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sc_partywinning	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. UNITED STATES v. W. T. GRANT CO. et al. No. 532. Argued April 9, 1953. Decided May 25, 1953. Victor H. Kramer argued the cause for the United States. With him on the brief were Acting Solicitor General Stern, Acting Assistant Attorney General Hodges and Daniel M. Friedman. Eustace Seligman argued the cause for Hancock et al., appellees. With him on the brief was Howard T. Milman. Abe Fortas argued the cause for the Kroger Company, appellee. With him on the brief was Norman Diamond. Samuel J. Silverman was on the Statement Opposing Jurisdiction and Motion to Dismiss or Affirm. Harry H. Wiggins and Harman Hawkins submitted on brief for S. H. Kress & Co., appellee. Mr. Justice Clark delivered the opinion of the Court. For the first time since the enactment of the Clayton Act in 1914 the Court is called upon to consider § 8’s prohibitions against interlocking corporate directorates. The Government appeals from judgments dismissing civil actions brought against Hancock and three pairs of corporations which he served as a director, W. T. Grant Co. and S. H. Kress & Co., Sears Roebuck & Co. and Bond Stores, Inc., and Kroger Co. and Jewel Tea Co., Inc. Alleging that the size and competitive relationship of each set of companies brought the interlocks within the reach of § 8, the complaints asked the court to order the particular interlocks terminated and to enjoin future violations of § 8 by the individual and corporate defendants. Soon after the complaints were filed, Hancock resigned from the boards of Kress, Kroger and Bond. Disclosing the resignations by affidavit, all of the defendants then moved to dismiss the actions as moot. Treated as motions for summary judgment, they were granted by the District Judge. He concluded that there is not “the slightest threat that the defendants will attempt any future activity in violation of Section 8 [if they have violated it already] . . . .” 112 F. Supp. 336, 338. The Government brought this direct appeal under § 2 of the Expediting Act, 32 Stat. 823, as amended, 62 Stat. 989, 15 U. S. C. (Supp. V) § 29, contending that the cases were not rendered moot by Hancock’s resignations and that it was an abuse of discretion for the trial court to refuse any injunctive relief. Appellees suggest, without arguing the point in extenso, that the judgment should be affirmed because § 11 of the Clayton Act vests exclusive § 8 enforcement powers in the Federal Trade Commission. Section 11 does authorize the Commission to enforce § 8. But any inference that administrative jurisdiction was intended to be exclusive falls before the plain words of § 15: “The several district courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of this Act . . . 38 Stat. 736, 15 U. S. C. § 25. And the cases have spoken of Congress’ design to provide a scheme of dual enforcement for the Clayton Act. United States Alkali Export Assn. v. United States, 325 U. S. 196, 208 (1945); Standard Oil Co. v. United States, 337 U. S. 293, 310, note 13 (1949). Appellees’ failure to press the point denotes its merits. The District Court properly entertained the suits. Both sides agree to the abstract proposition that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot. United States v. Trans-Missouri Freight Assn., 166 U. S. 290 (1897); Walling v. Helmerich & Payne, Inc., 323 U. S. 37 (1944); Hecht Co. v. Bowles, 321 U. S. 321 (1944). A controversy may remain to be settled in such circumstances, United States v. Aluminum Co. of America, 148 F. 2d 416, 448 (1945), e. g., a dispute over the legality of the challenged practices. Walling v. Helmerich & Payne, Inc., supra; Carpenters Union v. Labor Board, 341 U. S. 707, 715 (1951). The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion. United States v. Trans-Missouri Freight Assn., supra, at 309, 310. For to say that the case has become moot means that the defendant is entitled to a dismissal as a matter of right, Labor Board v. General Motors Corp., 179 F. 2d 221 (1950). The courts have rightly refused to grant defendants such a powerful weapon against public law enforcement. The case may nevertheless be moot if the defendant can demonstrate that “there is no reasonable expectation that the wrong will be repeated.” The burden is a heavy oné. Here the defendants told the court that the interlocks no longer existed and disclaimed any intention to revive them. Such a profession does not suffice to make a case moot although it is one of the factors to be considered in determining the appropriateness of granting an injunction against the now-discontinued acts. Along with its power to hear the case, the court’s power to grant injunctive relief survives discontinuance of the illegal conduct. Hecht Co. v. Bowles, supra; Goshen Mfg. Co. v. Myers Mfg. Co., 242 U. S. 202 (1916). The purpose of an injunction is to prevent future violations, Swift & Co. v. United States, 276 U. S. 311, 326 (1928), and, of course, it can be utilized even without a showing of past wrongs. But the moving party must satisfy the court that relief is needed. The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive. The chancellor’s decision is based on all the circumstances; his discretion is necessarily broad and a strong showing of abuse must be made to reverse it. To be considered are the bona fides of the expressed intent to comply, the effectiveness of the discontinuance and, in some cases, the character of the past violations. The facts relied on by the Government to show an abuse of discretion in this case are these: Hancock’s three interlocking directorates viewed as three distinct violations, his failure to terminate them until after suit was filed despite five years of administrative attempts to persuade him of their illegality, his express refusal to concede that the interlocks in question were illegal under the statute and his failure to promise not to commit similar violations in the future. Were we sitting as a trial court, this showing might be persuasive. But the Government must demonstrate that there was no reasonable basis for the District Judge’s decision. In this we think it fails. An individual proclivity to violate the statute need not be inferred from the fact that three violations were charged, particularly since it is only recently that the Government has attempted systematic enforcement of § 8. The District Court was not dealing with a defendant who follows one adjudicated violation with others. The only material before the District Judge on the supposed five years of administrative persuasion could easily support an inference that during that time the defendant and the Department of Justice were each trying to determine the legality of his directorships. The Government’s remedy under the statute was plain. Postponement of suit indicates doubt on the prosecutor’s part as much as intransigence on the defendant’s. How much contrition should be expected of a defendant is hard for us to say. This surely is a question better addressed to the discretion of the trial court. The same can be said of the limited disclaimer of future intent. Assuming with the Government that the corporations were properly joined as defendants, the conclusion that there was no abuse of discretion in refusing injunctive relief against Hancock applies a fortiori in their case. None of the corporations appeared to have engaged in more than one alleged violation. And affidavits filed with the motions to dismiss indicated that these defendants were ignorant of the Government’s interest in the interlocks until the suits were filed.- Indeed the emphasis on this branch of the case is placed on the refusal of relief against Hancock. The failure to point to circumstances compelling further relief against the corporations speaks for itself. Essentially, the Government’s claim is that it was deprived of a trial on the relief issue. But at no time was objection raised to the procedure by which the case was handled. Of course summary judgment procedure could not have been employed were there a “genuine issue as to any material fact.” Fed. Rules Civ. Proc. 56. However, after the defendants had moved to dismiss, the Government elected not to file any countervailing affidavits or amend its complaint and stated on oral argument that the truth of the defendants’ affidavits was not questioned. To frame a factual dispute, that left the complaint, the only relevant paragraph of which reads: “16. The defendants have threatened to continue and will continue the aforesaid violation of Section 8 of the Clayton Act unless the relief prayed for herein is granted.” (Emphasis added.) “The aforesaid violation[s],” the specific interlocks, had been voluntarily terminated and intention to resume them had been negatived under oath. As to the prayer that the defendants be enjoined from any future violations of § 8, the complaint alleged no threatened violations other than those specifically charged. In these circumstances, the District Judge could decide that there was no significant threat of future violation and that there was no factual dispute about the existence of such a threat. We conclude that, although the actions were not moot, no abuse of discretion has been demonstrated'in the trial court’s refusal to award injunctive relief. Moreover, the court stated its dismissals “would not be a bar to a new suit in case possible violations arise in the future.” The judgments are Affirmed. “Sec. 8. . . . “No person at the same time shall be a director in any two or more corporations, any one of which has capital, surplus, and undivided profits aggregating more than $1,000,000, engaged in whole or in part in commerce, ... if such corporations are or shall have been theretofore, by virtue of their- business and location of operation, competitors, so that the elimination of competition by agreement between them would constitute a violation of any of the provisions of any of the antitrust laws. . . .” 38 Stat. 730, 15 U. S. C. § 19. Fed. Rules Civ. Proc. 12 (b) (6), 56. “Sec. 11. That authority to enforce compliance with sections 2, 3, 7, and 8 of this Act by the persons respectively subject thereto is hereby vested ... in the Federal Trade Commission where applicable to all other character of commerce to be exercised as follows: “Whenever the Commission . . . shall have reason to believe that any person is violating or has violated any of the provisions of sections 2, 3, 7, and 8 of this Act, it shall issue and serve upon such person and the Attorney General a complaint stating its charges in that respect, and containing a notice of hearing .... If upon such hearing the Commission . . . shall be of the opinion that any of the provisions of said sections have been or are being violated, it shall make a report in writing, in which it shall state its findings as to the facts, and shall issue and cause to be served on such person an order requiring such person to cease and desist from such violations, and divest itself of the stock, or other share capital, or assets, held or rid itself of the directors chosen contrary to the provisions of sections 7 and 8 of this Act, if any there be, in the manner and within the time fixed by said order. . . .” 64 Stat. 1126, 15 U. S. C., Supp. V, §21. Cf. United States v. Hamburg-Amerikanische Packetfahrt-Actien Gesellschaft, 239 U. S. 466 (1916). “When defendants are shown to have settled into a continuing practice or entered into a conspiracy violative of antitrust laws, courts will not assume that it has been abandoned without clear proof. ... It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption.” United States v. Oregon State Medical Society, 343 U. S. 326, 333 (1952). United States v. Aluminum Co. of America, supra, at p. 448. Cf. United States v. United States Gypsum Co., 340 U. S. 76, 89 (1950), on review of particular antitrust decree provisions. See Kramer, Interlocking Directorships and the Clayton Act After 35 Years, 59 Yale L. J. 1266. We should not be understood as deciding whether corporations can violate § 8 or, for other reasons, be enjoined under the statute. 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_applfrom	J	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). Walso WINT, et al., Appellants, v. Hon. Clayton K. YEUTTER, et al. No. 89-5123. United States Court of Appeals, District of Columbia Circuit. Argued April 5, 1990. Decided May 4, 1990. Steven J. Routh, Washington, D.C., with whom Kristine Poplawski was on the brief, for appellants. Wilma A. Lewis, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates, R. Craig Lawrence, Washington, D.C., and Madelyn E. Johnson, Asst. U.S. Attys., were on the brief, for appellees the Honorable Clayton K. Yeutter, et al. John M. Simpson, Robert A. Burgoyne and Amee F. Vermilye, Washington, D.C., were on the brief for appellee U.S. Sugar Corp. Before EDWARDS, RUTH BADER GINSBURG, and BUCKLEY, Circuit Judges. Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG. RUTH BADER GINSBURG, Circuit Judge: Alien farmworkers appeal a decision by the district court upholding a U.S. Department of Agriculture (USDA or Department) rulemaking that effectively eliminates sugar cane cutters from the group of seasonal farmworkers eligible for permanent residence in the United States under the Immigration Reform and Control Act of 1986 (IRCA). Satisfied that the Department acted within its statutory authority and provided a reasoned basis for its actions, we affirm. I. Statutory Framework and Case History IRCA was enacted to reform the nation’s immigration laws, largely by controlling illegal immigration into the United States through, inter alia, penalizing employers of undocumented aliens. See 8 U.S.C. § 1324a. As part of a congressional compromise between the interests of growers, primarily from the West, who sought assurance that a pool of legal labor would be available to perform temporary field work, and those of farmworkers’ rights groups, Congress included in IRCA a new Seasonal Agricultural Worker (SAW) program. See H.Rep. No. 99-682(1), 99th Cong., 2d Sess. 50-51 (1986) U.S.Code Cong. & Admin. News 1986, pp. 5649, 5654-5655 (hereafter House Report). That program confers on qualifying workers status as lawful immigrants, eligible for permanent residence. To qualify for the SAW program, applicants must demonstrate that they resided in the United States and performed seasonal agricultural services for at least 90 days during the year ending on May 1, 1986. See 8 U.S.C. § 1160(a)(1). IRCA defines “seasonal agricultural services” as “the performance of field work related to planting, cultural practices, cultivating, growing and harvesting of fruits and vegetables of every kind and other perishable commodities, as defined in regulations by the Secretary of Agriculture.” 8 U.S.C. § 1160(h). IRCA also amended an existing foreign guest worker program, the H-2 program, known in its amended form as the H-2A program. Under the H-2 A program, an employer may petition the Secretary of Labor, at least 60 days in advance of need, for a certification that (A) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor and services involved in the petition, and (B) the employment of the alien in such labor or services will not adversely affect the wages and other working conditions of workers in the United States similarly employed. 8 U.S.C. § 1188(a)(1). Foreign workers admitted under H-2A visas, in contrast to those eligible for the SAW program, are not entitled to permanent residence status: they may remain in the United States only as long as they are employed in the particular job for which their visas were issued. In proposed and final SAW program rules issued on April 22 and June 1, 1987, the USDA’s Secretary initially exercised his IRCA-conferred authority to define fruits, vegetables, and other perishable commodities. See 52 Fed.Reg. 20,372 (June 1, 1987); 52 Fed.Reg. 13,246 (Apr. 22, 1987). The USDA announced that the Department had selected a botanical definition of “fruits and vegetables” — a definition keyed to particular plant parts, rather than to common understandings of the terms— “because of [that definition’s] clear scientific basis.” 52 Fed.Reg. at 13,247. The Department also concluded that “other perishable commodities” should be defined so as “to make it clear that the use of alien workers is predicated upon unpredictable circumstances and the more immediate needs for labor which result from those circumstances.” Id. The USDA, in its 1987 rulemaking, defined “fruits” as “the human edible parts of plants which consist of the mature ovaries and fused other parts or structures, which develop from flowers or inflorescence,” and “vegetables” as “the human edible leaves, stems, roots, or tubers of herbaceous plants.” 52 Fed.Reg. at 20,376. In addition, the Department defined “other perishable commodities” as crops, other than fruits and vegetables, “that are produced as a result of seasonal field work, and have critical and unpredictable labor demands.” Id. The key phrase “critical and unpredictable labor demands,” as defined in the June 1987 final rule, means that “the period during which field work is to be initiated cannot be predicted with any certainty 60 days in advance of need.” Id. The Department provided an exclusive list of nine “other perishable commodities”; sugar cane was explicitly disqualified, on the basis that [s]ugar cane is a perennial grass, not a fruit or vegetable, which is normally harvested between one to two years of growth. It is mature during most of this period. The timing of the harvest is not critical, but is scheduled over a period of several months for the efficient operation of the processing mill.... Harvest dates are quite predictable and may be scheduled several months in advance. Id. at 20,375. The original plaintiffs, Northwest Forest Workers Association, et al., sued in district court challenging the USDA’s definitions as overly expansive. Appellants (alien farmworkers) intervened, claiming, per contra, that the definitions were too narrow, and objecting specifically to the exclusion of sugar cane. The district court ruled against the original plaintiffs on all their claims. See Northwest Forest Workers Ass’n v. Lyng, 688 F.Supp. 1 (D.D.C.1988). Turning to appellants’ claims opposing those of the original plaintiffs, the district court affirmed in part and remanded in part. That court first upheld the USDA’s decision to define “other perishable commodities” in terms of “critical and unpredictable labor demands,” as measured by a grower’s ability to use the H-2A program, see supra note 1; in so ruling, the district judge explicitly determined that the “dividing line between the H-2A program and the SAW program drawn by the 60-day bright line rule was reasonable.” Id. at 7. The district court went on to rule, however, that the USDA had acted arbitrarily and capriciously by “failing to adequately explain its incorporation of ‘herbaceous’ in the definition of vegetables,” id. at 9, and by neglecting to consider the impact of weather conditions before excluding sugar cane from the list of perishable commodities. See id. at 11. The court remanded both issues to the Department. The United States Sugar Corporation then intervened as a defendant in the case. Responsive to the district court’s remand, the USDA issued a second proposed rule on July 11, 1988, see 53 Fed.Reg. 26,-076 (July 11, 1988), and a final rule on August 19, 1988, see 53 Fed.Reg. 31,630 (Aug. 19, 1988). In this second look phase, the Department concluded, after reviewing several scientific sources, that it had “erred in describing its previous definition of ‘vegetables’ as a botanical definition,” 53 Fed. Reg. at 26,077. The Department stated: USDA determined to use scientific terms in order to be precise. The term “fruits” is a precise term that has a botanical definition that is accepted universally in the scientific literature. However, the term “vegetables” is not defined precisely in botany.... The term “vegetables,” however, is significant in the science of horticulture. Id. at 26,078. The USDA thus adhered to its previous botanical definition of “fruits,” “in order to be more precise as to fruits and to resolve the confusion between the classification of fruits and vegetables.” Id. Simultaneously, the Department adopted a new “horticultural” definition of vegetables, one meaning “the human edible herbaceous leaves, stems, roots, or tubers of plants, which are eaten, either cooked or raw, chiefly as the principal part of a meal, rather than as dessert.” 53 Fed.Reg. at 31,639. The Department also revisited and amplified its determination that sugar cane did not qualify as an “other perishable commodity.” The USDA this time explained that adverse weather conditions have relatively little effect on the criticality of labor demands for sugar cane harvesting, because the pace of the harvest is dictated by the limited capacity of the mills to process the cane: even after a freeze, therefore, sugar cane harvesting generally continues at a normal rate. See 53 Fed.Reg. at 31,-635. Although the USDA acknowledged that unexpectedly severe weather may lengthen the harvest or increase the desirability of manual, rather than mechanized, harvesting, the Department nonetheless concluded that “the labor requirements of sugar cane are reasonably predictable ...[;] none of the factors cited ... creates a need for additional labor significantly above the levels that had been predicted months in advance.” Id. at 31,636. In the decision now on review, the district court upheld the USDA’s revised definitions. See Northwest Forest Workers Ass’n v. Yeutter, No. 87-1487, slip op. (D.D.C. Feb. 28, 1989) (hereafter Memorandum Decision). After “careful review of the record,” the district court found that the Department had satisfactorily addressed the court’s “primary concern,” i.e., “whether USDA has unreasonably singled out sugar cane for exclusion from the SAW program.” Id. at 6. The remand, in the district court’s estimation, had revealed that concern to be unsubstantial. Noting the broad discretion Congress conferred on the Department to define the terms at issue, the district court concluded that “USDA has established a reasonable basis on the record for adopting a hybrid definition of the term vegetables to replace its earlier ‘pure’ botanical definition.” Id. at ll. The district court also found reasonable the Department’s determination that sugar cane is not subject to “critical and unpredictable labor demands,” see supra p. 78, so as to qualify as a perishable commodity under the USDA’s previously-upheld definition. II. “Fruits and Vegetables of Every Kind” We note at the outset the narrow focus of appellants’ challenge. They take issue not with the USDA’s “horticultural” definition of vegetables standing alone, nor with the agency’s conclusion that sugar cane is outside the ambit of that definition. Rather, they target as irrational the Department’s decision to reverse its earlier position by adopting a horticultural definition of vegetables while retaining a botanical definition of fruits. Appellants begin by positing that the relationship between the terms “fruits” and “vegetables” presents a “pure question of statutory construction for the courts to decide.” INS v. Cardoza-Fonseca, 480 U.S. 421, 446, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987). Therefore, appellants maintain, the Department’s decision to draw from two distinct sciences in defining fruits and vegetables is not entitled to the judicial deference owing when a statute “is silent or ambiguous with respect to [a] specific issue.” Chevron U.S.A. v. NRDC, 467 U.S. 837, 843, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). Rather than deferring to USDA’s choice of disparate definitions for the terms, appellants assert, the court should, by “[ejmploying traditional tools of statutory construction,” Cardoza-Fonseca, 480 U.S. at 446, 107 S.Ct. at 1221, identify and effectuate an implicit congressional intent that fruits and vegetables be assigned “related meanings.” Brief for Appellants at 23. Appellants’ reliance on Cardoza-Fonseca is misplaced, given Congress’ explicit delegation to the USDA of the authority to define, not merely to apply, the terms in question. Far from speaking directly “to the precise question at issue,” Chevron, 467 U.S. at 842, 104 S.Ct. at 2781, Congress entrusted to the USDA delineation of the commodities to be included within the SAW program. Congress, in Chevron’s words, conferred on the Department “authority ... to elucidate a specific provision of the statute by regulation,” id. at 844, 104 S.Ct. at 2782, and thereby signaled judicial deference. Cf. Ohio v. U.S. Department of the Interior, 880 F.2d 432, 443-44 (D.C.Cir.1989) (declining to defer to agency’s decision to set damages for natural resource despoilment at the lesser of restoration cost or diminution in use value because, the court determined, Congress, by unambiguously preferring the restoration cost measure, had .spoken to the precise question at issue). Moreover, the USDA’s definitional regulations, because they implement expressly delegated standard-setting power, carry legislative effect. See Batterton v. Francis, 432 U.S. 416, 425, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977). Such legislative regulations are controlling unless “arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 844, 104 S.Ct. at 2782. Even under Chevron’s deferential standard of review, appellants assert, the USDA’s definitions fail to pass muster. Because the USDA, on remand, both altered its original rationale and arrived at the same result initially vacated by the district court, close consideration of the Department’s action is warranted. See Food Marketing Inst. v. ICC, 587 F.2d 1285, 1290 (D.C.Cir.1978) (“The agency’s action on remand must be more than a barren exercise of supplying reasons to support a pre-ordained result.”). Appellants characterize as manifestly unreasonable the USDA’s adoption of a “hybrid” definition of fruits and vegetables. “Under either a consistent botanical or a consistent horticultural approach,” appellants assert, “the terms ‘fruits’ and ‘vegetables’ form matching halves of a coherent phrase which, in either discipline, includes all crops grown for human consumption.” Brief for Appellants at 25. Only by mixing the two definitions, appellants maintain, can a gap be created into which a crop like sugar cane can fall. Appellants’ argument, however, assumes a coherence in scientific characterizations of fruits and vegetables not borne out by the record. Contradicting appellants’ contention that the entire universe of edible crops would be included if the USDA did not mix definitions, several scientists advised the Department that looking solely to botany, or solely to horticulture, sugar cane would be typed not a fruit or vegetable, but a perennial grass or industrial crop. See J.A. at 419, 422, 427, 430. Moreover, at least one source relied on by appellants notes that horticulture, with its customary emphasis on garden crops, has traditionally excluded whole categories of extensively managed field crops, such as grains. See J. JaniCK, HoRTICULtural SCIENCE 32 (2d ed. 1972). In any event, as we explain below, the USDA has provided a plausible account of its reasons for settling on hybrid definitions drawn from both botany and horticulture. Botany, the USDA once again found on remand, provides the most reliable definition of the statutory word “fruits.” See 53 Fed.Reg. at 26,078. Indeed, the Department noted, the botanical definition appears in horticultural glossaries as well. See J. Soule, Glossary for Horticultural Crops 4 (1985) (“Fruit: botanically, a ripened ovary and adnate parts thereof.”). Botany’s precise concentration on, and limitation to, specific plant parts facilitates classification. One can readily tell from the botanical standard, for example, how to classify such ambiguous comestibles as tomatoes and rhubarb. The common horticultural definition of fruits, on the other hand, serves the classifying purpose less securely. That definition hinges on whether a given foodstuff is “commonly eaten as a dessert or snack.” J. Janiok, HORTICULTURAL Science at 32. A definition so dependent on externalities, i.e., the time and mode of consumption, is surely an uncertain guide to classification. Vegetables, however, unlike fruits, are not at all well defined in botanical references. Many botanical glossaries supply no definition of the term. See, e.g., S. Black-more & E. Tootill, The Facts on File Dictionary of Botany' 254 (1984); Oxford University Press, Concise Science Dictionary 729 (1984). Others contain definitions so broad as to encompass all plants. See, e.g., R. Little & C. Jones, A Dictionary of Botany 382 (1980) (“Of or pertaining to a plant or plant part.”); S. Parker, McGraw-Hill Dictionary of Scientific and Technical Terms 1722 (3d ed. 1984) (“[BOT] Resembling or relating to plants.”). The Department resisted an all-inclusive definition of vegetables as inconsistent with congressional intent. See 53 Fed.Reg. at 31,632 (noting that “Congress did not intend the SAW program to apply to all agricultural crops”) (emphasis in original); see also Texas Farm Bureau v. Lyng, 697 F.Supp. 935, 939 (E.D.Tex.1988) (upholding USDA’s exclusion of hay from SAW definitions). No congressional design we can discern opposes the Department’s view. As the USDA observed, Congress could have said simply “all plants” if Congress had indeed meant just that. See 53 Fed. Reg. at 31,633. Rejecting the “all or nothing at all” definitions of vegetables that botanical reference works supplied, the Department reasonably looked to the horticultural definition (modified to exclude plant parts the Department classified as fruits and thereby to eliminate overlap between the two categories): “the human edible herbaceous leaves, stems, roots, or tubers of plants, which are eaten, either cooked or raw, chiefly as the principal part of a meal, rather than as dessert.” 53 Fed.Reg. at 31,639. We cannot condemn as a subterfuge, anymore than we can indict as irrational, the choice the USDA thus made. The record reinforces our persuasion that the judgment call at issue was one the Department properly undertook, for it shows no accepted scientific principles in place; instead, the record reveals the absence of any consensus as to how, or even whether, to define fruits and vegetables. Compare R. Barnhardt, Hammond Barn-hardt Dictionary of Scienoe 709 (1986) (“In botany, the word vegetable is accepted only as a descriptive adjective, not as a noun.”) (emphasis in original) with J. Haynes, Botany: An Introductory Survey of the Plant Kingdom 471 (1975) (“Many other fruits are referred to as ‘vegetables,’ a meaningless term botanically because it is used to describe any plant part that is eaten.”). III. “Other Perishable Commodities” The USDA has defined “other perishable commodities” as crops subject to “critical and unpredictable labor demands.” See 52 Fed.Reg. at 20,376. Labor demands are deemed “critical and unpredictable” if “the period during which field work is to be initiated cannot be predicted with any certainty 60 days in advance of need.” See id.; see also supra pp. 78-79 & n. 1. Appellants do not contest the USDA’s 60-day bright line rule separating perishable from non-perishable commodities. As the district court concluded, in drawing that 60-day line, the USDA was effectuating a perceived congressional intent to make the SAW program available primarily to growers who could not use the H-2A program. See Northwest Forest Workers, 688 F.Supp. at 6-7 (“The legislative history [of IRCA] ... indicates that the SAW program was intended to be a supplement to the H-2A program.”); House Report at 51 (“Regarding perishable commodities, the Committee recognizes that special situations exist that may render the H-2 program less than fully responsive to Western grower needs. Accordingly, the Committee bill establishes a mechanism by which ‘special agricultural workers’ may be admitted to perform field work in perishable crops.”); see also supra pp. 78-79 & n. 1. In assessing the criticality and unpredictability of demands for seasonal workers, the USDA has employed several factors, including “the nature and extent to which the field work activities utilize[ ] labor, the importance of the timing of these activities, [the] effect of a failure to perform these activities and the amount of labor needed.” Texas Farm Bureau, 697 F.Supp. at 941 (concluding that the USDA properly disqualified hay from the list of “other perishable commodities”). These factors harmonize with an apparent congressional intent, expressed during Senate debate over the Wilson amendment, a proposed guest worker program later replaced by the SAW initiative, that perishability turn largely on the immediacy of labor needs. See, e.g., 131 Cong.Rec. S11606 (Sept. 17, 1985) (Sen. Wilson) (“When we say perishable, we are not talking about [crops] that can ripen on a tree and remain there for perhaps a month without injury. We are talking about those that must be harvested immediately when ripe as a function of weather ..., or the crop risks being lost.”). Appellants assert that under a proper application of these factors, sugar cane would be deemed subject to “critical and unpredictable labor demands,” and would thus qualify as a perishable commodity under the SAW program. However, ample evidence in the record supports the Department’s conclusion to the contrary. First, as the Department noted, sugar cane is mature for several months and can remain in the fields unharvested during maturity without deteriorating significantly; the starting date for the sugar cane harvest is therefore predictable well in advance. See J.A. at 417-18, 422, 446. Moreover, the pace of the sugar cane harvest is dictated by the capacity of the mill, not the ripeness of the cane; severe weather conditions therefore do not generally engender a critical need for additional labor. See id. at 417, 422, 446, 1038, 1042. Finally, sugar cane growers historically have met their labor needs largely through the H-2 and, later, the H-2A programs. Recourse to those programs necessitated anticipation of labor needs as much as 80 days in advance. The ability of sugar cane growers to engage H-2 and H-2A workers thus bolsters the conclusion that.labor demands in the sugar cane industry are not unpredictable. See id. at 446-47, 1003-04. Appellants dispute the accuracy of the USDA’s portrayal. They maintain that even though the starting date of the sugar cane harvest may be predictable, bad weather often requires the growers to extend the harvest; labor needs, appellants claim, are therefore unpredictable in duration if not in onset. However, in considering and rejecting a similar comment during the rulemaking process, the Department stated that “[a] delay of sugar cane field work activity, while it may be undesirable, is not critical per se. It is necessary to look beyond the fact of the delay to determine its consequences and whether it requires a labor force on short notice.” 