a jury instruction which said that res ipsa was not applicable when liability is claimed solely on the basis of inadequate warning or design. Even if this instruction should be given retrospective effect, it is not proper in a case such as this where the plaintiff charges negligent manufacture and assembly as well as design flaws. The airplane was in the possession of Piper until sold about a year before the accident. No claim is made of any alteration or change in the plane. The instruction was applicable to the negligence claims and was proper. Affirmed. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_counsel1	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party SHEWMAKER et al. v. CAPITAL TRANSIT CO. No. 8535. United States Court of Appeals District of Columbia. Decided May 29, 1944. Mr. Justin L. Edgerton, of Washington, D. G, for appellants. Mr. H. W. Kelly, of Washington, D. G, with whom Mr. R. E. Lee Goff, of Washington, D. G, was on the brief, for appellee. Mr. S. R. Bowen, of Washington, D. G, also entered an appearance for appellee. Before MILLER, EDGERTON and ARNOLD, Associate Justices. MILLER, Associate Justice. The injuries complained of in this case resulted from a collision between two automobiles. Appellants, as plaintiffs in the trial court, contended that the accident was caused by the negligent operation of a streetcar owned and operated by appellee. The trial court denied motions to direct a verdict, which were made by appellee, first, at the close of appellants’ case and, again, at the close of all the evidence. After the jury had returned a verdict for appellants the court entered judgment for appellee upon a motion to set aside the verdict, made pursuant to Rule 50 of the Federal Rules of Civil Procedure. This appeal is from that judgment. The rule applicable in the District of Columbia on a motion for a directed verdict, in an action founded upon negligence, is that the evidence must be construed most favorably to the plaintiff; to this end he is entitled to the full effect of every legitimate inference therefrom; if upon the evidence, so considered, reasonable men might differ, the case should go to the jury; if, on the other hand, no reasonable man could reach a verdict in favor of the plaintiff, the motion should be granted; a mere scintilla of evidence is not sufficient; the question is not whether there is any evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party upon whom the onus of proof is imposed; the burden being upon the plaintiff to establish the negligence and injury alleged, if the evidence fails adequately to support either element the motion should be granted. The same rule is applicable on a motion to set aside the verdict under Rule 50 of the Federal Rules of Civil Procedure. While a verdict may properly be directed when there is no more than a scintilla of evidence, or none upon which a jury could properly proceed to find a verdict for the party upon whom the onus of proof is imposed, that was not the situation of the present case. The trial judge is to be commended for adopting the practice suggested by Rule 50; thus permitting a full trial and determination of the issues, instead of taking the case from the jury and necessitating, in case of reversal, a second bite or even successive bites at the cherry. However, if the trial judge thereafter enters judgment n. o. v., then, as well as when he directs a verdict, his action must be subjected to the test stated in the preceding paragraph. Unlike the situation which exists when the, judge acts as the trier of facts, the appellate court is required to balance the weight of the evidence against the judge’s determination and in favor of the jury’s determination. The question is, not whether there is sufficient evidence in the record to support the findings and decision of the judge, but whether there is evidence upon which reasonable men might differ as to negligence and other elements of liability; whether a jury of reasonable men could properly reach a verdict in favor of the party upon whom the/ onus of proof is imposed. A careful examination of the record persuades us that the evidence presented questions appropriate for the jury’s determination and that its verdict should stand. Reversed. 28 U.S.C.A. following section 723c. Tobin v. Pennsylvania R. R., 69 App. D.C. 262, 263, 100 F.2d 435, 436; Jackson v. Capital Transit Co., 69 App.D.C. 147, 99 F.2d 380, and eases there cited. Roberts v. Capital Transit Co., 76 U. S.App. 367, 131 F.2d 871. See Pessagno v. Euclid Inv. Co., Inc., 72 App.D.C. 141, 144, 112 F.2d 577, 580; Duncan v. Montgomery Ward & Co., 8 Cir., 108 F.2d 848, 852, modified on another point, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; Jaggers v. Southeastern Greyhound Lines, Inc., 6 Cir., 126 F.2d 762. Pennsylvania R. R. v. Chamberlain, 288 U.S. 333, 343, 53 S.Ct. 391, 77 L.Ed. 819; Jackson v. Capital Transit Co., 69 App.D.C. 147, 148, 99 F.2d 380, 381. Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 253, 61 S.Ct. 189, 85 L.Ed. 147. Munsey v. Webb, 37 App.D.C. 185, 188, affirmed, 231 U.S. 150, 34 S.Ct. 44, 58 L.Ed. 162; LeFoe v. Corby Co., 38 App.D.C. 54; Standard Oil Co. v. Allen, 50 App.D.C. 87, 267 F. 645; Washington, Alexandria & Mt. Vernon Ry. v. Lukens, 32 App.D.C. 442, 454. 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_casetyp1_1-3-2	J	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal - state offense". UNITED STATES of America ex rel. John CUNNINGHAM, Petitioner-Appellant, v. The Hon. Harold W. FOLLETTE, Warden of Green Haven Prison, Stormville, N. Y., Respondent-Appellee. No. 502, Docket 31831. United States Court of Appeals Second Circuit. Argued May 15, 1968. Decided July 2, 1968. Gretchen White Oberman, New York City (Anthony F. Marra, New York City, on the brief), for petitioner-appellant. Brenda Soloff, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., Michael Colodner, Deputy Asst. Atty. Gen., on the brief), for respondent-appellee. Before MOORE, HAYS and FEINBERG, Circuit Judges. FEINBERG, Circuit Judge: Following a- plea of guilty, appellant John Cunningham was convicted in 1964 in Supreme Court, New York County, of felonious possession of narcotics; he received a sentence as a second felony offender of five to eight years. Prior to his plea, Cunningham and his co-defendant, Barbara Davis, had unsuccessfully moved to suppress the narcotics taken from them when they were arrested. On the day of sentencing, Cunningham moved to withdraw his plea of guilty, but the motion was denied and sentence was imposed. After appealing in the state courts, Cunningham filed an application for a writ of habeas corpus in the United States District Court for the Southern District of New York. The writ was denied by Thomas F. Murphy, J., and this appeal followed. For the reasons given below, we affirm. Cunningham argues that the narcotics seized should have been suppressed because his warrantless arrest was without probable cause. The district court did not rule upon the merits of this claim because the judge thought that Cunningham could not raise it in a federal habeas corpus proceeding, in view of his guilty plea. After Cunningham filed his notice of appeal, we decided that procedural point to the contrary. United States ex rel. Rogers v. Warden of Attica State Prison, 381 F.2d 209 (2d Cir. 1967); United States ex rel. Molloy v. Follette, 391 F.2d 231 (2d Cir.), cert, denied, 391 U.S. 917, 88 S.Ct. 1812, 20 L.Ed. 658 (1968). It would be possible, of course, to remand in view of the intervening rulings. However, relator did clearly raise the issue in the district court, and the relevant state court record is available to us. Moreover, in view of the facts as we view them from our examination of that record, we see no justification for requiring relator to press again for a ruling in the first instance by the district court. The testimony given on the state motion to suppress indicated the following, taking into account the state court’s crediting of the prosecution witness: On October 24, 1963, at approximately 12:50 A.M., a confidential informant told Detective Francis Carillo, who had been with the Narcotics Bureau for three years, that two persons were in Sport’s Bar & Grill at 148 Lenox Avenue in Manhattan selling narcotics. The informant identified himself by name, and Carillo recognized his voice. The informant had been reliable on previous occasions; information received from him by Carillo had led to twenty arrests, resulting in twelve convictions, six dismissals, and two cases pending at that time. The informant described the sellers as Negroes, a male named John Cunningham, approximately thirty-five years of age, six feet, 165 pounds, wearing a black, three-quarters length leather jacket and black pants with a brown fedora, and a female, about twenty-five years of age, wearing a tan coat with a fur collar. Carillo, together with two other detectives, immediately proceeded to the bar, which was located approximately eight blocks from the police station. As they entered the bar, Carillo observed a couple sitting at a table, along with some other people, who fitted the informant’s description exactly. At the same time, Cunningham looked in Carillo's direction, immediately removed a brown paper bag from his person and placed it in the handbag of his companion, later identified as Barbara Davis. Carillo approached the couple, identified himself, and told them to accompany him to the rear. After ascertaining that the male was named John Cunningham, he searched Miss Davis’s handbag, removed a brown paper bag, and found it contained 120 glassine envelopes of heroin. Based upon these facts, the state trial court found that the arrest was made upon probable cause and the subsequent search was therefore valid, conclusions with which we agree. This case is similar to United States v. Soyka, 394 F.2d 443 (2d Cir. 1968) (in banc), except that the facts showing probable cause here are in some respects stronger. In Soyka, a reliable informant had furnished the police with a detailed set of facts about the defendant and his narcotics activities which alone might have furnished probable cause for arrest. See Aguilar v. State of Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). But we did not decide that issue in Soyka, because the balance toward probable cause was clearly tipped by the added fact that when Soyka interrupted the “proper reconnaissance” of the agents, he jumped back from a hallway into his apartment. Two judges out of nine dissented in Soyka, because, inter alia, the details given by the informer either did not relate to a current pattern of narcotics activity or were not verified at the time of arrest, the identity of the informer was unknown even to the officers, and, perhaps most important to the dissenters, the arrest was used “to justify the warrant-less search of a dwelling.” 394 F.2d at 454. In this case, to the contrary, the details were verified, they related to a current sale of narcotics, the name of the informant was known by the police, and the crime was allegedly taking place in a public bar, not a private home. In addition, as in Soyka, Cunningham committed an act which corroborated his guilt when he saw three strangers enter the bar; i. e., he immediately placed the brown paper bag in Miss Davis’s handbag. Appellant here, as in Soyka, argues that there was nothing intrinsically suspicious about that, and in the abstract that may be true. But just as words acquire special meaning in context, see United States v. Ramsey, 374 F.2d 192 (2d Cir. 1967) (good “treys”); United States v. Llanes, 357 F.2d 119 (2d Cir. 1966) (“stuff”), so do actions or objects. To an experienced narcotics officer, suddenly handing over a brown paper bag in a bar at 1:00 A.M. when strangers enter might contribute in great measure to a reasonable inference. Cf. United States v. Devenere, 332 F.2d 160, 161 (2d Cir. 1964); United States v. Nicholas, 319 F.2d 697 (2d Cir.), cert, denied, 375 U.S. 933, 84 S.Ct. 337, 11 L. Ed.2d 265 (1963); United States ex rel. Robinson v. Fay, 239 F.Supp. 132 (S.D. N.Y.1965), aff’d in open court (2d Cir. July 26, 1965), cert, denied, 382 U.S. 998, 86 S.Ct. 587, 15 L.Ed.2d 485 (1966). We have no doubt that, as in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), the detectives could reasonably act at that moment on the information that the “suspect would commit a crime in a public place where in fact he later appeared.” United States v. Soyka, 394 F.2d at 454. See also United States v. Robinson, 354 F.2d 109, 110-112 (2d Cir. 1965) (in banc), cert, denied, 384 U.S. 1024, 86 S. Ct. 1965, 16 L.Ed.2d 1028 (1966). Relator also argues that he was entitled to a hearing on the claim that his plea of guilty was involuntary. The principal bases for the assertion of involuntariness are that an assistant district attorney had said that if Cunningham wanted to take Miss Davis “off the hook” he would have to “take a plea,” and that Cunningham was under the influence of narcotics at the time of the guilty plea. We have examined the available record of the proceedings in the state court on May 11, 1964, when Cunningham pleaded guilty, and on June 16, 1964, when he attempted to withdraw his plea. Cunningham admitted that the alleged remark of the prosecutor was not made to him; he also disclaimed any promise from the court, but pointed to the “pressure” of the indictment, undeniably present but hardly improper. The transcript shows that the state judge carefully questioned appellant when he took the guilty plea; it also reflects Cunningham’s apparent misapprehension, when he attempted to withdraw his plea, that just because he had handed the paper bag to Miss Davis, he did not have possession of the narcotics. It may be that Cunningham was also influenced by a desire to help Miss Davis. But that would not invalidate the plea in a case in which he was represented by competent counsel, the plea was voluntarily made with no inducement by the court or the prosecutor and the state was- ready to go ahead at the time of the plea, as was the case here. United States ex rel. Robinson v. Fay, 348 F.2d 705 (2d Cir. 1965), cert, denied, 382 U.S. 997, 86 S.Ct. 583, 15 L. Ed.2d 484 (1966). See also Kent v. United States, 272 F.2d 795 (1st Cir. 1959). We agree with Judge Murphy that no hearing was required on this aspect of the application for the writ. Finally, the assertion that Cunningham was under the influence of narcotics at the time of the guilty plea has never been raised in the state courts, as Judge Murphy held. Therefore, that claim is not exhausted and was properly dismissed, without prejudice to renewal in the district court, should the state courts deny relief. United States ex rel. Tangredi v. Wallack, 343 F.2d 752 (2d Cir. 1965). Judgment affirmed. . Cunningham appealed to the Appellate Division, which affirmed the conviction without opinion. People v. Cunningham, 25 A.D.2d 819, 269 N.Y.S.2d 945 (1966); leave to appeal to the New York Court of Appeals was denied. . United States ex rel. Cunningham v. Follette, No. 66 Civ. 2428 (S.D.N.Y. Oct. 18, 1966). Thereafter, the judge granted relator leave to appeal in forma pauperis and assigned counsel. . We note that appellant’s able counsel apparently seeks a ruling from us on the merits on this issue. . See People v. Cunningham, No. 4376/1963 (N.Y.Sup.Ct. April 27, 1964). . Id. at 4. Question: What is the specific issue in the case within the general category of "criminal - state offense"? A. murder B. rape C. arson D. aggravated assault E. robbery F. burglary G. auto theft H. larceny (over $50) I. other violent crimes J. narcotics K. alcohol related crimes, prohibition L. tax fraud M. firearm violations N. morals charges (e.g., gambling, prostitution, obscenity) O. criminal violations of government regulations of business P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery) Q. other state crimes R. state offense, but specific crime not ascertained Answer:
sc_issue_2	20	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. ATKINS, COMMISSIONER, MASSACHUSETTS DEPARTMENT OF PUBLIC WELFARE v. RIVERA et al. No. 85-632. Argued April 21, 1986 Decided June 23, 1986 Blackmun, J., delivered the opinion for a unanimous Court. H. Reed Witherby, Assistant Attorney General of Massachusetts, argued the cause for petitioner. With him on the briefs was Francis X. Bellotti, Attorney General. Jerrold J. Ganzfried argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Getter, John F. Cordes, and Nicholas S. Zeppos. Rene H. Reixach, Jr., argued the cause for respondents and filed a brief for respondent McKenna. Robert Abrams, Attorney General, Robert Hermann, Solicitor General, Peter H. Schiff, Deputy Solicitor General, and Alan W. Rubenstein, Assistant Attorney General, filed a brief for the State of New York as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the Gray Panthers Advocacy Committee et al. by Roger A. Schwartz and Gill Deford; and for Susan Reed et al. by Evelyn R. Frank. Justice Blackmun delivered the opinion of the Court. This case concerns the means by which a State may calculate eligibility for medical-assistance benefits (Medicaid) under Title XIX of the Social Security Act. In Massachusetts, persons who lack sufficient income, measured on a monthly basis, to meet their basic needs automatically qualify for Medicaid. The Commonwealth, however, also provides Medicaid benefits to persons, like respondents, who earn enough to meet their basic needs, but whose medical expenses within a 6-month period consume the amount by which their earnings exceed what is required for basic needs. Construing the Act’s requirement that assistance for the two groups be calculated using the "same methodology,” the Massachusetts Supreme Judicial Court held invalid the Commonwealth’s use of a 6-month period for measuring medical expenses. The court ruled that inasmuch as a 1-month period is used to measure the income of those with insufficient means, an identical period must be used to measure medical expenses for persons like respondents. Because this holding conflicts with rulings of two Federal Courts of Appeals, we granted certiorari. 474 U. S. 1018 (1985). I Medicaid, enacted in 1965 as Title XIX of the Social Security Act, 79 Stat. 343, as amended, 42 U. S. C. § 1396 et seq. (1982 ed. and Supp. II), is designed to provide medical assistance to persons whose income and resources are insufficient to meet the costs of necessary care and services. See Schweiker v. Hogan, 457 U. S. 569, 571 (1982). The Federal Government shares the costs of Medicaid with States that elect to participate in the program. In return, participating States are to comply with requirements imposed by the Act and by the Secretary of Health and Human Services. See 42 U. S. C. § 1396a (1982 ed. and Supp. II); Schweiker v. Gray Panthers, 453 U. S. 34, 36-37 (1981). States participating in the Medicaid program must provide coverage to the “categorically needy.” 42 U. S. C. § 1396a(a)(10)(A) (1982 ed. and Supp. II). These are persons eligible for cash assistance under either of two programs: Supplemental Security Income for the Aged, Blind, and Disabled (SSI), 42 U. S. C. § 1381 et seq. (1982 ed. and Supp. II), or Aid to Families with Dependent Children (AFDC), 42 U. S. C. §601 et seq. (1982 ed. and Supp. II). Congress considered these persons “especially deserving of public assistance” for medical expenses, see Gray Panthers, 453 U. S., at 37, because one is eligible for AFDC or SSI only if, in a given month, he or she earns less than what has been determined to be required for the basic necessities of life. AFDC and SSI assistance are intended to cover basic necessities, but not medical expenses. Thus, if a person in this category also incurs medical expenses during that month, payment of those expenses would consume funds required for basic necessities. A participating State also may elect to provide medical benefits to the “medically needy,” that is, persons who meet the nonfinancial eligibility requirements for cash assistance under AFDC or SSI, but whose income or resources exceed the financial eligibility standards of those programs. See Schweiker v. Hogan, 457 U. S., at 581-582. Under 42 U. S. C. § 1396a(a)(17), the medically needy may qualify for financial assistance for medical expenses if they incur such expenses in an amount that effectively reduces their income to the eligibility level. Only when they “spend down” the amount by which their income exceeds that level, are they in roughly the same position as persons eligible for AFDC or SSI: any further expenditures for medical expenses then would have to come from funds required for basic necessities. In creating the spenddown mechanism. of 42 U. S. C. § 1396a(a)(17) (1982 ed. and Supp. II), Congress provided that a State is to take into account, “except to the extent prescribed by the Secretary, the costs . . . incurred for medical care.” Pursuant to this statute, the Secretary of Health and Human Services has instructed state agencies to “use a prospective period of not more than 6 months to compute income” of the medically needy. 42 CFR §435.831 (1985). A State electing to assist the medically needy must determine eligibility under standards that are “reasonable” and “comparable for all groups.” 42 U. S. C. § 1396a(a)(17). In addition, and significantly for present purposes, state plans for Medicaid must describe “the single standard to be employed in determining income and resource eligibility for all such groups, and the methodology to be employed in determining such eligibility which shall be the same methodology which would be employed under [AFDC or SSI].” 42 U. S. C. § 1396a(a)(10)(C)(i)(III) (emphasis added). I — I I — I Respondent Rivera is employed outside her home and is the mother of two children. She receives no medical benefits from her job, and earns an amount slightly in excess of that which would permit her to qualify for AFDC. In 1983, Rivera applied to the Massachusetts Department of Public Welfare for Medicaid. Massachusetts has chosen to participate in the Medicaid program, Mass. Gen. Laws § 118E:1 et seq. (1984), and also to provide coverage to medically needy persons. To determine Rivera’s eligibility for Medicaid, the Department first calculated her gross monthly income. See 106 Code of Mass. Regs. (CMR) §§505.200, 505.210, 505.320 (1985). Next, the Department prescribed certain deductions and disregards to arrive at her monthly “countable income” of $535.30. See 106 CMR §§505.200 and 506.100-506.200 (1985). See also 42 CFR § 435.831(a) (1985). Rivera’s monthly countable income exceeded the Medicaid eligibility limit by $100.30. See 106 CMR §506.400 (1985). See also 42 U. S. C. §§ 1382(c)(1) and 602(a)(13) (1982 ed. and Supp. II). As a result, she did not qualify for Medicaid at that time. She would be able to qualify at a later date, provided her excess income was subject to being consumed or spent down by medical expenses. Massachusetts has adopted a 6-month period over which the spenddown is calculated. Mass. Gen. Laws §118E:10 (1984); 106 CMR §§506.400 and 506.510 (1985). This is the maximum permitted under the federal regulations. See 42 CFR §435.831 (1985). Accordingly, the Department multiplied Rivera’s excess $100.30 by six; she thus could receive Medicaid during the 6-month period beginning with the date of her first medical service only after she spent down $601.80 on medical expenses. The Department’s decision denying assistance was upheld by the Welfare Appeals Referee. App. to Pet. for Cert. A46. Rivera then sought injunctive relief in State Superior Court against use of the 6-month period. She argued that the 6-month period for calculating the income of medically needy applicants violates the “same methodology” requirement of 42 U. S. C. §§ 1396a(a)(10)(C)(i)(III) and 1396a(a)(17) (1982 ed. and Supp. II), because the Act mandates that AFDC and SSI determinations be calculated on the basis of income earned in a 1-month period. The use of the shorter period would have permitted Rivera to receive Medicaid after incurring only $100.30 in medical expenses. The court certified a class of all persons who have been, are being, or will be subjected to the Department’s 6-month spenddown requirement. On a motion for summary judgment, the court found that the Department’s use of the 6-month spenddown period violated the statutory requirement that the “same methodology” be used for determining eligibility of the medically needy as is used for the categorically needy. App. to Pet. for Cert. A28. The Department appealed to the Massachusetts Supreme Judicial Court. It argued there that, since the eligibility determination for the categorically needy does not involve a spenddown at all, there is no methodology for the Department to match. The Department further argued that federal regulations explicitly allow a 6-month period. The Supreme Judicial Court, by a unanimous panel vote, held that the Massachusetts requirement for a 6-month spenddown period was invalid. Rivera v. Commissioner of Public Welfare, 395 Mass. 189, 479 N. E. 2d 639 (1985). It relied in part, id., at 197, 479 N. E. 2d, at 644-645, on a ruling by the United States District Court for the District of Massachusetts sustaining an identical challenge to the Department’s 6-month spenddown regulation. See Hogan v. Heckler, 597 F. Supp. 1106, 1110-1113 (1984), subsequently reversed, 769 F. 2d 886 (CA1 1985), cert. pending sub nom. Hogan v. Bowen, No. 85-6386. Although noting that eligibility determinations for the categorically needy do not involve spenddowns, the court observed that such determinations do require the use of a 1-month computation period. Therefore, it concluded, in providing that the “same methodology” be employed, the Act requires that a 1-month period be applied in eligibility calculations for the medically needy. I — I >■ — I l-H Congress created the spenddown provision in 1965 to eliminate a perceived weakness in the medical-assistance program then in effect. See Social Security Amendments of 1960, § 601(a), 74 Stat. 987. A 1965 Senate Report explained that under existing law some States used an absolute-income cutoff point. An individual with income just under the specified limit thus was able to obtain all the aid provided under the state plan, while one with income just over the limit was unable to obtain any assistance, even if the excess income was small when compared with the cost of the medical care needed. See S. Rep. No. 404, 89th Cong., 1st Sess., pt. 1, p. 78 (1965). To cure this problem, the Medicaid statute was amended to require state eligibility standards to measure income in terms of both the State’s allowance for basic maintenance needs and the cost of the medical care required. The standards applied to the medically needy are to be “reasonable” and “comparable for all groups.” Congress imposed no further instruction on the spenddown, stating only that a State is to take into account the costs incurred for medical care, “except to the extent prescribed by the Secretary.” 42 U. S. C. § 1396a(a)(17). Pursuant to this authority, the Secretary has provided, from the inception of Medicaid until the present time, that States may employ a maximum spenddown period of six months. See 45 CFR § 248.21(a)(4) (1970), originally promulgated as HEW Handbook of Public Assistance Administration, Supplement D, Medical Assistance Programs, D-4220(A)(4) (June 17, 1966). This regulation plainly permits what Massachusetts has done. We long have recognized that, perhaps due to the intricacy of the Act, “Congress conferred on the Secretary exceptionally broad authority to prescribe standards for applying certain sections of the Act.” Gray Panthers, 453 U. S., at 43. See Batterton v. Francis, 432 U. S. 416, 425 (1977). The broad delegation to the Secretary in the spenddown provision includes the authority to provide the period in which the spenddown is to be calculated. Because the Secretary’s regulation appears supported by the plain language of the statute and is adopted pursuant to the explicit grant of rulemaking authority in § 1396a(a)(17), it is “‘entitled to more than mere deference or weight.’” Gray Panthers, 453 U. S., at 44, quoting Batterton v. Francis, 432 U. S., at 426. Indeed, it is entitled to “legislative effect,” id., at 425, and is controlling “unless [it is] arbitrary, capricious, or manifestly contrary to the statute,” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984). IV A Respondents contend that the Secretary’s regulation, and Massachusetts’ 6-month spenddown enacted pursuant thereto, are “manifestly contrary to the statute.” Respondents point to another section of the Act, 42 U. S. C. § 1396a(a)(10)(C) (i)(III), requiring that a State’s plan describe “the single standard to be employed in determining income . . . eligibility .. . and the methodology to be employed in determining such eligibility, which shall be the same methodology” employed under SSI or AFDC. To respondents, this statutory language is an express congressional mandate that the same methodology, here the 1-month budget period, be applied to eligibility determinations for the medically needy. This requirement, the argument goes, operates as an express limitation on the Secretary’s authority to regulate the state administration of spenddowns. Similarly, it is a direct restriction on the States, requiring them to use a 1-month period in which the medically needy must spend down, on medical expenses, their excess income. B The history of the “same methodology” proviso, which first appeared in the Act in 1981, demonstrates that it was never intended to control the length of the spenddown. Rather, the “same methodology” requirement simply instructs States to treat components of income — e. g., interest or court-ordered support payments — similarly for both medically and categorically needy persons. The “same methodology” proviso was not Congress’ first attempt to regulate the relationship between treatment of the categorically needy and treatment of the medically needy. To understand the precise purpose of the “same methodology” proviso requires a brief foray into Congress’ earlier efforts to address this relationship, for the proviso reflects Congress’ desire to overrule a particular interpretation that had been advanced by the Secretary. When Medicaid was first enacted, Congress did not require that the “same methodology” be used for determining the eligibility of categorically and medically needy individuals. Instead, it required only that a State’s Medicaid plan use “comparable” standards for both groups. The Secretary and several Courts of Appeals interpreted the original “comparability” language to require virtually identical treatment. See, e. g., 38 Fed. Reg. 32216 (1973), originally codified as 45 CFR §248.2; Caldwell v. Blum, 621 F. 2d 491, 495 (CA2 1980), cert. denied, 452 U. S. 909 (1981); Greklek v. Toia, 565 F. 2d 1259, 1261 (CA2 1977), cert. denied sub nom. Blum v. Toomey, 436 U. S. 962 (1978); Fabula v. Buck, 598 F. 2d 869, 872-873 (CA4 1979). Notably, no one advanced the claim that this “comparability” language prevented States from using a spenddown period of up to six months. Congress concluded that the administrative and judicial interpretation of the “comparability” provision denied States necessary flexibility to set eligibility standards and to adjust the scope of services to fit the varying requirements of medically needy persons. See H. R. Rep. No. 97-208, p. 971 (1981). Thus, as part of the Omnibus Budget Reconciliation Act of 1981 (OBRA), 95 Stat. 357, Congress amended the Medicaid Act by deleting the “comparability” requirement. After the amendment, a State was required only to include in its plan for the medically needy “a description of . . . the criteria for determining eligibility of individuals ... for medical assistance.” OBRA §2171(a)(3)(C)(i), 95 Stat. 807. The Secretary interpreted OBRA to authorize States to use income and resource criteria for medically needy different from those for categorically needy individuals: “States are no longer required to apply a uniform methodology for treating income and resources in such matters as deemed income, interest, court-ordered support payments, and infrequent and irregular income. Rather, the State plan must specify the methodology that will be used, and that methodology must be reasonable.” 46 Fed. Reg. 47980 (1981). The regulations promulgated by the Secretary accordingly left the States free to use eligibility standards that were unrelated to the standards used in AFDC or SSI, as long as the standards were “reasonable.” The Secretary’s regulations did not address treatment of excess income for the medically needy or the calculation of spenddowns. Despite the various changes that followed OBRA’s passage, many States continued to use a 6-month spenddown, in conformity with the still-existing regulation permitting that choice. Congress disagreed with the Secretary’s interpretation. See, e. g., 127 Cong. Rec. 23363 (1981) (remarks of Rep. Wax-man). This disagreement led to the enactment of the “same methodology” proviso, as part of the Tax Equity and. Fiscal Responsibility Act of 1982 (TEFRA), § 137(a)(8), 96 Stat. 378. The House Report explained that TEFRA “makes clear that the Department [of Health and Human Services] had no authority to alter the rules that applied before September 30, 1981, with respect to medically needy income levels, medically needy resource standards, and the methodology for treating medically needy income and resources.” H. R. Rep. No. 97-757, pt. 1, p. 13 (1982). The House Report further explained that TEFRA reaffirmed “the financial requirements previously in effect for the medically needy.” Ibid. Thus, the “same methodology” proviso was designed to correct a problem wholly unrelated to the 6-month spend-down, which had remained in force from the inception of Medicaid. The proviso operated solely to invalidate the post-OBRA regulations permitting the income and resource standards in state Medicaid plans to deviate from those used in the AFDC and SSI programs in “such matters as deemed income, interest, court-ordered support payments, and infrequent and irregular income.” See 46 Fed. Reg. 47980 (1981). Treatment of excess income and the calculation of spenddowns were left untouched by the “same methodology” proviso. V The Medicaid Act itself is silent as to how-many months’ excess income the State may require an individual or a family to contribute to medical expenses before Medicaid coverage of further medical expenses begins. The Secretary’s interpretation of the Act is consistent with congressional intent, and under that interpretation Massachusetts is free to choose a 6-month spenddown. Accordingly, the judgment of the Supreme Judicial Court is reversed. It is so ordered. See Hogan v. Heckler, 769 F. 2d 886 (CA1 1985), cert. pending sub nom. Hogan v. Bowen, No. 85-6386 (construing Massachusetts provision); DeJesus v. Perales, 770 F. 2d 316 (CA2 1985), cert. pending, No. 85-6337 (construing identical New York provision). Congress created SSI in 1972, 86 Stat. 1465, to replace three existing categorical assistance programs — Old Age Assistance, 42 U. S. C. § 301 et seq. (1970 ed.); Aid to the Blind, 42 U. S. C. § 1201 et seq. (1970 ed.); and Aid to the Permanently and Totally Disabled, 42 U. S. C. § 1351 et seq. (1970 ed.). These programs, together with AFDC, previously had been state administered with state-eligibility standards. See Schweiker v. Hogan, 457 U. S. 569, 581-582, n. 18 (1982). In Massachusetts, the income eligibility level for the medically needy is comparable in most, but not all, instances to the corresponding SSI or AFDC standard of need. The maximum income eligibility limits for some medically needy applicants are, in the ease of small families (one to three persons), higher than those used for AFDC coverage. See 106 Code of Mass. Regs. §§ 506.410 and 304.410 (1985). This results in some medically needy families in Massachusetts qualifying for Medicaid without use of a spenddown. In administrative and state-court proceedings, Rivera raised a challenge to the manner in which certain portions of her income were disregarded. That issue, however, is not presently before this Court. The spenddown may be satisfied by submission of paid or unpaid medical bills. 106 CMR § 506.540 (1985). Respondent Madeline McKenna was permitted to intervene in the Superior Court proceedings. McKenna, like Rivera, was denied Medicaid. McKenna’s monthly countable income was calculated to be $531.66, which is $106.66 in excess of the $425 eligibility standard for a family of two. Thus, McKenna could receive medical assistance only after incurring medical expenses of $639.96 in a 6-month period. The 1965 legislation was to the effect that a State choosing to extend assistance to the medically needy provide “for making medical or remedial care and services available to all individuals who would, if needy, be eligible for aid or assistance under any. . . State [cash assistance program] and who have insufficient (as determined in accordance with comparable standards) income and resources to meet the costs of necessary medical or remedial care and services.” 79 Stat. 345. The current version of the Act also contains a “comparability” requirement. See § 42 U. S. C. § 1396a(a)(17). Although the Supreme Judicial Court did not rely on “comparability” in arriving at its result, we note that that requirement did not mandate the use of a 1-month spenddown. The very purpose of § 1396a(a)(17) is to regulate the standards under which persons having incomes higher than allowed in the cash-assistance programs may still qualify for Medicaid; therefore, “comparability” cannot be read to require that the standards must be identical with those in the cash-assistance programs. Because the medically and categorically needy are different in a fundamental way, this Court previously has recognized that the comparability provisions of Medicaid “did not require that the medically needy be treated comparably to the categorically needy in all respects.” Schweiker v. Hogan, 457 U. S. 569, 587 (1982). See DeJesus v. Perales, 770 F. 2d, at 323-324; Hogan v. Heckler, 769 F. 2d, at 891-897. The Secretary further explained: “Before the 1981 Amendments, the methodology for treatment of income and resources of the medically needy depended on the individual’s relationship to a specific cash assistance program. For example, the methodology for deeming the income of medically needy aged, blind, and disabled was taken from the SSI program. . . . [T]he 1981 Amendments revised the Medicaid statute so that the direct linkage between the cash assistance programs and the medically needy is no longer explicit. . . . Therefore, we have concluded that the State need not adopt the methodology of a related cash assistance program in treating income and resources of the medically needy. Rather, the State may develop its own. However, section 1902(a)(17)(C) of the Act has not been amended. Consequently, these final regulations require that the State must use a methodology for the treatment of income and resources that is reasonable.” 46 Fed. Reg. 47980 (1981). Subsequent legislative history is to the same effect and makes clear that TEFRA did not address the length of the spenddown. In the Deficit Reduction Act of 1984, § 2373(c)(1), 98 Stat. 1112, Congress amended § 1396a(a)(17) to impose a moratorium on disapproving state Medicaid plans that might be inconsistent with the “same methodology” requirement. In doing so, Congress reaffirmed that its sole intent in enacting the “same methodology” requirement had been to invalidate the Secretary’s 1981 regulations. See H. R. Rep. No. 98-861, pp.’ 1366-1367 (1984). Question: What is the issue of the decision? 01. voting 02. Voting Rights Act of 1965, plus amendments 03. ballot access (of candidates and political parties) 04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action) 05. desegregation, schools 06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions. 07. affirmative action 08. slavery or indenture 09. sit-in demonstrations (protests against racial discrimination in places of public accommodation) 10. reapportionment: other than plans governed by the Voting Rights Act 11. debtors' rights 12. deportation (cf. immigration and naturalization) 13. employability of aliens (cf. immigration and naturalization) 14. sex discrimination (excluding sex discrimination in employment) 15. sex discrimination in employment (cf. sex discrimination) 16. Indians (other than pertains to state jurisdiction over) 17. Indians, state jurisdiction over 18. juveniles (cf. rights of illegitimates) 19. poverty law, constitutional 20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision. 21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits 22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes 23. residency requirements: durational, plus discrimination against nonresidents 24. military: draftee, or person subject to induction 25. military: active duty 26. military: veteran 27. immigration and naturalization: permanent residence 28. immigration and naturalization: citizenship 29. immigration and naturalization: loss of citizenship, denaturalization 30. immigration and naturalization: access to public education 31. immigration and naturalization: welfare benefits 32. immigration and naturalization: miscellaneous 33. indigents: appointment of counsel (cf. right to counsel) 34. indigents: inadequate representation by counsel (cf. right to counsel) 35. indigents: payment of fine 36. indigents: costs or filing fees 37. indigents: U.S. Supreme Court docketing fee 38. indigents: transcript 39. indigents: assistance of psychiatrist 40. indigents: miscellaneous 41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty) 42. miscellaneous civil rights (cf. comity: civil rights) Answer:
songer_suffic	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" 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". In re MULTIDISTRICT VEHICLE AIR POLLUTION M.D.L. NO. 31. STATE of CALIFORNIA et al., Appellees, v. AUTOMOBILE MANUFACTURERS ASSOCIATION, INC., et al., Appellants. Robert MORGAN, Appellee, v. AUTOMOBILE MANUFACTURERS ASSOCIATION, INC., et al., Appellants. CITY OF PHILADELPHIA et al., Appellees, v. AUTOMOBILE MANUFACTURERS ASSOCIATION, INC., et al., Appellants. STATE of NEW YORK, Appellee, v. AUTOMOBILE MANUFACTURERS ASSOCIATION, INC., et al., Appellants. CITY OF NEW YORK et al., Appellees, v. AUTOMOBILE MANUFACTURERS ASSOCIATION, INC., et al., Appellants. CITY AND COUNTY OF DENVER, Appellees, v. AMERICAN MOTORS CORPORATION et al., Appellants. No. 71-1241. United States Court of Appeals, Ninth Circuit. June 4, 1973. See also, D.C., 52 F.R.D. 398. Robert L. Stern (argued), of Mayer, Brown & Platt, Chicago, 111., Lloyd N. Cutler (argued), of Wilmer, Cutler & Pickering, Washington, D. C., Walter J. Williams, Detroit, Mich., Forrest A. Hainline, Jr., of Cross, Wrock, Miller & Vieson, Ross L. Malone, Robert A. Nitsehke, of General Motors, Detroit, Mich., Richard C. Warmer, of O’Melveny & Myers, Julian O. Von Kalinowski, of Gibson, Dunn,-& Crutcher, G. William Shea, Philip K. Verleger, Jack D. Fudge, David A. Destino, of McCutchen, Black, Verleger & Shea, Carl J. Schuck, of Overton, Lyman & Prince, Marcus Matt-son, of Lawler, Felix & Hall, Carla H. Hills, Atty., of Munger, Tolies, Hills & Rickershauser, Harvey M. Grossman, of Pacht, Ross, Warne, Bernhard & Sears, Los Angeles, Cal., Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, 111., Alan N. Halkett, of Latham & Watkins, Los Angeles, Cal., John H. Schafer, III, of Covington & Burling, Washington, D. C., for appellants. David Berger (argued), Philadelphia, Pa., George C. Mantzoros, Asst. Atty. Gen. (argued), New York City, David I. Shapiro (argued), of Dickstein, Shapiro & Galligan, Washington, D. C., Evelle J. Younger, Atty. Gen., Los Angeles, Cal., Ronald Bloomfield, Atty. Gen., New York City, Anthony C. Joseph, Herbert Davis, Ellen Friedman, Deputy Attys. Gen., Los Angeles, Cal., Edward G. Bauer, Jr., City Sol., Philadelphia, Pa., Max P. Zall, City Atty., Denver, Colo., J. Lee Rankin, Corp. Counsel for the City of New York, Norman Redlich, First Asst. Corp. Counsel, New York City, Harold E. Kohn, Bruce W. Kauffman, Edward F. Mannino, John M. Elliott, of Dilworth, Paxson, Kalish, Levy & Coleman, Herbert B. Newberg, H. Laddie Montague, Jr., Philadelphia, Pa., Perry Goldberg, Chicago, 111., Leo T. Zuckerman, Denver, Colo., Jerome S. Wagshal, of Dickstein, Shapiro & Galligan, George Kauffman, Washington, D. C., for appellees. Before HAMLIN, BROWNING and ELY, Circuit Judges. OPINION ELY, Circuit Judge: This certified interlocutory appeal under 28 U.S.C. § 1292(b) arises from pretrial proceedings in Multidistrict Air Pollution Control Litigation (C.D.Cal. M.D.L. 31), which is a consolidation of numerous actions under 28 U. S.C. § 1407. In re Motor Vehicle Air Pollution Control Equipment, 311 F. Supp. 1349 (Jud. Panel Mult. Lit. 1970.) Since this appeal is from denial of motions to dismiss, factual allegations are east most favorably to the appellees. See Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L.Ed.2d 80 (1957). As early as 1953, the nation’s automobile manufacturers and their trade association allegedly conspired to eliminate competition among themselves in the research, development, manufacture, installation and patenting of automotive air pollution control devices. Appellees urge that this horizontal antitrust conspiracy was motivated: (1) by appellants’ conviction that antipollution devices are externalities, whose development would increase price without concomitant spur to consumer interest; (2) by the apprehension that the first competitor to perfect such a device would garner exclusive contracts with governmental purchasers; and (3) by the fear that technological realization of the devices would prompt laws compelling their use. Appellees argue that this conspiracy inflicted financial losses that would not have occurred but for the conspiracy-induced absence of antipollution equipment. Governmental entity appellees claim losses resulting from diminution in value of, and expenditures in connection with, government property and interests. Crop farmer appellees assert direct damage to crop yields. Variously proceeding in their individual capacities, as parens patriae and as class representatives, all appellees seek treble damages and equitable relief under sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 26. On appeal, appellants challenge the District Court’s rulings that appellees have standing to sue under sections 4 and 16 of the Clayton Act, that certain appellees may proceed as parens patriae, and that others may proceed as class representatives under Fed.R.Civ.P. 23. 1. STANDING UNDER SECTION 4 Appellees ground their claims for treble damages on section 4 of the Clayton Act, 15 U.S.C. § 15, which reads: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit including a reasonable attorney’s fee.” Read literally, this statute could afford relief to all persons whose injuries are causally related to an antitrust violation. Recognizing the nearly limitless possibilities of such an interpretation, however, the judiciary quickly brushed aside this construction. Instead, a measured approach has prevailed; ¿ourts have impressed a standing doctrine so as to confine the availability of section 4 relief only to those individuals whose protection is the fundamental purpose of the antitrust laws. Cf. Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Association of Data Processing v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Mount Clemens Industries, Inc. v. Bell, 464 F.2d 339, 341-344 (9th Cir. 1972). Unfortunately, no “bright line” has yet emerged to divine this group, and courts have formulated varied definitions. In this case, however, the District Court declined to apply any of the extant definitions, choosing instead to expand the coverage of section 4: “We are now concerned with the phrase ‘injured in his business or property by reason of anything forbidden in the antitrust laws’ in the light of the allegations of these complaints, rather than the traditional, legalistic approach defined by the eases cited by defendants in their motion to dismiss. Each of the plaintiffs allege injury to their respective business or property by reason of anti-trust violations of the defendants. “Plaintiffs may fail in their proof, but until then, they should be given the benefit of employing ‘any available remedy to make good the wrong done.’ ” [footnote citing J. I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S. Ct. 1555, 12 L.Ed.2d 423 (1964); Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946)]. 52 F.R.D. 398, 401 (C.D.Cal.1970). In the aftermath of the Supreme Court’s recent decision in Hawaii v. Standard Oil Co., 405 U.S. 251, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972), however, we cannot so easily disregard the so-called “traditional, legalistic approach” of the cases. Judicial constructions of standing under section 4 have keyed on the phrases “business or property” and “by reason of” as indicating twin requisites for standing. First, a plaintiff must allege injury to his “business or property”, a term definitively limited to interests in commercial ventures or enterprises : “the words ‘business or property’... refer to commercial interests or enterprises.” Hawaii, supra at 264, 92 S.Ct. at 892. See Control Data Corp. v. IBM, 306 F.Supp. 839, 845 (D.Minn.1969) (corporate plaintiff not in legal existence at time of antitrust violation is without commercial injury). Secondly, a plaintiff must allege that the injury suffered was occasioned “by reason of” an antitrust violation. Hawaii, supra at 263-264 n.14, 92 S.Ct. 885. Applying the first predicate, since neither the government’s individual claims, nor their class claims, nor their parens patriae claims allege any injury to commercial ventures or enterprises, the governmental entities cannot seek recovery under section 4 of the Clayton Act. In contrast, the farmers satisfy the first requisite, since a diminished crop yield, for example, would constitute injury to commercial interests. Application of the second prong of the standing formulation is more difficult since “by reason of” has consistently eluded efforts at uniform definition or application. Compare, e. g., Mulvey v. Samuel Goldwyn Productions, 433 F.2d 1073 (9th Cir. 1970) with, Fields Productions, Inc. v. United Artists Corp., 432 F.2d 1010 (2d Cir. 1970), aff’g, per curiam 318 F.Supp. 87 (S.D.N.Y.1969), cert. denied, 401 U.S. 949, 91 S.Ct. 932, 28 L.Ed.2d 232 (1971); and compare Steiner v. 20th Century-Fox Film Corp., 232 F.2d 190 (9th Cir. 1956) and Congress Building Corp. v. Loew’s, Inc., 246 F.2d 587 (7th Cir. 1957) with Melrose Realty Co. v. Loew’s, Inc., 234 F.2d 518 (3d Cir.), cert. denied, 352 U.S. 890, 77 S.Ct. 128, 1 L.Ed.2d 85 (1956) and Harrison v. Paramount Pictures, Inc., 115 F. Supp. 312 (E.D.Pa.1953), aff’d, 211 F.2d 405 (3 Cir.), cert. denied, 348 U.S. 828, 75 S.Ct. 45, 99 L.Ed. 653 (1954); and compare Volasco Products Co. v. Lloyd A. Fry Roofing Co., 308 F.2d 383 (6th Cir. 1962), cert. denied, 372 U.S. 907, 83 S.Ct. 721, 9 L.Ed.2d 717 (1963) with South Carolina Council of Milk Producers, Inc. v. Newton, 360 F.2d 414 (9th Cir.), cert. denied, 385 U.S. 934, 87 S.Ct. 295, 17 L.Ed.2d 215 (1966). The resulting confusion prompted speculation that the Supreme. Court would disapprove judicial application of “by reáson of” to limit potential antitrust claimants. In Hawaii, however, the Court appeared to approve the standing doctrine to require more from a would-be plaintiff than some remote connection in the causal chain. “The lower courts have been virtually unanimous in concluding that Congress did not intend the antitrust laws to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation.” 405 U.S. at 263 n.14, 92 S.Ct. at 891-892. Although the Court cited cases in support from every circuit, it failed to distinguish essentially two disparate analytical techniques — the “direct injury” and the “target area approaches— employed by different circuits. Courts adhering to the “direct injury” test focus principally on the relationship between the alleged antitrust violator and the claimant. Generally, if the claimant is separated from the violator by an intermediate antitrust victim, standing is denied by attaching conclusory labels such as “remote”, “indirect”, and “consequential”. Resurrecting notions of privity, this test thus arbitrarily forecloses otherwise meritorious claims simply because another antitrust victim interfaces the relationship between the claimant and the alleged violator. Moreover, the “direct injury” requirement has engendered among some adherents a regrettable tendency to deny standing to any plaintiff who happens to fall within certain talismanic rubrics: “creditor”, “landlord”, “lessor”, “franchisor”, “supplier”. This disposition is, we think, unsatisfactory insofar as it transforms judicial inquiry into a mere search for labels. In contrast, courts employing the “target area” approach focus on claimant’s relationship to the area of the economy allegedly injured by the defendant. “[T]o state a cause of action under the anti-trust laws a plaintiff must show more than that one purpose of the conspiracy was a restraint of trade and that an act has been committed which harms him. He must show that he is within that area of the economy which is endangered by a breakdown of competitive conditions in a particular industry. Otherwise he is not injured ‘by reason’ of anything forbidden in the anti-trust laws.” Conference of Studio Unions v. Loew’s Inc., 193 F.2d 51, 54-55 (9th Cir. 1951), cert. denied, 342 U.S. 919, 72 S.Ct. 367, 96 L.Ed. 687 (1952). To attain standing, a plaintiff must thus allege that the antitrust violation injured a commercial enterprise of the plaintiff in the area of the economy in which the elimination of competition occurred. Standing is denied, on the other hand, if the claimant’s commercial activity occurred outside that area of the economy. See id. Hence the “target area” approach provides a logical and flexible tool for analyzing whether a particular claimant falls within the class of persons slated by Congress for protection under section 4 of the Clayton Act. “[T]he basic and underlying purposes of the anti-trust laws [are] to preserve competition and to protect the consumer. Recovery and damages under the anti-trust law is available to those who have been directly injured by the lessening of competition and withheld from those who seek the windfall of treble damages because of incidental harm.” Id. at 55. See Karseal Corp. v. Richfield Oil Corp., 221 F.2d 358, 365 (9th Cir. 1955). The “direct injury” approach to section 4 was implicitly undermined by the Supreme Court in Perkins v. Standard Oil Co., 395 U.S. 642, 89 S.Ct. 1871, 23 L.Ed.2d 599 (1969), rev’g 396 F.2d 809 (9th Cir. 1968). Attention centered on whether “fourth level” price discrimination is proscribed by section 2 of the Clayton Act, as amended by section 13 of the Robinson-Patman Act, 15 U.S.C. § 13. A panel of our court, focusing on the indirect commercial relationship between claimant and defendant, had concluded in the negative: “Section 2(a) of the Act does not recognize a causal connection, essential to liability, between a supplier’s price discrimination and the trade practices of a customer [removed four rungs]. on the distributive [sic] ladder....” 396 F.2d at 816. In the Supreme Court’s reversing opinion, Mr. Justice Black admonished that this direct-indirect “limitation is wholly artificial and is unwarranted by the language or purpose of the Act.” He reasoned that “the competitive harm done... is certainly no less because of the presence of an additional link in this particular distribution chain from the producer to the retailer.” 395 U.S. at 648, 89 S.Ct. at 1874. Though applying a different section of the Clayton Act, the opinion argues forcefully by analogy against “direct injury” analysis. The Court eschewed consideration of the nexus between claimant and defendant and concentrated instead on the nature of the “competitive harm”. Direct support of the “target area” approach also emerges from the Supreme Court’s opinion in Perkins, supra. The plaintiff had appended an auxiliary claim under section 4 for injuries allegedly suffered in his individual capacities as creditor, landlord, and broker. In constructing its analytical framework, our court unfortunately — but quite understandably — indiscriminately j uxtaposed cases espousing both the “direct injury” and the “target area” tests. We resurrected-notions of privity, and, attaehing the determinative “lessor” label, concluded that the plaintiff’s claim was comprised of elements not “properly the subject of damages.” 396 F.2d at 815. The Supreme Court’s reversal was grounded solely on a “target area” quotation from Karseal Corp. v. Richfield Oil Corp., 221 F.2d 358, 363 (9th Cir. 1955) that the Court applied consistently with its disposition of the section 2 issue. The Court avoided any categorical characterization of claimant as, for example, a “lessor” or a “creditor”, and affirmed the propriety of section 4 relief by emphasizing the economic impact of the anticompetitive conduct. Perkins therefore clarifies any ambiguity inhering in Hawaii’s failure to adopt expressly either of the two predominant judicial glosses on the language “by reason of”. By repudiating all those aspects of the “direct injury” test that distinguish it from the “target area” approach, and by embracing and applying the latter, the Court in Perkins, at least inferentially, impresses its imprimatur upon the “target area” approach articulated by this court: a plaintiff has standing under section 4 of the Clayton Act if the claimed losses fall “within that area of the economy which is endangered by a breakdown of competitive conditions in a particular industry.” E. g., Mulvey v. Samuel Goldwyn Productions, 433 F.2d 1073 (9th Cir. 1970) ; Hoopes v. Union Oil Co., 374 F. 2d 480, 485 (9th Cir. 1967); Karseal Corp. v. Richfield Oil Corp., 221 F.2d 358 (9th Cir. 1955); Conference of Studio Unions v. Loew’s Inc., 193 F. 2d 51 (9th Cir. 1951), cert. denied, 342 U.S. 919, 72 S.Ct. 367, 96 L.Ed. 687 (1952). A proper application of “by reason of” focuses on whether the anti-competitive conduct directed against an area of the economy injured business operations conducted by the claimant in that sector of the economy. The resulting two-step approach first requires identification of the affected area of the economy and then the ascertainment of whether the claimed injury occurred within that area. Here the crop farmers’ complaint alleges that the automobile manufacturers conspired “(a) To eliminate all competition among the automobile manufacturers in the research, development, manufacture and installation of motor vehicle air pollution equipment; “(b) To eliminate competition... in the purchase of patents and patent rights from other parties covering motor vehicle air pollution equipment.” It is manifest from these averments that the area of the economy against which anticompetitive conduct was allegedly directed was that concerned with research, development, manufacture, installation and patenting of automotive air pollution control devices. No commercial interest of the crop farmers falls within this area. Not only were the crop farmers not targets of the alleged conspiracy, they were not even on the firing range. Accordingly, the farmers lack standing under section 4 of the Clayton Act, to maintain this action. Upon remand, therefore, all actions arising under section 4 will be dismissed. Insofar as the common weal was injured the federal- government was the proper party to seek redress; and, in fact, it attempted to do so. See Note 1, swpra. If the Government did not prosecute its action with sufficient vigor, the remedy lies in executive or legislative reform, not in judicial overreaching. 11. STANDING UNDER SECTION 16 Appellees’ claims for injunctive relief are based on section 16 of the Clayton Act, 15 U.S.C. § 26, which reads in relevant part: “Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings....” As the Court noted in Hawaii, supra, 405 U.S. at 260, 92 S.Ct. 885, 31 L.Ed.2d 184, this section varies significantly from section 4 insofar as the broader language of section 16 lacks mention of “business or property”, an omission signalling different standing requirements. This treatment is fully justified by the difference between the remedies available under each section. In contrast to section 4, section 16 does not involve punitive and potentially disastrous judgments for treble damages and attorneys’ fees; neither is there the potential threat of duplicative recoveries. See Hawaii, supra at 261-264. Consequently, courts have not exercised the same pronounced restraint in granting standing under section 16 as they have done under section 4. As we observed in Hawaii v. Standard Oil Co., 431 F.2d 1282, 1284-1285 (9th Cir. 1970), aff’d, 405 U.S. 251, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972): “[Section 16] is far broader than § 4. Any person may secure injunctive relief against threatened loss or damage by violation of the antitrust laws. Section 4 provides for recovery of treble damages only by a person injured in his business or property by [reason of] such a violation.” Unlike standing under section 4, standing under section 16 does not require an injury to “commercial interests” but only an injury cognizable in equity. For example, housing segregations enforced by an antitrust conspiracy of realtors constitutes an injury to excluded minority members that confers standing for injunctive relief under section 16, see Bratcher v. Board of Realtors, 381 F.2d 723 (6th Cir. 1967), although not for treble damages under section 4. Since all appellees herein have alleged “threatened loss or damage” to interests cognizable in equity, they have standing to seek equitable protection under section 16 of the Clayton Act. We emphasize that we now intimate no conclusions as to either the merits of the equitable claims or the availability of any form of injunctive relief. These issues must, in the first instance, be resolved by the District Court. III. PARENS PATRIAE At common law, the concept of parens patriae invested the English Sovereign with powers and duties — the “royal prerogative” — to protect certain interests of his subjects! See Hawaii, supra, 405 U.S. at 257-260, 92 S.Ct. 885. In this country the parens patriae function expanded somewhat and devolved upon the states that, to some extent, ceded it to the federal government. See Massachusetts v. Mellon, 262 U.S. 447, 485-486, 43 S.Ct. 597, 67 L.Ed. 1078 (1923); Public Utilities Commission v. United States, 356 F.2d 236, 241 n.1 (9th Cir.), cert. denied, 385 U.S. 816, 87 S.Ct. 35, 17 L.Ed.2d 54 (1966). Hence, the federal government and the states, as the twin sovereigns in our constitutional scheme, may in appropriate circumstances sue as parens patriae to vindicate interests of their citizens. E. g., Hawaii, supra; Georgia v. Pennsylvania Railroad Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051 (1945); North Dakota v. Minnesota, 263 U.S. 365, 44 S.Ct. 138, 68 L.Ed. 342 (1923); Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923); New York v. New Jersey, 256 U.S. 296, 41 S.Ct. 492, 65 L. Ed. 937 (1921); Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038 (1970); Kansas v. Colorado, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956 (1907); Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497 (1901); Louisiana v. Texas, 176 U.S. 1, 20 S.Ct. 251, 44 L.Ed. 347 (1900). On the other hand, political subdivisions such as cities and counties, whose power is derivative and not sovereign, cannot sue as parens patriae, although they might sue to vindicate such of their own proprietary interests as might be congruent with the interests of their inhabitants. We have already concluded that, inasmuch as appellee states failed to allege any injury to their “commercial interests”, they lack standing qua parens patriae, or in any other capacity, to seek relief under section 4 of the Clayton Act. Moreover, our court has recently held that a state cannot sue as parens patriae under section 4 on behalf of its citizen-consumers for injuries suffered by them. California v. Frito-Lay, Inc., 474 F.2d 774 (9th Cir. 1973). Their parens patriae suit under section 16 of the Clayton Act, however, presents a separate but readily manageable issue. In Georgia v. Pennsylvania Railroad Co., supra, the Supreme Court upheld Georgia’s parens patriae action under section 16 for an injunction against a conspiracy between large railroad companies. The analysis of that case rendered in Hawaii, supra, 405 U.S. at 259-260, 92 S.Ct. 885, bespeaks the continuing availability of parens patriae actions under section 16 for injunctive relief for injuries to a state’s economy. Insofar as the state appellees have alleged injury to their economies, they have standing under section 16. In reaffirming this principle, we quote the presaging language of Mr. Justice Holmes: “[T]he State has an interest independent of and behind the title 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 is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted.. that the forests on its mountains... should not be further destroyed or threatened... that the crops and orchards on its hills should not be endangered 206 U.S. at 237-38, 27 S.Ct. at 619. IV. CLASS ACTIONS In light of our determination that all appellees lack standing to seek antitrust damages, the District Court must reevaluate the propriety, under Fed.R.Civ.P. 23(b) (3), of the class actions for equitable relief. In addition, the court may need to examine the applicability of Fed.R.Civ.P. 23(b)(2). Both in anticipation of probable changes among the parties plaintiff, and in deference to the accumulated experience of district courts in framing classes under Rule 23, we deem it inappropriate at this juncture to comment further upon the class action issues. ' Affirmed in part; reversed and remanded in part. . These are the progeny of a civil antitrust action filed by the federal government against the largest domestic automobile manufacturers and the Automobile Manufacturers’ Association. In October of 1969, the Government accepted a consent decree, United States v. Automobile Mfgrs. Ass’n, 307 F.Supp. 617 (C.D.Cal. 1969) aff’d per curiam sub nom. New York v. United States, 397 U.S. 248, 90 S.Ct. 1105, 25 L.Ed.2d 280 (1970), the text of which is reported in 1969 Trade Cas. ¶[72,907. Similar factual claims were presented to the original jurisdiction of the Supreme Court in Washington v. General Motors Corp., 406 U.S. 109, 92 S.Ct. 1396, 31 L.Ed.2d 727 (1972). After the Court declined to assume jurisdiction in that case, and after this court accepted certification of the present appeal, an additional spate of actions was filed in the District Court under the multi-district tag-along procedures. . Sucli compulsion would be unattractive to manufacturers insofar as required use of an externality would likely increase price while not necessarily increasing demand, thus diminishing overall product marketability and profit. . See, e. g., Loeb v. Eastman Kodak Co., 183 F. 704 (3d Cir. 1910) (limiting standing under section 7 of the Sherman Act, predecessor of section 4 of the Clayton Act). Cf. Southern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U.S. 531, 534, 38 S.Ct. 186, 62 L.Ed. 451 (1918) (Holmes, J.) '(“the endlessness and futility of the effort to follow every transaction to its ultimate result”). See also L. Green, The Rationale of Proximate Cause 122-23, 195-97 (1927); Pollock, The “Injury” and “Causation” Elements of a Treble-Damage Antitrust Action, 57 Nw.U.L.Rev. 691, 697-700 (1963). . Even some commentators who have lauded the ingenuity of the district court’s decision recognize its clear departure from prior law. See, e. g., 12 B.C.Ind. & Com. LJEtev. 686 (1971) ; Note, 24 Vand.L.Rev. 126 (1970). . See, e. g., Klingsberg, Bull’s Eyes & Carom Shots, XVI Antitrust Bull. 351, 368-69 (1971). . We have employed the terms “target area” and “direct injury” only as convenient, shorthand methods of identifying the two major approaches to the interpretation of “by reason of”. Use of either label in other cases, in contrast, has frequently suggested an approach opposite that so denominated here. E. g., Perkins v. Standard Oil Co., 396 F.2d 809 (9th Cir. 1968) (court labeled approach “target area” but employed the “direct injury” analysis), rev’d, 395 U.S. 642, 89 S.Ct. 1871, 23 L.Ed.2d 599 (1969). Likewise, some courts have failed to perceive significant distinctions between the tests. E. g., Nationwide Auto Apprasier Serv., Inc. v. Ass’n of Cas. & Sur. Cos., 382 F.2d 925 (10th Cir. 1967). It is to be hoped that the resolution suggested in our present opinion will obviate the use of either label in the future. . We do not mean to imply that each circuit falls neatly into one of the two jngeonholes. Only the Eighth Circuit and ours, for example, have consistently followed the “target area” approach, e. g., Mulvey v. Samuel Goldwyn Productions, 433 F.2d 1073 (9th Cir. 1970); Sanitary Milk Producers v. Bergjans Farm Dairy, Inc., 368 F.2d 679, 688-689 (8th Cir. 1966) (Blackmun, J.), and even they have diverged occasionally. E. g., Perkins v. Standard Oil Co., supra note 6. The First, Third, Sixth and Tenth Circuits, on the other hand, generally apply the test we label “direct injury”. E. g., Reibert v. Atlantic Richfield Co., 471 F.2d 727 (10th. Cir. 1973); Kauffman v. Dreyfus Fund, 434 F. 2d 727, 732-734 (3d Cir. 1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1190, 28 L.Ed.2d 323 (1971); Volasco Products Co. v. Lloyd, A. Fry Roofing Co., 308 F.2d 383, 394-395 (6th Cir. 1962); Miley v. John Hancock Mut. Life Ins. Co., 148 F.Supp. 299 (D.Mass.), aff’d per curiam, 242 F.2d 758 (1st Cir.), cert. denied, 355 U.S. 828, 78 S.Ct. 38, 2 L.Ed.2d 41 (1957). The Second, Fourth and Fifth Circuits have formulated their own particular mixtures of the two tests, e. g., Calderone Enterprises Corp. v. United Artists Theatre Circuit, Inc., 454 F.2d 1292 (2d Cir. 1971); Dailey v. Quality School Plan, Inc., 380 F.2d 484 (5th Cir. 1967); South Carolina Council of Milk Producers, Inc. v. Newton, 360 F.2d 414 (4th Cir. 1966), although the approach of the Second more closely resembles the “direct injury” test and that of the Fourth and Fifth, the test of “target area”. The Seventh Circuit’s approach is uncertain, although it appears closer to “target area”. Compare Sandidge v. Rogers, 256 F.2d 269 (7th Cir. 1958) with Congress Building Corp. v. Loew’s, Inc., 246 F.2d 587 (7th Cir. 1957). In ascribing positions to the various circuits, we have ignored self-descriptions and have attempted to analyze their actual approaches. . See, e. g Question: Did the court rule that there was insufficient evidence for conviction? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_procedur	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, DISTRICT COUNCIL OF KANSAS CITY, MISSOURI, AND VICINITY, A. F. OF L., et al. v. SPERRY, for and on Behalf of NATIONAL LABOR RELATIONS BOARD. No. 3654. United States Court of Appeals Tenth Circuit Nov. 2, 1948. Rehearing Denied Dec. 6, 1948. Clif Langsdale, of Kansas City, Mo. (Clyde Taylor and John J. Manning, both of Kansas City, Mo., and Chauncy B. Little, of Olathe, Kan., on the brief), for appellants. Dominick L. Manoli, of Washington, D. C. (Robert N. Denham, General Counsel, David P. Findling, Associate General Counsel, Winthrop A. Johns and Albert Dreyer, all of Washington, D.C., on the brief), for appellees. Before BRATTON, HUXMAN and MURRAH, Circuit Judges. BRATTON, Circuit Judge. Section 1 of the act approved June 23, 1947, 61 Stat. 136, 29 U.S.C.A. § 141 et seq., commonly called the Taft-Hartley Act, and hereinafter referred to as the act, contains a declaration of policy in which it is recited that industrial strife which interferes with the normal flow of commerce and with the full production of articles and commodities for commerce can be avoided or substantially minimized if employers, employees, and labor organizations each recognize under law one another’s legitimate rights in their relations with each other; and further, that it is the purpose of the act, in order to promote the full flow of commerce, to prescribe the legitimate rights of both employers and employees in their relations affecting commerce, to provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other, and to protect the rights of the public in connection with labor disputes affecting commerce. In conventional language, section 2(6) defines the term “commerce” to mean trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia or any Territory of the United States and any State or other territory, or between any foreign country and any State, Territory, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country. In equally conventional language, section 2(7) defines the term “affecting commerce” to mean in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce. Section 8(b) (4) (A) provides that it shall be an unfair labor practice for any labor organization or its agents to engage in, or to induce or encourage the employees of any employer to engage in, a strike or concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where the object thereof is to force an employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person. Section 8(c) provides in effect that the expressing of any views, argument, or opinion, or the dissemination thereof, shall not constitute or be evidence of an unfair labor practice under any of the provisions of the act, if it contains no threat of reprisal, or force, or promise of benefit. Section 10(a) empowers the National Labor Relations Board, as thereinafter provided, to prevent any person from engaging in any unfair labor practice listed in section 8 affecting commerce. Section 10(b) provides that whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for that purpose, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect; that the person shall have the right to file an answer to the complaint; and that a hearing shall be had, conducted so far as practicable in accordance with the rules of evidence in the district courts of the United States. Section 10(c) provides that if upon the preponderance of the testimony taken, the Board shall be of the opinion that the person named in the complaint has engaged in or is engaging in any such unfair labor practice, it shall state its findings of fact and shall issue and cause to be served on such person an order requiring him to cease and desist, and to take such affirmative action including the reinstatement of employees with or without back pay as will effectuate the policies of the act. Section 10(e) authorizes the Board to petition the Circuit Court of Appeals of the circuit in which the unfair labor practice occurred, or the circuit in which the person committing such unfair labor practice resides or transacts business to enforce such order. And section 10 (Z) provides that when it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (A), (B), or (C) of section 8(b) of the act, a preliminary investigation shall be made forthwith; that if after the making of such investigation the officer or regional attorney to whom the matter may be referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition the district court of the United States of the district where the unfair labor practice occurred, or is alleged to have occurred, 'or wherein such person resides or transacts business, for appropriate injunctive relief pending the final adjudication of the Board with respect to the matter; and that upon the filing of such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper. It contains a provision relating to notice, but that has no present material bearing. And it further provides that for the purpose of the subsection, district courts shall be deemed to have jurisdiction of a labor organization in the district in which such organization maintains its principal office or in any district in which its duly authorized officers or agents are engaged in promoting or protecting the interests of employee members. Wadsworth Building Company, Inc., a corporation hereinafter referred to as Wadsworth, was engaged in the manufacture of prefabricated houses at its plant in Overland Park, Kansas. During the year immediately preceding the institution of this action, it purchased raw materials in excess of $100,000, of which approximately ninety-five per cent were shipped into Kansas; and it sold finished products in excess of $100,000, of which approximately fifty per cent were sold to customers outside of Kansas. A controversy arose between Wadsworth and United Brotherhood of Carpenters and Joiners of America, affiliated with American Federation of Labor, hereinafter referred to as Carpenters. As the result of the controversy, some or all of the union employees of Wadsworth went out on strike and pickets were placed around the plant. Klassen and Hodgson, Inc., a corporation hereinafter referred to as Klassen, was engaged in the business of constructing residences in Overland Parle Sometime prior to the strike at the plant of Wadsworth, Klassen entered into an arrangement with Wadsworth for the purchase of ten to fifteen prefabricated houses which it planned to erect on foundations in Overland Park. Sometime after the strike at the plant of Wadsworth began, Walter A. Said, an agent of Carpenters, came to the premises where Klassen intended to erect one of the prefabricated houses and inquired whether Klassen was union or otherwise. He was advised that Klassen was just starting in business and that it intended to use union employees. A few days later Said again came to the premises. One of the prefabricated houses had been received and Klassen was engaged in its erection. One union carpenter, one nonunion carpenter, and one other non-union employee were engaged in the work. Said inquired whether it was a Wadsworth house and whether Klassen knew that the union employees of Wadsworth were on strike. The spokesman for Klassen replied that he had just recently learned of the strike, and that arrangements had been made for the purchase of the houses long prior to the beginning of the strike. He further stated that Klassen intended to employ union labor exclusively and asked whether Said could furnish union carpenters. A day or two later, Said and representatives of several other unions came to the premises, discussed with the spokesman for Klassen the matter of its purchasing prefabricated houses from Wads-worth while the strike was in progress, and urged that Klassen use its influence in forcing Wadsworth to come to terms with the unions. While there, Said suggested to the union carpenter employed on the job that he call him that night. The employee did call Said that night; Said asked the employee if he knew the conditions at the Klassen project; the employee said that he did and that it would be his last day_ there; and he did quit the following day. A few days later, on the recommendation of Said and representatives of other unions, the Building Trades Council of Kansas City, Missouri, and vicinity, placed Klassen on its “we do not patronize” list and circulated copies thereof to all unions composing the council, to the Teamsters Union, and to the Builders Association. The following day the Council placed a picket at the Klassen site. He carried a sign reading “Non-union building tradesmen are employed on this job. A.F.L.” Thereafter union truck drivers coming to the site with materials for delivery refused to cross the picket line and returned to their firms with the materials. As the result of the blacklist and the picketing, Klassen was handicapped and delayed in carrying forward its program of purchasing and erecting the houses. Klassen and Wadsworth filed with the National Labor Relations Board a charge that Carpenters had engaged in unfair labor practices within the meaning of section 8(b) (4) (A) of the act. The director of the Seventeenth Region of the Board investigated the charge and concluded that there was reasonable cause to believe that the charges were true and that a complaint should issue. He then filed this cause in the United States Court for Kansas seeking to enjoin Carpenters and Said as its agent from calling, engaging in, or inducing or encouraging the employees of Klassen and other employers, by orders, threats, promises of benefits, blacklists, picketing, or any other like acts or conduct, to engage in a strike, or a concerted refusal in the course of their employment to transport or handle goods or perform services in order to force or require Klassen to cease doing business with Wadsworth. By answer, the respondents denied the material allegations of fact contained in the petition and pleaded affirmatively that to restrain them as prayed in the petition would violate their constitutional rights. The court heard evidence, made findings of fact and conclusions of law, and enjoined the respondents substantially as prayed in the petition, pending the final determination of the matters by the National Labor Relations Board. The respondents appealed. It is contended that no competent or credible evidence was adduced at the trial showing that appellants, by threat of reprisal or force or promise of reward, induced or encouraged employees of other companies to refuse in the course of their employment to transport or handle materials for use in the construction of the Klassen houses, with the object and purpose of forcing Klassen to cease doing business with Wadsworth. In the trial of a non-jury case, it is the province of the trial court to observe the witnesses while testifying, to judge their qualifications, to appraise their credibility, to determine the inferences from the facts established, and to resolve conflict in the evidence. The evidence and the inferences fairly to be drawn from it were sufficient to support the material findings of fact made by the trial court, and they are not plainly erroneous. Therefore they must stand on appeal. Yates v. American Republics Corporation, 10 Cir., 163 F.2d 178; Wyoming Railway Co. v. Herrington, 10 Cir., 163 F.2d 1004; Boston Insurance Co. v. Read, 10 Cir., 166 F.2d 551. Next, it is urged with vigor that the act is limited in scope to practices affecting interstate commerce; that the dealings between Klassen and Wadsworth were essentially intrastate in character; and that the conduct of appellants did not affect interstate commerce in the manner and to the degree necessary to bring it within the range of the regulatory power of Congress. The supreme, plenary, and complete power of Congress under the Constitution to regulate interstate commerce is without restriction or limitation, except that prescribed in the Constitution; and within the reach of that paramount authority lies the power to safeguard such commerce against substantial burdens or obstructions, no matter the source from which the encroachment comes. In the exertion of its constitutional authority to protect interstate commerce, Congress may regulate not only commerce itself but matters which affect, interrupt, or stifle interstate commerce. In other words, Congress may regulate not merely transactions or goods in interstate commerce, but activities which in isolation might be deemed to be local and yet in the course of the interlacings of business across state lines affect adversely interstate commerce. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122; Polish National Alliance v. National Labor Relations Board, 322 U.S. 643, 64 S.Ct. 1196, 88 L.Ed. 1509. And acts or practices having the effect of interrupting or otherwise adversely affecting interstate commerce are not immune from Congressional regulation and control merely because they grow out of labor disputes. National Labor Relations Board v. Jones & Laughlin Steel Corp., supra; Cf. Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430. The question whether or not practices of a given pattern may be deemed by Congress to affect interstate commerce in a harmful manner is not to be determined solely by the quantitative effect of the activities immediately involved. National Labor Relations Board v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014; Polish National Alliance v. National Labor Relations Board, supra. And the power to protect interstate commerce against harmful encroachment may be exercised in such manner as to have application in individual cases in which the activities are of such character that when multiplied into a general practice they could reasonably exert adverse effect calling for preventive regulation. Mandeville Island Farms, Inc., v. American Crystal Sugar Co., 334 U.S. 219, 68 S.Ct. 996. The foregoing general principals have appropriate application here. The committee hearings, the committee reports, and the language contained in the act, considered in their totality, make it plain that Congress acted in the belief that wrongful secondary boycotts directed against industrial or commercial units engaged solely in intrastate commerce for the purpose of compelling them to cease doing business with other industrial or commercial units engaged in interstate commerce could reasonably have disruptive adverse effect upon interstate commerce, and that it was the Congressional intent and purpose to bring boycotts of that kind within the scope of the act. Flere, Wadsworth purchased for use in its business large amounts of raw materials which originated in other states; and it sold large amounts of manufactured products to customers in other states. Klassen was engaged in intrastate activities. The purpose of the secondary boycott against Klassen was intended soley to compel that company to cease doing business with Wadsworth. If the practice of establishing secondary boycotts against those doing business with Wadsworth were extended sufficiently in scope it could substantially reduce the flow in interstate commerce of raw materials for use by that company in the conduct of its business, and likewise it could substantially reduce the flow in interstate commerce of manufactured products to its customers in other states. And the general practice of establishing and maintaining secondary boycotts of that kind multiplied or extended throughout the country would necessarily effect a reduction in the flow in interstate commerce of both raw materials and manufactured commodities. Therefore, while the activities of Klassen were essentially local, they were of such character and bore such relation to interstate commerce that a secondary boycott directed against it and carried forward by blacklisting and picketing for the sole purpose of compelling it ■to cease doing business with Wadsworth constituted an unfair labor practice, within the scope and purpose of the act. Cf. Carpenters & Joiners Union of America v. Ritter’s Cafe, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed. 1143. The further contention is that the use of the “we do not patronize” lists and the peaceful picketing of the Klassen premises were protected by the First Amendment to the Constitution of the United States and by section 8(c) of the act. The pertinent part of the First Amendment guarantees freedom of speech and press, and section 8(c) provides that expressions of views or opinions shall not constitute an unfair labor practice under the act if they do not contain any threat of reprisal, or force, or promise of benefit. The promulgation and circulation of a blacklist and the peaceful picketing of premises in the course of a labor dispute may constitute a phase of the constitutional right of free utterance, if the blacklist is confined to the name of the employer primarily involved in the controversy and the picketing is confined to the premises of such employer. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Carlson v. California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104; American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855; Bakery & Pastry Drivers & Helpers Local v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178; Thomas v. Collins, supra. But the guaranty of free speech and free press contained in the First Amendment does not compel the United States to tolerate in all places and under all circumstances even peaceful picketing, if it has harmful effect upon interstate commerce. The constitutional right of free speech and free press postulates the authority of Congress to enact legislation reasonably adapted to the protection of interstate commerce against harmful encroachments arising out of secondary boycotts. The promulgation and circulation of a blacklist and the picketing of premises as the means of waging a secondary boycott which has the effect of substantially burdening or obstructing interstate commerce is not protected by the First Amendment or section 8(c) of the act. Concretely, neither the constitutional nor statutory provision protected appellants in their blacklisting of Klassen and their picketing of its premises as a means of waging a secondary boycott against 'that company, with substantially harmful effect upon interstate commerce. Cf. Carpenters & Joiners Union of America v. Ritter’s Cafe, supra. One additional feature of the case merits attention. As previously said, section 10(Z) of the act provides that if after the making of the preliminary investigation, the officer or regional attorney to whom the matter may be referred has reasonable cause to believe that the charge of unfair labor practice is true and that a complaint should issue, he shall on behalf of the Board petition the district court of the United States as therein specified for appropriate injunctive relief pending the final adjudication of the Board with respect to the matter; and that upon the filing of such petition the court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper. It is not the inflexible duty of the court in every case of this kind to grant a temporary injunction to remain in force and effect until the Board makes its final adjudication of the charge of unfair labor practice. The court has a reasonable permissive range for the exercise of its discretion in the granting of injunctive relief appropriate to the particular circumstances presented, or in withholding its writ. Hecht Company v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754. At the conclusion of the trial of this case, the court inquired with respect to the status of the matter before the Board. The attorney for the Board stated to the court that the hearing before the trial examiner had ended two days previously, and that in his opinion the Board would probably make its final adjudication about two months later. With that statement freshly made, and with an expression of hope on the part of the court that the Board would render its decision in a short time, the temporary injunction was granted, pending the final adjudication of the Board. It is manifest that in making its injunction effective until the Board entered its final adjudication, the court acted in the belief that the Board would make its final adjudication with reasonable dispatch. Not only two months but approximately ten months have passed, and the Board has not acted. If the court had understood or anticipated that such a delay would intervene, it might have withheld injunctive relief, or it might have conditioned its injunction differently. The judgment is affirmed, and the cause is remanded with authority in the trial court to determine in the exercise of its sound judicial discretion whether in view of all the then presently existing facts, conditions, and circumstances the writ should be modified or terminated in advance of the final adjudication of the Board. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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. WRUBLEWSKI v. McINERNEY, Commanding Officer of United States Naval Receiving Station, et al. No. 11682. Circuit Court of Appeals, Ninth Circuit. Feb. 25, 1948. Edwin S. Wilson, of San Francisco Cal., for appellant. Frank J. Hennessy, U. S. Atty., and Joseph Karesh, Asst. U. S. Atty., both of San Francisco, Cal., for appellee. Before GARRECHT, HEALY, and ORR, Circuit Judges. HEALY, Circuit Judge. This appeal is from a judgment dismissing for insufficiency a petition for release on habeas corpus. The case presents a claim of double jeopardy growing out of two successive trials of appellant before a. naval general court-martial. So far as material to the inquiry, the petition shows the following facts. Petitioner, who is or was an ensign in the Navy, was tried in 1944 before a naval court-martial on charges of murder and assault with intent to commit murder at a naval air station in the Territory of Hawaii.. The murder charge was for the felonious, killing with malice aforethought of an officer named Travis. The charge of assault' with intent to commit murder contained three specifications, the first alleging an assault with a revolver with intent to kill Travis, the second and third like assaults, with intent to kill two other officers, Nason and Osborne. The several charges appear to have involved a single incident in the course of which Travis was shot to death. Petitioner was found guilty of murder and was acquitted of the other charges. • Subsequently it was determined by the-Judge Advocate General’s Office that the-conviction was void for lack of jurisdiction in the court to try the murder charge, the offense having been committed within the territorial limits of the United States. New charges for the slaying of Travis were subsequently preferred before another court-martial, namely, voluntary manslaughter and involuntary manslaughter. Upon the trial petitioner interposed a plea in bar on the ground that he had once been acquitted by a duly constituted court of assault with intent to murder Travis. This crime, so the plea asserted, was a lesser offense included in manslaughter, hence acquittal of the lesser crime barred a subsequent prosecution for the greater. The plea was denied and on the trial petitioner was convicted of voluntary manslaughter and sentenced to serve a term of five years. Because of the alleged former jeopardy he claims that the naval court lacked jurisdiction to try him for manslaughter, hence he is entitled to the writ, cf. Waite v. Overlade, 7 Cir., 164 F.2d 722, and cases cited. The district court thought it unnecessary to decide the issue of double jeopardy since it was of opinion that the specific guaranties of the Fifth Amendment may not be invoked in cases arising in the land or naval forces of the United States, citing Ex parte Quirin, 317 U.S. 1, 43, 63 S.Ct. 2, 87 L.Ed. 3; Ex parte Milligan, 4 Wall. 2, 123, 71 U.S. 2, 123, 18 L.Ed. 281, and a few other cases. Contrariwise, we assume for the purpose of decision that the petitioner is entitled to the protection of the Amendment’s guaranty against being twice put in jeopardy for the same offense. On that assumption we consider whether he has in truth been exposed to double jeopardy. It is not now seriously urged, as it appears to have been before the naval court, that an assault with intent to commit murder is an ingredient of manslaughter. Such contention could not successfully be maintained. • At common law as by the. statutes generally, including the federal statute, Criminal Code § 274, 18 U.S.C.A. § 453, manslaughter is defined as the unlawful killing of a human being without malice. It is immaterial that an identical factual situation was’ involved in both cases. Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489. Petitioner’s argument here is considerably more complex. It proceeds substantially on the following premise. Simple assault is an element common both to manslaughter and assault with intent to commit murder. On the original trial, while the court was without jurisdiction of the murder charge, it did have jurisdiction of the charge of assault with intent to commit murder, and of this charge petitioner was acquitted. The court could have reduced the more serious offense of which it had jurisdiction to that of simple assault but did not do so, hence petitioner was necessarily acquitted of simple assault also. The identical simple assault of which he was thus acquitted was retried to his prejudice when he was tried for manslaughter. The argument sounds plausible but becomes wholly unconvincing when one recalls the realities of the situation. Since the naval court convicted petitioner of the ■murder of Travis it necessarily determined the fact to be that he assaulted his victim with intent to murder him. Its acquittal of ■ the accused of the latter charge was so at war with its principal verdict that the acquittal can not possibly be regarded as anything other than a means of disposing of a ■charge which the completed murder had swallowed up and so rendered superfluous. The constitutional guaranty against ■double jeopardy concerns itself with matters of substance, not with ingeniously assembled shadows. Petitioner has nothing of substance to complain of. He would appear to have emerged from this chapter of errors in a more favorable position than he would have been in had the errors not been ‘Committed. Affirmed. Consult Articles for the Government of the Navy, 34 U.S.C.A. § 1200, Article 6. This provides: “If any person belonging to any public vessel of the United States commits the crime of murder without the territorial jurisdiction thereof, he may be tried by court-martial and punished with death.” The judgment was subsequently confirmed by the Judge Advocate Gen'eral. None of the authorities to which our .attention has been called directly supports the view taken below. In Ex parte Milligan, supra, the court said that the ■framers of the Constitution meant to limit the right to jury trial, as guaranteed in the Sixth Amendment, to those persons who, under the Fifth, could be held to answer for infamous crime only ,on presentment or indictment of a grand jury. In Ex parte Quirin, supra, the court rejected the contention, predicated on the Fifth and Sixth Amendments, that those charged with offenses against the laws of war must be proceeded against by indictment of a grand jury and are entitled to trial by jury. For other cases bearing more or less on the applicability of the Fifth Amendment in military or naval trials ef. United States v. Hiatt, 3 Cir., 141 F.2d 664; Waite v. Overlade, 7 Cir., 164 F.2d 722. The naval definition of manslaughter is taken directly from this provision of the Criminal Code. See § 119, Ch. II, p. 113, Naval Courts and Boards (1937). Appellant’s main reliance is on Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann.Cas. 640. Question: What is the total number of appellants in the case? Answer with a number. Answer:
songer_genresp1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. UNITED STATES ex rel. DOYLE v. DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION AT PORT OF NEW YORK. UNITED STATES ex rel. EISLER v. DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION AT PORT OF NEW YORK. UNITED STATES ex rel. WILLIAMSON v. DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION AT PORT OF NEW YORK. UNITED STATES ex rel. SMITH v. DISRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION AT PORT OF NEW YORK (two cases). Nos. 209-211, 207, 208, Dockets 20953-20955, 20950, 20951 Circuit Court of Appeals Second Circuit. Aug. 3, 1948. Isidore Englander and Ira Gollobin, both of New York City, for Charles A. Doyle, relator-appellant. Carol King and Abraham Isserman, both of New. York City, for Gerhart Eisler, relator-appellant. Carol King and David M. Freedman, both of New York City, for John Williamson, relator-appellant. Samuel Rosenwein and Abraham Unger, both of New York City, of counsel, for Charles A. Doyle, Gerhart Eisler, and John Williamson, relator-appellants. William L. Standard and Carol King, both of New York City (William L. Standard and Edward J. Malament, both of New York City, of counsel), for Ferdinand C. Smith, relator-appellant. John F. X. McGohey, U. S. Atty., of New York City (David McKibbin and Harold J. Raby, Asst. U. S. Attys., and Robert A. Vielhaber, Atty., U. S. Dept, of Justice, Immigration and Naturalization Service, all of New York City, of counsel), for respondent-appellee. Before AUGUSTUS N. HAND, CHASE, and CLARK, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge. The above named relators were arrested and held at Ellis Island for deportation proceedings. In each case the warrant charged as a ground for deportation that the alien was a member of and affiliated with an organization that advocates the overthrow by force and violence of the Government of the United States, and was accordingly deportable under the provisions of the Act of October 16, 1918, as amended, 8 U.S.C.A. § 137(g). Each alien was denied bail pending deportation proceedings by the Attorney General and thereupon sued out a writ of habeas corpus in which he claimed that he should be admitted to bail as a matter of right and that the action of the Attorney General in denying bail was arbitrary and unlawful. These writs were dismissed in the case of each relator by Judge Bondy who however admitted each to bail pending appeal. Prior to the application to Judge Bondy, the relator Smith had sued out a writ upon a similar theory which was dismissed by Judge Medina who refused to grant bail pending appeal on the grounds that the court had no power to admit the alien to bail and that assuming it had such power bail should be denied on a consideration of the merits. The dismissal of the writs by both judges was based upon a holding that the power to admit to bail rested solely within the Attorney General’s absolute discretion and in none of the cases was the question of an abuse of discretion considered by the court. We have carefully examined the contentions presented in the briefs and arguments on behalf of these relators and have dealt fully with issues identical with those before us here in the case of United States ex rel. Potash v. District Director of Immigration and Naturalization, 2 Cir., 169 F.2d 747, the opinion in which is filed herewith. There is no need of further discussion of legal principles which are equally applicable to Potash and the above relators. The varying facts and particular circumstances of each case do not cause any different result on this appeal and should properly be left to the District Court in its determination of each case. For the reasons we have stated in the Potash opinion we hold that the bail fixed by Judge Bondy in these four cases was lawfully allowed. The orders dismissing the writs of habeas corpus in the cases of the various relators are reversed and each proceeding is remanded to the District Court with instructions to proceed in accordance with the views set forth in our opinion in the Potash appeal, which we adopt as applicable in determining the principles involved in these appeals. CLARK, Circuit Judge, concurring upon the same grounds as those stated by him in his opinion in U. S. ex rel. Potash v. District Director. 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_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. KUSHNER, Marvin and Kushner, Dolores, husband and wife, Appellants, v. WINTERTHUR SWISS INSURANCE COMPANY, Emhart A.G. and Emhart Corporation and Hill Refrigeration Division of Emhart Industries. No. 79-2383. United States Court of Appeals, Third Circuit. Submitted under Third Circuit Rule 12(6) April 22, 1980. Decided April 30, 1980. Robert P. Weiner, Zarwin, Baum, Aran-gio & Ross, Philadelphia, Pa., for appellants. Bruce D. Lombardo, Harvey, Pennington, Herting & Renneisen, Ltd., Philadelphia, Pa., for Winterthur Swiss Ins. Co. and Em-hart A.G. Austin Hogan, Krusen, Evans & Byrne, Philadelphia, Pa., for Emhart Corp. and Hill Refrig. Div., etc. Before ALDISERT, WEIS and GARTH, Circuit Judges. OPINION OF THE COURT ALDISERT, Circuit Judge. The Federal Rules of Appellate Procedure and the rules of this court set forth certain requirements to be observed by litigants pressing appeals in this court. This appeal requires us to decide what sanctions should be imposed, first, under our Rule 21 when the requirements for briefs and appendices have not been observed, and second, under Rule 54(b), Federal Rules of Civil Procedure, when the order from which an appeal is taken indicates that it “adjudicates . . . the rights and liabilities of fewer than all the parties,” but appellants have represented that the appeal is from a final judgment “in accordance with 28 U.S.C. 1291 (sic).” Appellants filed a complaint sounding in diversity in the district court, seeking compensation for personal injuries suffered in an automobile collision that occurred in Zurich, Switzerland on August 2, 1977. Named as defendants were Emhart A.G., a Swiss corporation, and Hill Refrigeration Division of Emhart Industries, a New Jersey corporation, both wholly owned subsidiaries of Emhart Corporation, a Connecticut company that was also named as a defendant. The fourth defendant named was Winterthur Swiss Insurance Company, a New York corporation doing business in Switzerland and the liability insurance carrier for Emhart A.G. All defendants filed motions to dismiss pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure. The motion of defendant Emhart A.G. was based upon lack of personal jurisdiction. Winterthur also moved to dismiss for lack of personal jurisdiction, and additionally on the basis that no direct action could be sustained against Wintert-hur Swiss Insurance Company under Pennsylvania or Swiss law. On August 16,1979, the district court granted the motions of Emhart A.G., Emhart Corporation, and Winterthur. The court denied the motion to dismiss presented by Hill Refrigeration and ordered it to file an answer. On September 6, 1979, the remaining defendant, Hill Refrigeration, filed interrogatories, a notice of deposition, and its answer to the complaint. On September 17, 1979, notice of appeal was received and filed in the district court, and on September 19, 1979, a copy of the notice of appeal was received by this court. I. The rules of this court, supplementing the Federal Rules of Appellate Procedure, have been effective in their present form since September 1, 1978. Third Circuit Rule 21(2)(A)(g) and Rule 32(a), Federal Rules of Appellate Procedure, provide in relevant part: The front covers ... of the briefs and of appendices, if separately printed, shall contain: ... (5) the names and addresses of counsel representing the party on whose behalf the document is filed. On December 21, 1979, a document was filed with the Clerk entitled: “BRIEF FOR PLAINTIFFS-APPELLANTS, MARVIN AND DOLORES KUSHNER — APPENDIX.” Contrary to the requirements of this rule, the names and addresses of counsel were not set forth on the cover; indeed, this information appears nowhere in the document. Third Circuit Rule 10(3) provides: Contents of Appendix. As required by Rule 30(a), Federal Rules of Appellate Procedure, the appellant shall prepare and file an appendix to the briefs which shall contain: (1) the relevant docket entries in the proceeding below; (2) any relevant portions of the pleadings, charge, or findings; (3) the judgment, order or decision in question; and (4) any other parts of the record to which the parties wish to direct the particular attention of the court. In addition, the appendix shall contain: (5) a table of contents with page references; (6) the notice of appeal and (7) the memorandum or opinion of any trial court subject to review. If the court by order has dispensed with the requirement of an appendix, items (1), (3), (6) and (7) shall be included in appellant’s brief. See also Rule 21(2)(A)(a). Contrary to the requirements of Rule 10(3)(1) and Fed.R.App.P. 30(a)(1), the appendix does not contain the relevant docket entries in the proceedings below. Contrary to the requirement of Rule 10(3)(5), the appendix is not paginated; instead, it takes the form of a collection of exhibits with each segment bearing an introductory letter of the alphabet. And contrary to the requirement of Rule 10(3)(6), the appendix does not contain the notice of appeal. The Federal Rules of Appellate Procedure govern the processing of appeals, and are the product of much careful thought by the Advisory Committee on Appellate Rules, the Committee on Rules of Practice and Procedure, the Supreme Court, and the Congress. They set forth the requirements a litigant must observe if the merits of the appeal are to be considered properly by the United States Courts of Appeals. They have the force and effect of statutes. See 28 U.S.C. §§ 2071-72. The Third Circuit Rules have been designed to meet the particular needs of this court, which has jurisdiction over three states and one territory with a population of approximately eighteen million people. Our rules relating to the contents of briefs and appendices were drafted after much deliberation by the judges and after consideration by this court’s Lawyers Advisory Committee. They were drafted with a view toward assisting the processing of the geometric increase of cases in this court in the past couple of decades. For example, in 1960, when there were seven Third Circuit Judges, 296 appeals and original proceedings were filed in this court. By 1969, one judge had been added and the number of filings had risen to 671; ten years later, with only nine judges, the number of filings had reached 1,702. Expressed in terms of the caseload per judge, in 1968 each active judge on this court was assigned 90 fully briefed appeals and original proceedings for disposition on the merits. This year each active judge has been assigned 275 fully briefed cases on the merits. This does not include consideration of an increasingly burdensome volume of motions and petitions for rehearing. If the court is not supplied with the proper tools to decide cases, then extremely valuable time, already severely rationed, must be diverted from substantive work into correspondence and communications with the Clerk and counsel to obtain the vital information negligently or deliberately omitted from the appendix. For example, the appendix offered by counsel in this case contains no notice of appeal. Yet the threshold question in every appeal is the jurisdiction of this court, which includes both federal court subject matter jurisdiction as well as appealability. In every case, the court examines the notice of appeal, the order appealed from, and the district court docket entries to determine whether the appeal is from a judgment in accordance with 28 U.S.C. § 1291, or lies within a specific exception for interlocutory decision provided in 28 U.S.C. § 1292. If the appeal is from an action involving multiple claims or multiple parties, as here, the court must determine whether the judgment appealed from was final as to all claims and parties, or whether the district court has made a proper express determination that there is no just reason for delay and an express direction for the entry of judgment under Rule 54(b), Federal Rules of Civil Procedure. Because appellants here failed to provide the court with a list of docket entries or a notice of appeal, much valuable time had to be expended by three judges and personnel of the Clerk’s office repairing an incomplete brief and appendix, when this time would have been better spent in considering the merits of cases that are presented to us in proper form. The failure of some members of the bar to observe the basic requirements for briefs and appendices has long troubled this court, although we have been loathe to impose sanctions. For example, in United States v. Somers, 552 F.2d 108, 115 (3d Cir. 1977), we said: Heretofore we have hesitated to suppress appellate papers or to dismiss appeals for failure to comply with appellate rules. However, presentations such as the instant one go a long way toward dispelling that hesitation. We can no longer afford the effort and time to prepare counsels’ case and to supply counsels’ record deficiencies. Henceforth, our displeasure with counsels’ refusal, failure or unwillingness to master our procedures will necessarily result in the imposition of appropriate sanctions. Third Cir.R. 21(3). We now decide not to expend any more valuable judicial time performing the work of errant counsel, a practice that worked a tremendous disservice to the bulk of the litigants who appear before us represented by diligent counsel who do observe our rules. We are deciding this case deliberately, with an awareness of the institutional and precedential value of our decision. We dismiss this appeal for failure to file an appendix that conforms to our rules, in accordance with the authority set forth in Rule 21(3), quoted in note 1, supra. Cases similar to this in which counsel fail to observe the Federal Rules of Appellate Procedure and the rules of this court may also result in dismissal of appeals. We have explained the practical reasons for our action. There is jurisprudential justification for our decision as well. Each appellant in this court must of necessity allege that the district court violated some rule of substantive or procedural law relating to the finding of facts, the exercise of discretion, the choice of proper legal precept, the interpretation of the precept chosen, or its application to the facts as found. The litigant, then, who charges that the rules were not followed in the district court should himself follow the rules when he applies for relief in this court. Sauce for the goose is sauce for the gander. It may be argued that dismissal of an appeal under these circumstances unduly penalizes a litigant for the dereliction of. errant counsel. The short answer in this case, however, is that for the separate reason that we dismiss this particular appeal, see Part II infra, the litigants here will have a second opportunity to lodge a timely appeal. When this opportunity is not present, the appellant may wish to proceed against his or her counsel in an action for malpractice. “An aggrieved party in a civil case, involving only private litigants unlike a defendant in a criminal case, does not have a constitutional right to the effective assistance of counsel. The remedy in a civil case, in which chosen counsel is negligent, is an action for malpractice.” Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 260, 322 A.2d 114, 117-18 (1974) (Manderino, J., concurring). This appeal will be dismissed on the authority of Rule 21(3), because the appendix does not comply with the rules of this court. Alternatively, it will be dismissed for the reasons hereinafter set forth. II. Third Circuit Rule 21(1)(A) provides in pertinent part: Brief of the Appellant or Petitioner. The brief of the appellant or petitioner shall contain under appropriate headings and in the order here indicated: (b)(i) If the appeal is from the judgment of a district court, a statement of subject matter jurisdiction containing a certification that the appeal is from a final judgment in accordance with 28 U.S.C. § 1291; or is a specific exception for interlocutory decisions as provided in 28 U.S.C. § 1292; or, if the appeal is from an action involving multiple claims or multiple parties, a certification that the final judgment applies to all claims or parties, or that the district court has made a proper express determination that there is no just reason for delay and an express direction for the entry of judgment under F.R.C.P. 54(b). . . . The order of the district court from which this appeal is taken provides in relevant part: It is ORDERED that the respective motions to dismiss with prejudice of defendants, Emhart A.G., Emhart Corporation and Winterthur Swiss Insurance Company, be and are hereby GRANTED. It is further ORDERED that the motion to dismiss of defendant, Hill Refrigeration Division of Emhart Industries, is DENIED. Defendant shall file an answer within twenty (20) days of the date of this Order. All discovery shall be completed by October 15, 1979. Any motion for summary judgment shall be filed on or before October 15, 1979. Appendix at last unnumbered page. Appellants’ brief and appendix do not refer to an order of the district court making a determination that there is no just reason for delay and including an express direction for the entry of judgment under Fed.R.Civ.P. 54(b). Our independent examination of the district court docket entries reveals no such express order. Yet it should be hornbook law to any lawyer who elects to practice in federal court that Rule 54(b) governs the appealability of cases involving multiple parties and claims. E. g., C. Wright, Law of Federal Courts § 101 at 506-07 (3d ed. 1976). In any case, our Rule 21(l)(A)(b)(i) clearly alerts every litigant to the existence of the Rule 54(b) problem. Still appellants failed to notify the court of the true state of the record. This development reflects either gross negligence or deliberate misrepresentation on the part of appellants’ counsel. We wish to believe that it is the former and not the latter. We note with extreme melancholy that this case is not an isolated example, but one of dozens of appeals dismissed each year by this court after the cases have been fully briefed and assigned to a panel of judges for disposition on the merits. Lack of compliance with Rule 21 is another unhappy commentary on the professionalism of a relatively small number of lawyers who appear before us. Their dereliction dissipates the energies of the court, distracting our consideration from the merits of other cases, the great bulk of which are handled by competent counsel who have made themselves familiar with federal procedural and substantive law. Accordingly, we will dismiss this appeal for two independent and discrete reasons: for failure to comply with Third Circuit Rules and for lack of jurisdiction. Costs taxed against appellants’ counsel. . Third Circuit Rule 21(3) provides in part: If the court shall find that the provisions of this rule have not been adhered to, it may, in its discretion, impose sanctions as it may deem appropriate, including but not limited to the dismissal of the appeal, imposition of costs or disciplinary sanctions upon counsel. . Table X-6, “Appeals Commenced in the U.S. Courts of Appeals,” Annual Report of the Director, Administrative Office of the United States Courts, at A-174 (1979). . It should be noted that this caseload exceeds by twenty-two percent the assignment per judge recommended in P. Carrington, D. Mea-dor, & M. Rosenberg, Justice on Appeal (1976). These authors recommended 225 cases on the merits each year for United States Circuit Judges. Id. at 196. . When two independent reasons support a decision, neither can be considered obiter dictum; each represents a valid holding of the court. California v. United States, 438 U.S. 645, 689 n. 10, 98 S.Ct. 2985, 2992 n. 10, 57 L.Ed.2d 1018 (1978) (White, J., dissenting); Healey v. Catalyst Recovery of Pennsylvania, Inc., 616 F.2d 641, 654 (3d Cir. 1980) (Aldisert, J., dissenting). Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_fedlaw	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. INDEPENDENCE SHARES CORPORATION et al. v. DECKERT et al. PENNSYLVANIA CO. FOR INSURANCES ON LIVES AND GRANTING ANNUITIES v. SAME. Nos. 7146, 7147. Circuit Court of Appeals, Third Circuit. Nov. 11, 1939. Rehearing Denied Dee. 20, 1939. Walter Biddle Saul, Francis H. Bohlen, Jr., and Saul, Ewing, Remick & Saul, all of Philadelphia, Pa., for appellant Pennsylvania Co. for Insurances on Lives and Granting Annuities. Robert F. Irwin, Jr., George M. Kevlin, Joseph Whetstone, Harris J. Latta, Jr., Donahue, Irwin, Merritt & Gest, and Townsend, Elliott & Munson, all of Philadelphia, Pa., for appellants Independence Shares Corporation and others. Harry Shapiro, of Philadelphia, Pa., for appellees. Before BIGGS, CLARK, and JONES, Circuit Judges. BIGGS, Circuit Judge. A bill of complaint was filed in the court below by the appellees against the appellant, Independence Shares Corporation, a Pennsylvania corporation, and certain affiliated companies. The appellees purchased Capital Savings Plan Contract Certificates issued by Capital Savings Plan, Inc., and have alleged in their bill of complaint that these were sold to them by the fraud and misrepresentations of Capital Savings Plan, Inc. by the use and means of instruments of transportation or communication in interstate commerce and by the use of the mails. At the time of the sales, Independence Shares Corporation was a wholly owned subsidiary of Capital Savings Plan, Inc. Upon December 31, 1938, however, Capital Savings Plan, Inc. and Independence Shares, Inc. merged and the appellant, the resultant corporation, acquired all of the assets and assumed all of the liabilities of Capital Savings Plan, Inc. The bill of complaint also alleges that the assets of Independence Shares Corporation are being wasted and dissipated and that that corporation is insolvent. The bill prays the appointment of a receiver for the assets of the corporation who shall ascertain and adjudicate the claims of creditors and shall liquidate and dissolve the company. The complaint also asks for certain injunctive relief which we will discuss at a later point in this opinion. The bill is cast in the form of a class suit brought by the appellees not only on their own behalf but also for the benefit of all certificate holders similarly situated. The court below denied motions to dismiss the bill of complaint made upon the ground that it stated no cause of action and that the court was without jurisdiction, and referred the case to a master to hear and report upon the question of solvency or insolvency of the appellant. This order, 27 F.Supp. 763, filed May 18, 1939, has been appealed from by Independence Shares Corporation. The contract certificates purchased by the appellees called for payments to be made by the subscribers. These payments were made by the subscribers to the other appellant, The Pennsylvania Company for Insurances on Lives and Granting of Annuities as trustee. The Pennsylvania Company made certain deductions from the sums paid to it and invested the balance as directed by Independence Shares Corporation in Independence Trust Shares for the. accounts of the respective certificate holders. Independence Shares Corporation created these trust shares by itself purchasing the shares of stock of certain specified corporations. The trust shares represent interests in the stocks so bought. The Pennsylvania Company in turn purchased aliquot portions of the trust shares and holds its purchases as we have stated for the benefit of the accounts of the certificate holders. At the time of the filing of the bill of complaint a sum of money representing charges made by the appellant for the reinvestment of funds was in the possession of The Pennsylvania Company. By an order entered June 2, 1939, the court below enjoined The Pennsylvania Company from paying over the sum referred to to Independence Shares Corporation or otherwise disposing of it during the pendency of the action. The Pennsylvania Company has appealed from this order. Since the two appeals grow out of the same set of facts, we will dispose of them in one opinion. The complainants with one exception are citizens of Pennsylvania. The jurisdiction of the court below cannot be sustained therefore upon diversity of citizenship. Lee v. Lehigh Valley Coal Company, 267 U.S. 542, 45 S.Ct. 385, 69 L.Ed. 782; Salem Trust Co. v. Manufacturers. Finance Company, 264 U.S. 182, 44 S.Ct. 266, 68 L.Ed. 628, 31 A.L.R. 867; Osthaus v. Button, 3 Cir., 70 F.2d 392. Nor does the amount in controversy exceed the sum of $3,000. Section 24(1) of the Judicial Code as amended, 28 U.S.C.A. § 41(1). The claims of the appellees may not be aggregated and the claim of no one appellee amounts to more than $2,000. Moore’s Federal Practice, Vol. 2, Section 23.08; Pinel v. Pinel, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817; Lion Bonding & Surety Co. v. Karatz, 262 U.S. 77, 43 S.Ct. 480, 67 L. Ed. 871. In our opinion, none the less, the court below had jurisdiction of the controversy by virtue of the provisions of Sections 12 (2) and 22(a) of the Securities Act of 1933 (May 27, 1933, c. 38, Title I, 48 Stat. 84 and 86, 15 U.S.C.A. §§ 771(2) & 77v(a). Section 22(a) provides that “The district courts of the United States * * * shall have jurisdiction of offenses and violations under this title * * * and, concurrent with State and Territorial courts, of all suits in equity and actions at law brought to enforce any liability or duty created by this title [subchapter]. * * * ” Section 12(2) of the Act states that “Any person who * * * sells a security * * * by the use of any means or instruments of transportation or communication in interstate commerce or of the mails, by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, * * * and who shall not sustain the burden of proof that he did not know, * * * of such untruth or omission, shall be liable to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.” Jurisdiction in this case, however, is not dependent upon diversity of citizenship and amount in controversy. The field which is carved out for the operation of federal jurisdiction by Section 22(a) is “all suits in equity and actions at law brought to enforce any liability or duty created by this title [subchapter].” Since the Act stems from the exercise of federal power under .the commerce clause there is no question raised in the case on the line of power. Section 12(2) of the Securities Act therefore provides a right to sue in a District Court of the United States for one who has purchased securities upon an untrue statement of a material fact made by the use of any means of transportation.or communication in interstate commerce and that such a suit may be maintained by the aggrieved person in an action at law or by a bill in equity depending upon whether the cause of action is cognizable at law or in equity. At the present time, the remedy of the aggrieved person lies in the “civil action” prescribed by Rule 2 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The nature of the suit, however, remains as specified by Section 12(2). The defrauded person must seek to recover “the consideration” paid by him. The relief given by the section is for a money judgment or for a money decree payable to the individual who has been defrauded. Section 16 of the Act, 48 Stat. 84, 15 U.S.C.A. § 77p, providing that “The rights and remedies provided by this title [sub-chapter] shall be in addition to any and all other rights and remedies that may exist at law or in equity” does not relate to venue as indicated by the court below or enlarge the remedy given by Section 12(2). Congress by the language employed sought only to make it abundantly clear that it was not pre-empting this field to the federal jurisdiction, thereby prohibiting recovery to defrauded individuals under the law of the states as that existed prior to the passage of the Securities Act. Since the recovery of the appellees is limited as we have indicated, it follows that The Pennsylvania Company is not a proper party to the suit. The appellees have stated no cause of action against it and indeed have alleged no breach of duty upon its part cognizable under the Securities Act or otherwise. .The injunction against The Pennsylvania Company therefore may not be maintained. Nor does Section 12(2) enlarge the right of the appellees to the appointment' of a receiver for the corporation upon the ground that it is insolvent or its assets are being dissipated. The law in this respect remains as it was. See Pusey & Jones Co. v. Hanssen, 261 U.S. 491, 497, 43 S.Ct. 454, 67 L.Ed. 763, and the authorities there cited. It follows that none-of the prayers of the bill of complaint asking for specific relief may be granted. The complaint states a cause of action within the purview of Section 12(2) of the Securities Act, however, and ends with a general prayer for relief. Amendment may be made to the complaint pursuant to R.S. § 954, 28 U.S.C.A. § 777, and Rule 15(a) of the Rules of Civil Procedure by limiting this prayer to a demand for money judgment. Such an amendment would be one of form rather than of substance since the complaint sets forth every fact necessary to entitle the appellees to obtain such relief. It is clear from the complaint that the appellees seek the recovery of the consideration paid by them for their contract certificates and by the contents of the complaint Independence Shares Corporation is made fully aware of the charges which it must meet. United States v. Powell, 4 Cir., 93 F.2d 788. See McAndrews v. Chicago, L. S. & E. R. Co., 7 Cir., 162 F. 856. As was stated by the Supreme Court in Maty v. Grasselli Chemical Co., 303 U.S. 197, 200, 58 S.Ct. 507, 509, 82 L.Ed. 745, “Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end.” The complaint sets forth a cause of action at law rather than in equity, for while Independence Shares Corporation may occupy a fiduciary relationship toward the appellees and the other certificate holders, none the less the action given by Section 12(2) of the Securities Act is one against the seller of the securities for the recovery of money. The type of amendment from equity to law formerly permitted under Equity Rule 22, 28 U.S.C.A following section 723, is no longer necessary in view of Rple 2 of the Rules of Civil Procedure. The complaint as amended will serve as a continuation of the old suit, the filing of the original bill tolling the statute of limitations imposed by section 13 of the Securities Act, 15 U.S.C.A. § 77(m). See Friederichsen v. Renard, 247 U.S. 207, 213, 38 S.Ct. 450, 62 L.Ed. 1075, and the decisions there cited. It must also be borne in mind that under Rule 15(c) of'the Rules of Civil Procedure, an amendment when made relates back to the date of the original pleading. The question of whether the appellees upon a proper showing might not obtain injunctive relief against Independence Shares Corporation in aid of the remedy supplied to them by Section 12(2) of the Act, is not before us and therefore we do not pass upon it. In conclusion we state that the appellants contend that Section 12(2) of the Act gives the appellees no right to maintain their suit as a class action. We are unable to agree with this contention. The suit at bar is of the type denominated a “spurious” class suit and may be maintained under Rule 23(a) (3). of the Federal Rules of Civil Procedure. See Moore’s Federal Practice, Vol. 2, p. 2241, paragraph 23.04-(3). In the case at bar numerous persons are interested in common questions of law or fact affecting the several rights of many individuals. Common relief may be sought despite the fact that individuals may recover separate judgments different in amounts. It should be noted that the misrepresentations set forth by the bill are alleged to be common to the sales made by the agents of the appellant company and of Capital Savings Plan, Inc. to the appellees and the other subscribers upon whose behalf the suit was instituted. We do not at this time express an opinion upon the question whether subscribers who are not now named as parties plaintiff may intervene in the cause in view of the statute of limitations set up in the Act. Accordingly the orders appealed from are reversed and the cause is remanded with directions to proceed in conformity with this opinion. Moore’s Federal Practice states in respect to “spurious” class suits: “This is a permissive joinder device. The presence of numerous persons interested in a common question of law or fact warrants - its use by persons desiring to clean up a litigious situation.” Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_casetyp1_7-2	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". The OHIO CASUALTY INSURANCE COMPANY, a body corporate, and Jacqueline Marie Krasauskas, infant and John W. Krasauskas, father and next friend, Appellees, v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Appellant. No. 10018. United States Court of Appeals Fourth Circuit. Argued Nov. 2, 1965. Decided Nov. 5, 1965. Donald L. Allewalt, Baltimore, Md., for appellant. Alva P. Weaver, III, Baltimore, Md. (Robert E. Coughlan, Jr., and Lord, Whip, Coughlan & Green, Baltimore, Md., on brief), for appellee Ohio Casualty Ins. Co. Stanley Klavan, Silver Spring, Md., for appellees Jacqueline Marie Krasauskas, infant and John W. Krasauskas, father and next friend. Before HAYNSWORTH, Chief Judge, SOBELOFF, Circuit Judge, and MICHIE, District Judge. PER CURIAM. The judgment is affirmed upon the opinion of the District Court. Affirmed. Ohio Casualty Ins. Co. v. Pennsylvania Nat. Mut. Cas. Ins. Co., D.C., 238 F. Supp. 706. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