53 Fed.Reg. at 31,638. This approach accords with the apparent congressional intent that perishable commodities be limited to those subject to immediate labor needs. See supra p. 83. The USDA then reasonably concluded that mid-season adjustments of sugar cane harvesting schedules do not produce immediate labor needs within the meaning of the SAW program. Appellants further argue that the USDA justified its exclusion of sugar cane from the scope of “other perishable commodities” by requiring sugar cane to meet criteria not applied to other commodities deemed perishable under the SAW program, such as Christmas trees, sugar beets, and tobacco. These “unannounced” criteria included requirements that the labor need “be subject to inflexible time constraints,” that severe weather “threaten total crop loss,” and that harvesting and cultivation “be incapable of mechanization.” Brief for Appellants at 40. As the district court observed, however, the factors appellants labeled unannounced are relevant to the “criticality” (rather than the “predictability”) aspect of the USDA’s perishable commodity definition. See Memorandum Decision at 18; supra p. 83. Nor has the Department been shown to have applied criticality considerations inconsistently. The USDA reasonably concluded, for example, that the 10-day time frame for shaping Christmas trees is more critical than the several-month span of sugar cane harvestability. See 52 Fed.Reg. at 20,374. Furthermore, appellants do not seriously dispute the USDA’s assessment that because sugar cane is unusually robust, the potential economic loss to sugar cane growers resulting from a freeze is less severe than that risked by growers of the commodities deemed perishable within the meaning of the SAW program. The Department’s observation that the planting, cultivating, and harvesting of sugar cane are largely mechanized, while those activities are more likely to be performed by hand in the case of the commodities listed as perishable, also draws support from the record. See J.A. at 706, 1038, 1046, 1047; see also Texas Farm Bureau, 697 F.Supp. at 941-42 (upholding USDA’s use of mechanization criterion to disqualify hay as a perishable commodity). We ultimately conclude, as did the district court, that the USDA’s exclusion of sugar cane from the “other perishable commodities” category was not arbitrary, but fairly rested on that crop’s status as sui generis among agricultural products. The Department’s judgment, moreover, was consistent with the congressional view of the SAW program as complementary to the H-2A program. Conclusion The USDA reasonably defined fruits and vegetables and reasonably declined to declare sugar cane a perishable commodity. Accordingly, the district court’s judgment is Affirmed. . A USDA official later explained that the 60-day period was chosen because it is the minimum application period for the H-2A program. We felt that the 60 days was a reasonable period for those who depended upon foreign labor. Those who could accurately anticipate labor needs as far as 60 days in advance had less critical labor needs and could use the H-2A program. Where labor needs were more critical because growers could not predict those needs 60 days in advance, then the commodities would be considered perishable. Declaration of Allison T. French, Joint Appendix (J.A.) at 1258. . The listed commodities were Christmas trees, cut flowers, herbs, hops, horticultural specialties, Spanish reeds, spices, sugar beets, and tobacco. . The court noted that “sugar cane appears to be the only plant crop grown for human consumption in the United States which is excluded from the Secretary’s definition of fruits, vegetables and other perishable commodities based on the herbaceous requirement.” Id. at 9 n. 9. . Botany is the branch of biology concerned with plant life; horticulture, the science of cultivating plants. In botany, the functions performed by plant parts distinguish fruits from vegetables; fruits are reproductive organs, vegetables are not. See C. Wilson & W. Loomis, Botany 259 (3d ed. 1962). In horticulture, fruits and vegetables are classified according to when they are commonly eaten: fruits ordinarily are eaten as a dessert or snack, while vegetables normally accompany the main part of a meal. See J. Janick, Horticultural Science 32 (2d ed. 1972). . The USDA explained that it was retaining the "herbaceous” component of its previous definition because that limitation “is incorporated in many of the horticultural definitions of the term ‘vegetables.’ ” 53 Fed.Reg. at 26,079. . The district court further agreed with the Department that, because sugar cane is woody, not herbaceous, sugar cane does not qualify as a vegetable under the USDA's new definition. See id. at 13-16. That determination has not been challenged on appeal. . Appellants correctly remark that the USDA has rejected the view that horticulture should be limited to garden crops. See 53 Fed.Reg. at 31,632 (maintaining that horticulture should properly cover a range of plants greater than "garden crops” but smaller than “all agricultural crops”) (emphasis in original). The Department’s selective recourse to horticultural definition could be taken to betoken a desire on the part of the USDA to exclude sugar cane from the SAW program while including other crops, such as wheat, that a pure horticultural definition might leave out. However, as explained infra at pp. 81-82, the Department has provided other reasonable justifications for rejecting uniform horticultural definitions of fruits and vegetables. . Appellants assert that the USDA impermissibly performed a volte-face on remand, repudiating its previously relied-on botanical definition of vegetables without the benefit of new fact-finding or reference to additional sources not previously available. However, the putative botanical definition in the USDA’s initial rule had already included "human edible" and “herbaceous" limitations not found in the botanical literature. See Texas Farm Bureau, 697 F.Supp. at 939-40 (upholding Secretary's inclusion of the “human edible” requirement). The USDA’s abandonment of its botanical definition on remand was thus not the complete reversal appellants have attempted to portray; in any event, as we explained above, the agency has provided a reasoned and reasonable basis for its terminological adaptations. . Appellants contend that grower reliance on the H-2 and H-2A programs does not demonstrate the predictability of labor needs in the sugar cane industry. Even under those programs, appellants assert, growers have, after freezes in the fields, requested additional and extended certifications. However, the total number of H-2 and H-2A workers actually needed each year by sugar cane growers generally has not exceeded the projections made in the original applications. See J.A. at 446, 1003. While this pattern could betoken exaggeration of projected labor needs in initial certification petitions, resort to such behavior is unlikely. Under the former H-2 and current H-2 A programs, growers must provide housing for all imported workers, see 8 U.S.C. § 1188(c)(4); padding of certification requests would therefore impose undue and avoidable costs on employers. 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_r_bus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Zakee Muhammad IDDEEN, a/k/a Windel X McMilliam, Vernard Stuten, Augusta Crawford, Lloyd Waters and Steven R. Lavine, Defendant-Appellant. No. 87-1910. United States Court of Appeals, Fifth Circuit. Aug. 18, 1988. John H. Hagler, (court appointed co-counsel), John A. Funk, Dallas, Tex., (court appointed), for defendant-appellant. Richard B. Roper, Asst. U.S. Atty., Marvin Collins, Dallas, Tex., for plaintiff-appel-lee. Before REAVLEY and JONES, Circuit Judges, and MAHON , District Judge. District Judge of the Northern District of Texas, sitting by designation. REAVLEY, Circuit Judge: Zakee Muhammad Iddeen appeals the district, court’s imposition of a ten-year term of imprisonment on his conviction for failing to surrender for service of sentence pursuant to a court order. See 18 U.S.C. § 3146. Holding that the sentence imposed exceeds the statutory maximum, we vacate the sentence and remand for resentencing. I On September 30, 1986, Iddeen was convicted on ten counts of mail fraud under 18 U.S.C. § 1341, and released on bond pending sentencing. See 18 U.S.C. § 3143(a). Iddeen failed to appear at his sentencing hearing and remained a fugitive until apprehended in September 1987. On December 2, 1986, a grand jury returned a single count indictment charging Iddeen with failure to appear at the sentencing hearing, a violation of 18 U.S.C. § 3146. On September 11, 1987, the district court sentenced Iddeen to a four-year term of imprisonment on each mail fraud count to run consecutively, for a total of forty years. A jury then found Iddeen guilty on the failure to appear count, and the district court, pursuant to 18 U.S.C. § 3146(b)(1)(A), imposed a ten-year term of imprisonment to run consecutive to Id-deen’s forty-year sentence. On this appeal, Iddeen contends that the district court’s imposition of the ten-year sentence (on his failure to appear conviction) exceeded the statutory maximum. To examine this claim, we begin with a brief review of § 3146 and its legislative history. II Section 3146(a) provides that “[a] person commits an offense if, after having been released ... (1) he knowingly fails to appear before a court as required by the conditions of his release; or (2) he knowingly fails to surrender for service of sen tence pursuant to a court order.” (emphasis added). Subsection (b), which sets forth the maximum punishment that can be imposed for failing to appear, provides: If the person was released— (1) in connection with a charge of, or while awaiting sentence, ... for— (A) an offense punishable by death, life imprisonment, or imprisonment for a term of fifteen years or more, he shall be fined not more than $25,-000 or imprisoned for not more than ten years, or both; (B) an offense punishable by imprisonment for a term of five or more years, but less than fifteen years, he shall be fined not more than $10,000 or imprisoned for not more than five years, or both; (C) any other felony, he shall be fined not more than $5,000 or imprisoned for not more than two years, or both; or (D) a misdemeanor, he shall be fined not more than $2,000 or imprisoned for not more than one year, or both; or (2) for appearance as a material witness, he shall be fined not more than $1,000 or imprisoned for not more than one year, or both. A term of imprisonment imposed pursuant to this section shall be consecutive to the sentence of imprisonment for any other offense. 18 U.S.C. § 3146(b) (emphasis added). Section 3146(b) reflects Congress’ intent to equate the penalties for failing to appear with the penalties applicable to the underlying criminal offenses for which defendants have been released. A Senate report explained that § 3146 continues the current law offense of bail jumping although the grading has been enhanced to more nearly parallel that of the underlying offense for which the defendant was released. This enhanced grading provision is designed to eliminate the temptation to a defendant to go into hiding until the government’s case for a serious felony grows stale or until a witness becomes unavailable, often a problem with the passage of time in narcotics offenses, and then to surface at a later date with criminal liability limited to the less serious bail jumping offense. S.Rep. No. 98-225, 98th Cong., 2d Sess. 31, reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3214 (footnote added). Ill Iddeen was charged with the underlying offense of mail fraud, which carries a maximum sentence of five years. 18 U.S.C. § 1341. Because he was convicted on ten counts, he faced a maximum sentence of fifty years. On the failure to appear charge, the district court concluded that § 3146(b)(1)(A) was applicable and accordingly imposed a ten-year sentence. Iddeen contends that, because mail fraud carries a maximum sentence of five years, § 3146(b)(1)(B) applies to limit the maximum sentence to five years. To support the district court’s interpretation, the government contends that § 3146 should be read in conjunction with Fed. R. Crim. P. 8(a) and 1 U.S.C. § 1. Rule 8(a) allows the government to charge .two or more similar offenses in the same indictment, and § 1 specifies that “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise — words importing the singular include and apply to several persons, parties, or things.” Noting that an indictment can include numerous and varied counts, and applying § 1, the government reads the phrase “an offense” in § 3146(b)(1)(A) & (B) to mean “offenses.” The government contends that two possible interpretations support the district court’s imposition of a ten-year sentence. First, the government argues that the phrase “an offense punishable by” refers to the total term of confinement that could be imposed upon a defendant based upon either the counts charged in the indictment (if release occurs prior to conviction), or the offenses which underlie the conviction (if release occurs after conviction). Because Iddeen faced a maximum term of confinement of fifty years (on ten counts of mail fraud), the government concludes that § 3146(b)(1)(A) applies. Alternatively, the government argues that Id-deen’s failure to appear constitutes ten separate offenses because he failed to appear for sentencing on each of the ten mail fraud counts for which he had been convicted. The government, applying § 3146(b)(1)(B) to each of the ten separate offenses of failing to appear, concludes that the maximum available sentence was fifty years. To support these interpretations, the government notes that Congress intended to deter defendants from fleeing by equating penalties for substantive offenses with penalties for failing to appear, and concludes that either of its interpretations effectuates this intent. We reject the government’s proposed interpretations. The rule that words importing the singular may include “several persons, parties, or things,” 1 U.S.C. § 1, applies only “where it is necessary to carry out the evident intent of the statute.” First Nat’l Bank in St. Louis v. Missouri, 263 U.S. 640, 657, 44 S.Ct. 213, 215, 68 L.Ed. 486 (1924). See Johnston v. Penrod Drilling Co., 803 F.2d 867, 869-70 (5th Cir.1986). To effectuate Congress’ intent, the term “offense” in § 3146 need not be read in its plural form. While § 3146 was designed to deter defendants from fleeing, this purpose is served by interpreting the term “offense” to mean any single offense either charged in the indictment or for which a defendant has been convicted. Thus, where a defendant has been charged with, or been convicted of, multiple offenses and fails to appear as required by the conditions of his release or pursuant to a court order, the district court, in imposing a sentence for the § 3146 violation, can apply the penalty provision of any one of the underlying offenses with which the defendant has been charged or convicted. If the penalty provision of the underlying offense chosen permits the imposition of a fifteen-year term of imprisonment, § 3146(b)(1)(A) applies and a ten-year sentence can be imposed. Conversely, if the penalty provision of the underlying offense chosen permits the imposition of a term of imprisonment from five to more years, but less than fifteen years, § 3146(b)(1)(B) applies and a five-year sentence can be imposed. While this interpretation does not maximize the deterrent effect of § 3146, it is consistent with the plain meaning of the language used and carries forth Congress’ desire to deter flight by permitting the imposition of a ten-year sentence when the crimes with which defendants are charged, or for which they have been convicted, carry severe penalties. Congress could have drafted § 3146 to relate its range of punishment to the total possible term of confinement for all offenses for which defendants have been released. Instead, it used the phrase “an offense punishable by” to describe the penalty provision of the underlying offense. Resolving any ambiguity in favor of lenity, Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980), we reject the government’s first proposed interpretation. We also find no merit to the government’s argument that because Iddeen was convicted of ten counts of mail fraud and failed to appear for sentencing on each count, he committed ten separate violations of § 3146. Section 3146 specifies that a person commits an offense if he fails to appear for service of sentence pursuant to a court order, and does not provide that the number of offenses which underlie a conviction dictate the number of offenses committed by failing to appear. The plain meaning of the language used clearly indicates that a single offense is committed irrespective of the number of offenses underlying the conviction. Iddeen failed to appear for sentencing on ten counts of mail fraud, each of which carried a maximum term of imprisonment of five years. Because this term falls between the five to fifteen year range, § 3146(b)(1)(B) applies to permit a maximum sentence of five years. By incorrectly applying § 3146(b)(1)(A), the district court imposed a sentence that exceeds the statutory maximum. We therefore vacate the sentence and remand for resentencing. REMANDED. . On October 16, 1987, three days before trial, Iddeen filed a "Motion for Leave to File an Affidavit of Bias and Prejudice,” alleging that the district judge was racially biased and prejudiced against him. The district court denied this motion, holding that it was untimely under 28 U.S.C. § 144. Iddeen now contends that the district court improperly denied his motion. This contention is meritless because the motion was brought within ten days of trial and Iddeen failed to show good cause for his failure to file in a timely fashion. See 28 U.S.C. § 144. . Section 3146 was amended in 1986 and the amended version became effective in December of that year. The sentencing hearing at which Iddeen failed to appear was scheduled for November 5, 1986. While the pre- and post-amendment versions of § 3146 are substantially similar, the pre-amendment version is controlling on this appeal. . Under prior law in effect in 1984, the penalties for bail jumping were set forth in 18 U.S.C. § 3150, which provided: Whoever, having been released pursuant to this chapter, willfully fails to appear before any court or judicial officer as required, shall, subject to the provisions of the Federal Rules of Criminal Procedure, incur a forfeiture of any security which was given or pledged for his release, and, in addition, shall, (1) if he was released in connection with a charge of felony, or while awaiting sentence or pending appeal or certiorari after conviction of any offense, be fined not more than \|5,000 or imprisoned not more than five years, or both, or (2) if he was released on- connection with a charge of misdemeanor, be fined not more than the maximum provided for such misdemeanor or imprisoned for not more than.one year, or both, or (3) if he was released for appearance as a material witness, shall be fined not more than $1,000 or imprisoned for not more than one year, or both. . Rule 8(a) provides: Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. 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_amicus	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. Your task is to determine or not there was any amicus participation before the court of appeals. Norman E. HOLLY, v. Robert E. CHASEN, Commissioner of Customs, et al., Appellants. No. 79-1492. United States Court of Appeals, District of Columbia Circuit. Argued May 7, 1980. Decided Jan. 7, 1981. See also, D.C., 72 F.R.D. 115 and D.C. Cir., 569 F.2d 160. Linda M. Cole, Atty., Dept, of Justice, Washington, D. C., with whom Alice Daniel, Asst. Atty. Gen., Carl S. Rauh, U. S. Atty., Washington, D. C., at the time brief was filed, and William Kanter, Atty., Dept, of Justice, Washington, D. C., were on brief for appellants. John Cary Sims, Washington, D. C., with whom Alan B. Morrison, Washington, D. C., was on brief for appellee. Ann K. Macrory and James T. Kilbreth, III, Washington, D. C., were on brief for amicus curiae urging affirmance. Before McGOWAN, ROBINSON and ROBB, Circuit Judges. Opinion PER CURIAM. PER CURIAM: The question presented on this appeal is whether in a Freedom of Information Act case section 1961 of Title 28 of the U.S.Code authorizes the taxation of interest upon a judgment against the United States for attorneys’ fees. We hold that it does not. In December of 1975 our appellee Norman E. Holly filed suit in the District Court to obtain agency records under the Freedom of Information Act, 5 U.S.C. § 552 et seq. Holly, a layman acting without counsel, succeeded in obtaining most of the requested documents. Relying upon 5 U.S.C. § 552(a)(4)(E) the District Court taxed attorneys’ fees and costs against the United States. The court based its fee award upon Holly’s estimates of “opportunity cost” of his time. The government appealed the fee award on the ground that the Freedom of Information Act does not authorize an award of attorneys’ fees to a layman acting pro se. By order, without oral argument, this court affirmed the award. Holly v. Chasen, 186 U.S.App.D.C. 329, 569 F.2d 160 (1977). Thereafter Holly asked the District Court to require the government to pay interest upon his award of attorneys’ fees, for the period between the date of the award and the date of payment. The court granted the request, and ordered the payment of interest at 6% from the date of the judgment for attorneys’ fees until such time as the judgment was satisfied. The court based this award upon 28 U.S.C. § 1961 which provides in pertinent part: “Interest shall be allowed on any money judgment in a civil case recovered in a district court.” In a memorandum opinion the court stated: The defendant counters that interest cannot be recovered against the United States unless it is authorized by an express statutory or constitutional provision, and that the cases cited by plaintiff involve only judgments against private litigants. This court must agree with defendant that the United States is not liable for pre-judgment interest. However, 28 U.S.C. § 1961 seems to apply in mandatory terms to all judgments rendered against private or governmental litigants in federal district courts. It seems to be explicit statutory authority to tax interest against the United States, if any such explicit authority is required in the post-judgment period. The Court has been unable to find any legislative history which would indicate this provision intended to exclude judgments against the United States or governmental entities. [Emphasis in original] (Appellant’s App. 19, 20) The government appeals from this ruling, A statute authorizing the recovery of interest on judgments in civil cases in district courts has been on the books since 1842, and the operative language of the statute has remained substantially unchanged for a hundred and thirty-eight years. The Act of August 23, 1842, ch. 118, § 8, 5 Stat. 518 provided “That on all judgments in civil cases, hereafter recovered in the circuit or district courts of the United States, interest shall be allowed ... to be calculated from the date of the judgment. ...” The Act of March 3, 1911, ch. 231, § 291, 36 Stat. 1167, codified at 28 U.S.C. § 811 (1940) provided “Interest shall be allowed on all judgments in civil causes, recovered in a district court ... and it shall be calculated from the date of the judgment .... ” The Act of June 25, 1948, ch. 646, 62 Stat. 957, 28 U.S.C. § 1961 provides “Interest shall be allowed on any money judgment in a civil case recovered in a district court.... Such interest shall be calculated from the date of the entry of the judgment....” Until now no court has ever suggested that the general language in these statutes, authorizing the allowance of interest on judgments, permitted the taxation of interest on a judgment against the United States. On the contrary, the rule has always been that in the absence of constitutional requirements the federal courts cannot award interest upon a claim or judgment against the United States unless there has been an express waiver of sovereign immunity. United States v. Alcea Band of Tillamooks, 341 U.S. 48, 49, 71 S.Ct. 552, 95 L.Ed. 738 (1951); United States v. Thayer-West Point Hotel Co., 329 U.S. 585, 588, 67 S.Ct. 398, 399, 91 L.Ed. 521 (1947), United States v. Goltra, 312 U.S. 203, 207, 61 S.Ct. 487, 490, 85 L.Ed. 776 (1941); Smyth v. United States, 302 U.S. 329, 353, 58 S.Ct. 248, 252, 82 L.Ed. 294 (1937); United States ex rel. Angarica v. Bayard, 127 U.S. 251, 260, 8 S.Ct. 1156, 1160, 32 L.Ed. 159 (1888). See Blake v. Califano, 200 U.S.App.D.C. 27, 626 F.2d 891 (1980). The waiver cannot be by implication or by use of ambiguous language; it must be express, and it must be strictly construed. Tillson v. United States, 100 U.S. 43, 46, 25 L.Ed. 543 (1879); Thayer-West Point Hotel Co., supra; United States v. New York Rayon Importing Co., 329 U.S. 654, 658-59, 67 S.Ct. 601, 603-04, 91 L.Ed. 577 (1947); United States v. Sherwood, 312 U.S. 584, 589-90, 61 S.Ct. 767, 771, 85 L.Ed. 1058 (1941). See United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); Fitzgerald v. United States Civil Service Comm’n, 180 U.S.App. D.C. 327, 330, 554 F.2d 1186, 1189 (1977). The rule makes no distinction between prejudgment and postjudgment awards, nor is there any reason for such a distinction; the bar of sovereign immunity applies to them both. United States v. State of Maryland, 121 U.S.App.D.C. 258, 261, 349 F.2d 693, 696 (1965); Anglin & Stevenson v. United States, 160 F.2d 670, 672 (10th Cir. 1947). The District Court focused on the wrong question when it searched for “any legislative history which would indicate [28 U.S.C. § 1961] intended to exclude judgments against the United States.... ” [Appellant’s App. 20] The court should have looked for any express waiver of sovereign immunity. Had the court done so it could have found no express waiver, and would have reached the proper conclusion that interest on Holly’s judgment could not be allowed. In their brief in this court counsel for Holly assert “there is absolutely no extant legislative history which explains the Congressional motivation in 1842, when the predecessor statute of section 1961 was passed.” [Appellee’s Br. at 12] The apparent implication is that Congress in 1842 did not intend to exempt the United States from the obligation to pay interest on judgments. The flaw in this argument is that in 1842 Congress had not yet provided the federal district courts with jurisdiction to hear monetary claims against the United States. Accordingly, there were no judgments against the federal government upon which interest could run. The first general grant of jurisdiction came in 1887 with the passage of the Tucker Act, 24 Stat. 505 et seq. Congress included a separate interest provision in the original version of the Tucker Act, 24 Stat. 507, demonstrating that Congress did not believe that the 1842 statute would require the payment of interest in the event that the newly created cause of action resulted in a money judgment against the United States. The Tucker Act provision for interest has evolved into the present 28 U.S.C. § 2411(b). As we have said, the 1842 statute has remained substantially unchanged since its enactment. The Act of June 25, 1948, now 28 U.S.C. § 1961, made only verbal changes in the previous statute, enacted in 1911 and codified in 28 U.S.C. § 811 (1940). In the interim between 1911 and 1948 the courts consistently held that sovereign immunity exempted the United States from the statutory provision for the payment of interest on judgments. See cases cited supra. Although Congress must have been aware of these decisions, Congress made no change in the statutory language. Thus Congress strongly indicated its approval of the construction placed upon the statute by the courts. Further support for our conclusion is found in the three specific statutes dealing with the matter of interest on judgments against the United States. These statutes are 28 U.S.C. § 2411, 28 U.S.C. § 2516, and 31 U.S.C. § 724a. They (1) designate which claims against the United States will bear interest when reduced to judgment, (2) spell out the procedures which a successful plaintiff must follow in order to perfect his entitlement to interest, (3) set the rate of interest which the United States will pay on a given kind of judgment and (4) establish the time when interest will start to run and the time when it will stop. If 28 U.S.C. § 1961 is read to confer an automatic entitlement to interest at the rate provided by state law on all civil judgments against the United States, these very detailed statutory provisions will all become superfluous. The equitable considerations which counsel earnestly press upon us should be presented to the Congress, not to this court. We suggest however that the possibility of a substantial delay in the payment of a fee is a factor which counsel may wish to bring to the court’s attention when submitting his application for compensation. We hold that the District Court had no authority to award interest on Holly’s fee. The judgment of the District Court awarding interest is Reversed. Question: Was there any amicus participation before the court of appeals? A. no amicus participation on either side B. 1 separate amicus brief was filed C. 2 separate amicus briefs were filed D. 3 separate amicus briefs were filed E. 4 separate amicus briefs were filed F. 5 separate amicus briefs were filed G. 6 separate amicus briefs were filed H. 7 separate amicus briefs were filed I. 8 or more separate amicus briefs were filed J. not ascertained Answer:
sc_issuearea	J	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. UNITED STATES v. IDAHO ex rel. DIRECTOR, IDAHO DEPARTMENT OF WATER RESOURCES No. 92-190. Argued March 29, 1993 — Decided May 3, 1993 Jeffrey P. Minear argued the cause for the United States. With him on the briefs were Solicitor General Starr, Acting Solicitor General Bryson, Acting Assistant Attorney General O’Meara, Edwin S. Kneedler, Peter C. Monson, Robert L. Klarquist, and William B. Lazarus. Clive J. Strong, Deputy Attorney General of Idaho, argued the cause for respondent. With him on the brief were Larry EchoHawk, Attorney General, and David J. Barber, Peter R. Anderson, and Steven W. Strack, Deputy Attorneys General. Robert T. Anderson, Melody L. McCoy, Walter R. Echo-Hawk, Patrice Kunesh, Carl Ullman, Henry J. Sockbeson, and Dale T. White filed a brief for the Nez Perce Tribe et al. as amici curiae urging reversal. Theodore R. Kulongoski, Attorney General of Oregon, Virginia L. Linder, Solicitor General, and Jerome S. Lidz, Stephen E. A. Sanders, and Rives Kistler, Assistant Attorneys General, filed a brief for the State of Alaska et al. as amici curiae urging affirmance. Chief Justice Rehnquist delivered the opinion of the Court. The McCarran Amendment allows a State to join the United States as a defendant in a comprehensive water right adjudication. 66 Stat. 560, 43 U. S. C. § 666(a). This ease arises from Idaho’s joinder of the United States in a suit for the adjudication of water rights in the Snake River. Under Idaho Code §42-1414 (1990), all water right claimants, including the United States, must pay “filing fees” when they submit their notices of claims. Idaho collects these fees to “finane[e] the costs of adjudicating water rights,” §42-1414; the United States estimates that in its case the fees could exceed $10 million. We hold that the McCarran Amendment does not waive the United States’ sovereign immunity from fees of this kind. Discovered by the Lewis and Clark expedition, the Snake River — the “Mississippi of Idaho” — is 1,038 miles long and the principal tributary to the Columbia River. It rises in the mountains of the Continental Divide in northwest Wyoming and enters eastern Idaho through the Palisades Reservoir. Near Heise, Idaho, the river leaves the mountains and meanders westerly across southern Idaho’s Snake River plain for the entire breadth of the State — some 400 miles. On the western edge of Idaho, near Weiser, the Snake enters Oregon for a while and then turns northward, forming the Oregon-Idaho boundary for 216 miles. In this stretch, the river traverses Hells Canyon, the Nation’s deepest river gorge. From the northeastern corner of Oregon, the river marks the Washington-Idaho boundary until Lewiston, Idaho, where it bends westward into Washington and finally flows into the Columbia just south of Pasco, Washington. From elevations of 10,000 feet, the Snake descends to 3,000 feet and, together with its many tributaries, provides the only water for most of Idaho. See generally T. Palmer, The Snake River (1991). This litigation followed the enactment by the Idaho Legislature in 1985 and 1986 of legislation providing for the Snake River Basin Adjudication. That legislation stated that “the director of the department of water resources shall petition the [state] district court to commence an adjudication within the terms of the McCarran [Ajmendment.” Idaho Code §42-1406A(l) (1990). The 1985 and 1986 legislation also altered Idaho’s methods for “financing the costs of adjudicating water rights”; it provided that the Director of the Idaho Department of Water Resources shall not accept a “notice of claim” from any water claimant unless such notice “is submitted with a filing fee based upon the fee schedule.” §42-1414. “Failure to pay the variable water use fee in accordance with the timetable provided shall be cause for the department to reject and return the notice of claim to the claimant.” Ibid. Idaho uses these funds “to pay the costs of the department attributable to general water rights adjudications” and “to pay for judicial expenses directly relating to the Snake river adjudication.” §§42-1777(1) and (2). The Director of the Idaho Department of Water Resources filed a petition in the District Court of the Fifth Judicial District naming the United States and all other water users as defendants. The District Court entered an order commencing the adjudication, which was affirmed by the Supreme Court of Idaho. In re Snake River Basin Water System, 115 Idaho 1, 764 P. 2d 78 (1988), cert. denied sub nom. Boise-Kuna Irrigation Dist. v. United, States, 490 U. S. 1005 (1989). When the United States attempted to submit its notices of claims unaccompanied by filing fees, the director refused to accept them. The United States then filed a petition for a writ of mandamus with the state court to compel the director to accept its notices without fees, asserting that the McCarran Amendment does not waive federal sovereign immunity from payment of filing fees. The District Court granted Idaho summary judgment on the immunity issue: “The ordinary, contemporary and common meaning of the language of McCarran is that Congress waived all rights to assert any facet of sovereign immunity in a general adjudication of all water rights . . . which is being conducted in accordance with state law.” App. to Pet. for Cert. 86a (emphasis in original). The Supreme Court of Idaho affirmed by a divided vote. 122 Idaho 116, 832 P. 2d 289 (1992). It concluded that the McCarran Amendment “expresses] a ‘clear intent' of congress to subject the United States to all of the state court processes of an ‘adjudication’ of its water rights with the sole exception of costs.” Id., at 121, 832 P. 2d, at 294. The court also “deeline[d] to read the term judgment for costs as including the term filing fees.” Id., at 122, 832 P. 2d, at 295. Whereas “costs” are charges that a prevailing party may recover from its opponent as part of the judgment, “fees are compensation paid to an officer, such as the court, for services rendered to individuals in the course of litigation.” Ibid. Two justices wrote separate dissents, asserting that the McCarran Amendment does not waive sovereign immunity from filing fees. We granted certiorari, 506 U. S. 939 (1992), and now reverse. The McCarran Amendment provides in relevant part: “Consent is given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a party to any such suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances: Provided, That no judgment for costs shall be entered against the United States in any such suit.” 43 U.S. C. § 666(a). According to Idaho, the amendment requires the United States to comply with all state laws applicable to general water right adjudications. Idaho argues that the first sentence of the amendment, the joinder provision, allows joinder of the United States as a defendant in suits for the adjudication of water rights. It then construes the amendment’s second sentence, the pleading provision, to waive the United States’ immunity from all state laws pursuant to which those adjudications are conducted. Idaho relies heavily on the language of the second sentence stating that the United States shall be “deemed to have waived any right to plead that the State laws are inapplicable.” Because the “filing fees” at issue here are assessed in connection with a comprehensive adjudication of water rights, Idaho contends that they fall within the MeCarran Amendment’s waiver of sovereign immunity. The United States, on the other hand, contends that the critical language of the second sentence renders it amenable only to state substantive law of water rights, and not to any of the state adjective law governing procedure, fees, and the like. The Government supports its position by arguing that the phrase “the State laws” in the second sentence must be referring to the same “State law” mentioned in the first sentence, and that since the phrase in the first sentence is clearly directed to substantive state water law, the phrase in the second sentence must be so directed as well. There is no doubt that waivers of federal sovereign immunity must be “unequivocally expressed” in the statutory text. See Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95 (1990); Department of Energy v. Ohio, 503 U. S. 607, 615 (1992); United States v. Nordic Village, Inc., 503 U. S. 30, 33-34 (1992). “Any such waiver must be strictly construed in favor of the United States,” Ardestani v. INS, 502 U. S. 129, 137 (1991), and not enlarged beyond what the language of the statute requires, Ruckelshaus v. Sierra Club, 463 U. S. 680, 685-686 (1983). But just as “ ‘we should not take it upon ourselves to extend the waiver beyond that which Congress intended[,] . . . [njeither, however, should we assume the authority to narrow the waiver that Congress intended.’ ” Smith v. United States, 507 U. S. 197, 206 (1993) (quoting United States v. Kubrick, 444 U. S. 111, 117-118 (1979)). We are unable to accept either party’s contention. The argument of the United States is weak, simply as a matter of grammar, because the critical term in the second sentence is “the State laws,” while the corresponding language in the first sentence is “State law.” And such a construction would render the amendment’s consent to suit largely nugatory, allowing the Government to argue for some special federal rule defeating established state-law rules governing pleading, discovery, and the admissibility of evidence at trial. We do not believe that Congress intended to create such a legal no-man’s land in enacting the MeCarran Amendment. We rejected a similarly technical argument of the Government in construing the MeCarran Amendment in United States v. District Court, County of Eagle, 401 U. S. 520, 525 (1971), saying “[w]e think that argument is extremely technical; and we decline to confine [the MeCarran Amendment] so narrowly.” We also reject Idaho’s contention. In several of our cases exemplifying the rule of strict construction of a waiver of sovereign immunity, we rejected efforts to assess monetary liability against the United States for what are normal incidents of litigation between private parties. See, e. g., United States v. Chemical Foundation, Inc., 272 U. S. 1, 20-21 (1926) (assessment of costs); Library of Congress v. Shaw, 478 U. S. 310, 323 (1986) (recovery of interest on judgment); Ohio, supra, at 619-620 (liability for punitive fines). And the McCarran Amendment’s “cost proviso,” of course, expressly forbids the assessment of costs against the United States: “[N]o judgment for costs shall be entered against the United States.” The Supreme Court of Idaho pointed out in its opinion that “fees” and “costs” mean two different things in the context of lawsuits, 122 Idaho, at 122, 832 P. 2d, at 295, and we agree with this observation. “Fees” are generally those amounts paid to a public official, such as the clerk of the court, by a party for particular charges typically delineated by statute; in contrast, “costs” are those items of expense incurred in litigation that a prevailing party is allowed by rule to tax against the losing party. See 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2666, pp. 173-174 (1983). Before Idaho altered its system for recovering its expenses in conducting comprehensive water right adjudications in 1985 and 1986, Idaho courts, at the time of entry of final judgment, used to proportionately tax the “costs” of the adjudication against all parties to the suit, and not simply against the losing parties. Idaho Code §42-1401 (1948). When Idaho revised this system, many of the items formerly taxed as “costs” to the parties at the conclusion of the adjudication were denominated as “fees,” and required to be paid into court at the outset. This suggests that although the general distinction between fees and costs may be accurate, in the context of this proceeding the line is blurred, indeed. While we therefore accept the proposition that the critical language of the second sentence of the McCarran Amendment submits the United States generally to state adjective law, as well as to state substantive law of water rights, we do not believe it subjects the United States to the payment of the sort of fees that Idaho sought to exact here. The cases mentioned above dealing with waivers of sovereign immunity as to monetary exactions from the United States in litigation show that we have been particularly alert to require a specific waiver of sovereign inununity before the United States may be held liable for them. We hold that the language of the second sentence making “the State laws” applicable to the United States in comprehensive water right adjudications is not sufficiently specific to meet this requirement. The judgment of the Supreme Court of Idaho is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.- It is so ordered. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
songer_opinstat	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. UNITED STATES of America, Plaintiff-Appellee, v. Sam GATES, Defendant-Appellant. No. 73-1923. United States Court of Appeals, Seventh Circuit. Argued Jan. 10, 1974. Decided Feb. 8, 1974. Jay A. Charon, Gary, Ind., for defendant-appellant. John R. Wilks, U. S. Atty., Fort Wayne, Ind., Andrew B. Baker, Jr., Asst. U. S. Atty., Hammond, Ind., for plaintiff-appellee. Before SWYGERT, Chief Judge, KILEY, Senior Circuit Judge, and SPRECHER, Circuit Judge. PER CURIAM. Defendant-appellant,. Sam Gates, was indicted and convicted for possession of a firearm, which was not registered, in violation of 26 U.S.C. § 5861(d). He has appealed contending that the evidence was insufficient to sustain a conviction. We agree and reverse. According to the evidence most favorable to the Government, the pertinent facts are as follows. On the evening of September 13, 1972 Officers Lewis DeLuna and Robert Nix of the Gary Police Department went to the Skyline Motel in response to a radio dispatch from headquarters in reference to a suspicious light-colored car. As the officers entered the parking lot of the Skyline Motel a light-colored car was departing and the officers proceeded to follow it for a short distance. After observing the occupants of the car look back at them the officers stopped the vehicle. Melvin Jones, the driver of the car got out, walked to the rear, and met Officer DeLuna who questioned him about the vehicle registration and his driver’s license. At the same time Officer Nix walked over to the passenger side of the automobile. As he approached the vehicle Officer Nix testified that the passenger, Sam Gates, “appeared to be nervous and looked over his shoulder a couple of times and then again looked to the front towards the floor of the car. It looked like he was doing something with his hands, I can’t tell what, because I was approaching from the rear.” Officer Nix then requested that defendant step out of the vehicle. When the defendant left the vehicle Officer Nix saw a weapon laying on the floor of the vehicle and protruding from under the seat which defendant had been occupying. Defendant’s indictment, conviction, and this appeal followed. We must ascertain whether the evidence together with all reasonable inferences and viewed in a light most favorable to the Government was sufficient to prove that defendant was guilty beyond a reasonable doubt of violating 26 U.S.C. § 5861(d). In so doing, we are guided in our determination by United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971). In his concurring opinion Mr. Justice Brennan enunciated the quantum of proof necessary to sustain a conviction under 26 U.S.C. § 5861(d): “To convict appellees of possession of unregistered hand grenades, the Government must prove three material elements: (1) that appellees possessed certain items; (2) that the items possessed were hand grenades; and (3) that the hand grenades were not registered. The Government and the Court agree that the prosecutor must prove knowing possession of the items and also knowledge that the items possessed were hand grenades. Thus while the Court does hold that no intent at all need be proved in regard to one element of the offense—the unregistered status of the grenades— knowledge must still be proved as to the other two elements. Consequently, the National Firearms Act does not create a crime of strict liability as to all its elements.” (Emphasis supplied.) Using this criterion we find, upon a review of the record, that the Government failed to prove by sufficient evidence that defendant was guilty beyond a reasonable doubt of violating 26 U.S.C. § 5861(d). The record reveals that the only evidence submitted by the Government connecting defendant with the firearm was: he appeared nervous; he looked over his shoulder; he looked to the front after looking over his shoulder; and, he appeared to be doing something with his hands. We think that the foregoing evidence was insufficient to sustain a conviction. There was no evidence to establish that defendant in any way exercised dominion or control over the firearm. Defendant was merely a passenger and nothing can be inferred from that that he had control over the firearm. Additionally, there was nothing to indicate that during the time defendant was a passenger he had any connection with the gun. The only relationship between the defendant and the firearm was mere proximity which, standing alone, was insufficient to sustain a conviction. To find guilt under the charge the Government was required to produce more proof than it offered. The thrust of the Government’s evidence rested on suspicion and conjecture arising from defendant’s proximity to the firearm. This was not enough. The judgment of conviction is reversed with directions that the district court enter judgment of acquittal for defendant. . Section 5861. Prohibited acts It shall be unlawful for any person— (d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record; . Melvin Jones was indicted with defendant, but was acquitted in a bench trial after electing to waive a jury trial. . The Government’s brief makes reference to testimony that defendant “bent forward.” There is, however, no testimony to this effect in the transcript. . There were no fingerprints found on the gun. Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:
songer_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. Dallas O. WILLIAMS, Petitioner, v. UNITED STATES of America, Respondent. Misc. 3283; No. 22261. United States Court of Appeals District of Columbia Circuit. Jan. 15, 1969. Certiorari Denied May 19, 1969. See 89 S.Ct. 1762. Mr. Dallas O. Williams, pro se. Messrs David G. Bress, U. S. Atty., Frank Q. Nebeker and Robert S. Bennett, Asst. U. S. Attys., entered appearances for respondent. Before Wright and Leventhau, Circuit Judges. PER CURIAM: This case is before us on appeal from the District Court’s refusal to file petitioner’s motion claiming ineffective assistance of counsel. When the application was before us previously, the file did not contain any statement of the reasons of the district judge and accordingly we had to remand in order to obtain those reasons. The district judge has filed a Memorandum of his reasons that was not provided in the first instance, but has been supplied in accordance with our order of remand. In 1960 we held that it is not proper for a district judge to deny leave to file a habeas corpus petition without prepayment of costs unless he expresses his reasons, using whatever form he considers most convenient — informal memorandum, recitals in an order, or findings. The requirement that he state his reasons minimizes the possibility of an arbitrary abuse of power. As Judge Burger pointed out, a statement of reasons is necessary, if only to set forth whether the action is taken for reasons going to the lack of merit or because the applicant is not considered to qualify as a pauper. We have prepared this opinion, again restating the applicable legal requirement, because the response to our remand came in the form of a Memorandum, which the district judge caused to be mimeographed, stating that in view of petitioner’s own comment at sentencing time, “I am at a loss to know why the appellate court remanded the case to this court to state its reasons why the filing of Williams’ petition was denied.” Another paragraph reads: “If, under the circumstances of this case considering the files and records, the Court of Appeals wants Williams’ dilatory and merit-less motion filed, then all they have' to do is to say so, for I have no intention of allowing it to be filed.” These comments not only reflect an unawareness of the legal duty resting on the district judge, as delineated in the opinion cited above, but may also have contributed to a misunderstanding of the function of the district judge by other district judges and the public, advised through the press of the contents of the mimeographed Memorandum. The confusion quickened by the judge’s failure to heed applicable legal principles may well have been sharpened by the tone of his Memorandum. This court’s order in no way indicated that the petition was required to be filed. It only asked that the district judge indicate why it was not filed. Where the district judge has considered the matter, it is easy for him to make a brief statement identifying the point or record reference that shows the petition is without merit; this avoids the necessity that the appellate court, less familiar with the record, will have to do unnecessary work in perusing the papers. The appellate court rightly gives deference to the reasons set forth by the district judge, if supported in the record, but it is hardly in a position to accord such deference when the reasons have never been stated by the district judge. Fortunately, the Memorandum of the district judge included, in addition to the remarks already noted, a statement of his reasons for rejecting the petition. Now that the district judge has performed his function and stated his reasons for refusing leave to file the petition, we can perform ours, and state that they are satisfactory. We take this occasion to note, what this court has previously indicated by order, that it would facilitate judicial administration of these matters if the district judge would simply file the pleading and deny it for lack of merit rather than deny leave to file the document with the court. Petition denied. . While petitioner’s caption is “Answer to Memorandum,” that suffices for purposes of jurisdictional requirement. . Tatem v. United States, 107 U.S.App.D.C. 230, 275 F.2d 894 (1960). Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_respond1_5_2	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant. Eugene E. LE MASTERS, Appellant, v. E. H. TUCKER, Warden, West Virginia State Penitentiary, Appellee. No. 7512. United States Court of Appeals Fourth Circuit. Argued Nov. 7, 1957. Decided Nov. 25, 1957. Mathias J. DeVito, Baltimore, Md. (Court appointed counsel), for appellant. Gene Hal Williams, Asst. Atty. Gen., of West Virginia (William Wallace Barron, Atty Gen., of West Virginia, on brief), for appellee. Before PARKER, Chief Judge, and SOBELOFF and HAYNSWORTH, Circuit Judges. PER CURIAM. This is an appeal from an order denying a petition for a writ of habeas corpus by a prisoner serving sentences of imprisonment under judgments of state courts of West Virginia. The facts are fully set forth in the memorandum opinion and order of the District Judge and need not be repeated at length. The question raised by the petition is whether a court of one county of the state could impose a sentence to begin at the expiration of the sentence imposed by the court of another county. The point was presented in a petition for habeas corpus to the Supreme Court of Appeals of West Virginia, which refused the writ. The point is so lacking in merit that the court below would have been justified in denying the writ in the absence of the action taken by the state court; but, in the light of that action, there can be no question as to the correctness of the court’s ruling. Brown v. Allen 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Goodwin v. Smyth, 4 Cir., 181 F.2d 498. The District Judge properly denied appellant’s application for a certificate of probable cause required by 28 U.S.C. § 2253; and, in the absence of such certificate, there is nothing that we can do but dismiss the appeal. Appeal dismissed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant? A. legislative B. executive/administrative C. bureaucracy providing services D. bureaucracy in charge of regulation E. bureaucracy in charge of general administration F. judicial G. other Answer:
songer_usc1sect	174	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 21. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". Juan ARAUJO-LOPEZ, Appellant, v. UNITED STATES of America, Appellee. No. 22705. United States Court of Appeals Ninth Circuit. Jan. 13, 1969. Ross Anderson (argued), Phoenix, Ariz., for appellant. Daniel Salcito (argued), Asst. U. S. Atty., Edward E. Davis, U. S. Atty., John P. Moran, Phoenix, Ariz., for appellee. Before BARNES, MERRILL and BROWNING, Circuit Judges. PER CURIAM: Defendant was convicted of the sale of heroin to government agents, knowing it to have been illegally brought into the United States. While the sale took place near the Mexican border, the heroin was not then being smuggled across. The sale was arranged, and the purchase money received, by a codefendant who pleaded guilty to a lesser offense and testified against appellant. Considering the evidence in its most favorable light to the Government, as we must on this appeal, we can find in the record no satisfactory proof of any possession, either actual or implied, of the heroin in appellant, or of any knowledge in appellant that it had been illegally imported. The absence of proof of such possession prevents the application of the presumption of illegal importation contained in the second paragraph of 21 U.S.C. § 174. Appellee urges there are three factors present which allow, if they do not compel, an inference of possession — first, that the appellant was present at the scene of the transaction, second, that the appellant fled at the time of his codefendant’s arrest, and third, that the codefendant referred to appellant as his “partner.” Mere presence at the scene, alone, proves nothing as to possession of or dominion over the narcotic. United States v. Di Re, 332 U.S. 581, 593, 66 S. Ct. 222, 92 L.Ed. 210 (1948); Glenn v. United States, 271 F.2d 880, 883 (6th Cir. 1959). Flight might infer a guilty conscience or even a participation in a sale, Burroughs v. United States, 365 F.2d 431 (10th Cir. 1966); United States v. Bostic, 251 F.Supp. 306 (E.D. Pa. 1966), but does not supply the missing proof of possession and the resulting missing presumption of knowledge of importation. A “partner” can mean many things — a “partnership” usually refers to a lawful relationship. None of the appellant’s other points on appeal have merit, but we conclude the evidence is just too thin to support the conviction. We reverse and remand for such further proceedings as are deemed appropriate. 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 21? Answer with a number. Answer:
songer_respond2_7_5	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). Ronald Winston LAING, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee. No. 89-1206EA. United States Court of Appeals, Eighth Circuit. Submitted Sept. 15, 1989. Decided Dec. 14, 1989. Rehearing and Rehearing En Banc Denied Jan. 24, 1990. Bill Luppen, Little Rock, Ark., for defendant-appellant. Robert J. Govar, Little Rock, Ark., for plaintiff-appellee. Before BOWMAN and MAGILL, Circuit Judges, and HARPER, Senior District Judge. The HONORABLE ROY W. HARPER, Senior U.S. District Judge for the Eastern District of Missouri, sitting by designation. HARPER, Senior District Judge. On March 31, 1988, Detective Kirk Lane of the Narcotics Division of the Pulaski County Sheriff’s Office, received information from the manager of the La Quinta Inn located in Little Rock, Arkansas concerning suspicious activity demonstrated by the frequency of persons going in and out of a room rented and occupied by appellant, Ronald Winston Laing. At approximately 3:00 p.m., Detective Lane, and Detective Maddox, also with the Pulaski County Sheriff’s Office, commenced surveillance on appellant’s room (Number 141). The detectives sought information on Laing from their supervisor, Officer Campbell, who subsequently informed the detectives, in person, that the North Little Rock Police Department had a pend-narcotics investigation concerning Laing and that he had an outstanding traffic warrant for his arrest. During the surveillance, Laing requested another room from motel management, which was granted. Prior to Laing occupying the new room (Number 151), the detectives searched it, finding no controlled substances therein. At approximately 6:45 p.m., Laing left the motel by automobile. The detectives continued surveillance on Laing’s room during his absence. At approximately 8:50 p.m., Laing returned to the motel, whereupon Detectives Lane and Maddox arrested him in the motel parking lot on the outstanding traffic warrant. La-ing was subsequently escorted to the room adjacent to Room 151, where he was provided Miranda warnings. The detectives then asked Laing if he would consent to a search of his room (Room 151). Laing consented and signed a written consent form containing specific reference to his right to refuse consent. The detectives’ subsequent search of the room resulted in the seizure of approximately 75 grams of cocaine and an Ohaus triple beam scale. On August 16, 1988, Laing was indicted by the Federal Grand Jury on two counts of possession of cocaine with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). Prior to trial, Laing moved to suppress the drug and non-drug evidence seized from Room 151, arguing that the arrest was pretextual to the search and that his consent to the search was involuntary. On October 21, 1988, United States District Judge Woods orally denied Laing’s motion after an evidentiary hearing. Laing then pleaded guilty to one count of possession of cocaine with intent to distribute, a violation of 21 U.S.C. § 841(a)(1), conditioned upon his right to appeal the District Court’s denial of his motion to suppress evidence, as provided for in Rule 11(a)(2), Fed.R.Crim.P. On January 12, 1989, Laing was sentenced by Judge Woods to forty-one months in a federal penitentiary and three years of supervised release. On January 23, 1989, Laing timely filed a notice of appeal with the District Court appealing the District Court’s denial of his motion to suppress. On appeal, Laing contends that the District Court erred in denying his motion to suppress evidence, arguing that the seizure of such evidence resulted from a pretextual arrest arising from an outstanding warrant for a traffic violation. Laing further argues that the subsequent consent to the search of his motel room was not given voluntarily due to alleged deception on the part of the arresting officers. The applicab1e standard of review by this Court concerning the District Court’s denial of Laing’s motion to suppress which raised the issues of whether Laing s arrest was pretextual and whether his subsequent consent to the search of his motel room was voluntary, is the clearly erroneous standard. Maryland v. Macon, 472 U.S. 463, 470, 105 S.Ct. 2778, 2782, 86 L.Ed.2d 370 (1985) (quoting Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1976); United States v. Turpin, 707 F.2d 332 (8th Cir.1983). Under this standard, the District Court’s decision must be affirmed unless it lacks substantial evidence to support it, it involves an erroneous view of applicable law, or upon considering the entire record, we are left with the definite and firm conviction a mistake has been made. See United States v. Ross, 713 F.2d 389, 392 (8th Cir.1983). An arrest may not be used as a pretext to search for evidence. United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877 (1932). The search must have at least some relation to the matter and purpose of the arrest. Taglavore v. United States, 291 F.2d 262 (9th Cir.1961). The record discloses the following relevant facts to the issue of whether the search of appellant’s motel room was facilitated solely on a pretextual arrest arising from an outstanding traffic warrant. Detective Lane received a phone call from the motel clerk about heavy traffic in and out of appellant’s room; Detectives Lane and Maddox set up surveillance on the room, and subsequently received information about an ongoing narcotics investigation being conducted by the North Little Rock Police Office and an outstanding traffic warrant for appellant’s arrest; the detectives arrested appellant on the outstanding traffic warrant after he returned to the motel parking lot; the detectives returned appellant to the room adjacent to Room 151 and provided him written Miranda warnings; the detectives then asked for appellant’s consent to search Room 151; the detectives subsequently received appellant’s signature on the search consent form; and the detectives then searched the room and found and seized evidence of drugs. Clearly, the detectives’ subsequent search of appellant’s room following his arrest on the traffic warrant had no relation or purpose regarding the subsequent search for drugs. United States v. Hollinan, 541 F.2d 196 (8th Cir.1976). No purpose was served by searching appellant’s motel room concerning his arrest on the traffic warrant. Obviously, then, the District Court could not have based its denial of appellant’s suppression motion on a finding of no pretext. This Court is, however, required to further consider, upon a finding of pretext, whether appellant’s consent to the search was voluntary, a cure for pretextual arrest. United States v. Hollman, supra; United States v. Smith, supra. A warrantless search conducted with a valid consent does not violate the fourth amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The test applied in considering whether consent to search is voluntary is whether, in the totality of all the circumstances, consent to search is given voluntarily without coercion. United States v. Archer, 840 F.2d 567, 573 (8th Cir.1988); United States v. Dennis, 625 F.2d 782, 793 (8th Cir.1980); United States v. Matthews, 603 F.2d 48 (8th Cir.1979); see also Schneckloth, supra. The government has the burden to establish that appellant’s consent was freely and voluntarily given and not a result of duress or coercion. United States v. Matthews, supra. The Supreme Court in United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), set out the following factors to consider when applying the totality of the circumstances review: Proof or a claim of an overt act or threat of force against appellant in securing consent; promises made to appellant; an indication of more subtle forms of coercion flawing appellant's judgment; consent is given in the confines of the police station; proof that appellant did not know that he could withhold consent; an indication from the record that appellant was a newcomer to the law or was mentally deficient or unable in the face of the custodial arrest to exercise free choice; and the circumstances surrounding the provision of Miranda warnings that raises the possibility of impropriety on the part of the officers. The record is clear that the government successfully established that none of the Watson factors were present in regard to Laing’s consent to the search of his motel room. Laing admitted that he signed the consent form that contained the explicit refusal language, that he understood that he had the right to refuse, that no force or violence or threat thereof was made by the detectives, and that his subsequent consent was fully voluntary. Therefore, upon review of the entire record, we conclude that the district court’s denial of Laing’s suppression motion was not clearly erroneous and we affirm La-ing’s conviction. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