songer_r_natpr	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. MILBANK MUTUAL INSURANCE COMPANY, a Foreign Corporation, Appellant, v. Dale WENTZ, Leo Gefroh, as Surviving Husband of Barbara Gefroh, Deceased, Individually and on behalf of Leo Gefroh, a Surviving Child, Josephine M. Knutson, General Guardian of the Person and Estate of Kenneth Ray Carles and David Allen Carles, Minors. Eugene Gefroh and Barbara Gefroh as Administratrix of the Estate of Bernhard Gefroh, Deceased, Appellees. No. 17982. United States Court of Appeals Eighth Circuit. Nov. 10, 1965. Mart R. Vogel, Fargo, N. D., made argument for the appellant and filed brief. F. J. Smith, of Fleck, Smith, Mather, Strutz & Mayer, Bismarck, N. D., and E. F. Engebretson, of Cox, Pearce, Engebretson, Murray & Anderson, Bismarck, N. D., made argument for the appellees. F. J. Smith, Bismarck, N. D., filed brief for appellee Dale Wentz. E. F. Engebretson, Bismarck, N. D., filed brief for appellees Leo Gefroh, and others. David L. Milhollan, of Wolf, Glaser & Mihollan, Bismarck, N. D., filed brief for appellees Eugene Gefroh and others. Before MATTHES, RIDGE and GIBSON, Circuit Judges. GIBSON, Circuit Judge. This appeal is from the United States District Court for the District of North Dakota, holding appellant liable as an insurer under an automobile liability policy. Appellant is a South Dakota insurance corporation, and appellees were the litigants in a state court action which arose out of an automobile collision. Diversity of citizenship, with requisite amount, establishes jurisdiction. The substantive law of North Dakota applies. On July 21, 1959, Eugene Gefroh was driving a 1957 Ford automobile eastward along North Dakota U. S. Highway 10. With Eugene were his older brother Leo and Leo’s wife Barbara. It was nearly dark and the blacktop road was wet from a recent rain. Travelling at about 60 miles per hour, Eugene overtook a large truck on an upward grade. He pulled into the left lane to pass the truck and struck head-on a car driven by Dale Wentz. Leo’s wife, Barbara was killed and Leo was severely injured. Also injured severely in the crash was the driver of the other car, Dale Wentz. This 1957 Ford driven by Eugene was purchased a year earlier by his father Bernhard Gefroh and the certificate of title was in Bernhard’s name. Between Eugene and his father Bernhard, however, there was an oral agreement that Eugene could use the car and gradually repay his father the purchase price. At the time of the accident all but about $300 of the $1,900 purchase price had been repaid. Immediately after Bernhard purchased this car, he secured in his own name a liability insurance policy from appellant Milbank Mutual Insurance Corporation (hereafter referred to as Milbank or Appellant). The policy had a maximum coverage of $20,000 for multiple claims. The application for insurance indicated that Bernhard (called “Ben” therein) was the owner and that his son Eugene would operate the car approximately 25 per cent of the time. Since the original application the policy had been renewed without change twice and was in force at the time of the above-described collision. It does not appear to what extent the car was actually used by young Eugene at the time of the initial application for the insurance. However, at the time of the accident he was working in a neighboring town, and it is clear that he was driving the car about 90 per cent of the time. Upon receiving notice of the accident, Milbank undertook an investigation of the collision. On July 27, 1959, some six days after the collision, Milbank filed with the North Dakota State Highway Department a form SR-21 confirming that the Gefroh vehicle was covered by liability insurance issued by it. In June 1960 Bernhard Gefroh, the record owner of the car, died, and his wife was appointed administratrix of his estate. Approximately a year following the accident, August 12, 1960, suit was filed in a state court against Eugene Gefroh, driver of the Ford, the estate of Bern-hard Gefroh, as owner, and Dale Wentz, the driver of there other car. Plaintiffs in this suit were Leo Gefroh, a passenger in the car driven by his brother Eugene, for himself, on behalf of his wife Barbara who was killed in the collision, and their minor child; and Josephine Knutson, the guardian of two minor children of a prior marriage of Barbara Gefroh, deceased. Being a defendant in the suit, the driver of the other car, Dale Wentz filed a cross-claim against his fellow defendants. The total prayer for damages against Eugene Gefroh and the estate of Bernhard Gefroh was more than $340,000, thus greatly exceeding the policy coverage of $20,000.00. Milbank assumed the defense of the suit and began its preparations. On December 22, 1960, a year and a half after the collision, Milbank notified Eugene and the administratrix of Bernhard’s estate that it appeared to them that Eugene and not Bernhard was the owner of the auto at the time of the accident. Because of this, the letter continued, Milbank by undertaking the' defense of the matter was not waiving any of its rights to deny coverage. On receiving this “reservation of rights” notice, Eugene and the estate of Bernhard, in order to protect their interests, retained counsel who associated himself with the defense of the case. Milbank, however, continued with the preparations and made no further move to deny coverage or revoke the policy. On May 23, 1961, the attorneys representing plaintiff Leo Gefroh and cross-claimant Dale Wentz offered to settle all claims for a total of $20,000, the insurance policy limits. On May 29, 1961, the independent attorney for defendants Eugene Gefroh and the estate of Bernhard Gefroh addressed a letter to the attorneys for Milbank. Copies were sent to the attorneys for plaintiff Leo Gefroh and cross-claimant Dale Wentz. The letter stated that “there is practically no possibility of successfully defending these claims. * * * It is quite possible that verdicts in excess of $100,000 would be returned by a jury.” The letter continued that in view of the offer to settle $340,-000 in claims for the policy limits of $20,000 it would be mutually beneficial to both the insurer and insured if the offer were accepted. The attorney pointed out that a refusal to accept the offer would subject his clients to a risk of tremendous liability; and further, demanded that “full control over the defense of this matter” be turned over to him, if Mil-bank elected not to accept the settlement offer. Milbank did not accept the offer and a week later, only two days before the scheduled trial, it withdrew from the case. The other parties received notice of this withdrawal only a day before the scheduled trial. Thereafter, on June 6, 1961, the appellees herein stipulated for an entry of judgment in favor of plaintiff and cross-claimant against Eugene and the estate of Bernhard. After hearing testimony, the Court entered judgment as stipulated for a total of $21,925, of which $10,000 was to be paid to plaintiff and $11,925 to cross-claimant. Appellees then filed in the state court an action for declaratory judgment against Milbank seeking a declaration of its liability under the policy. The action was removed to the United States District Court for the District of North Dakota. The issues were submitted to the trial court on stipulated facts, including depositions and exhibits. These four issues were presented: 1. At the time of the original application of insurance, was there a misrepresentation of the ownership of the Ford? 2. Was there a change in the ownership prior to the accident? 3. Was the co-operation clause of the policy violated by the admission of liability and assumption of the obligation of the defense contained in the letter of May 29 ? 4. Do the policy provisions demanding that insured’s liability be established “after actual trial” relieve Milbank of the obligation to respond to the state court judgment? Resolving all issues in favor of the appellees the trial court answered all four of these questions in the negative and ordered Milbank to pay the amount set forth in the policy. From this judgment Milbank appeals. Milbank contends that the negative conclusion of each of these issues was erroneous. We shall deal with the issues in the order of their consideration by the trial court. The first point of asserted misrepresentation of ownership at the time the policy was originally purchased is of no merit. Bernhard Gefroh, the father, purchased the vehicle for his twenty-one year old son Eugene, paying therefor the entire consideration of some $1900 and had title registered in his name. There is no indication that Bern-hard did not immediately assume the ultimate right of control over the vehicle. The insurance application lists the insured, Bernhard Gefroh as the sole owner and also shows in item 6(c) that he has “other automobile/truck insurance” with Milbank under two additional policies; and in addition shows “Eugene Gefroh, son, age 21” as one of the drivers of the insured vehicle and that he would be driving it 25 per cent of the time. Milbank relies on the case of Didlake v. Standard Insurance Co., 195 F.2d 247, 33 A.L.R.2d 941 (10 Cir. 1952) as authority for the view that Eugene and not Bernhard was the actual owner. The facts of Didlake are clearly distinguishable. In Didlake the record owner was merely a “front man” to enable the real owner, a 17-year old minor, to secure the necessary financing and insurance for the vehicle. The minor was not even listed on the insurance policy as a driver. The record owner had no financial or possessory interest in the automobile, nor any intention of using it. There is no evidence that Eugene at the time of the ear’s initial purchase had any legally recognized interest in the car or any right to its control. The trial court correctly ruled that there was no misrepresentation of ownership at the time of the application for insurance. Milbank also points to the fact, although the insured represented that Eugene would be driving the car approximately 25 per cent of the time, he was driving nearly 90 per cent at the time of the accident. We do not believe the circumstances warrant a finding that this representation made more than a year before the accident in question amounted to a fraudulent misstatement. There is no indication that the statement was not true at the time it was made. Even more important, this representation of driving time can only be an estimate of future activity and is not a representation of an existing fact. It is a factor that is subject to change depending upon the personal situation and many other factors that affect the day-to-day living requirements of an individual. Obviously anyone insured with three insurance policies would be having other people driving his cars or trucks a considerable part of the time, and he should not be called upon at his peril to make a correct estimate of the future driving of each. The second issue raised by Milbank that there was a change in ownership of the automobile after the policy was issued, because of Eugene making periodic payments to his father with the ultimate intention of purchasing the automobile, is not well taken. Milbank refers to North Dakota, C.C. § 39-01-01, paragraph 22 which reads as follows: “22. ‘Owner’ shall mean a person who holds the legal title of a vehicle, or if the vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement, and with an immediate right of possession vested in the conditional vendee or lessee, or if a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor shall be deemed the owner for the purposes of the title.”; and further notes that § 51-01-04 of the same Code provides that a sale of a motor vehicle may be an oral transaction. Milbank contends by reason of the above statute that the agreement to make periodic payments with the intention of ultimately obtaining record title makes Eugene analogous to a conditional vendee, and as defined by the statute, the owner of the vehicle. This change in ownership, it contends was a fact materially changing the risk, and since it was not noted in the policy, the policy is void, Paragraph 22 quoted above is predicated upon the actual owner having an immediate right or possession and contemplates the usual situation of a fee owner holding title to a vehicle subject to a mortgage or having complete possessory rights under a conditional sale or lease with a right to purchase. The informal loose arrangement of the son reimbursing his father for the purchase price, if, as, and when he could, with the father retaining legal title and the right to use the automobile does not constitute a chattel mortgage or a conditional sale as contemplated by the statute. The father at all times retained an ultimate and immediate right of control. The transaction was informal, loose, executory, and oral and the reference to it as an executory oral agreement was a proper characterization of the same, giving the common ordinary meaning to such words and not treating them as words of art. Certainly there is nothing wrong in a parent purchasing a car for the use of his progeny. There is likewise nothing illegal about the child reimbursing the parent for the purchase with an eye to future ownership. The trial court held this to be an executory oral agreement, with legal title and actual ownership remaining in the father. We find no fault with this holding. Furthermore, it appears that the insurance company was at least partially aware of the situation. The insurance company knew by the application that the son was to be one of the drivers of the car and probably should have known that the car was bought for his considered use along with that of his father’s, since the father had other automobiles. The insurance agent of Milbank who took the application was not called as a witness nor deposed. It is possible that he had full knowledge of the facts and circumstances, and we may infer from his failure to foe called as a witness that his testimony would be unfavorable to appellant. Chicago, M., St. P. and P. R. Co. v. Slowik, 184 F.2d 920 (8 Cir. 1950); Wigmore on Evidence, 2 Vol. 2 Ed. § 285. Appellant places a good deal of emphasis on the cases of Bettinger v. Northwestern Nat. Cas., 213 F.2d 200 (8 Cir. 1954); and Allstate Insurance Co. v. McKenzie, 246 F.2d 151 (5 Cir. 1957). These cases validly represent the point that an unnoted transfer of the insured vehicle relieves the insurer of the duty to respond. These cases are predicated upon the point that a transfer has taken place. In the case at bar there has been no transfer, so they fail to add any authoritative weight to appellant’s argument. In connection with a misrepresentation issue, we must consider the burden of proof question. The case of Brown v. Inter-State Bus. Mens Acc. Ass’n, 57 N.D. 941, 224 N.W. 894 (1929) has been cited by appellant as authority for its position that the burden of proof rests on the assured. Appellees have countered by referring to two later cases which took the opposite position. Equitable Life Assur. Soc. of United States v. Boisvert, 66 N.D. 6, 262 N.W. 188 (1935); New York Life Ins. Co. v. Hansen, 71 N.D. 383, 2 N.W.2d 163 (1941). The conflicting positions taken by these cases is resolved by the latter cases. The burden of proving materiality or intent to deceive contained in a misrepresentation made by an insured in his insurance application rests on the insurer. The trial court’s finding that Bernhard was, in fact, the owner has adequate support in the record. In concluding discussion on this issue the Court makes this final observation. Most automobile insurance policies are purchased informally or by ’phone with a request that a certain car be covered by insurance. Routine questions are asked, the significance of which often the uninformed and unrepresented purchaser knows nothing, depending to a large extent on the insurance agent to advise him of the conditions and pitfalls involved. The law, therefore, properly places the burden on the insurance company to prove the fraud or material misrepresentation. Absent a showing of such fraud the insurance company should furnish to the insured and to the public the apparent protection afforded by the policy. Paragraph 5 of the Conditions of the policy provides: “Assistance and Cooperation of the Insured— * * * the insured shall cooperate with the company and, upon the company’s request, attend hearings and trials and assist in making settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of any legal proceedings in connection with the subject matter of this insurance. The insured shall not, except at his own cost * * * assume any obligation * * * ” Milbank contends this condition was violated by Mr. Breidenbach, personal counsel for Eugene Gefroh and the administratrix of Bernhard Gefroh’s estate, recommending that it settle all claims for $20,000, the maximum policy limits. Mr. Breidenbaeh’s letter is quoted to a certain extent in the factual summary and will not be repeated at length, but it states that: “the facts are very grim indeed from the standpoint of the defense * * * there is practically no possibility of successfully defending these claims if the matter is tried * * Plaintiffs will recover verdicts greatly in excess of policy limits * * * possibly verdicts in excess of $100,000 * * the defense was extremely limited” and on the basis of such reasonings or evaluations requested the insurance company to accept the offer of compromise of $20,000 for all claims previously made. The letter continued that if the offer of compromise was refused, he demanded on behalf of Eugene Gefroh and the estate of Bern-hard Gefroh, full control over the defense of this matter. Copies of this letter were sent to the respective counsel for the litigating parties. Milbank viewed this as conceding liability and the revealing of policy limits as lack of cooperation. This contention must be viewed in the light of the circumstances existing at the time the letter was written. Milbank was duly notified of the accident, statements concerning the same were freely given by Eugene Gefroh, the driver, under date of December 11, 1959 and September 22, 1960, and by his mother Barbara Gefroh, administratrix, under date of about September 22, 1960. Eugene’s deposition was taken December 12, 1960, almost 18 months after the accident, after which “reservation of rights notice” was sent to Barbara Gefroh, administratrix stating inter alia: “Under the circumstances this letter will constitute the formal notice to you that in undertaking to defend the litigation growing out of the accident, investigating the same, adjusting or attempting to adjust the claims of the parties, we are not waiving any of our rights to deny liability under the policy because of the breach of any of its provisions, terms or conditions and especially the one with respect to ownership of the automobile.” After receiving this letter, Barbara and Eugene employed Mr. Breidenbach. Milbank, after handling the matter and controlling the same from shortly after the accident, July 21, 1959, until December 22, 1960, abruptly laid the whole litigation with its attendant worry and expense in the lap of the insured. There was no withholding of information by the insured nor by Eugene, the covered omnibus driver. No serious attempt was made by Milbank to settle or adjust the matter nor even obtain an early court decision on the belatedly raised coverage question. Appellant had a contractual obligation to defend and pay any judgment or any settlement made by it within policy limits. At this stage the interest of the insurance company (Milbank) was in conflict with its policy holder. Later the case was on the trial docket, set for June 7, 1961. Mr. Breidenbach, the personal attorney of the insured, waited until the last few days preparatory to trial to write the letter to which Milbank takes exception. The letter contained no admissible evidence nor disclosed information which under the circumstances was necessarily prejudicial to appellant. This course of conduct does not amount to a lack of co-operation by insured but only constitutes protective measures necessary to meet the increasingly acute risks involved. The cases cited by Milbank of Buckner v. Buckner, 207 Wis. 303, 241 N.W. 342 (1932) and Coleman v. New Amsterdam Casualty Company, 247 N.Y. 271, 160 N.E. 367, 72 A.L.R. 1443 (N.Y. 1928), correctly state the law that a substantial lack of co-operation is a defense to an insurance company’s liability. The lack of co-operation found in these two cases is much greater than the alleged non-co-operation here. Buckner involved a suit between brothers with the insured making conflicting statements, traveling to a neighboring state so as to be served there with process; and allowance of a default judgment in that state, which eventually served as a basis for the Wisconsin judgment to which the insurance company was asked to respond. The Coleman case involved a situation in which the insured would not answer any questions which might be of value to the defense of the case, made unjustifiable demands on insurer, and refused to sign a responsive pleading. The above cases are sound in their legal concepts and correct in their application to factual situation involved, but cannot be the basis for avoiding liability in the present case. The trial judge in his Memorandum Opinion (not reported) properly held on this issue “in view of the circumstances surrounding the course of action taken by Eugene and Barbara (administratrix), through their personal attorney, Mr. Breidenbach, this Court cannot say that the co-operation clause of the policy was violated, either in letter or spirit.” The last major issue raised by appellant is the application of Paragraph 6 of the policy conditions which states as a condition precedent to liability that: “No action shall lie against the company unless * * * the insured shall have fully complied with all of the terms of this policy nor until the amount of the insured obligation to pay shall have been * * finally determined either by judgment against the insured after actual trial or by written agreement of the insured, claimant and the company.” (Emphasis supplied) The question is whether this condition is waived by the position taken by Mil-bank, or if not waived, was it satisfied by the trial proceedings conducted in the state court. The decision of the trial court was based narrowly on the doctrine of equitable estoppel holding that the insurer’s conduct as disclosed by the record was such as to preclude Milbank from asserting as a defense the so-called “after actual. trial” clause. And, further, that the proceedings in the state court involving the stipulation for judgment and actual entering of judgment “could, in the opinion of this Court, be considered an ‘actual trial’.” For our purposes, it is not necessary to consider whether the proceedings had in the state trial court satisfied the requirements of Paragraph 6. The trial court was correct in its decision denying Milbank the benefit of the “after trial” clause on the basis of equitable estoppel. However, even though closely related, we believe that the decision could have been more solidly based on the doctrine of waiver. It is our opinion that if a liability insurance carrier unjustifiably refuses to take up the defense of a suit against its insured or makes an unwarranted withdrawal from the defense of the suit, the insured may proceed alone and make any good faith settlement of the claims against him. The insurance company may not at this point interpose a policy requirement of “after actual trial” to defeat recovery against it. This provision of the policy was waived by the insurer when it needlessly abandoned the insured. The rule is clearly illustrated in the language of Nixon v. Liberty Mutual Insurance Co., 255 N.C. 106, 120 S.E.2d 430, 433 (1961): “The courts generally hold that where a liability insurer denies liability for a claim asserted against the insured and unjustifiably refuses to defend an action therefor, the insured is released from a provision of the policy against settlement of claims without the insurer’s consent, and from a provision making the liability of the insurer dependent on the obtaining of a judgment against the insured; and that under such circumstances, the insured may make a reasonable compromise or settlement in good faith without losing his right to recover under the policy. Annotations 142 A.L.R. 812 and 49 A.L.R.2d 744. * * * ” This “after trial” contention also was raised by the insurance company in Kelso v. Kelso, 306 S.W.2d 534, 540 (Mo. 1957). The court there said: “(The) garnishee’s conduct in wrongfully refusing to defend the suit or to assume any liability for a judgment that might be obtained therein * * * amounted to a waiver of the so-called ‘after trial’ clause. ‘Undoubtedly the insured may waive the condition requiring a trial of the issue, and the authorities are practically unanimous in holding that a denial of liability and refusal to take the defense is a waiver of this condition.’ Butler Bros. v. American Fidelity Co., 120 Minn. 157, 139 N.W. 355, 358 [44 L.R.A.,N.S., 609].” (other citations omitted). The facts in this case support a conclusion that insureds were unjustly deserted by appellant. Insureds were faced with claims exceeding $340,000 while being covered by a policy with a mere $20,000 limit. There is little doubt on the issue of negligence, and there is evidence that would support a finding of gross negligence. At the same time, the insureds had been informed that appellant was reserving its rights to deny coverage of the policy. After more than 17 months of preparation, insureds were presented with a settlement which, if accepted, would remove the spectre of financial ruin. With the trial scheduled to take place in a few days, the steps taken by insureds’ counsel were reasonable and warranted under the circumstances, and were necessary to properly protect the insureds’ interest. The letter in question, written by insureds’ personal counsel, requested a settlement or control over the defense. This was not an unreasonable request. There was no demand for Milbank’s withdrawal. This they did of their own volition. Therefore, we hold that appellant’s withdrawal two days before the scheduled trial was both unwarranted and unreasonable. Being relieved of the condition of the “after trial” clause due to Milbank’s withdrawal, the insured may proceed to make a reasonable settlement. Standing alone the insureds were placed in the unenviable position of having to choose between two equally foreboding alternatives. They could choose to face an extremely serious trial in which the possibility of a substantial judgment far in excess of the policy limits was imminent. Or they could settle the suit without trial for the $20,000 policy limits and then face the insurance company who would be seeking refuge behind the “after trial” condition and other asserted defenses. Under the circumstances we cannot say that the choice was not proper or that the settlement effected was unreasonable. Appellant is liable under the policy. The issues considered by the Court thus far in the opinion are dispositive of the appeal. However, mention should be made of the contention of cross-claimant Wentz that Milbank should be estopped from denying coverage. Milbank by its conduct in continuing to handle the case and assume the representation of insured for a period of over 17 months (and over four months after having raised and investigated the ownership question) might well be estopped from denying coverage. Especially is this true when the insurer makes no effort during these months to seek a determination of the ownership issue. However, the decision of the trial court was not specifically based on this doctrine, and there is no necessity for us to take a final position on this issue. Appellee Wentz further pointed out that the filing of SR-21 form by Mil-bank, stating in effect that it had issued a liability policy on the ear in question, estopped Milbank from denying coverage. It appears to the Court from the cases cited that the matter of conclusiveness of an SR-21 form or its equivalent, since it affects the rights of third parties, together with public welfare considerations of highway safety, presents a matter of public policy for each state. There are no North Dakota cases on this point. Since it was not part of the decision below and is not necessary to a decision in this case, it will be left open to consideration by the state courts. The trial judge gave full consideration to the various viewpoints of all the litigating parties. His findings of fact must be approved by this Court as none of them can be set aside under Rule 52, Fed.R.Civ.P., since the same are not “clearly erroneous.” In viewing “the evidence in the light most favorable” to plaintiffs (Skelly Oil Co. v. Holloway, 171 F.2d 670, 674 (8 Cir. 1948)), together with the application of proper legal principles applied by the District Court, we hold that the judgment of the District Court should be affirmed. Judgment affirmed. Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. 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. PROBERT v. CHICAGO, I. & L. RY. CO. No. 6290. Circuit Court of Appeals, Seventh Circuit. Dec. 11, 1937. Clyde L. Day, Howard W. Hayes, and Raymond B. Morris, all of Chicago, 111., for appellant. John D. Black, George B. Christensen, and Douglas C. Moir, all of Chicago, 111., for appellee. Before EVANS, Circuit Judge, and LINDLEY and BALTZELL, District Judges. BALTZELL, District Judge. This is an action wherein appellant sought to recover damages from appellee for injuries which are alleged to have been sustained because of certain acts of negligence on the part of appellee in the operation of one of its trains. The declaration is in three counts. The act of negligence charged in the first count is that appellee failed to warn appellant that its engine, with freight cars attached, was obstructing the public highway upon which he was traveling in an automobile. The second count charges that, at the time of the accident, the following statute was in force in the state of Indiana, the state in which the accident occurred, to wit: “Whoever, being a conductor or other person having charge of, or running a railroad train, carrying, or used for carrying, freight, permits or suffers the same, or any car or locomotive engine composing the same, to remain standing across any public highway, street, alley or farm crossing, or who, whenever it becomes necessary to stop such train across any public highway, street, alley or farm crossing fails or neglects to leave a space of sixty (60) feet across such public highway, street, alley or farm crossing, shall be fined.” 4 Burns’ Revised Statutes Annotated, 1933, § 10-3904. It is further charged in this count that appellee violated the provisions of the statute in that it failed to leave a space of 60 feet over the highway as therein provided. The third count charges that appellee failed to ring the bell on the engine continuously until it had fully passed the highway crossing, in violation of an Indiana statute. 4 Burns’ Revised Statutes Annotated, 1933, § 10-3912. The acts of negligence charged are alleged to have been the proximate cause of the accident in which appellant received his injuries. The case was tried to a jury, and,»at the close of the evidence introduced on behalf of appellant, the district court sustained appellee’s motion for a directed verdict in its favor and directed the jury to return such a verdict. The jury returned a verdict for appellee and the court rendered judgment thereon, from which judgment this appeal is being prcjsecuted. The only question presented is whether or not the District Court erred in giving a directed verdict in favor of appellee. At all times with which we are here concerned, appellee owned and operated a railroad extending from the city of Chicago, through the state of Indiana, to the city of Louisville, Ky. On October 3, 1932, a freight train was being operated upon its railroad and reached Wanatah, Ind., at about 4:30 o’clock that morning. The railroad extends in a northerly and southerly direction at that place, and the train was traveling in a northerly direction. It consisted of a locomotive engine, tender, caboose, and several freight cars. At Wanatah, and just before it reached the Pennsylvania Railroad crossing, it cut off all of its cars except a “deadhead” caboose and two low-sided coal cars, one of which was loaded with wheels and the other with coal. The train then consisted of the engine, tender, “deadhead” caboose, and the two'cars in the order named. About a fourth of a mile north of Wanatah there is a public highway, which is known as U. S. highway No. 30 and which extends in an easterly and westerly direction and crosses over the tracks of appellee’s railroad at that point, In addition to the main track, there is also a switching track'which crosses the highway at that point and joins the main track a short distance north of the highway crossing. At about 3:30 o’clock on that morning (October 3, 1932), appellant, his brother Edward, and a young man by the name of Stolarsky, left their home in Chicago, 111., in a Chevrolet coupé, en route to Steuben-ville, Ohio. Edward was driving the automobile. Appellant, who had never driven an automobile, was seated next to the door on the right-hand side, holding on his lap a Boston bull dog named “Paclcey.” Seated between the two Proberts was Stolarsky. Shortly after leaving their home, they entered U. S. highway No. 30 and continued traveling in an easterly direction upon that highway, until they reached the point where it crossed the railroad track of appellee just north of Wanatah, Ind. This point was reached shortly after 5 o’clock that morning. A short time prior thereto, the train, consisting of an engine, tender, “deadhead” caboose, and two freight cars, (gondolas) on appellee’s road, had passed over this highway crossing going north and stopped just as the last car had cleared the switch, a short distance north of the highway crossing. The purpose of its movement was to place the last car, which was loaded with coal, on the switch, and to leave it at a point a short distance south of the highway crossing. As the train passed over the crossing going north, the rear brakeman got off at the highway crossing to guard it. The other brakeman got off the train at a point where it cleared the switch and opened it so that the train could enter. He remained at that point. The train then backed on the switch, and, as the second car passed over the crossing, the rear brakeman, who was guarding the crossing, boarded it so that he could uncouple the coal car. At the time the train stopped for the uncoupling of the coal car, the rear end of the tender was just south of the center of the highway. The engineer was seated in the cab of the engine, watching for the signal of the brakeman to pull out. The signal was given at a time when the train had been over the highway crossing just long enough for the brakeman to uncouple the coal car, not to exceed two minutes. The engineer opened the throttle, and the train moved forward about 10 feet, when he saw the lights of the automobile in which appellant was riding, as a gratuitous passenger, approaching on the highway from the west at such a rate of speed that he believed it could not be stopped in time to avoid striking his train. He immediately stopped the train before the automobile struck it. The automobile struck the “deadhead” caboose at a point near the front trucks. It struck with such force that the caboose was derailed, even though it weighed approximately 37,000 pounds. The driver of the automobile was killed, and appellant was injured. The engineer testified positively, and it was not contradicted, that the headlights on the engine, and the light in the cab, were burning, and that the bell was ringing at all times, and continued to ring after the accident. The engineer further testified that it was daybreak, and that in assisting the injured he opuld see distinctly and did not need a flashlight. It had been raining some during the night and was slightly misty that morning. The highway was straight for at least IV2 miles west of the crossing, and there was nothing to obstruct the view of one approaching it from that direction. The caboose had windows in its sides and there was an oil lamp burning within at the time the automobile collided with it. Regular highway signs, warning that a railroad crossing was being approached, were displayed, as provided by statute. Appellant testified that the last thing he remembered before the accident was that he was trying to make “Packey” (the Boston bull dog) more comfortable on his lap, and that he was “not concerned in driving of a car.” He further said “I did not pay any attention to that feature. I had implicit faith in my brother’s driving and I didn’t pay any attention to that.” Stolarsky, however, testified that he heard appellant, just before the accident, say “Look out, Ed.” The negligence alleged in the first count of the declaration is that appellee failed to warn appellant that its train was across the highway upon which he was traveling. It must be kept in mind that the uncontradicted evidence establishes the fact that there were warning signs along the highway as he approached the crossing. These signs served notice upon him that he was about to cross a railroad track, and that he must exercise ordinary care for his safety. Furthermore, 'a caboose weighing approximately 37,000 pounds, and in which an oil lamp ,was burning, was standing across the highway at the time he approached the crossing. The headlights on the automobile in which he was riding were burning, and the brakes were in good working condition. Any negligence on the part of the driver cannot i>e imputed to appellant, but it cannot be said that, because he was a gratuitous passenger, he was relieved from the exercise of ordinary care for his own saf ety. Even though he may have exercised ordinary care for his own safety, if the proximate cause of the accident was the negligence of the driver of the automobile, he cannot recover. In the case of Brown v. Southern Railway Company, 61 F.2d 399, 400 (C.C.A.5), the court was confronted with a situation very similar to the one with which we are here confronted. In that case an automobile collided, in the nighttime, with a freight car standing upon a highway crossing. One of the negligent acts charged was the lack of warning on the part of the railway company. In the course of its opinion, the court said, “There is no doubt that the negligence of the driver was the proximate cause of the accident and therefore the passenger could not recover.” Appellee had the right to use the switching track and the main track, both of which crossed U. S. highway No. 30, for the purpose of moving its trains over them, and it was in the exercise of that right at the time of the accident. It was doing nothing more than was necessary in the performance of its legitimate work, that is, the placing of a car of coal on its switching track. No longer time was consumed than was reasonably necessary in the performance of that work. It was not necessary that it have a light on each of its freight cars as they passed over the crossing. Nothing in the evidence indicates that it was unnecessarily using such crossing, and no negligent acts on its part, as alleged in the first count of the declaration, are shown in that connection. See Orton v. Pennsylvania Railroad Co., 7 F.2d 36, 38 (C.C.A.6); Evans v. Erie Railroad Co. (C.C.A.) 213 F. 129; Sisson v. Southern Ry. Co., 62 App.D.C. 356, 68 F.2d 403. The second count of the declaration charges the violation of an Indiana statute., Burns’ Ann.St.1933, § 10-3904, which, in substance, provides that no train shall “remain standing across any public highway” but when necessary to stop while the cars are on a highway, the train shall be “cut” and a space of 60 feet shall be opened to permit the traveling public to use such highway. This statute must be reasonably construed and effect given to it so that appellee will not be deprived of the use of its tracks. It has no application in the instant case where the train remained standing across the highway for such a time only as was necessary to uncouple the coal car which was being placed on the switch. The uncontroverted evidence is to the effect that it remained standing for only that length of time. To apply the statute to such a situation would, in effect, deprive appellee of the use of its tracks at this highway crossing. The movements of the train, just prior to the accident, were legitimate, and the fact that the engineer brought it to a stop prior to the impact shows that he was in the exercise of due care in its operation. Had the train been moving at that time, the result might have been more serious. As was said by the court in the case of Orton v. Pennsylvania Railroad Co., supra, the use of the crossing, “even if negligent, was an incident and not a concurring proximate cause of the accident.” However, in the instant case, there is an absolute lack of evidence showing any negligence on the part of appellee which in any manner contributed to the accident. The statute in question has been construed by the highest courts of Indiana and is held inapplicable to situations similar to the one with which we are here concerned. In speaking of this statute the court, in the case of Pennsylvania Railroad Co. v. Huss, 96 Ind.App. 71, 180 N.E. 919, 921, said: “It was not enacted in order to protect persons from damage to either person or property occasioned by collision with a car or cars necessarily obstructing a highway for a reasonable time.” See, also, Cleveland, C. C. & St. L. Ry. Co. v. Gillespie, 96 Ind.App. 535, 173 N.E. 708. There is no evidence to sustain the charge that this statute was being violated by appellee at the time of the accident. The third count of the declaration charges that appellee violated the provisions of an Indiana statute requiring the continuous ringing of the bell on the engine until it has passed the crossing. The answer to the charge in this count is that the engine had completely passed the crossing before the accident and, hence, the statute was not being violated at that time. There remained only a part of the tender upon the highway, and it was not struck by the automobile. The automobile struck the caboose near its front trucks, which were several feet back of the tender. Furthermore, it is the apparent purpose of this statute to warn travelers on the highway of the approach of an engine. After the engine has approached a crossing while the bell is ringing and, in fact, has passed entirely over it, as in the instant case, the statute has then been satisfied. In discussing his position with reference to the charge in this count, appellant, in his reply brief, says that, “We concede there is considerable merit to the argument of the appellee on this contention.” The undisputed evidence upon this question is that the bell was ringing at all times when the engine passed over the crossing, and continued to ring after the accident. There was no substantial evidence to support the claims of appellant, as contained in either count of the declaration, and the District Court properly directed a verdict in favor of appellee. The judgment is affirmed. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_interven	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case. UNITED STATES v. BATRE. No. 7124. Circuit Court of Appeals, Ninth Circuit. March 12, 1934. Clifton Mathews, U. S. Atty., and K. Berry Peterson, both of Phomix, Ariz., for appellant. Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges, GARRECHT, Circuit Judge. Appeal from judgment and decree of District Court adjudging a prior contractual lien, held by the mortgagee of an airplane, to be superior and paramount to a lien created by statute for violation of section 11 of the Air Commerce Act of 1926 (49' USCA § 181). There is no dispute as to the facts which were found by the District Court to be substantially as follows: One Clair K. Seholey, the owner of a certain biplane, flew the same from Mesdeo into the United States, landing near Florence, Ariz., which had not been designated as an airport of entry by the Secretary of the Treasury. Seholey reported no circumstances of a forced landing to the collector of customs for the District of Arizona, as would be required to avoid penalty. About three days after his landing in Florence the airplane was seized by inspectors of customs and was placed in the custody of the collector. Alma R. Batre, appellee, was the holder of a duly recorded chattel mortgage in the sum of $4,000, secured by said airplane. A libel in rem to collect the penalty was filed against the airplane, as provided by statute (49' US CA § 181). Thereupon appellee filed an “In-tervener’s Cross Bill” alleging existence of a chattel mortgage; that it remained unpaid; and that the intervener had no knowledge that the aircraft was being used in violation of the Air Commerce Act. The prayer in intervention was for a declaration that the lien of the chattel mortgage be adjudged superior to the lien for the penalty and that if the airplane he ordered sold the proceeds he first applied to payment of the mortgage. The judgment of the lower court imposed the penalty required, declared the same to he a lien upon the airplane, and ordered the airplane sold with the proceeds to be applied as follows: First, to costs and expenses of seizing, holding, and sale; second, to payment of amount of mortgage; and, third, to payment of the penalty. From this judgment the government appeals. The record comes to us on the undisputed facts, the sole point urged as error upon appeal being the action of the court in giving the lien of the chattel mortgage priority to the penalty lien of the statute. By the statute the Secretary of the Treasury is authorized to designate places as ports of entry at which airplanes crossing the international border must land, and te make such regulations as may be deemed necessary. 49 USCA § 177. For the violation of this statute penalties were imposed, among others being a civil penalty of $506 upon any person violating any regulation, and in case the violation he by the owner or the person in command of the airplane the penalty shall he a lien against the aircraft collectible by proceedings in rem, against the aircraft, conformable to civil suits in admiralty. 49 US CA § 181. In conformity to this statute regulations were promulgated by the Department of Commerce and by the Secretary of the Treasury, making it incumbent upon the person in command of aircraft contemplating entry into the United States from any foreign port or place to inform the collector of customs at the place of intended first landing of the proposed flight; to immediately report upon landing to said collector; and providing for declaration of contents. Should there he a forced landing the regulations make provision for immediate report and inspection. There is also provision exempting regular carriers from certain of the regulations. This is the first time this court has been called upon to construe the penalty provisions of the Air Commerce Act, and we have applied thereto the recognized rules of construction. “Cardinal rules for the construction of a statute are that the intention of the legislative body which enacted it should he ascertained and given effect, if possible, regardless of technical rules of construction and the dry words of the enactment; that that intention must he deduced not from a part but from the entire law; that the object which the enacting body sought to attain and the evil which it was endeavoring to remedy may always be considered for the purpose of ascertaining its intention; that the statute must he given a rational, sensible construction; and that, if this be consonant with its terms, it must have an interpretation which will advance the remedy and repress the wrong.” Stevens v. Nave-MeCord Merc. Co. (C. C. A.) 150 F. 71, 75. See U. S. v. Ninety-Nine Diamonds (C. C. A.) 139 F. 961, 965, 2 L. R. A. (N. S.) 185; Interstate Drainage & Inv. Co. v. Board of Com’rs, etc. (C. C. A.) 158 F. 270, 273; U. S. v. Hogg et al. (C. C. A.) 112 F. 909, 912. Generally speaking: “Statutes are construed strictly against forfeiture. A statute which subjects one man’s property to be affected by, charged or forfeited for the acts of another, on grounds of public policy, should be strictly construed; it cannot he done by implication.” Lewis’ Sutheiiand, Statutory Construction (2d Ed.) vol. 2, p. 1020. However, there is a long line of eases which hold that: “Statutes to prevent frauds upon the revenue are considered as enacted for the public good and to suppress a publie wrong, and therefore, although they impose penalties and forfeitures are not to be construed like penal laws generally, strictly in favor of tbe defendant; but they are to be fairly and reasonably construed, so as to carry out the intention of: the legislature.” U. S. v. Stowell, 133 U. S. 1, 12, 10 S. Ct, 244, 33 L. Ed. 555, and eases there cited. See, also, Goldsmith, Jr. Grant Co. v. U. S., 254 U. S. 505, 510, 41 S. Ct. 189, 65 L. Ed. 376; U. S. v. Ryau, 281 U. S. 167, 172, 52 S. Ct. 65, 76 L. Ed. 221; U. S. v. One Black Horse (D. C.) 129 F. 167. The power of Congress to enact this legislation must be conceded — it is a fundamental idea of sovereignty that a nation may say who shall cross its borders and when and in what manner. The International Convention for the Regulation of Air Navigation (1919) provided in article 1 of its rules that: “The high contracting parties recognize that every power has complete and exclusive sovereignty over the air space above its territory.” The purpose of the Congress in enacting the Air Commerce Act of 1926 is revealed in the language of the accompanying report of the Committee on Interstate and Foreign Commerce as follows: “The enforcement of the foreign-commerce regulations by the civil penalties collectible in administrative or admiralty proceedings is the same principle as is used in the enforcement of the customs, immigration, narcotic drug, and navigation laws, and the provisions of the bill are based upon the provisions of those laws.” Another pertinent consideration is whether the thing or only the person can be considered the offender. The fact that the statute provides that the proceeding be “in rem” is an indication that the airplane can properly be considered the offender, and this without straining the words of the statute. The Palmyra, 12 Wheat. (25 U. S.) 1, 14, 6 L. Ed. 531. If the penalty is incapable of enforcement, which is the result if the decision of the lower court is affirmed, then this provision affords no aid in preventing violation of the law. It can readily be seen that if a lien created by a chattel mortgage is held superior to this penally lien those so disposed can always evade it by inortgaging the airplane up to or beyond its actual value, with the result that the government could never collect the penalty and the law would be without force. Its object would not be accomplished. Ordinarily, the word “penalty” is regarded as being substantially synonymous with the word “forfeiture,” both indicating a punishment, and no reason here appears for making a distinction. While the statute does not in terms declare a forfeiture, still the enforcement of the penalty lien, in effect, operates to bring about such a result. Jf this was not intended the remedy must he sought from Congress, not the courts. An inspection of the act and the regulations pursuant thereto further indicates that revenue alone is not the sole purpose of the law. A firm hold upon immigration, narcotic drug trade, and protection to the public health is also contemplated. There are cases to the effect that it is not necessary that the act be one in aid of the public revenue in order to work a forfeiture. Forfeiture has been decreed in eases of vessels failing to have the name displayed in a conspicuous manner. The Lewellen, 15 Fed. Gas. 444, No. 8307, and in eases where vessels have carried more passengers than permitted by law, Hatch v. The Steam-Boat Boston (D. C.) 3 F. 807. In the latter case the court held the penalty lien was not divested by subsequent sale to a bona fide purchaser. Nor are we here dealing with an innocent owner who has been injured by the act of some third person, without his knowledge or consent. Here the owner was in possession and command of the aircraft; he was the one who violated the regulation. True if the penalty lien is adjudged paramount, a hardship falls upon the mortgagee; but the mortgage w~as entered into after passage of the Air Commerce Act and the mortgagee know, or should have known, of the provisions of the act. In the circumstances, the Air Commerce Act became a part of the mortgage. The airplane was permitted to remain in the possession of the owner without restriction upon the use and the mortgagee having' left it within the power of the owner to- violate the la,w cannot now complain. The Live Oak (D. C.) 30 F. 78. The Supreme Court of the United States, speaking through Mr. Justice Story, says in Harmony v. United States (U. S. v. Brig Ma-lek Adhél, etc.), 2 How. (43 U. S.) 210, 233, 11 L. Ed. 239: “The next question is, whether the innocence of the owners can withdraw the ship from the penalty of confiscation under the act of Congress. Here, again, it may be remarked that the act makes no exception whatsoever, whether the aggression bo with or without the co-operation of the owners. The vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to -which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner. * * * It is not an uncommon course in the admiralty, acting under the law of nations, to treat the vessel in which or by which, “ * * a wrong or offence has been done as the offender, without any regard whatsoever to the personal misconduct or responsibility of the owner thereof. And this is done from the necessity of the case, as the only adequate means of suppressing the offence or wrong. * * * The doctrine also is familiarly applied to cases of smuggling and other misconduct under our revenue laws; and has been applied to other kindred eases, such as cases arising on embargo and non-intercourse acts.” Had the Congress desired an exemption from penalty under this act to apply to innocent third parties, it would have been so stated, as has been done in other enactments. 27 USCA § 40. Judgment of the lower court is reversed, and cause remanded, with directions to enter a judgment granting the penalty lien priority to the lien of the chattel mortgage. Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case? A. no intervenor in case B. intervenor = appellant C. intervenor = respondent D. yes, both appellant & respondent E. not applicable Answer:
sc_authoritydecision	D	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION v. NATIONAL LABOR RELATIONS BOARD. No. 53. Argued November 19, 1952. Decided March 9, 1953. Elisha Hanson argued the cause for petitioner. With him on the brief were William K. Van Allen and Arthur B. Hanson. Bernard Dunau argued the cause for respondent. With him on the brief were Acting Solicitor General Stern, George J. Bott, David P. Findling and Mozart G. Ratner. Mr. Justice Burton delivered the opinion of the Court. The question here is whether a labor organization engages in an unfair labor practice, within the meaning of § 8 (b) (6) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, when it insists that newspaper publishers pay printers for reproducing advertising matter for which the publishers ordinarily have no use. For the reasons hereafter stated, we hold that it does not. Petitioner, American Newspaper Publishers Association, is a New York corporation the membership of which includes more than 800 newspaper publishers. They represent over 90% of the circulation of the daily and Sunday newspapers in the United States and carry oyer 90% of the advertising published in such papers. In November, 1947, petitioner filed with the National Labor Relations Board charges that the International Typographical Union, here called ITU, and its officers were engaging in unfair labor practices within the meaning of § 8 (b)(1), (2) and (6) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, here called the Taft-Hartley Act. The Regional Director of the Board issued its complaint, including a charge of engaging in an unfair labor practice as defined in § 8 (b)(6), popularly known as the “anti-featherbedding” section of the Act. It is not questioned that the acts complained of affected interstate commerce. The trial examiner recommended that ITU be ordered to cease and desist from several of its activities but that the “featherbedding” charges under § 8 (b) (6) be dismissed. 86 N. L. R. B. 951, 964, 1024-1033. The Board dismissed those charges. Id., at 951, 963. Petitioner then filed the instant proceeding in the Court of Appeals for the Seventh Circuit seeking review and modification of the Board’s orders. That court upheld the Board’s dismissal of all charges under § 8 (b) (6). 193 F. 2d 782, 796, 802. See also, 190 F. 2d 45. A comparable view was expressed in Rabouin v. Labor Board, 195 F. 2d 906, 912-913 (C. A. 2d Cir.), but a contrary view was taken in Gamble Enterprises v. Labor Board, 196 F. 2d 61 (C. A. 6th Cir.). Because of this claimed conflict upon an important issue of first impression, we granted cer-tiorari in the instant case, 344 U. S. 812, and in Labor Board v. Gamble Enterprises, 344 U. S. 814. Our decision in the Gamble case follows this, post, p. 117. Printers in newspaper composing rooms have long sought to retain the opportunity to set up in type as much as possible of whatever is printed by their respective publishers. In 1872, when printers were paid on a piecework basis, each diversion of composition was at once reflected by a loss in their income. Accordingly, ITU, which had been formed in 1852 from local typographical societies, began its long battle to retain as much typesetting work for printers as possible. With the introduction of the linotype machine in 1890, the problem took on a new aspect. When a newspaper advertisement was set up in type, it was impressed on a cardboard matrix, or “mat.” These mats were used by their makers and also were reproduced and distributed, at little or no cost, to other publishers who used them as molds for metal castings from which to print the same advertisement. This procedure by-passed all compositors except those who made up the original form. Facing this loss of work, ITU secured the agreement of newspaper publishers to permit their respective compositors, at convenient times, to set up duplicate forms for all local advertisements in precisely the same manner as though the mat had not been used. For this reproduction work the printers received their regular pay. The doing of this “made work” came to be known in the trade as “setting bogus.” It was a wasteful procedure. Nevertheless, it has become a recognized idiosyncrasy of the trade and a customary feature of the wage structure and work schedule of newspaper printers. By fitting the “bogus” work into slack periods, the practice interferes little with “live” work. The publishers who set up the original compositions find it advantageous because it burdens their competitors with costs of mat making comparable to their own. Approximate time limits for setting “bogus” usually have been fixed by agreement at from four days to three weeks. On rare occasions the reproduced compositions are used to print the advertisements when rerun, but, ordinarily, they are promptly consigned to the “hell box” and melted down. Live matter has priority over reproduction work but the latter usually takes from 2 to 5% of the printers’ time. By 1947, detailed regulations for reproduction work were included in the “General Laws” of ITU. They thus became a standard part of all employment contracts signed by its local unions. The locals were allowed to negotiate as to foreign language publications, time limits for setting “bogus” and exemptions of mats received from commercial compositors or for national advertisements. Before the enactment of § 8 (b)(6), the legality and enforceability of payment for setting “bogus,” agreed to by the publisher, was recognized. Even now the issue before us is not what policy should be adopted by the Nation toward the continuance of this and other forms of featherbedding. The issue here is solely one of statutory interpretation: Has Congress made setting “bogus” an unfair labor practice? While the language of § 8 (b) (6) is claimed by both sides to be clear, yet the conflict between the views of the Seventh and Sixth Circuits amply justifies our examination of both the language and the legislative history of the section. The section reads: “Sec. 8. . . . “(b) It shall be an unfair labor practice for a labor organization or its agents— “(6) to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed. . . .” 61 Stat. 140-142, 29 U. S. C. (Supp. V) 1158(b)(6). From the above language and its history, the court below concluded that the insistence by ITU upon securing payment of wages to printers for setting “bogus” was not an unfair labor practice. It found that the practice called for payment only for work which actually was done by employees of the publishers in the course of their employment as distinguished from payment “for services which are not performed or not to be performed.” Setting “bogus” was held to be service performed and it remained for the parties to determine its worth to the employer. The Board here contends also that the insistence of ITU and its agents has not been “in the nature of an exaction” and did not “cause or attempt to cause an employer” to pay anything “in the nature of an exaction.” Agreement with the position taken by the court below makes it unnecessary to consider the additional contentions of the Board. However desirable the elimination of all industrial featherbedding practices may have appeared to Congress, the legislative history of the Taft-Hartley Act demonstrates that when the legislation was put in final form Congress decided to limit the practice but little by law. A restraining influence throughout this congressional consideration of featherbedding was the fact that the constitutionality of the Lea Act penalizing featherbedding in the broadcasting industry was in litigation. That Act, known also as the Petrillo Act, had been adopted April 16, 1946, as an amendment to the Communications Act of 1934. Its material provisions are stated in the margin. December 2, 1946, the United States District Court for the Northern District of Illinois held that it violated the First, Fifth and Thirteenth Amendments to the Constitution of the United States. United States v. Petrillo, 68 F. Supp. 845. The case was pending here on appeal throughout the debate on the Taft-Hartley bill. Not until June 23, 1947, on the day of the passage of the Taft-Hartley bill over the President’s veto, was the constitutionality of the Lea Act upheld. United States v. Petrillo, 332 U. S. 1. The purpose of the sponsors of the Taft-Hartley bill to avoid the controversial features of the Lea Act is made clear in the written statement which Senator Taft, cosponsor of the bill and Chairman of the Senate Committee on Labor and Public Welfare, caused to be incorporated in the proceedings of the Senate, June 5, 1947. Referring to the substitution of § 8 (b) (6) in place of the detailed featherbedding provisions of the House bill, that statement said: “The provisions in the Lea Act from which the House language was taken are now awaiting determination by the Supreme Court, partly because of the problem arising from the term ‘in excess of the number of employees reasonably required.’ Therefore, the conferees were of the opinion that general legislation on the subject of featherbedding was not warranted at least until the joint study committee proposed by this bill could give full consideration to the matter.” 93 Cong. Rec. 6443. On the same day this was amplified in the Senator’s oral statement on the floor of the Senate: “There is one further provision which may possibly be of interest, which was not in the Senate bill. The House had rather elaborate provisions prohibiting so-called feather-bedding practices and making them unlawful labor practices. The Senate conferees, while not approving of feather-bedding practices, felt that it was impracticable to give to a board or a court the power to say that so many men are all right, and so many men are too many. It would require a practical application of the law by the courts in hundreds of different industries, and a determination of facts which it seemed to me would be almost impossible. So we declined to adopt the provisions which are now in the Petrillo Act. After all, that statute applies to only one industry. Those provisions are now the subject of court procedure. Their constitutionality has been questioned. We thought that probably we had better wait and see what happened, in any event, even though we are in favor of prohibiting all feather-bedding practices. However, we did accept one provision which makes it an unlawful-labor practice for a union to accept money for people who do not work. That seemed to be a fairly clear case, easy to determine, and we accepted that additional unfair labor practice on the part of unions, which was not in the Senate bill.” 93 Cong. Rec. 6441. See also, his supplementary analysis inserted in the Record June 12, 1947. 93 Cong. Rec. 6859. As indicated above, the Taft-Hartley bill, H. R. 3020, when it passed the House, April 17, 1947, contained in §§ 2 (17) and 12 (a)(3)(B) an explicit condemnation of featherbedding. Its definition of featherbedding was based upon that in the Lea Act. For example, it condemned practices which required an employer to employ “persons in excess of the number of employees reasonably required by such employer to perform actual services,” as well as practices which required an employer to pay “for services . . . which are not to be performed.” The substitution of the present § 8 (b) (6) for that definition compels the conclusion that § 8 (b)(6) means what the court below has said it means. The Act now limits its condemnation to instances where a labor organization or its agents exact pay from an employer in return for services not performed or not to be performed. Thus, where work is done by an employee, with the employer’s consent, a labor organization’s demand that the employee be compensated for time spent in doing the disputed work does not become an unfair labor practice. The transaction simply does not fall within the kind of featherbedding defined in the statute. In the absence of proof to the contrary, the employee’s compensation reflects his entire relationship with his employer. We do not have here a situation comparable to that mentioned by Senator Taft as an illustration of the type of featherbedding which he would consider an unfair labor practice within the meaning of § 8 (b)(6). June 5, 1947, in a colloquy on the floor of the Senate he said in reference to § 8 (b) (6): “[I]t seems to me that it is perfectly clear what is intended. It is intended to make it an unfair labor practice for a man to say, ‘You must have 10 musicians, and if you insist that there is room for only 6, you must pay for the other 4 anyway.’ That is in the nature of an exaction from the employer for services which he does not want, does not need, and is not even willing to accept.” 93 Cong. Rec. 6446. In that illustration the service for which pay was to be exacted was not performed and was not to be performed by anyone. The last sentence of the above quotation must be read in that context. There was no room for more than six musicians and there was no suggestion that the excluded four did anything or were to do anything for their pay. Section 8 (b) (6) leaves to collective bargaining the determination of what, if any, work, including bona fide “made work,” shall be included as compensable services and what rate of compensation shall be paid for it. Accordingly, the judgment of the Court of Appeals sustaining dismissal of the complaint, insofar as it was based upon § 8 (b)(6), is Affirmed. “Sec. 8. . . . “(b) It shall be an unfair labor practice for a labor organization or its agents— ■“(6) to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed. . . 61 Stat. 140-142, 29 U. S. C. (Supp. V) § 158 (b) (6). 49 Stat. 449, 29 U. S. C. § 151 et seq., as amended, 61 Stat. 140-142, 29 U. S. C. (Supp. V) § 158 (b)(1), (2) and (6). The grant was— “limited to question No. 2 presented by the petition for the writ, i. e.: “Whether the demand and insistence of the International Typographical Union that publishers pay employees in their composing rooms for setting ‘bogus’ violated Section 8 (b) (6) of the National Labor Relations Act in view of the fact that composing room employees perform no service incident or essential to the production of a newspaper in their handling of such ‘bogused’ material.” For a general discussion of the problems in these cases, see Cox, Some Aspects of the Labor Management Relations Act, 19 V7, 61 Harv. L. Rev. 274, 288-290; Featherbedding and Taft-Hartle, 52 Col. L. Rev. 1020-1033. In metropolitan areas, only the printers on the “ad side” of a composing room, as contrasted with those on the “news side,” take part in the reproduction work and never on a full-time basis. Such work is not done at overtime rates but when there is an accumulation of it, the newspaper is not permitted to reduce its work force or decline to hire suitable extra printers applying for employment. The trial examiner, in the instant case, found that reproduction work at the Rochester Democrat & Chronicle cost over $5,000 a year, at the Chicago Herald-American, about $50,000, and at the New York Times, about $150,000. “Sec. 506. (a) It shall be unlawful, by the use or express or implied threat of the use of force, violence, intimidation, or duress, or by the use or express or implied threat of the use of other means, to coerce, compel or constrain or attempt to coerce, compel, or constrain a licensee— “(1) to employ or agree to employ, in connection with the conduct of the broadcasting business of such licensee, any person or persons in excess of the number of employees needed by such licensee to perform actual services; or “(2) to pay or give or agree to pay or give any money or other thing of value in lieu of giving, or on account of failure to give, employment to any person or persons, in connection with the conduct of the broadcasting business of such licensee, in excess of the number of employees needed by such licensee to perform actual services; or “(3) to pay or agree to pay more than once for services performed in connection with the conduct of the broadcasting business of such licensee; or “(4) to pay or give or agree to pay or give any money or other thing of value for services, in connection with the conduct of the broadcasting business of such licensee, which are not to be performed; .... “(c) The provisions of subsection (a) or (b) of this section shall not be held to make unlawful the enforcement or attempted enforcement, by means lawfully employed, of any contract right heretofore or hereafter existing or of any legal obligation heretofore or hereafter incurred or assumed. “(d) Whoever willfully violates any provision of subsection (a) or (b) of this section shall, upon conviction thereof, be punished by imprisonment for not more than one year or by a fine of not more than $1,000, or both. . . .” 60 Stat. 89, 90, 47 U. S. C. § 506 (a) (c)(d). For a report of the subsequent trial and acquittal on the merits, see United States v. Petrillo, 75 F. Supp. 176. In its report of December 31, 1948, the Joint Committee on Labor-Management Relations, established under § 401 of the Taft-Hartley Act, later reviewed the litigation arising under § 8 (b) (6), including the trial examiner’s report in the instant case, and recommended “a continuing study of cases arising under the present featherbedding provision, since there has not been sufficient experience upon which to base intelligent amendments at this time.” S. Rep. No. 986, Pt. 3, 80th Cong., 2d Sess. 61, and see pp. 58-61. See also, Hartley, Our New National Labor Policy (1948), p. xiii (Taft), 174,182-183 (Hartley). H. R. 3020 as it passed the House provided that: “Sec. 2. When used in this Act— “(17) The term 'featherbedding practice’ means a practice which has as its purpose or effect requiring an employer— “(A) to employ or agree to employ any person or persons in excess of the number of employees reasonably required by such employer to perform actual services; or “(B) to pay or give or agree to pay or give any money or other thing of value in lieu of employing, or on account of failure to employ, any person or persons, in connection with the conduct of the business of an employer, in excess of the number of employees reasonably required by such employer to perform actual services; or “(C) to pay or agree to pay more than once for services performed; or “(D) to pay or give or agree to pay or give any money or other thing of value for services, in connection with the conduct of a business, which are not to be performed; or “(E) to pay or agree to pay any tax or exaction for the privilege of, or on account of, producing, preparing, manufacturing, selling, buying, renting, operating, using, or maintaining any article, machine, equipment, or materials; or to accede to or impose any restriction upon the production, preparation, manufacture, sale, purchase, rental, operation, use, or maintenance of the same, if such restriction is for the purpose of preventing or limiting the use of such article, machine, equipment, or materials. “Sec. 12. (a) The following activities, when affecting commerce, shall be unlawful concerted activities: “(3) Calling, authorizing, engaging in, or assisting— “(B) any strike or other concerted interference with an employer’s operations, an object of which is to compel an employer to accede to featherbedding practices; . . . .” 1. Legislative History of the Labor Management Relations Act, 1947, 160, 170-171, 204, 205. Section 8 (b)(6) does not relate to union requests for, or insistence upon, such types of payments as employees’ wages during lunch, rest, waiting or vacation periods; payments for service on relief squads; or payments for reporting for duty to determine whether work is to be done. Such practices are recognized to be incidental to the employee’s general employment and are given consideration in fixing the rate of pay for it. They are not in the nature of exactions of pay for something not performed or not to be performed. See 93 Cong. Rec. 6859. Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:
songer_appbus	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. WAHLGREN et al. v. BAUSCH & LOMB OPTICAL CO. et al. No. 5435. Circuit Court of Appeals, Seventh Circuit. May 15, 1935. Rehearing Denied June 18,1935. Charles Hudson and Benj. F. J. Odell, both of Chicago, Ill., for appellants. John D. Black and George B. Christensen, both of Chicago, Ill., for appellees. Before SPARKS, FITZHENRY, and ALSCHULER, Circuit Judges. ALSCHULER, Circuit Judge. The appeal is from an interlocutory order of injunction restraining appellants and others from disposing of, transferring, secreting, etc., their assets until further order of the court. Appellees’ petition whereon the injunction was ordered set forth that on November 30, 1934, the master in chancery to whom the cause had been referred to take proof and report recommendations with respect to contempts of court alleged to have been committed by the appealing and other defendants, had served upon counsel for appellees a draft report wherein it was recommended that fines for contempt of court, each in the amount of $257,977.73, be levied against the three appealing defendants, and in other and smaller amounts against other defendants not appealing. The petition further sets forth that great animosity existe^ between the plaintiffs and the defendants in the cause, and that the defendants were likely to secrete or transfer their assets for the purpose of preventing collection of the fines and frustrating plaintiffs’ remedy. An order was entered December 24 directing that the injunction of December 4 “be construed as to allow ordinary and reasonable expenses of living and business and incidentals thereto.” The transcript of record herein discloses only the verified petition as basis for the injunctional order. In the order it is recited : “ * * * and the Court, having considered the record heretofore made in this Court, as well as the proceedings in the Circuit Court of Appeals * * What record of the District Court was thereby meant does not appear, unless we assume it to be such as was brought before this court in a previous appeal from a final decree in the action of March 22, 1933, awarding these appellees a permanent injunction, restraining certain of these appellants from violating certain restrictive covenants of an agreement to-;refrain for a specified time from entering into or carrrying on, directly or indirectly, a specified business. Upon appeal to this court, that decree was affirmed. 68 F.(2d) 660. The issue in the instant case which was referred to the master was not as to the, merits of that controversy, but as to whether, and, if so, to what extent, the defendants had been guilty of contempt of the court in transgressing the temporary and permanent injunctions which the court had theretofore awarded. But the issue here is not even as to the merits of the alleged contempt, but only as to whether, pending adjudication of that matter, it was proper to restrain appellants from disposing of their property. While the petition alleges that appellees’ counsel had been served with a draft of a proposed master’s report, that report was not before the court. Indeed, it had not yet been filed in court. Pursuant to the usual practice, the draft was submitted to counsel to enable them to submit to the master their objections to the report for his consideration and disposition before the report was actually filed. So far as the court was concerned, at the time of the entry of the order here complained of there was no master’s report. It had not been filed, and it does not appear that the court knew it existed. During the pendency of this appeal appellees asked and were granted leave to present here the master’s report, and it was so presented in this court April 8, 1935; and from the file marks thereon it appears to have been filed in the District Court February 26,1935, several months after the date of the restraining order here in issue. Furthermore, there is nothing to indicate that the District Court has ever approved the report, or that up to the present time that court has considered it, or exceptions thereto, if any there are. So far as the reference to the record of the District Court, in the order appealed from, may be considered as indicated by the transcript which was before us on the former appeal, not a single item thereof has been called to our attention by counsel for appellees that would tend to support the order. The transcript upon that appeal consisted of nearly 3,000 pages of typewritten condensation of the vastly larger transcript of the evidence given in the cause, plus over 300 pages of printed matter, which form of presentation was authorized by the court upon stipulation of counsel. Assuming that the transcript of record on that appeal may be used in considering this appeal, it is hardly to be expected that this court will narrowly search that record to see if perchance it discloses items which might lend support to the order here in issue. The least that might reasonably be expected is that such items, if any there are, would be definitely pointed out in counsel’s brief. But in the entire absence of such specification, we may well assume that record gives no support to the order here appealed from. The petition for the injunction was. predicated wholly upon the allegations (a) that the master had submitted to appellees’ counsel a tentative report recommending that large fines be assessed against appellants; (b) that there was great animosity between the plaintiffs and the defendants; and (c) that the defendants were likely to secrete, hide, or transfer their assets for the purpose of preventing collection of the fines and frustrating plaintiffs’ remedy. Upon principle, it seems to us that this is not a sufficient basis for tying up the assets of a defendant in advance of decree. That animosity has been engendered in this greatly protracted litigation is to be expected. Indeed, human nature is such that most cases of warmly contested litigation develop animosities of varying degrees of intensity. If this afforded ground for such an order, any defendant against whom a decree is a possible outcome of litigation may be enjoined from disposing of his property, and few indeed would be the contested cases wherein defendants might not be thus enjoined for the mere asking. Right to such an order is not helped by the allegation that a defendant is likely to secrete or dispose of his property. Any one may be likely to do this; that is, he may do so. But unless there is made to appear some ‘definite manifestation that he will so do, the mere likelihood, though coupled with animosity, is not sufficient to invoke the court’s injunctive process. At law, one’s property may be tied up in advance of judgment through the process of attachment, but neither apprehension nor allegation of likelihood not supported -by facts which tend to show its imminence would be sufficient to invoke that remedy. We think this would be not less true in chancery unless there are adduced specific facts which would indicate such a course to be indispensable to the doing of equity between the parties. The animosities of the parties, or even an aggregated infraction by defendants of the rights of plaintiffs, are not of themselves, nor together, enough to tie up one’s property in advance of a decree of the court adjudging the rights of the parties. We have searched vainly for precedents. None has been cited which in our judgment authorizes such a course. Appellees plant their reliance on Zenith Carburetor Co. v. Stromberg Motor Devices Co. (C. C. A.) 270 F. 421, which was decided by this court. There Stromberg Company had secured a decree finding that Zenith Company had infringed Stromberg’s Ahara patent for an inner combustion engine, and ordering an accounting of damages, and ordering reference to a master for that purpose. That decree was, on appeal, sustained in the main by this court. 254 F. 68. A French corporation, or its stockholders, owned all the stock of Zenith Company, a Michigan corporation, and the Zenith Company was sending monthly to the parent corporation in France large sums of money as royalties on patents controlled by the French corporation, and as dividends. There was reason to believe that the moneys which had been and were continuing to be sent abroad were largely, if not entirely, avails arising from the infringing operations, and were thus impressed with a trust in favor of Stromberg Company; also, that the continued sending abroad of these large sums (some months as much as $30,000) would so reduce the assets available to meet such damages as might be awarded as to deprive Stromberg Company of the benefit of any decree which it might obtain upon the accounting. The court thereupon restrained Zenith Company from disposing of its assets by sending money beyond the jurisdiction of the court or by sending abroad to the French corporation any funds or assets of any kind, for alleged royalties or to pay alleged debts or to reduce the Zenith Company’s assets available to meet such decree as the court might render. In modifying somewhat the restraining order, the court issuing it commented upon the quite unusual circumstances under which It was issued — the large amount of money sent to the French company on account of dividends and royalties arising from the very devices which had been adjudged to infringe. There it appeared the main controversy had been definitely adjudicated in the infringement suit wherein a reference for an accounting for damages had been ordered. The original bill in the instant case, as appears from the transcript of record in the prior appeal therein, sought only an injunction, and made no claim whatever for damages; and the decree in that suit did not deal with damages, and ordered no reference for an accounting for damages. There it appeared that the funds which had been and were being, and would continue to be, sent abroad were funds arising largely if not wholly from the past and continued transgressions by Zenith Company of the Stromberg rights, and were thus impressed with a trust therein. Here no such condition appears. Indeed, there is nothing in the record to indicate whether or not these defendants had any property, or, if they had property, that it was impressed with any trust in appellees’ favor, or that they had put any of their property beyond reach of the court, or that they were threatening to do so, or that there was anything unusual or extraordinary about the past, present, or future operations of these defendants respecting their own property as to invoke any such a restraining order in advance of any money judgment or decree against them. That case affords no precedent to support the order here assailed. It is at least interesting to note the state of the record respecting appellant Odell. Referring to the record on the first appeal, we find that Odell was a party defendant to the original suit; that after the hearing, resulting in the very voluminous record above referred to, the master recommended that the bill be dismissed as to Odell, and the final decree dismissed the action as to him. No appeal appears to have been taken from this decree in his favor. In what manner he was thereafter again brought into the case as a party defendant, the record before us is silent. We perceive here no sufficient basis for the order here in issue, and it is accordingly reversed, and the cause is remanded to the District Court with direction to vacate the order appealed from. “This cause coining on to be heard upon the petition of the plaintiffs for an order restraining defendants from disposing of their assets until further order of this Court, and the Court having considered the record heretofore made in this Court, as well as the proceedings in the Circuit Court of Appeals and being fully advised in the premises, it is “Ordered, Adjudged and Decreed that until the further order of this Court in the premises, that defendants, Oscar G. Wahlgren, Roy M. Wahlgren, Benjamin J. F. Odell, Earle G. Wahlgren, Dalton W. Bradley, Leland Davis, their agents, servants, attorneys and counsellors be and hereby are restrained and enjoined from in any way disposing of, hypothecating, transferring, assigning, encumbering or secreting any of their assets, whether the same be real or personal property, choses in action or anything of value whatsoever and that the said defendants, their agents, servants, attorneys and counsellors be restrained and enjoined until further order of this Honorable Court in the premises from removing any of their property or assets beyond the jurisdiction of this Court. “Dated Dec. 4, 1934.” “Now come the plaintiffs and show to the Court that on the 30th day of November, 1934, his Honor Thomas J. Peden, Master in Chancery herein, to whom the cause has been referred by order of February 1, 1934, to take proof and report his recommendations with respect to alleged contempts by defendants herein, served upon counsel herein a draft report wherein and whereby, among other things, he recommends that fines for contempt of court be levied against the following defendants in the following amounts: Oscar G. Wahlgren $257,977.73; Roy M. Wahlgren $257,977.73; Benjamin J. F. Odell $257,977.73; Earle G. Wahlgren $42,441; Dalton W. Bradley $34,199 and Leland' Davis $6,123. “Plaintiffs further show to the court that great animosity exists between the plaintiffs and said defendants herein, and that said defendants are likely to secrete, hide or transfer their assets for the purpose of preventing collection of said fines and frustrating plaintiffs’ remedy. “Wherefore plaintiffs pray that until this matter can be further heard, and until the further order of this Honorable Court in the premises, that an order be entered herein restraining and enjoining the said above named defendants, their agents, servants, attorneys and counsellors from in any way disposing of, hypothecating, transferring, assigning, encumbering or secreting any of their assets, whether the same be real property, personal property, choses in action or anything of value whatsoever until further order of the court in the premises, and that the said defendants, their agents, servants, attorneys and counsellors be restrained and enjoined until further order of this Honorable Court in the premises from removing any of their property or assets beyond the jurisdiction of this Court.” 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	12	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. KNOWLES, County Treasurer, v. FIRST NAT. BANK OF SHENANDOAH, IOWA, et al. No. 9201. Circuit Court of Appeals, Eighth Circuit. April 14, 1932. L. H. Mattox, of Shenandoah, Iowa, for appellant. Addison G. Kistle, of Council Bluffs, Iowa (George S. Wright, of Council Bluffs, Iowa, on the brief), for appellees. Before Stone and Booth, Circuit Judges, and Wyman, District Judge. STONE, Circuit Judge. The First National Bank of Shenandoah, Iowa, brought a suit against the treasurer of Page county, Iowa, to enjoin collection of taxes assessed against its shares of stock. After a hearing upon the merits, the court granted a permanent injunction. From that decree, this appeal is brought. One basis of this suit is that the assessments for the years 1920, 1921, 1925, and 1926 violated the statutory requirement that shares of national banks should not -be taxed by a state at a greater rate than that “assessed upon other moneyed capital in the hands of individual citizens of such State coming into competition with the business of national banks.” USCA title 12, § 548. The situation as shown by the evidence and as found by the trial eourt and the special master clearly is that there was, during the years involved here and as to this complainant and other national banks, a consistent policy of discrimination pursued by the taxing officials. This discrimination was worked out as follows. Under the laws of Iowa (Code Iowa 1924, § 6984 et seq.), different rates of taxation were required upon different designated classes into which property, was to be divided. Two of these classes were “moneyed capital” and “moneys and credits.” The rate upon the former was higher than that upon the latter. The taxing officials consistently placed all bank stocks in the former class and no other property therein, while they-placed all other moneys and credits held by individuals in the latter class. As a very substantial amount of these moneys and credits were of the same character as those constituting the loaning feature of the banks, this difference in classification, which determined a different tax rate, constituted an obvious discrimination against the bank stock. This evidence makes clear that there was a large amount of money and credits used in direct competition with this complainant (during the tax years here involved) which was classified at the lower rate as “moneys and credits,” while the stock of this hank was placed in the higher rate classification as “moneyed capital.” The evidence leaves no doubt of a discrimination such as is forbidden by section 548. The serious question of law at the time this appeal was presented was whether this complainant was barred from judicial relief because it had failed to avail itself of an administrative remedy before coming into court. The contention of appellant was that the statutes of Iowa (Code 1924, § 7132) provided an adequate administrative remedy for correction of such discriminations by a hearing before a “Board of Review.” A few days after this case was submitted to us, the Supreme Court handed down an opinion which we think is decisive of this appeal. The case of Iowa-Des Moines National Bank v. Bennett, 284 U. S. 239, 52 S. Ct. 133, 135, 76 L. Ed. -, is a mandamus proceeding brought in a state court of Iowa, Iowa Nat. Bank v. Stewart, 232 N. W. 445, by a national bank against county officers to compel tax refunds. The basis of the suit is precisely the same discrimination and violation of section 548 as here. The case came to the Supreme Court by certiorari to the Supreme Court of Iowa, which had held: “That no right of petitioners under the state law was violated, because they were not overassessed; that no right under the federal law was violated, because the lower taxation of their competitors due to usurpation by officials was not an act of the state;' and that the discrimination thus effected was remediable only by correcting the wrong under the state law in favor of the competitors and not ‘by extending * * * the benefits as of a similar wrong* to the petitioners.” The Supreme Court shortly disposed of a situation exactly like that before us, as follows: “Other competing moneyed capital in the form of investments held by individuals and by a few foreign, corporations was wrongfully classified by the assessor as ‘moneys and credits,’ and so returned upon the assessment rolls to the county auditor, who extended the assessments upon the tax books accordingly, and applied to them the 5-mill levy. The Supreme Court of Iowa held that the right to complain of this discrimination had been lost by failure to avail of the method of review prescribed by the state. We have no occasion to consider this matter, as we hold that the more favorable taxation of the competing domestic corporations entitles the petitioners to the relief sought.” The decree of the trial court is affirmed. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
sc_caseorigin	041	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. OBB PERSONENVERKEHR AG, Petitioner v. Carol P. SACHS. No. 13-1067. Supreme Court of the United States Argued Oct. 5, 2015. Decided Dec. 1, 2015. Juan C. Basombrio, Costa Mesa, CA, for Petitioner. Jeffrey L. Fisher, Stanford, CA, for Respondent. Edwin S. Kneedler for the United States as amicus curiae, by special leave of the Court. Juan C. Basombrio, Counsel of Record, Dorsey & Whitney LLP, Costa Mesa, CA, Steven J. Wells, Timothy J. Droske, Dorsey & Whitney LLP, Minneapolis, MN, for Petitioner. Jeffrey L. Fisher, Brian Wolfman, Stanford Law School, Supreme Court Litigation Clinic, Stanford, CA, Geoffrey Becker, Counsel of Record, Becker & Becker, P.C., Lafayette, CA, for Respondent. Chief Justice ROBERTS delivered the opinion of the Court. The Foreign Sovereign Immunities Act shields foreign states and their agencies from suit in United States courts unless the suit falls within one of the Act's specifically enumerated exceptions. This case concerns the scope of the commercial activity exception, which withdraws sovereign immunity in any case "in which the action is based upon a commercial activity carried on in the United States by [a] foreign state." 28 U.S.C. § 1605(a)(2). Respondent Carol Sachs is a resident of California who purchased in the United States a Eurail pass for rail travel in Europe. She suffered traumatic personal injuries when she fell onto the tracks at the Innsbruck, Austria, train station while attempting to board a train operated by the Austrian state-owned railway. She sued the railway in Federal District Court, arguing that her suit was not barred by sovereign immunity because it is "based upon" the railway's sale of the pass to her in the United States. We disagree and conclude that her action is instead "based upon" the railway's conduct in Innsbruck. We therefore hold that her suit falls outside the commercial activity exception and is barred by sovereign immunity. I A Petitioner OBB Personenverkehr AG (OBB) operates a railway that carries nearly 235 million passengers each year on routes within Austria and to and from points beyond Austria's frontiers. OBB is wholly owned by OBB Holding Group, a joint-stock company created by the Republic of Austria. OBB Holding Group in turn is wholly owned by the Austrian Federal Ministry of Transport, Innovation, and Technology. Sachs v. Republic of Austria, 737 F.3d 584, 587 (C.A.9 2013). OBB-along with 29 other railways throughout Europe-is a member of the Eurail Group, an association responsible for the marketing and management of the Eurail pass program. Brief for International Rail Transport Committee as Amicus Curiae 12; 737 F.3d, at 587. Eurail passes allow their holders unlimited passage for a set period of time on participating Eurail Group railways. They are available only to non-Europeans, who may purchase them both directly from the Eurail Group and indirectly through a worldwide network of travel agents. Brief for International Rail Transport Committee as Amicus Curiae 12-13, and n. 3; Brief for Respondent 4-5. Carol Sachs is a resident of Berkeley, California. In March 2007, she purchased a Eurail pass over the Internet from The Rail Pass Experts, a Massachusetts-based travel agent. The following month, Sachs arrived at the Innsbruck train station, planning to use her Eurail pass to ride an OBB train to Prague. As she attempted to board the train, Sachs fell from the platform onto the tracks. OBB's moving train crushed her legs, both of which had to be amputated above the knee. 737 F.3d, at 587-588. Sachs sued OBB in the United States District Court for the Northern District of California, asserting five causes of action: (1) negligence; (2) strict liability for design defects in the train and platform; (3) strict liability for failure to warn of those design defects; (4) breach of an implied warranty of merchantability for providing a train and platform unsafe for their intended uses; and (5) breach of an implied warranty of fitness for providing a train and platform unfit for their intended uses. App. 14-18. OBB claimed sovereign immunity and moved to dismiss the suit for lack of subject matter jurisdiction. 737 F.3d, at 588. B The Foreign Sovereign Immunities Act "provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). The Act defines "foreign state" to include a state "agency or instrumentality," 28 U.S.C. § 1603(a), and both parties agree that OBB qualifies as a "foreign state" for purposes of the Act. OBB is therefore "presumptively immune from the jurisdiction of United States courts" unless one of the Act's express exceptions to sovereign immunity applies. Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993). Sachs argues that her suit falls within the Act's commercial activity exception, which provides in part that a foreign state does not enjoy immunity when "the action is based upon a commercial activity carried on in the United States by the foreign state." § 1605(a)(2). The District Court concluded that Sachs's suit did not fall within § 1605(a)(2) and therefore granted OBB's motion to dismiss. 2011 WL 816854, 1, 4 (N.D.Cal., Jan. 28, 2011). A divided panel of the United States Court of Appeals for the Ninth Circuit affirmed. 695 F.3d 1021 (2012). The full court ordered rehearing en banc and, with three judges dissenting, reversed the panel decision. 737 F.3d 584. The en banc majority first observed that, "based on the agreement of the parties," "the only relevant commercial activity within the United States was [Sachs's] March 2007 purchase of a Eurail pass from the Rail Pass Experts," a Massachusetts company. Id., at 591, n. 4 (internal quotation marks omitted). The court concluded that The Rail Pass Experts had acted as OBB's agent and, using common law principles of agency, attributed that Eurail pass sale to OBB. Id., at 591-598. The court next asked whether Sachs's claims were "based upon" the sale of the Eurail pass within the meaning of § 1605(a)(2). The "based upon" determination, the court explained, requires that the commercial activity within the United States be "connected with the conduct that gives rise to the plaintiff's cause of action." Id ., at 590. But, the court continued, "it is not necessary that the entire claim be based upon the commercial activity of OBB." Id., at 599. Rather, in the court's view, Sachs would satisfy the "based upon" requirement for a particular claim "if an element of [that] claim consists in conduct that occurred in commercial activity carried on in the United States." Ibid. (internal quotation marks omitted). Applying California law, see id., at 600, n. 14, the court analyzed Sachs's causes of action individually and concluded that the sale of the Eurail pass established a necessary element of each of her claims. Turning first to the negligence claim, the court found that Sachs was required to show that OBB owed her a duty of care as a passenger as one element of that claim. The court concluded that such a duty arose from the sale of the Eurail pass. Id., at 600-602. Turning next to the other claims, the court determined that the existence of a "transaction between a seller and a consumer" was a necessary element of Sachs's strict liability and breach of implied warranty claims. Id., at 602. The sale of the Eurail pass, the court noted, provided proof of such a transaction. Ibid. Having found that "the sale of the Eurail pass in the United States forms an essential element of each of Sachs's claims," the court concluded that each claim was "based upon a commercial activity carried on in the United States" by OBB. Ibid. We granted certiorari. 574 U.S. ----, 135 S.Ct. 1172, 190 L.Ed.2d 929 (2015). II OBB contends that the sale of the Eurail pass is not attributable to the railway, reasoning that the Foreign Sovereign Immunities Act does not allow attribution through principles found in the common law of agency. OBB also argues that even if such attribution were allowed under the Act, Sachs's suit is not "based upon" the sale of the Eurail pass for purposes of § 1605(a)(2). We agree with OBB on the second point and therefore do not reach the first. A The Act itself does not elaborate on the phrase "based upon." Our decision in Saudi Arabia v. Nelson, 507 U.S. 349, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993), however, provides sufficient guidance to resolve this case. In Nelson, a husband and wife brought suit against Saudi Arabia and its state-owned hospital, seeking damages for intentional and negligent torts stemming from the husband's allegedly wrongful arrest, imprisonment, and torture by Saudi police while he was employed at a hospital in Saudi Arabia. Id., at 351, 353-354, 113 S.Ct. 1471. The Saudi defendants claimed sovereign immunity under the Act, arguing, inter alia, that § 1605(a)(2) was inapplicable because the suit was "based upon" sovereign acts-the exercise of Saudi police authority-and not upon commercial activity. See Brief for Petitioners in Saudi Arabia v. Nelson, O.T. 1992, No. 91-552, pp. 12-14. The Nelsons countered that their suit was "based upon" the defendants' commercial activities in "recruit[ing] Scott Nelson for work at the hospital, sign[ing] an employment contract with him, and subsequently employ[ing] him." 507 U.S., at 358, 113 S.Ct. 1471. We rejected the Nelsons' arguments. The Act's "based upon" inquiry, we reasoned, first requires a court to "identify[ ] the particular conduct on which the [plaintiff's] action is 'based.' " Id., at 356, 113 S.Ct. 1471. Considering dictionary definitions and lower court decisions, we explained that a court should identify that "particular conduct" by looking to the "basis" or "foundation" for a claim, id., at 357, 113 S.Ct. 1471 (citing dictionary definitions), "those elements ... that, if proven, would entitle a plaintiff to relief," ibid., and "the 'gravamen of the complaint,' " ibid. (quoting Callejo v. Bancomer, S. A., 764 F.2d 1101, 1109 (C.A.5 1985) ). Under that analysis, we found that the commercial activities, while they "led to the conduct that eventually injured the Nelsons," were not the particular conduct upon which their suit was based. The suit was instead based upon the Saudi sovereign acts that actually injured them. 507 U.S., at 358, 113 S.Ct. 1471. The Nelsons' suit therefore did not fit within § 1605(a)(2). Id., at 361-362, 113 S.Ct. 1471. B The Ninth Circuit held that Sachs's claims were "based upon" the sale of the Eurail pass because the sale of the pass provided "an element " of each of her claims. 737 F.3d, at 599. Under Nelson, however, the mere fact that the sale of the Eurail pass would establish a single element of a claim is insufficient to demonstrate that the claim is "based upon" that sale for purposes of § 1605(a)(2). The Ninth Circuit apparently derived its one-element test from an overreading of one part of one sentence in Nelson, in which we observed that "the phrase ['based upon'] is read most naturally to mean those elements of a claim that, if proven, would entitle a plaintiff to relief under his theory of the case." 507 U.S., at 357, 113 S.Ct. 1471. We do not see how that mention of elements-plural-could be considered an endorsement of a one -element test, nor how the particular element the Ninth Circuit singled out for each of Sachs's claims could be construed to entitle her to relief. Be that as it may, our analysis in Nelson is flatly incompatible with a one-element approach. A one-element test necessarily requires a court to identify all the elements of each claim in a complaint before that court may reject those claims for falling outside § 1605(a)(2). But we did not undertake such an exhaustive claim-by-claim, element-by-element analysis of the Nelsons' 16 causes of action, nor did we engage in the choice-of-law analysis that would have been a necessary prelude to such an undertaking. Compare id., at 356-358, 113 S.Ct. 1471 with 737 F.3d, at 600, n. 14 (noting disagreement over whether state or federal common law principles govern suits under the Foreign Sovereign Immunities Act). Nelson instead teaches that an action is "based upon" the "particular conduct" that constitutes the "gravamen" of the suit. Rather than individually analyzing each of the Nelsons' causes of action, we zeroed in on the core of their suit: the Saudi sovereign acts that actually injured them. As the Court explained: "Even taking each of the Nelsons' allegations about Scott Nelson's recruitment and employment as true, those facts alone entitle the Nelsons to nothing under their theory of the case. The Nelsons have ... alleged ... personal injuries caused by [the defendants'] intentional wrongs and by [the defendants'] negligent failure to warn Scott Nelson that they might commit those wrongs. Those torts, and not the arguably commercial activities that preceded their commission, form the basis for the Nelsons' suit." 507 U.S., at 358, 113 S.Ct. 1471. Under this analysis, the conduct constituting the gravamen of Sachs's suit plainly occurred abroad. All of her claims turn on the same tragic episode in Austria, allegedly caused by wrongful conduct and dangerous conditions in Austria, which led to injuries suffered in Austria. Sachs maintains that some of those claims are not limited to negligent conduct or unsafe conditions in Austria, but rather involve at least some wrongful action in the United States. Her strict liability claim for failure to warn, for example, alleges that OBB should have alerted her to the dangerous conditions at the Innsbruck train station when OBB sold the Eurail pass to her in the United States . Under any theory of the case that Sachs presents, however, there is nothing wrongful about the sale of the Eurail pass standing alone. Without the existence of the unsafe boarding conditions in Innsbruck, there would have been nothing to warn Sachs about when she bought the Eurail pass. However Sachs frames her suit, the incident in Innsbruck remains at its foundation. As we explained in Nelson, any other approach would allow plaintiffs to evade the Act's restrictions through artful pleading. For example, any plaintiff "could recast virtually any claim of intentional tort ... as a claim of failure to warn, simply by charging the defendant with an obligation to announce its own tortious propensity before indulging it." Id., at 363, 113 S.Ct. 1471. To allow such "recast[ing]" of a complaint, we reasoned, would "give jurisdictional significance to [a] feint of language," thereby "effectively thwart[ing] the Act's manifest purpose." Ibid. A century ago, in a letter to then-Professor Frankfurter, Justice Holmes wrote that the "essentials" of a personal injury narrative will be found at the "point of contact"-"the place where the boy got his fingers pinched." Letter (Dec. 19, 1915), in Holmes and Frankfurter: Their Correspondence, 1912-1934, p. 40 (R. Mennel & C. Compston eds. 1996). At least in this case, that insight holds true. Regardless of whether Sachs seeks relief under claims for negligence, strict liability for failure to warn, or breach of implied warranty, the "essentials" of her suit for purposes of § 1605(a)(2) are found in Austria. III Sachs raises a new argument in this Court in an attempt to fit her claims within § 1605(a)(2). In addition to arguing that her claims are "based upon" the sale of the Eurail pass, she now contends that her suit is "based upon" "OBB's overall commercial railway enterprise." Brief for Respondent 24; see also Tr. of Oral Arg. 38. "[C]ommercial activity carried on in the United States by the foreign state," as used in § 1605(a)(2), is defined to mean "commercial activity carried on by such state and having substantial contact with the United States." § 1603(e). Sachs's new theory is that OBB's entire railway enterprise constitutes the "commercial activity" that has the requisite "substantial contact with the United States," because OBB reaches out to American customers by marketing and selling Eurail passes in the United States. That argument was never presented to any lower court and is therefore forfeited. Sachs argued in the courts below only that her claims were "based upon" the sale of the Eurail pass, and the lower courts resolved the case on that understanding. See, e.g., 737 F.3d, at 591, n. 4 ("The district court concluded, based on the agreement of the parties, that 'the only relevant commercial activity within the United States was plaintiff's March 2007 purchase of a Eurail Pass from the Rail Pass Experts.' We consider only the relevant conduct as defined by the district court."). Indeed, when we granted certiorari, the relevant question presented for our review was whether Sachs's claims were "based upon" the "sale of the ticket in the United States." Pet. for Cert. i; accord, Brief for Respondent i. We have answered that question in the negative. Absent unusual circumstances-none of which is present here-we will not entertain arguments not made below. Taylor v. Freeland & Kronz, 503 U.S. 638, 645-646, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992). We therefore conclude that Sachs has failed to demonstrate that her suit falls within the commercial activity exception in § 1605(a)(2). OBB has sovereign immunity under the Act, and accordingly the courts of the United States lack jurisdiction over the suit. The judgment of the United States Court of Appeals for the Ninth Circuit is reversed. It is so ordered. Section 1605(a)(2) contains three separate clauses. In full, the section provides: "A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case ... 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." As Sachs relies only on the first clause to establish jurisdiction over her suit, we limit our inquiry to that clause. We cautioned in Nelson that the reach of our decision was limited, see Saudi Arabia v. Nelson, 507 U.S. 349, 358, n. 4, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993), and similar caution is warranted here. Domestic conduct with respect to different types of commercial activity may play a more significant role in other suits under the first clause of § 1605(a)(2). In addition, we consider here only a case in which the gravamen of each claim is found in the same place. See also Points and Authorities in Opposition to OBB Personenverkehr AG's Motion to Dismiss in No. 08-01840 (ND Cal.), p. 8 ("The claims herein are based on the purchase of the Eurail pass."); Appellant's Opening Brief in No. 11-15458 (CA9), p. 10 ("[T]he claims are 'based upon' the purchase of the ticket which occurred in the United States."); Appellant's Reply Brief in No. 11-15458 (CA9), p. 8 ("[H]er claim was based on the purchase/sale of the ticket."). The District Court decided the case on that understanding of Sachs's argument. See 2011 WL 816854, 2 (N.D.Cal., Jan. 28, 2011) ; see also 2010 WL 4916394, 1 (N.D.Cal., Nov. 22, 2010). As did the Ninth Circuit panel, see 695 F.3d 1021, 1024 (2012), and, as noted, the Ninth Circuit en banc. When OBB petitioned this Court for writ of certiorari, Sachs's brief in opposition repeated her earlier arguments. See Brief in Opposition 2; see also this Court's Rule 15.2. 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. 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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_direct2	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. In the Matter of QUEENS BOULEVARD WINE & LIQUOR CORP., d/b/a Gold Star Wine & Liquor, Debtor-Appellee, v. Anita BLUM et al., Petitioner-Landlord-Appellants. No. 179, Docket 73-1512. United States Court of Appeals, Second Circuit. Argued Nov. 29, 1973. Decided June 11, 1974. Hays, Circuit Judge, filed dissenting opinion. Robert M. Rosen, Garden City, N.Y. (Goldson, Rosen & Goldson, Garden City, N.Y., on the brief), for debtor-appellee. Jerome I. Lessne, New York City, (Leonard Holland, and Dreyer & Traub, New York City, on the brief), for appellants. Before MOORE, HAYS and TIMBERS, Circuit Judges. TIMBERS, Circuit Judge: On this appeal from an order entered in a Chapter XI proceeding in the Eastern District of New York, Orrin G. Judd, District Judge, denying a landlord’s petitions and granting a debtor’s petition for review of an order of a referee in bankruptcy, the sole question is whether, under the circumstances of this case, a bankruptcy court is required, pursuant to Sections 70(b) and 302 of the Bankruptcy Act, 11 U.S.C. §§ 110(b) and 702 (1970), to enforce a conditional limitation in a commercial lease which authorized the landlord to terminate the lease in the event its tenant should file a petition for an arrangement under Chapter XI of the Act. The district court held that the bankruptcy court was not so required. We affirm. I. The facts are not in dispute and may be briefly summarized. The debtor-appellee, Queens Boulevard Wine & Liquor Corp. (Queens), owns and operates a retail liquor store in Forest Hills, New York. On April 28, 1970, it entered into a seven year lease with appellant, Carol Management Company (Carol), for the premises at 103-05 Queens Boulevard. The lease was on the New York Real Estate Board’s standard form for stores. It included, as Article 16(b), a bankruptcy clause. This clause was amended by a typewritten addendum, Article 63. The bankruptcy clause, as amended, permitted the landlord to terminate the lease within a reasonable period after institution of bankruptcy proceedings by or against its tenant upon the condition that there be no forfeiture if obligations under the lease should remain unaffected by the bankruptcy proceedings and if the tenant should continue to comply with the terms of the lease, including prompt payment of rent. The lease further provided that the landlord, at its option, could apply any or all of its tenant’s $8000 security against rent due. By March 22, 1972, Queens had failed to pay the rent due on March 1. Carol instituted a summary proceeding in the Queens County Civil Court seeking a judgment of eviction and rent arrears. On the same day, Queens filed a petition for an arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701 et seq. (1970). It listed debts of approximately $370,000 and assets of approximately $73,500. Upon Queens’ application, the referee on March 27 entered an order continuing it temporarily in possession and, pending a final decree, staying the commencement and continuation of suits to enforce liens against it. This included Carol’s state court summary proceeding. Thereafter, pursuant to Carol’s demands and the referee’s order, Queens offered on April 4 to pay all rent then due subject to obtaining a surety bond which its creditors required in order to stay its adjudication as a bankrupt. The landlord found this to be satisfactory. While arrangements for obtaining the bond were underway, however, Carol received an offer to lease the store at a higher rent. By a letter dated April 21, it therefore served on Queens a notice of termination of the lease. On May 11, having obtained the required bond, Queens tendered to Carol a certified check for the full amount of the rent then due for the months of March, April and May. Carol rejected this tender. It pressed its application to have the March 27 stay vacated and to regain immediate possession of the premises. In an opinion filed on June 20, the referee held, among other things, that Carol had not waived its option under Article 16(b) by its demands for rent and by its April 21 letter it had effectively terminated the lease. The referee nevertheless ordered that Queens continue in possession and directed it to pay a sum equal to the rent as compensation for use and occupancy. The parties filed cross petitions for review of this order. Carol sought immediate' possession. Queens sought a declaration that the termination clause was invalid. While these petitions were pending, Queens’ creditors tentatively accepted a plan of arrangement. The plan contemplates that Queens will remain in possession of the leased premises throughout the term of the lease. Confirmation ,of the plan has been adjourned pending determination of the instant petitions for review. As a result of an infusion of outside capital, Queens presently is operating at a profit of approximately $2000 per week. It has continued prompt payments to Carol for use and occupancy of the store. In addition, pursuant to an order of the referee, it has paid to the trustee $1000 per week (such payments having totalled more than $50,000 to date) to be applied toward payment of its debts if the plan of arrangement is accepted and confirmed. II. Section 70(b) of the Bankruptcy Act, 11 U.S.C. § 110(b) (1970), made applicable here by Section 302 of the Act, 11 U.S.C. § 702 (1970), provides in pertinent part that: “an express covenant that the bankruptcy of a specified party . shall terminate the lease or give the other party an election to terminate the same shall be enforceable.” Carol contends that the statute requires us to reverse the district court and to award it immediate possession of the premises. Queens, on the other hand, maintains that Carol’s conduct prior to its April 21 notice of termination was inconsistent with its subsequent attempt to invoke Article 16(b) and that Carol therefore is estopped from terminating the lease. In the alternative, Queens argues that a bankruptcy court, in the exercise of its inherent equitable powers, may refuse to enforce a valid termination clause if the circumstances warrant. Courts traditionally have not favored lease forfeitures. They often have strained to construe forfeiture clauses narrowly or to find them not an “express” convenant within the requirement of the statute. See generally 4A Collier, Bankruptcy jj70.44[3], at 544-46 (14th ed. 1971). Even when such a lease covenant has been found to be valid on its face, courts have created two exceptions to mitigate the harsh consequences of what otherwise would be the absolute mandate of Section 70(b). First, some courts have held that a landlord, by conduct evidencing an intent to affirm the lease, may waive the right to terminate or be estopped from asserting it. Speare v. Consolidated Assets Corp., 360 F.2d 882, 887 (2 Cir. 1966); Davidson v, Shivitz, 354 F.2d 946, 948 (2 Cir. 1966); Matter of Frazin & Oppenheim, 183 Fed. 28 (2 Cir. 1910). Secondly, at least two courts have held and others have suggested that they are empowered to refuse enforcement of similar lease provisions on the ground that termination would work a substantial injustice to the lessee and would serve only to frustrate the basic reorganization purpose of Chapter X. Weaver v. Hutson, 459 F.2d 741 (4 Cir.), cert. denied, 409 U.S. 957 (1972); In re Fleetwood Motel Corp., 335 F.2d 857 (3 Cir. 1964). Cf. In re Yale Express System, Inc., 362 F.2d 111, 117 (2 Cir. 1966); In re Penn Central Transportation Co., 347 F.Supp. 1351, 1353 (E.D.Pa.1972). In the instant case, the referee found, and the district court accepted the finding, that there was no waiver. We may not upset such a finding unless it is clearly erroneous. In re Simon v. Agar, 299 F.2d 853 (2 Cir. 1962). True, the most common indices of waiver are absent here. At no time prior to invoking its right to terminate did Carol accept payment of rent. B.J. M. Realty Corp. v. Ruggieri, 338 F.2d 653, 654 (2 Cir. 1964). Nor did it delay unreasonably in giving notice of termination. Geraghty v. Kiamie Fifth Avenue Corp., supra, 210 F.2d at 98. Carol’s conduct prior to April 21 nevertheless strongly suggests that it was willing to accept payment of rent arrears, to forgive Queens’ default and to continue under the lease. Carol’s immediate response to the order staying the state summary proceeding was a letter to Queens dated March 31 indicating complete awareness of its right to terminate but refraining from doing so. Thereafter, on April 4, a hearing was held on Queens’ application to continue in possession. Carol again made specific reference to its Article 16(b) right but stated its position as follows: “We, of course, are looking for our rent for the months of March and April, and also we want to have our rent secured for any other months in the lease. * * -X* It is our request now that the stay [of the state eviction proceedings] be lifted, or else that the money be paid.” Pursuant to these demands and in view of Queens’ willingness to comply, the referee ordered immediate payment of the rent. Carol agreed to accept payment. Because of its inability to secure the required surety bond, however, Queens temporarily was adjudicated a bankrupt and thus was unable to comply with the order. On April 7, in response to Queens’ application for a stay of the bankruptcy adjudication, Carol once again demanded that the rent be paid or that the stay of eviction proceedings be vacated. These demands strongly indicate that Carol initially was concerned primarily with being paid and that it intended to accept tender of the rent. Relying on this, Queens, its creditors and their attorneys worked assiduously to obtain the necessary indemnity and to formulate a satisfactory plan of arrangement. It was not until these negotiations were well underway that Carol, on April 21, sent its notice of termination; and it did so then only because it had found a new tenant willing to pay a higher rent. Moreover, Carol was entitled throughout to set off against Queens’ sizeable security deposit its claims for rent that was due, but did not do so despite its agreement to accept payment. And under Article 63 of the lease, Carol continued to be bound even in the event of a bankruptcy adjudication as long as the rent was’ paid. The cumulative effect of these facts lends weight to Queens’ es-toppel argument. We do not rest our decision on this ground, however, for we find persuasive those cases relied upon by the district court which hold a lease termination provision to be unenforceable when compelling equitable and policy considerations so require. In re Fleetwood Motel Corp., supra, involved a Chapter X reorganization of a publicly owned hotel corporation. In refusing to order a debtor from possession pursuant to a lease forfeiture provision similar to the instant one, the court held that the validity of the clause on its face under Section 70(b), without more, was insufficient to justify enforcement. The court proceeded to consider whether forfeiture was reasonable when balanced against competing public interest considerations and whether it was consistent with the purposes of the Act. It concluded that, since termination would result in a windfall surrender to the landlord of the corporation’s only -assets (the hotel and its fixtures), would vitiate the reorganization proceedings and would cause an unnecessary loss to the investing public, enforcement of the forfeiture clause would be inequitable and would be inimical to the purposes of Chapter X. In Weaver v. Hutson, supra, upon facts similar to those in Fleetwood, the court also refused on equitable grounds to enforce a lease termination provision. The court in Weaver looked beyond the validity of the forfeiture provision on its face. It considered the effects of enforcement upon the debtor and the public, and whether termination would be consistent with the purposes of the Act. In denying rehearing, the court summarized the basis of its decision: “The fundamental bases [sic] of decision throughout was that the Landlords’ insistence upon a forfeiture was highly unconscionable and inequitable in the circumstances — a demand for blood. The conclusion generally was that as a court of equity the bankruptcy court had the discretion and power to refuse enforcement of [the forfeiture provision], . . . Furthermore, we declined forfeiture in the circumstances as defeating the reorganization aims of Chapter X.” 459 F.2d at 745. We recognize that Fleetwood and Weaver are distinguishable on their facts from the instant case. Queens is not a publicily held corporation. The benefit to the landlord here, in terms of a substantially higher rental income, is different from that in Fleetwood and Weaver where the landlords stood to acquire substantial tenant assets. Despite these and other factual differences, we find the rationale of those cases to be applicable here. The purpose of a Chapter XI arrangement, as with a Chapter X reorganization, is to preserve a viable business enterprise where possible and especially when that will be in the “best interest of . . . creditors.” 11 U.S.C. § 766 (1970). See In re Peoples Loan & Investment Co., 410 F.2d 851 (8 Cir. 1969). Cf. 9 Collier, Bankruptcy If 9.17, at 281 (14th ed. 1972). In determining whether to enforce the lease termination here, therefore, we must consider not only the interests of the landlord but also those of the debtor and its creditors. Possession by Queens will not prejudice Carol, which is protected by a sizeable security deposit, except to deny it a windfall in the form of increased rent to which we hold it is not equitably entitled. Enforcement of the forfeiture, on the other hand, would destroy a now profitable debtor by depriving it of its most valuable asset — its location. It also would needlessly injure trade creditors and those outside investors who have furnished capital which has resulted in Queens’ rehabilitation. In our view, these individuals stand on no less significant a footing than did the shareholders of the debtors in Weaver and Fleetwood. Our decision clearly is distinguishable from and in no way inconsistent with those eases which have upheld a termination clause such as that in the instant case. E. g., Finn v. Meighan, supra, 325 U.S. at 301; Model Dairy Co., Inc. v. Foltis-Fischer, Inc., 67 F.2d 704, 706 (2 Cir. 1933). Cf. B.J.M. Realty Corp. v. Ruggieri, 326 F.2d 281, 282 (2 Cir. 1963). In none of these eases would forfeiture have “seriously impaired”, let alone totally frustrated, an arrangement by depriving the debtor of an asset absolutely necessary to its continued viability. Compare Finn v. Meighan, supra, 325 U.S. at 302. Nor would relief from forfeiture in any of these eases have caused no harm whatsoever to the landlord. And in none of these cases did the landlord reject tender of the full amount of the rent due before any court had adjudicated its rights under the lease. Our decision does not deprive Section 70(b) of its statutory effect in those cases to which it is applicable. Bankruptcy forfeiture provisions are necessary for the protection of landlords and generally are enforceable. We hold only that, under the particular circumstances of this case, termination of Queens’ lease would be grossly inequitable and contrary to the salutary purpose of Chapter XI. Affirmed. . Article 16(b) of the lease provides : “If at the date fixed as the commencement of the term of this lease or if at any time during the term hereby demised . . . Tenant make an assignment for the benefit of creditors or petition for or enter into an arrangement this lease, at the option of Landlord, exercised within a reasonable time after notice of the happening of any one or more of such events, may be cancelled and terminated >1 . Article 63 of the lease provides: “Notwithstanding the provisions of Article ‘16’ hereof, in the event no relief is requested in any of the bankruptcy proceedings set forth in Article ‘16’ hereof to dis-affirm this lease, or to reform the same, . . . and provided, further, that all rent, additional rent and other charges due from Tenant under this lease are paid promptly when due, . . . this lease shall not be terminated as provided in Article ‘16’ hereof, but shall continue in full force and effect.” . When Queens found itself unable immediately to obtain the surety bond, the referee adjudicated it to be a bankrupt. On April 11, however, the referee modified this order and granted Queens leave to continue in possession subject to its posting the indemnity bond. . Carol’s continued acceptance of payments for “use and occupancy” does not constitute acceptance of “rent”. Matter of Wil-Low Cafeterias, Inc., 95 F.2d 306, 309 (2 Cir.), cert. denied, 304 U.S. 567 (1938). . Geraghty v. Kiamie Fifth Avenue Corp., 210 F.2d 95 (2 Cir. 1954) (Ch. XI); Finn v. Meighan, 325 U.S. 300, 302-03 (1945) (Ch. X). . Since Chapters X and XI both contemplate the continued viability of the debtor, the fact that Weaver and Fleetwood arose in the context of Chapter X proceedings does not diminish their relevance here. . Carol’s attempt to vacate the stay of state eviction proceedings is not inconsistent with its demands for payment of rent. Under Section 751(1) of the N.Y. Real Property Actions and Proceedings Law (McKinney 1963), payment of rent is a valid defense to an action for eviction and rent arrears. . The fact that the SEC appeared oil behalf of the shareholders in Fleetwood and Weaver and not in the instant case is but another distinction between a Chapter X reorganization and a Chapter XI arrangement. The SEC has certain statutory responsibilities under the former, none under the latter. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_usc1sect	3	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 17. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". MARKHAM v. A. E. BORDEN CO., Inc., et al. No. 4729. United States Court of Appeals, First Circuit. Aug. 21, 1953. Rehearing Denied Oct. 20, 1953. Cedric W. Porter, Boston, Mass. (Raymond E. Bernard, Heard, Smith, Porter & Chittick and Brown, Field & McCarthy, Boston, Mass., on the brief), for appellant. Irving U. Townsend, -Jr.,' Boston, Mass. (Emery, Booth, Townsend, Miller & Weidner, on the brief), for appellees. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. HARTIGAN, Circuit Judge. This is an appeal from a judgment entered in the United States District Court for the District of Massachusetts on November 24,1952, dismissing the complaint in a copyright infringement suit. Plaintiff, C. R. Markham, is a Chicago, Illinois, advertiser and the defendants are a Massachusetts corporation and its officers and directors, citizens of that state. The Markham copyrights consist of trade catalogs of refrigeration supplies and accessories allegedly compiled from more than a year of extensive research and at an expense of about $60,000. A. E. Borden Co., Inc., distributed two catalogs in 1948 and 1950 which contained the alleged infringements. In view of the long and painstaking opinion of the court below, reported in 108 F.Supp. 695, we think it is unnecessary for us to elaborate on the facts. The district court found that the defendant copied from the plaintiff certain copyrightable material; that the plaintiff had a valid copyright on this material and that the defendant had not resorted to a common source; that there were nine instances of such copying from the hundreds of items listed in the trade catalogs. However, the district court held that despite this copying of copyrighted material there had been no infringement because the copying was not “material and substantial.” The appellant contends that this rule of law was erroneously applied in view of § 3 of the Copyright Act, the component parts section. This section affords a blanket protection for magazines, periodicals and the like by providing that one copyright on such a publication will protect each part thereof as if it had been separately copyrighted. See King Features Syndicate v. Fleischer, 2 Cir., 1924, 299 F. 533. Therefore, it is asserted that the test of material and substantial infringement has no application to the catalogs in this case. We are constrained to agree with the appellant’s contention. The record before us amply supports the finding of the district court that the appellant’s description and presentation of certain refrigeration supplies, synthesized from data which the appellant assembled, contained the degree of originality which entitles him to copyright protection. This protection is clearly delineated in 17 U.S.C. § 3 and we perceive no reason for the inapplicability of that section. The appellee asserts that § 3 is inapplicable because it expressly protects only “composite works or periodicals”, whereas the catalogs in this case are mere compilations, covered by § 7 rather than § 3. In support of this argument, the appellee cites the definition of Judge Learned Hand, in Shapiro, Bernstein & Co. v. Bryan, 2 Cir., 1941, 123 F.2d 697, 699, “ * * * ‘composite works,’ by which we understand those to which a number of authors have contributed distinguishable parts, which they have not however, ‘separately registered’ * * We agree with this statement but essentially it means that “composite works” are those which contain distinguishable parts which are separately copyrightable. See King Features Syndicate v. Fleischer, supra. We think that the appellee unjustifiably expands this concept in its assertion that, “In other words, section 3 of the Act simply makes clear thatr where the work is of a character having a number of separately authored distinguishable and individually copyrightable component parts — components like the separate stories in a weekly magazine — then the one copyright taken on the whole composite work does protect each such component part as though the separate authors had individually copyrighted each his own part.” There is nothing in the statute to indicate that the protection of component parts is limited to composite works whose parts are separately authored. A broader protection is more consistent with the general purposes of the Copyright Act and is clearly within the language of § 3. An original achievement in the publication of a trade catalog, such as in this case the authorship of a comprehensive library, concisely describing the function and utility of refrigeration supplies, would have to be protected as to all component parts in order for the protection to be meaningful. Otherwise, if only the whole catalog were protected, and not each of its parts, then various wholesalers could select just a few items from the copyrighted catalog, according to each wholesaler's particular inventory, or according to each wholesaler’s particular preference for certain illustrations or descriptions. If such a selective pirating were allowed by applying the “material and substantial” test to the whole catalog rather than to each of its parts, then the copyright on the catalog would seem to have very little value. Such a result would be inconsistent with the policy of protecting original achievements in this area and the statutory language does not indicate that such a result was intended. The district court found that the nine items which defendant copied from the plaintiff did not derive from a common source, from some work in the public domain. In view of this finding, it is a true but irrelevant assertion in appellee’s brief that “section 3 of the Act obviously may not be applied to a trade catalog compilation, a mere collection and alteration of things already in the public domain * The plaintiff did not merely collect and alter existing descriptions of refrigeration supplies. He collected data on the supplies and conceived a lucid and forceful description by arrangement of the essential data. The district court found this effort sufficiently original to justify copyright. The originality consists in the description of each item, not in the arrangement of the various descriptions. Therefore, each copyrightable item in plaintiff’s catalog is a component part protected by § 3. Some decisions contain dicta which confuse the distinct question of the separate protection of a component part with the material and substantial test, which applies to infringement generally, either of a part or of a whole. See Mathews Conveyor Co. v. Palmer-Bee Co., 6 Cir., 1943, 135 F.2d 73; Perkins Marine Lamp & Hardware Co. v. Goodwin Stanley Co., D.C.N.Y.1949, 86 F.Supp. 630; Sieff v. Continental Auto Supply, D.C.Minn.1941, 39 F.Supp. 683. This confusion apparently originates in the indiscriminate use of a rule which has its chief utility in protecting literary and scientific endeavors, e.g. Toksvig v. Bruce Pub. Co., 7 Cir., 1950, 181 F.2d 664; Henry Holt & Co., to Use of Felderman v. Liggett & Myers Tobacco Co., D.C.Pa.1938, 23 F.Supp. 302, and the danger of confusion is increased by a failure to distinguish between a compilation such as a city directory, R. L. Polk & Co. v. Musser, D.C.Pa.1952, 105 F.Supp. 351, affirmed 3 Cir., 1952, 196 F.2d 1020, and a composite work. However, the component parts of trade-catalogs have been protected under § 3 without any inquiry as to whether the whole catalog was materially and substantially infringed. In Da Prato Statuary Co. v. Giuliani Statuary Co., C.C.Minn. 1911, 189 F. 90, at page 93, the court said: “The complainant having copyrighted its entire catalogue was entitled to the protection of the copyright law as to each cut contained therein; * * *. Other cases have held likewise. National Cloak & Suit Co. v. Kaufman, C.C.Pa.1911, 189 F. 215; Lindsay & Brewster, Inc., v. Verstein, D.C.Me.1937, 21 F.Supp. 264; see Basevi v. Edward O’Toole Co., D.C.N.Y. 1939, 26 F.Supp. 41. The findings in the instant case, which are amply supported by the record, require the application of § 3 of the Copyright Act and the result is that nine of the plaintiff’s component parts have been infringed in each of the catalogs published by the defendant in 1948 and 1950, making a total of eighteen infringements. It was erroneous for the district court to rule that these nine instances of copying did not amount to infringement. Since there is no showing on the amount of damages arising from these infringements, the plaintiff is entitled to be compensated in the manner provided in 17 U.S.C. § 101(b). We think it is inappropriate for us to assess these damages, as appellant has urged. This highly discretionary function, see F. W. Woolworth Co. v. Contemporary Arts; 1952, 344 U.S. 228, 73 S.Ct. 222 and Douglas v. Cunningham, 1935, 294 U.S. 207, 55 S.Ct. 365, 79 L.Ed. 862, is best performed by the trier of the facts. This is especially so in this case in view of the finding of the district court that Borden distributed its two infringing catalogs with notice of the plaintiffs’ copyright, and therefore the trial court is not confined by the statutory limitations in its assessment of damages. The judgment of the district court is reversed and the case is remanded to that court with direction to assess damages and enter judgment for the plaintiff; appellant recovers costs on appeal. . 17 U.S.C. § 3 provides: “Protection of component parts of work copyrighted; composite worhs or periodicals “The copyright''provided by this title shall protect all the copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting, but without extending the duration or scope of such copyright. The copyright upon composite works or periodicals shall give to the proprietor thereof all tile rights in respect thereto which he would have if each part were individually copyrighted under this title. July 30, 1947, c. 391, § 1, 61 Stat. 652; Oct. 31, 1951, e. 655, § 16(a), 65 Stat. 716.” . 17 U.S.C. §7 provides: “Copyright on compilations of works in public domain or of copyrighted works; subsisting copyrights not affected, “Compilations or abridgments, adaptations, arrangements, dramatizations, translations, or other versions of works in the public domain or of copyrighted works when produced with the consent of the proprietor of the copyright in such works, or works republished with new matter, shall be regarded as new works subject to copyright under the provisions of this title; but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed or any part thereof, or be construed to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works. July 30, 1947, c. 391, § 1. 61 Stat. 652.” Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 17? Answer with a number. Answer:
songer_sentence	B	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". UNITED STATES of America, Plaintiff-Appellee, v. Victor MORGAN, Defendant-Appellant. No. 90-5701. United States Court of Appeals, Fourth Circuit. Argued May 8, 1991. Decided Aug. 1, 1991. J. Michael Benninger, Wilson, Frame & Metheney, Morgantown, W.Va., for defendant-appellant. Sam G. Nazzaro, Office of the U.S. Atty., argued, Wheeling, W.Va. (William A. Koli-bash, U.S. Atty., Sherry L. Muncy, Asst. U.S. Atty., Elkins, W.Va., on brief), for plaintiff-appellee. Before WILKINSON and WILKINS, Circuit Judges, and CHAPMAN, Senior Circuit Judge. OPINION WILKINS, Circuit Judge: Victor Morgan challenges his convictions of and sentence for conspiring to distribute cocaine base, 21 U.S.C.A. § 846 (West Supp.1991), and aiding and abetting distribution of cocaine base, 21 U.S.C.A. § 841(a) (West 1981). We find no merit to Morgan’s assignments of error as to his conviction. However, because the district court failed to make an adequate finding resolving a disputed fact upon which it necessarily relied in sentencing, we vacate Morgan’s sentence and remand. I. Morgan was tried for conduct the government alleged occurred in the Mor-gantown, West Virginia area during the summer of 1989. Several individuals testified that Morgan sold them cocaine base or accepted the receipts of sales they made on behalf of Morgan’s coconspirator, Glinnon Norris. They also testified that Morgan accompanied Norris when Norris possessed firearms during activities that furthered the drug distribution conspiracy. On one occasion, for example, Morgan was present when Norris fired shots into woods surrounding the location where a drug transaction occurred to clear the area of any federal agents who might have been attempting to observe the transaction. The jury also heard testimony from Wayne Phillips who claimed Morgan held a gun to his head and threatened to kill him if he did not pay Morgan money Phillips owed for previous cocaine base transactions. Although the jury convicted Morgan of the drug offenses, it acquitted him of a charge of collecting an extension of credit by extortionate means relating to the Phillips incident. The United States Probation Office prepared a presentence report to which Morgan submitted numerous objections. An amended presentence report cured the majority of these objections, so that only two objections remained unresolved at sentencing — the amount of cocaine base attributable to Morgan and whether Morgan possessed a firearm during the commission of the offense. Based on a portion of the trial testimony, defense counsel argued that Morgan could be held accountable for only one and one-half grams of the illegal substance. The presentence report, adopting the view of the evidence and testimony advanced by the government, attributed a larger amount, 10.675 grams, of cocaine base to Morgan. Relying on the Phillips incident, the presentence report recommended a two-level increase in Morgan’s base offense level for his possession of a firearm during the commission of the offense. The government also argued that coconspirator Norris’s possession of a firearm during activities furthering the conspiracy supported the increase. Neither Morgan nor the government offered evidence during the sentencing hearing. After listening to arguments from counsel, the district court expressed concern about the fact that the presentence report recommended an increase in the base offense level for possession of a firearm based on the Phillips incident even though the jury had acquitted Morgan of the extortion charge. The district court, however, subsequently found that a firearm was involved and stated that if an appeal from the sentence was taken “you will appeal it as if I had accepted [the presentence report] in toto.” When asked by defense counsel for a clarification of the ruling with respect to the possession of a firearm, the district judge stated that he “accepted the probation officer’s conclusion.” II. A. Morgan’s principal allegation of error is that the presentence report contained certain recommended factual findings to which he objected and that the district court failed to make an adequate resolution of the disputed factual matter. Federal Rule of Criminal Procedure 32(c)(3)(D) states in pertinent part: If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the pre-sentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. This rule clearly requires the district court to make a finding with respect to each objection a defendant raises to facts contained in a presentence report before it may rely on the disputed fact in sentencing. This required finding by the district court may be made in several ways. The district court may separately recite its finding as to each controverted matter. Alternatively, the district court may expressly adopt the recommended findings contained in the presentence report. See United States v. Carlisle, 907 F.2d 94, 96 (9th Cir.1990); see also United States v. Montoya, 891 F.2d 1273, 1280 (7th Cir.1989) (statement by court that it agreed with opinion of probation officer on disputed issue sufficiently specific to constitute a factual finding under Rule 32(c)(3)(D)). This latter procedure is adequate to enable this court to determine the resolution and treatment by the district court of the alleged factual inaccuracy. See United States v. Perrera, 842 F.2d 73, 76 (4th Cir.) (per curiam), cert. denied, 488 U.S. 837, 109 S.Ct. 102, 102 L.Ed.2d 77 (1988). When the district court elects to take this approach in meeting its responsibilities under Rule 32, it must make clear on the record that it has made an independent finding and that its finding coincides with the recommended finding in the presentence report. Cf. United States v. Mandell, 905 F.2d 970, 974 (6th Cir.1990) (express finding on each controverted matter necessary “to ensure that the defendant’s concerns over disputed allegations in the presentence report have been considered by the district court”). If the district court makes adequate findings as to a controverted matter, this court must affirm those findings unless they are clearly erroneous. See United States v. Daughtrey, 874 F.2d 213, 219 (4th Cir.1989). This review process cannot take place without the district court first resolving all disputed matters upon which it relies at sentencing. In the event the district court fails to resolve a disputed factual matter on which it necessarily relied at sentencing, this court must vacate the sentence and remand for resentencing. See Mandell, 905 F.2d at 974-75. B. Two factual disputes remained for resolution at Morgan’s sentencing hearing. The district court expressly adopted the recommended facts contained in the presen-tence report concerning Morgan’s possession of a firearm during the commission of his offense. The district court, thereby, properly made a finding adequate to satisfy the requirements of Rule 32 with respect to this issue. However, it made no express finding about the amount of cocaine base for which Morgan would be held accountable. The only statement by the district court during the sentencing colloquy that might be construed as a ruling on this disputed issue is the statement by the district court that it adopted the presen-tence report “in toto.” While such an adoption of the presentence report may constitute a sufficient finding under Rule 32(c)(3)(D) when the context of the ruling makes clear that the district court intended to rule on each of the alleged factual inaccuracies, on this record we cannot determine whether the district court intended its ruling to apply to both of Morgan’s objections or only to the possession of the firearm issue. The district court was required to determine the amount of the cocaine base attributable to Morgan in order to calculate Morgan’s sentencing guidelines base offense level. See United States Sentencing Commission, Guidelines Manual, § 2D1.1(a) (Nov.1989). It is apparent that the district court used the amount of cocaine base recommended in the presentence report as the amount to be attributed to Morgan. While we find no basis in the record to quarrel with the use of this amount, if the mere “imposition of a sentence obviously based on the disputed allegations in the presen-tence report constituted an express finding, there would be no reason for the requirement of an express finding.” Mandell, 905 F.2d at 974. Here, the district court necessarily relied on a disputed factual matter in sentencing and the record does not clearly disclose that the district court made a finding as to the disputed fact. Thus, Morgan’s sentence must be vacated and the case remanded for resentencing. We do not envision that our ruling will unduly complicate or lengthen a sentencing hearing. Rather, we hold only that if the district court decides to adopt the proposed findings in the presentence report as its resolution of disputed facts, the record must be clear regarding which disputed issues were resolved by the adoption. III. Morgan also challenges the two-level enhancement of his base offense level for possession of a firearm during the commission of the offense. See U.S.S.G. § 2D1.1(b)(1). Morgan argues that the district court erred in finding he possessed a firearm because, as a matter of law, his co-conspirator’s possession of a firearm cannot be charged to him. Further, he contends that the only evidence offered that he personally possessed a firearm related to the Phillips incident. We reject Morgan’s contentions and find the enhancement to be proper. Although the district court expressed reservations about finding that Morgan participated in the Phillips incident because the jury had acquitted Morgan of the charge of collecting an extension of credit by extortionate means, the district court subsequently did adopt the proposed findings contained in the presentence report that Morgan pointed a firearm at Phillips. At sentencing, the district court makes factual findings based on a preponderance of the evidence. United States v. Urrego-Linares, 879 F.2d 1234 (4th Cir.), cert. denied, — U.S.-, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989). A jury’s acquittal of a defendant of an offense signifies that the jurors found that the evidence against the defendant fails to convince them of guilt beyond a reasonable doubt. Because the standard of proof at sentencing is less demanding, the district court may, applying a preponderance of the evidence standard, consider misconduct that did not result in conviction. United States v. Talbott, 902 F.2d 1129, 1133 (4th Cir.1990). Moreover, Morgan does not dispute that he knew his coconspirator possessed a firearm during events that furthered the conspiracy. He merely claims that, as a matter of law, the possession by his co-conspirator cannot serve as a sufficient basis for an enhancement of his sentence. We disagree. The section 2D1.1(b)(1) enhancement properly applies when a defendant has knowledge of his coeonspirator’s possession of a firearm during acts furthering the conspiracy. Cf. United States v. White, 875 F.2d 427, 433 (4th Cir.1989) (enhancement appropriate when reasonably foreseeable to defendant that co-participant possessed a weapon). IV. Morgan claims that a jury instruction given by the court was erroneous because it could have led the jury to believe that it should not discount the credibility of an informant’s testimony. The district judge instructed the jury that “it is no concern of yours why the Government chose not to indict a certain person or if it did indict him, why it determined to treat that person with leniency.” Morgan failed to object to this charge at trial, and this failure precludes our review of the charge unless the district court committed plain error. United States v. Love, 767 F.2d 1052, 1060 (4th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 849, 88 L.Ed.2d 890 (1986). We find that the instructions, as a whole, were proper and could not have confused the jury concerning its duty to evaluate the credibility of witnesses. Furthermore, any error in the charge did not rise to the level of plain error. For the foregoing reasons we affirm Morgan’s convictions, vacate Morgan’s sentence, and remand for resentencing. Prior to resentencing, the district court is instructed to make a specific finding as to the amount of cocaine base for which Morgan should be held accountable. We need not address Morgan’s remaining assignments of error in view of our present disposition. AFFIRMED IN PART, VACATED IN PART, AND REMANDED. The original purpose of Rule 32(c)(3)(D) was to prevent the Bureau of Prisons and the Parole Commission, in making critical determinations related to custody or parole, from placing undue weight on "factual assertions in the report which are in fact untrue and which remained unchallenged at the time of sentencing because defendant or his counsel deemed the error unimportant in the sentencing context.” Fed. R.Crim.P. 32(c)(3)(D) advisory committee notes. The purpose of ensuring "that a record is made as to exactly what resolution occurred as to controverted matter,” id., applies with equal force to guidelines sentencing. Question: Did the court conclude that some penalty, excluding the death penalty, was improperly imposed? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_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. NATIONAL INDUSTRIAL ALCOHOL CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 4929. Court of Appeals of District of Columbia. Argued Nov. 14, 1929. Decided Feb. 4, 1930. Motion for Rehearing. Reargument, and to Modify Judgment Denied March 1, 1930. R. M. O’Hara, of Washington, D. C., for appellant., Mabel W. Willebrandt, Asst. Atty. Gen., and C. M. Charest, Sewall Key, and J. G. Remey, all of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. VAN ORSDEL, Associate Justice. This appeal is from a decision of the United States Board of Tax Appeals in a ease involving income and profits taxes for the fiscal years ending May 31, 1919, and May 31, 1920. . Appellant company was engaged in the brewery business in New Orleans, La., from March, 1901 to November 3,1919. It adopted as a trade-name for beer “Old Heidelberg.” It spent in newspaper and souvenir advertising after March 1, 1913, the sum of $24,987.03; which was treated as ordinary expenses and deducted from gross income reported on its income tax returns. On November 3, 1919, appellant abandoned the manufacture of beer and the use of its trade-name, and entered upon the business of manufacturing near beer. In August, 1921, appellant began the manufacture and sale of industrial alcohol, which was not made as a by-product of the near beer, hut as a separate product. In 1923 the near beer-business was discontinued. In connection with the manufacture of' beer, appellant had two brick buildings, separated by a driveway. Each was of the same dimensions: three stories high; 50x100 feet. The walls of the' brewery building were 2 feet thick; and the walls of the cellar building were 4 feet thick, and contained cork for insulation purposes. This building was equipped with refrigeration pipes. The buildings in 1912 cost $115,348.93, and possessed a depreciated cost on May 31, 1918, including additions, of $124,119.09. The two buildings were constructed as a unit to be used in connection with the manufacture of beer. When the manufacture of beer was discontinued, following the adoption of prohibition, the brewery building and one floor of the cellar building were used in connection with the manufacture of near beer. The two upper floors of the cellar building and the vats therein, consisting of eight large steel vats and fifty wooden vats, were not used after November 3, 1919. . This case arose as the result of the Commissioner’s disallowance of the amounts expended in advertising and souvenirs, which, were claimed by appellant as deductions on account of the abandonment of its trade-name, and for an additional amount claimed for obsolescence or loss in connection with the two floors of the cellar building. From the affirmance of the Commissioner’s findings by the Board, this appeal was taken. It was stated in the opinion of the Board that “petitioner claims a loss for the obsolescence of its good will, trade names and trade brands. It has heretofore been held that such items are not the subject of an obsolescence deduction within the meaning of the Act.” This is true as to good will. A claim for loss of good will as the result of the termination of appellant’s brewery business by prohibition legislation was properly refused by the Commissioner. Good will is not of that class of intangible property which can be made the basis of income tax reduction, unless it can be shown that the loss resulted from a sale of property for a depreciated value. In Red Wing Malting Co. v. Willeuts (C. C. A.) 15 F.(2d) 626, 633, 49 A. L. R. 459, it was held that the loss of good will of a malting company as the result of prohibition cannot be a basis for deduction of income tax under the Revenue Act of 1918 (40 Stat. 1057). After an exhaustive review of the subject, the court said: “We have heretofore pointed out that good will has no existence separate and apart from an established business. With the termination of that business it is ended. While a capital asset, it is not the subject of purchase, sale, or assignment separate from the business itself. It is not an assignable asset distinct from the business. It is different in this respeet from such intangibles as patents, contracts or franchises which may be sold. When a business is disposed of its value and realized selling price may be enhanced by the existence of good will. If sold at a loss, the loss of good will is refleeted in the transaction. The claim is somewhat .novel, therefore, and rather startling, that loss of good will can be made the subject of an independent claim for a tax deduction, separate and distinct from the business of which it is an incident. * * * To hold that a claimant is entitled to segregate good will from the property and business to which it is attached as an incident, and from which it is inseparable, and permit a separate deduction for its loss, might result in a double deduction and have far-reaching consequences. If the court is to open the door to claimants for tax deductions under the statute for the loss of good will apart from the tangible property with which it is connected, the right should clearly appear from the statute. We think it does not so appear.” On the other hand, it has been held by the Board that loss sustained from the abandonment of a trade-name is properly deductible in the year in which the abandonment 'occurs; but it held that the difficulty encountered in the present case arises from the failure of the appellant to identify the expenditures making up the cost of establishing the trade-name. Undoubtedly a very large part of the expense incurred in advertising and souvenirs since 1913 resulted in the\| advancement of sales during the respective years, and as such was purely a business expense chargeable against the current income, as was done by appellant in respect of the entire amount so expended. In the case of Richmond Hosiery Mills v. Commissioner of Internal Revenue (C. C. A.) 29 F.(2d) 262, 263, where the petitioner sought to restore to its capital account as invested capital a large amount expended in advertising a brand of hosiery under the trade name of “Wunderhose” which it had adopted and copyrighted, the court affirmed the finding of the Board to the effect that, while a substantial part of the advertising of the trade brand undoubtedly produced immediate benefits, it was unable from the showing made to segregate the sums expended as between capital and expense. On this point the court said: “No effort was made to have an expert audit the books to determine what proportion of the amount expended for advertising should be allocated respectively to expense and capital account. It is certain that some part, and probably the larger part, should be considered as an expense, and much weight is given to this conclusion by the charging of the total amount to expense initially.” In this ease, as in that, the appellant has failed to sustain the burden of showing with reasonable certainty the amount chargeable to capital account, and, having charged the total amount to expense and made deductions accordingly, we agree with the Board that there is nothing before us upon which we can determine what amount can properly be attributed to the valué of the trade-name. We come now to the consideration of the claim of appellant for his loss sustained through the abandoned use of the two floors of the cellar building. It appears from tibe evidence that to remove the steel vats from the two floors would require the dismantling of the cellar building, the doors being only 6 feet wide and the vats 22 feet in diameter. In support of appellant’s contention that the two abandoned floors possessed no residual or salvage value, but represented a total. loss, we think the evidence is ample. In determining this point, the nature of the building and the purpose of its construction must be taken into consideration. The building was designed for the brewery business alone, with walls 4 feet thick, insulated, and equipped with refrigerating pipes, in which was installed at the time of building the steel and wooden vats. The testimony shows that neither the two floors abandoned nor the vats on those floors had any value to appellant after November 3, 1919. The only' use made of the building subsequent to that time was the use of the first floor until 1923 for the manufacture of a cereal beverage. To establish a loss, it is not essential that the fact or amount of the loss be determined by a sale of the property. Dean, Collector, v. Hoffheimer Brothers Co. (C. C. A.) 29 F.(2d) 668. “A loss may become complete enough for deduction without the taxpayer’s establishing that there is no possibility of an' eventual recoupment. * * * The taxing act does not require the taxpayer to be an incorrigible optimist.” U. S. v. S. S. White Dental Mfg. Co., 274 U. S. 398, 47 S. Ct. 598, 600, 71 L. Ed. 1120. It is not for the Commissioner or the Board to speculate as to the future use that may possibly be made of the property, or the value it may attain when so used, in the face of proof, as in this ease, that the entire value to appellant ceased with the outlawing of his-brewery business. We are of opinion, therefore, that appellant is entitled to deduction for the loss sustained to the extent of the value of the two floors together with the depreciated value of the vats therein contained. The decision of the Board is affirmed as-to good will and trade-name; and reversed as to allowance for loss of building. 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_r_bus	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Stefanos KTISTAKIS, Plaintiff-Appellant, v. UNITED CROSS NAVIGATION CORP. and Carras (U. S. A.) Ltd., Defendants-Appellees. No. 154, Docket 28410. United States Court of Appeals Second Circuit. Argued Nov. 7, 1963. Decided Nov. 18, 1963. James Corines, Brooklyn, N. Y. (Jacob Rassner, New York City, of counsel) (Jacob Rassner, Alan C. Rassner, New York City, on the brief), for plaintiff-appellant. Zock, Petrie, Sheneman & Reid, New York City (Edwin K. Reid, New York City, of counsel), for defendants-appellees. Before WATERMAN, MOORE and SMITH, Circuit Judges. PER CURIAM. After trial of the action, which was brought within the district court’s admiralty and maritime jurisdiction, the judge below, sitting without jury, awarded plaintiff damages of $40,000. He found plaintiff to have been so contributorily negligent that the $40,000 award represented but half of the recovery plaintiff would have been entitled to receive if he had not been negligent in any degree. This opinion is reported at 204 F.Supp. 293 (S.D.N.Y.1962). Upon appeal, 316 F.2d 869 (2 Cir. 1963), it was our view that the district judge may have given undue weight in his appraisement of plaintiff’s negligence to the circumstance that plaintiff was the vessel’s second mate, and, when injured, was the officer in charge of the watch, and hence had a duty to keep the deck clean from oil spill and sawdust. Therefore, we remanded the case to the district judge with instructions to re-examine the plaintiff’s conduct “by the traditional negligence standard of whether he exercised the care which a reasonably prudent man would have exercised under the circumstances.” After remand plaintiff moved for summary judgment and a redetermination of the damages on the trial record. Obedient to our instructions, the judge reviewed the record and applied the standard we instructed him to apply. In a memorandum opinion he reaffirmed his previous estimate of the extent to which plaintiff’s own negligence had contributed to the injury, and he reaffirmed his former award of damages. Plaintiff appealed. We affirm. Oil had been dripping for several hours from the coupling where the shore discharge lines connected with the ship’s manifold discharge lines and spill tubs had been placed under the leaking coupling to catch the drip. The entire area was well-lighted. From midnight until 2:30 A. M. plaintiff had been responsible for the supervision of the work being done in this area, including the emptying of the spill tubs from time to time. The slippery condition caused by the oil that had dripped onto the deck from the coupling or the tubs should have been apparent to a reasonably prudent man in the plaintiff’s position. Affirmed. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_trialpro	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". William S. WALTERS, Jr., Plaintiff-Appellant, v. FIRST TENNESSEE BANK, N.A. MEMHPIS, et al., Defendants-Appellees. Nos. 86-6031 to 86-6033. United States Court of Appeals, Sixth Circuit. Argued Oct. 8, 1987. Decided Aug. 16, 1988. Rehearing Denied Oct. 14, 1988. Larry E. Parrish, Parrish & Shaw, Hal Gerber (argued), Gerber, Gerber and Agee, Memphis, Tenn., Lewie R. Polk, III, for plaintiff-appellant. Leo Bearman (argued), Robert Mark Glover, Frank Glankler, Memphis, Tenn., for defendants-appellees. Before NELSON and NORRIS, Circuit Judges, and PECK, Senior Circuit Judge. JOHN W. PECK, Senior Circuit Judge. This is an appeal from actions brought by appellant William Walters, Jr., individually and for himself and the other shareholder of Ten Tex Marine, Inc. (“Ten Tex”) against appellee First Tennessee Bank (“the Bank”) in connection with loans extended by the Bank to Walters personally and to Ten Tex, in which Walters was a 50% shareholder. The actions alleged usury, breach of contract, and fraudulent conduct in violation of federal racketeering (RICO) statutes. After various pre-trial orders and a directed verdict, only Walters’ usury claim was considered by the jury. Although the jury found in Walters’ favor, the district court entered a judgment notwithstanding the verdict for the Bank. For the reasons stated below, we affirm the judgment of the district court. I. Inasmuch as the factual background of this litigation is lengthy and complex, a relatively brief summary follows. More specific facts are detailed in the course of the discussion of the individual issues on appeal. In May 1979 Walters obtained a personal loan for $475,000.00 from the Bank evidenced by a promissory note which provided that the interest would be at a floating rate pegged to 130% of the Bank’s prime rate. The loan was secured by a promissory note from Fischer Lime & Cement Co. (“Fischer”), of which Walters was the payee. When Walters later defaulted, the Bank asserted its right under the security agreement to receive payments from Fischer. In 1979 Walters also negotiated with the Bank for loans to capitalize Ten Tex and to construct a port facility on the Mississippi River in Tennessee. Initially the Bank made several loans to Ten Tex, totalling $1,521,000.00, the principal loan being for $1,341,000.00 and containing interest rate provisions identical to that of Walters’ personal loan. Two subsequent loans for $100,000.00 and $80,000.00 were made at 15% and 16% interest respectively. An agreement was also reached between Ten Tex and the Bank to finance the port facility project through the issuance of industrial revenue bonds. In November 1979 the Industrial Revenue Bond Board of Shelby County, Tennessee issued $1,425,000.00 in bonds. When the bond issue closed in December 1979, Walters executed an industrial revenue bond indenture which transferred all of the assets of Ten Tex to the Industrial Revenue Bond Board. The Bank was appointed trustee to hold Ten Tex assets and to receive payments under a lease by which Ten Tex leased back the port facilities. The Bank purchased all of the bonds. At the time the bond indenture was signed, the Bank advised Walters that certain pieces of marine equipment could not be financed under the bond issue until preferred ship mortgages could be executed on the equipment. Walters alleges that he was told that the needed documentation could be accomplished in a matter of a few weeks and that the marine equipment could then be financed through the bond issue. In order to complete Ten Tex’s capitalization pending the financing of all assets under the bonds, a $376,000.00 note (hereinafter “the side note”) was executed by Ten Tex. The note was secured by marine equipment and was subject to the same interest rate provisions as the $1,341,000.00 note. The principal amounts on the $1,341,000.00, $100,000.00 loan, and $80,-000.00 loan were retired with proceeds from the bond issue. The proceeds of the sale of certain items of marine equipment upon which preferred ship mortgages had been executed were applied to interest remaining on those loans. In September 1980 Ten Tex was unable to make its lease payment of $152,166.66. The Bank terminated the lease and, as trustee, declared its intent to repossess the premises. The Bank also accelerated payment on the side note and Ten Tex declared bankruptcy. Ten Tex has alleged that on September 15, 1980, the Bank, as trustee, held more than $185,000.00 in bond issue funds which it could release, but did not release, to Ten Tex, a factor that heavily contributed to its bankruptcy. In May 1982 Walters filed an action on his own behalf against the Bank under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961, et seq., and under the National Bank Act, 12 U.S.C. §§ 85, 86. He also alleged pendent state claims for misrepresentation, breach of contract, and common law fraud. The gravamen of the complaint was that the Bank committed “prime rate fraud” by charging excessive and usurious interest on the $475,000.00 loan. In November 1982 Walters also filed a shareholder derivative action on his own behalf and that of Ten Tex’s other 50% shareholder. This action raised essentially the same claims with regard to the $1,341,000.00 loan, side note, and bond issue. An interpleader action was filed by Fischer in October 1982 in an effort to protect itself from multiple liability due to conflicting demands for payment by Walters and the Bank. Fischer’s note payments were thereafter paid into the registry of the court. In August 1984 the district court consolidated the three actions for trial. On September 20, 1984, the district court granted summary judgment in favor of the Bank on certain issues. The court ruled that the interest due on the $1,341,000.00 loan was paid on November 2, 1979, and thus any usury claim on that loan was barred by the two year statute of limitations set forth in 12 U.S.C. § 86. The bond issue was alleged to have been “tainted” because Walters claimed that Ten Tex paid not only the 9% bond rate of interest but also the underlying 15% and 16% interest on two of the notes during the period from November 1 to December 5, 1979; however, the court ruled that the undisputed affidavit of the trust officer of the Bank indicated that the 9% interest due on the bond issue was paid by the Bank, and thus no double interest was paid by Ten Tex. As for the claims concerning the $346,000.00 side note, the district court ruled that the statute of limitations had not run. The court determined, however, that that note was subject to a preferred ship mortgage; under the Preferred Ship Mortgage Act, such a mortgage “may bear such rate of interest as is agreed by the parties thereto.” 46 U.S.C. App. § 926. The court ruled that the Preferred Ship Mortgage Act superceded the National Bank Act because [Section] 926 was intended to be the exclusive word on loans subject to preferred ship mortgages. The policy behind the P.S.M.A. was to encourage investment by lending concerns in a unique commercial area fraught with risk. A contrary holding, as urged by plaintiff, would contravene congressional policy and make lenders susceptible to a double interest penalty heretofore thought inapplicable. The court also reasoned that in any event there could be no substantive usury viola-' tion of 12 U.S.C. § 86 because the essential element of intent was missing. At jury trial in September 1985, the district court granted a directed verdict for the Bank on the RICO and fraud claims alleged in both lawsuits. The only remaining issue presented to the jury was whether the Bank knowingly charged Walters usurious interest on the $475,000.00 note. As noted above, the jury found in Walters’ favor, but the district court entered judgment NOV for the Bank. The district court’s decision was based on its finding that Walters failed to prove that the excess interest charge was knowingly assessed. The only testimony on the issue was from the Bank’s witness, Charles Dudley, who admitted two periods of overcharges, but who testified that they (as well as certain undercharges) were inadvertent errors due to manual computer programming oversights. Walters presented no contradictory evidence tending to show that the overcharges were anything but the' result of negligence. Walters, on behalf of himself and as a shareholder of Ten Tex, timely appealed. Walters has raised numerous issues on appeal, which we will address seriatim. II. The Summary Judgment Order Walters argues that the district court erred in dismissing the usury claim filed on behalf of Ten Tex in the derivative action. He urges that, contrary to the district court’s conclusion, the usury claim on the $1,341,000.00 note was not barred by the two-year statute of limitations in 12 U.S.C. § 86 which governs such claims. Walters maintains that Ten Tex’s filing of a Chapter 11 petition on September 30, 1980, triggered the automatic stay provision of 11 U.S.C. § 362 before the statute of limitations had run. He theorizes that since Ten Tex, the debtor, was a named party defendant in the derivative action, the automatic stay provision would have prohibited initiation of the derivative action until disposition of the bankruptcy case, which had not occurred as of November 1982. We reject Walters’ contention. First, Walters did not raise this point before the district court. It is well established that where a plaintiff fails to assert in district court that the statute of limitations has been tolled, he cannot raise it for the first time on appeal. Roberts v. Berry, 541 F.2d 607, 610 (6th Cir.1976). Even if we were to reach the merits of the issue, we would determine that this is not “an action against the debtor” stayed by 11 U.S.C. § 362. As noted by the Bank, Ten Tex is merely a nominal defendant in the derivative action; the Bank is the party charged with usury. This is sufficient to take the derivative action out of the scope of the automatic stay provision. See, e.g., Price & Pierce Int'l, Inc. v. Spicers Int'l Paper Sales, Inc., 50 B.R. 25 (S.D.N.Y.1985) (interpleader action, which named bankrupt debtor as defendant, was not subject to automatic stay, because the bankrupt was only a nominal defendant). See also NLT Computer Services Corp. v. Capital Computer Systems, Inc., 31 B.R. 960, 961 (M.D.Tenn.1983), vacated on other grounds, 755 F.2d 1253 (6th Cir.1985). Walters also challenges the district court’s ruling that the usury provisions of 12 U.S.C. § 85 and § 86 were not applicable to Ten Tex’s side note. The district court determined that because the side note was secured by a preferred ship mortgage, the Preferred Ship Mortgage Act, 46 U.S.C. App. § 911 et seq., not the National Bank Act, controlled. Because 46 U.S.C.App. § 926(d) provides that “a preferred mortgage may bear such rate of interest as is agreed by the parties thereto,” the district court reasoned that the parties could agree to any rate of interest, even one which exceeded the limits of 12 U.S.C. § 85. Walters argues that the district court erred in making this determination. He observes that the side note provided for “[a] floating rate which is equal to 130% of the Bank’s prime rate and changes the same day that the Bank’s prime rate changes, but such floating rate shall in no event exceed the maximum rate allowed by applicable law.” Moreover, he stresses that preferred ship mortgages were not recorded on two vessels securing the note until several weeks or months after the loan was made and after the charging and receipt of interest occurred. Thus, Walters raises questions of significance in this regard. First, can the side note constitute a preferred ship mortgage and gain the protection of the Preferred Ship Mortgage Act, which has strict execution and recording requirements for preferred mortgage status, see 46 U.S.C.App. §§ 921, 922, when the preferred ship mortgages were not executed and recorded on vessels partially securing the side note until long after the note’s execution? Second, even if the side note were controlled by the Preferred Ship Mortgage Act, does the note’s above interest rate provision evidence an intent of the parties to be bound by applicable federal and/or state usury laws which can be incorporated by reference into preferred ship mortgages? See C.I.T. Corp. v. M/V Miss Eileen, 447 F.2d 761, 763 (5th Cir.1971). However, we need not reach these legal issues, which the district court apparently did not consider, in light of our determination that the district court’s alternative ground for dismissal was correct. The district court found with regard to both the side note and the $1,341,000.00 loan that there could be no possible substantive violation of 12 U.S.C. § 86 because Walters failed to show any evidence of intent, a requisite element of usury. Section 86 provides a penalty for “[t]he taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section [12 U.S.C. § 85] when knowingly done_” (emphasis added). The Ninth Circuit has held that the standard for determining intent under § 86 is that (1) the act of charging excess interest is intentional, and that (2) the bank knew its policy would result in receipt of more than the legal rate. American Timber & Trading Co. v. First Nat’l Bank of Ore gon, 690 F.2d 781, 788 (9th Cir.1982). We find this standard helpful. Implicit in this standard is that an honest mistake of fact, e.g., a mistake in computation, is not usurious. See, e.g., White v. Kaminsky, 196 Tenn. 180, 185, 264 S.W.2d 813, 815 (1954). See also cases collected at 51 A.L.R.2d 1087. Our review of the record shows that the district court properly found that Walters presented no evidence of intent. The only evidence regarding intent, or lack thereof, was provided by the affidavit of Charles Dudley, submitted to support the Bank’s motion for summary judgment. In that affidavit Mr. Dudley thoroughly and concisely explained how the overcharges and undercharges occurred. He stated that at all relevant times the interest rate ceiling applicable to the thousands of notes held by the Bank was set on computer by manual process. Mr. Dudley stated that during the time the Ten Tex notes were in effect, the prime rate and Federal discount rate changed on a weekly basis. As such, the interest rate and usury ceiling rate under 12 U.S.C. § 85, which is pegged to the discount rate were also changing weekly. When the usury ceiling thus changed, the account officer had to report the new ceiling to the Bank’s Loan and Discount Division, where a clerk programmed into the computer the new usury ceiling for the particular note. Mr. Dudley averred that approximately 98 such changes occurred during the relevant time period and that only five errors occurred on the Ten Tex notes. Of these five, three were favorable to Ten Tex and resulted in a net undercharge to Ten Tex. Dudley attributed the errors solely to negligence and inadvertence. In response Walters presented no evidence tending to show that the Bank acted other than negligently or by mistake. As such, there was a complete failure of proof concerning intent, a required element of Walters’ usury case. Summary judgment for the Bank was therefore proper. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 327, 106 S.Ct. 2548, 2553, 2555, 91 L.Ed.2d 265 (1986). We also find unpersuasive Walters’ argument that there was evidence of usury due to the Bank’s failure to modify its claims against Ten Tex in the bankruptcy proceeding to take into account the overcharges of which it was by then aware. Walters was granted leave to amend his complaint in the derivative action in order to allege that two of the Bank’s claims in bankruptcy court were fraudulent because they were based on usurious interest rates, and because the Bank had received payments from the bankruptcy court after receiving knowledge of the usurious nature of the interest. However Walters voluntarily dismissed this new count on the first day of trial; he is therefore estopped from raising it on appeal. The Directed Verdict Walters argues that the district court also erred in directing a verdict for the Bank on the RICO and common law fraud claims, as well as on the breach of contract claims. Central to these claims is the theory that the Bank perpetrated a fraud and breached the loan agreement by charging Walters and Ten Tex an announced published prime rate that was higher than an unannounced lower rate charged to certain other short-term borrowers. Walters argues that “prime rate” as used in the loan agreements and as generally understood means the best, i.e. lowest, rate given by a bank to its customers. In order to state a valid RICO claim, a plaintiff must prove that the defendant committed an illegal predicate act. See 18 U.S.C. § 1962. Walters relied on the federal mail fraud statute, 18 U.S.C. § 1341, in both the individual and derivative actions. As stated by this court in Bender v. Southland Corp., 749 F.2d 1205 (6th Cir.1984): [t]he crime of mail fraud has two elements: a scheme or artifice to defraud and a mailing for the purpose of executing the scheme. Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 362, 98 L.Ed. 435 (1954); United States v. Talbott, 590 F.2d 192, 195 (6th Cir.1978); United States v. Schilling, 561 F.2d 659, 661 (6th Cir.1977). This court has held that the scheme to defraud must involve: [IJntentional fraud, consisting in deception intentionally practiced to induce another to part with property or to surrender some legal right, and which accomplishes the end designed. [A scheme to defraud] requires intent to deceive or defraud. [Emphasis supplied.] Epstein v. United States, 174 F.2d 754, 765 (6th Cir.1949). See also Schilling, 561 F.2d at 662. This court has also held that the scheme to defraud must involve “misrepresentations or omissions reasonably calculated to deceive persons of ordinary prudence and comprehension.” United States v. Van Dyke, 605 F.2d 220, 225 (6th Cir.), cert. denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.2d 425 (1979). Id. at 1215-16. There was no evidence that the Bank published a false rate. Although there were admittedly lower interest rates charged to some other short-term borrowers, the Bank presented evidence that certain categories of loans are routinely excluded in the industry in determining a bank’s prime rate. Walters’ own expert, Mr. Auerbach, agreed on cross-examination that numerous categories of loans were properly excluded by the Bank. He also responded to the Bank’s questioning as follows: Q: Let me ask you this question, Mr. Auerbach. If in determining the lowest rate in the bank, which you call the actual prime rate, the bank, this hypothetical bank, takes a look at all of its loans that fit the category of the prime and it excludes from that group all of the loans that are in other categories for whatever reason and it determines on making that calculation that the lowest rate that it charges in the prime rate category that remains after eliminating the exclusions is in fact its announced prime, then it has done nothing in your eyes that’s wrong, right? A: That’s correct. Q: Nobody’s been defrauded; nobody has been misrepresented and nobody has been deceived? A: That’s right. The Bank further presented the testimony of one of its officers that the Bank had conducted a search of all its 90-day loans of $100,000.00 or more to corporate borrowers for commercial purposes, and that, according to its findings, the Bank made no loans below its announced prime rate in categories that Walters and Auerbach believed to be proper in determining the “true” prime rate. Moreover, the Bank also established that of the fourteen loans highlighted by Walters as evidence that the Bank sometimes charged less than the announced prime rate, nearly one-half were required by Tennessee law at that time to have a 10% interest rate ceiling as they were single payment loans of $1,000.00 or less, see Tenn.Code Ann. § 47-14-104(a)(l), and/or they fell into the categories that were inappropriate for determining the “prime rate.” Finally, there was no evidence that the Bank ever represented that the prime rate would be the lowest rate; rather, Walters, an experienced businessman and member of the board of another national bank, who negotiated his own loan and the Ten Tex loans, proceeded on the basis of his own assumption of what “prime rate” meant. Given this, the district court properly directed a verdict on the fraud claims. Giving Walters and Ten Tex the benefit of every fair and reasonable inference, there simply was an absence of proof of an intent to defraud, deception, or misrepresentations or omissions reasonably calculated to deceive Walters as required for mail fraud. See Bender, supra, 749 F.2d at 1216. As stated by this Court regarding a RICO-mail fraud case decided subsequent to the district court’s disposition of this case: The fact that the parties take different positions under the contract as to the appropriate prime rate, or the fact that the defendant charged too high a “prime rate” and thereby concealed or refused to disclose what the plaintiff considers the true prime rate called for under the contract, does not give rise to a valid claim for fraud. Blount Financial Services, Inc. v. Walter E. Heller & Co., 819 F.2d 151, 152 (6th Cir.1987). Similarly, the common law fraud claims also premised on the prime rate fraud theory were properly disposed of by way of the directed verdict. See Gold v. Nat’l Savings Bank of the City of Albany, 641 F.2d 430, 435 (6th Cir.), cert. denied, 454 U.S. 826, 102 S.Ct. 116, 70 L.Ed.2d 100 (1981) (applying Tennessee law). In the derivative action Walters also claimed that the Bank committed fraud in three other instances: 1) by extending the duration of the side note so that it could collect higher interest than that provided by the industrial bond issue; 2) by withholding bond issue funds on which Ten Tex had paid interest and thereby contributing to its cash shortage, which led to bankruptcy; and 3) by collecting interest upon interest and assessing penalty charges for late payments. Having carefully reviewed these allegations and the record, we conclude that the district court properly rendered a directed verdict for the Bank with regard to these claims. As the Tennessee Supreme Court has noted in Jones v. Seal, 56 Tenn.App. 593, 409 S.W.2d 382 (1966), “the facts and circumstances proved [at trial] must clearly establish the inference of fraud.” 409 S.W.2d at 385. See also Anderson v. Nichols, 39 Tenn.App. 503, 286 S.W.2d 96 (1955). A jury cannot render a verdict on the basis of speculation, surmise or conjecture. See Dayton Veneer & Lumber Mills v. Cincinnati N.O. & T.P. Railway Co., 132 F.2d 222 (6th Cir.1942); Cecil Corley Motor Co., Inc. v. General Motors Corp., 380 F.Supp. 819 (M.D.Tenn.1974), and Groves v. Witherspoon, 379 F.Supp. 52 (E.D.Tenn.1974). Gold, 641 F.2d at 435. The evidence presented on these three allegations of fraud would at most have allowed a jury to reach a verdict based on sheer speculation or conjecture. Walters also alleged that the Bank breached its contract by charging interest on the basis of its announced prime rate rather than its alleged lowest “unannounced” prime rate. The facts and evidence recounted above which permitted the district court to enter a directed verdict on the prime rate fraud theory also supported the directed verdict on the related breach of contract claim. Walters alleged three other state law breach of contract theories, which we believe were also properly the subject of a directed verdict for the Bank. Walters argued that the $475,000 note was too indefinite to be enforceable because it allowed the Bank to charge interest based on a prime rate that it set unilaterally. As a general principle, the law does not favor declaring contracts void for indefiniteness. Williston, Law of Contracts, 3 ed., Vol. 1 § 37. Although we could find no Tennessee cases directly addressing the enforceability of monetary obligations bearing a variable form of interest rate, the overwhelming, if not unanimous, weight of authority upholds the validity of such variable rate contracts, provided the lender’s power to vary the interest rate is tied to some objective or marketplace factor. As stressed by the Connecticut Supreme Court in Constitution Bank & Trust Co. v. Robinson, 179 Conn. 232, 425 A.2d 1268 (1979), The essential characteristic that distinguishes enforceable from unenforceable variable interest rates is the extent of discretion retained by the lender. If the lender may arbitrarily adjust the interest rate without any standard whatsoever, with regard to this borrower alone, then the note is too indefinite as to interest. If however the power to vary the interest rate is limited by the marketplace and requires periodic redetermination, in good faith and in the ordinary course of business, of the price to be charged to all of the bank’s customers similarly situated, then the note is not too indefinite. Id. at 237, 425 A.2d at 1270-71. Accord Bank of Maine, N.A. v. Weisberger, 477 A.2d 741, 744 (Me.1984); Powell v. Central California Federal Savings & Loan Ass’n, 59 Cal.App.3d 540, 549, 130 Cal.Rptr. 635, 640-41 (1976); Restatement 2d of Contracts, § 34(1) and comment a. Certainly, the evidence submitted by the Bank and testimony of the bank officer unequivocally show that the interest rate was set according to the fluctuation in the prime rate, was redetermined as the rate changed, and did apply to all similarly situated bank customers, i.e. those customers with loans in the same category. The Bank did not have unfettered discretion in setting the interest rate on Mr. Walters’ loan. As such, we believe that Tennessee courts would conclude that the terms of the note were sufficiently definite to be enforced. Walters also advanced the argument that even if the collection of interest in certain instances was not usurious, it nonetheless breached the contract because the maximum interest rate under his promissory note was limited by usury laws in force as of May 3, 1979, the date he obtained the $475,000 loan, and not as of the date the interest was collected. The plain language of the note is contrary to Walters' interpretation: The rate of interest on the unpaid principal balances of the indebtedness hereby evidenced shall be adjusted as of each day that the prime rate is changed; provided, always, however, that notwithstanding any changes in said prime rate, the rate of interestjiereon prior to maturity shall never be more than the maximum lawful contract rate which a national bank, having its principal place of business in the State ofTennes-see, may lawfully charge from time to time_ It is the intention of the maker and the bank to contract in strict compliance with the usury laws as set forth at 12 U.S.C. § 85, and the law of the State of Tennessee incorporated therein by reference; and, accordingly, in no event and upon no contingency shall the bank ever be entitled to receive, collect, or apply as interest any interests, fees, other payment equivalent to interest, in excess of the maximum contract rate which may, from time to time, be lawfully charged to the maker hereof under the applicable law by a national bank having its principal place of business in the State of Tennessee, (emphasis added). Clearly, the Bank was not limited by the maximum rate in effect on the day of signing, but could charge interest limited by the rate ceiling and usury laws in effect as they changed “from time to time.” Our conclusion on this issue also necessarily disposes of Walters’ remaining, related claim that by charging interest in excess of that allowed under usury laws in effect on May 3, 1979, the Bank committed an anticipatory breach of the contract which excused Walters from fulfilling his obligations under the note. The Judgment NOV Although all of the usury claims in the derivative action were dismissed in the summary judgment order, certain of Walters’ usury claims on his personal loan did go to the jury. The district court had ruled that the two year statute of limitations barred Walters’ usury claims prior to May 22, 1980, a ruling which Walters has not challenged. The district court also ruled during the course of the trial that as a matter of law any usury claims after October 8, 1980, on the personal loan necessarily failed based upon the court’s construction of certain state and federal interest rate statutes. Consequently, the jury was presented with usury claims on the personal loan based on overcharges totalling $337.06 between May 29, 1980 through June 8, 1980, and from September 8, 1980 through September 25, 1980. Specifically, the district court submitted the issue to the jury by means of the following special interrogatory: Did the defendant First Tennessee Bank knowingly take or receive from or charge to the plaintiff William S. Walters, Jr. interest in excess of the lawful rate on the $475,000.00 note signed May 3, 1979, between the date of its signing and December 2, 1980? The district court further instructed the jury that: The word “knowingly” means intentionally receiving interest in excess of the amount authorized by appropriate laws. Knowingly does not include collecting interest above the lawful amount due to a mistake of fact or by an unintentional error of fact. The jury responded “yes” to the special interrogatory. We believe that the district court properly rejected the jury’s verdict for Walters and entered judgment NOV. The only tes-, timony at trial regarding the Bank’s overcharge was that of Mr. Dudley. His testimony at trial with regard to the $475,-000.00 loan corroborated and mirrored his affidavit, discussed above in conjunction with the summary judgment for the Bank on the Ten Tex loan usury claims. As in his affidavit, Dudley testified that the two overcharges resulted from inadvertent clerical oversight, i.e. a Bank employee’s failure to enter the lower usury ceiling on the computer when the federal discount rate dropped. In addition, similar programming oversights occurring when the discount rate and usury ceilings rose resulted in the Bank’s undercharging Walters more than it ever overcharged him. Indeed, the Bank’s undercharges preceded any overcharges. In face of this evidence which at most established negligence on the part of the Bank, Walters presented no contradictory testimony or evidence. His argument on appeal centers around a theory that the Bank committed usury because it “knowingly” made a choice to use a computer system which permitted such errors to occur. However, this argument only permits one to conclude that the Bank was negligent. As such, the district court correctly entered a judgment NOV. Viewing the case in a light most favorable to Walters, and drawing all reasonable inferences in his favor, there simply was an absence of proof of knowing conduct by the Bank, an essential element of usury under 12 U.S.C. § 86 which Walters had the burden of proving “convincingly,” Wheeler v. Union National Bank of Pittsburgh, 96 U.S. 268, 270, 24 L.Ed. 833 (1878). III. We have thus considered the numerous issues in this appeal, and conclude that the district court’s judgment was correct in all respects. In so doing, we carefully and fully reviewed all of the arguments raised by the parties and the voluminous record in this ease. Accordingly, the judgment of the district court is hereby AFFIRMED. . 11 U.S.C. § 362(a)(1) establishes an automatic stay against the "commencement ... of other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title." The stay continues until the earliest of the time the case is closed, is dismissed, or discharge is granted or denied. 11 U.S.C. § 362(c)(2). . We note that Walters did not raise these particular arguments before the district court. He apparently agreed at that time that the Preferred Ship Mortgage Act was applicable to the side note; he argued that he did not agree to be overcharged interest and, therefore, that § 926 of the Preferred Ship Mortgage Act should not protect the Bank. . In connection with the prime rate fraud portion of the trial, the district court excluded evidence of a 1978 criminal conviction of the Bank which apparently resulted from improper campaign contributions.,. The district court reasoned that the risk of prejudice substantially outweighed any probative value the conviction had for attacking a small portion of a bank officer's testimony that the Bank would not hire dishonest persons. See Fed.R.Evid. 403. The district court’s determination can only be reversed for an abuse of discretion. United States v. Feldman, 136 F.2d 394, 399, (2d Cir.1943), aff’d, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408 (1944). Based upon our review of the record, we are not prepared to say that the district court abused its discretion in excluding this “other crimes” evidence, which may be admissible under the terms of Fed.R.Evid. 404(b). . Assuming, arguendo, that the Bank did so violate the contract, Walters still would have no claim for anticipatory breach, because the Bank had substantially performed under the contract. See Constitutional Bank & Trust Co., 425 A.2d at 1270. . Walters superficially challenges the district court's construction of Pub.L. No. 96-221 and Pub.L. No. 96-399 in its appellate brief by simply referencing its trial memorandum. We cannot countenance this attempt to circumvent Fed.R.App.P. 28(g) and its limitation on appellants' briefs to 50 pages. As stated in Katz v. King, 627 F.2d 568 (1st Cir.1980): "If counsel desires our consideration of a particular argument, the argument must appear in the four corners of the brief filed in this court.” Id. at 575. Insofar as Walters argues that this federal legislation, which preempted state usury ceilings and granted interest rate relief to banks during and after 1980, constitutes an unconstitutional impairment of the contract, we note that no court has ever declared these statutes unconstitutional. Moreover, the contract Walters signed expressly contemplated that the interest rate charged and allowed by law would or could fluctuate from "time to time,” which negates his contention that the rate in effect on the date of signing of the contract was the maximum rate that could ever be charged. Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_circuit	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. UNITED STATES of America, Plaintiff-Appellee, v. Robert E. CROWLEY, Defendant-Appellant. No. 73-1437. United States Court of Appeals, Seventh Circuit. Argued Dec. 5, 1973. Decided Sept. 30, 1974. Michael J. Guinan, Chicago, 111., for defendant-appellant. James R. Thompson, U. S. Atty., Gary L. Starkman and Michael D. Monico, Asst. U. S. Attys., Chicago, 111., for plaintiff-appellee. Before SWYGERT, Chief Judge, SPRECHER, Circuit Judge, and POOS, Senior District Judge. Honorable Omer Poos, Senior District Judge for the Southern District of Illinois, is sitting by designation. POOS, Senior District Judge. Defendant, Robert E. Crowley, was indicted in a one count indictment for violation of the Hobbs Act, 18 U.S.C. Sec. 1951. Following a trial by jury, defendant was found guilty and sentenced to two years imprisonment. This appeal follows that conviction. Jack David and Jerome Morris, hereinafter referred to as David and Morris, were the proprietors of the Bryn Mawr Bowling Lanes located in Chicago’s south side. In recent years their business, which was located in a racially changing area, had experienced numerous thefts and violent disturbances. The proprietors soon discovered that without sufficient police protection they were unable to properly and profitably continue their business enterprise. It is within this factual milieu that defendant, a police officer for the Chicago Police Department, enters. In the fall of 1971, David and Morris were separately introduced to defendant Crowley by another unidentified policeman who had been receiving pay-offs from the two men. Crowley was introduced to each of the alleged victims as the man who would continue to collect the monthly pay-offs. Subsequently, the proprietors paid one hundred dollars ($100) per month from November, 1971 to April, 1972, on approximately the fourteenth (14th) of each month. The manner of payment involved either of the two men writing a check for the designated amount, cashing it, and then giving the sum of money to defendant when he entered the premises. Defendant admitted to having received the money but contended that it was voluntary remuneration for services rendered to the alleged victims, i. e., providing security for the premises while on and off duty. The record further discloses, however, that defendant never performed, nor was asked to perform any services for David or Morris. Officer Crowley never personally arrested or caused anyone to be arrested on the bowling establishment premises. Oft times the alleged victims complained that they were not receiving adequate police assistance when needed. Crowley reassured David and Morris and indicated that their complaint would be remedied. The proprietors testified, however, that the only time they ever observed defendant during the period in question was when he collected the payments. Finally, on April 14, 1972, the aforementioned relationship between the proprietors and defendant ended. On that morning Agent Noble of the Federal Bureau of Investigation handed David five twenty dollar bills, which he had previously photostated. Subsequent thereto, defendant entered the bowling alley and encountered David. David complained that despite the payments adequate police protection was not being afforded; defendant assured David that the service would improve. It was during this conversation that David gave the five twenty dollar bills to defendant, who placed them on his person. As defendant Crowley exited the premises he was apprehended by Agent Noble, who in comparing the bills in Crowley’s possession found them to correspond to those previously given David. Defendant’s trial and conviction stemmed from this arrest. Defendant’s first contention on appeal is that the government’s evidence of extortion was insufficient to sustain a conviction under the Hobbs Act, 18 U.S.C., Sec. 1951.1 In support thereof, defendant argues that while the evidence may support a charge of bribery, it wholly fails to prove a crime of extortion in that there was no indication that Crowley’s actions engendered a reasonable fear of harm in the minds of the alleged victims. In essence, defendant alleges that it was necessary for the government to prove not only that defendant obtained the property of another, with his consent, while acting “under color of official right” but also within the “wrongful use of actual or threatened force, violence, or fear.” In setting forth such an exposition, defendant clearly misreads 18 U.S.C., Sec. 1951 and the case law pertinent thereto. Even a cursory reading of the statute reveals that it is phrased in the disjunctive. Furthermore, United States v. Kenny, 462 F.2d 1205 (3rd Cir. 1972), supports this interpretation, (While) private persons may violate the statute only by use of fear and public officials may violate the act by use of fear, persons holding public office may also violate the statute by a wrongful taking under color of official right. . . . The “under color of official right” language plainly is disjunctive. That part of the definition repeats the common law definition of extortion, a crime which could only be committed by a public official and which did not require proof of threat, fear, or duress. 462 F.2d at 1229. This holding comports with the Supreme Court’s concept of common law extortion. In United States v. Nardello, 393 U.S. 286, 289, 89 S.Ct. 534, 536, 21 L.Ed.2d 487 (1969), the Court discussed the meaning of extortion in the Hobbs Act’s companion statute, 18 U.S.C., Sec. 1952. It stated: At common law a public official who under color of office obtained the property of another not due either to the office or the official was guilty of extortion. In many States, however, the crime of extortion has been statutorily expanded to include acts of private individuals under which property is obtained by means of force, fear, or threats. With reference to the foregoing analysis it appears that the jury in the instant case was warranted in finding that defendant committed extortion “under color of official right.” The jury was properly instructed on this facet of the extortion statute. Furthermore, the evidence taken in the light most favorable to the government, established that Crowley obtained money to which he was not entitled while in uniform and in the performance of his official duties. Defendant was introduced to the proprietors as the man who would collect the pay-offs. Crowley performed no services for David and Morris, and they expected non of him. The evidence was therefore sufficient for the jury to conclude that it was defendant’s uniform — his office — that induced David and Morris to make the payments. Defendant has cited numerous cases which stand for the proposition that fear or duress is a necessary element for the crime of extortion. United States v. Hyde, 448 F.2d 815 (5th Cir. 1971), cert, denied, 404 U.S. 1058, 92 S.Ct. 736. 