songer_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. HANSEN & ROWLAND, Inc. v. C. F. LYTLE CO., Inc. et al. No. 11639. Circuit Court of Appeals, Ninth Circuit. March 16, 1948. Charles T. Peterson and Peterson & Duncan, all of Tacoma, Wash., and James L. Conley, of Portland, Ore., and for appellant. J. Charles Dennis, U. S. Atty., of Seattle, Wash., and Harry Sager, Asst. U. S. Atty., of Tacoma, Wash., for appellees. Before DENMAN, STEPHENS and BONE, Circuit Judges. BONE, Circuit Judge. This is a second appeal from a judgment of the district court determining the amount of insurance premiums to which appellant is entitled from appellees. Appellee contracting companies, Iowa corporations, entered into a cost-plus-fixed-fee contract with the United States Government to perform certain engineer-management functions in connection with a 155 mile portion, designated Sections A-l and A-2, of the Alaska highway. Appellees obtained through appellant insurance agent, a Washington corporation, comprehensive liability insurance covering their operations on this portion of the highway. The policy took effect on June 17, 1942, insured appellees and all associate contractors operating on these sections of the highway, and provided for a premium rate of 85^ per $100 of wages paid to employees of all the contractors. Appellees cancelled the policy as of August 31, 1942. The total -wages paid by all the insured from June 17 to September 1,1942 amounted to $1,055,214.02. Using this amount as the premium base,' at the short-rate premium applicable upon appellees’ cancellation, appellant claimed (as assignee of the insurance company’s claim) and by judgment of the district court was awarded the sum of $16,153.73, plus interest and costs.- Upon,appeal from that judgment by the present appellees, we held in substance that work not done in connection with Sections A-l and A-2 of the highway did not come within the policy coverage and that the payrolls covering work not done in connection therewith could not be used as part of the premium base. C. F. Lytle Co. v. Hansen Rowland, 9 Cir., 151 F.2d 573, 576. In the course of our opinion we stated as follows: “It was testified and is riot disputed that the work done on section A-4 was not directly a part of the A-l or A-2 section work, and it plainly appears that it was not done in connection with the construction of the latter sections as might have been the case if, for example, it had been done so that A-4 might be used for necessary transmission of A-l and A-2 supplies. X * * * * * “ * * * The policy does limit coverage to a specific area. The judgment of the district court awarding the full premium claimed must be reversed. An issue appears to be presented as to whether some part of that section of the payroll representing wages of workers traveling to Alaska prior to assignment comes within the premium base. The cause will be remanded for the taking of such evidence on this or other issues as may be necessary for the entry of a judgment for premiums due in conformity with the views herein expressed as to the policy’s coverage limitation.” Pursuant to our mandate the trial- court held a further hearing. The only additional evidence produced at this hearing was the testimony of one witness for appellees, who had been resident engineer in Alaska for the Government, in charge of the work being done under appellees’ Government contract. This witness testified that during the period in question all of the "insured contractors’ employees and equipment went to Alaska in connection with construction of the 155 mile section, Sections A-l and A-2, but that up on arrival they -were in large part diverted to employment on other sections of the highway. He testified that some work was necessary to improve and maintain a portion of existing roadway designated Section A-3 in order to move men, equipment and supplies in to Sections A-l and A-2. At the time of the hearing there was no means of determining the exact payroll for the work of unloading and moving the equipment upon its arrival in Alaska or for the maintenance work on Section A-3. The witness estimated these amounts for the June 17-August 31 period to be $40,000 and $27,594, respectively, and explained his method of arriving at these figures. The trial court interpreted its duty at the hearing in the following language: “ * * * under this decision of the circuit court I feel that I am impelled to find that the insurance rates should be calculated upon all employees, or their wage that they received in working on the two sections, that’s 1 and 2, during the period here involved, and in addition thereto, there should be included, insofar as it can be ascertained, the time these same employees, or employees of these same contractors put into unloading the equipment and supplies that were to be used on this contract,, plus the time that they put into maintaining the highway on Section 3, so that it was available for the movement of this heavy equipment, plus any travel time within that period covered by the contract.” Applying the foregoing formula, the trial court found the total remuneration attributable to the premium base to be $320,530.49: this comprised $162,882.68 for travel time, $40,000 for unloading and moving equipment, $90,053.81 for work actually done on Sections A-l and A-2, and $27,594 for maintaining Section A-3 in order to move equipment, etc. to Sections A-l and A-2. The earned premium computed on this total remuneration base is $4,904.10, and judgment was entered in favor of 'appellant for that amount, with costs but without interest. Two questions are involved on this appeal. First, did the trial court err in the method it employed to arrive at the earned premiums? Second, did the trial court err in failing to allow appellant interest from the date the policy was terminated? Appellant points to the following provisions contained in the insurance contract : “It is hereby understood and agreed that this policy is issued upon a Monthly pay-roll basis and that immediately after the expiration of each period of One month from date of policy the Assured shall render a written statement to the Company of the full amount of remuneration paid employees during such period and shall immediately, pay the premium thereon based upon, the rates stated in the policy. * * * * * * “ * * * The Lytle Construction Company of Sioux City, Iowa and/or Green Construction Company shall assume responsibility for the maintenance of such records as are necessary for the computation of earned premium on said Policy, and for the payment of such earned premium to the Company. If, in the case of any other contractor or sub-contractor covered as an additional named insured under said Policy, the remuneration of such contractor’s or .sub-contractor’s employees is not available to- the Company, the, earned premium as respects such contractor or sub-contractor shall be computed by using as remuneration 50% of the entire contract or sub-contract cost paid to such contractor or sub-contractor.” From these provisions of the policy, appellant argues (1) that the trial court erred in requiring appellant to bear the burden of establishing the amount of remuneration upon which premiums were to be computed, and (2) that the trial court was bound to compute the earned premium by using as remuneration 50% of the entire contract cost paid each contractor (with modifications hereinafter noted). Little need be said respecting appellant’s first contention. Assuming that appellees had not fulfilled their contractual duty of furnishing proper payroll records to appellant and that the alternative 50% of entire contract cost provision was applicable, the burden of proof would nevertheless remain with appellant to establish the amount of contract cost. Furthermore, from the record it appears that in fact appellees assumed the onus of progressing with the evidence at the rehearing and produced the only additional evidence on the questions which were there to be determined. We are inclined to agree with appellees that the problem here is not one of burden of proof but rather one of contract interpretation. In any event, we cannot spell out from the questioned ruling of the trial court that “the burden is on you [appellant] to establish some amount” any prejudicial error or any such impairment of contract as appellant urges. It seems evident that appellant’s primary concern is the method by which the earned premium should be ascertained. Appellant’s present argument in this regard —which it may be remarked has not been seriously suggested prior to this appeal— is that under the above quoted policy provisions, appellees failed to produce the records necessary for premium computation and therefor the alternative 50% of entire contract cost base should have been used by the trial court in computing the premium. Appellant concedes the correctness of including in the premium base the amounts expended for travel time and for work actually done on Sections A-l and A-2: a total of $252,936.49. This total excludes the estimates of remuneration for unloading equipment and for maintenance of Section A-3 which, were included in the premium base by the trial court. Appellant would add to this $252,936.49, 50% of the difference between that amount and the total amount of wages paid by all the contractors, $1,055,214.02, to arrive at a base figure of $654,075.25, on which the earned premium would be $10,-193.20. Appellant’s present theory is demonstrably unsound. Appellees furnished to appellant during the period the policy was in effect all the required statements of “the full amount of remuneration paid employees.” The record is not clear as to whether appellees maintained and submitted “such records as are necessary for the computation of earned premium,” in light of our earlier decision as to the policy coverage. But the express condition in the policy upon which the alternative 50% of entire contract cost provision became operative, was that the remuneration of the contractors’ employées be “not available to the Company” — a condition which was not established by appellant at the hearing. There is an even more apparent defect in appellant’s present argument. Invocation of the 50% of total contract cost provision as to $654.075.25 of total wages paid, as appellant would .have it, would necessarily encompass in the premium base remuneration for work not done in connection with Sections A-l and A-2. This we have already held cannot be done because of the specifically restricted coverage of the policy. Appellant’s formula for computation arrives at a premium base which is equally as improper as the base which we have heretofore explained and held must be condemned. Compliance with our prior holding in this case required that evidence be taken as to remuneration properly includible in computing the premium due. Such evidence was introduced by appellees in the testimony of the Government engineer who was in charge of appellees’ operations. The accuracy of the estimates given by this witness is not challenged by appellant. The trial court acted in harmony with our mandate in including these estimates, absent any better evidence, in the base upon which appellant’s premium was figured. We conclude that the trial court adopted a proper criterion for computation of the premium and that its findings are amply supported by the evidence. The second question presented is whether appellant is entitled to interest from the time the policy was terminated. Appellant states that. under, the law of the State of Washington, which is concededly determinative on this question, interest is allowable from the date an unliquidated claim is due if the amount of the claim can be ascertained by mere computation, though the legal basis of the computation is controverted by the parties. Applying this rule to the facts of the case, appellant reasons that since the premium rate was fixed in the policy, the amount of premium could be determined merely by multiplying the amount of remuneration paid according to appellees’ records by the provided rate, and appellant concludes that interest should be charged from September 1, 1942 when the premium to which it is entitled became due. Examination of the Washington cases cited by the parties discloses that the following legal precepts obtain in that jurisdiction. Interest is generally allowable on an unliquidated claim only from the date of judgment. Nelson v. Seattle, 180 Wash. 1, 38 P.2d 1034; Ferber v. Wisen, 195 Wash. 603, 82 P.2d 139. As an exception to this rule, interest is allowable on an unliquidated claim when the amount thereof can be ascertained by mere computation, and the claim is treated as liquidated from the time that its certainty is so determinable. Dornberg v. Black Carbon Coal Co., 93 Wash. 682, 161 P. 845; Barbo v. Norris, 138 Wash. 627, 245 P. 414. Where the amount due is thus determinable by computation, the fact that the legal basis of the computation was a subject of controversy between the parties is immaterial. Empire State Surety Co. v. Moran Brothers Co., 71 Wash. 171, 127 P. 1104. If evidence is necessary to establish the amount of the daim, then interest anterior to judgment is not allowable. “Where, however, the demand is for something which requires evidence to establish the quantity or amount of the thing furnished or the value of the services rendered, interest will not be allowed prior to judgment.” Wright v. Tacoma, 87 Wash. 334, 353, 151 P. 837, 844; Lloyd v. American Can Co., 128 Wash. 298, 314, 222 P. 876; Brewster v. State, 170 Wash. 422, 424, 16 P.2d 813. The last of the foregoing principles appears to govern the situation in the case at bar. Although this action was originally commenced on the theory of an account stated, this theory was patently inapplicable here and the trial of the case did not proceed upon that basis. After our decision on the first appeal it was necessary for evidence to be introduced in the court below to establish the total amount of remuneration for work performed in connection with Sections A-l and A-2 of the Alaska highway. Until the several categories of work which came within the policy coverage and the amounts of compensation which made up the premium base were established by competent evidence, appellant’s claim could not be determined by “mere computation.” Since evidence was obviously necessary in order to ascertain the amount of the premium due, interest was properly not allowed prior to the entry of judgment. As a further reason for the allowance of interest from due date, appellant urges that our prior decision in this case is res adjudicata on this question. The original judgment of the lower court from which the first appeal was taken awarded interest from September 1, 1942. In our decision reversing the judgment and remanding the case, our only allusion to interest was in describing the judgment of the lower court. The authorities cited by appellant to the effect that whatever has been decided on one appeal is res adjudicata on a subsequent appeal in the same suit, unquestionably state the law. However, the conclusive answer to appellant’s contention is that on the prior appeal in this case, the matter of interest was not raised by the parties and was not considered, discussed or decided by this court. Appellant’s attempt to ascribe some significance regarding interest to the implied approval in our earlier opinion of the $90,053.81 amount as part of the premium base, is without merit. We find no error. Affirmed. Question: What is the total number of respondents in the case? Answer with a number. 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. LAM LEK CHONG, Appellant, v. UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, Appellee. No. 89-5159. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 11, 1990. Decided April 9, 1991. William F. Fox, Jr. (appointed by the Court) as amicus curiae on behalf of appellant urging that this case be remanded. Lam Lek Chong, pro se, also entered an appearance for appellant. Thomas J. McIntyre, Asst. U.S. Atty., Dept, of Justice with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Dept, of Justice, were on the brief for appellee. Before WALD, EDWARDS and D.H. GINSBURG, Circuit Judges. Opinion for the Court filed by Circuit Judge EDWARDS. EDWARDS, Circuit Judge: This case involves information obtained by wiretap pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”). Mr. Lam Lek Chong brought an action under the Freedom of Information Act (“FOIA”) seeking access to certain transcripts of electronically intercepted communications in the possession of the United States Drug Enforcement Administration (“DEA” or the “agency”). The District Court granted summary judgment for the DEA, holding that the product of Title III surveillance is immune from disclosure under Exemption 3 of the FOIA. See Lam v. DEA, Civ. Action No. 85-3726, 1988 WL 26083 (D.D.C. Mar. 14, 1988), reprinted in Appendix (“App.”) 120. That exemption allows agencies to withhold records that are “specifically exempted from disclosure by statute” where the relevant statute satisfies one of two limiting conditions. On appeal, Mr. Lam challenges the District Court determination that Title III qualifies as an exempting statute under Exemption 3. Mr. Lam also objects to the District Court’s failure to review in camera additional documents withheld by the DEA under other FOIA exemptions. We find that material obtained under Title III falls within the scope of Exemption 3. Because Title III identifies “intercepted communications” as “particular types of matters to be withheld” within the meaning of Exemption 3(B), it constitutes a valid statutory basis for nondisclosure. Thus, the District Court properly sustained the DEA’s claimed exemption for wiretap transcripts. We also find that the District Court acted well within its discretion in finding it unnecessary to conduct in camera review of records withheld by the agency under alternative exemptions. Accordingly, we affirm the District Court, judgment in its entirety. I.BACKGROUND In July 1975, Mr. Lam was convicted of a criminal offense in the state of New York. During the course of his trial and the ensuing appellate proceedings, he became aware that the DEA was in possession of documents and audio recordings relating to him that were neither introduced at trial nor made available to his defense attorneys. See Complaint, reprinted in App. 2. This case arises from Mr. Lam’s efforts to obtain the materials in question under the FOIA. Mr. Lam submitted his first FOIA request to the DEA in August 1978, seeking copies of all records pertaining to him in the Washington office. As a result of this initial request, 281 full or partial pages of material were released to Mr. Lam. A subsequent request, focusing on the disclosure of undercover transcripts or recordings, resulted in the release of an additional 545 full or partial pages. See Lam, mem. op. at 2-4, reprinted in App. 122-24. In responding to the two requests, the DEA withheld approximately 190 full pages of material, and excised further information from a number of the documents released. In addition to Exemption 3, the agency invoked FOIA Exemptions 2, 5 and 7(D), (E) and (F) in support of its decision to withhold. See id. at 1, reprinted in App. 121. The Department of Justice Office of Information and Privacy denied Mr. Lam’s subsequent administrative appeal and affirmed the DEA withholdings. Mr. Lam filed a FOIA action in the District Court in November 1985. The DEA responded with a motion for summary judgment, accompanied by an itemized index of withheld material and the affidavit of a DEA Freedom of Information Specialist. See Lam, mem. op. at 4, reprinted in App. 124. Apparently dissatisfied with the DEA’s 1,000-page index, Mr. Lam moved for production of a more complete -index and then requested that the District Court conduct in camera review of the withheld material before ruling on the claimed FOIA exemptions. See id. at 4-5, reprinted in App. 124-25; Brief of Appellant at 4. The DEA filed a supplemental affidavit with its opposition to Mr. Lam’s motion. See Lam, mem. op. at 4-5, reprinted in J.A. 124-25. The District Court granted summary judgment for the DEA on March 14, 1988. The trial court first sustained the adequacy of the DEA withholding index and accompanying affidavits, ruling in camera review unnecessary. Lam, mem. op. at 5-6, reprinted in App. 125-26. The District Court then proceeded to approve each of the FOIA exemptions invoked by the agency. In relevant part, it held that transcripts of electronic interceptions are “specifically exempted from disclosure” by Title III and hence protected from disclosure under Exemption 3. Id. at 12-13, reprinted in App. 132-33. The District Court denied Mr. Lam’s subsequent motion to alter or amend its earlier decision, see Lam v. DEA, Civ. Action No. 85-3726 (D.D.C. Apr. 19, 1989), reprinted in App. 152, and this appeal ensued. II. Analysis A. Title III FOIA Exemption 3 permits agencies to withhold material that is “specifically exempted from disclosure by statute” provided that the statute invoked either “(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). Because this case turns in critical part on the interaction between Title III and FOIA Exemption 3, we begin our analysis with an examination of Title III itself. In enacting Title III, Congress sought to regulate comprehensively both the use of electronic surveillance as an investigative tool and the disclosure of materials obtained through such surveillance. See Gelbard v. United States, 408 U.S. 41, 46, 92 S.Ct. 2357, 2360, 33 L.Ed.2d 179 (1972). The purpose of the statute is to control the conditions under which interception will be permitted in order to safeguard the privacy of wire and oral communications. See id. at 48, 92 S.Ct. at 2361 (quoting S.Rep. No. 1097, 90th Cong., 2d Sess. 66 (1968)). Animating the whole of Title III is “an overriding congressional concern” with the protection of individual privacy. Id. Title III safeguards privacy in the first instance by significantly restricting the initiation of electronic surveillance. Surveillance techniques are authorized only in the investigation of specified serious offenses. See 18 U.S.C. § 2516(1) (1988). All surveillance is subject to prior judicial approval, issued in accordance with detailed application procedures and on a showing and finding of probable cause. See 18 U.S.C. § 2518 (1988). Moreover, the government may not resort to electronic surveillance unless normal investigative methods are demonstrably infeasible. See 18 U.S.C. § 2518(3)(c). Congressional sensitivity to privacy rights is perhaps most evidently reflected in Title Ill’s strictly limited disclosure provisions. Apart from two instances in which judges authorizing interception may, at their discretion, release intercepted material to parties overheard, see 18 U.S.C. § 2518(8)(d), (10)(a), use and disclosure is governed by section 2517 of the statute. Section 2517 permits disclosure of intercepted communications in three circumstances only: (1) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication ... may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure. (2) Any investigative or law enforcement officer ... may use such contents to the extent such use is appropriate to the proper performance of his official duties. (3) Any person who has received, by any means authorized by this chapter, any information concerning a wire, oral, or electronic communication ... may disclose the contents ... while giving testimony under oath.... 18 U.S.C. § 2517(1)-(3) (1988). Moreover, Title III explicitly authorizes the recovery of civil damages by persons whose communications are disclosed in violation of the statute. 18 U.S.C. § 2520 (1988). Taken together, these provisions represent a comprehensive statutory scheme dedicated to preserving personal privacy by sharply limiting the circumstances under which surveillance may be undertaken and its fruits disclosed. B. Exemption S It is undisputed that intercepted communications of the sort at issue in this case are “specifically exempted from disclosure” by Title III as contemplated by the threshold provision of Exemption 3. See note 2 supra. Cf. American Friends Serv. Comm. v. Webster, 720 F.2d 29, 72-73 (D.C.Cir.1983) (Title III materials are “[r]ecords, the use of which is restricted by law” under exception to records inspection statute). The DEA does not claim that subsection (A) of Exemption 3 is applicable in this case. See note 2 supra. Thus, the parties’ dispute here focuses on the question whether Title III satisfies either of the two limiting conditions of Exemption 3 subsection (B); that is, whether Title III “establishes particular criteria for withholding” or “refers to particular types of matters to be withheld.” See note 2 supra. We find that Title III falls squarely within the scope of subsection (B)’s second prong, as a statute referring to “particular types of matters to be withheld.” On its face, Title III clearly identifies intercepted communications as the subject of its disclosure limitations. See 18 U.S.C. § 2517 (“Authorization for disclosure and use of intercepted wire, oral, or electronic communications”). And Title Ill’s specification of the type of matter to be withheld is at least as narrow and well-defined as others to which we have applied subsection (B)’s second prong. See, e.g., Mudge Rose Guthrie Alexander & Ferdon v. ITC, 846 F.2d 1527, 1529-31 (D.C.Cir.1988) (Tariff Act provision for nondisclosure of “proprietary information” qualifies under second prong of subsection (B) as Exemption 3 withholding statute); Medina-Hincapie v. Department of State, 700 F.2d 737, 742 (D.C.Cir.1983) (Immigration and Nationality Act provision for nondisclosure of information “pertaining to the issuance or refusal of visas” so qualifies). Most important, the policy underlying subsection (B) dictates that Title III be treated as an exempting statute. Subsection (B)’s second prong is intended to reach those statutes in which Congress itself has manifested a determination that certain specified material should remain confidential. See CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1140 (D.C.Cir.1987), cert. denied, 485 U.S. 977, 108 S.Ct. 1270, 99 L.Ed.2d 481 (1988); American Jewish Congress v. Kreps, 574 F.2d 624, 628-31 (D.C.Cir.1978). In this case, there can be no doubt that Title Ill’s reference to intercepted communications as “matter to be withheld” embodies the requisite legislative judgment as to the advisability of secrecy, stemming from a pronounced congressional concern for the protection of individual privacy. Under these circumstances, subsection (B)’s second prong is properly invoked to support nondisclosure under FOIA Exemption 3. We reject the suggestion of Mr. Lam that subsection (B) is inapplicable where, as here, a statute identifies matters to be withheld by reference not to their content, but instead to the process by which they are collected. As Mr. Lam notes, Title III exempts from disclosure any kind of information that is electronically intercepted, regardless of its subject matter and solely by virtue of the means by which it is obtained. See Reply Brief of Appellant at 8. In this respect, Title III is much like the National Security Act, which has been held to be an Exemption 3 statute under the second prong of subsection (B). See CIA v. Sims, 471 U.S. 159, 167-68, 105 S.Ct. 1881, 1886-87, 85 L.Ed.2d 173 (1985). The statutory provision at issue in Sims, calling on the Director of the CIA to protect “intelligence sources and methods,” also offered a “process” definition of material to be withheld, without limits based on content. Nonetheless, the Supreme Court had no difficulty in concluding that the National Security Act referred to “particular types of matters to be withheld” within the meaning of Exemption 3(B)’s second prong. See id. In light of Sims, we can see no reason why Title III should be disqualified as an Exemption 3 statute simply because it defines matters to be withheld on the basis of process. It is true, as Mr. Lam argues, that such process definitions might be so broad as to defeat the “general philosophy of full agency disclosure” which underlies FOIA. See, e.g., S.Rep. No. 813, 89th Cong., 1st Sess. 3 (1965). If, for instance, some hypothetical statute specified “materials found in any agency file” as a “type of matter to be withheld,” we would undoubtedly find the reference insufficiently particularized to satisfy subsection (B)’s second prong. The process at issue in this case, however — the electronic interception of communications — is a severely restricted one. Identification of matter to be withheld by reference to this process simply does not carry the potential for wholesale agency nondisclosure. See Medina-Hincapie, 700 F.2d at 742-43 (second prong of subsection (B) applies absent potential for widespread agency discretion over withholding). Instead, administrative withholding authority remains tightly circumscribed, extending no further than the product of electronic surveillance. That the scope of agency authority is delineated by process rather than by content is in no sense ironic given that it is precisely the process for obtaining information that has occasioned Congress’ concern about disclosure. Thus, we conclude that Title III “refers to particular types of matters to be withheld” within the meaning of subsection (B)'s second prong. Because subsection (B)’s limiting conditions are phrased in the disjunctive, a statute need satisfy only one of the cited conditions to qualify under Exemption 3, see Association of Retired R.R. Workers, Inc. v. United States R.R. Retirement Bd., 830 F.2d 331, 334 (D.C.Cir.1987); thus, our finding as to the applicability of the second prong of subsection (B) is dispositive of this case. In reaching this result, it is unnecessary for us to decide whether, under FOIA, Title III establishes “particular criteria for withholding” under the first prong of subsection (B). Albeit limited, our holding should not be taken to suggest that Title III does not impose constraints on agency use and disclosure of intercepted communications. Section 2517 of Title III permits just three types of disclosure: disclosure by one law enforcement officer to another in the line of official duty, 18 U.S.C. § 2517(1); disclosure by a law enforcement officer “to the extent such use is appropriate to the proper performance of his official duties,” 18 U.S.C. § 2517(2); and disclosure by any person while giving testimony under oath, 18 U.S.C. § 2517(3). See, e.g., United States v. Gerena, 869 F.2d 82, 84-86 (2d Cir.1989) (use of intercepted communications in trial preparation authorized by section 2517(2)); American Friends Serv. Comm., 720 F.2d at 72-73 (disclosure limited to law enforcement purposes; quoting S.Rep. No. 1097, 90th Cong., 2d Sess. 99 (1968)). Thus, we recognize the truth of the DEA’s argument that its authority to withhold and disclose intercepted communications is closely regulated by section 2517. In light of our holding today, however, we find it unnecessary to decide whether the foregoing criteria is “particularized” enough to meet the first prong of subsection (B). C. In Camera Review Finally, we reach Mr. Lam’s contention that the District Court erred by declining to conduct an in camera inspection of documents withheld by the DEA pursuant to various FOIA exemptions. According to Mr. Lam, the DEA’s index of withheld material was inadequate, necessitating in camera review to evaluate properly the validity of DEA claims under FOIA Exemptions 2, 5 and 7. See Brief of Appellant at 35-40. We find Mr. Lam’s argument to be without merit. Section 552(a) of the FOIA, 5 U.S.C. § 552(a)(4)(B), permits but does not require in camera review of withheld documents. The decision whether to perform in camera inspection is left to the “broad discretion of the trial court judge.” See Carter v. Department of Commerce, 830 F.2d 388, 392 (D.C.Cir.1987). In camera inspection may be appropriate in two circumstances: when agency affidavits are insufficiently detailed to permit meaningful review of exemption claims, and when evidence of agency bad faith is before the court. See id. at 392-93. Mr. Lam bases his claim to in camera review entirely on the first of these factors, citing the purported inadequacy of the DEA’s index and affidavits. The index submitted by the DEA in this case consisted of a separate document for each page withheld or excised, describing the type of record withheld, the nature of the information withheld and the exemption claimed. See App. 158-66; cf. King v. Department of Justice, 830 F.2d 210, 219-28 (D.C.Cir.1987) (index inadequate where it relies on coding system rather than separate page descriptions of each withheld document). According to Mr. Lam himself, the index submitted by the DEA consisted of approximately 1,000 pages. See Brief of Appellant at 4. After considering Mr. Lam’s objections, the District Court ruled the DEA index and accompanying affidavits sufficient and in camera review unnecessary: [i]n sum, DEA has compiled an indexed itemization which sets forth a description of every page of relevant DEA documents requested by plaintiff either withheld or excised pursuant to its exemption claims. The affidavits of [DEA] also provide a specific narrative description of the creation of these documents and set[] forth specific reasons for the invocation of each exemption. DEA’s itemization, with accompanying affidavits, clearly meets the summary judgment standard and an in camera inspection of these documents is therefore unnecessary. Lam, mem. op. at 6 (citation omitted), reprinted in App. 126. We find nothing in the record to suggest that the District Court abused its discretion, and we will not disturb its ruling on review. III. Conclusion We affirm the District Court judgment in its entirety. Title III is an exempting statute under FOIA Exemption 3 because it “refers to particular types of matters to be withheld” within the meaning of Exemption 3(B)’s second prong. Therefore, the District Court properly held the transcripts of intercepted communications sought by Mr. Lam protected from disclosure under FOIA Exemption 3. The District Court also acted well within its discretion in sustaining the DEA’s other claims to exemption without conducting in camera review of the withheld documents. Accordingly, the District Court grant of summary judgment for the DEA is affirmed. So ordered. . 18 U.S.C. § 2510 et seq. (1988). .The relevant statutory provision reads as follows: (b) This section does not apply to matters that are— (3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.... 5 U.S.C. § 552(b)(3) (1988). .5 U.S.C. § 552(b)(2), (5), (7)(D)-(F). . The Supreme Court has consistently observed that “[tjhe Freedom of Information Act sets forth a policy of broad disclosure of Government documents in order ‘to ensure an informed citizenry, vital to the functioning of a democratic society.’ ” FBI v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 2059, 72 L.Ed.2d 376 (1982) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2327, 57 L.Ed.2d 159 (1978)) (citing EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973)). . An additional check on agency discretion is provided in this case by the fact that Title III subjects the collection of intercepted communications to judicial control. See 18 U.S.C. § 2518. Because the creation of nondisclosable records is strictly monitored by the courts, agencies are without power to expand the class of material covered by Title Ill's withholding directive. Cf. American Jewish Congress, 574 F.2d at 631 (second prong of subsection (B) inapplicable where agency can expand quantity and diversity of nondisclosable information beyond extent originally contemplated by statute). .Contrary to Mr. Lam’s suggestion, the standards established by section 2517 are in no way undermined by the judicial disclosure provisions of section 2518. That a statute provides for release of information at the discretion of a judge is simply irrelevant to analysis under subsection (B). FOIA’s concern is with the exercise of unbridled agency discretion over document disclosure, and not with judicial discretion. See GTE Sylvania, Inc. v. Consumers Union of the United States, 445 U.S. 375, 385-86, 100 S.Ct. 1194, 1201, 63 L.Ed.2d 467 (1980). Statutory provisions subjecting disclosure to judicial approval do not allow for discretionary administrative decisionmaking, and are thus covered by Exemption 3(A) as dictating withholding "in such a manner as to leave no discretion on the issue.” See Fund for Constitutional Gov’t v. National Archives and Records Serv., 656 F.2d 856, 868 (D.C.Cir.1981) (“Any disclosure to persons outside of the government may only be made pursuant to a court order [under Rule 6(e) of the Federal Rules of Criminal Procedure]. Therefore, the rule's ban on disclosure is for FOIA purposes absolute and falls within subpart (A) of Exemption 3."). Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_procedur	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. Charles McGILL, Appellant, v. UNITED STATES of America, Appellee. Walter M. HINTON, Appellant, v. UNITED STATES of America, Appellee. Nos. 18828, 18829. United States Court of Appeals District of Columbia Circuit. Argued April 29, 1965. Decided June 29, 1965. Mr. Warren E. Baker, Washington, D. C. (appointed by this court) for appellant in No. 18828. Mr. Robert B. Frank, New York City (appointed by this court) for appellant in No. 18829. Mr. Frank Q. Nebeker, Asst. U. S. Atty. with whom Messrs. David C. Acheson, U. S. Atty., Robert X. Perry and Martin R. Hoffmann, Asst. U. S. Attys., were on the brief, for appellee. Before Wilbur K. Miller, Senior Circuit Judge, and Fahy and Leventhal, Circuit Judges. LEVENTHAL, Circuit judge. Following the return of an indictment against them on April 27, 1964, appellants, McGill and Hinton, together with a third defendant Barnhart, were arraigned in open court on May 1, 1964. They were charged on one count with robbery, and on another count with assault with intent to rob (based on separate complaints). The case came to trial on June 9, 1964. On June 15, 1964, the jury returned its verdict, finding McGill guilty of simple assault and assault with intent to commit robbery and Hinton guilty of robbery and of simple assault. Barnhart was acquitted on all counts. McGill and Hinton appealed from their conviction proceeding in forma pauperis. I Permissibility of Accepting Plea of Not Guilty Prior to Assignment of Counsel. Appellants contend that they have been denied the constitutional right of an accused under the Sixth Amendment “to have the Assistance of Counsel for his defence.” This claim is based on the fact that on May 1, 1964, prior to appointment or assignment of counsel, they were arraigned before the Chief Judge of the District Court, who accepted from each a plea of not guilty. The docket sheet shows that on May 1, 1964, the Chief Judge referred Hinton’s case and Barnhart’s case for appointment of counsel. While no such indication appears on the record with respect to Mc-Gill’s case, separate counsel were in fact appointed by the Court for each defendant on May 6,1964. The contention is that the Sixth Amendment requires the protection of counsel at “every step” in the proceedings. This is the language of Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Furthermore, Rule 44 of the Federal Rules of Criminal Procedure provides that when the accused is without counsel, the Court shall “assign counsel to represent him at every stage of the proceeding.” The counsel appointed by this court argue to us that surely the arraignment is a “step” or “stage” in the criminal proceeding and that counsel is accordingly required. Cf. Evans v. Rives, 75 U.S.App.D.C. 242, 250, 126 F.2d 633, 641 (1942). Counsel concede that they seek reconsideration of our ruling in Council v. Clemmer, 85 U.S.App.D.C. 74, 177 F.2d 22, cert. denied, 338 U.S. 880, 70 S.Ct. 150, 94 L.Ed. 540 (1949). See also United States ex rel. Cooper v. Reincke, 333 F.2d 608, 612 (2d Cir. 1964). The case involves a question of constitutional protection. The decision involved, rendered fifteen years ago, lies in a domain of jurisprudence which has been the subject of fresh consideration by the courts. The scope of constitutional requirements has been redefined in the light of changing conditions, and the increasing awareness of the underlying needs of a democratic society devoted to the pursuit of equal justice for all under law. Accordingly, we have taken the point under advisement for fresh consideration. See Ricks v. United States, 118 U.S.App.D.C. 216, 218-219, note 2, 334 F.2d 964, 966-967 (1964). Upon due reflection we see no basis for concluding that the Constitution requires the presence or assignment of counsel at a point when and where there is no reasonable possibility of prejudice to the rights or position of an accused, as in these cases. The general language in Johnson v. Zerbst and Rule 44 must be read in the light of their fundamental purpose to provide the guiding hand of counsel at every step where an accused who is without counsel may be prejudiced. The taking of appellants’ plea of not guilty on arraignment stands on an entirely different footing from the taking of a plea of guilty, which manifestly involves a possibility of such prejudice and hence cannot be accomplished prior to assignment of counsel. Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 92 L.Ed. 309 (1948); Evans v. Rives, supra. Appellants’ contention is developed in conceptual terms. The exaltation of abstraction above reality should not be condoned for the purpose of denying constitutional rights and should not be indulged for the purpose of creating constitutional rights. Counsel say that where the constitutional rights of an accused are involved it is not necessary to make a showing of actual prejudice. But before the court concludes that there is a constitutional right it must at least determine that the accused has been not necessarily prejudiced in fact, but at least exposed to a reasonable possibility of prejudice in fact. Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) is invoked by appellants. That opinion cannot fairly be taken as a decision or indication that counsel is required in the Federal courts upon a plea of not guilty. In that case the Supreme Court held that the Constitution required Alabama to provide counsel to accused at time of arraignment because of the necessity under Alabama law for asserting certain defenses at time of arraignment. Accordingly, the Supreme Court stated (p. 54, 82 S.Ct. p. 159) that in Alabama “[Arraignment] is a critical stage in a criminal proceeding. * * * Available defenses may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes.” In these cases, however, the accused were not subject to the loss of defenses because of lack of counsel at the time of the not guilty pleas. Counsel suggested there is the possibility of prejudice inherent in the provisions of Rule 12 of the Federal Rules of Criminal Procedure concerning motions asserting defenses and objections based on defects in the institution of the prosecution or in the indictment or information. Rule 12(b) (3) provides: “The motion shall be made before the plea is entered, but the court may permit it to be made within a reasonable time thereafter.” The possibility of prejudice is asserted to derive from the possibility that the court may not permit such motion to be entered after the plea. It has always been the lore, and we hereby expressly declare it to be the law, of this jurisdiction that the defendant has an absolute right to consideration on the merits of objections encompassed by Rule 12, provided the motion be made within a reasonable time after the appointment of counsel, and his motion is in no way to be subject to prejudice because the plea of not guilty was taken prior to the appointment of counsel. If necessary to avoid possibility of prejudice, for some reason which we ■cannot anticipate, a defendant should be rearraigned. In Blue v. United States, 119 U.S.App.D.C. 315, 342 F.2d 894, decided October 29, 1964, we held it requisite that accused be affirmatively advised that indigents are entitled to assignment of counsel without cost before United States commissioners in the District of Columbia may proceed with the preliminary examination. The court there discussed not only the Federal Rules of Criminal Procedure but also the Legal Aid Act, providing that the courts “will make every reasonable effort to provide assignment of counsel as early in the proceeding .as practicable.” 2 D.C.Code sec. 2202. The District of Columbia is unique in the lead it has taken in quest •of equal justice for all. As noted in Blue, this is due “in large part to an enlightened bar which has shouldered a truly professional responsibility of staggering scope.” Our courts and bar have been in the forefront of this effort, and it is a •front that is ever moving forward. Administration is under constant study in ■quest of improvement. The Blue case itself should substantially reduce the number of defendants without counsel, retained or assigned, at time of arraignment. The administration of the Lega* Aid Act and of the Criminal Justice Act provide continuing opportunities to the bench and bar to improve the administration of criminal justice and to enhance the effective representation of the accused in all ways right and proper. Without presuming in any way to speculate on the improvements that may lie ahead, it suffices here to say that the accused have not presented cause for reversal in these cases. II Alleged Failure to Permit Defendant’s Retainer of Counsel of His Choice. Another Sixth Amendment question is raised by McGill’s contention that his right to the assistance of counsel was violated when the Court summarily denied his pro se motion to dismiss appointed counsel, and when he was subsequently compelled to go to trial with court appointed counsel. A handwritten letter signed by McGill was received by Chief Judge McGuire on June 5, 1964, four days before the beginning of the trial. The letter is short and is quoted as written: Charles McGill 200 19th Street, S. E. Washington, D. C. Chief Justice McGuire United States District Court Washington 1, D. C. The Most Honorable Judge McGuire This letter in reference to criminal case No. 367-64 [238 F.Supp. 230], I the defendant, Charles McGill would like to notify the court at this time that I am able to afford my own counselor, and would like for the legal aid counselor dismiss. I also would like for the court to reduces my bond from $10,000 to a reasonable amount. I hope the court will consider this, and pray that the court will take this under advisement. Respectfully yours /s/ Charles McGill Charles McGill # 141891 At the foot of the letter, Chief Judge McGuire noted “Denied” and subscribed his signature and the date, 6/5/64. Aside from what may be inferred from this letter, the record is void of any indication whether or why McGill was dissatisfied with his court appointed counsel. In his notice of appeal, dated July 23, 1964, he claimed no error in denial of his motion to have his attorney relieved. Similarly, no allegation is made and nothing in the record suggests that Mc-Gill was inadequately represented at the 5-day trial, or that he wished to forgo the assistance of counsel. We presume that in ordinary circumstances an accused who finds that funds have become available may, for reasons sufficient unto him, conclude that he prefers to have his own paid counsel, without necessarily claiming that appointed counsel is inadequate. Here, however, his request was made at a late date, only some four days in advance of the date set for trial. He did not say whom he would prefer to represent him. His letter gave no indication or assurance that granting his request could ^ be accomplished without delay of trial date. No other attorney made an appearance or offer of availability in McGill’s behalf. Under the circumstances this brief request, without any explanation of why the accused wished to remove his counsel or how he wished to proceed thereafter, was insufficient to put off the trial or effect a change in his representation. There is a marked distinction between this case and United States v. Plattner, 330 F.2d 271 (2d Cir. 1964), upon which McGill relies. Plattner acted promptly in asking the court to relieve assigned counsel and to allow him to act pro se. Moreover, since Plattner was necessarily present in any event, he suggested no delay in seeking to come forward to represent himself. McGill, having been arrested on January 23, 1964, had ample time to secure the services of an attorney of his own choice. There is no indication in the record nor has any suggestion been made that McGill was in any way impeded in seeking to retain counsel, or that he wished to waive his right to the assistance of counsel and to proceed pro se. Counsel appointed by this court allude in passing to the fact that the record before us does not contain an affidavit of McGill in the District Court attesting to his indigence. The point is without materiality when the available files are examined. It was not claimed that McGill did not, at least at the time his counsel was appointed, desire the help of such counsel. If anything, the District Judge is to be commended, not censured, for providing McGill with appointed counsel even though the formal paper record was not airtight. We see no prejudice or denial of substantial rights. Ill The Reasonable Doubt Charge Appellants also contend that the passage of the charge relating to definition of reasonable doubt, set out in the margin, erroneously departed from the definition approved by this court. It is agreed by counsel for both the accused and the Government that the charge was correct insofar as it instructed the jury that the proof would not be beyond a reasonable doubt, and there would exist a reasonable doubt, and not a mere vague, speculative or obscure doubt, if it were “such a doubt as would cause you to hesitate to act upon it in the graver and more important transactions of life.” That is essentially the language of Justice Vinson, later Chief Justice of the United States, in Bishop v. United States, 71 App.D.C. 132, 138, 107 F.2d 297, 303 (1939), cited with approval in Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954). As he indicates, the time used to consider the evidence does not signify hesitation to act after consideration of the evidence. See also Holt v. United States, 218 U.S. 245, 254, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). Appellants say in effect that the charge should have stopped there and that error was inserted when the judge charged that “proof beyond a reasonable doubt is such proof as will result in an abiding conviction of the defendants’ guilt on your part, such a conviction as you would be willing to act upon in the more weighty and important matters pertaining to your own affairs.” See Scurry v. United States, 468 U.S.App.D.C. -, 347 F.2d 468 (decided April 15, 1965), and cases cited therein. Since persons may be willing, indeed required, to act on important matters in their lives notwithstanding the most profound doubts and painful hesitation, these two portions of the charge, considered seriatim, may generate confusion, albeit the claim of confusion here falls short of the confusion presented by the Holland charge, where the Supreme Court affirmed. The Government supports the charge as a conscientious effort by the trial judge to explain the matter in two ways — first telling the jury affirmatively what a reasonable doubt is, i. e. what negates proof beyond a reasonable doubt, and then telling them negatively what is not a reasonable doubt, i. e. what constitutes proof beyond a reasonable doubt. The Government further argues that the two parts of the charge are neither inconsistent nor productive of confusion since the latter part of the charge obviously carries with it the analysis contained in the earlier part containing the definition of reasonable doubt in terms of causing hesitation to act thereon in the more important transactions of life. The Government asks that the court consider its contention so as to avoid precipitate and unnecessary revision of instructions that have worked well over time. This case, like Scurry, is readily disposed of on the ground that counsel did not take exception to the charge when given, and hence the judgment must be affirmed. We are dealing here with a key portion of the charge, a passage likely to impress itself deeply on the jury to the undoubted advantage of the accused, and to resonate in the jury room as a standard of their function and responsibility. But the standard underlying the resonance cannot be defined objectively like that of a tuning fork providing absolute pitch. The standard of mental convincement of a jury may only be approached with words groping to express what is nearly indefinable. Some day perhaps the relevant concepts may be given a quantitative reference, perhaps in terms of probability,® but meanwhile, we must communicate with words, limited though they may be, for the judge to impress upon a jury the awesome task that is theirs. Possibly the problem can be approached by confining instructions in all cases to laconic and approved phraseology. Yet defense counsel may well prefer the emphasis bestowed by repetitions of references to reasonable doubt, notwithstanding the Supreme Court’s comment that judicial attempts to explain and elaborate on the term reasonable doubt “do not usually result in making it any clearer to the jury.” Miles v. United States, 103 U.S. 304, 312, 26 L.Ed. 481 (1880); Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954). In the absence of a set liturgy there is always the risk that subsequent logical parsing, perhaps by new counsel, may uncover possible confusions and misapprehensions in the printed record that were not fairly present in the aura of the court room. The old saw tells us that it is particularly when there is little to argue on the facts that a lawyer searches for points on the law. The sport of syntax should not be indulged when trial counsel did not make timely objection except in a clear case of prejudice. No such prejudice has been shown here. At this trial neither counsel nor the judge had the benefit of the storm signals flagged by this court for the traditional reasonable doubt charge. In the future a trial judge who uses the “abiding conviction” phrase should, and on request would be required to, formulate the charge so as to clarify that he is referring to an abiding conviction of guilt which would cause reasonable men to act on the more weighty and important matters of their own affairs without hesitation continuing beyond the time required for consideration of the evidence. The Government would coordinate the two portions of the charge through implication of such a connecting link, but the defendant is entitled to the clarification of a link that is express and not merely implied. The foregoing points suggest that counsel appointed by this court have left no stone unturned. That is their right and their duty in behalf of their indigent clients and the court welcomes their prod leading us to plumb deep before we announce that the judgments are Affirmed. WILBUR K. MILLER, Senior Circuit Judge, concurs in the result. . We have studied footnote 4 on p. 54 of 368 U.S., p. 158 of 82 S.Ct. It indicates that some states which hold “arraignment is the first step in a trial” consider the accused entitled to an attorney at arraignment. The footnote also observes that “[u]nder federal law an arraignment is a sine Qua non to the trial itself.” That does not make the arraignment any more than the indictment or information, a part of the trial. Such concepts cannot serve as substitutes for consideration of the real question of the possibility of prejudice, though they may tip the scales in case of doubt as to possibility of prejudice. . A significant aspect of early appointment of counsel is the stimulation of early investigative work. This is not impeded by proceeding with arraignment where counsel have not yet been assigned assuming appointment as promptly as practicable thereafter, as in this case. . It appears on full examination that Mc-Gill did file an affidavit in support of an application to proceed without prepayment of costs. The affidavit was signed and sworn to on April 20, 1964, and filed the next day. On that day the legal aid attorney who represented McGill at the trial was appointed. The affidavit and order of appointment are found in the jacket of criminal case number 287-64 to which several references are made at pages 2 and 3 of the brief for McGill. The indictment in that case, except that it makes no mention of Barnhart, is identical with the April 27, 1964, indictment pursuant to which McGill and Hinton were convicted in the case here on appeal. . The trial judge instructed the jury as follows: Proof beyond a reasonable doubt does not mean proof beyond all doubt whatsoever. It does mean proof to a moral certainty and not necessarily proof to an absolute or mathematical certainty. A reasonable doubt is not a vague, speculative or obscure doubt. Rather, it is such a doubt as would cause you to hestitate to act upon it in the graver and more important transactions of life. If, after an impartial consideration of all the evidence you can say to yourselves that you are not satisfied of the defendants’ guilt, then you have a reasonable doubt. Unless there is substantial evidence of facts which exclude every reasonable theory but that of guilt, your verdict must be not guilty. In other words, to find the defendants guilty, any reasonable theory of innocence must be excluded by the facts. But, on the other hand, if after such impartial consideration of all the evidence you can truthfully and candidly say to yourselves that you have an abiding conviction of the defendants’ guilt, such as you would be willing to act upon in the more weighty and important matters pertaining to your own affairs, then you have no reasonable doubt. In other words, proof beyond a reasonable doubt is such proof as will result in an abiding conviction of the defendants’ guilt on your part, such a conviction as you would be willing to act upon in the more weighty and important matters pertaining to your own affairs. . Justice Vinson said: “Reasonable doubt is a doubt arising from the evidence, or from a lack of evidence, after consideration of all the evidence. It is not a vague, speculative, imaginary something, but just such a doubt as would cause reasonable men to hestitate to act upon it in matters of importance to themselves.” Compare the Manual of Uniform Jury Instructions in Federal Criminal Cases, prepared by a Committee of the Seventh Circuit Judicial Conference, which recommends use of the following for the charge on reasonable doubt, see 33 F.R.D. 523, 567 (1963): “6.01-3. Reasonable Doubt. A reasonable doubt means a doubt that is based on reason and must be substantial rather than speculative. It must be sufficient to cause a reasonably prudent person to hesitate to act in the more important affairs of his life.” . Some kind of quantitative reference might well be more meaningful for an charge that they should acquit unless their increasingly computer-oriented society. Even today, while it would not be seemly to introduce such a note in a solemn judicial process, it may well be that many jurors would be more enlightened by a charge that they should acquit unless their conviction was so strong they’d be willing to give 10-to-l odds they were right. In the last analysis, however, any quantitative approach would probably leave a crucial middle ground to be resolved in fundamental conceptions expressible only in words. Compare the effort of Judge Learned Hand to quantify the concept of “monopoly” in United States v. Aluminum Corp. of America, 148 F.2d 416, 423-424 (2d Cir. 1945). . It is at least interesting to note that on an occasion when Congress revised a statute in order to reflect the essence of the reasonable doubt standard, it did this through a statutory requirement of “clear proof.” See United Brotherhood of Carpenters and Joiners v. United States, 330 U.S. 395, 406, 67 S.Ct. 775, 91 L.Ed. 973 (1947), discussing sec. 6 of the Norris-LaGuardia Act, 47 Stat. 70, 71. . Compare the Manual of Uniform Instructions evolved in the Seventh Circuit, cited in footnote 5. This is a guide, not a requirement. . The case was tried in June 1964, prior to our decision in Jones v. United States, 119 U.S.App.D.C. 213, 338 F.2d 553, 555 (1964). 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_counsel2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Nathan PUTCHAT and Sally Putchat, husband and wife, Appellants, v. COMMISSIONER OF INTERNAL REVENUE. No. 18292. United States Court of Appeals, Third Circuit. Argued April 9, 1970. Decided May 4, 1970. Rehearing Denied June 30, 1970. Arthur Pelikow, New York City, (Robert B. Alexander, Jr., Stuart M. Berkman, New York City, on the brief), for appellants. William S. Eastabrook, Dept, of Justice, Tax Division, Washington, D. C. (Johnnie M. Walters, Asst. Atty. Gen., Lee A. Jackson, Thomas L. Stapleton, Janet R. Spragens, Attys., Dept, of Justice, Washington, D. C., on the brief), for appellee. Before SEITZ and ALDISERT, Circuit Judges, and LATCHUM, District Judge. OPINION OF THE COURT PER CURIAM. Nathan and Sally Putchat filed a joint federal income tax return for 1959. The Commissioner subsequently determined that they improperly reported as long-term capital gain $75,000.00 received in complete settlement of a lawsuit by Nathan seeking to enforce his rights under a contract. Taxpayers petitioned the Tax Court for a redetermination of the deficiency. The court rejected their petition, holding that “an amount received by petitioner as consideration for the release of all his rights under an employment contract * * * constitutes ordinary income.” 52 T.C. 470 (1969). This appeal followed. We have reviewed the record made below in the light of the contentions of counsel both in their briefs and at oral argument. We are convinced that the Tax Court correctly decided the issues of fact and law and therefore affirm on its opinion. The judgment of the Tax Court will be 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_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. UNITED STEELWORKERS OF AMERICA, LOCAL 2116, Russell Whisman, Darrell Tucker, G.R. Jones, and David Jewell, Plaintiffs-Appellants, v. CYCLOPS CORPORATION, Defendant-Appellee. No. 87-3191. United States Court of Appeals, Sixth Circuit. Argued March 1, 1988. Decided Oct. 25, 1988. William K. Shaw, Jr. (argued), Portsmouth, Ohio, for plaintiffs-appellants. Daniel O. Berger, Cincinnati, Ohio, Stephen C. Kunkle (argued), Pittsburgh, Pa., for defendant-appellee. Before ENGEL, Chief Judge, and MERRITT and KRUPANSKY, Circuit Judges. The Honorable Albert J. Engel assumed the duties of Chief Judge effective April 1, 1988. ENGEL, Chief Judge. Plaintiffs appeal the denial by the United States District Court for the Southern District of Ohio, Western Division, of their motion for summary judgment and the granting of defendant’s motion for summary judgment in this action involving a pension plan funding dispute between the parties. Plaintiffs allege that the district court erred in finding that there were no questions of material fact as to plaintiffs’ claims under its collective bargaining agreement with the defendant and under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. We agree with the district court that summary judgment was appropriate on the ERISA claims and some of the contractual claims. However, we believe that plaintiffs’ prospective contractual claims do not present a present, justiciable controversy and therefore we dismiss them as not ripe for adjudication. FACTS Defendant Cyclops Corporation, a manufacturer of steel and related products, owned and operated a production facility near Portsmouth, Ohio. Plaintiff United Steelworkers Union local # 2116 has represented the Portsmouth bargaining unit in negotiations with Cyclops and its predecessors since the 1940’s. Cyclops and the local last entered into a collective bargaining agreement on July 24, 1980. This pact extended the coverage of existing pension and employment agreements until July 31, 1981. In early 1980, Cyclops unsuccessfully attempted to sell the entire Portsmouth facility as a going concern. It did, however, succeed in selling the coke plant operation to New Boston Coke Corporation, a wholly owned subsidiary of McLouth Steel Corporation, on November 21, 1980. New Boston, which had decided to hire 227 of Cyclops’ former employees, entered into a collective bargaining agreement and a pension agreement with local # 2116 on November 10, 1980. These agreements were virtually identical to the contracts to which Cyclops and the union had previously agreed. As a part of the sale agreement, New Boston agreed to assume all accrued pension liabilities while Cyclops agreed to transfer that portion of its pension fund that was attributable to the Cyclops employees who would continue their employment with New Boston. Pursuant to this agreement, Cyclops transferred $168,380 in pension assets to New Boston’s pension plan on February 6, 1981. Following these transactions, New Boston petitioned the United States Bankruptcy Court for the Eastern District of Michigan for reorganization under Chapter 11 of the Bankruptcy Act. The bankruptcy trustee has continued to operate the Portsmouth coke plant and there has been no default on pension payments by New Boston. Appellants filed a complaint on July 18, 1983. The complaint alleged that Cyclops had violated its collective bargaining agreement with local #2116 by underfunding the pension accounts that it transferred to New Boston and by failing to obtain the consent of the court to the pension transfer. They further claim that Cyclops violated its fiduciary duty under 29 U.S.C. §§ 1103 and 1104 by engaging in a transaction that was not in the best interests of the pension plan and violated 29 U.S.C. § 1106 by conducting a prohibited transaction involving pension fund assets. The district court, in an order dated January 20, 1987, 653 F.Supp. 574, granted defendant’s motion for summary judgment on all of the above claims, stating that: Appellant now brings a broad-based appeal, claiming that the district court misper-ceived both the law and the facts. Justice has been done in this action, as both parties have fulfilled their obligations and received the benefits of the sale of the coke plant. For its part, defendant has sold the coke plant. Plaintiffs retained their jobs as well as their pension rights built over a career of service with Cyclops. Defendant has paid its share of the pension obligations to New Boston, and New Boston has received experienced and valued workers guaranteeing them the same pension as they had with Cyclops. Fairness dictates that plaintiffs not be able to recover twice for the years of service accumulated through employment with Cyclops. The actions of defendant with regard to plaintiffs and their pension agreement was therefore fair, equitable and just. I. The Collective Bargaining Agreement Appellants’ first cause of action is based on the 1977 pension agreement that local #2116 entered into with Cyclops. Both parties have stipulated to the fact that the pension agreement is a part of the collective bargaining agreement between the parties. Appellants’ brief does not specify which provisions of the pension agreement have allegedly been violated. Instead, appellants simply claim that the transfer of pension assets without the consent of local # 2116 violates the pension agreement. The union argues both that pension assets and liabilities could not be transferred without its consent and that the sale of the coke facility, as it affects union employment, could not take place without the union’s consent. The district court, in considering appellants’ claim, examined the individual sections of the agreement. The court first noted that Paragraph 1.3 states that “benefits shall be provided by the Company or caused to be provided by the Company for the participants.” Paragraph 8.1 echoes this flexibility, stating: For the purpose of supplying the benefits herein provided, the Company may establish or cause to be established a trust or trusts or may utilize any existing trust or trusts heretofore established by or on behalf of the Company. The Company is free to determine the manner and means of making provision for funding and paying the benefits set forth in this Agreement. The court then noted that while Cyclops was permitted, under the Agreement, to choose its means of payment, it was still liable for benefits. The court found that under Paragraph 9.2, “[a]ny benefit properly payable pursuant to this Agreement shall continue to be payable, notwithstanding the termination or expiration of this Agreement.” The court interpreted this paragraph as meaning that Cyclops retained a duty toward the union, even after selling the coke plant. However, the court found that Cyclops had met this duty, at least for the present, through its transfer of $168,380 of the pension fund: To fulfill its obligation under the pension plan, Cyclops, through the Trustee of the Cyclops Hourly Plan, transferred assets totalling $168,380, plus interest since October 31, 1980, to a bank designated as the New Boston Plan Trustee. The $168,380 represents the portion of Cyclops Hourly Plan assets which Cyclops actuaries, TPF & C, advised was allocable to the listed employees at the Cyclops Portsmouth facility pursuant to the federal law governing contributions to pension plans. The evidence is undisputed and reasonable minds can only conclude that the $168,380 was Cyclops obligation under its pension plan agreement with plaintiffs to the listed employees at the Cyclops Portsmouth facility for the payment of future pension obligations which had arisen from the employees’ years of service with Cyclops. This payment of over $150,000 is the “safety net” requested by plaintiffs and required by federal law. Thus, the court found that there was no violation of the collective bargaining agreement on this ground. The court further found that the sale of the coke plant itself did not violate any rights protected by the pension plan. We agree, and affirm that part of the district court’s opinion which grants summary judgment to Cyclops on plaintiffs’ present collective bargaining agreement claims. However, implicit in the parties arguments is a dispute that is prospective in nature. The union argues essentially that while Cyclops may have fulfilled its obligations to pay into the pension fund at the minimum amount required by the pension agreement and ERISA, this was not Cyclops’ only obligation under the collective bargaining agreement and the pension plan established thereby. The union argues that Cyclops remains potentially, liable for that portion of the transferred employees’ future pension benefits which is attributable to their years of service with Cyclops. While the $168,380 paid by Cyclops represents its funding obligation under ERISA, the payment does not limit Cyclops’ ultimate potential liability. Should the assets held by the New Boston plan prove insufficient to meet that liability, the union claims that Cyclops would remain obligated to make up the difference. That Cyclops may have a hold harmless or other contractual promise from New Boston is a matter of concern for Cyclops, not the union. The union states that it has neither been asked nor has it agreed to release Cyclops from such an obligation, and the provisions of ERISA are not intended to eliminate that deficiency. Thus, if New Boston should be unable, through insolvency or otherwise, to make good on its obligations, the union wishes it established now that Cyclops will not at that time be relieved of its underlying obligation. A contrary rule, argues the union, would allow the company to avoid its obligation to pay the difference between its funded obligation and its potential liability by the transfer of employees or the sale of a division of its activities to an unsound purchaser. The union argues that such a transaction would permit an employer to rid itself of potential pension liability, without the consent of the union with whom it has contracted to pay benefits. Both parties seek from us a definitive ruling on this question. Cyclops would have us rule that it is completely relieved of all potential future liability. The union would have us hold exactly the opposite. Even though the district court may have properly held that there has been no present breach of the collective bargaining agreement by Cyclops and, further, no violation of ERISA, the union and its affected members are concerned that the language of the district court’s opinion will be found to foreclose any future possibility of relief against Cyclops. Such a holding would prevent the union from claiming at a later date that New Boston, through insolvency or otherwise, was unable or unwilling to meet the pension obligations transferred by Cyclops and that therefore, Cyclops was liable for the unpaid benefits. The heart of the parties’ disagreement is found in the following language of the district judge’s opinion: As to defendant’s contention that a novation has taken place, reasonable minds can only conclude from the undisputed material facts, that plaintiffs did not agree to a substituted contract. Rather, the evidence leads only to the conclusion that plaintiffs did not discharge Cyclops from its original duty under the pension plan, but added New Boston to be responsible for pension benefits earned for plaintiffs’ efforts at New Boston, when plaintiffs determined to continue with employment at New Boston instead of retiring from Cyclops. Thus, both Cyclops and New Boston owe a duty to plaintiffs, however, Cyclops has fulfilled its duty to plaintiffs by the payment of its allocable contribution to the New Boston Plan and its agreement with New Boston. Cyclops asserts that the district court’s language finding that “Cyclops has fulfilled its duty...” means that it is discharged from any further liability, regardless of any future default by New Boston or its successors. The union desires an opposite construction. It would have preferred that the district court had held that “... Cyclops has fulfilled its [present] duty to plaintiffs,” accompanied by an express holding that Cyclops is not relieved of future liability in the event of some future default. Our review of the case law and legislative history reveals no definitive answer to the question raised by the parties. Likewise, we are uncertain of the intentions of the district court embodied in the cited portions of its opinion. It is at best ambiguous, but is probably more consistent with the position taken by Cyclops. Before addressing this question, we must determine whether the issue of Cyclops potential, future liability is ripe for adjudication. Paragraph 9.5 of the pension agreement provides that: Neither any participant prior to his retirement under conditions of eligibility for pension benefits nor any surviving spouse prior to eligibility for a surviving spouse’s benefit shall have any right or interest in or to any portion of any funds which may be paid into any pension trust or trusts heretofore or hereafter established for the purpose of paying pensions and no participant, co-pensioner or surviving spouse shall have any right to pension benefits except to the extent provided in this Agreement. Employment rights shall not be affected by reason of this Agreement. Thus, the only individuals who have any interest in their pensions are those who have already retired. However, the parties have stipulated to the facts that New Boston has not failed in meeting its pension funding obligations and that all employees who have applied for a pension have received one. Since current employees have no contractual rights that they could vindicate in this action, while those already retired have had none of their rights violated, we hold that as to the individual plaintiffs in this action, the prospective contractual claims are not ripe. However, we believe that the justiciability of the union’s claim presents a much closer question. Like the individual employees, the union cannot point to an obvious and immediate breach of the contract. However, unlike its employees, the union is a party to the collective bargaining agreement. Thus, it could claim that it has a right to adjudicate issues that threaten the security of its contract. Here, the union’s security may be threatened by Cyclops’ transfer of pension fund liabilities to a company that is now involved in Chapter 11 proceedings. The Supreme Court has stated that the basic rationale of the ripeness doctrine “is to prevent the courts, through premature adjudication from entangling themselves in abstract disagreements.” Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 3332, 87 L.Ed.2d 409 (1985). We have both echoed and refined this sentiment. See, e.g., Brown v. Ferro Corp., 763 F.2d 798, 801 (6th Cir.1985) (“The ripeness doctrine not only depends on the finding of a case and controversy and hence jurisdiction under Article III, but it also requires that the court exercise its discretion to determine if judicial resolution would be desirable under all of the circumstances.”); Young v. Klutznick, 652 F.2d 617, 625 (6th Cir.1981) (“Courts must first ‘determine whether the issues tendered are appropriate for judicial resolution,’ and then ‘assess the hardship to the parties if judicial relief is denied at that stage.’ ” (quoting Toilet Goods Association v. Gardner, 387 U.S. 158, 162, 87 S.Ct. 1520, 1523, 18 L.Ed.2d 697 (1967)). In undertaking a ripeness analysis, we weigh several factors. We pay particular attention to the likelihood that the harm alleged by plaintiffs will ever come to pass. See, e.g., Thomas, 473 U.S. at 580-81, 105 S.Ct. at 3332-33 (finding a case not ripe when it involved “ ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ” (citing 13A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3532 (1984).)); Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (requiring a “realistic danger of sustaining a direct injury----”). In the instant case, it is far from clear that New Boston will ever fail to meet its pension obligations. While it is true that McLouth Steel is a party to a Chapter 11 bankruptcy proceeding, it is also true that no pension payments or funding requirements have been neglected. Further, Cyclops claims that even in the event of a default by New Boston, the Pension Benefit Guarantee Corporation [PBGC] would pay the applicable benefits. While the parties have not briefed this issue extensively, our understanding of the PBGC leads us to conclude that there is a strong possibility that it would be liable to the members of the union for pension benefits in the case of a default by New Boston. A second factor that we must consider is whether the factual record of this case is sufficiently developed to produce a fair and complete hearing as to the prospective claims. In the Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), the Court stated that “there are situations where, even though an allegedly injurious event is certain to occur, the Court may delay resolution of constitutional questions until a time closer to the actual occurrence of the disputed event, when a better factual record might be available.” Id. at 143, 95 S.Ct. at 358. The Court expounded on this statement later, when it observed: For example, the controversy over the proper valuation theory to be applied to both the rail properties and the stock of Conrail provided as compensation depends upon contingencies that argue forcefully for postponement of its resolution. The parties have stipulated that it will be impossible to ascertain until the Final System Plan is effective which rail properties will be transferred to Conrail, or their value on any valuation theory, or the value of the consideration to be exchanged for the rail properties. Id. at 146, 95 S.Ct. at 360. In this case, there are several facts which militate for delaying any decision. Even assuming that New Boston fails to meet some of its pension obligations following the completion of Chapter 11 proceedings, we are unsure as to whether it will be able to pay a part of those benefits and how large that part will be. Further, we do not know what the statutory maximum for PBGC benefits, which has changed several times, would be at the time of New Boston’s default. Thus, even if New Boston does default on its obligations, it is quite possible that Cyclops may have no residual liability. Such a determination depends upon facts that would only become clear at the time, if any, when New Boston defaults. The final factor that we must consider is the hardship that refusing to consider plaintiff’s prospective claims would impose upon the parties. In Pacific Gas & Electric Co. v. Energy Resources Comm’n, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983), the Court stated that “[i]n Abbott Laboratories, which remains our leading discussion of the doctrine, we indicated that the question of ripeness turns on ‘the fitness of the issues for judicial decision’ and ‘the hardship to the parties of withholding court consideration.’ ” Id. at 201, 103 S.Ct. at 1720 (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). Here, we believe that a delay in the litigation of this hypothetical claim would not unduly prejudice plaintiffs’ interests. The union could claim that a statement by a court that Cyclops remained liable on the collective bargaining agreement could permit it to take further action against Cyclops to insure that it is maintaining adequate funds to meet this potential liability. However, we see nothing in the collective bargaining agreement or in the federal common law of contracts that would afford plaintiff such a right. Thus, the union would be left with a declaration of future, hypothetical rights and no present means with which to enforce it. Similarly, Cyclops could claim that the issue should be decided on its merits so that it could utilize all of its corporate funds without fear of having to reserve a portion to pay pension benefits to the workers who were transferred to New Boston. As we have just noted, Cyclops would not be required to maintain a separate account for these funds. Any other decision based on the fear of potential pension liability, such as a decision to avoid risky investments or rapid expansion, is too speculative for us to consider as a concrete effect of our holding on justiciability. Further, if we were to declare that Cyclops did not have any remaining duty to pay benefits to union members, it would also have little impact upon the behavior of the parties. The union, one can only assume, already intends to pursue its remedies against New Boston and the PBGC if there is a default. This decision would not change that position. Further, Cyclops is already basically free to invest its funds as it chooses, and its freedom would be expanded only slightly by a decision firmly eliminating its potential liability here. Considering all of these factors, we must conclude that while an opinion resolving Cyclops’ prospective liability for pension benefits could have some present impact, it would function primarily in a hypothetical capacity. Thus, we must conclude that the district court’s opinion granting defendant’s summary judgment motion erred to the extent that it held that defendant was entitled to summary judgment on the issue of its prospective liability. While we have stated that the question of prospective benefits is not ripe, we do not mean to imply that appellants’ future right to litigate this question is necessarily foreclosed. As we noted previously, Paragraph 9.2 of the Agreement states that “[a]ny benefit properly payable pursuant to this Agreement shall continue to be payable, notwithstanding the termination or expiration of this Agreement.” We believe that this provision may leave the union with a potential cause of action, irrespective of our decision as to whether Cyclops complied with ERISA’s funding requirements. While ERISA merely provides minimum funding requirements for pension plans, this provision would appear to be a promise to pay benefits, regardless of the fact that funding may have also been technically adequate. Both the Supreme Court and this court have repeatedly considered cases pertaining to the interpretation of pension plan provisions of collective bargaining agreements under both section 502(a) of ERISA, 29 U.S.C. § 1132(a), and section 301 of the Labor Management Relations Act, 29 U.S. C. § 185. See, e.g., Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 76, 102 S.Ct. 851, 855, 70 L.Ed.2d 833 (1982); In re White Farm Equipment Co., 788 F.2d 1186, 1190 (6th Cir.1986); Policy v. Powell Pressed Steel Co., 770 F.2d 609, 610 (6th Cir.1985). We have further stated that an individual or a union may enforce a promise by an employer to provide pension benefits that are in excess of the minimum standards guaranteed by ERISA. In White Farm, plan members sought to enforce plan documents providing for mandatory vesting of retiree welfare benefits, even though this was not a requirement of ERISA. A panel of our court held: the parties may themselves set out by agreement or by private design, as set out in the plan documents, whether retiree welfare benefits vest, or whether they may be terminated. In construing such agreements, courts may draw inferences or make presumptions as this court has done in construing collective bargaining agreements providing welfare benefit plans. Id. at 1193. Other courts have also adopted their position. See, e.g., International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW v. Keystone Consolidated Industries, Inc., 793 F.2d 810, 814 (7th Cir.1986) (“ERISA does not forbid parties to collectively bargain for obligations greater than, and separate from, the ERISA minimum funding obligations.”); Murphy v. Heppenstall Co., 635 F.2d 233, 239 (3d Cir.1980) (“ERISA established “minimum standards” for pension payments due retired employees____ It is not inconsistent with the statutory scheme to permit employees to recover directly from the employer any additional benefits to which the employer has contractually obligated itself.”). While ERISA’s preemption provision, 29 U.S.C. § 1144, is rather sweeping, it does not alter the outcome of this case. In suits to enforce collective bargaining agreements, courts rely on the federal common law of labor relations. See, e.g., Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 917, 1 L.Ed.2d 972 (1957); Apponi v. Sunshine Biscuits, Inc., 809 F.2d 1210, 1215 (6th Cir.1987); White Farm, 788 F.2d at 1191. While state law may be utilized by federal courts in creating federal common law, it is imbued with federal character by virtue of its incorporation into that common law. Holliday v. Xerox Corp., 555 F.Supp. 51, 55 (E.D.Mich.1982). At oral argument, appellants’ counsel suggested that if appellants were unable to bring an action until New Boston defaulted on its pension obligations, they would run the risk of being barred by the statute of limitations. We disagree. We have already stated that there has been no present breach of the collective bargaining agreement. The statute of limitations will not begin to run unless or until Cyclops fails to meet a pension obligation to a union member. At that time, the Ohio limitations period for breach of contract will determine how long the union or one of its members has to institute a suit in a timely manner. See, e.g., International Union, UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 703-04, 86 S.Ct. 1107, 1111-12, 16 L.Ed.2d 192 (1966); Apponi, 809 F.2d at 1216; Central States Southeast and Southwest Ar eas Pension Fund v. Kraftco, Inc., 799 F.2d 1098, 1107 (6th Cir.1986) (en banc). II. The ERISA Claims A. Breach of Fiduciary Duty Appellants claim that Cyclops’ sale of the coke plant and pension plan was accomplished through a breach of the fiduciary duty of the plan’s trustees, who are also Cyclops officers. While appellants’ brief does not separate the various fiduciary duty questions clearly, we believe that their allegations are based on three separate sets of facts: (1) insufficient funding of the New Boston plan; (2) Cyclops’ desire to avoid pension liabilities by a sale of the pension fund; and (3) concern over the potential insecurity of pension funding by New Boston. Appellants’ claims all stem from language found in 29 U.S.C. §§ 1103 and 1104. 29 U.S.C. § 1103(c)(1) provides in pertinent part that “the assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan.” 29 U.S.C. § 1104(a)(1) provides in pertinent part that “a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and — (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan.” As an initial matter, we note that a corporation’s fiduciary duties under ERISA do not encompass all of its activities. See, e.g., Phillips v. Amoco Oil Co., 799 F.2d 1464, 1471 (11th Cir.1986) cert. denied, 481 U.S. 1016, 107 S.Ct. 1893, 95 L.Ed.2d 500 (1987) (“[T]he ERISA scheme envisions that employers will act in a dual capacity as both fiduciary to the plan and as employer. ERISA does not prohibit an employer from acting in accordance with its interests as employer when not administering the plan or investing its assets.”); Amato v. Western Union International, Inc., 773 F.2d 1402, 1417 (2d Cir.1985) (distinguishing decisions made as an employer from those made as a plan fiduciary). However, we believe that the fiduciary duty rules are applicable to the instant case. While the decision to sell the coke plant itself was a corporate decision that may have been outside of the scope of ERISA’s protective rules, there is no question that the sale of the pension plan to New Boston was a transaction that was of direct concern to the 227 workers who were transferred. As such, any decisions regarding the sale of the pension plan are subject to review under ERISA’s fiduciary duty standards. Appellants first claim that Cyclops’ failure to transfer pension fund assets that were sufficient to fully fund the plan violates the fiduciary duty provisions. Appellants make this claim despite the fact that both parties have stipulated that: On February 6, 1981, the Trustees of the Cyclops Hourly Plan transferred assets in the amount of $168,380.00 plus interest since October 31, 1980, to the bank designated in the agreement as the New Boston Plan Trustee. This sum represents the portion of Cyclops Hourly Plan assets which Cyclops’ actuaries, Towers, Perrin, Forster & Crosby (TPF & C), advised was allocable to the listed employees at the Cyclops Portsmouth facility, pursuant to the federal law governing contributions to pension plans. It is unclear in appellants’ brief whether they allege that this funding was, in fact, inadequate under ERISA or instead that the funding, although technically adequate, violates Cyclops’ fiduciary duty. We explore both claims. ERISA sets out the standard for the funding of merged, transferred or acquired pension plans in 29 U.S.C. § 1058: A pension plan may not merge or consolidate with, or transfer its assets or liabilities to, any other plan after September 2,1974, unless each participant in the plan would (if the plan then terminated) receive a benefit immediately after the merger, consolidation, or transfer which is equal to or greater than the benefit he would have been entitled to receive immediately before the merger, consolidation or transfer (if the plan had then terminated). The Secretary of the Treasury has promulgated a set of regulations, 26 C.F.R. § 1.414(I)-1, to determine whether a merger, sale or consolidation is appropriate. In order to apply these regulations to the instant case, we must determine whether the transfer of pension assets was (1) a merger or consolidation or (2) a transfer of assets or liabilities. 26 C.F.R. § 1.414(I)-l(b)(2) defines a merger or consolidation as “the combining of two or more plans into a single plan. A merger or consolidation will not occur merely because one or more corporations undergo a reorganization____” 26 C.F.R. § 1.414(I)-l(b)(3) defines a transfer of assets or liabilities as a situation “when there is a diminution of assets or liabilities with respect to one plan and the acquisition of these assets or the assumption of these liabilities by another plan.” Given the continued existence of both the Cyclops and New Boston Plan and the transfer of assets and liabilities from Cyclops to New Boston, it is clear that the transaction between the two parties was a transfer of assets or liabilities. 26 C.F.R. § 1.414(I)-l(o) dictates the procedure for determining the adequacy of funding in the case of a transfer of assets or liabilities, stating “[a]ny transfer of assets or liabilities will for purposes of section 414 [the Internal Revenue Code equivalent of 29 U.S.C. § 1058] (1) be considered as a combination of separate mergers and spinoffs using the rules of paragraphs (d), (e) through (j), (Z), (m), or (n) of this section, whichever is appropriate.” In this case, for the transaction to be valid under ERISA it must meet the requirements of 26 C.F.R. § 1.414(I)-1 sections (e) and (n). Section (n), which regulates spinoffs states: In the case of a spinoff of a defined benefit plan, the requirements of section 414(1) will be satisfied if (i) All of the accrued benefits of each participant are allocated to only one of the spun off plans, and (ii) The value of the assets allocated to each of the spun off plans is not less than the sum of the present value of the benefits on a termination basis in the plan before the spin off for all participants in that spun off plan. Section (e), which regulates mergers, uses virtually identical language. While the Cyclops plan did not have sufficient assets to cover the present value of all accrued benefits, it was still permitted to spin off the 227 participants and then merge them with the New Boston plan under sections (e) and (n) because the regulation merely requires that assets equal the value of benefits calculated on a termination basis. This term is defined at 26 C.F.R. § 1.414(I)-l(b)(5) as “benefits that would be provided exclusively by the plan assets pursuant to section 4044 [Codified at 29 U.S.C. § 1344] of the Employee Retirement Income Security Act of 1974 (“ERISA”) and the regulations thereunder if the plan terminated.” 29 U.S.C. § 1344 sets out the order in which benefits are to be paid when a plan terminates. It provides that in the case of underfunding, assets are to be allocated according to prioritized categories. Since a merged or spunoff plan must only be capable of paying benefits on a termination basis, it is not significant that fund assets are currently smaller than the present value of accrued benefits. ERISA does not require that assets be equivalent to liabilities at the time of transfer, only that the transfer is not used as an excuse to undercut the funding of a protected plan. In truth, we believe this to be the principal concern of plaintiffs here. The concern is legitimate and deserving of our most careful scrutiny. Nevertheless, we conclude that its resolution cannot be based upon unresolved speculation over future payment of benefits. The actuarial statement regarding the transfer of assets and liabilities of the Cyclops plan concluded that since “the total present value of Category 3 benefits exceeded the fair market value of the Plan’s assets as of September 30, 1980, such assets were allocated to Coke Plant Employees- in proportion to their Category 3 present values.” As the parties have stipulated to the fact that the actuarial calculations were correct, and it is clear that those calculations determined the termination basis value of the Cyclops plan, we find that there was no violation of 29 U.S.C. § 1058 in the transfer of assets to New Boston. While Cyclops has complied with the provisions of section 1058, it may be still possible for appellants to claim that technical compliance which leaves the New Boston employees without adequate funding is a breach of fiduciary duty. However, appellants fail to cite any precedent on this question. Further, we have found several cases in which pension plan assets and liabilities were transferred to another plan without making provision for the pro rata distribution of the fund’s surplus. Courts confronted with this situation have held that compliance with the strict requirements of ERISA was all that was required. Thus, they have refused to order the distribution of surpluses. In light of these cases, we are convinced that the failure to fund a transferred pension plan with more assets than are required by the specific provisions of ERISA cannot form the basis for a breach of fiduciary duty claim under either section 1103 or 1104. Appellants’ next contention is that Cyclops officers who were also trustees of the plan failed to act for the sole benefit of the plan. Appellants rely on the language of 29 U.S.C. § 1104(a)(l)(A)(i) which states that “a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and for the exclusive purpose of providing benefits to participants and their beneficiaries.” However, appellants fail to mention precedent, both in this circuit and elsewhere, that has interpreted this language in less absolute terms. We recently considered this question in Holliday v. Xerox Corp., 732 F.2d 548 (6th Cir.1984). In Holliday, Xerox had set up two pension fund accounts for each employee. One account was strictly for retirement use (the “retirement account”) while the other was subject to limited encroachment by the employee prior to retirement (the “optional account”). Xerox then decided to create a new quaranteed minimum retirement plan. Xerox determined the amount that an employee was to receive under the new plan by subtracting benefits payable under the “retirement account” from the baseline level of the new plan. However, benefits from the “optional account” were not subtracted. Prior to the initiation of the new plan, Xerox had acquired several other companies, whose employees had been included under the old Xerox plan. Many of these employees had chosen to place their assets into the “optional account” at the time of merger. However, after Xerox instituted its new system, it transferred those assets from “optional account” to “retirement account” status. Holliday contended that such a transfer amounted to a breach of fiduciary duty because the decision benefited Xerox instead of being for the sole benefit of the pension plan. A panel of our court held that Xerox’s activity did not constitute an ERISA violation. We stated that: ERISA... cannot be read as a prohibition against any decisions of an employer with respect to a pension plan which have the obvious primary purpose and effect of benefitting the employees, and in addition the incidental side 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_treat	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. STARR v. COMMISSIONER OF INTERNAL REVENUE. TRUE et ux. v. SAME. DOHME v. SAME. Nos. 3931-3933. Circuit Court of Appeals, Fourth Circuit April 6, 1936. Charles Markell, of Baltimore, Md., for petitioners. John MacC. Hudson, Sp. Asst, to the Atty. Gen. (Frank J. Wideman, Asst. Atty. Gen., and Sewall Key, Sp. Asst, to the Atty. Gen., on the brief), for respondent. Before PARKER, NORTHCOTT, and SOPER, Circuit Judges. Writ of certiorari denied 56 S. Ct. 948, 80 L. Ed. —. PARKER, Circuit Judge. In the year 1929 the officers of Sharp & Dohme, a Maryland corporation, which had been incorporated in 1926, decided on and carried out a plan of reorganization the general purpose of which was to sell to the outside public a large interest in the business and decrease the relative holdings in the company of the persons who held at that time its total capital of 90,000 shares of non-par value common stock. They caused to be formed, pursuant to this plan, a new corporation of the same name, which agreed to take over the assets and assume the liabilities of the old corporation and to pay to that corporation the sum of $13,500,000 and issue to it 225,000 shares of non-par value common stock. This amounted to the new corporation’s giving to the old the sum of $150 in money and 2% shares of its common stock for each of the shares of the outstanding common stock of the old corporation. The old corporation, under the plan of reorganization, was thereupon to redeem its common stock at $150 per share and to distribute among its stockholders the common stock received from the new corporation. This distribution of the common stock of the new corporation was to be accomplished, however, not by simple distribution, but by having the old corporation issue 9,000 shares of “special” stock as a stock dividend to its stockholders, who were thereupon to exchange with the old corporation the “special” stock thus received for common stock in the new corporation which the old corporation was to receive; 500 shares of “limited” stock at $1 per share were issued by the old corporation to the new to be held by the latter for the purpose of keeping the old corporation alive after its other stock should have been redeemed. Money was being raised by' the new corporation by the sale of its “preference” stock at $62.50 per share; and, under the plan of reorganization, an option was given the stockholders of the old corporation to exchange not exceeding one-third of their holdings of common stock in that corporation for this preference stock at the rate of one share of common for 2% preference. The common stock thus acquired by the new corporation' was to be used in lieu of cash.at $150 per share in its settlement with the old corporation; and it appears, that 59,359 shares of the new corporation’s “preference” stock were exchanged for common stock of the old corporation under this option. This plan of reorganization was carried out, and the taxpayers who are petitioners here availed themselves of the option accorded them to exchange shares of common stock in the old corporation for preference shares in the new. In working out their rights under the plan they made the following transfers of stock, viz.: (1) On August 6, 1929, they exchanged common stock of the old corporation for preference stock of the new, this exchange being: made with the new corporation; (2) on the same date, August 6, 1929, they transferred the remainder of their common stock in the old corporation to that corporation for cash; and (3) on August 13, 1929, they exchanged their special stock in the old corporation for common stock in the new. The Commissioner held that the transfers were made pursuant to a plan of corporate reorganization, but treated all three of them as constituting one transaction and imposed the tax on the entire profit derived therefrom, limited, however, to the amount of cash received. The taxpayers appealed to the Board of Tax Appeals, contending that the three transfers constituted three separate and distinct transactions, in two of which stock was exchanged for stock and no profit was realized, and that only with respect to the transfer of stock for cash was there realized a profit which was taxable. The Board found that “there were actually three real exchanges and each had its usual and separate effect for tax purposes,” but held that there was no reorganization within the meaning of the statute and that the entire profit derived from the transfers should be taxed without limitation to the amount of cash received. Dohme v. Commissioner, 31 B.T.A. 671. Taxpayers have petitioned for a review of this holding. Counsel for the Commissioner, without formally confessing error, virtually concede that the Board was in error in holding that the transfers were not made pursuant to a plan of corporate reorganization within the meaning of the statute applicable. This is unquestionably correct. The case is one where “substantially' all the properties” of one corporation were acquired by another, where the seller acquired “a definite and substantial interest in the affairs of the purchasing corporation” which represented a “substantial part of the value of the thing transferred,” and where what was done was not a mere sale but genuinely partook “of the nature of merger or consolidation.” In the light of recent decisions of the Supreme Court, there can be no doubt but that the facts present a clear case of reorganization within the meaning of section 112 (i) (1) of the Revenue Act of 1928, 45 Stat. 816, 818. Helvering v. Minnesota Tea Co., 56 S.Ct. 269, 80 L.Ed. —; John A. Nelson Co. v. Helvering, 56 S.Ct. 273, 80 L.Ed. —; Helvering v. Watts, 56 S.Ct. 275, 80 L.Ed. —; G. & K. Mfg. Co. v. Helvering, 56 S.Ct. 276, 80 L.Ed. —. Counsel for the Commissioner contend, however, that, in reversing the Board on the question of reorganization, we should sustain the Commissioner’s contention that there was in effect only one transfer, and that, under section 112(c) (1) of the act (45 Stat. 816, 817), taxpayers should be taxed on the entire profit derived from the reorganization, limited, however, to the amount of cash received in the transaction. Taxpayers contend that the question as to whether there were three transfers or only one is not properly before us, that, if it is before us, we are. concluded by the finding of the Board with respect thereto, and that, in any event, the record conclusively shows that there were three separate transfers. We cannot agree that the question as to whether there were three transfers or only one is not before us. There is no dispute as to the facts. Upon these the Board has held that there were three transfers and no reorganization. The petition of taxpayers, alleges that there was error in holding that the transfers were not made pursuant to a plan of corporate reorganization; but, to determine whether this was error or not, we must examine into the nature of the transfers. If, in doing so, we reach the conclusion that the three transfers, as a matter of law, were but parts of one transaction and were taxable as such, it is our duty to call attention to that error in the decision of the Board as well as to the error in holding that the facts shown did not constitute a corporate reorganization within the meaning of the statute, to the end that, when the case is remanded to the Board, taxes may be assessed by it upon the proper basis. We do not understand that where, upon the petition of taxpayers, we correct an error against them, we are without power to correct another error affecting the same matter, merely because they have not assigned error with respect thereto, On the contrary, we conceive it to be our duty to point out the correct rule of law applicable in the premises, so that the taxes due may be properly assessed. In this connection, it appears to us that it would be most unfortunate, if, when the courts are clearing themselves of the reproach of hypertechnicality in their own procedure, they should permit the same evil to creep into the procedure provided for reviewing decisions of administrative tribunals. So far as the finding by the Board is concerned, the facts are admitted and the finding is not a finding of fact at all but a mere conclusion which the facts do not support. It is perfectly clear that the three transfers were but steps in the carrying out of one general plan, all of the details of which were agreed upon before any of the transfers were made. The substance of that plan, stripped of irrelevant detail, was that, for each share of stock in the old corporation, the stockholder should have 2½ shares of common stock in the new and $150 in cash, with the option on his part to take preference stock in the new corporation at $62.50 per share in lieu of one-third of the cash to which he would otherwise be entitled. The record shows that, by action of the stockholders in approving the plan and indicating their election under the option offered them, every detail of the three transfers was arranged before any of them took place; and one contract, executed four days after the stockholders’ meeting, bound the new corporation to exchange preference stock for common stock as provided in the option, as well as to pay cash and issue common stock to the old corporation in exchange for its assets. It did not destroy the unity of what was done that the old corporation first issued the “special” stock and then exchanged the common stock of the new corporation for it, nor that the old stockholders were given the option of taking “preference” stock in lieu of one-third of the cash to which they were entitled. Before any exchange was made, the old corporation was bound to exchange common stock of the new for its “special” stock; the new corporation was bound to exchange its “preference” stock for common stock of the old, in an amount which had been fixed by prior acceptance of the option; the old corporation was bound to redeem its common stock whether tendered by its stockholders or by. the new corporation; and the common stock was called for redemption. The various transactions contemplated by the plan were interdependent, and the carrying out of the plan as a whole was the real consideration for each of the transfers. The statute applicable is section 112(c) (1) of the Revenue Act of 1928, 45 Stat. 816, 817, which is as follows: “(1) If an exchange would be within the provisions of subsection (b)(1), (2), (3), or (5) of this section if it were not for the fact that the property received in exchange consists not only of property permitted by such paragraph to be received without the recognition of gain, but also of other property or money, then the gain, if any, to the recipient shall be recognized, but in an amount not in excess of the sum of such 'money and the fair market value of such other property.” The evident purpose of this statute is that, in case of reorganization and other somewhat similar transactions covered by the statute, profits realized in cash or other property shall be taxed as is other income, but that mere paper profits shall not be taxed. To the extent that stock is retained in the new corporation, the stockholder is carrying along his original investment; but, to the extent that he realizes money or other property upon the reorganization, he is withdrawing that from the enterprise. If the stock in the new corporation is worth as much as or more than the cost to him of the stock in the old, he is merely withdrawing his profit from the enterprise when he receives money or property upon the reorganization. In such case the reorganization enables the stockholder to realize in cash the increase in value of-his stock; and Congress evidently thought it just that he account for same as income, just as he would account for dividends received on his stock. Where transfers are made pursuant to such a plan of reorganization, they are ordinarily parts of one transaction and should be so treated in application of the well-settled principle that, in applying income tax laws, the substance, and not the form, of the transaction shall control. First Seattle D. H. Nat. Bank v. Commissioner (C.C.A.9th) 77 F.