30 L.Ed.2d 745, is the authority predominantly relied upon for this proposition. Hyde, however, did not explicitly deal with the “under color of official right” aspect of the Hobbs Act and therefore is clearly distinguishable, There was evidence in this ease to support a finding that the defendants coerced companies into paying fees in order to avoid harmful legal action. In some cases explicit threats were made. 448 F.2d at 833. It is apparent that the Court in Hyde was not concerned and did not decide the issue relevant to the resolution of the instant case. As to the remaining authorities cited by defendant, suffice it to say that they concerned private, not public participants in the crime of extortion and therefore are inapposite. This Court need not solely rest upon the above rationale to support the jury’s finding in the instant case. The evidence contained in the record, both direct and circumstantial, proved that the proprietors of the Bryn Mawr Bowling Lanes paid defendant because they feared if adequate police protection was not provided, their business would be plagued by financial loss. It is readily conceded that the business establishment was the target of frequent incidents of vandalism and violence. David and Morris, like other businessmen in the racially changing neighborhood, were often forced to summon the police, and found, not infrequently, that assistance was slow in arriving. Hence, David and Morris were highly susceptible targets for such extortionate practices as set forth in the indictment. The testimony reveals that another policeman, who had been collecting from the proprietors, represented that defendant would continue to collect the payments. Defendant represented to the victims that he would arrange for improved police service. David and Morris obviously recognized that if adequate police service was not forthcoming the spectre of financial ruin would become an immediate reality. It is important to note that it is unnecessary for the government to prove that defendant actually created the fear in the minds of his victims. Rather, as the Court in Callanan v. United States, 223 F.2d 171, 174-176 (8th Cir. 1955), cert. denied, 350 U.S. 862, 76 S.Ct. 102, 100 L.Ed. 764, held, the exploitation of the victim’s reasonable fear constitutes extortion regardless of whether or not the defendant was responsible for creating that fear and despite the absence of any direct threats. Accordingly, Crowley was charged with extorting money through the use of economic harm, the issue on which the jury heard evidence, was instructed, and reasonably could have concluded the defendant’s guilt. Defendant asserts a two-pronged attack on this aspect of the jury’s adverse conclusion. Initially, defendant cites various contradictions that were revealed in the witnesses’ testimony during examination at trial and relies on the issue of credibility to subvert the jury’s finding. Glasser v. United States, 315 U.S. 60, 77-80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), properly repudiates defendant’s proposition: The short answer to this is that the credibility of a witness is a question for the jury . . . It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it. There appears no reason on appeal to disturb the jury’s resolution of this issue. Secondly, defendant attempts to dispel the jury’s verdict of guilt by relying upon David’s and Morris’s testimony that defendant Crowley always comported himself as a gentleman and never confronted them in a threatening manner. Integrally related to this proposition is defendant’s contention that the proof substantiates that the money acquired from David and Morris was paid voluntarily as remuneration for services rendered. United States v. Hyde and Glasser v. United States, supra, are dis-positive of defendant’s dual faceted proposition. In addressing itself to the former, the Court need only recall the language of Hyde, The fact that relations between the victims and the extorters were often cordial is not inconsistent with extortion. 448 F.2d at 834. As to the latter, the Court again reiterates its previous discussion on the issue of credibility on appellate review. As a second ground constituting reversible error, defendant asserts that the lower Court’s proffered instruction as to extortion “under official color of right” was not a proper statement of the applicable law. In reliance thereon, defendant contends that the trial court’s instruction was not sanctioned either by existing case law or authoritative literature. The Court is cognizant that this argument is merely an embellishment of the premise raised in defendant’s first argument. As previously mentioned there is ample support for the trial court’s instruction as to what constitutes extortion “under color of official right.” An examination of both Nardello and Kenny, supra, compel the conclusion that the instruction was in accord with the plain reading of the statute and the common law definition of the phrase in question. Attention should also be called to the fact that the trial judge did not give the alleged erroneous instruction until he completed comprehensive instructions explaining extortion induced by fear of economic loss and delineating defendant’s theory of defense, i. e., that the payments were voluntary. The theory which defendant presently urges the Court to accept was specifically submitted for the jury’s consideration and decided adversely to defendant. It is apparent from the foregoing that the instructions fairly represented the applicable law pertaining to extortion and do not necessitate reversal. Defendant’s final argument on appeal asserts that there was insufficient proof that the charged acts affected interstate commerce under the Hobbs Act. It was stipulated by counsel at trial that if the Products Manager of the Brunswick Corporation were called to testify, he would state that the Bryn Mawr Bowling Alley bought supplies and equipment, from the Brunswick Corporation, which were manufactured outside the state of Illinois. The main thrust of defendant’s argument is that the aforementioned stipulation fails to establish that defendant’s conduct affected interstate commerce as per the Hobbs Act and pertinent case law. Defendant relies upon Walling v. Goldblatt Bros., 128 F.2d 778 (7th Cir. 1942) to support his proposition. It suffices to say that the Court finds Goldblatt inapposite, for it did not concern a violation of 18 U.S.C., Sec. 1951 but of the Fair Labor Standards Act of 1938, 52 Stat. 1060; 29 U.S.C.A., Sec. 201 et seq. That statutory provision did not attempt to regulate activities “affecting commerce” but only those activities “in commerce.” Nor are the remaining cases listed seriatim by defendant any more persuasive; none of them concerns the Hobbs Act or an equivalent penal statute. The notion that interstate commerce cannot be “affected” once items have “come to rest” was decisively rejected by the Supreme Court in Burke v. Ford, 389 U.S. 320, 88 S.Ct. 443, 19 L.Ed.2d 554 (1967). That case arose under the Sherman Act, which also proscribed activities having an effect on interstate commerce; the Supreme Court stated, The District Court and the Court of Appeals found that the liquor “came to rest” in the wholesalers’ warehouses and that interstate commerce ceased at that point. Hence, they concluded that the wholesalers’ division of the Oklahoma market did not take place “in interstate commerce.” But whatever the validity of that conclusion, it does not end the matter. For it is well established that an activity which does not itself occur in interstate commerce comes within the scope of the Sherman Act if it substantially affects interstate commerce. 389 U.S. 321, 88 S.Ct. 443, 444, 19 L.Ed.2d 554 (1967). It is important to note that unlike the Sherman Act, the Hobbs Act does not require that the effect on interstate commerce be substantial. Extortionate conduct having an arguably de minimis effect on commerce may nevertheless be punished. See for e. g., United States v. De Met, 486 F.2d 816 (7th Cir. 1973); United States v. Tropiano, 418 F.2d 1069 (2nd Cir. 1969), cert. denied, 397 U.S. 1021, 90 S.Ct. 1262, 25 L.Ed.2d 530; Battaglia v. United States, 383 F.2d 303 (9th Cir. 1967), cert. denied, 390 U.S. 907, 88 S.Ct. 817, 19 L.Ed.2d 874; United States v. Augello, 451 F.2d 1167 (2nd Cir. 1971), cert. denied, 405 U.S. 1070, 92 S.Ct. 1518, 31 L.Ed.2d 802; United States v. Glasser, 443 F.2d 994 (2nd Cir. 1971), cert. denied, 404 U.S. 854, 92 S.Ct. 96, 30 L.Ed.2d 95; United States v. Mitchell, 463 F.2d 187 (8th Cir. 1972). This analysis is in accord with the Supreme Court’s decision delineating the purview of the Hobbs Act. In United States v. Stirone, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960), the Court stated in part, . . . [it] speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence. In the instant case it was established by stipulation that the supplies and equipment of the Bryn Mawr Bowling Lanes were purchased from manufacturers outside the state of Illinois. There was an implied threat that if payment was not made to Officer Crowley, the victims would not receive adequate police service, with the resultant effect of impairment of the business enterprise. It was further established that the assets of the bowling lanes were depleted by the payment of one hundred dollars ($100) per month for six months. This Court observed in United States v. De Met, supra, Where the victim of extortion, as here, customarily obtains inventory which has come from outside the state, obstructions and delay of, and effect upon commerce may, for the purpose of the Hobbs Act, be found in curtailment of the victim’s potential as a buyer of such goods. This may be traced either through the depletion of his assets by his fulfillment of the extortionate demands or the harm which would follow if the threats were carried out. See also, United States v. Pacente, 503 F.2d 543 (7th Cir. 1974). It conclusively appears that defendant’s extortionate conduct in the instant case sufficiently affected interstate commerce to satisfy the jurisdictional requirements of the Hobbs Act. In light of the foregoing analysis the Court finds defendant Crowley’s contentions on appeal to be without merit. Accordingly, the conviction of defendant, Robert E. Crowley, is hereby affirmed. . The act reads, in pertinent part, whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this sec' tion shall be fined not more than $10,000 or imprisoned not more than twenty years, or both . The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear or under color of official right. . Hobbs Act, 18 U.S.O., Sec. 1951. . In part the statute reads, The term “extortion” means the obtaining of property from another ... or under color of official right. Emphasis added. . For further exposition on common law extortion, see, 2 Wharton’s Criminal Law, Sec. 1904 (12th Ed. 1932) ; 4 Blackstone 141; Stern, Prosecutions of Local Political Corruption under the Hobbs Act: The Unnecessary Distinction Between Bribery and Extortion, 3 Seton Hall L.Rev. 1, 17 (1971). . Extortion under color of official right by a law enforcement officer need not involve force or threat. If a victim reasonably feels compelled to pay money to a law enforcement officer, because of that officer’s wrongful use of his official position for the purpose of obtaining money, the requirements of the crime of extortion under color of official right are satisfied. . Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). . United States v. Nardello, supra, 393 U.S. at 289, 89 S.Ct. 534. . Bianchi v. United States, 219 F.2d 182 (8th Cir. 1955), cert. denied, 349 U.S. 915, 75 S.Ct. 604, 99 L.Ed. 1249; United States v. Sopher, 362 F.2d 523, 527 (7th Cir. 1966), cert. denied, 385 U.S. 928, 87 S.Ct. 286, 17 L.Ed. 2d 210; United States v. De Met, 486 F.2d 816 (7th Cir. 1973). . See also: United States v. Karigiannis, 430 F.2d 148 (7th Cir. 1970), cert. denied, sub nom., Panagiotopoulos v. United States, 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141. . Trial Court’s instruction, supra. . Trial Court’s Instruction No. 13: The mere voluntary payment of the money, unaccompanied by any feeling of compulsion or duress, does not constitute extortion. Unless the payments here involved were made under some form of compulsion or duress, there has been no extortion. . 18 U.S.C., Sec. 1951, the Hobbs Act, provides in pertinent part: whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion . The threat to do something which would affect commerce satisfies the commerce aspect of the statute. See, United States v. Pranno, 385 F.2d 387 (7th Cir., 1967), cert. denied, 390 U.S. 944, 88 S.Ct. 1028, 19 L.Ed.2d 1132 (1968). 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_caseorigin	049	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. BECK v. PRUPIS et al. No. 98-1480. Argued November 3, 1999 Decided April 26, 2000 Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, Kennedy, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, J., joined, post, p. 507. Jay Starkman argued the cause for petitioner. With him on the briefs were Jane W Moscowitz and Joel S. Magolnick. Michael M. Rosenbaum argued the cause for respondents. With him on the brief for respondents Bellezza et al. were Donald P. Jacobs and Richard M. DeAgazio. Frederick Mezey, pro se, filed a brief as respondent. Stephen M. Kohn, Michael D. Kohn, and David K. Colapinto filed a brief for the National Whistleblower Center as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the American Tort Reform Association et al. by Victor E. Schwartz, Mark A Behrens, and Jeffrey L. Gabardi; and for the Washington Legal Foundation et al. by F. Joseph Warin, Daniel J. Popeo, and Paul D. Kamenar. Justice Thomas delivered the opinion of the Court. The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §§ 1961-1968 (1994 ed. and Supp. IV), creates a civil cause of action for “[a]ny person injured in his business or property by reason of a violation of section 1962.” 18 U. S. C. § 1964(c) (1994 ed., Supp. IV). Subsection (d) of § 1962 in turn provides that “[i]t shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of [§ 1962].” The question before us is whether a person injured by an overt act done in furtherance of a RICO conspiracy has a cause of action under § 1964(c), even if the overt act is not an act of racketeering. We conclude that such a person does not have a cause of action under § 1964(c). I A Congress enacted RICO as Title IX of the Organized Crime Control Act of 1970, Pub. L. 91-452, 84 Stat. 922, for the purpose of “seeking] the eradication of organized crime in the United States,” id., at 923. Congress found that “organized crime in the United States [had become] a highly sophisticated, diversified, and widespread activity that annually drain[ed] billions of dollars from America’s economy by unlawful conduct and the illegal use of force, fraud, and corruption.” Id., at 922. The result was to “weaken the stability of the Nation’s economic system, harm innocent investors and competing organizations, interfere with free competition, seriously burden interstate and foreign commerce, threaten the domestic security, and undermine the general welfare of the Nation and its citizens.” Id., at 923. Finding the existing “sanctions and remedies available to the Government [to be] unnecessarily limited in scope and impact,” Congress resolved to address the problem of organized crime “by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.” Ibid. RICO attempts to accomplish these goals by providing severe criminal penalties for violations of § 1962, see § 1963, and also by means of a civil cause of action for any person “injured in his business or property by reason of a violation of section 1962,” 18 U. S. C. § 1964(c) (1994 ed., Supp. IV). Section 1962, in turn, consists of four subsections: Subsection (a) makes it “unlawful for any person who has received any income derived, direetly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt... to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce”; subsection (b) makes it “unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce”; subsection (e) makes it “unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly* in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt”; and, finally, subsection (d) makes it unlawful “for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.” B Petitioner, Robert A. Beck II, is a former president, CEO, director, and shareholder of Southeastern Insurance Group (SIG). Respondents, Ronald M. Prupis, Leonard Bellezza, William Paulus, Jr., Ernest S. Sabato, Harry Olstein, Frederick C. Mezey, and Joseph S. Littenberg, are former senior officers and directors of SIG. Until 1990, when it declared bankruptcy, SIG was a Florida insurance holding company with three operating subsidiaries, each of which was engaged in the business of writing surety bonds for construction contractors. Beginning in or around 1987, certain directors and officers of SIG, including respondents, began engaging in acts of racketeering. They created an entity called Construction Performance Corporation, which demanded fees from contractors in exchange for qualifying them for SIG surety bonds. Respondents also diverted corporate funds to personal uses and submitted false financial statements to regulators, shareholders, and creditors. During most of the time he was employed at SIG, petitioner was unaware of these activities. In early 1988, however, petitioner discovered respondents’ unlawful conduct and contacted regulators concerning the financial statements. Respondents then orchestrated a scheme to remove petitioner from the company. They hired an insurance consultant to write a false report suggesting that petitioner had failed to perform his material duties. The day after this report was presented to the SIG board of directors, the board fired petitioner, relying on a clause in his contract providing for termination in the event of an “inability or substantial failure to perform [his] material duties.” App. 104. Petitioner sued respondents, asserting, among other things, a civil cause of action under §1964(c). In particular, petitioner claimed that respondents used or invested income derived from a pattern of racketeering activity to establish and operate an enterprise, in violation of § 1962(a); acquired and maintained an interest in and control of their enterprise through a pattern of racketeering activity, in violation of § 1962(b); engaged in the conduct of the enterprise’s affairs through a pattern of racketeering activity, in violation of § 1962(c); and, most importantly for present purposes, conspired to commit the aforementioned acts, in violation of § 1962(d). With respect to this last claim, petitioner’s theory was that his injury was proximately caused by an overt act — namely, the termination of his employment — done in furtherance of respondents’ conspiracy, and that § 1964(c) therefore provided a cause of action. Respondents filed a motion for summary judgment, arguing that employees who are terminated for refusing to participate in RICO activities, or who threaten to report RICO activities, do not have standing to sue under RICO for damages from their loss of employment. The District Court agreed and dismissed petitioner’s RICO conspiracy claim. The Court of Appeals affirmed, holding that a cause of action under § 1964(e) for a violation of § 1962(d) is not available to a person injured by an overt act in furtherance of a RICO conspiracy unless the overt act is an act of racketeering. 162 F. 3d 1090, 1098 (CA11 1998). Since the overt act that allegedly caused petitioner’s injury was not an act of racketeering, see § 1961(1), it could not support a civil cause of action. The court held, “RICO was enacted with an express target — racketeering activity — and only those injuries that are proximately caused by racketeering activity should be actionable under the statute.” Ibid. We granted certiorari, 526 U. S. 1158 (1999), to resolve a conflict among the Courts of Appeals on the question whether a person injured by an overt act in furtherance of a conspiracy may assert a civil RICO conspiracy claim under § 1964(c) for a violation of § 1962(d) even if the overt act does not constitute “racketeering activity.” The majority of the Circuits to consider this question have answered it in the negative. See, e. g., Bowman v. Western Auto Supply Co., 985 F. 2d 383, 388 (CA8), cert. denied, 508 U. S. 957 (1993); Miranda v. Ponce Fed. Bank, 948 F. 2d 41, 48 (CA1 1991); Reddy v. Litton Indus., Inc., 912 F. 2d 291, 294-295 (CA9 1990), cert. denied, 502 U. S. 921.(1991); Hecht v. Commerce Clearing House, Inc., 897 F. 2d 21, 25 (CA2 1990). Other Circuits have allowed RICO conspiracy claims where the overt act was, as in the instant case, merely the termination of employment, and was not, therefore, racketeering activity. See, e.g., Khurana v. Innovative Health Care Systems, Inc., 130 F. 3d 143, 153-154 (CA5 1997), vacated sub nom. Teel v. Khurana, 525 U. S. 979 (1998); Schiffels v. Kemper Financial Services, Inc., 978 F. 2d 344, 348-349 (CA7 1992); Shearin v. E. F. Hutton Group, Inc., 885 F. 2d 1162, 1168-1169 (CA3 1989). I — I 1 — 1 This case turns on the combined effect of two provisions of RICO that, read in conjunction, provide a civil cause of action for conspiracy. Section 1964(c) states that a cause of action is available to anyone “injured... by reason of a violation of section 1962.” Section 1962(d) makes it unlawful for a person “to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.” To determine what it means to be “injured... by reason of” a “conspiracy],” we turn to the well-established common law of civil conspiracy, As we have said, when Congress uses language with a settled meaning at common law, Congress “presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use. will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States, 342 U. S. 246, 263 (1952). See Molzof v. United States, 502 U. S. 301, 307 (1992) (quoting Morissette, supra, at 263); NLRB v. Amax Coal Co., 453 U. S. 322, 329 (1981). By the time of RICO’s enactment in 1970, it was widely accepted that a plaintiff could bring suit for civil conspiracy only if he had been injured by an act that was itself tortious. See, e. g., 4 Restatement (Second) of Torts §876, Comment b (1977) (“The mere common plan, design or even express agreement is not enough for liability in itself, and there must be acts of a tortious character in carrying it into execution”); W. Prosser, Law of Torts §46, p. 293 (4th ed. 1971) (“It is only where means are employed, or purposes are accomplished, which are themselves tortious, that the conspirators who have not acted but have promoted the act will be held liable” (footnotes omitted)); Satin v. Satin, 69 App. Div. 2d 761, 762, 414 N. Y. S. 2d 570 (1979) (Memorandum Decision) (“There is no tort of civil conspiracy in and of itself. There must first be pleaded specific wrongful acts which might constitute an independent tort”); Cohen v. Bowdoin, 288 A. 2d 106, 110 (Me. 1972) (“ ‘[Conspiracy’ fails as the basis for the imposition of civil liability absent the actual commission of some independently recognized tort; and when such separate tort has been committed, it is that tort, and not the fact of combination, which is the foundation of the civil liability”); Earp v. Detroit, 16 Mich. App. 271, 275, 167 N. W. 2d 841, 845 (1969) (“Recovery may be had from parties on the theory of concerted action as long as the elements of the separate and actionable tort are properly proved”); Mills v. Hansell, 378 F. 2d 53 (CA5 1967) (per curiam) (affirming dismissal of conspiracy to defraud claim because no defendant committed an actionable tort); J. & C. Ornamental Iron Co. v. Watkins, 114 Ga. App. 688, 691, 152 S. E. 2d 613, 615 (1966) (“[The plaintiff] must allege all the elements of a cause of action for the tort the same as would be required if there were no allegation of a conspiracy”); Lesperance v. North American Aviation, Inc., 217 Cal. App. 2d 336, 345, 31 Cal. Rptr. 873, 878 (1963) (“[Conspiracy cannot be made the subject of a civil action unless something is done which without the conspiracy would give a right of action” (internal quotation marks omitted)); Middlesex Concrete Products & Excavating Corp. v. Carteret Indus. Assn., 37 N. J. 507, 516, 181 A. 2d 774, 779 (1962) (“[A] conspiracy cannot be made the subject of a civil action unless something has been done which, absent the conspiracy, would give a right of action”); Chapman v. Pollock, 148 F. Supp. 769, 772 (WD Mo. 1957) (holding that a plaintiff who charged the defendants with “conspiring to perpetrate an unlawful purpose” could not recover because the defendants committed no unlawful act); Olmsted, Inc. v. Maryland Casualty Co., 218 Iowa 997, 998, 253 N. W. 804 (1934) (“[A] conspiracy cannot be the subject of a civil action unless something is done pursuant to it which, without the conspiracy, would give a right of action”); Adler v. Fenton, 24 How. 407, 410 (1861) (“[T]he act must be tortious, and there must be consequent damage”). Consistent with this principle, it was sometimes said that a conspiracy claim was not an independent cause of action, but was only the mechanism for subjecting co-conspirators to liability when one of their member committed a tortious act. Royster v. Baker, 365 S. W. 2d 496, 499, 500 (Mo. 1963) (“[A]n alleged conspiracy by or agreement between the defendants is not of itself actionable. Some wrongful act to the plaintiff’s damage must have been done by one or more of the defendants, and the fact of a conspiracy merely bears on the liability of the various defendants as joint tort-feasors”). See Halberstam v. Welch, 705 F. 2d 472, 479 (CADC 1983) (“Since liability for civil conspiracy depends on performance of some underlying tortious act, the conspiracy is not independently actionable; rather, it is a means for establishing vicarious liability for the 'underlying tort”). The principle that a civil conspiracy plaintiff must claim injury from an act of a tortious character was so widely accepted at the time of RICQ’s adoption as to be incorporated in the common understanding of “civil conspiracy.” See Bal-lentine’s Law Dictionary 252 (3d ed. 1969) (“It is the civil wrong resulting in damage, and not the conspiracy which constitutes the cause of action”); Black’s Law Dictionary 383 (4th ed. 1968) (“[W]here, in carrying out the design of the conspirators, overt acts are done causing legal damage, the person injured has a right of action” (emphasis added)). We presume, therefore, that when Congress established in RICO a civil cause of action for a person “injured... by reason of” a “conspiracy],” it meant to adopt these well-established common-law civil conspiracy principles. Justice Stevens does not challenge our view that Congress meant to incorporate common-law principles when it adopted RICO. Nor does he attempt to make an affirmative case from the common law for his reading of the statute by pointing to a ease in which there was (a) an illegal agreement; (b) injury proximately caused to the plaintiff by a nontortious overt act in furtherance of the agreement; and (c) recovery by the plaintiff. See post, at 508. Instead, he argues only that courts, authoritative commentators, and even dictionaries repeatedly articulated a rule with no meaning or application. We find this argument to be implausible and, accordingly, understand RICO to adopt the common-law principles we have cited. Interpreting the statute in a way that is most consistent with these principles, we conclude that injury caused by an overt act that is not an act of racketeering or otherwise wrongful under RICO, see n. 7, supra, is not sufficient to give rise to a cause of action under § 1964(c) for a violation of § 1962(d). As at common law, a civil conspiracy plaintiff cannot bring suit under RICO based on injury caused by any act in furtherance of a conspiracy that might have caused the plaintiff injury. Rather, consistency with the common law requires that a RICO conspiracy plaintiff allege injury from an act that is analogous to an “ac[t] of a tortious character,” see 4 Restatement (Second) of Torts §876, Comment b, meaning an act that is independently wrongful under RICO. The specific type of act that is analogous to an act of a tortious character may depend on the underlying substantive violation the defendant is alleged to have committed. However, respondents’ alleged overt act in furtherance of their conspiracy is not independently wrongful under any substantive provision of the statute. Injury caused by such an act is not, therefore, sufficient to give rise to a cause of action under § 1964(c). Petitioner challenges this view of the statute under the longstanding canon of statutory construction that terms in a statute should not be construed so as to render any provision of that statute meaningless or superfluous. He asserts that under our view of the statute, any person who had a claim for a violation of § 1962(d) would necessarily have a claim for a violation of § 1962(a), (b), or (c). However, contrary to petitioner’s assertions, our interpretation of § 1962(d) does not render it mere surplusage. Under our interpretation, a plaintiff could, through a § 1964(c) suit for a violation of § 1962(d), sue co-conspirators who might not themselves have violated one of the substantive provisions of § 1962. III We conclude, therefore, that a person may not bring suit under § 1964(c) predicated on a violation of § 1962(d) for injuries caused by an overt act that is not an act of racketeering or otherwise unlawful under the statute. The judgment of the Court of Appeals is affirmed. It is so ordered. Justice Stevens, with whom Justice Souter joins, dissenting. For the purpose of decision, I assume — as I think the Court does — that petitioner has alleged an injury proximately caused by an overt act in furtherance of a conspiracy that violated 18 U. S. C. § 1962(d). In my judgment, the plain language of the Racketeer Influenced and Corrupt Organizations Act (RICO) makes it clear that petitioner therefore has a cause of action under § 1964(c), whether or not the overt act is a racketeering activity listed in § 1961(1). The common-law civil conspiracy cases relied upon by the Court prove nothing to the contrary. A “conspiracy” is an illegal agreement. There is, of course, a difference between the question whether an agreement is illegal and the question whether an admittedly illegal agreement gives rise to a cause of action for damages. Section 1962(d), which makes RICO conspiracies unlawful, addresses the former question; § 1964(c), which imposes civil liability, concerns the latter. Section 1964(c) requires a person to be “injured in his business or property’' by a violation before bringing an action for damages. And because that kind of injury only results from some form of overt act in furtherance of the conspiracy, liability under § 1964(e) naturally requires injury via an overt act. But there is nothing in either § 1962(d) or § 1964(c) requiring the overt act to be a racketeering activity as defined in § 1961(l). The Court’s central premise is that common-law civil conspiracy cases support the notion that liability cannot be imposed unless the overt act that furthered the conspiracy and harmed the plaintiff was a particular kind of overt act, namely, an act of a tortious character. But the cases cited by the Court do not support that point. First, no case cited by the majority actually parallels the Court’s premise. That is, no case involved a situation in which (a) there was an illegal agreement, (b) there was an injury to the plaintiff proximately caused by an overt act in furtherance of that agreement, but (c) there was a refusal to impose civil liability because the overt act was not itself tortious. Of the dozen cases cited by the Court, ante, at 501-503, half of them rejected liability because they did not satisfy condition (a) above, i e., there was either no agreement or nothing illegal about the agreement that was made. See Satin v. Satin, 69 App. Div. 2d 761, 762, 414 N. Y. S. 2d 570 (1979) (Memorandum Decision) (“Here, the only such wrongful action is pleaded against [one defendant] alone.... In any event, it is doubtful that there could here be a conspiracy between this individual and his own corporation”); Mills v. Hansell, 378 F. 2d 53, 54 (CA5 1967) (per curiam) (“[W]e feel that the able trial judge correctly concluded that... there was no misconduct on the part of [the defendants]”); Lesperance v. North American Aviation, Inc., 217 Cal. App. 2d 336, 346, 31 Cal. Rptr. 873, 878 (1963) (“[Ejmployer... had the right (so far as appears) to terminate [plaintiff’s] services without committing a civil wrong”); Chapman v. Pollock, 148 F. Supp. 769, 772 (WD Mo. 1957) (“The fatal defect in plaintiff’s action for conspiracy is that the act committed by defendants... was lawful in its nature,... and violated no right of plaintiff”); Olmsted, Inc. v. Maryland Casualty Co., 218 Iowa 997, 1003, 253 N. W. 804, 807 (1934) (“A conspiracy is not established by the record. There is no direct evidence that such a conspiracy was formed. A conspiracy cannot be inferred from the record, because nothing was done by the alleged conspirators which was unlawful”); Royster v. Baker, 365 S. W. 2d 496, 500 (Mo. 1963) (“[T]he petition does no more than allege that the defendants agreed, or if the term is preferred, conspired, to accomplish lawful acts in a lawful manner”). Three more cases refused to impose liability because condition (b) was 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. 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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_initiate	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SAN FRANCISCO TYPOGRAPHICAL UNION NO. 21, INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, et al., Respondents. Roy O. HOFFMAN, Regional Director of the Twentieth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Appellees, v. SAN FRANCISCO TYPOGRAPHICAL UNION NO. 21, INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, et al., Appellants. Nos. 71-1681, 26042. United States Court of Appeals, Ninth Circuit. June 21, 1972. Duane B. Beeson (argued), of Brun-dage, Neyhart, Grodin & Beeson, Nathan R. Berke, of Severson, Werson, Berke & Melchior, George O. Bahrs, of Bronson, Bronson & McKinnon, San Francisco, Cal., for appellants. Warren Davidson, Deputy Asst. Gen. Counsel (argued), Marvin Roth, Supervisory Atty. (argued), Frank H. Itkin, Herbert Fishgold, Attys., Julius G. Serot, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Arnold Ordman, Gen. Counsel, Marcel MalletPrevost, Asst. Gen. Counsel, Washington, D. C., Roy O. Hoffman, Regional Director, NLRB, San Francisco, Cal., for appellees. Before CHAMBERS, TRASK and GOODWIN, Circuit Judges. ALFRED T. GOODWIN, Circuit Judge: Two eases have been consolidated in this appeal: In N. L. R. B. v, San Francisco Typographical Union No. 21 (71-1681), the National Labor Relations Board petitions, pursuant to Section 10(e) of the National Labor Relations Act (29 U.S.C. § 151 et seq.), to enforce the Board’s order that the respondent union cease and desist from picketing. In Hoffman v. San Francisco Typographical Union No. 21 (26042), the union appeals from a district court order citing the union and certain of its officers for civil contempt. On March 17, 1970, Local 21, in furtherance of a primary labor dispute with the San Rafael Independent Journal, began picketing various retail stores which were buying advertising space in the Journal. Attached to the picket signs, which urged consumers not to purchase products advertised in the Journal, were copies of the advertisements themselves. The pickets also passed out handbills which urged shoppers not to patronize the various retail stores. On April 9 and 24, 1970, respectively, the Journal and one of the retail stores filed complaints with the N. L. R. B. The regional director promptly sought an injunction against the union pending the Board’s decision whether the picketing and handbilling constituted an unfair labor practice in violation of Section 8(b) (4) (ii) (B) of the Act, 29 U. S.C. § 158(b) (4) (ii) (B). On April 28, 1970, the district court ordered the union to cease all picketing and handbilling where the object was to induce consumers to stop patronizing the stores or to cause the retailers to stop doing business with the Journal. After the entry of the decree, the union continued its picketing, using the preinjunction picket signs, but altering its handbills so that they urged consumers not to purchase products which the retailers advertised in the Journal. On June 24, 1970, the court, on the regional director's motion, cited the union and certain of its officers for civil contempt. On February 24, 1971, the N. L. R. B., adopting the findings and conclusions of its trial examiner, held that the union, both before and after the court’s injunction, had engaged in an unfair labor practice (secondary boycott) in violation of Section 8(b) (4) (ii) (B). The N. L. R. B.’s Petition for Enforcement A union may peacefully picket a neutral party when the object of the picketing is to persuade customers not to buy a struck product. National Labor Relations Board v. Fruit and Vegetable Packers etc., 377 U.S. 58, 84 S.Ct. 1063, 12 L.Ed.2d 129 (1964). When a retailer advertises in a newspaper or magazine, the advertized goods may also be treated, for picketing purposes, as the products of the newspaper or magazine. Great Western Broadcasting Corp. v. N. L. R. B., 356 F.2d 434 (9th Cir.), cert. denied, 384 U.S. 1002, 86 S.Ct. 1924, 16 L.Ed.2d 1015 (1966). Therefore, a union may peacefully picket a neutral retailer so long as the picketing seeks only to persuade the public not to purchase products advertised by the retailer in a newspaper with which the union has a primary dispute. Atlanta Typographical Union No. 48, 180 N.L.R.B. No. 164, 73 L.R.R.M. 1241 (Jan. 30, 1970); White Front Stores, 181 N.L.R.B. No. 61, 73 L.R.R.M. 1390 (Feb. 27, 1970). However, where such secondary picketing is not limited to calling customers’ attention to those products being advertised in the struck newspaper, but, rather, urges customers to avoid doing any business with the neutral party, the picketing becomes an unfair labor practice under Section 8(b) (4) (ii) (B). Honolulu Typographical Union No. 37 v. N. L. R. B., 131 U.S.App.D.C. 1, 401 F.2d 952 (1968); Atlanta Typographical Union No. 48, supra; White Front Stores, supra. The union contended before the Board that the picket signs adequately identified to the public those retail products which were being advertised in the Journal. The trial examiner determined, however, that the use of the “tear-sheet” newspaper advertisements on the picket signs did not adequately identify the struck products, because such advertisements were too difficult for shoppers to read. The Board then held that the union had engaged in an unlawful secondary boycott against neutral retail stores. The evidence supports the trial examiner’s factual findings. The Board’s order therefore is valid. The union argues that, because the retail stores advertise so many of their products in the Journal, and because the products advertised vary each day, any alternatives to using the actual advertisements on the picket signs would be unduly burdensome. However, as the Board suggested in Atlanta Typographical Union No. 48, supra, where the union chooses to engage in secondary picketing, the union must accept the burden of properly identifying the struck products. See also Honolulu Typographical Union No. 37 v. N. L. R. B., supra. The Board’s petition for enforcement in 71-1681 is allowed. The Contempt Order Pursuant to Section 10 (l) of the Act, 29 U.S.C. § 160 (l), a district court may temporarily enjoin picketing when there is “reasonable cause” to believe that the union is engaged in an unfair labor practice. San Francisco-Oakland Newspaper Guild v. Kennedy for and on Behalf of N. L. R. B., 412 F.2d 541 (9th Cir. 1969). There may be “reasonable cause” to support an injunction even when the question whether the union is engaging in an unfair labor practice is one of first impression. Kennedy for and on Behalf of N. L. R. B. v. Los Angeles Typographical Union No. 174, 418 F.2d 6 (9th Cir. 1969). And necessarily incident to the court’s power to enjoin is the power to enforce its injunction by contempt proceedings. Evans v. International Typographical Union, 81 F.Supp. 675 (S.D.Ind.1948); N. L. R. B. v. Local 282, International Bro. of Teamsters, etc., 428 F.2d 994 (2d Cir.), vacated on other grounds, 438 F.2d 100 (1970). By its terms, the injunction of April 28, 1970, was intended to achieve two related purposes: first, to put the union and its officers on notice that there was reasonable cause to believe that the picketing and handbilling prior to April 28 constituted an unfair labor practice, and that the challenged activities would have to cease pending the ultimate determination by the N. L. R. B.; and second, to preclude the union from engaging in any other picketing which was prohibited by the provisions of Section 8(b) (4) (ii) (B). After the injunction, the union resumed its picketing, in most instances employing the same picket signs used prior to April 28, 1970. The only modification in the union’s conduct was a slight change in the wording of the handbills. Under the circumstances, the district court could have deemed the modification to be merely one of form rather than substance. The injunction was aimed primarily at the union’s method of picketing rather than at its handbilling. Section 8(b) (4) (ii) (B) did not preclude a union from distributing handbills in an attempt to induce a neutral retailer to stop doing business with a struck newspaper. See National Labor Relations Board v. Servette, Inc., 377 U.S. 46, 84 S.Ct. 1098, 12 L.Ed.2d 121 (1964); Great Western Broadcasting Corp. v. N. L. R. B., supra. The union was, or should have been, aware that its picketing rights were more limited. See National Labor Relations Board v. Fruit and Vegetable Packers etc., supra. Yet, the district court found that in the face of the injunction the union continued to picket without, in any significant way, altering the nature of its picket signs. The union argues that the N. L. R. B. itself did not rule until February 24, 1971, that the picketing constituted a violation of Section 8(b) (4) (ii) (B). Since the terms of the April 1970 injunction embodied the language of the Act, the union says the injunction was so unclear as to be unenforceable by contempt sanctions. The union had agreed to the injunction’s terms, and had sought no clarification of language. Accordingly, the union cannot now complain that the injunction’s application was more strict than had been anticipated. McComb v. Jacksonville Paper Co., 336 U.S. 187, 69 S.Ct. 497, 93 L.Ed. 599 (1949); N. L. R. B. v. Retail Clerks Internat’l Ass’n, 203 F.2d 165, 169 (9th Cir. 1953), aff’d on rehearing, 211 F.2d 759, cert. denied, 348 U.S. 839, 75 S.Ct. 47, 99 L.Ed. 662 (1954). The union also contends that, because it attempted in good faith, to bring its conduct within the limits of Section 8(b) (4) (ii) (B), the imposition of contempt sanctions, together with the prospect of “compensatory fines,” was unwarranted. No fines have been imposed as yet, and though the district court explicitly ruled that fines would be determined and imposed in the future, the union’s objection to such fines is premature. Further, good faith is not a defense to an action for civil contempt. McComb v. Jacksonville Paper Co., supra. Civil contempt sanctions, unlike those arising from criminal contempt, are not essentially punitive, but, rather, are intended to compensate the complainant (in this case, the N. L. R. B.) for injury caused by the contumacious conduct. Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911); Morse-Starrett Products Co. v. Steccone, 205 F.2d 244 (9th Cir. 1953); Tobin v. Pielet, 186 F.2d 886, 888 (7th Cir. 1951). The district court had adequate reason for holding the union in contempt of the injunction. The next question is whether the record contained “clear and convincing proof” that each of the named union officers was personally guilty of contumacious conduct. Hart Schaffner & Marx v. Alexander’s Dept. Stores, Inc., 341 F.2d 101 (2d Cir. 1965); N. L. R. B. v. Local 282, International Bro. of Teamsters, etc., supra. Such “proof” cannot be said to exist merely because there is proof that the union, as an organization, violated the terms of the injunction. See, e. g., United States v. Branch 36 Nat. Ass’n of Letter Carriers, 310 F.Supp. 482 (S.D.N.Y.1970). The parties agreed to submit the contempt issue to the court solely on affidavits. The union’s vice president, John J. DeMartini, admitted in his affidavit that he was in charge of the picketing activities which took place after the issuance of the injunction. There was, accordingly, proof to support De-Martini’s contempt citation. The district court found that Don Abrams, the union’s organizer, had participated in picketing after April 28, 1970. DeMartini stated in his affidavit that Abrams also had solicited participation in the postinjunction picketing. Hence, there was proof to support Abrams’ citation. There was, however, no proof that either Leon Olson, the union’s president, or G. M. Bachich, the union’s secretary-treasurer, had participated in the forbidden conduct. DeMartini speculated in his affidavit that these two officers were “probably” aware of the picketing, but such speculation does not constitute clear and convincing proof that they participated in it. In these circumstances, Olson and Bachich were not proved guilty of contempt. The judgments against them are reversed, but in all other respects the decision in 26042 is affirmed. The National Labor Relations Board’s petition for enforcement in 71-1681 is allowed; the order of the district court in 26042 is reversed in part and affirmed in part. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
sc_petitionerstate	29	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. MISSISSIPPI v. UNITED STATES No. 113, Orig. Decided November 5, 1990 DECREE On March 1, 1988, this Court granted leave to the State of Mississippi and the United States to file a complaint with the Court setting forth their respective claims to “any undecided portion of Chandeleur Sound.” United States v. Louisiana et al. (Alabama and Mississippi Boundary Case), 485 U. S. 88 (1988). Thereafter, the State of Mississippi filed the above-captioned litigation which was timely answered by the United States. Pursuant to a stipulation executed by the parties in resolution of the above-styled action, and solely for the purpose of determining the parties’ respective rights under the Submerged Lands Act, 43 U. S. C. § 1301 et seq., in the vicinity of Chandeleur Sound, the parties have agreed to a line which shall permanently mark the base line from which Mississippi’s Submerged Lands Act grant is measured. That line is described in Paragraph 3 below. Accordingly, the parties’ joint motion for entry of decree is granted. IT IS ORDERED, ADJUDGED, AND DECREED as follows: 1. As against the plaintiff State of Mississippi and all persons claiming under it, the United States has exclusive rights to explore the area of the Continental Shelf reserved to the United States by the Submerged Lands Act, 43 U. S. C. § 1302, and to exploit the natural resources of said area and the State of Mississippi is not entitled to any interest in such lands, minerals, and resources and said State, its privies, assigns, lessees and other persons claiming under it are hereby enjoined from interfering with the rights of the United States in such lands, minerals and resources. Solely for the purpose of determining each party’s rights under the Submerged Lands Act, the line described in Paragraph 3 hereof is stipulated by the parties to henceforth represent and permanently mark the line from which Mississippi’s Submerged Lands Act grant is measured. 2. As against the defendant United States and all persons claiming under it, the State of Mississippi has exclusive rights to explore the area of the Continental Shelf as provided by the Submerged Lands Act and to exploit the natural resources of said area, with the exceptions provided by § 5 of the Submerged Lands Act, 67 Stat. 32, 43 U. S. C. § 1313. The United States is not entitled to any interest in such lands, minerals, and resources and the United States, its privies, assigns, lessees and other persons claiming under it are hereby enjoined from interfering with the rights of the State of Mississippi in such lands, minerals and resources. Solely for the purpose of determining each party’s respective rights under the Submerged Lands Act, the line described in Paragraph 3 hereof is stipulated by the parties to henceforth represent and permanently mark the line from which Mississippi’s Submerged Lands Act grant is measured. 3. Solely for the purpose of determining each party’s respective rights under the Submerged Lands Act and in resolution of the above-captioned litigation, the following line is stipulated by the parties to henceforth represent and permanently mark the line from which Mississippi’s Submerged Lands Act grant is measured: A straight line from a point on the southern shore of the most westerly segment of Ship Island where X = 463004.481 and Y = 196885.896 in the Mississippi plane coordinate system, east zone, and X = 2752646.58 and Y = 568331.88 in the Louisiana plane coordinate system, south zone, to a point near the northern tip of the most northerly of the Chandeleur Islands where X = 2775787 and Y = 513796 in the Louisiana plane coordinate system, south zone, so far as said line lies on the Mississippi side of the Mississippi-Louisiana boundary. 4. The Court retains jurisdiction to entertain such further proceedings, enter such orders and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to its previous orders or decrees herein or to this Decree or to effectuate the rights of the parties in the premises. 5. Nothing in this Decree or in the proceedings leading to it sháll prejudice any rights, claims or defenses of the State of Mississippi as to its maritime lateral boundaries with the State of Louisiana, which boundary is not at issue in this litigation. Nor shall the United States in any way be prejudiced hereby as to such matters. Nothing in this Decree shall prejudice any rights, claims or defenses of the United States or the State of Mississippi as to the inland water status of Chandeleur Sound. Nor shall anything in this Decree prejudice or modify the rights and obligations under any contracts or agreements, not inconsistent with this Decree, between the parties or between a party and a third party. Question: What state is associated with the petitioner? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_jurisdiction	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" 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 opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer". Paul DOLBASHIAN, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee. No. 82-1054. United States Court of Appeals, First Circuit. Argued June 9, 1982. Decided Sept. 8, 1982. Carol E. Najarían, Providence, R. I., with whom Abedon, Michaelson, Stanzler, Biener, Skolnik & Lipsey, Providence, R. I., was on brief, for plaintiff, appellant. Everett C. Sammartino, Asst. U. S. Atty., Providence, R. I., with whom Lincoln C. Almond, U. S. Atty., Providence, R. L, was on brief, for defendant, appellee. Before COFFIN, Chief Judge, ROSENN, Senior Circuit Judge, BOWNES, Circuit Judge. Of the Third Circuit, sitting by designation. COFFIN, Chief Judge. Appellant, Paul Dolbashian, challenges the administrative law judge’s (AU’s) finding that he is no longer entitled to disability benefits under 42 U.S.C. § 423 and that he is liable for repayment of the benefits he has received since April, 1974. The ALJ’s decision, upheld by the district court, is subject to our independent review and will be sustained if its factual findings are supported by substantial evidence and are in accordance with the law. See id. § 405(g); Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996, 998 (1st Cir. 1975). Under the Social Security Act, an individual who has disability insurance is entitled to insurance benefits if he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted not less than 12 months.” 42 U.S.C. § 423(d). Appellee has never contested the severity of appellant’s physical condition; the primary issue has been whether appellant’s continued participation in his business demonstrated that he was capable of “substantial gainful activity” and therefore not eligible for benefits. Appellant began receiving benefits in 1969 after sustaining extensive neck and back injuries. The injuries prevented him from carrying on his activities as a self-employed general contractor who remodelled homes and as a retailer and installer of major household appliances. In May, 1973, he returned to his business, working three hours a day for four to five days a week, but at the end of a nine-month trial work period, he reported to the Social Security Administration that he had stopped working. He was told that his inability to work entitled him to continue to receive benefits but that he should report any return to work. In 1976 appellant reported on his work activity since January, 1974: “I run a retail appliance & building supply company. The business is closed to customers. There is a note on the door to call my home phone 781-5530 for appointment. I make an appointment & either my wife or son-in-law goes down to store & discusses the merchandise through a catalog. I also refer many of the people to Clarence Cavanaugh at Greenwood TV & Appliance. ... I do the ordering & book-work about one hour per day depending on my physical condition. I do this work at home. I cannot hold my head down for too long. We are virtually closed & are planning to sell the bldg. & the business. Our net profit decreases every year. My son-in-law Jean Claude Boisnier lives next door & my wife do most of the work activity. Clarence Cavanaugh does most of the demonstration for me for free as we are long time friends. He will show the items at the Greenwood Co. & will either order it-through me or if he has the appliance — he bills me. Clarence’s son will often pick up merchandise for me. . . . [T]he business is based solely on my knowledge of the business as I am not physically capable of performing activity in the business.” Based upon a review of this report and a visit to the building in which appellant’s business was housed, the Social Security Administration determined that appellant had not been entitled to receive benefits since the end of the trial work period and that he was liable for overpayments to himself, his son, and his wife totalling $13,012. The ALJ, after a hearing, confirmed the finding that appellant was not eligible for benefits, concluding that “the amount of time admittedly spent, the degree of skill and knowledge employed, as well as claimant’s own characterization of his status” demonstrated that appellant did engage in substantial gainful activity. He found liability for the full amount of the overpayments. Appellant appeals both findings. Finding of substantial gainful activity At the time the ALJ made his determination about appellant’s eligibility for payments, regulations provided that any work performed during that period when payments were received may demonstrate an ability to perform substantial gainful activity. 20 C.F.R. 404.1532(a). Substantial gainful activity was defined as that which involves the performance of significant physical or mental duties for profit even if no profit is realized. Performance on a part-time basis did not preclude a finding that the work was substantial. Id. 404.1432(b). With respect to people who are self-employed, the regulations specifically noted that: “Supervisory, managerial, advisory or other significant personal services rendered by self-employed individuals demonstrate an ability to engage in substantial gainful activity.” Id. 404.1532(f). The degree of appellant’s physical participation in the business is extremely limited. The substantiality of his contribution consequently must be founded, if at all, on his mental activity, which can be measured for its importance to the continuing operation of the business. Although the record contains contradictions about the extent to which appellant has actually placed orders himself, appellant’s own descriptions of his tasks support a conclusion that his mental activities have been pivotal to the business. In the work activity report that spurred the Administration’s investigation of his disability status, appellant wrote: “[T]he business is based solely on my knowledge of the business as I am not physically capable of performing activity in the business. People are referred to me through word of mouth — they call me, ask my advice, etc. and I order the material they require right from my home. Occasionally, I may go to their home & look at the layout of a kitchen & advise them.” Subsequently he stated that “My mental ability and knowledge of the business is valuable to the business — however my physical condition prevents active participation.” We think these statements are sufficient to provide the substantial evidence necessary to support a finding of substantial activity. Appellant’s activities may have been restricted in large part to the telephone and very limited in time, but his knowledge of appliances and his ability to advise have contributed in an important way to the operation of the business. The regulations specifically recognized that the services performed by a self-employed individual may be more intangible in nature, and it is those intangible contributions that we find persuasive. We cannot say that there was insufficient support for the finding that appellant’s activity was gainful. Income tax returns show that appellant reported a profit from his business for 1971, 1973, 1974 and 1975 and reported a small loss for 1976. Although his profit was not significant and may be attributable in part to the gratuitous assistance he received from others, this does not prevent a finding that the activity was gainful and that profit resulted in part from his efforts. In holding that the ALJ’s conclusion on the disability issue is supported by substantial evidence, we add a caveat. We have been able to conclude that appellant was performing substantial gainful activity only because of the peculiar circumstances under which he performed: He was fortunate to have a pre-existing business and to be in the unusual position, due to the presence of other people who could help, of being able to keep the business going with a minimum of physical effort. Were he not in business for himself and able to accommodate his business to his physical condition, he might be deemed incapable of performing substantial gainful activity. Consequently, if appellant’s circumstances should change so he is no longer operating his business, eligibility for disability payments might be restored. Liability for overpayment The regulations that the ALJ applied to appellant state that an individual is not liable for overpayments if he is without fault and adjustment or recovery would either defeat the purpose of the act or be against equity and good conscience. 20 C.F.R. 404.506. The ALJ concluded that a finding of fault followed automatically from the conclusion that appellant was performing substantial gainful activity and made unsupported findings that reimbursement would not be against equity and good conscience and would not defeat the purpose of the act. We cannot agree that a finding of fault can be made without further examination of the circumstances. The conclusion that someone is performing substantial gainful activity does not necessarily mean that the individual was at fault for receiving the payments for which he was not eligible. The regulations specify that whether someone is at fault depends upon the particular circumstances — circumstances the ALJ did not examine. For example, liability may depend on whether the individual failed to provide information that he knew or should have known to be material. See id. 404.507. The ALJ should have determined whether appellant’s return to work for one to two hours per day after the end of the trial work period constituted a return to work that he knew or should have known to be material information. If appellant was performing substantially the same activities that he performed during the trial period, he perhaps should have known, depending on “pertinent circumstances”, that a description of those activities was material to the continued receipt of benefits. And a statement that he had ceased such activities when in fact he had not, might constitute “[a]n incorrect statement . .. which he knew or should have known to be incorrect.” Id. 404.507(a). On the other hand, if the activities engaged in after the trial period were substantially fewer and of less importance than the earlier activities, it might be properly found that he should not have known this to be material information. The ALJ should have also assessed whether, by supplying income tax returns that noted his income from the business, appellant provided the necessary material information. Because determinations such as these involve questions of fact that this court cannot and should not assess in the first instance, we remand for further consideration of the issue of fault. See Small v. Califano, 565 F.2d 797, 801 (1st Cir. 1977); Torres v. Secretary of Health, Education and Welfare, 475 F.2d 466, 469 (1st Cir. 1973). Although the ALJ concluded previously that reimbursement would not defeat the purpose of the act or be against equity and good conscience, he should reconsider these issues on remand if he finds that appellant was not at fault. The judgment of the district court is affirmed in part and vacated in part and is remanded to the district court for entry of an order remanding to the Secretary for further proceedings in accordance with this opinion. . Appellant sustained these injuries when the airplane in which he was flying hit an unexpected airpocket, causing him to be thrown out of his seat and up against the ceiling of the airplane. His neck was broken, left arm paralyzed, discs fractured, and hip sprained. Continued pain in his neck, shoulders, back, and limbs has severely limited his mobility, made it difficult for him to hold his head in a working position, and has caused him to be under continual medical attention. . At the hearing before the ALJ appellant testified that Cavanaugh ordered most of the goods, and in the record is his statement that he did none of the ordering himself. To the contrary, however, is his first work activity report in which he wrote that he did spend time ordering. We cannot fault the ALJ for accepting appellant’s statement in the work activity report. . Appellant’s income tax returns also reflect the purchase in 1971 of the building that housed his business. Question: Did the court determine that it had jurisdiction to hear this case? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_casetyp1_1-3-1	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense". UNITED STATES of America v. Leonard SMITH, Appellant. No. 71-1852. United States Court of Appeals, District of Columbia Circuit. Sept. 26, 1972. As Amended Oct. 3, 1972. Messrs. Edgar H. Brenner and Steven P. Lockman, Washington, D. C. (appointed by this Court), were on the brief for appellant. Mr. Harold H. Titus, Jr., U. S. Atty., was on the brief for appellee. Messrs. John A. Terry, Warren L. Miller, and James F. McMullin, Asst. U. S. Attys., were also on the brief for appellee. Before McGOWAN, LEYENTHAL, and MacKINNON, Circuit Judges. PER CURIAM: Appellant was convicted of assault with intent to commit rape in violation of D.C.Code § 22-501 for which he received a sentence of one to five years in prison. His appeal principally challenges the admission into evidence of a benzidine test which was administered at the police station and allegedly indicated the presence of blood on his penis shortly after the assault. The trial judge held a pretrial hearing and denied appellant’s motion to suppress the results of the test. We sustain his ruling and the admission into evidence of the result of such test and affirm the judgment of conviction. I The jury found that appellant, with intent to rape, had assaulted the four and one-half-year-old daughter of a woman with whom he was living. The assault was viewed through a hole in a bedroom door by the six-year-old daughter and was corroborated by substantial physical evidence. The victim’s eyes were red and swollen and caked with tears, and her mother testified: I started to examine her and I screamed. I got the towel and I wet it so I could wipe her off. ... I saw blood and bowel movement and I saw some white stuff. ... I thought it was some of the sperms or discharge or something. ... I use the word torn and busted up. Her rectum was bleeding . . . she had blood, red all around her rectum. . . . (Tr. 64). A timely inspection by the victim’s grandmother and by a medical doctor (obstetrics and gynecology) at District of Columbia General Hospital confirmed abuse and damage to the child's rectum and vagina. Appellant and the grandmother’s husband were the only men known to be in the house at the time. The house was so arranged that the grandmother would have noticed any person entering the apartment where the children were playing. An immediate complaint was made to the police and two detectives came to the house to investigate the allegations. The detectives asked appellant to accompany them to police headquarters “to get the matter straightened out” and the trial judge concluded that this constituted an arrest. Appellant was advised of his constitutional rights from a form which he signed (Tr. 95, 181-183). In response to police questions appellant declared that none of the several women with whom he had had sexual relations during the past few days had been menstruating (Tr. 178, 185). It was then explained to appellant that the police would like him to undergo a benzidine test “to see if there was a show of blood” (Tr. 179). The mechanics of the test were outlined, and appellant was advised that if the test results were positive he would be charged with the offense, if negative, he would be released (Tr. 179). Appellant replied that “he had no fear about the test because he knew it wouldn’t come up positive” (Tr. 181). At headquarters the technician explained the principles of the test to appellant (Tr. 187). When simple visual inspection of appellant’s penis disclosed nothing unusual (blood would have been unusual), the benzidine test was performed (Tr. 188). “There was a positive color reaction” (Tr. 99). At trial, in response to evidence of the positive reaction which resulted from the benzidine test appellant changed the story he had given to the police at the time of his arrest and claimed that the night before the alleged offense he had had sexual relations with a neighbor, whose name he could not recall, who had begun to menstruate during their act of sexual intercourse (Tr. 118). When cross examined about this inconsistency with the prior statement that he had made to the police, appellant attempted to reconcile the inconsistency thus: But, see, they asked me have I had intercourse with anybody who was on a period. But I didn’t have intercourse with anybody who was on a period at that time. I had intercourse with somebody who came on the period. (Tr. 119-120). II Appellant now contends that the administration of the benzidine test upon his person was an unreasonable search and seizure in violation of the Fourth Amendment and resulted in a deprivation of his right to counsel as guaranteed by the Sixth Amendment. In reply to these claims the trial court found: (1) appellant was not entitled to counsel at police headquarters and did not seek counsel; (2) appellant consented to the test, even though his consent was not required; (3) the test was incident to a lawful arrest based upon probable cause; (4) the test was “purely chemical,” as opposed to “medical” within the meaning of Schmerber v. California [384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)]. Appellant prefaces this claim by an assertion that the detectives did not arrest him. However, Form PD-47 (Tr. 182) which was read to him and which he signed states in the first sentence, “You are under arrest”; and the trial judge found that he had been arrested. We agree with the finding of the trial court which means that the test was a search incident to a lawful arrest. We also conclude that the search was reasonable since it was obviously necessary to conduct the test as promptly as possible because of the ease with which the evidence could be destroyed by a thorough washing. The simplicity of the test makes it unnecessary to have it conducted by a physician. It is a chemical test not a medical test and was properly administered by a trained police technician. His qualifications were not questioned. Having found that the test was administered pursuant to a valid arrest (for which there was probable cause), the constitutional validity of the test as a valid search is recognized by Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). It should also be noted that Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969) stated: [I]t is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. (Emphasis added.) Since we find the test was reasonable and was conducted pursuant to a valid arrest we need not go on to find, as the trial court found, that appellant had properly consented to the test. Ill With respect to appellant’s claim that he had a right to counsel at the police station when the benzidine test was administered we note: (1) he was advised of his right to counsel; (2) he did not request counsel (as the trial court found); and (3) counsel was not required. The last point was determined in United States v. Wade, 388 U.S. 218, 227-228, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967) where the Supreme Court held that counsel was required at a lineup but not at “various other preparatory steps, such as systematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like. We think there are differences which preclude such stages being characterized as critical stages at which the accused has the right to the presence of his counsel. Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel’s absence- at such stages might derogate from his right to a fair trial.” (Emphasis added). The benzidine test is obviously one of the preparatory steps which is excluded from the Sixth Amendment right to counsel. Since it is constitutionally valid to take an internal blood sample for scientific analysis pursuant to a valid arrest where, as here, there was an urgency to prevent the destruction of evidence, certainly it is permissible to take an external sample of blood by a simple cotton swab. Schmerber v. California, supra, 384 U.S. at 770, 771, 86 S.Ct. 1826. We see no similarity to the situation present in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or to the law there announced. If counsel had been present and counselled against submitting to the test, such advice would have been futile because the police were entitled to make the test. Schmerber v. California, supra, 384 U.S. at 765-766, 86 S.Ct. 1826. Lewis v. United States, 127 U.S.App.D.C. 269, 271, 382 F.2d 817, 819 (1967). The trial court so found and we agree. IV Finally, we deal with the contention made in appellant’s reply brief that since the Government admits that the benzidine test yields a positive response to substances other than blood the conviction of appellant must be set aside. The Government’s brief states: “Appellee is constrained to inform this Court that substances other than blood will also yield a positive color reaction, including rust, mud and shoe polish. The initial positive reaction rises to conclusive evidence of the presence of blood only when it is supported by microchemical analysis revealing the presence of hemoglobin, a compound unique to the red corpuscles of vertebrates.” (Emphasis added.) Government’s br. at 8, n.6. Appellant contends that his counsel did not have any reason to believe that the positive reaction which resulted could have been caused by any substance other than blood. The technician who conducted the test gave clear and unequivocal testimony as to the nature of the test, but never mentioned this very important fact. The impression created by his testimony was that the test result positively demonstrated the presence of blood on appellant’s penis. * * * » -X * The fact-finding process was seriously-tainted by the unqualified assertions of the Government witness and reliance thereon by Government counsel during his closing argument. Since disclosure of all the facts with respect to the test “might have led the jury to entertain a reasonable doubt about appellant’s guilt,” the conviction cannot stand. There might be some merit to this argument in a different context. What appellant here contends is that at trial the test was considered as proving that appellant’s penis had been exposed to blood. We fail to see how that could in any way be prejudicial to the appellant since at trial he admitted that his penis had been so exposed shortly before the test was administered. At trial in his testimony he attempted to attribute it to another source, and at closing argument his counsel stated, “It could be anybody’s blood.” While this later contention was too broad in view of the evidence of record which narrowed the possibilities to two persons, it did point out, what was not denied, that the test did not prove that it was the blood of the victim in this case. The test was never alleged to prove anything different than what appellant admits, i. e., that his penis had recently been exposed to blood. Since he admitted that, the fact that it was an overstatement to claim that the test alone proved the same thing is in no way prejudicial to him. After such testimony, the only issue was whether the jury would believe the Government’s testimony or appellant’s explanation and the rest of his testimony — their verdict indicates that they believed the Government witnesses. It was well within their province so to find. Affirmed. . D.C.Code § 22-501 provides: Every person convicted of any assault with intent to kill or to commit rape . . . shall be sentenced to imprisonment for not more than fifteen years. . A He said that he had had relations with other women in the past several days. Q And did he say whether or not any of those had been on their period? A He stated that none of them had been. Tr. 178. . The benzidine test consists in swabbing the suspected area with cotton that has been saturated with water. The cotton is then immersed in a benzidine solution. “If blood is present you will get a bright bluish-green reaction from the benzidine solution.” Even the most minute quantity of blood will trigger the reaction (Tr. 98). The instant test was administered to the area in “the ridge directly under the helmet [of the penis which] is a general catching place for stains. It doesn’t necessarily or normally come in contact with clothing and so on. So this is the area that I examined” (Tr. 99). . District Court memorandum opinion, p. 2. . Appellant’s brief states: We do not suggest that either the technician or the Government’s trial attorney deliberately withheld the exculpatory facts concerning the test from appellant and his counsel. . Appellant’s brief states : This was the impression created at tlie j)retrial suppression hearing as well. Judge Gesell’s opinion states that appellant “arrived at the precinct at C :00 p. m. and was formally charged at 6:25 p. m., after a benzidine test on his penis disclosed presence of blood.” . Appellant’s brief states : The technician’s testimony appears at transcript pages 97-100 and 187-188. The following interchange on cross-examination is illustrative: “Q. And is it not also the ease that your test is not the kind of test that indicates the person from whom the blood came? It really says whether or not you have Hood in the sample? A Yes sir, that is true.” (Emphasis supplied) Tr. 100. . That rust, mud or shoe polish would be present in the small highly protected area where the test was administered is highly unlikely and appellant makes no such claim. Question: What is the specific issue in the case within the general category of "criminal - federal offense"? A. murder B. rape C. arson D. aggravated assault E. robbery F. burglary G. auto theft H. larceny (over $50) I. other violent crimes J. narcotics K. alcohol related crimes, prohibition L. tax fraud M. firearm violations N. morals charges (e.g., gambling, prostitution, obscenity) O. criminal violations of government regulations of business P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery) Q. other crimes R. federal offense, but specific crime not ascertained Answer:
songer_stpolicy	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 interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". LAMB’S CHAPEL and John Steigerwald, Plaintiffs-Appellants, v. CENTER MORICHES UNION FREE SCHOOL DISTRICT and Louise Tramontano, in her official capacity as president of the Board of Education for Center Moriches Schools, Defendants-Appellees, New York State Attorney General’s Office, Intervenor. No. 470, Docket 91-7718. United States Court of Appeals, Second Circuit. Argued Nov. 4, 1991. Decided March 18, 1992. Mark N. Troobnick, Washington, D.C. (Jordan W. Lorence, Concerned Women for America Legal Foundation, Jay A. Seku-low, Walter M. Weber, Free Speech Advocates, of counsel), for plaintiffs-appellants. Harold G. Trabold, Patchogue, N.Y. (Dranitzke, Lechtrecker & Trabold, Pat-chogue, N.Y., August H. Englert, Fiedel-man & Hoefling, Jericho, N.Y., of counsel) for defendants-appellees Center Moriches Union Free School Dist. and Louise Tra-montano. Jeffrey I. Slonim, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., Lawrence S. Kahn, Deputy Sol. Gen., Atty. Gem’s Office, State of N.Y., of counsel), for intervenor New York State Atty. Gen. Jay Worona, Albany, N.Y. (Cynthia P. Fletcher, New York State School Boards Ass’n, Inc., of counsel) for amicus curiae New York State School Boards Ass’n, Inc. Before CARDAMONE, PIERCE and MINER, Circuit Judges. MINER, Circuit Judge: Plaintiffs-appellants Lamb’s Chapel and John Steigerwald appeal from a summary judgment entered in the United States District Court for the Eastern District of New York (Wexler, J.) in favor of defendants-appellees Center Moriches Union Free School District and Louise Tramontano, as President of the Board of Education of the School District. Lamb’s Chapel is an Evangelical Christian church, incorporated under the New York not-for-profit corporation law, located at Center Moriches, Suffolk County, New York. John Steigerwald is the Pastor of Lamb’s Chapel. The School District is a subdivision of the State of New York duly organized to provide public education in Suffolk County. This action was brought to secure declaratory and injunctive relief as redress for the refusal of the School District to allow the use of School District facilities, during non-school hours, for the showing of a series of religious films. The School District relied on a New York statute as well as a local rule in denying use of the facilities. In granting summary judgment, the district court determined that the School District’s facilities were “limited public forums,” which had not been opened to religious groups by policy or practice. Accordingly, the court concluded that the facilities properly were barred to the plaintiffs in accordance with the New York Education Law and the School District’s own Local Rules. On appeal, appellants contend that the School District, having created public forums by policy and practice, has excluded speech from the forum on the basis of content. This, they urge, is violative of the First Amendment. Appellants also contend that the denial to them of equal access to the School District’s facilities, based on the religious content of their speech, is a violation of the Establishment Clause. Finally, they contend that a prior decision of this Court upholding the New York statute that allows the exclusion of religious groups from school district facilities in the absence of a practice of opening the facilities to other religious organizations is erroneous and should not be followed. Finding no merit in any of these contentions, we affirm the judgment of the district court. BACKGROUND By application dated November 19, 1988, Pastor Steigerwald sought the use of rooms in the Center Moriches High School for Lamb’s Chapel Sunday morning services and for Sunday School. The hours specified were 9:00 A.M. to 1:00 P.M., and the time period indicated was one year, beginning in December of 1988. The application was made on a form provided by the School District and entitled “Application For Use of School District Facilities.” Attached to the application form was a sheet entitled “Rules and Regulations for Community Use of School Facilities.” Rule No. 7 was set out as follows: “The school premises shall not be used by any group for religious purposes.” Above his signature on the application form, Pastor Steigerwald indicated that he had read the Rules and Regulations and agreed to comply fully with them “excluding #7.” Accompanying the application, and dated November 21, 1988, was a letter to Alice Schoener, School District Clerk, from the Pastor. In the letter, Pastor Steigerwald introduced himself and his Church and noted that their “paramount objective [was] to share the love of Christ in very real and practical ways.” He also indicated that he had taken a tour of the Center Moriches High School to “see if the school had adequate facilities for a movie series on the family that will be free of charge and open for the community to attend.” Pastor Steigerwald stated in his letter that he had met with the high school principal, who was concerned that the content of the film be nonsectarian in view of the constitutional requirement for the “separation of church and state.” The letter continued: “Those who espouse such a ... view are seriously misinformed. Enclosed you will find several articles that correctly interpret the law that is presently being upheld by the Supreme Court of the United States of America.” By letter dated November 23, 1988 on behalf of the School District, Ms. Schoener advised Pastor Steigerwald that the application “requesting the use of the high school for your Sunday services” was denied, citing Local Rule No. 7 as well as the State Education law. Referring to scheduling problems, Ms. Schoener further advised that she was “very much afraid that, even without the prohibited religious activity aspect, your request would have to be denied.” Undeterred, Pastor Steigerwald pressed forward on December 16, 1988 with another application for use of the high school facilities, the second application being limited to one evening per week for five weeks. The hours designated were 7:00 P.M. to 10:00 P.M. and the activity specified was “Family emphasis & Movie presentation by Dr. James Dobson.” The purpose set forth was “To open up the film to share some pracital [sic] insights about the family.” The facilities requested were the auditorium or gymnasium. In response to the second application Ms. Schoener wrote to Pastor Steigerwald on January 18, 1989 to request “a more detailed description of your proposed use (including a brochure describing the film),” noting that she was “hard pressed to determine from your description, what the five-part movie would represent” but “suspected] that it would certainly have religious connotations.” In the letter requesting additional information, Ms. Schoener observed that “[t]he district has not, in the past, allowed the high school auditorium to be used by any group primarily for its own purposes.” A brochure describing the film, “Turn Your Heart Toward Home,” was forwarded by Pastor Steigerwald to Ms. Schoener on February 2, 1989. According to the brochure, the film comes in a 6-part series “every parent should see.” In the film, Dr. James Dobson, said to be an expert on family life, “reminds parents of society’s slide toward humanism — the undermining influences of radio, television, films and the press — which can only be counterbalanced by a loving home where Christian values are instilled from an early age.” In her response dated February 8, 1989, Ms. Schoener advised Pastor Steigerwald as follows: “This film does appear to be church related and therefore your request must be refused.” Additionally, Ms. Schoener denied a request made by Pastor Steigerwald on February 2,1989, for use of the elementary or high school on Friday or Saturday evenings “for ‘non-religious purposes’ such as volley ball.” The reason given was: “We do not schedule outside organizations to use the facilities on Fridays and Saturdays.” Pastor Steigerwald continued to press his petition. On October 11, 1989, he submitted yet another application for the use of Center Moriches School District facilities to show the same film series, described in this application as a “Family oriented movie from a Christian perspective.” The stated purpose of Lamb’s Chapel was “To invite community of Center Moriches to view this very practical movie for family raising.” Once again, the use of an auditorium for five week days over a five-week period was sought. This last application met with a terse response by Ms. Schoener: “This film does appear to be church related and therefore your request must be refused.” The complaint in this action was filed on February 9, 1990 and includes four causes of action: violation of the Freedom of Speech and Assembly Clauses; violation of the Equal Protection Clause; violation of the Free Exercise Clause; and violation of the Establishment Clause. As to each cause, the plaintiffs allege that the defendants’ actions were taken under color of state law and in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1983. The injunctive relief sought was an order permitting plaintiffs the use of the auditorium of the high school or elementary school to show the film series and to allow religious groups use of the facilities without discrimination because of the religious content of their speech. Also sought was a judgment declaratory of plaintiffs’ rights to use the facilities in question in accordance with constitutional protections guaranteed by the First and Fourteenth Amendments, including the Free Speech, Freedom of Assembly, Free Exercise, Establishment and Equal Protection Clauses of the Constitution. Plaintiffs also sought a declaration of the unconstitutionality of section 414 of the New York Education Law to the extent it bars the use of school district facilities for purposes of religious speech. Plaintiffs’ motion for a preliminary injunction to compel the School District to allow the use of the District’s facilities was denied by the district court in a Memorandum and Order dated May 16, 1990. The court reviewed the facts presented on the motion as well as the applicable legal and constitutional principles and concluded that plaintiffs had “not shown either a substantial likelihood of success on the merits or sufficiently serious questions going to the merits.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 736 F.Supp. 1247, 1254 (E.D.N.Y.1990). An appeal to this Court from the Order denying the preliminary injunction was withdrawn, and the matter was returned to the district court for further proceedings. Thereafter, the plaintiffs moved for summary judgment and the School District cross-moved for the same relief. After hearing testimony as well as considering exhibits and affidavits, the district court granted the School District’s motion and denied the plaintiffs’ motion in a Memorandum and Order dated July 15, 1991, giving rise to this appeal. In granting summary judgment, the district court found “that if the intended use of school facilities is not required or authorized by statute, there is no constitutional right to such use where a school district has not, by policy or practice, permitted a similar use in the past.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 770 F.Supp. 91, 98 (E.D.N.Y.1991). Although it determined that the Center Mo-riches School District facilities are limited public forums, the court concluded that the “District ha[d] not, by policy or practice, opened its doors to groups akin to Lamb’s Chapel,” and therefore held “that the School District’s denial of plaintiffs’ applications to show the film series [was] viewpoint-neutral and, hence, constitutional.” Id. at 99. We agree with the conclusion reached by the district court. DISCUSSION According to the Supreme Court, the extent of permissible governmental regulation of expressive activity on publicly owned property is dependent upon the character of the public property in question. See Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). The Court has identified three categories of publicly owned property and has defined what regulatory power, consistent with the First Amendment, may be exercised in each category. See Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985). The power of the State to regulate expression is most limited in regard to the category of public property designated “traditional public forum.” Streets, parks and similar locales, said to “have immemorially been held in trust for the use of the public and [which], time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions,” Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939), fall within this classification. In such a forum, a regulation providing a content-based exclusion may be enforced only when “necessary to serve a compelling state interest” and must be “narrowly drawn” to serve that purpose. Perry, 460 U.S. at 45, 103 S.Ct. at 955. Also, narrowly tailored, content-neutral regulations pertaining to the time, place and manner of expression in a traditional public forum may be enforced, if they “serve a significant government interest, and leave open ample alternative channels of communication.” Id. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989). The second category of public property pertinent to this analysis is made up of property purposefully opened for use by the public for expressive activity. Although government is not required to open this sort of forum or to keep it open indefinitely, the regulation of expression in a locale encompassed within the second category must meet the same standards as are applicable to a traditional public forum. Perry, 460 U.S. at 46, 103 S.Ct. at 955. Places opened specifically for the use of certain speakers or for the discussion of certain subjects are referred to as “limited” or “designated” fora. See Longo v. U.S. Postal Service, 953 F.2d 790, 793-94 (2d Cir.1992); Travis v. Owego-Apalachin School Dist., 927 F.2d 688, 692 (2d Cir.1991). As to these fora, “the first amendment protections provided to traditional public forums only apply to entities of a character similar to those the government admits to the forum.” Calash v. City of Bridgeport, 788 F.2d 80, 82 (2d Cir.1986). Least restricted is the power of government to regulate expression in the third category of public property — the nonpublic forum. Included in this category is property that is not open for communicative purposes either by tradition or designation. Perry, 460 U.S. at 46, 103 S.Ct. at 955. With respect to such property, where governmental control is analogous to that of a private owner, see United States Postal Service v. Council of Greenburgh, 453 U.S. 114, 129-30, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (1981), a reasonableness standard prevails, see International Soc’y For Krishna Consciousness v. Lee, 925 F.2d 576, 580 (2d Cir.1991), cert. granted, — U.S. -, 112 S.Ct. 855, 116 L.Ed.2d 764 (1992). The standard is met when the applicable restrictions “reflect a legitimate government concern and do not suppress expression merely because public officials oppose the speaker’s view.” See Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir.1991). The Center Moriches School District facilities appellants sought to use do not fall within the categories of “traditional public forum” or “non-public forum,” and appellants do not contend that they do. What appellants do contend is that the school authorities in the Center Moriches School District by policy and practice have opened the facilities for the use of the general public and that the exclusion of religious speech is prohibited under the standards governing the second category. See Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 267, 108 S.Ct. 562, 567, 98 L.Ed.2d 592 (1988). An examination of pertinent policy and actual practices, however, convinces us that the school property in question falls within the subcategory of “limited public forum,” the classification that allows it to remain non-public except as to specified uses. See Deeper Life Christian Fellowship v. Board of Educ., 852 F.2d 676, 679 (2d Cir.1988) (Deeper Life I). In the matter of School District policy, the District is governed by section 414 of the New York Education Law and its own Local Rule No. 7. Section 414 sets out ten purposes for which the use of schoolhouse facilities may be granted throughout the State of New York: instruction; public library purposes; social, civic and recreational meetings; events for which admission fees are charged, if the fees are to be applied to educational and charitable (but not religious) purposes; elections and political meetings; civic forums and community centers; classes for mentally retarded minors; recreation and athletics; child care services during non-school hours; and graduation exercisés held by not-for-profit elementary and secondary schools, provided no religious service is performed. N.Y.Educ.Law § 414[l](a)-(j) (McKinney 1988 & Supp.1992). Religious uses are nowhere permitted in this enumeration. All the uses specified are subject to such regulations as may be adopted by boards of education in the various school districts of the state, but the regulations must not conflict with the state law. See id. As previously noted, the Board of Education of the Center Moriches Union Free School District has provided in its Local Rule No. 7 that “[t]he school premises shall not be used by any group for religious purposes.” In Deeper Life I we adopted a state court interpretation of section 414 that the use of New York school facilities is confined to nonreligious purposes, see Trietley v. Board of Educ., 65 A.D.2d 1, 5-6, 409 N.Y.S.2d 912, 915 (4th Dep’t 1978), and thereby ascertained the state’s intent to create a limited public forum from which religious uses would be excluded. See Deeper Life I, 852 F.2d at 680. We determined in that case that under the statute and applicable New York City Board of Education regulations, the School Board had no discretion with respect to the granting of use permits to religious groups. See Deeper Life Christian Fellowship v. Sobol, 948 F.2d 79, 83 (2d Cir.1991) (Deeper Life II). Appellants argue, in effect, that once the school district facilities are opened as a public forum for one purpose, they are opened for all purposes. They take issue with our view that “property remains a nonpublic forum as to all unspecified uses ..., and exclusion of uses — even if based upon subject matter or the speaker’s identity — need only be reasonable and viewpoint-neutral to pass constitutional muster,” Deeper Life I, 852 F.2d at 679-80 (citations omitted), and contend that our view does not represent a proper interpretation of Supreme Court precedent. That challenge is barred by the rule of stare decisis, not only as a consequence of the Deeper Life cases but also as a consequence of our decision in Travis, where we held that “in a limited public forum, government is free to impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.” 927 F.2d at 692. In Travis, the school district was constrained to open its facilities to a religiously-oriented, fund-raising entertainment event benefitting a pregnancy counselling organization affiliated with an organization that promoted Christian gospel evangelism, having previously opened the facilities to a religious Christmas program involving the collection of toys for needy children. “The Christmas program .., created at least a limited public forum for fund-raisers with religious themes.” Id. at 693. In Deeper Ufe I, we sustained a preliminary injunction in a case in which a church sought the temporary use of an elementary school building, finding as a fair ground for litigation that “the School Board ha[d] opened this forum to [the church] through a practice of granting permits to use public school facilities to other religious organizations.” 852 F.2d at 680. Whether Center Moriches has opened its facilities to religious uses and purposes presents a close question here. On appeal, appellants principally rely upon three prior uses of school district facilities to demonstrate a prior practice of opening Center Moriches public schools to outside of school religious uses: a Salvation Army Band Benefit Concert; a Gospel Music Concert; and a lecture series entitled “Psychology and the Unknown,” given by Jerry Huck. The Band Benefit Concert involved performances by the Center Mo-riches High School Band as well as the Salvation Army Greater New York Youth Band. The money raised at this concert was used to provide a scholarship for a high school band member and to provide funds for children to go to summer camp. The only religious connotations found in the Joint Band Program were the invocation, the performance of a piece called “Jericho Revisited” and the finale, “God Bless America.” Although appellants adduced evidence that “the Salvation Army is a church or a quasi-church,” the Joint Band Program hardly can be described as any kind of a religious use of school district property. The theme of the Program was not religious and any reference to religion was incidental at best. The Gospel Music Concert was performed by a group called the “Southern Harmonizers Gospel Singers.” The purpose of the program was to raise money for the school’s black student scholarship fund. The program consisted in the main of gospel and spiritual music. The business manager of the Singers defined gospel music as “the good news of God.” Included in the program were such well-known religious songs as “Amazing Grace!” and “The Lord is my Shepherd” from the Twenty-Third Psalm of the Old Testament. The business manager responded in the affirmative when asked if the concert could be enjoyed for the music itself. Obviously, this is so. Much of the world’s greatest music has some religious connotation but can be enjoyed by people of all religious beliefs as well as people of no religious beliefs. The performance by the Southern Harmonizers was not a religious service or event but a musical and cultural one. It took place in a non-religious context and had a non-religious purpose. The lecture series, “Psychology and The Unknown,” by Jerry Huck, was sponsored by the Center Moriches Free Public Library. The library’s newsletter characterized Mr. Huck as a psychotherapist who would discuss such topics as parapsychology, transpersonal psychology, physics and metaphysics in his 4-night series of lectures. Mr. Huck testified that he lectured principally on parapsychology, which he defined by “reference to the human unconscious, the mind, the unconscious emotional system or the body system.” When asked whether his lecture involved matters of both a spiritual and a scientific nature, Mr. Huck responded: “It was all science. Anything I speak on based on parapsychology, analytic, quantum physicists [sic].” Although some incidental reference to religious matters apparently was made in the lectures, Mr. Huck himself characterized such matters as “a fascinating sideline” and “not the purpose of the [lecture].” As is apparent from the foregoing, none of the prior uses pointed to by the appellants were for religious purposes. Nor are we able to discern any previous uses of any school district property for religious purposes upon an examination of the record. Incidental references to religion or religious figures, the occasional use of religious terms, and the performance of music with religious overtones do not convert a secular program into a religious one. The programs cited as examples did not carry out religious themes nor were they presented in a religious context. We simply have not been able to identify any prior use of Center Moriches School District facilities for purposes that are religious in any meaningful way. We therefore conclude that the facilities were limited forums not opened to religious uses by policy or practice and that there was no constitutional violation in the failure of the School District to afford access to appellants. Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) and Board of Educ. of the Westside Community Schs. v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990), relied upon appellants, do not dictate a contrary result. In Widmar, the Court held that a state university could not deny access to university facilities to students who wished to conduct religious meetings on campus. Widmar, 454 U.S. at 273, 102 S.Ct. at 276. The Court found in that case that “[t]hrough its policy of accommodating their meetings, the University has created a forum generally open for use by student groups,” noting that “the campus of a public university, at least for its students, possesses many of the characteristics of a public forum.” Id. at 267 & n. 5, 102 S.Ct. at 273 & n. 5. In Mergens, the Court held that the Equal Access Act, 20 U.S.C. § 4071(b) prohibited a high school from “discriminating, based on the content of the students’ speech, against students who wish to meet on school premises during noninstructional time.” 496 U.S. at 247, 110 S.Ct. at 2370. The high school had created a limited open forum- by allowing noncurriculum-related student groups to use the school facilities. The denial of a request to form a Christian club, under the circumstances revealed, constituted a denial of equal access under- the Equal Access Act. Although appellants contend that our Deeper Life opinions are incompatible with these Supreme Court decisions and that the decisions compel a reversal of the district court in the case at bar, the contention is baseless. Widmar involved the use of university property by student groups in a situation where a number of such groups had been afforded access, to the point where, as to the students, a “generally open forum” was created. 454 U.S. at 267, 102 S.Ct. at 273. Similarly, in Mergens, the religious use of school property was sought by students, who have a greater claim on the use of school property than outsiders, especially when the property generally is open to student groups. The Supreme Court decided Mergens purely on statutory grounds, noting that it did not need to decide whether the First Amendment requires the same result. In the Deeper Life cases, as in the case at bar, we are presented with outside organizations seeking access where access has been limited and all religious use has been barred by policy and practice. The appellants argue that denial of access somehow violated the Establishment Clause of the First Amendment as well as the Freedom of Speech Clause. It is difficult to see how this is so. If anything, a claim of a violation of the Free Exercise Clause would be expected. Nevertheless, there is no basis for any claim of First Amendment violation here. We have considered all of the arguments advanced by the appellants and find them meritless. CONCLUSION The judgment of the district court is affirmed in all respects. Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_initiate	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. LA BARGE WATER WELL SUPPLY COMPANY, a Corporation, Appellant, v. UNITED STATES of America, Appellee. LA BARGE PIPE LINE SUPPLY COMPANY, a Corporation, Appellant, v. UNITED STATES of America, Appellee. Nos. 17375, 17376. United States Court of Appeals Eighth Circuit. Dec. 17, 1963. Hugh E. Gibbons, St. Louis, Mo., Hocker, Goodwin & MacGreevy, St. Louis, Mo., for appellant. Ralph Muoio, U. S. Dept. of Justice, Tax Division, Washington, D. C., Louis F. Oberdorfer, Asst. Atty. Gen., Washington, D. C., Meyer Rothwacks, Michael I. Smith, Stephen B. Wolfberg, Dept. of Justice, Washington, D. C., and also Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., for appellee. Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and DAVIES, District Judge. BLACKMUN, Circuit Judge. The two corporate taxpayers instituted these separate actions to recover payments of income tax deficiencies caused by surtax exemption disallowances under § 1551 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 1551. The cases' were consolidated for trial. The jury returned special verdicts in favor of the United States and judgments were entered accordingly. The taxpayers appeal. La Barge Pipe and Steel Company, not one of the taxpayers here, began business in St. Louis in 1953 as Pierre L. La Barge, Jr.’s sole proprietorship. It was engaged in the warehousing and distribution of tubular products and piping materials. It made sales to, among others, the water well drilling industry and the gas and oil pipe line industry. The business v/as incorporated in March 1956 with La Barge the owner of over 99% of Pipe and Steel’s outstanding shares. In September 1956 the taxpayer La Barge Water Well Supply Company was incorporated in Missouri. It was to hold itself out as a specialist and take over and increase sales to the water well drilling industry. In May 1957 the taxpayer La Barge Pipe Line Supply Company was incorporated in Missouri to hold itself out as a specialist and handle sales to the gas and oil pipe line industry. Pipe and Steel transferred property to each taxpayer in return for stock. La Barge was president of Pipe and Steel and of both taxpayers. The three corporations filed separate income tax returns. Each claimed the $25,000 surtax exemption provided for by § 11(c) of the 1954 Code. The Internal Revenue Service disallowed this exemption to Water Well for its fiscal years ended March 31, 1958, 1959, and 1960, and to Pipe Line Supply for its fiscal years ended March 31, 1958 and 1960. This was on the ground that the exemption was not available because of the prohibition of § 1551. The only part of § 1551 which is significant here is its provision that the exemption shall be disallowed “unless such transferee corporation shall establish by the clear preponderance of the evidence that the securing of such exemption * * was not a major purpose of such transfer”. No issue is raised as to the satis-' faction of all other conditions of the statute' including the required control by Pipe and Steel. Further, the taxpayers concede that there is no question here as to the sufficiency of the evidence to support the verdicts. The issues before us are: (a) Were the taxpayers deprived of a fair trial by the district judge’s comments in the presence of the jury relative to the effect of the dissolution of Pipe Line Supply? (b) Were the taxpayers deprived of a fair trial by other statements made by the court in the presence of the jury? (c) Were the instructions and the special verdict forms erroneously prejudicial? We discuss these in order. 1. The court’s comments as to Pipe Line Supply’s dissolution. The complaint in Pipe Line Supply’s action was filed April 9, 1962. Articles of dissolution of the corporation were filed, under V.A. M.S. § 351.470, with the Missouri Secretary of State one week later on April 16. La Barge testified that the corporation was dissolved because “We just didn’t seem to be making enough progress in the industry to warrant continuance of the operation”. Y.A.M.S. § 351.-565 provides: “The dissolution of a corporation * * * by the issuance of a certificate of dissolution by the secretary of state * * * shall not take away or impair any remedy available to or against such corporation * * * for any right or claim existing, or any liability incurred, prior to such dissolution if suit or other proceeding thereon is commenced within two years after the date of such dissolution. Any such suit or proceeding by or against the corporation may be prosecuted or defended by the corporation in its corporate name.” The cross-examination of Mr. La Barge led to testimony and remarks of counsel and the trial judge which indicated initial misunderstanding as to the facts and significance of the dissolution and its date. There was no motion for a mistrial. The taxpayers argue that the court emphasized in the presence of the jury an incorrect situation relating to Pipe Line Supply’s dissolution, that it cast aspersions when it demanded to know how a dissolved company could be a party to a lawsuit, that the complaint was in fact filed before dissolution was effected and not afterward, that, under § 351.565, the suit could properly be maintained in Pipe Line Supply’s name anyway, and that the court’s comments were not only incorrect as a matter of Missouri law but constituted reversible error. We do not agree. This court has often observed, see Goldstein v. United States, 63 F.2d 609, 613 (8 Cir. 1933), that it is difficult for an appellate court on a cold record to reproduce accurately for itself the warm vig'or and atmosphere of the jury trial. But we cannot equate the court’s remark as to counsel’s statements not being true with an accusation of outright falsehood. The court, the witness and counsel were all, for the moment, in error as to the dates and the result of the dissolution but this was clarified after the noon recess. The court then advised the jury of its own error, the jury’s nonconcern with the dissolution, and its desire not to be understood as having accused the taxpayer’s counsel of lying. Of course, errors and statements of this type by a judge can, in a proper case, constitute error which is not subject to correction by apology or directions to the jury if the atmosphere of a fair trial is to be retained. The situation before us, however, is not of that category. Everyone, including the court, suddenly found himself in factual confusion over a matter which the court mistakenly thought was jurisdictional and for its immediate concern. The trial court readily recognized its error and premature conclusion. In our opinion it sufficiently clarified the matter with the jury in a way which left no prejudice in their minds and which was not inconsistent with substantial justice. The error was harmless within the scope of Rule 61, F.R.Civ.P. 2. Other statements by the court before the jury. The taxpayers also complain that the district court, in its questioning of witnesses, in its running comments upon testimony, and in its characterization of it, overstepped the bounds of judicial propriety and deprived the taxpayers of the fair trial which was due them. Much of this material is set forth in footnote 3. We have carefully examined the entire record and, specifically, the other portions to which our attention has been called by the taxpayers. They need not be quoted here. This trial judge is experienced and able. He obviously readily grasped the issues and was anxious to get on with the litigation. Each judge has his own manner and his own idea of proper judicial activity or inactivity in a lawsuit. One is relaxed and content to let counsel present evidence in his own way and unmolested. Another is less patient and prefers a tight rein. As an appellate court we certainly cannot dictate a trial judge’s every move. Our responsibility is only to see that the court has not stepped into the area of unfairness and prejudice. We have said: “An appellate court should be slow to reverse a case for the alleged misconduct of the trial court, unless it appears that the conduct complained of Avas intended or calculated to disparage the defendant in the eyes of the jury and to prevent the jury from exercising an impartial judgment upon the merits.” Goldstein v. United States, supra, p. 613 of 63 F.2d. “While we find that the comments of the trial judge and his participation in the questioning of the defendant and his Avitnesses exceeded the bounds of judicial propriety, we must nevertheless also conclude that such activities, prejudiced the defendant before a new trial may be ordered on such grounds.” Woodring v. United States, 311 F.2d 417, 420 (8 Cir. 1963), cert. denied 373 U.S. 913, 83 S.Ct. 1304, 10 L.Ed.2d 414. Goldstein and Woodring were criminal cases; their standard hás equal pertinency for civil causes. We understand the concern of counsel, but apart from the subsidiary question whether appropriate objections Avere noted, we are comúnced, and we so hold, that the trial court’s questions and comments did not constitute reversible error. In reviewing the record we observe, incidentally, that it contains instances of corresponding restraints and comments to government counsel. We find this record less extreme and objectionable than the situations described in Hickey v. United States, 208 F.2d 269, 274-75 (3 Cir. 1953), cert. denied 347 U.S. 919, 74 S.Ct. 519, 98 L.Ed. 1074; American Motorists Ins. Co. v. Napoli, 166 F.2d 24, 27 (5 Cir. 1948); and Knapp v. Kinsey, 232 F.2d 458, 465-67 (6 Cir. 1956), cert. denied 352 U.S. 892, 77 S.Ct. 131, 1 L.Ed. 2d 86, pressed upon us by the taxpayers, and those in our own cases of Agee v. Lofton, 287 F.2d 709 (8 Cir. 1961); Myers v. George, 271 F.2d 168, 83 A.L.R.2d 1121 (8 Cir. 1959); and Berry v. United States, 283 F.2d 465, 466-67 (8 Cir. 1960), cert denied 364 U.S. 934, 81 S. Ct. 380, 5 L.Ed.2d 366, where new trials were granted. Compare Throckmorton v. St. Louis-San Francisco Ry., 179 F.2d 165, 169-70 (8 Cir. 1950), cert. denied 339 U.S. 944, 70 S.Ct. 797, 94 L.Ed. 1359; Illinois Terminal R. R. v. Creek, 207 F.2d 475, 480 (8 Cir. 1953). 3. The instructions and special verdict forms. Section 1551 concerns itself, among others, with-two factors: (1) whether the taxpayer corporation was “created for the purpose of acquiring” the property transferred to it, and (2) whether securing the surtax exemption was “a major purpose of such transfer”. The first of these was clearly satisfied as to both taxpayers. It is claimed, however, that the trial court misinterpreted and misapplied the statute in its instructions to the jury and in the special verdict forms in that it related loss of the surtax exemption not to “a major purpose of such transfer” but to “a major purpose of [the taxpayers’] formation” (emphasis supplied), and in that the court imposed for the jury a standard of “true separateness” as between the taxpayers and their parent. There is something to be said in support of this argument. The trial court did instruct that under § 1551, “if a corporation is formed and a major purpose of its formation was obtaining this exemption then the Commissioner has the right to disallow the exemption” It observed that the Commissioner had determined that a major purpose for which the taxpayers “were formed was to obtain the advantages under the law of the $25,-000 surtax exemption” It posed the questions whether, each was incorporated to secure additional customers and whether the tax saving occasioned by incorporation “was not a major purpose of such incorporation”, even though tax benefit “for such incorporation” resulted. It instructed that it was not necessary that the exemption be “the sole or principal purpose of the formation” and that it was sufficient if it was “a major purpose that prompted its formation”. It mentioned, as to each taxpayer, seven items which the jury might consider in deciding whether the surtax exemption was “a major purpose for the formation”. It stated that the burden of proof was on the taxpayers with respect to the exemption not being “a major purpose for the formation”. The special verdict submitted in each case was the question, “Was obtaining the surtax exemption a major purpose of the formation of the” taxpayer? It is thus apparent that on their face these portions of the instructions and the verdict forms are directed toward purpose of the corporations’ formation rather than toward purpose of subsequent transfers of property to them. Nevertheless, this point also must be ruled against the taxpayers. In the first place, although the taxpayers made other objections to the instructions, we find nothing in the record in the nature of objections directed specifically to this claim of misplaced emphasis as to purpose and thus nothing which meets the requirements of Rule 51, F.R.Civ.P. We note, secondly, that the taxpayers themselves, in the objections they did make, twice referred to purpose .at the time of formation. As a consequence, they are not now in a comfortable position to complain. Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 445 (8 Cir. 1961), cert. denied 368 U.S. 929, 82 S.Ct. 366, 7 L.Ed.2d 192. Thirdly, the court in its instructions did not restrict its comments to formation purpose. It observed as to each taxpayer that “the securing of the surtax exemption may constitute a major purpose of the transfer, notwithstanding that such formation was effected for a valid business purpose”. Finally, there could have been no jury confusion here for there is no contention that the purpose of the transfer of assets to each taxpayer was different from the purpose of its formation. These were newly created corporations and the transfers took place promptly upon organization. If the formation purpose and the transfer purpose were different, taxpayers’ point might have significance. The import of § 1551 is clear. We think the statute is to be broadly approached. This is recognized by the Regulations, § 1.1551-1 (e), .which provide that “all circumstances relevant to the transfer shall be considered”. We see nothing to indicate that the Regulations are not valid in this respect. It of course would have been preferable for the instructions and the verdict forms to have been directed to transfer purpose rather than formation purpose. Indeed, this court once said, “Even in criminal cases, it is held as a general rule that where the law governing a case is expressed in a statute the court in its charge should use the language of the statute”. Terminal R. R. Ass’n v. Howell, 165 F.2d 135, 140 (8 Cir. 1948). But, after all, the standard is whether the instructions as a whole substantially apprised the jury of the meaning of the statute and whether they fairly and fully presented the issues to the jury. McDonnell v. Timmerman, 269 F.2d 54, 62 (8 Cir. 1959); Mounds Park Hospital v. Von Eye, 245 F.2d 756, 764, 70 A.L.R.2d 335 (8 Cir. 1957); Hansen v. Barrett, 186 F.Supp. 527, 532 (D.Minn.1960). We think this standard has been met here and without prejudice to the taxpayers. Affirmed. . 26 U.S.C.A. § 1551. “If any corporation transfers, on or after January 1, 1951, all or part of its property (other than money) to another corporation which was created for the purpose of acquiring such property * * * and if after such transfer the transferor corporation or its stockholders,' or both are in control of such transferee corporation during' any part of the taxable year of such transferee corporation, then such transferee corporation shall not for such taxable year * * * be allowed * * * the $25,000 exemption from surtax provided in section 11(c) * * * unless such transferee corporation shall establish by the clear preponderance of the evidence that the securing of such exemption * * * was not a major purpose of such transfer. For purposes of this section, control means * * ." . Pipe Line Supply, because of losses, enjoyed no surtax exemption benefit for fiscal 1959. . “Q. You stated that all three corporations shared the same facilities, is that correct, 7400 South Broadway? A. Yes, sir. “Q. Do all three corporations have that address? A. Yes, sir. “Q. Did the Pipe Dine Supply— “Mr. Gibbons: I object to that, your Honor, because the one corporation is no longer in existence. They did at one time. “The Court: Well, let me say this to you: You are merely the attorney. This is the witness. Now, he’s the one doing the swearing and if he can’t keep up with what he’s swearing to, that’s his problem and not yours. “Mr. Gibbons: All right, your Honor. “The Court: If it’s no longer in existence and he was president of it he ought to know it. * * * “Q. Would you tell me approximately when the Pipe Line Supply Corporation was liquidated? A. When, you say? “Q. When. A. April 1, 1962, I believe. “Q. April 1, 1962, did you say? A. Yes, sir. “The Court: Let me get you gentlemen straight, and that pertains to you, or let me get you to give the court some information. What do you mean by liquidation? What do you mean by liquidated? “The Witness: We dissolved the company. “The Court: You dissolved the company? Isn’t it a part of this lawsuit? “Mr. Gibbons: Yes, your Honor. “The Court: How are you going to have a dissolved company a party to a lawsuit? “Mr. Gibbons: The— “The Court: I think we get rid of one right now, don’t we? “Mr. Gibbons: At this time I would like to amend the caption of the petition of the one— “The Court: It isn’t a question of amending the caption. It’s a question, I would assume, of substitution, which is completely new parties. “Mr. Gibbons: All right, your Honor. “The Court: I don’t know if you can do that or not. I was just trying to find out how you could bring a lawsuit in the name of a company that has been dissolved. “Mr. Gibbons: No, sir, the lawsuit was brought before it was dissolved. “The Court: I don’t care when it’s dissolved. When you dissolve a corporation you get rid of it, don’t you? I merely raise that now. “Mr. Gibbons: Do you have any objection to the substitution of the board of directors ? “Mr. Bray: I object to the substitution because up until the actual conduct of the trial I was not aware that the Pipe Line Supply Corporation had actually been dissolved. “The Court: When was it dissolved? “Mr. Gibbons: April 1, 1962, your Honor. “Mr. Bray: It was prior to the filing of the lawsuit. “Mr. Gibbons: No, it was after. “The Court: And that was the which company? “Mr. Bray: Pipe Line Supply. “Mr. Gibbons: Pipe Line Supply, sir. “The Court: Well, then, the statement that you made a minute ago isn’t true because your lawsuit was filed at that time. You said the lawsuit was filed before you dissolved it. That lawsuit was filed in June. “Mr. Gibbons: I stand corrected, then, your Honor. I didn’t prepare the petition on it. “The Court: Now, I’ll talk to you people just before two if you will come into the office about it. You’re going to have to come up — I don’t know what you’ve got on it, I don’t know whether even they can bring it or not. * * * No need of us starting in with something here that when we get through we’ve accomplished nothing * * * * * * * “The Court: Ladies and gentlemen of the jury, it has been called to my attention that the date that was looked at on this La Barge Pipe Line outfit of June 6th is an incorrect date. The date is April 9, 1962. The matter with respect to the dissolution or non-dissolution of that isn’t a matter that is of any concern to the jury in the least anyway; it isn’t a matter that you will be instructed on. It has to do merely with the mechanics of the matter, which is a matter before the court. It will be taken up at some later time if under the law it need be taken up. That testimony, insofar as you are concerned, is of no interest to you. The attorney for the defendant seems to think I accused him of lying in tbis matter. I don’t think I did. If I did, I didn’t moan that. I meant to say that he was mistaken, I thought, but none of that has anything to do with the problem with which you people are confronted. It isn’t a matter that you will be instructed on; it isn’t a matter that has anything whatever to do with the merits of the lawsuit. It is a matter that deals entirely with the law, it’s a matter before the court, and so you can give no concern whatever to what may have been said in that respect insofar as the problems with which you are dealing are concerned. “Either one of you want to add anything else? “Mr. Bray: Excuse me, your Honor, just one thing. You said, ‘the attorney for the defendant.’ “The Court: I mean the attorney for the plaintiff, for the Pipe Line, and it only pertains to the La Barge Pipe Line Supply Company case, not the other case.” Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_appfed	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 "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Thomas H. KEAN, Governor of the State of New Jersey, and J. Richard Goldstein, M.D., New Jersey State Commissioner of Health, Appellees, v. Margaret HECKLER, Secretary of Health and Human Services, Appellant. No. 85-5663. United States Court of Appeals, Third Circuit. Argued April 17, 1986. Decided Aug. 28, 1986. Richard K. Willard, Asst. Atty. Gen., Thomas W. Greelish, U.S. Atty., John P. Cordes, John F. Daly (argued), Attys., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., Ronald E. Robertson, Gen. Counsel, Ann T. Hunsaker, Asst. Gen. Counsel, Thomas W. Coons, Atty., Dept. of Health and Human Services, for appellant. Irwin I. Kimmelman, Atty. Gen. of N.J., James J. Ciancia, Asst. Atty. Gen., Charlotte Kitler, Deputy Atty. Gen. (argued), Trenton, N.J., for appellees. Giordano, Halleran & Ciesla, Frank R. Ciesla, Middletown, N.J., for amicus curiae, New Jersey Hosp. Assn. Before SEITZ, HIGGINBOTHAM, and BECKER, Circuit Judges. OPINION OF THE COURT SEITZ, Circuit Judge. Appellant, the Secretary of Health and Human Services (Secretary), appeals from an order granting summary judgment in favor of appellees. We have jurisdiction under 28 U.S.C. § 1291. I. This case stems from a disagreement between the State of New Jersey and the Secretary over the method by which hospitals in New Jersey will be reimbursed for services they perform on an outpatient basis under Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq. (1982) (commonly known, and hereinafter referred to as Medicare). New Jersey sought from the Secretary a “waiver” under § 1886(c) of the Act, 42 U.S.C. § 1395ww(c), whereby such reimbursements would be made under a plan devised by the State. The Secretary granted the State’s request for a waiver with respect to inpatient services, but denied it with respect to outpatient services. In the absence of a waiver, reimbursing payments are made on the basis of the scheme set forth in the Medicare statute. Although the precise issue raised is narrow, it can be fully understood only against a fairly detailed background of the Medicare statute and its history. A. The Medicare Statute The Medicare program, originally established in 1965, provides federal health insurance to the aged and disabled. The program has two components. Coverage under Part A, 42 U.S.C. §§ 1395c to 1395i-2, is generally available automatically to all persons over the age of 64 and to the disabled. Id. § 1395c. Part A principally covers inpatient hospital services, as well as related post-hospital care, home health services, and hospice care. Id. § 1395d. Payments under Part A are made from the Hospital Insurance Trust Fund, which is funded by a wage tax.. Id. § 1395i. Part B of Medicare is a program of “supplementary” medical insurance, also for the aged and disabled. Participation in Part B, unlike Part A, is elective. Services covered by Part B include outpatient hospital services, and others listed in 42 U.S.C. §§ 1395k and 1395x(s). Payments under Part B are made from the Supplementary Medical Insurance Trust Fund, id. § 1395t, which is funded by premiums paid by en-rollees and by money appropriated by the Federal government, id. § 1395j. Both Parts A and B are administered by the Health Care Financing Administration (HCFA), under authority delegated by the Secretary. Payments under both parts of Medicare are made directly to providers of reimbursable services (e.g., hospitals) by the appropriate trust fund. Payments under Part B for outpatient services are generally based on “reasonable charges” for services provided. Id. § 1395/. As originally enacted, Part A also provided for payments based on the reasonable costs of services to the provider. Id. § 1395f(b)(l). This approach to calculating reimbursements is considered “retroactive,” because the amount paid by Medicare is largely a function of the costs actually incurred by the provider. In 1983, however, Congress adopted a prospective reimbursement system for inpatient services and other services reimbursable under Part A. Social Security Amendments of 1983, Pub.L. No. 98-21, § 601, 97 Stat. 65, 152-62 (codified at 42 U.S.C. §§ 1395ww(d)-(e)) (hereinafter cited as 1983 Amendments). Under this system, reimbursing payments are calculated on the basis of a predetermined fee schedule, irrespective of the provider’s actual costs. In addition to the normally applicable Medicare reimbursement rules, however, Medicare also contains a number of provisions whereby individual states may obtain waivers. Under such waivers, Medicare reimbursements to the hospitals in a state are made on the basis of a state reimbursement scheme, rather than the otherwise applicable federal system. The first of these waiver provisions to be enacted authorized the Secretary to engage in “experiments and demonstration projects,” which might include state waivers. See Social Security Amendments of 1967, Pub.L. No. 90-248, § 402, 81 Stat. 821, 930-31 (hereinafter cited as 1967 Amendments); Social Security Amendments of 1972, Pub.L. No. 92-603, § 222, 86 Stat. 1329, 1390-93 (hereinafter cited as 1972 Amendments) (both codified as amended at 42 U.S.C. § 1395b-1). The purpose of these provisions was to discover ways of controlling costs, see generally H.R.Rep. No. 231, 92d Cong., 2d Sess. (1971), reprinted in 1972 U.S.Code Cong. & Ad.News 4989, 5066-67 (hereinafter cited as H.R.Rep. No. 231), and waivers are available with respect to both inpatient and outpatient costs. Such waivers (hereinafter referred to as demonstration-project waivers) are entirely discretionary with the Secretary. Congress enacted a second waiver provision in 1982. Medicare § 1886(c)(1), 42 U.S.C. § 1395ww(c)(l). In that section, Congress authorized the Secretary to “provide, in his discretion, that payment with respect to services provided by a hospital in a State may be made in accordance with a hospital reimbursement control system in a State, rather than in accordance with the other provisions of this title,” if the State’s system met each of five conditions set forth in the statute. Among these conditions is that the state plan be no more costly than the otherwise applicable Medicare system. Medicare § 1886(c)(1)(C), 42 U.S.C. § 1395ww(c)(l)(C). Finally, in 1983, Congress adopted two further waiver provisions; unlike the earlier provisions, however, these mandate that a waiver be granted as long as certain statutorily-specified criteria are met. First, Congress provided for a mandatory waiver for state reimbursement plans that had previously been granted a demonstration-project waiver, and that met the criteria for a discretionary waiver in section 1886(c)(1). Medicare § 1886(c)(4), 42 U.S.C. § 1395ww(c)(4). Second, Congress provided for a mandatory waiver for any state meeting both the requirements of section 1886(c)(1) and an additional six requirements. Medicare § 1886(c)(5), 42 U.S.C. § 1395ww(c)(5). B. The New Jersey Hospital Reimbursement Control System New Jersey’s hospital reimbursement system was initially developed under a 1976 contract between the State Department of Health and HCFA, pursuant to the Secretary’s demonstration-project authority. In 1979, the State Department of Health adopted regulations for applying the system to all third-party payers and to all general acute-care hospitals in the State. See N.J.Admin.Code tit. 8, § 31B-3.19(a)(3); N.J.Stat.Ann. § 26:2H-1 et seq. The State thereafter obtained a demonstration-project waiver from HCFA, covering reimbursements for both inpatient and outpatient services. The New Jersey system has four salient features. First, the system is a prospective one. Rates are set on the basis of “diagnosis-related groups” (DRGs) — generally, illnesses and courses of treatment. Second, as noted above, the system applies to all third-party payers, both commercial and governmental, and to all health-care providers. Third, it covers both inpatient and outpatient services. Finally, the system reimburses hospitals for “uncompensated care” — largely care provided to indigents — by including in the DRG rate base an estimate of the cost of such care. Thus, all third-party payers under the system, including Medicare, subsidize indigent care, although such care is not normally reimbursable under Medicare. C. The Controversy Following enactment of the 1983 Amendments, HCFA determined that existing demonstration-project waivers would be withdrawn, and that states desiring continued waivers would be required to reapply under section 1886(c). The agency accordingly notified New Jersey that its current waiver would only be extended until 90 days after the promulgation of final regulations under 1886(c). Several months later, however, HCFA had a change of mind, and — although no regulations had yet been promulgated — informed the State that the waiver would be revoked at the end of 1984. Accordingly, the State submitted an application under section 1886(c)(1), (c)(4), and (c)(5); the application covered both outpatient and inpatient services. The Secretary initially rejected the application, in part on the ground that it did not provide separate treatment of inpatient and outpatient services. The Secretary took the position that although New Jersey’s demonstration-project waiver covered both inpatient and outpatient services, section 1886(c) authorized only waivers for inpatient services. She indicated, however, that she had discretionary authority to grant a waiver with respect to outpatient services, but that such a waiver could only be granted if the outpatient side of the state’s plan, considered on its own, met criteria similar to those in section 1886(c)(1) and (c)(5). While expressing disagreement with the Secretary’s interpretation as to the scope of a section 1886(c) waiver and the requirement of a bifurcated application, the State resubmitted its application in accordance with the Secretary’s expressed desires. The application indicated that the state plan, considered as a unit, would save Medicare a total of approximately $150 million during the three years of the waiver. However, this amount was a net figure— while it included a savings of approximately $207 million with respect to inpatient services, it also included a deficit with respect to outpatient services of between $30 and $55 million. The Secretary found that the State plan, insofar as it applied to inpatient services, met each of the criteria of section 1886(c)(5), and accordingly granted the waiver with respect to those services. However, she denied the State’s application with respect to outpatient services, finding — as the State conceded — that that part of the plan, considered by itself, did not meet the cost-effectiveness requirement of section 1886(c)(1)(C). New Jersey filed a complaint in the district court contending that section 1886(c)(5) required the Secretary to grant a waiver for its entire reimbursement system. The State contended that that section applied to outpatient as well as inpatient services, and that consequently the Secretary should have considered its plan as a whole in responding to its application. The court granted the State’s motion for a preliminary injunction, holding that the State had demonstrated both a likelihood of success on the merits and the probability of irreparable injury if the injunction were not granted. In holding that the State was likely to succeed on the merits, the court reasoned that because section 1886(c)(1) speaks generally of “services provided by a hospital in a State,” rather than of “inpatient” services, the statute unambiguously applies to all hospital services. The court also noted that the legislative history contains no “positive indication” that the statute was limited to inpatient services. The district court subsequently granted the State’s motion for summary judgment. The court found no disputed issues of material fact, since both parties agreed that the New Jersey system, considered as a whole, would result in a savings to Medicare, and that all of the other requirements of section 1886(c) had been met. Relying on the legal analysis contained in its opinion accompanying its preliminary injunction order, the court held that section 1886(c) entitled the State to a mandatory waiver for its entire system. On appeal, the Secretary contends that the district court erred in holding that section 1886(c)(5) provides for a mandatory waiver with respect to outpatient services. The State argues to the contrary that it applies to any state plan — including one covering outpatient services — as long as the plan, taken as a whole, meets the criteria of sections 1886(c)(1) and (c)(5). The parties agree that there exist no disputed issues of material fact, and that the only issue on review is one of statutory construction. Thus, the scope of our review is plenary. II. Our approach to interpreting the statute at issue is significantly affected by the fact that the Secretary — whose duty it is to enforce the statute — has already interpreted it. The Supreme Court has made clear that under these circumstances, the reviewing court is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. 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. If, however, the court determines Congress has not directly addressed the precise question at issue, ... the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). “[I]f the statute is silent or ambiguous with respect to the specific issue,” id. at 843, 104 S.Ct. at 2782, and the agency’s construction is reasonable, we must defer to that construction, although it may not be the only or even the most reasonable one. See also Wheeler v. Heckler, 787 F.2d 101, 104-05 (3d Cir.1986). III. A. Our first task, therefore, is to determine whether Congress has directly addressed the precise issue before us in this case. We begin with the language of the statute. It must be conceded that the State’s argument on this score has an appealing simplicity. Section 1886(c)(1) states that “[t]he Secretary may provide ... that payment with respect to services provided by a hospital in a State may be made in accordance with a hospital reimbursement control system in a State, rather than in accordance with the other provisions of this title.” 42 U.S.C. § 1395ww(c)(l). According to the State, since the statute is not by its terms restricted to inpatient services, the Secretary is without authority to read into it such a restriction. The difficulty with this approach is that the quoted provision uses the unmodified term “services” in the context of a statute whose other parts deal exclusively with inpatient services. Section 1886 is entitled “Payments to hospitals for inpatient hospital services” (emphasis added). While the title of a statute could not, of course, override clear statutory language to the contrary, the title in this case at least points to Congress’ primary area of concern. This inference is strengthened by the fact that subsections (a), (b), (d), (e), (f), and (g) of section 1886 deal by their terms solely with inpatient services. Portions of subsection 1886(c) itself also strongly suggest that it is limited to inpatient services. For example, under subpart (c)(1)(B), the state must provide “satisfactory assurances as to the equitable treatment under the system of all entities ... that pay hospitals for inpatient hospital services” (emphasis added). Similarly, under subpart (c)(1)(D), such a plan may “not preclude an eligible organization [generally, health maintenance organizations and competitive medical plans] ... from negotiating directly with hospitals with respect to the organization’s rate of payment for inpatient hospital services” (emphasis added). If, as the State contends, Congress intended waivers under subsection (c) to apply to reimbursements for outpatient services, it is far from obvious why these provisions are limited to inpatient services —why, for example, Congress would wish to permit a State plan to treat providers of outpatient services (including, perhaps, the Supplementary Medical Insurance Trust Fund) inequitably. Equally plausible, as the Secretary argues, is that Congress only intended the statute to apply to inpatient services. Further support for this view is found in the special cost-effectiveness provision of section 1886(c)(4). As noted, that section applies only to state systems with pre-exist-ing waivers. Under (c)(4), a State system is determined to be effective “on the basis of its rate of increase or inflation in inpatient hospital payments for individuals under this subchapter [i.e., Medicare], as compared to the national rate of increase or inflation for such payments.” 42 U.S.C. § 1395ww(c)(4) (emphasis added). Under the State’s interpretation of the statute, this provision could potentially require the Secretary to grant a waiver to a system that is more costly than the otherwise applicable Medicare system, if increases in outpatient costs outweighed savings on inpatient reimbursements. If, on the other hand, a waiver under that provision may only extend to inpatient services, that anomalous result could not occur. Thus, the language of the statute alone does not clearly resolve whether “services” is to be construed to mean “all services” or “inpatient services.” To the extent that we are able to reach any firm conclusion from parsing the statutory language, it is that Congress was primarily concerned with state plans to the extent that they covered inpatient services, and gave little or no thought to more ambitious state plans. We turn, then, to the legislative history. B. The legislative history of section 1886(c) reinforces the conclusion that Congress’ overriding concern was the cost of inpatient care. Beyond that, however, it reveals little more about Congress’ intent with respect to the particular issue before us than does a careful reading of the statute itself. There is certainly nothing in it evidencing a clear congressional intent that section 1886(c) extend to outpatient care. Cf. Chemical Manufacturers’ Ass’n v. Natural Resources Defense Council, 470 U.S. 116, 105 S.Ct. 1102, 1108, 84 L.Ed.2d 90 (1985) (“[W]e conclude that the statutory language does not foreclose the Agency’s view of the statute. We should defer to that view unless the legislative history or the purpose and structure of the statute clearly reveal a contrary intent on the part of Congress”; emphasis added). Indeed, we find no mention of outpatient care anywhere in the relevant history. Section 1886(c) was initially enacted in 1982 as part of a broad series of measures designed to reduce Medicare spending for inpatient costs. Those measures were adopted in section 101 of the Tax Equity and Fiscal Responsibility Act of 1982, Pub.L. No. 97-248, 96 Stat. 324, 331-36 (hereinafter referred to as TEFRA); indeed, section 101 was captioned “Payment for Inpatient Hospital Services.” That section included — in addition to the section 1886(c) waiver provision — direct limits on reimbursable costs, Medicare § 1886(a), 42 U.S.C. § 1395ww(a)(l), and a so-called target rate reimbursement system to encourage cost savings, Medicare § 1886(b), 42 U.S.C. § 1395ww(b), both by their terms limited to inpatient costs. Both the House and Senate Committee reports indicate that Congress was .motivated by concern for the financial soundness of the Hospital Insurance Trust Fund (which, as previously noted, does not cover outpatient care). See S.Rep. No. 494, 97th Cong., 2d Sess. 24, reprinted in 1982 U.S. Code Cong. & Ad.News 781, 800 (noting that “the persistently large increases in hospital costs are now threatening the financial soundness of the Hospital Insurance Trust Fund”); House Committee Print at 25 (same). No similar concern was expressed about the soundness of the Supplementary Medical Insurance Trust Fund. Section 601 of the 1983 Amendments, which adopted parts (c)(4) and (c)(5), was also concerned primarily with inpatient costs. That section — titled “Medicare Payments for Inpatient Hospital Services on the Basis of Prospective Rates” — adopted a nationwide prospective reimbursement system, limited again to inpatient services. Medicare §§ 1886(d)-(g), 42 U.S.C. §§ 1395ww(d)-(g). The legislative history of the 1983 Amendments also evidences an exclusive concern with inpatient costs. E.g., H.R.Rep. No. 25, 98th Cong., 1st Sess. 11, reprinted in 1983 U.S.Code Cong. & Ad.News 219, 228 (hereinafter cited as H.R.Rep. No. 25) (discussing long-term financial outlook for Hospital Insurance Trust Fund). The legislative history of the 1983 Amendments indicates that state cost-control systems “provide a laboratory for innovative methods of controlling health care costs,” H.R.Rep. No. 25 at 146, reprinted in 1983 U.S.Code Cong. & Ad.News at 365, and that existing state systems “have proven effective in reducing the cost of hospital care,” id. at 147, reprinted in 1983 U.S. Code Cong. & Ad.News at 366. Appellees interpret these statements to mean that Congress specifically approved of existing State plans, including New Jersey’s. We think this reading goes too far. If Congress simply wished to require the Secretary to extend all then-existing state waivers, it would not have required in part (c)(4) that those states, in order to qualify for a continued waiver, meet the five criteria in part (c)(1). And — in light of the exclusive focus in the legislative reports on inpatient costs — it is quite likely that the costs referred to were inpatient costs. We note that, as the Secretary has pointed out, the legislative reports often appear to use generic terms — such as “costs” — when referring only to inpatient costs. E.g., id. at 146, reprinted in 1983 U.S.Code Cong. & Ad.News at 365 (stating that state system must provide for “equitable treatment of payors,” although statute specifies only payors for inpatient services). Thus, we cannot infer that Congress was concerned with outpatient costs from the fact that it spoke generally of “costs” rather than “inpatient costs.” The foregoing statements in the legislative history are valuable as indicators of the policies underlying the enactment of section 1886(c) and generally support the Secretary’s position; we recognize, however, that they are not unambiguous expressions of Congress’ intent with respect to the precise issue before us. Cf. Chevron, 467 U.S. at 862, 104 S.Ct. at 2791. (“The general remarks [in the legislative history] pointed to by respondents ‘were obviously not made with this narrow issue in mind and cannot be said to demonstrate a Congressional desire....'", quoting Jewell Ridge Coal Corp. v. Mine Workers, 325 U.S. 161, 168-69, 65 S.Ct. 1063, 1067-68, 89 L.Ed. 1534 (1945)). C. In the absence of a clear expression of Congress’ intent, we must defer to the Secretary’s construction as long as it “ ‘represents a reasonable accommodation of conflicting [statutory] policies.’ ” Chevron, 467 U.S. at 845, 104 S.Ct. at 2783. Section 1886(c) appears to serve a number of purposes — in part, perhaps, mutually limiting. Undoubtedly the most significant of these was to encourage the development of State reimbursement programs, which might prove “useful models for our national system.” H.R.Rep. No. 25, at 148, reprinted in 1983 U.S.Code Cong. & Ad. News at 367. Thus, the underlying purpose was the same as that which motivated Congress to grant the Secretary power to waive normal Medicare reimbursement principles for experiments and demonstration projects in the 1967 and 1972 Amendments. Unlike the earlier provisions (which have not been repealed), section 1886(c) does not permit waivers for systems that are not demonstrably cost-effective, no matter how valuable they might be as experiments. Cf. 1972 Amendments § 222(a)(3) (indicating that “costs incurred in such experiment or project in excess of those which would otherwise be reimbursed or paid under [Medicare and Medicaid] may be reimbursed or paid to the extent that [a] waiver applies to them (with the excess being borne by the Secretary)”; emphasis added). Thus, a secondary purpose of section 1886(c) is-to insure prudent management of the Hospital Insurance Trust Fund. The statute by its terms requires that the Secretary be provided “satisfactory assurances” that this goal is met. The Secretary’s construction of section 1886(c) in this case is a reasonable means of accommodating these interests. The Secretary has indicated that only by requiring separate applications for inpatient and outpatient systems can she be satisfied that the State’s proposed system is cost-effective. In her view, [offsetting excess outpatient costs against projected inpatient savings or vice versa would be a tenuous proposition ... because such an offset would merely be based on projections. Given the uncertainty of projections, it would be imprudent to approve a State system that is designed to generate excess costs in one sector that are hoped to be offset by savings in another sector. There is a much greater assurance that the overall outcome of no excess costs will be achieved if neither the outpatient nor [the] inpatient portion of a system is designed to result in excess costs. 51 Fed.Reg. 15,491 (1986). We think that this judgment has a substantial basis in the policies underlying the statute and is a reasonable means of effectuating those policies. Although the Secretary’s construction of the statute may give States less room to experiment with different means of controlling outpatient expenditures, in light of Congress’ limited concern with those expenditures, we do not think that the trade-off effected by the Secretary is an unreasonable one. IV. The State argues, however, that deference to the Secretary is inappropriate in this case. The State suggests that the Secretary’s construction is entitled to little deference because her position has changed in the course of this dispute. This argument is unpersuasive. On the issue before us — whether section 1886(c) provides for a mandatory waiver with respect to state plans applying to outpatient services — the Secretary’s position has remained constant. Nor has the Secretary changed her view that she has discretionary authority to grant waivers with respect to outpatient services. See supra note 2. At most, HCFA has made inconsistent statements about the source of the latter authority. This inconsistency has little significance, especially because the scope of the Secretary’s discretionary authority is not before us. The case cited by the State in this regard, Securities Industry Ass’n v. Board of Governors, 468 U.S. 137, 104 S.Ct. 2979, 82 L.Ed.2d 107 (1984), is not apposite, since there is no indication that the position now espoused by the Secretary constitutes a “post hoc rationalization” of agency action by appellate counsel, rather than the considered view of the agency itself. There are several additional reasons why deference to the Secretary is especially appropriate in this case. First, the Secretary’s interpretation was roughly contemporaneous with the enactment of the statute. American Paper Inst. v. American Elec. Power Serv. Corp., 461 U.S. 402, 422, 103 S.Ct. 1921, 1932, 76 L.Ed.2d 22 (1983) (quoting Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965)). And the Secretary was an active participant in the legislative process leading to the enactment of the 1983 Amendments, including sections 1886(c)(4) and (c)(5), see S.Rep. No. 23 at 47, 98th Cong., 1st Sess., reprinted in 1983 U.S.Code Cong. & Ad. News 143, 187, as well as, of course, the many earlier developments. See Miller v. Youakim, 440 U.S. 125, 144, 99 S.Ct. 957, 968, 59 L.Ed.2d 194 (1979); Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910, 915 (3d Cir.1981). In addition, the statute is one of great complexity, and the area it regulates — the financing of health-care delivery—is one in which the agency has much expert understanding. We conclude, therefore, that the Secretary’s interpretation, applying section 1886(c) only to state plans to the extent that they cover inpatient services, is reasonable. Accordingly, we will reverse the judgment of the district court. . The federal system of prospective rate-setting, adopted in 1983 in section 1886, also uses a DRG approach, for which the New Jersey system was a prototype. . The Secretary premises her authority to grant waivers with respect to outpatient services on Medicare § 1871, 42 U.S.C. § 1395hh. See 51 Fed.Reg. 15,496 (1986) (to be codified at 42 C.F.R. § 403.321). The validity of this regulation is not before us. . Although the State’s initial application rested on § 1886(c)(4) as well as (c)(5), the State no longer relies on (c)(4), apparently because of doubt about compliance with the special cost-effectiveness test of that paragraph. . The only pertinent House legislative history from 1982 is a report drafted by the staff of the Ways and Means Committee accompanying a bill (H.R. 6878) parts of which were incorporated into TEFRA. The report (which is reprinted as an appendix to appellant’s brief, and which is hereinafter referred to as the House Committee Print) was not, however, formally approved by the Committee. House Committee Print at 1. The Senate bill did not include a State waiver provision. See H.Conf.Rep. No. 760, 97th Cong. 2d Sess. 421, reprinted in 1982 U.S.Code Cong. & Ad.News 1191, 1201. . Final regulations implementing section 1886(c) have since been promulgated. 51 Fed. Reg. 15,492 (1986) (effective May 27, 1986) (to be codified at 42 C.F.R. §§ 403.300-.322). Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_applfrom	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). MANNING v. UNITED STATES. Circuit Court of Appeals, Eighth Circuit. March 12, 1929. No. 8305. W. W. Botts, of Mexico, Mo., for appellant. Arthur A. Hapke, Asst. U. S. Atty., of St. Louis, Mo., and Louis H. Breuer, U. S. Atty., of Eolia, Mo. Before YAN YALKENBURGH and COTTERAL, Circuit Judges, and SCOTT, District Judge. YAN YALKENBURGH, Circuit Judge. Appellant, a physician, appeals from a conviction for distributing narcotics contrary to law by means of prescriptions given to addicts for the purpose of permitting them to procure drugs from any drug store and thereby to satisfy their cravings therefor; the same to be self-administered without supervision and not in the legitimate practice of his profession by appellant in the treatment of disease. Our inquiry is limited to the error assigned because of overruling a demurrer to the indictment. No testimony is brought up. The only question involved, therefore, is the validity of the indictment, which contained thirty counts. The jury found the defendant not guilty on count 9 and guilty on all other counts. The court sentenced the defendant on each of the first 8 counts to imprisonment for a period of five years in the penitentiary at Leavenworth, the terms to run concurrently. On eaeh of the last 21 counts a punishment of five years in the penitentiary was assessed, the same to run concurrently with eaeh other, but consecutively upon the sentences on the first 8 counts, making an aggregate sentence of 10 years. The first count of the indictment is typical, and, stripped of formal allegations, reads as follows: “That Thomas S. Manning, whose other or true name is to the grand jurors unknown, hereinafter ealled the defendant) late of the city of St. Louis, state of Missouri, heretofore, to wit, on the 27th day of June, A. D. 1927, at or near premises known as and numbered 3905-A Finney avenue, in the city of St. Louis, in the Eastern Division of the Eastern Judicial District of Missouri, and within the jurisdiction of this court, did then and there violate the Act of December 17, 1914, entitled “An aet to provide for the registration of, with collectors of internal revenue, and to impose a special-tax upon all persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or coca leaves, their salts, derivatives, or preparations, and for other purposes” as amended February 24, 1919 [26 USCA §§ 211, 691, et seq.], in that the said defendant then and there being a physician duly registered as such under the aforesaid acts did then and there knowingly, willfully and unlawfully sell, barter, exchange and give away to one Ella Rush a compound, manufacture and derivative of opium, to wit, thirty grains, more or less, of morphine sulphate, not in pursuance of any written order of the said Ella Rush, on a form issued in blank for that purpose by the Commissioner of. Internal Revenue of the United States, and not in good faith and in the course of his professional practice only, the said selling, bartering, exchanging and giving away being done and effected through a written order of the said Ella Rush, in the form of a prescription signed by the said defendant, said prescription being in the following words and figures, to wit: “ ‘Mrs. Ella Rush, 1207 Mo. Ave. “ ‘T. S. Manning, Physician and Surgeon “ ‘4888. “ ‘3867 Delmar Blvd. Bell Lindell 4945 Register No. 3596. St. Louis, Mo. “ ‘Hours: 7 to 9 a. m. 12 to 1 and 5 to 7 p. m., Sundays until 11 a. m. and by appointment. 3905a Finney Saturday 7 a. m. to 3 p. m. “ ‘Morph. Sulph 2/ “ ‘Sig: Use as directed. “ ‘T. S. Manning, “‘6/27/27 Finney Ave. Pharmacy. “ ‘98773 “6/28/27 “‘(18702) 3.50' “That the defendant intended that the said Ella Rush should obtain the aforesaid narcotic drugs from a druggist upon and by means of the said prescription; that the said Ella Rush did on the 28th day of June, A. D. 1927, obtain upon said prescription narcotic drugs of the amount and kind above described pursuant to said prescription; that the said Ella Rush did not then require the administration of morphine by reason of any disease, and that defendant did not sell, barter, exchange and give away in and by means of said prescription any of the aforesaid narcotic drugs for the purpose of treating any disease with which the said Ella Rush was then suffering; that the said Ella Rush was a person addicted to the habitual use of morphine and cocaine and known by the defendant to be so addicted, and that defendant did sell, barter, exchange and give away' aforesaid drugs to the said Ella Rush in and by means of said prescription because of such addiction; that the aforesaid narcotic drugs so acquired and received by the said Ella Rush were in the form in whieh such drugs are usually consumed by persons addicted to the habitual use thereof to satisfy their cravings therefor and were adapted to such consumption, and that the aforesaid narcotic drugs sold, bartered, exchanged and given to the said Ella Rush as aforesaid were not consumed or intended to be consumed by the said Ella Rush in the presence of the defendant, but all of the said drugs were put in the possession and control of the said Ella Rush with the intention on the part of the said defendant, Thomas S. Manning, that the said Ella Rush would use the same by self-administration or dispose of same in any manner she saw fit.” The contention of the appellant is that the Harrison Anti-Nareotie Act (26 USCA §§ 211, 691, et seq.) leaves entirely with the physician the responsibility as to when, under what conditions, and for what purposes he will issue a prescription for the drugs; that the act places no restriction upon his right to prescribe such drugs; that the direct control of medical practice in the states is beyond the power of the federal government. Incidentally, the constitutionality of the aet, as applied in the ease at bar, is attacked and the right of the appellant to prescribe narcotic drugs to an habitual user for the purpose of keeping him comfortable by maintaining his customary use is asserted. In this view, it was contended in the court below by demurrer, and here by assignment, that the indictment states no offense. That ■ the aet is constitutional, and that it does place restrictions upon the right of a physician to prescribe narcotic drugs, can no longer successfully be denied. United States v. Doremus, 249 U. S. 86, 39 S. Ct. 214, 63 L. Ed. 493; Nigro v. United States, 276 U. S. 332, 48 S. Ct. 388, 72 L. Ed. 600; Jin Fuey Moy v. United States, 254 U. S. 189-192, 41 S. Ct. 98 (65 L. Ed. 214); United States v. Behrman, 258 U. S. 280, 42 S. Ct. 303, 66 L. Ed. 619 ; Boyd v. United States, 271 U. S. 104, 46 S. Ct. 442, 70 L. Ed. 857; Webb v. United States, 249 U. S. 96, 39 S. Ct. 217, 63 L. Ed. 497; Boehm v. United States (C. C. A. 8) 21 F.(2d) 283, 284; Nelms v. United States (C. C. A. 9) 22 F.(2d) 79. In Jin Fuey Moy v. United States, supra, the Supreme Court said: “It is objected that the act of selling or giving away a drug and the act of issuing a prescription are so essentially different that to allege that defendant sold the drug by issuing a prescription for it amounts to a contradiction of terms, and the repugnance renders the indictment fatally' defective. The government suggests that the clause as to issuing the’ prescription may be rejected as surplusage; but we are inclined to think it enters so intimately into the description of the offense intended to be charged that it cannot be eliminated, and that unless defendant could ‘sell,’ in a criminal sense, by issuing a prescription, the indictment is bad. If ‘selling1 must be confined to a parting with one’s own property there might be difficulty. But by section 332 of the Criminal Code [18 USCA § 550], ‘whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.’ Taking this together with the clauses quoted from section 2 of the Anti-Narcotie Act [26 USCA § 696], it is easy to see, and the evidence in this case demonstrates, that one may take a principal part in a prohibited sale of an opium derivative belonging to another person by unlawfully issuing a prescription to the would-be purchaser. Hence there is no necessary repugnance between prescribing and selling, and the indictment must be sustained.” From this it appears that since it is unlawful to dispense or distribute narcotic drugs, except in accordance with the provisions of the Harrison Anti-Narcotie Act (26 USCA §§ 211, 691, et seq.), a physician, who procures the dispensing thereof through the instrumentality of a prescription not issued in the course of his bona fide professional practice as a treatment for disease takes a principal part in the prohibited sale or distribution made, even though there is no conspiracy or unlawful understanding between him and the druggist who fills the preseription, and this is true whether the prescription be directed to a specific druggist or not. In fact, all prescriptions are expected to be, and are, filled according to the desire of the purchaser at whatsoever drug store he may select. The druggist, if innocent, is protected by the prescription. Eckert v. United States (C. C. A. 8) 7 F.(2d) 257. The case of Manning v. Biddle (C. C. A.) 14 F.(2d) 518, is not in conflict with this view. There the physician was charged with aiding and abetting a druggist in the commission of an offense, where the druggist so charged had been acquitted. Here the physician is himself charged as the principal under the doctrine announced by the Supreme Court. The Behrman Case, supra, confirms the doetrine announced in the Jin Fuey Moy and Webb Cases, and this court in Boehm v. United States, and the Circuit Court of Appeals for the Ninth Circuit in Nelms v. United States, above cited, have held in conformity therewith. In the Nelms Case the indictment was in terms substantially identical with that now before us'. It will be noted that this indictment contains all the essential elements of the offense. It specifies the exact time and plaee, when and where the prescription was given, and the name of the person to whom it was issued. The prescription itself is set out in full. It is further alleged that this prescription was filled, and that the narcotic drugs were thus acquired and received by the person to whom the prescription was issued; that the appellant in thus prescribing was acting not in good faith and in the course of his professional practice for the purpose of treating any disease, but only for the purpose of enabling the person to whom the prescription was given to satisfy the cravings suffered by those addicted to the habitual use of such drugs. The crime was described with sufficient clearness to inform the defendant of the nature and cause of the accusation and enable him to plead the judgment, if any, in bar of further prosecution for the same offense. United States v. Behrman, 258 U. S. 280, 42 S. Ct. 303, 66 L. Ed. 619. It was unnecessary to state, the name of the druggist by whom the prescription was filled. If further information was needed in the preparation of his defense, this could have been procured through the instrumentality of a bill of particulars. Myers v. United States (C. C. A. 8) 15 F.(2d) 977, and cases cited. From the record before us we must assume that the evidence amply sustained the verdict, and we may infer that the offense was of an exaggerated nature. In our opinion, the indictment sufficiently charges an offense and the demurrer was properly overruled. It results that the judgment below should be and is affirmed. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_appel1_1_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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". Luther W. BORROR, Administrator of the Estate of Bonita Ann Curtician, Deceased v. SHARON STEEL COMPANY, a Corporation, Appellant. No. 14327. United States Court of Appeals Third Circuit. Argued Sept. 26, 1963. Decided Jan. 27, 1964. Bruce R. Martin, Pittsburgh, Pa., at the time of argument with Pringle, Bred-in & Martin, Pittsburgh, Pa., for appellant. James E. McLaughlin, Pittsburgh, Pa. (Dennis C. Harrington, Pittsburgh, Pa., on the brief), for appellee. Before BIGGS, Chief Judge, and KALODNER and GANEY, Circuit Judges. BIGGS, Chief Judge. Borror, named as administrator of the estate of Bonita Ann Curtician, brought suit by a single complaint under the Pennsylvania Survival Act, 20 P.S. § 320.601, and under the Pennsylvania Wrongful Death Act, 12 P.S. § 1601 et seq., to recover damages against Sharon Steel Company. The details of how Miss Curtician met her death need not be given here. It is sufficient to state for the purposes of the instant appeal that on July 20, 1960, there was an explosion at the Sharon Steel Company at Sharon, Pennsylvania, and as a consequence thereof Miss Curtician sustained injuries which resulted in her death on the same day. The complaint alleges that Sharon was negligent. Miss Curtician was survived by her mother and father. The case was tried to a jury and resulted in a judgment in favor of the estate of Miss Curtician under the Survival Act in the sum of $10,000 and in a judgment in favor of Miss Curtician’s mother and father under the Wrongful Death Act in the sum of $15,000. The judgment recovered under the Survival 'Act has not been appealed. The judgment recovered by the Curticians under the Wrongful Death Act is the subject of this appeal. In the court below the defendant, Sharon, moved for a directed verdict in its favor. The grounds of that motion are substantially the same, we believe, as those presented to this court by Sharon for a reversal of the judgment and for the dismissal of the action. It is conceded that Miss Curtician was and her parents are citizens of Pennsylvania and that Sharon is a corporation of the Commonwealth, and further that Borror, the plaintiff, is a citizen of West Virginia, appointed administrator of Miss Curtician’s estate by the Register of Wills of Mercer County, Pennsylvania, and that he brought the Wrongful Death Act suit at bar as administrator. There is no contention that the suit at bar is a collusive one prohibited by Section 1359, 28 U.S.C., as was the contention in Corabi v. Auto Racing, Inc., 264 F.2d 784, 75 A.L.R.2d 711 (3 Cir. 1959), but the standing of Borror to maintain the suit has been brought into issue here as it was in Jaffe v. Philadelphia and Western R. Co., 3 Cir., 180 F.2d 1010 (1950), in Fallat v. Gouran, 3 Cir., 220 F.2d 325 (1955), in Corabi, supra, and to some extent at least in Berkowitz v. Philadelphia Chewing Gum Corporation, 3 Cir., 303 F.2d 585 (1962). We have difficulty in grasping Sharon’s theory of defense. The “Statement of Question Involved” in its brief states the following, which we believe embodies the substance of Sharon’s position: “Where, as here, the Pennsylvania Wrongful Death Acts vest the cause of action for minor decedent’s death in minor’s parents, who were both Pennsylvania citizens at the time suit was brought, and defendant was also a citizen of Pennsylvania; and, where Pennsylvania Rule of Civil Procedure Rule 2202(b) gave the parents the right to sue for said wrongful death in their own names at the time this suit was brought; does the Pennsylvania Rule of Civil Procedure which permits wrongful death actions to be brought by the administrator on behalf of the parents make this a case or controversy between citizens of different states merely because the parents elected not to sue in their own names, but caused suit to be brought in the name of a citizen of West Virginia who has been appointed administrator of the minor’s estate?” Sharon’s answer to its own question is “no.” I. 12 P.S. § 1602 provides that under the circumstances here present the parents of Miss Curtician are entitled to the recovery. Compare 12 P.S. § 1601 which provides that if suit under the Wrongful Death Act is not brought by the survivor’s spouse, the suit may be brought by the administrator. Rule 2201, Pa.Rules of Civil Procedure, 12 P.S.Appendix, defining the term “personal representative,” states that “ ‘personal representative’ means the executor or administrator of the estate of a decedent duly qualified by law to bring actions within this Commonwealth.” Rule 2202 provides: “(a) Except as otherwise provided in clause (b) of this rule, an action for wrongful death shall be brought only by the personal representative of the decedent for the benefit of those persons entitled by law to recover damages for such wrongful death. * * * (b) If no action for wrongful death has been brought within six months after the death of the decedent, the action may be brought by the personal representative or by any person entitled by law to recover damages in such action as trustee ad litem on behalf of all persons entitled to share in the damages.” Rule 2203 providing procedure to remove a plaintiff in a wrongful death action states: “(a) Any person entitled by law to recover damages in an action for wrongful death may petition the court in which an action for such wrongful death is pending to remove the plaintiff and to substitute as a new plaintiff any person entitled by law to recover damages in the action or a personal representative of the decedent.” Rule 2203(b) states: “After hearing, of which due notice shall be given to the plaintiff in the action and to all persons entitled by law to recover damages, the court may remove the plaintiff and order the substitution prayed for, if it deems the same advisable.” A single note, appended to the text of the rule, 12 P.S.Appendix, p. 490, states: “This rule has the effect of making the plaintiff in the wrongful death action accountable to the court in which the action is brought for his conduct therein. In addition, it permits the parties beneficially interested in the damages recovered in the action to exercise some supervisory control over the conduct of the action by enabling them to obtain the assistance of the court if the action is not properly conducted on their behalf.” Rule 2205 provides: “When an action for wrongful death has been instituted, the plaintiff shall give notice, by registered mail or in such other manner as the court shall direct by general rule or special order, to each person entitled by law to recover damages in the action, that an action has been instituted for wrongful death, naming the decedent and stating the court, term and number of the action.” Rule 2206 provides in part: “(b) When as the result of a verdict, judgment, compromise, settlement or otherwise it has been determined that a sum of money is due the plaintiff in an action for wrongful death, the court, upon petition of any party in interest, shall make an order designating the persons entitled to share in the damages recovered and the proportionate share of the net proceeds to which each is entitled. * * * ” “(d) When an order designating the persons entitled to share in the damages has been entered, the defendant may pay the amount due * * * to the plaintiff who shall hold the money as trustee for the persons designated in the order and shall mark the action discontinued or the judgment satisfied, as the case may be.” It should be noted that the Rules Committee’s “Note” to subsection (d) states that the rule in effect “eliminates the unsatisfactory rule of the prior law which permitted the nominal plaintiff in the action to receive the entire proceeds of the litigation, even though such person had only a fractional or no interest in such proceeds, without requiring such nominal plaintiff to give any security or to account in any way therefor.” It will be observed that the plaintiff is said to hold the proceeds of the suit as a “trustee.” The Pennsylvania Rules of Civil Procedure were authorized by the Act of June 21, 1937, as amended, 17 P.S. § 61. The Act provides that the rules promulgated pursuant thereto “shall neither abridge, enlarge nor modify the substantive rights of any litigant nor the jurisdiction of any of the said courts * Relying largely on the statute quoted, the gist of Sharon’s position appears to be that the administrator, Borror, is not a real party in interest but at best a kind of next friend or guardian ad litem, in short, a kind of very nominal plaintiff, and that although he has a procedural standing to maintain the suit at bar, the-controversy is not between him and Sharon but between Sharon and Miss Curti-cian’s parents, who are the real parties in interest, and that there is no justiciable controversy between citizens of different states in the case at bar within the meaning of Section 1332, Title 28 U.S.C. But the use of such a term as “nominal” can lead to much difficulty because Rule 2201 defines the “personal representative” as meaning an executor or administrator of the estate of a decedent and that personal representative is undoubtedly qualified by law to bring such an action as that at bar within the Commonwealth of Pennsylvania. He is the master of the litigation. Once he has started it he is compelled to account for his conduct and may be removed for good cause shown. He may oppose his own removal since it is required that he be given notice of any attempt to remove him. See Rule 2203(b) quoted above. He prosecutes the action for named beneficiaries. He holds the proceeds of the suit in trust for them. He is the one who under the law must mark the action discontinued in case of settlement. His status is not that of a mere guardian ad litem or a next friend for he has many of the attributes of a true trustee, one who, while having legal title to property and choses in action, deals with them for the benefit of his cestuis que trustents. The purpose of the Pennsylvania Rules of Procedure quoted above seems to be plain, viz., the administrator of the estate of the deceased individual, a statutory officer who is active in collecting the assets and satisfying the obligations of the estate, was deemed to be a person who when brought into legal being could also aptly interest himself in pursuing a cause of action for wrongful death for the benefit of those entitled thereto who frequently might be the beneficiaries of the estate of the deceased. In our opinion the effect of the Pennsylvania law, though not •creating substantive rights, does give a plaintiff such as Borror in a Pennsylvania wrongful death action a procedural standing which is so closely analogous to that of a trustee that he should be treated as if he were one as a matter of law and should be given a substantially similar standing in maintaining a suit such as that at bar. There is a justiciable controversy between Borror, the administrator of Miss Curtician’s estate, the plaintiff in the wrongful death suit, and Sharon within the purview of Article III, Section 2 of the Constitution of the United States, and there are adverse interests in litigation subject to adjudication. Coff-man v. Breeze Corporations, 323 U.S. 316, 324, 65 S.Ct. 298, 89 L.Ed. 264 (1945); Muskrat v. United States, 219 U.S. 346, 357, 31 S.Ct. 250, 55 L.Ed. 246 (1911). Cf. United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947). Specifically, however, Borror has been named an “administrator.” We think it may not be putting too finely drawn a surmise on the situation presented at bar to suggest that the draftsmen of the Pennsylvania Procedural Rules provided that the representative of the beneficiaries in a wrongful death action could be denominated an “administi’ator” to the end that Rule 17(a) of the Federal Rules of Civil Procedure might be employed to maintain a suit such as that at bar in a court of the United States. In any event we can see no reason, Sharon’s contentions to the contrary notwithstanding, why we should look behind the plain language as well as the implications of the Pennsylvania Procedural Rules to hold that Borror is not such an “administrator” as to lie within the purview of Rule 17 (a) of the Federal Rules of Civil Procedure. We note that the Court of Appeals for the Eighth Circuit in Minnehaha County, S. D. v. Kelley, 150 F.2d 356, 358-359 (1945), construing South Dakota’s wrongful death statute, South Dakota Code 37.2203, which required the action to be brought in the name of the executor or administrator of the decedent for the benefit of the surviving spouse, children, or if none for the parents or next of kin, arrived at the conclusion that the administrator could maintain the action and that his citizenship created diversity. But cf. Martineau v. City of St. Paul, 172 F.2d 777 (8 Cir. 1949). Although the South Dakota statute requires that the action be brought in the administrator’s or executor’s name, the Pennsylvania statutes and rules of practice here applicable, seem otherwise substantially indistinguishable. The Eighth Circuit Court of Appeals cited Mecom v. Fitz-simmons Drilling Co., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233 (1931), and Rule 17(a), and treated the term “administrator” as used in the federal rule as the equivalent of an administrator appointed to collect the assets of an estate and satisfy its obligations. In McCoy v. Blakely, 217 F.2d 227 (8 Cir. 1954), the court pursued substantially the same course in construing a Nebraska statute, Neb.R.R.S. 30-810 (1943). It is true that that statute designated the administrator as the only person who could bring the wrongful death action but it should be observed that the Nebraska statute is similar to the Pennsylvania statutes and rules of practice in that the recovery received from the action goes directly to the beneficiaries and does not become a part of the general estate or subject to creditors’ claims. In Loegering v. County of Todd, 185 F.Supp. 134 (1960), the United States District Court for the District of Minnesota had before it the Minnesota wrongful death statute. Prior to 1951 this act had provided for the bringing of suits by the executor or administrator of the estate. See 37 Minn.Stat.Ann. § 573.02 (1947). The court held that under that statute the executor was the only one who could properly bring the action as plaintiff and “ [a]t least to some extent, he was the real party in interest.” The court went on to say, “It appears that the Trustee under the amended wrongful death statute, 37 Minn.Stat.Ann. § 573.02 (Supp.1959), occupies a comparable position * * * and that the purpose of the 1951 amendment was mainly to permit the appointment of a representative by the District Court in which the wrongful death action is instituted, and thus to obviate the necessity of requiring the qualification of an administrator or executor in, the Probate Court. As the Trustee appointed to bring the wrongful death action, the plaintiff here is in the same category as the special administrator in Minnehaha County v. Kelley, supra [150 F.2d 356]. * * ” The Court of Appeals for the Eighth Circuit held in County of Todd, Minn. v. Loegering, 297 F.2d 470 (1961), that the Minnesota act as amended constituted the plaintiff a “trustee of an express trust * * ” and that the trustee was the real party in interest within the purview of Rule 17 (a) and therefore she was entitled to maintain the suit. The fact that the plaintiff was the only one who could bring the suit seems to us to be of no substantial legal significance. In Grady v. Irvine, 254 F.2d 224, 226 (4 Cir. 1958), a citizen of Maryland sued a citizen of Virginia to recover damages for personal injuries but thereafter died. A citizen of Virginia, the duly appointed administrator, was substituted as plaintiff and the complaint was amended to convert the action into one for wrongful death under §§ 8-628.1, 8-633, and 8-634 of the Code of Virginia, 1950. The statute creates a new right of action and recovery is not for the benefit of the dead person’s estate but goes to beneficiaries named in the statute. The Court of Appeals for the Fourth Circuit stated: “It is settled that where a personal representative initially files an action for wrongful death, it is the residence of the representative, not that of his decedent, which is relevant in the resolution, for purposes of federal jurisdiction, of the question of diversity of citizenship”, citing Mecom v. Fitzsimmons Drilling Co., supra. The order of the court below dismissing the suit for want of federal jurisdiction was affirmed. This case, of course, represents the obverse side of the coin the face of which we have been examining. In Meehan v. Central Railroad of New Jersey, 181 F.Supp. 594, (D.C.N.Y.1960), it was contended that the plaintiff was not the real party in interest but that he was “only a special statutory trustee” and that it was necessary to look to the real parties, the beneficiaries, who were citizens of New Jersey and hence there was no diversity. N.J.S.A. 2A:31-2 provides “Every action commenced under this chapter shall be brought in the name of an administrator ad prosequendum of the decedent for whose death damages are sought, except where decedent dies testate and his will is probated, in which event the executor named in the will and qualifying, or the administrator with the will annexed, as the case may be, shall bring the action.” The United States District Court pointed out that in Mee-han, supra, 181 F.Supp. at 603-604, the New Jersey courts have held that “such an administrator ad prosequendum ‘is but a nominal representative to bring and prosecute the action,’ ” and “a mere trustee to bring and conduct the action” but nonetheless that the terms “real party in interest” and “nominal party” have been the subject of conflict among the circuits and elected to follow the rule of this circuit stating that “the ‘real party in interest’ test is not applied to determine diversity but the courts look instead to capacity to bring and maintain the suit”, citing, inter alia, Mecom v. Fitzsimmons Drilling Co. and Corabi v. Auto Racing, Inc., supra. The Court of Appeals of the Eighth Circuit has treated the term “administrator” as one of art and as giving a statutory representative standing to maintain suit under Rule 17(a), Fed.R.Civ.Proc., as an “administrator” within the purview of that rule. In the Loegering case, the courts treated the representative bringing the wrongful death action as the trustee of “an express trust.” Though the cases just cited are distinguishable on their precise facts from those of the case at bar, nonetheless they supply a useful analogy and point to the direction in which we think we should go. For the reasons stated we conclude that Borror has the capacity to sue. Since his citizenship is diverse from that of Sharon’s he can maintain the suit at bar under Rule 17 (a). II. The problem, however, may be approached from another and perhaps simpler angle. First, we state that we can perceive no reason why Sharon lays such great emphasis on the fact that the representative who may maintain- the wrongful death action is not expressly required by law to do so. No one, whether it be a representative suing in the second six months, or the surviving spouse or a parent or parents suing within the twelve months period, is expressly required by the law of Pennsylvania to maintain any action for wrongful death. We regard this fact as only one of the indicia to be considered in respect to ascertaining Borror’s standing on this aspect of the case-. It should be pointed out that once the suit has been brought the plaintiff must pursue it or he may be removed for cause. Second, there is a justiciable controversy in the constitutional sense between the representative who brings the suit, here the administrator, and the defendant, Sharon. Third, we think it is clearly demonstrable, Rule 17(a) aside, that Borror has the capacity to maintain the suit under Rule 17(b). Rule 17(b) provides that the capacity of an individual, other than one acting in a representative capacity, to sue or to be sued shall be determined by the law of his domicile. The rule states how the capacity of a corporation to sue or be sued shall be determined and then provides : “In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held * * If the rule be construed literally we must look to the law of the Commonwealth of Pennsylvania. Under that literal construction it cannot be successfully asserted that Borror has not the capacity to sue under the law of Pennsylvania. Rule 2201, Pennsylvania Rules of Civil Procedure, as we have said, defines the personal representative as the “administrator.” Rule 2202(b) states that if the action for wrongful death has not been brought within six months after the death of the decedent, it may be brought by the personal representative. Borror has brought the suit as administrator. This, in our opinion, is the end of this phase of the case for in Fallat v. Gouran, supra 220 F.2d at 327, we made plain our ruling that the issue was whether or not the representative had the capacity to sue. Here again, as in Fallat, we do not have to resolve a conflict between state and federal law for under either Borror has the capacity to maintain the suit at bar. It should be noted, moreover, that even under the strictest application of the Conformity Act, 17 Stat. 196, as it was originally conceived to be applicable, the requirements of the law of Pennsylvania have been met. See Fallat, supra 220 F.2d at 328. In so stating we wish to make it plain that we do not in any way alter or change the position taken by us in Fallat, supra 220 F.2d at 327-329. We hold, for the reasons stated, that since Borror has the capacity to sue and since his citizenship is diverse from that of Sharon’s, he may maintain the suit at bar. III. We conclude that the jurisdiction of the court below can also be sustained on a theory of pendent jurisdiction. Sharon concedes, as it must, that the court below had jurisdiction of the survival action. See 20 P.S. § 320.601. Rule 213(e) of the Pennsylvania Rules of Civil Procedure 12 P.S.Appendix, provides: “A cause of action for the wrongful death of a decedent and a cause of action for his injuries which survives his death may be enforced in one action but if independent actions are commenced they shall be consolidated for trial. “(1) If independent actions are commenced or are pending in the same court, the court, on its own motion or the motion of any party, shall order the actions consolidated for trial. “(2) If independent actions are commenced in different courts, the court in which the second action was commenced, on its own motion or the motion of any party, shall order the action transferred to the court in which the first action was commenced. “(3) If an action is commenced to enforce one cause of action, the court, on its own motion or the motion of any party, may stay the action until an action is commenced to enforce the other cause of action and is consolidated therewith or until the commencement of such second action is barred by the applicable statute of limitation.” (Emphasis supplied.) It is obvious from the foregoing that under Pennsylvania practice a wrongful death action and a survival action may be enforced in a “single action” as that phrase is used in the Pennsylvania rule. The two suits are complementary under the law of Pennsylvania. The plaintiff and the defendant are the same in both causes. The tort relied on is the same in both. The operative facts which give rise to the two suits are identical in each. The wrongful death action may be considered ancillary or pendent to the survival action, or the latter pendent to the former. Such a concept seems clearly within the contemplation of Pennsylvania practice. Such a course saves the time of jurors, of witnesses, of the parties, and of the judges, and prevents tortfeasors from being mulcted of damages. The complaint states: “Third: Jurisdiction * * * is conferred by virtue of diversity of the citizenship of the various parties and further by reason of the fact that the amount in controversy exceeds Ten Thousand * * * Dollars, exclusive of interest and costs.”; “Fourth: The within action is brought under and by virtue of the Death Acts and Survival Statutes of the Commonwealth of Pennsylvania for and on behalf of George Curtician, father and Kathryn Curtician, mother of the plaintiff’s decedent.”, and “Eighth: The within action is brought to recover medical and funeral expenses, future loss of earnings and such amounts of money as plaintiff’s decedent would in her expected lifetime contribute to those persons entitled to share in the estate of the said minor decedent.” The ad damnum, clause recites: “Wherefore plaintiff brings this action to recover judgment, verdict and costs, all in excess of Ten Thousand * * * Dollars.” It will be noted that the plaintiff in his complaint treats the two causes of action, wrongful death action and survival action, as if they were a single cause of action in strict accordance with the first paragraph of Rule 213 (e). He names the two statutes, Wrongful Death and Survival Acts, as if they created one action giving rights arising out of a single state of operative facts, as indeed they do. See paragraphs “Third”, “Fourth”, and “Eighth”, and the ad damnum clause, quoted above. It is clear, of course, that a rule cannot make two causes of action exist where there was only one before or compact two causes of action into one, or indeed create a cause of action. It is manifest also, as we have endeavored to make plain, that the Pennsylvania Rules of Civil Procedure do not create or change substantive rights. See 17 P.S. § 61 quoted above in pertinent part. We make no assertion to the contrary. In respect to the Wrongful Death Act and the Survival Act creating separate causes of action, the law of Pennsylvania appears to be clear. See for example Curtis v. A. Garcia Y Cia, Ltd., 241 F.2d 30 (3 Cir. 1957), and Arny v. Philadelphia Transportation Co., 163 F.Supp. 953 (D.C.Pa.1958), appeal dismissed on the ground that there was no appealable final judgment, 266 F.2d 869 (3 Cir. 1959). Wrongful death and survival actions are separate actions but nonetheless they are cumulative and not alternative, and the two actions may not overlap or result in a duplication of damages, thereby compelling the tortfeasor to pay more than the maximum damages caused byhis negligent act. These principles are so well established as to need but small citation of authority. The trial judge must charge the jury in accordance with these principles as he did in effect here. See Suders v. Campbell, 73 F.Supp. 112 (D.C. Pa.1947), and Stafford v. Roadway Transit Co., 70 F.Supp. 555 (D.C.Pa. 1947), motion refused D.C., 73 F.Supp. 458, affirmed in pertinent part and reversed in part on other grounds, 165 F.2d 920 (3 Cir. 1948). It would appear therefore-that a wrongful death action and a survival action, both being statutory creations, and the right to damages thereunder being parts of the whole substantive rights created by the respective statutes, the two statutes together have created a kind of legal hybrid, Siamese twins of the Pennsylvania law, joined together by the nexus of damages. In this respect a recovery under one statute in effect sets up the equivalent of what may justly be termed a compulsory counterclaim of the kind recognized under Rule 13(a) of the Federal Rules of Civil Procedure, in respect to recovery under the other statute, when both the wrongful death action and the survival action are brought in a single suit in a United States court. True, the case at bar is not like Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933), where the assertion of a substantial federal cause of action sustained the jurisdiction of the court in respect to a non-federal cause, or like Taussig v. Wellington Fund, Inc., 313 F.2d 472, (3 Cir. 1963), where it was asserted that a federal right derived from the Investment Company Act of 1940, 54 Stat. 789, 15 U.S.C. § 80a-l et seq., would support a claim of violation of the common law of unfair competition. In Taussig Judge Hastie said, id. 313 F.2d at 475: “Decision on this jurisdictional point is simplified in this case by the fact that the relief sought is the same on both legal grounds. Moreover, this ease does not involve the often vexatious question whether the factual basis for federal statutory relief is substantially different from the factual basis of the asserted common-law right or, as the issue is often stated, whether the suit presents a single cause of action. Here, it is clear that essentially the same facts are relevant whatever the liability-creating law may be. The one issue requiring discussion is whether the asserted federal statutory claim is substantial enough to justify the adjudication of the coupled common-law claim. In other words, the debatable matter is whether federal question jurisdiction is established as a basis for ancillary jurisdiction. “The leading cases on pendent jurisdiction hold that an actual right to relief under some federal statute need not be established to justify adjudication of the merits of a coupled common-law claim. Hurn v. Oursler, 1933, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148; Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 1938, 305 U.S. 315, 59 S.Ct. 191, 83 L.Ed. 195. The common-law claim must be dismissed only if the coupled federal contention is ‘plainly unsubstantial either because obviously without merit, or “because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.” ’ ” Compare Raybould v. Mancini-Fattore Company, 186 F.Supp. 235 (D.C.Mich.1960). Cf. Sobel v. National Fruit Product Co., 213 F.Supp. 564 (D.C.Pa.1962). We think that both Hurn v. Oursler and Taussig supply a useful analogy in deciding this aspect of the case at bar. True it is that here the survival action is not federal but is based on diversity and to apply the Hurn v. Oursler principle of pendency where diversity of citizenship rather than a federal question is the basis of jurisdiction is an extension, but one which we think is desirable and should be countenanced by law. Therefore, apart from our holdings under “I” and “II” supra, we conclude the jurisdiction of the plaintiff’s suit based on the Pennsylvania Wrongful Death Act may be sustained on this ground. The judgment will be affirmed. . We assume that Borror was appointed administrator pursuant to 20 P.S. § 320.-301 and § 320.305(b) (5). This point lías not been briefed or referred to by the parties. . 12 P.S. § 1602 provides as follows: “The persons entitled to recover damages for any injuries causing death shall be the husband, widow, children, or parents of the deceased, and no other relatives; and that such husband, widow, children, or parents of the deceased shall be entitled to recover, whether he, she, or they be citizens or residents of the Commonwealth of Pennsylvania, or citizens or residents of any other state or place subject to the jurisdiction of the United States, or of any foreign country, or subjects of any foreign potentate; and the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy, and that without liability to creditors under the laws of this Commonwealth. If none of the above relatives are left to survive the decedent, then the personal representative shall be entitled to recover damages for reasonable hospital, nursing, medical, funeral expenses, and expenses of administration necessitated by reason of injuries causing death.” . 12 P.S. § 1601 provides as follows: “Whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of any such deceased, or if there be nb widow, the personal representatives may maintain an action for and recover damages for the death thus occasioned.” . The courts referred to were the Court of Common Pleas, Quarter Sessions, the County Court in Allegheny County, and the Municipal Court in Philadelphia. The act expressly excludes from its application the Orphan’s Court, the tribunals which handle the administration of the estates and the functioning of personal representatives as such. . The statute is as follows: “Subdivision 1. When death is caused by the wrongful act or omission of any person or corporation, the trustee appointed as provided in subdivision 2 may maintain an action therefor if the decedent might have maintained an action, had he lived, for an injury caused by such wrongful act or omission. The action may be commenced within three years after the act or omission. The recovery in such action is such an amount as the jury deems fair and just in reference to the pecuniary loss resulting from such death, shall not exceed $25,000, and shall be for the exclusive benefit of the surviving spouse and next of kin, proportionate to the pecuniary loss severally suffered by the death. The court then determines the proportionate pecuniary loss of the persons entitled to the recovery and orders distribution accordingly. Funeral expenses and any demand for the support of the decedent, other than old age assistance, allowed by the court having jurisdiction of the action, are first deducted and paid. “If an action for such injury was commenced by the decedent and not finally'determined during his life, it may be continued by the trustee for recovery of such damages for the exclusive benefit of the surviving spouse and next of kin, proportionate to the pecuniary loss severally suffered by the death. The court on motion shall make an order allowing such continuance and directing pleadings to be made and issues framed as in actions begun under this section. “Subd. 2. Upon written petition by the surviving spouse or one of the next of kin, the court having jurisdiction of an action falling within the provisions of subdivision 1, shall appoint a suitable and competent person as trustee to commence or continue such action and obtain recovery of damages therein. The trustee, before commencing his duties shall file his consent and oath. Before the trustee shall receive any money, he shall file a bond as security therefor in such form and with such sureties as the court may require. “Subd. 3. This act shall not apply to any death or cause of action arising prior to its enactment, nor to any action or proceeding now pending in any court of the State of Minnesota. As amended Laws 1951, c. 697, § 1; Laws 1955, c. 407, § 1; Laws 1957, c. 712, § 1.” . The trial judge stated at the beginning of his charge: “Members of the jury, it is now your responsibility to decide from the evidence in this case whether the plaintiff is entitled to compensation from the defendant for damages alleged to have been sustained 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_numappel	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of 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. J. C. PENNEY COMPANY, Inc., Appellant, v. D. D. JONES TRANSFER & WAREHOUSE COMPANY, Inc., Appellee. No. 12799. United States Court of Appeals Fourth Circuit. Argued Jan. 8, 1969. Decided March 26, 1969. Edward R. Baird, Norfolk, Va., for appellant. Marshall T. Bohannon, Jr., Norfolk, Va. (Herbert & Bohannon, Norfolk, Va., on brief), for appellee. Before HAYNSWORTH, Chief Judge, and BRYAN and BUTZNER, Circuit Judges. BUTZNER, Circuit Judge: J. C. Penney Company, Inc., stored goods in a warehouse operated by D. D. Jones Transfer & Warehouse, Inc., under a contract that provided: “All property received in storage will be held at owner’s risk or loss * * * from * * * fire, or any other cause beyond our [Jones’] control * * Over Penney’s objection, the district judge held that this clause placed on Penney the burden of going forward with the evidence and of ultimately proving Jones was negligent in either causing, or failing to extinguish, a fire that destroyed the goods. In reaching this conclusion, the judge rejected Penney’s contention that the burden was on Jones to show that the loss was not due to Jones’ negligence. Since the cause of the fire could not be definitely ascertained, assignment of the burden of proof was crucial. We believe the district judge correctly interpreted the law of Virginia applicable to this diversity action, and we affirm the judgment for Jones entered on the jury’s verdict. The district judge concluded that this case is governed by Revenue Aero Club, Inc. v. Alexandria Airport, Inc., 192 Va. 231, 64 S.E.2d 671 (1951). There the owner of an airplane agreed that the airport, which undertook to repair the plane, would not be responsible for damage caused “by fire, theft or loss of any kind beyond [the airport’s] control.” After the plane was destroyed by fire, the owner sued, alleging both breach of contract and negligence. At the trial the owner proved delivery to the airport and the destruction of the plane, but not the cause of the fire. The trial court held this evidence insufficient to establish liability and entered judgment for the airport. In affirming, the Supreme Court of Appeals reiterated Virginia’s well-established rule that when the owner sues on an ordinary bailment contract he makes out a prima facie case by establishing delivery of his property and the bailee’s failure to return it. The bailee may escape liability only by showing the property was destroyed without his fault. But, the Court continued, the agreement that the airport would not be responsible for loss of any kind beyond its control made the general rule of bailments inapplicable. While the agreement did not exonerate the airport from its own negligence, it placed upon the owner the burden of going forward with the evidence and ultimately proving the airport’s fault. Although Revenue Aero dealt with the liability of a bailee who was a mechanic, its rules govern bailments in general and apply to warehousemen. In determining the liability of warehouse-men, the Supreme Court of Appeals has drawn generously on the law of bailments developed in cases involving carriers, mechanics, stevedores, and lawyers. And it has expressly held that the common law, and not statutes dealing with ware-housemen, apportions the burden of proof in warehouse bailment controversies. Canty v. Wyatt Storage Corp., 208 Va. 161, 156 S.E.2d 582, 584 (1967) ; John Nix & Co. v. Herbert, 149 Va. 131, 140 S. E. 121, 123 (1927). The “owner’s risk” clause found in the case before us and in Revenue Aero are similar. Consequently, Revenue Aero is decisive, and the district judge correctly placed the burden of proving negligence on Penney. Nor is the “owner’s risk” clause invalidated by Virginia’s Warehouse Receipts Act. Penney suggests that § 61-6 of the Act, which forbids a warehouseman from inserting in his receipt any terms and conditions contrary to the Act, must be read along with § 61-11, which places upon a warehouseman the burden of establishing the existence of a lawful excuse for his failure to return property left in his care. Here, however, § 61-6 is not applicable. Penney used Jones’ warehouse for a number of years, but Jones never issued warehouse receipts to Penney. Instead, Jones issued, and Penney accepted, unloading reports that contained the “owner’s risk” clause. The reports did not meet the requirements for receipts found in § 61-5 of the Act. Missing were the following essential terms: the location of the warehouse where the goods were stored, a statement indicating whether the goods would be delivered to the bearer or to a specified person, the rate of the storage charges, and the signature of the warehouseman. Absence of these terms reveals the parties did not intend to deal through warehouse receipts. Cf. Graves v. Garvin, 272 F.2d 924, 929 (4th Cir. 1959). And nothing in the Act required them to do so. We conclude, therefore, that Jones and Penney were free to fashion their own contract for the storage of goods and that the “owner’s risk” clause was valid. The judgment is affirmed. . This is the rule upon which Penney relies. It was most recently applied in Canty v. Wyatt Storage Corp., 208 Va. 161, 156 S.E.2d 582 (1967). There the Court entered judgment for the owners of property who had proved only delivery to a warehouseman and destruction by fire. The cause of the fire was not shown. The Court pointed out that the effect of the rule was not to shift the ultimate burden of proof from the owner, but merely to shift to the warehouseman the burden of going forward with evidence to prove that the loss was not due to his failure to exercise due care. See also Miller v. Tomlinson, 194 Va. 367, 73 S.E.2d 378 (1952) (garage) ; Glenn v. Haynes, 192 Va. 574, 66 S.E.2d 509, 26 A.L.R.2d 1334 (1951) (attorney) ; John Nix & Co. v. Herbert, 149 Va. 131, 140 S.E. 121, 55 A.L.R. 1098 (1927) (warehouseman.) . With respect to the negligence count in Revenue Aero, the Court held that the burden of proof was also on the owner and that loss by fire from an unexplained origin created no presumption of negligence. Accord, Marsh v. Pennsylvania R.R. Co., 159 Va. 694, 167 S.E. 274 (1933). . Va.Code Ann. §§ 61-1 to -58 (1950), repealed by Acts 1968, c. 69. The Act was superseded by the Uniform Commercial Code. Va.Code Ann. §§ 8.7-101 to 8.7-603 (1965). The loss in this ease occurred, however, before January 1, 1966, when the Uniform Commercial Code became effective. Va.Code Ann. § 8.10-101 (1965). Question: What is the total number of appellants in the case? Answer with a number. Answer:

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