(2d) 45; Prairie Oil & Gas Co. v. Hotter (C.C.A.10th) 66 F.(2d) 309; Howard v. Commissioner (C.C.A.6th) 56 F.(2d) 781; American Security & Trust Co. v. Tait (D.C.) 5 F.Supp. 337. This is demanded also by the principle, equally well settled, that a single transaction may not be broken up into various elements to avoid a tax. Allies Realty Corporation v. Commissioner (C.C.A.2d) 71 F.(2d) 150, 151; West Texas Refining & Development Co. v. Commissioner (C.C.A.10th) 68 F.(2d) 77, 79, 80; Prairie Oil & Gas Co. v. Hotter, supra (C.C.A.10th) 66 F.(2d) 309, 311; Tulsa Tribune Co. v. Commissioner (C.C.A.10th) 58 F.(2d) 937. Taxpayers rely upon the decision of the Supreme Court in General Utilities & Operating Co. v. Helvering, 296 U.S. 200, 56 S.Ct. 185, 80 L.Ed. —. In that case, however, no corporate reorganization was involved, and there was no unifying contract such as we have here. Shares of stock were distributed by way of dividend among the corporation’s stockholders and were sold by the stockholders, who were not bound to sell, to a purchaser who .had made an offer to the corporation; and the decision was that these facts did not warrant a holding that the sale was made by the corporation so as to justify the imposition of a tax against it on the theory that it had made the sale and realized a profit. As pointed out by the Circuit Court of Appeals of the Second Circuit in Chisholm v. Commissioner, 79 F.(2d) 14, 16, a different case would have been presented if the distributors of the stock had been bound to make sale at the price offered to the corporation. Taxpayers rely also upon Bruce v. Helvering, 64 App.D.C. 192, 76. F.(2d) 442. In that case, however, the taxpayer had agreed to sell 200 shares of stock for cash before learning of a contemplated reorganization. Later she learned of the reorganization and exchanged 500 shares of stock in the old corporation for 1,200 shares in the new. The two transactions were separate and distinct and made pursuant to independent contracts. The court was at pains to point out, however, that, if the sale of the 200 shares had been conditioned on the exchange of the 500 shares for stock, the case would have come directly under the provisions of section 112 (c) (1) of the statute. On like principle, Helvering v. Ward (C.C.A.8th) 79 F.(2d) 381, and Lonsdale v. Commissioner (C.C.A.8th) 32 F.(2d) 537, may be distinguished. The only authority cited by the board for its action was its own decision in Gregory v. Commissioner, Helvering, 27 B.T.A. 223, but, in view of the decision of the Supreme Court in the same case, Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 267, 79 L.Ed. 596, 97 A.L.R. 1355, it would appear that the Board erred there in paying too much attention to the mere form of transactions entered into for the purpose of escaping taxes. The court said of the corporation organized and used there as the basis of the plea of corporate reorganization: “Putting aside, then, the question of motive in respect of taxation altogether, and fixing the character of the proceeding by what actually occurred, what do we find? Simply an operation having no business or corporate purpose — a mere device which put on the form of a corporate reorganization as a disguise for concealing its real character, and the sole object and accomplishment of which was the consummation of a preconceived plan, not to reorganize a business or any part of a business, but to transfer a parcel of corporate shares to the petitioner. No dou,bt, a new and valid corporation was created. But that corporation was nothing more than a contrivance to the end last described. It was brought into existence for no other purpose; it performed, as it- was intended from the beginning it should perform, no other function. When that limited function had been exercised, it immediately was put to death.” The same thing in almost the same words might be said of the device of issuing the “special” stock of the old corporation and exchanging for it the common stock of the new, or of the device of having common stock of the old corporation exchanged with the new for its “preference” stock and then retired. For the reasons stated, the decision of the Board to the effect that the transfers by taxpayers were not made pursuant to a plan of corporate reorganization will be reversed; but in the assessment of taxes the Board will treat as related steps in one consolidated transaction the three exchanges of stock to which we have referred. Reversed and remanded. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_state	40	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". M. & M. TRANSP. CO. v. COCHRAN et al. No. 3352. Circuit Court of Appeals, First Circuit. Dec. 6, 1938. Wm- A- Gunning, of Providence, R. I., ^or aPPedant. John W. Baker and Plenshaw, Lindemuth & Baker, all of Providence, R. I., (Benjamin F. Lindemuth, of Providence, R.I., on the brief), for appellees, Before BINGHAM and WILSON, Circuit Judges, and BREWSTER, District Judd- BREWSTER, District Judge, Two actions at law consolidated in this court, were brought to recover for injuries to person and damages to property resulting from a collision between two motor trucks on a Massachusetts highway. In the 4th Count of their declarations, the plaintiffs, appellees, allege that the defendant, appellant, through its servants and agents, operated defendant’s “motor truck wantonwjifuUy; recklessly, and with complete indifference to the rights, safety, security and wejfare 0f other persons- on said high- ’ way,” including the plaintiffs. The jury returned verdicts in favor of the defendant on the first three counts of the declarations, alleging negligence, but found for the plaintiffs on the 4th Count, The errors assigned relate to certain requests for instructions granted by the trial judge and to his refusal to direct a verdict for the defendant on the 4th Count of the declarations. If this motion for a directed verdict should have been allowed, it will not be necessary to consider the other assignments of errors. Therefore, that question will be first considered. The facts which the jury might have found from the evidence, and the reasonable inferences to be deduced therefrom, are that on Monday, November 16, 1936, the plaintiff Cochran was operating a truck on the highway in the town of Sharon in this Commonwealth. He was proceeding southwesterly on his way from Boston to Providence. As he was descending a grade near the town line where there was a deep valley, his engine failed. He coasted to the bottom of the hill, to a point a few feet beyond where the down-grade ends and the up-grade begins, where he stopped his truck in the right lane of a 4-lane road, the left wheel being about two feet from the line between that lane and the one adjoining on the left. After ascertaining the cause of his engine trouble, Cockran decided to await the coming of his brother, who was following him with another truck on the way to Providence. Cochran tried to set flares in the rear of the stalled truck, but was unable to light them. He 'was sitting in the cab of his vehicle when the defendant’s truck, heavily loaded, came along and collided with the rear end of the parked truck. The operator of the defendant’s truck was killed, and Cochran was thrown to the ground and injured. Both trucks caught fire and both were consumed. The plaintiff’s truck was a van type, the top and rear covered with dark brown canvas covering. The front lights, and at least one of the rear lights, were on. The collision took place at 8:45 o’clock P. M. The night was moonless; the road was straight and not lighted; and no dwell-. ings were near. Shortly before the collision a truck, going in the same direction, stopped by the, plaintiffs’ car, and then proceeded on its way. A Plymouth sedan had passed the defendant’s truck about a mile- .and-a-half north-east of the point of collision. Its operator narrowly escaped a 'collision with the plaintiffs’ truck. A Mr. Schwartzler was driving in the opposite direction. He saw the defendant’s, truck at it came down the hill, saw the collision and stopped near the scene of the accident. Aside from what might be inferred, from the force of the impact between 'two heavily loaded trucks, the only evidence on the question of speed was that of the operator of the Plymouth sedan, who testified he was going 45 or 50 miles an hour when he passed defendant’s truck, and the testimony of Schwartzler to the effect that he was going slower than the defendant’s truck, but how fast Schwartzler’s car was going was not shown. The question arises whether the jury were warranted in finding wilful and wanton disregard of the rights of others, as alleged in the 4th Count of plaintiffs’ declarations. There was no evidence bearing directly upon the conduct of the operator of the defendant’s .truck prior to the collision. The jury, therefore, had to proceed upon inferences properly drawn from the evidence adduced. They could have inferred that the operator was driving at an excessive rate of speed, or that he was not looking ahead, or that’ he did not realize that the defendant’s truck was standing, until too late to pass it without a collision. These inferences, or any combination of them, would have warranted a finding of negligence, even to the degree of gross negligence. The question presented is whether these inferences, under all the circumstances of the case, would warrant a finding of wilful, wanton and reckless conduct. If they did not, the defendant’s motions for a directed verdict should have been granted. We think the denial of the motions was error. A distinction between negligence, ordinary or gross, and wilful and reckless conduct, has been recognized in a line of Massachusetts cases, holding that the difference is not one of degree but a difference in kind. Aiken v. Holyoke Street Railway Co., 184 Mass. 269, 271, 68 N.E. 238; Banks v. Braman, 188 Mass. 367, 369, 74 N.E. 594; Cotter v. Boston, Revere Beach & Lynn Railroad Co., 237 Mass. 68, 129 N.E. 426; Prondecka v. Turners Falls Power & Elec. Co., 238 Mass. 239, 130 N.E. 386; McIntyre v. Converse, 238 Mass. 592, 594, 131 N.E. 198. In Aiken v. Holyoke Street Railway Co., supra, the court said [page 239] : “The difference in rules applicable to the two classes of cases results from the difference in the nature of the conduct of the wrongdoers in the two kinds of cases. In the first case the wrongdoer is guilty of nothing worse than carelessness. In the last he is guilty of a willful, intentional wrong. His conduct is criminal or. quasi criminal. * * * The law is regardful of human life and personal safety, and, if one is grossly and wantonly recldess in exposing others to danger, it holds him to have intended the natural consequences of his act, and treats him as guilty of a willful and intentional wrong.” In Banks v. Braman, supra, it was observed : “In one case there need be nothing more than a lack of ordinary care, which causes an injury to another. In the other case there is willful, intentional conduct whose tendency to injure is known, or ought to be known, accompanied by a wanton and reckless disregard of the probable harmful consequences from which others are likely to suffer, so that the whole conduct together is of the nature of a willful, intentional wrong.” Excessive speed, without more, would not justify a finding of wanton and wilful misconduct (Dean v. Bolduc, Mass., 4 N.E.2d 441; Kohutynski v. Kohutynski, Mass., 5 N.E.2d 345; Commonwealth v. Arone, 265 Mass. 128, 163 N.E. 758) ; nor would it if coupled with a failure of the operator to see the plaintiffs’ truck and to realize that it was not moving until too late to avoid the collision. He was not bound to know, or anticipate, that in this partially settled region a truck would be parked in the road. While it is never safe to assume that the road is free of obstructions so as to relieve one of the necessity of watching the road ahead of him, yet failure to do so, under the circumstances shown to exist in this case, could be deemed to be no more than negligence, either ordinary or gross. One, driving at a high rate of speed anywhere, is confronted with the possibility that a pedestrian, or motor vehicle, may emerge from an intersecting public or private way so suddenly that an accident is unavoidable. That was the situation in Kohutynski v. Kohutynski, supra, where the Massachusetts court held that the trial judge should have directed a verdict for the defendant on a count alleging wilful, wanton or reckless conduct. In that case, there was affirmative evidence tending to show that the driver of the defendant’s car was exceedingly careless in the operation of it. It may be readily conceded that the ultimate question, whether the defendant’s driver was guilty of wanton, intentional disregard of the rights of others, is a question of fact, but in the Federal courts there is “a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.” Pleasants v. Fant, 22 Wall. 116, 120, 121, 22 L.Ed. 780; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 333, 343, 53 S.Ct. 391, 77 L.Ed. 819. In Pennsylvania Railroad Co. v. Chamberlain, supra, the court observed [page 395]: “The rule is settled for the federal courts, and for many of the state courts, that whenever in the trial of a civil case the evidence is clearly such that if a verdict were rendered for one of the parties the other would be entitled to a new trial, it is the duty of the judge to direct the jury to find according to the views of the court. Such a practice, this court has said, not only saves time and expense, but ‘gives scientific certainty to the law in its application to the facts and promotes the ends of justice.’ ” In the same case the court further stated that the scintilla rule had long since been rejected in the Federal court. Whether the operator of defendant’s truck was guilty of a wilful and intentional wrong must necessarily depend upon whether and when he became aware that the plaintiffs’ truck was standing in the highway. This was wholly a matter of speculation. In the cases relied upon by the plaintiffs, there was evidence bearing upon the conduct, at the time of the accident, of the party held responsible for it. His acts were not left wholly to conjecture. In this respect these cases are distinguishable from the cases at bar. Taking all the evidence in its most favorable aspect for the plaintiffs, we think there is no support in the record for the verdicts. As above indicated, the conclusion which we have reached renders unnecessary consideration of the other assignments of error relating to the judge’s charge to the jury. The plaintiffs have argued that, if the court erred in refusing to direct verdicts for the defendant on the 4th Count, the error was harmless since they were by right entitled to verdicts under the first three counts of their declarations. We are unable to find any merit in this argument. The plaintiffs have not appealed from any judgments on counts 1, 2 and 3 in the two cases, and not having done so cannot argue that they were entitled to verdicts on these counts of the declarations. If they had desired to raise such a question, they should have appealed from those judgments. Not having done so, they are concluded as 'to that question. Plaintiffs moved to dismiss these appeals on two grounds, — (1) insufficient bond; and (2) incomplete record. Bonds for $250 were filed in each case. These bonds were sufficient to bring the cases before this court on appeal. The record was sufficient for consideration of the errors assigned. These motions are denied. See Stafford et al. v. Union Bank of Louisiana, 17 How. 275, 15 L.Ed. 101; Jerome v. McCarter, 21 Wall. 17, 22 L.Ed. 515. The judgments of the District Court are vacated, the verdicts set aside and the case is remanded to that court for new trials limited to the Fourth Counts; the appel}ant recovers costs of appeal. 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_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). UNITED STATES of America, Plaintiff-Appellee, v. Kobert THOMPSON, Jr., Defendant-Appellant. No. 16982. United States Court of Appeals Sixth Circuit. June 29, 1967. Otto F. Putnick, Cincinnati, Ohio (Court Appointed), for appellant. Ernest W. Rivers, U. S. Atty., Louisville, Ky., for appellee. Before PHILLIPS, and PECK, Circuit Judges, and McRAE, District Judge. Honorable Robert M. McRae, Jr., United States District Judge for the Western District of Tennessee, sitting by designation. PECK, Circuit Judge. Defendant-appellant was indicted for perjury under 18 U.S.C. § 1621. The District Court entered judgment of conviction against appellant pursuant to jury verdict, and following the denial of appellant’s motion for a new trial this appeal was perfected. In 1960 appellant was convicted of robbery of a federal savings and loan association for which he is presently serving a fifteen year sentence. Subsequent to this conviction appellant has filed several motions to vacate pursuant to section 2255 of Title 28 U.S.C. While a case involving one of said motions was on appeal, appellant submitted an affidavit to this court which in part alleged that appellant, at the time he was confined in the Louisville, Kentucky, city jail as a robbery suspect, requested the Chief of Detectives, Major Priest Fry, to call appellant’s ■ retained counsel but that Major Fry did not call the attorney as he promised to do. On the basis of this affidavit, which, the government notes, was filed less than one month after the Supreme Court decided Esco-bedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.2d.2d 977 (1964), we remanded the case to the District Court for the purpose of conducting a hearing on the allegations. (Case No. 15890, Feb. 19, 1965). It was at this hearing that appellant allegedly perjured himself. At that hearing appellant’s version of the events subsequent to his arrest in 1960 was as follows. He was arrested at approximately 4:00 p.m. on January 28, and was then booked, fingerprinted and put through a series of police lineups. At approximately 8:00 p.m., appellant was arraigned at Night Police Court, at which time he asked his wife who was with him to contact an attorney. The next day, January 29, appellant was interrogated by several city detectives with respect to various robberies which had been committed in the area. He was taken to Major Fry’s office around lunch time where he was again questioned, this time about several unsolved bank robberies. After lunch, which appellant had with Major Fry in his office, the Major stated that since appellant refused to make a statement he was going to call the F.B.I. At this point appellant made the following statement which count one of the perjury indictment charges is false: “And at that time I asked him would he call my lawyer. * * * ” After being returned to his jail cell for a time, appellant was again escorted to Major Fry’s office where he was confronted with five or six detectives and two special agents from the F.B.I. At this interview appellant asked the police sergeant who was present to let him speak to Major Fry regarding the Major’s earlier promise to call appellant’s attorney. Following the testimony of the appellant just summarized, he was asked: “Q. (Interrupting) Now, you say that Major Fry promised to call your lawyer?” The second count of the two-count perjury indictment charges that appellant’s reply to this question, “He did; yes, sir.” was false. In accordance with his earlier testimony as above outlined, appellant explicitly stated at the hearing that his request to Major Fry occurred before the special agents arrived. The government called three witnesses at the perjury trial, Major Fry and the two F.B.I. agents. Major Fry stated at trial that he saw appellant on January 28, 1960, when the other police officers were getting him ready for the lineup, and although he spoke with appellant, he could not recall what he said at that time. The Major also testified that he had been to a staff meeting until approximately 10:00 or 10:30 a.m. on January 29, and that he saw the accused for the first time that day shortly after leaving that meeting. According to this witness, appellant was then in the company of two F.B.I. agents, in a room adjacent to his office. Major Fry further testified that he had no conference with appellant prior to the time he saw appellant with the federal agents; that appellant did not in the presence of the special agents request him to call an attorney; that he had no conversation with appellant after 10:00 a.m. on January 29, “other than to speak with him”; that he did not notify the F.B.I. that appellant was in custody and available for questioning; that he did not have lunch with appellant in the office in which appellant was being questioned; and that “at no time did Robert Thompson on January the 28th or on January the 29th ever ask me to call his lawyer, his wife, or anyone, at no time.” Major Fry’s testimony as to the events of January 29, 1960, is consistent with that of the F.B.I. agents who interviewed appellant to the extent that both agents stated that they arrived at police headquarters sometime between 10:00 and 10:30 a.m. and left at noon or shortly thereafter. Moreover, both agents stated that appellant was the only person present during their interview, and neither heard appellant request Major Fry or any other police officer to call an attorney. The first element of the crime of perjury, that the statements made by the accused under oath must be false, has to be established by evidence which satisfies the applicable two-witness rule. Briefly stated, this rule provides that “the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused,” Hammer v. United States, 271 U.S. 620, 626, 46 S.Ct. 603, 70 L.Ed. 1118 (1926); Weiler v. United States, 323 U.S. 606, 607, 65 S.Ct. 548, 89 L.Ed. 495 (1945), or stated in a more positive manner, “except where the falsity of such oath is indisputably established, as by documentary evidence, it must be shown by the testimony of at least two witnesses, or by the testimony of a witness corroborated by circumstances proved by independent testimony. * * * ” Fraser v. United States, 145 F.2d 145, 151 (6th Cir. 1944), cert. denied, 324 U.S. 842, 65 S.Ct. 586, 89 L.Ed. 1403 (1945). Because Major Fry’s testimony clearly tends to establish the falsity of the statements for which appellant was indicted in the instant case, the issue presented is whether there was sufficient corroborating evidence. “When the courts speak of corroborative evidence they mean evidence aliunde — evidence which tends to show the perjury independently.” United States v. Rose, 215 F.2d 617, 625 (3rd Cir. 1954). One of the considerations which must enter into a determination that such corroborative evidence is sufficient, is that “the evidence, if true, substantiates the testimony of a single witness who has sworn to the falsity of the alleged perjurious statement * * ." Weiler v. United States, supra, 323 U.S. at 610, 65 S.Ct. at 550. Thus it is required that the accusing witness’ statements must be corroborated by circumstances proved by independent testimony, and the “circumstances” proved must be those “which are inconsistent with the innocence of appellant.” (Hug v. United States, 329 F.2d 475, 480 (6th Cir.) cert. denied, 379 U.S. 818, 85 S.Ct. 37, 13 L.Ed.2d 30 (1964)). The government here claims that the indictment is supported by three witnesses rather than two, reasoning that it is not disputed that appellant saw Major Fry but once on January 29, 1960, and that the jury “chose to believe that the only time the appellant saw Major Fry was * * immediately prior to the interview with the F.B.I. agents and that there wasn’t any conversation between the defendant and Fry regarding the calling of a lawyer. * * * ” The difficulty with this approach, however, is that the government never established by evidence other than Major Fry’s own testimony that appellant saw the Major only one time on the day in question. As suggested by appellant, the record does not negate the possibility that he asked the Major to call his attorney either before he was delivered to the interrogation room or at some other time when the federal agents were not present at police headquarters. Although Major Fry’s testimony refutes this contention, corroborative evidence is lacking. The government also argues that the extra-judicial admissions made by appellant to the federal agents which differ from his sworn testimony constitute corroboration sufficient to uphold the conviction. The admissions relied upon consist of statements made to the F.B.I. agents during the course of the interview. One agent testified that appellant stated he did not have a lawyer; the second agent testified that appellant had mentioned that he did not know an attorney. However, it is here determined that these inconclusive admissions are not sufficient to sustain this perjury conviction in light of the fact established by the record that one of the two attorneys appellant allegedly asked his wife to contact on January 28, 1960, was contacted by Mrs. Thompson on January 29, and did in fact visit appellant at the city jail on January 30. Because the evidence adduced at trial failed to establish the primary element of the alleged perjury in accordance with the two-witness rule, the case should not have been permitted to go to the jury. Accordingly, the judgment of the District Court is reversed. 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_usc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. MALOUFF v. POPE. (Circuit Court of Appeals, Eighth Circuit. November 9, 1925.) No. 6983. 1. Evidence <§=>70 — When financial statement presumed to be statement of person who purports to have signed it stated. Financial statement is presumed to be statement of person who purports to have signed it when he has been informed that it is necessary for him to sign it before goods will be shipped, and has promised to send it, and statement is received by mail immediately after such conversation, and before goods are shipped. 2. Evidence <@=>75 — Failure to produce evidence in elucidation of subject-matter in dispute creates adverse presumption. Omission of party to produce evidence in elucidation of subject-matter in dispute, which is within his power, and which rests peculiarly within his own knowledge, frequently affords occasion for presumptions against him. 3. Bankruptcy <@=>414(3) — Evidence held to show that bankrupt’s financial statement to creditor was materially false. Evidence on objections to discharge held to show that bankrupt sent financial statement to creditor for purpose of obtaining credit, which was materially false. Appeal from the District Court of the United States for the District of Colorado; John Foster Symes, Judge. Proceeding by Jim Malouff to secure his discharge as bankrupt, opposed by O. G. Pope, trustee. From an order denying the discharge, the bankrupt appeals. Affirmed. Charles E. Sabin, of La Junta, Colo. (Clyde T. Davis, of La Junta, Colo., on the brief), for appellant. French L. Taylor, of Pueblo, Colo., for appellee. Before LEWIS and KENYON, Circuit Judges, and HUNGER, District Judge. MUNGER, District Judge. The appellant was adjudicated a bankrupt and thereafter filed his petition for a discharge. Specifications of objections to his discharge were filed by the trustee on behalf of creditors, and after testimony had been offered in support of the trustee’s specifications the referee recommended that a discharge be granted. The court refused to follow this recommendation and denied the discharge. From that order this appeal has been prosecuted. As one of the grounds of objection to the discharge the trustee alleged that the bankrupt obtained merchandise on credit from the Battreal Shoe Company upon a materially false statement in writing made by the bankrupt for the purpose of obtaining credit from that company. The evidenee shows that the bankrupt did obtain the goods on credit, but it is claimed by the bankrupt that there is no proof that he made the written statement, or that it was false, It appears that the Battreal Shoe Company is located at St. Joseph, Mo. One of its traveling salesmen, while in Colorado., had a conversation with the bankrupt relating to a proposed purchase of these goods, and received from him an order for their purchase mid shipment. The Battreal Shoe Company had not had any prior order from the bankrupt for the purchase of goods, and as a part of this transaction the salesman gave to the bankrupt one of the blank forms of financial statement used by the Battreal Shoe Company when new customers desired to obtain goods on credit. He informed the bankrupt that it was necessary for him to fill out the statement, 'to sign it, and to mail it to the company before the goods could be shipped, and the bankrupt promised to mail the statement on the following day. In a few days the company received by mail the written order, and also received a written statement, purporting to be signed by the bankrupt. This statement was made out on the same form of blank that the salesman had left with the bankrupt. This statement begins as follows: “Statement Made by Jim Malouff, of Aguilar, County of Las Animas, State of Colo. Aug. 3, 1921. Firm composed of Jim Malouff.” It purports to list the kind and the values of the assets, and the kind and amounts of the liabilities, the date of the last inventory, the amount of annual sales and expense, the amount of insurance on stock and real estate, and other details. It then recites that it is a true statement of the assets and liabilities of the undersigned, and is made for the purpose of obtaining credit from the Battreal Shoe Company of St. Joseph, Mo., and agrees that the Battreal Shoe Company shall be notified if any material change shall occur in the financial condition. The name of James Malouff is then signed. Belying upon this statement the goods were shipped to the bankrupt. A letter that is received in the due course of mail, in response to a letter which has been sent, is presumed to be the letter of the person whose name is signed to it. National Acc. Soc. v. Spiro, 78 F. 774, 24 C. C. A. 334; Scofield v. Parlin & Orendorff Co., 61 F. 804, 10 C. C. A. 83; 1 Greenleaf on Ev. § 573a; 3 Wigmore on Ev. § 2153. The presumption arising from those circumstances is not more strong than the presumption that a financial statement of this nature is the statement of the person who purports to have signed it, when such person has been informed that it is necessary for him to sign it and to send it to a mercantile house, before goods will be shipped to him which he has ordered, has promised to send it, and the statement is received by mail immediately after this conversation, and before the goods are shipped. One of the representations- made in this financial statement was that the cash value of the merchandise on hand was $13,000. The trustee was called as a witness and testified that he had heard the bankrupt testify in the bankruptcy proceedings. The following questions and answers are a portion of the trustee’s testimony relating to the bankrupt’s former testimony: “Q. Did he state in that examination any amounts that were the limit of the merchandise that he ever had in his store at Aguilar? A. As I understood it, I would say that he didn’t have to exceed between $4,000 and $5,000 in merchandise. “Q. That is, you understood him to state that he never had in his store at Aguilar more than $4,000 or $5,000 of merchandise at any one time? A. At any one time. “Q. Did he state in that examination that he had as much as $12,000 worth of merchandise in his store at any one time, at Aguilar? A. He may have, but I don’t recall it, if he did.” The bankrupt was present, with his counsel, at the time this testimony was given by the trustee. He did not testify as a witness, nor produce any witnesses on his behalf. There was, therefore, no testimony produced by him that he had not signed nor sent the financial statement, nor that he had not testified in the bankruptcy proceedings that he had never had more than $4,000 or $5,000 worth of merchandise at any one time; nor was testimony produced on behalf of the bankrupt of the amount of merchandise possessed by him at the date of this statement. One of the established rules for weighing testimony in civil eases is stated as follows in 1 Starkie on Evidence (10th Ed.) p. 74: “The conduct of the party in omitting to produce that evidence in elucidation of the subject-matter in dispute, which is within his power, and which rests peculiarly within his own knowledge, frequently affords occasion for presumptions against him, since it raises strong suspicion that such evidence, if adduced, would operate to his prejudice.” Kirby v. Tallmadge, 160 U. S. 379, 383, 16 S. Ct. 349, 40 L. Ed. 463; One Buick Automobile v. United States (C. C. A.) 275 F. 809, 810; Gulf, C. & S. F. Ry. Co. v. Ellis, 54 F. 481, 483, 4 C. C. A. 454; Hill v. United States, 234 F. 39, 40, 148 C. C. A. 55; 1 Wigmore on Ev. §§ 285, 289. The evidence was sufficient to show that the bankrupt sent the financial statement to the objecting- creditor and that it was materially false, and the order denying the discharge will be 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_typeiss	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. James L. BUCKLEY et al., Plaintiffs, v. Hon. Francis R. VALEO et al., Defendants, Center For Public Financing of Elections, Common Cause, The League of Women Voters of the United States, Chellis O’Neal Gregory, Norman P. Jacknis, Susan B. King, Daniel R. Noyes, Mrs. Edgar B. Stern, Charles P. Taft, John W. Gardner, and Ruth Clusen, Intervening Defendants. No. 75-1061. United States Court of Appeals, District of Columbia Circuit. Argued April 2, 1975. Decided April 14, 1975. Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVEN-THAL, ROBINSON, MacKINNON and WILKEY, Circuit Judges. ORDER PER CURIAM. On consideration of the briefs, argument, and record made in connection with the pending motions to dismiss and to remand this action to the District Court, it is hereby Ordered by the court that the motion to remand is granted to the extent indicated in the attached memorandum. The record herein is remanded together with the second round of filings of proposed findings of fact and supporting documents due on April 18, 1975 pursuant to our order of March 14, 1975. It is Further ordered by the court that the District Court shall return the record to this court as soon as possible, but in no event later than May 19, 1975. It is Further ordered by the court that final action by this court on defendants’ motion to dismiss is deferred pending return of the record. Chief Judge BAZELON dissents for the reasons set forth in his attached statement. MEMORANDUM By the attached order, we seek to conform our treatment of this matter with the special review procedure set forth in Section 315(a) of the Federal Election Campaign Act, as amended (2 U.S.C. § 437h). That section requires that after the instituting of an action “as may be appropriate to construe the constitutionality of any provision of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of title 18, United States Code,” then “[t]he district court immediately shall certify all questions of constitutionality of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of title 18, United States Code to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.” We are remanding the record to the District Court to do the following: 1. Identify constitutional issues in the complaint. 2. Take whatever may be necessary in the form of evidence — over and above submissions that may suitably be handled through judicial notice, as of legislative facts, supported by legislative history or works reasonably available, to the extent not controverted in material and substantial degree. 3. Make findings of fact with reference to those issues. 4. Certify to this court constitutional questions arising from steps 1, 2, and 3. As indicated in the attached order, the District Court will return the record, as augmented on remand, to this court immediately, and in no event later than May 19, 1975. We follow this procedure without ruling on the contention of defendants that such a procedure is required by the “certify” provision of Section 315(a), and that this provision must be read in conjunction with the rulings on the provision for certification of questions to the Supreme Court. We would reach the same result, at least at this juncture, even assuming that Section 315(a) establishes a sui generis procedure and contemplates that, in the interest of expedition, the Court of Appeals properly proceeds by appointing its own master to make a report of proposed findings. Our order is consonant with both these approaches, in practical aspect, and it is unnecessary to make a choice between them at this time. It is also consistent with the intention of Congress for expedition in appellate disposition. Certain of the parties have questioned whether Subtitle H of the Internal Revenue Code (the public financing of presidential elections provisions) is subject to the procedures of Section 315(a). They cite 26 U.S.C. § 9011(b), which by its plain words commands a different review procedure — -the convening of a three-judge court — for review of Chapter 95 of Subtitle H. It is the view of the other parties that the review provisions set forth in Section 315(a) are sufficiently broad that all constitutional questions must be certified to this court. To protect against the contingency that the Supreme Court might eventually hold that these issues should be decided by a three-judge court, either under 26 U.S.C. § 9011(b) or as to Chapter 96 under 28 U.S.C. §§ 2282, 2284, we suggest to the District Court that it certify the need for a three-judge court as to Subtitle H to the Chief Judge of this Circuit, in order that there may be parallel proceedings in that court and in this court with reference thereto. . See Lowden v. Northwestern Nat. Bank & Trust Co., 298 U.S. 160, 162, 56 S.Ct. 696, 80 L.Ed. 1114 (1936); Atlas Ins. Co. v. Southern, Inc., 306 U.S. 563, 572-573, 59 S.Ct. 657, 83 L.Ed. 987 (1939); Emsheimer v. New Orleans, 186 U.S. 33, 22 S.Ct. 770, 46 L.Ed. 1042 (1902). . The course we have designated will help avoid future embarrassment that might result if we chose one or another of the approaches offered by counsel and the Supreme Court were later to determine we had exceeded our authority. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_state	22	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". Jules E. ANGOFF et al., Appellants, v. EAST BOSTON COMPANY et al., Appellees. No. 5640. United States Court of Appeals First Circuit. Heard June 7, 1960. Decided Aug. 4, 1960. Walter Powers, Boston, Mass., with whom Jules E. Angoff, Walter Powers, Jr., and Abraham L. Pomerantz, New Yoi’k City, and Irvin M. Davis, Boston, Mass., were on the brief, for appellants. Henry E. Foley, Boston Mass., with whom Loyd M. Starrett and Foley, Hoag & Eliot, Boston, Mass., were on the brief, for appellees. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. WOODBURY, Chief Judge. On a previous appeal in this case reported sub nom. Angoff v. Goldfine, 1 Cir., 1959, 270 F.2d 185, to which reference may be had for the facts and the law of the case, we held that the court below in fixing fees for counsel for a successful plaintiff in a stockholder’s derivative suit ought to have given consideration to the question whether an ancillary state court mandamus proceeding, ostensibly brought in aid of the main action, was the efficient cause of any part of the recovery obtained for the corporation by counsel for the successful stockholder. At page 190 we said: “If it was reasonably necessary to bring the mandamus proceeding in aid of the present case, and if that proceeding in fact produced a benefit to the corporation on behalf of which the main action was brought, we fail to see why that benefit should not be considered in fixing counsel fees and expenses * * And we said at page 191 that if the stockholder’s counsel could “show that the mandamus proceeding was reasonably in aid of the main action, and that it in fact produced benefits to the corporations, they [counsel] are entitled to have those benefits taken into account in figuring the amount of compensation to be awarded them in the main action.” Wherefore we remanded for further consistent proceedings. In response to our mandate the court below held a hearing at which some further evidence was introduced and extensive arguments were made. Thereafter in a memorandum carefully analys-ing the evidence the court below found that the petition for mandamus did not produce any information of substantial benefit in the main action and that it was “not the efficient cause” of any financial benefits to the corporation involved. Wherefore the court concluded that there were no “ante-litem benefits” which could legitimately be taken into account in awarding fees to counsel. The court, however, did not stop there. Giving heed to our remark that the fees awarded the appellants, whom we referred to as the Pomerantz Group, seemed rather surprisingly small, the court below reappraised the entire situation, and, as a result, in spite of its belief that “more lawyers and accountants were involved and more travel time was expended than the case demanded,” it more than doubled its previous award of fees to this group by giving them as a whole a fee of $80,000 and expenses of $8,000. This award like the previous one of $45,000 for both fees and expenses is challenged as wholly inadequate and it is asserted that the finding of absence of ante-litem benefits on which the award in part rests is clearly erroneous. We do not agree with either proposition. It is argued that the state mandamus proceeding produced a great deal of vital information useful in the preparation and prosecution of the stockholder’s derivative action but there is no specification of just what that information was. Actually the appellants’ basic contention is in substance that fear of possible disclosures of corporate mismanagement engendered by the mandamus action caused Goldfine to pay Boston Port substantial sums owed to it either by himself or by other corporations he controlled and also caused him to procure the discharge of a spurious mortgage on property of Boston Port held by his wife. Detailed analysis of the evidence would serve no useful purpose, for our analysis would only parallel that of the District Court. It will suffice to say that we perceive no persuasive correlation either in time or amount between various payments made to Boston Port by other Goldfine controlled corporations (for long overdue interest on indebtedness owed to Boston Port so it is said), and events which transpired in the mandamus proceeding, which are asserted to have motivated those payments through fear of disclosure in that proceeding of corporate mismanagement. Instead, it seems to us as it seemed to the court below that the alleged payments to Boston Port by other Goldfine controlled corporations, considered in the light of payments by Boston Port to those corporations, only substantiates the evidence of a custom or practice of those in charge of the Goldfine corporations to transfer assets of one to another to meet corporate needs as they might arise. There is not very much we could do, even though we might be so disposed, as to the amount of the fees awarded to the Pomerantz Group, for as this court pointed out in In re Heddendorf, 1 Cir., 1959, 263 F.2d 887, 888, “the adequacy of the allowance of various fees in a minority stockholders’ suit [is] a subject matter about which ordinarily an appellate court can do little.” The reason for this is not far to seek. As we have had occasion to say before in this and other litigation our appellate power in this matter is limited by the established principle stated years ago in Trustees v. Greenough, 1881, 105 U.S. 527, 537, 26 L.Ed. 1157, that in awarding fees and making allowances to counsel the trial court “should have considerable latitude of discretion * * * since it has far better means of knowing what is just and reasonable than an appellate court can have.” An examination of the record on the earlier appeal and on this one and consideration of the arguments presented in both cases leaves us with nothing to say but to repeat: “Since we cannot say that the District Court abused its discretion we need not discuss the plaintiff’s elaborate argument to the effect that the sums awarded as counsel fees and expenses are inadequate.” May v. Midwest Refining Co., 1 Cir., 1941, 121 F.2d 431, 440, certiorari denied 1941, 314 U.S. 668, 62 S.Ct. 129, 86 L.Ed. 534. Judgment will be entered affirming the judgment of the District Court. 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_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 BOHBRINK v. MALONE. (Circuit Court of Appeals, Seventh Circuit. May 28, 1926. Rehearing Denied September 18, 1926.) No. 3674. I. Automobiles <@=221 — Wife of driver of oar, struck while standing at its side by overtaking car, held not responsible, relative to contributory negligence for stopping of car without lights. Plaintiff, struck by overtaking car while standing at night, waving flash light, on road beside car driven by her husband, which he was repairing after it had gone dead and had stopped, without lights, with half of width on pavement, 'held not responsible for such stopping, relative to contributory negligence. •2. Automobiles <@=245(77) — 'Whether wife of driver of car, stopped without lights for repairs, was guilty of contributory negligence in not getting out of way of overtaking car, held for jury. Whether wife of driver of car, stopped, at night, without lights, with half of width on pavement, when it went dead, who during repairs stood beside ear waving flash light, was guilty of contributory negligence in failing to step out of way of overtaking car, held under circumstances question for jury. In Error to the District Court of the United States for the Eastern District of Illinois. Action by Effie Malone against Herman W. Bohbrink. Judgment for plaintiff, and defendant brings error. Affirmed. Adlai H. Rust, of Bloomington, HI., and Rudolph J. Kramer, of East St. Louis, Ill., for plaintiff in error. Dan McGlynn, of East St. Louis, Ill., for defendant in error. Before ALSCHULER, EVANS, and ANDERSON, Circuit Judges. ANDERSON, Circuit Judge. So far as is necessary for the consideration of the only question raised in this ease, the undisputed facts are as follows: On October 6, 1924, defendant in error, with her husband and four other persons, was traveling in a Ford car over, route No. 15 of the highway system of Illinois. The general direction of this highway is east and west, but at the point where the accident happened it runs north and south. The concrete portion of the highway is 18 feet wide, and at the point in question there was ample space on either side of the concrete surface to safely run and stand a car for the purpose of repairs. While the car was moving north about 10 o’clock at night, the driver noticed that the engine was not operating properly. To use his own language, “the coil began to sing” and the car “went dead and stopped.” He drove it off the pavement “as far as he could run it before it stopped.” This left the ear standing about 1% to 2 feet over the east edge of the pavement, or about one half on the paved part and the other half on the shoulder or dirt portion of the road. The defendant in error got out on the right side of the ear, and one of the passengers held a flash light for the driver to fix the coil. The driver asked his wife, defendant in error, to eome around on the west or pavement side of the ear and hold the flash light for him, which she did. The car was of an old type, and when the engine went dead the lights went out. Defendant in error stood on the pavement side of the car with her left foot on the running board and her right foot on the pavement. Her husband was in the ear working on the coil. While they were in this position, she heard and saw the car of plaintiff in error approaching from the south. As it approached, defendant in error waved the flash light to stop or warn the driver of it, but plaintiff in error, not seeing the signal, came on, his car struck the right leg of defendant in error and she was seriously injured. The Ford car was not touched. The declaration charged that the plaintiff in error so carelessly, negligently, and improperly drove his car that he ran into and struck defendant in error while she was using due care for her own safety. Plaintiff in error pleaded contributory negligence, alleging that defendant in' error did not use care for her own safety. The ease was tried by a jury, At the close of all the evidence plaintiff in error requested the court to instruct the jury to find him not guilty. Refusal to so instruct is the sole error insisted upon, and upon this it is urged that upon the undisputed facts defendant in error was so clearly guilty of negligence contributing to her injury that she cannot recover. Two grounds for the contention are urged: (a) That it was negligence to stop the ear upon the highway without any lights; and (b) that defendant in error, after she saw the ear of plaintiff in error approaching, could easily have stepped around the front of the Ford into a place of safety; and her failure to do so was such negligence on her part as to preclude a recovery. The stopping of the car on the highway without lights was not the act of defendant in error, and she did what she could to overcome this failure by waving the flash light when the other car was approaching. The ease comes to this: May we say as a matter of law that defendant in error was guilty of negligence or failed to use due care for her own safety in failing to step aside out of the way of the approaching ear, or was this question properly left to the jury?' In Grand Trunk v. Ives, 144 U. S. 408, 12 S. Ct. 679, 36 L. Ed. 485, the Supreme Court said: “There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms 'ordinary care,’ 'reasonable prudence,’ and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case, may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that ease was such as would be expected of reasonable, prudent men, under a similar state of affairs. When a given state of f aets is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court.” See, also, Texas & Pacific Ry. Co. v. Gentry, 163 U. S. 353, on page 368, 16 S. Ct. 1104, 41 L. Ed. 186. There was evidence in the case as to whether the night was light or dark, as to the distance the lights on the ear of plaintiff in error lighted the road ahead of him, and of other attendant circumstances. There was ample room for plaintiff in error to pass safely and still stay well over on his side of the paved- roadway. It was the duty of the jury to note the special circumstances and. surroundings as they appeared to defendant in error, and then say whether, in the light of all of them, she acted as an ordinarily prudent person would act in a similar state of affairs. We cannot say that all reasonable men would draw the same conclusion as to the conduct of defendant in error under the circumstances shown. The judgment is 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_dissent	1	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting. Anna MASSZONIA et al., Appellants, v. Walter E. WASHINGTON et al., Appellees. No. 71-1164. United States Court of Appeals, District of Columbia Circuit. Argued June 13, 1972. Decided Feb. 27, 1973. Marsha A. Quintana, Washington, D. C., with whom Samuel B. Abbott, Boston, Mass., was on the brief for appellants. David P. Sutton, Asst. Corporation Counsel, D. C., with whom C. Francis Murphy, Corporation Counsel, D. C., and Richard W. Barton, Washington, D. C., were on the brief, for appellees. Before BAZELON, Chief Judge, ROBINSON, Circuit Judge and JAMESON, Senior District Judge for the District of Montana. Sitting by designation pursuant to the provisions of Title 28 U.S.C. § 294(d). JAMESON, District Judge: This is an appeal from an order denying a motion for a preliminary injunction and the appointment of a receiver ancillary thereto. The order of the district court entered January 26, 1971, 321 F.Supp. 965, contains detailed findings of fact which are not questioned on this appeal. Two issues are presented: (1) whether the district court erred in denying the motion, and (2) whether by reason of events intervening since the order was entered the case has become moot and should be dismissed. Factual Background The appellant Anna Masszonia, a disabled, low-income, welfare recipient, was tenant in a Washington, D. C. substandard apartment complex owned by ABC Realty Co., Inc. From 1961 through 1967 ABC Realty operated the complex under a license issued by the Department of Licenses and Inspections for the District of Columbia, without, however, applying for Certificate of Occupancy. Because of unabated housing regulation violations, applications for a renewal of the license for 1968 and subsequent years were denied on February 3, 1970, and the denials were sustained by the District of Columbia Board of Appeals and Review on May 20, 1970. .On February 26, 1970 a tenant commenced a class action against ABC Realty seeking to recover rents from 1961. Some of the tenants began withholding their rent while others continued paying rent until their June, 1970 rent payment was returned to them. About the time the action was commenced ABC Realty ceased to pay water, gas and electricity bills for the complex, which resulted in termination of water service on May 19, 1970 and threatened termination of gas and electricity. This class action was filed May 22, 1970 by appellant Masszonia on her own behalf and on the behalf of all tenants similarly situated against Walter E. Washington, Commissioner of the District; the Water Registrar of the District; and the president of ABC Realty, seeking equitable relief that the utilities be continued. In amended complaints ABC Realty and the two utilities were added as defendants. By order entered July 29, 1970 (opinion at 315 F.Supp. 529) the Commissioner and his subordinates were enjoined from refusing to provide water and sewer service and from refusing to enter into contracts with the utilities to provide gas and electricity, pendente lite, so long as the tenants lawfully occupied the premises, the court holding that it was the duty of the District of Columbia under District of Columbia Code, Section 5-313 (1967) to provide these services on a temporary and emergency basis. Between July 24 and July 27, 1970 the District served the tenants with orders to vacate the premises by August 3, 1970. On August 3 the district court enjoined the Commissioner and his subordinates from prosecuting any tenant for failure or refusal to vacate his apartment, and ordered the Commissioner to provide relocation services to the tenants within two weeks. On August 14, 1970 the appellant Masszonia moved for a preliminary injunction under a supplemental complaint, seeking the appointment of a receiver and an order requiring the Commissioner to make necessary repairs and assess a tax on the property for the costs. Order of January 26,1971 The order of January 26, 1971 enjoins appellees, pending appeal, from prosecuting or attempting to evict any tenant and requires appellees, pending appeal, to furnish utility services and provide the tenants with relocation services. The court refused to appoint a receiver and refused to order appellees to make the repairs sought by appellants. The order of January 26, 1971 adhered to the court’s conclusion in the July 29, 1970 order that “where low-income tenants who cannot immediately relocate face the imminent failure of essential utility services which are the landlord’s responsibility, and the landlord is beyond the effective power of the Court, it is the duty of the District of Columbia under District of Columbia Code, Section 5-313 (1967) to provide these services on a temporary and emergency basis.” The court held further that Section 5-313 “confers only a discretionary authority upon the Commissioner” to correct conditions existing in violation of law or regulation, and the court could not hold as a matter of law “that it would be an abuse of that discretion to fail to provide those utilities on a permanent, continuing basis or to fail to make the extensive repairs sought in this Motion for a Preliminary Injunction, the ultimate, permanent relief sought in the Supplemental Complaint.” Events Subsequent to January 26, 1971 Order On April 19, 1971 (after the record and appellants’ brief had been filed in this court) appellant Masszonia filed in the district court a “motion to modify the injunction pending appeal entered January 26, 1971” to order the defendant Washington to terminate the utility services and secure the buildings at 1401 and 1405 Girard Street, N.W., and to require proper securing of the buildings at 2804 Fourteenth St., N.W. in compliance with the January 26, 1971 order. Pursuant to this motion, the district court on April 22, 1971 ordered the Commissioner “to immediately secure the premises at 2804 Fourteenth Street, N.W. to prevent further access thereto * * * ”, to terminate the utilities at 1401-1405 Girard Street, N.W., and to “proceed immediately to make said premises secure by boarding up basement and first floor doors and windows and blocking fire escapes.” The Commissioner was also authorized to proceed with normal condemnation procedures with respect to the premises at 2804 Fourteenth Street, N.W. He was “enjoined to take no other or further action in any way affecting the premises at 1401 and 1405 Girard Street, N.W., without further order” of the court. On June 29, 1971 the district court, upon the motion of plaintiffs, vacated nunc pro tunc as of January 26, 1971 the paragraph of the January 26 order requiring the deposit of plaintiffs’ public assistance rent allotments into the Registry of the Court. Issue of Mootness Subsequent to oral argument, appellees filed a “Suggestion of Mootness”, with supporting affidavits, from which it appears that following the order of April 22, 1971 the premises at 2804 Fourteenth Street, N.W. were condemned and razed, and the premises at 1401-1405 Girard Street, N.W. were barricaded; that the Girard Street property has not since been inhabited, and is “uninhabitable by reason of its insanitary and structurally defective condition;” and that all tenants seeking assistance were relocated. Appellees contend that “against this background”, the “appellants have effectively abandoned the plainly uninhabitable Girard Street property, without likelihood or right of return and that they currently have no possessory interest in that property.” Accordingly they argue that the case should be remanded to the district court with directions to vacate its order of January 26, 1971 and to dismiss the case as moot. In her original and supplemental complaints and motion for a preliminary injunction, appellant Masszonia seeks an injunction which would require the Commissioner to (1) provide utilities on a permanent, continuing basis and (2) make whatever repairs might be necessary to bring the three buildings into compliance with the housing regulations. Ancillary thereto appellants seek the appointment of a receiver to take charge of the property and manage it, pendente lite. When the complaint was filed 66 units of the apartment complex were occupied. All were vacated prior to the district court’s order of April 22, 1971. Subsequent thereto the building at 2804 Fourteenth Street, N.W. was demolished, as authorized in the April 22 order. Under this order, however, the Commissioner was enjoined “to take no other or further action in any way affecting the premises at 1401 and 1405 Girard Street, N.W. without further order” of the court. If the district court finds, as stated in appellees’ affidavits, that these premises are now uninhabitable, barricaded, and scheduled for demolition, it would appear that the district court should revoke this provision of the April 22 order and dismiss the action as moot. We conclude that the questions here on appeal have become moot and do not reach the merits of the controversy. This appeal is dismissed as moot and the case is remanded to the district court for further proceedings consistent with this opinion. . The complex consisted of three six-story apartments located at 2804 Fourteenth Street, N.W., and 1401 and 1405 Girard Street, N.W. Approximately 66 units were occupied at the outset of this litigation. . The court found' that a “substantial number of housing regulation violations” had been noted from 1966 to July 21, 1970, when 1,053 unabated violations were noted in the three building complex, the violations consisting of “leaking ceilings, falling plaster, broken windows, inadequate locks, absence of shades and screens, backed-up and broken plumbing fixtures, insufficient heat and hot water, holes in walls, accumulations of trash, rats and roaches” which were “so numerous, extensive and substantial that the buildings constitute a danger to the health and safety of the occupants.” 321 F.Supp. at 968. . Mitchell v. ABC Realty Co., Civil Action No. GS 3522-70 District of Columbia Court of General Sessions. . The court found that ABO Realty had been served with all pleadings but had not entered an appearance. The court found further, however, that personal service had not been effected on its president and registered agent and that attempts to locate its officers had failed. 321 F.Supp. at 967. . The action was dismissed as to the two utilities. 315 F.Supp. 529, 530-531. At 533, the court noted that “the District may recoup any money expended for providing utilities by assessing a tax against the property. It may of course, also recoup by levying fines against the owner.” . Appellees are the Commissioner and the Water Registrar of the District of Columbia. As noted stipra (Note 4), ABC Realty, Inc. and Lyman C. Delle, its president, were not personally served and did not enter an appearance. Nor have they participated in this appeal. Their liability to the tenants and to the District of Columbia is not before this court. On the merits, this appeal concerns solely the duty of the District of Columbia to appellants to act upon the failure of ABC to correct conditions existing in violation of the law. . 321 F.Supp: at 970. . Section 5-313, D.C.Code 1967, provides that when the owner of real property fails or refuses after reasonable notice to correct conditions existing in violation of law or regulation, “the commissioners of the District of Columbia may, and they are authorized to, cause such conditions to be corrected; assess the cost of correcting such conditions and all expenses incident thereto * * * as a tax against the property on which such condition existed * * * and carry such tax on the regular tax rolls of the District, and collect such tax in the same manner as general taxes in said District are collected * * . 321 F.Supp. at 971. . Appellant also sought an order that ABC take no action, pendente lite, to interfere with the “continued assertion of plaintiff’s — and the class she represents — leasehold interest in the premises.” The motion alleges in part: “It is asserted, therefore, to allow the buildings to be preserved, pendente lite, and in fear for their lives that plaintiff, and others in the class she represents, vacate involuntarily and without any relinquishment of their legal tenancies. “Plaintiff represents, to the best of her knowledge, that temporary relocation services are being provided tenants of the complex by the Redevelopment Land Agency.” As set forth in Note 6, we are not here concerned with any claim appellants may have against ABC Realty Co. . Supporting affidavits indicate also that District authorities will recommend that the Girard Street property be condemned when the order of April 22, 1971 is vacated, and that in December, 1971 the area in which these buildings are located was added to the Neighborhood Development Program and designated for demolition. . With respect to appellant Masszonia, the affidavit of the Assistant Executive Director, Office of Relocation and Administration, recites that Mrs. Masszonia “moved to an address unknown on May 17, 1971. Various efforts had been made to relocate Mrs. Masszonia to standard housing, but she expressed plans to move on her own.” . In oral argument counsel for appellees relied heavily on the contention that the case is moot. Appellees were granted leave to file a motion to dismiss on that ground, and appellants were granted time for a reply. The motion and supporting memorandum and affidavits were filed by appellees. Appellants have not responded. In the absence of counter affidavits or other response, we accept as true the facts set forth in appellees’ affidavits. . As noted supra, the order of April 22, 1970 was entered after the appeal was taken to this court. In view of our disposition of the appeal it is unnecessary to consider the effect of this order or whether the district court was authorized to enter the order after the appeal was taken from the prior order. . Those provisions of the orders favorable to appellants, from which no appeal was taken, have been complied with or are no longer effective by reason of appellants’ abandonment of the property. All relief sought by appellants was based upon their occupancy of the property. If the affidavits filed by appellees are found by the district court to be true, nothing now remains to be litigated. Question: What is the number of judges who dissented from the majority? Answer:
songer_numappel	5	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. Mrs. Virginia KELLY, Curtis Melancon, Henry Melancon, Jr., Mrs. Ella Lovig, and Lynn Melancon, Appellants, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellee. No. 18455. United States Court of Appeals Fifth Circuit. Aug. 16, 1961. Rehearing Denied Sept. 19,1961. Raymond H. Kierr, New Orleans, La., Wollen J. Falgout, Thibodaux, La., for appellants. Robert G. Hughes, Stanley E. Loeb, New Orleans, La., for appellee. Before RIVES, CAMERON and JONES, Circuit Judges. RIVES, Circuit Judge. This appeal is from a judgment sustaining the defendant’s motion to dismiss the plaintiff’s action for the wrongful death of Mrs. Lillian Melancon Adams. The complaint alleged that on January 15,1959, Mrs. Adams was a guest passenger in an automobile operated by her husband, Andrew P. Adams; that “the automobile was caused to be in collision with a truck, when the automobile went into the opposite and oncoming traffic lane”; that Mrs. Adams’ husband “negligently failed to keep a proper lookout ahead, to maintain his automobile under proper control, to stay in his own traffic lane, and to otherwise operate the automobile in such a manner as to have avoided the collision” ; and that “as a result of the collision Mrs- Lillian Melancon Adams sustained severe personal injuries which were fatal to her.” The plaintiffs are the brothers and sisters of Mrs. Adams. She is survived also by her husband, but not by any descendants or ascendants. The action is brought, pursuant to LSA-Revised Statutes of 1950, 22:655, directly against the liability insurer of Mrs. Adams’ husband. The defendant moved to dismiss the action on the ground that the plaintiffs are without right to bring this action under the law of Louisiana. Attached to the motion to dismiss is an affidavit of one of defendant’s attorneys to the effect that the husband, Andrew P. Adams, has filed suit against the defendant in a Louisiana State court for the wrongful death of his wife, asserting the identical cause of action being asserted by her brothers and sisters, except that damages are demanded on behalf of the husband. The district court, without opinion, granted the defendant’s motion and dismissed the action. This appeal from that decision turns upon the construction of the Louisiana wrongful death statute as it existed at the time of decedent’s death, in part as follows: “Art. 2315. Liability for acts causing damage; survival of action “Art. 2315. Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the children, including adopted children and children given in adoption, or spouse of the deceased, or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving blood brothers and sisters, or either of them, for +he space of one year from the death. However, should the deceased leave a surviving spouse, together with minor children, the right of action shall accrue to both the surviving spouse and the minor children. The right of action shall accrue to the major children only in those cases where there is no surviving spouse or minor child or children. ****** “The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife or brothers or sisters or adoptive parent, or parents, or adopted person, as the ease may be.” LSA-C.C. Art. 2315. The appellants suggest that decision on appeal of the husband’s action in the state court proceeding should be awaited. The present appeal was submitted on December 1,1960, more than eight months ago, and we think that its decision should not be longer delayed, inasmuch as the majority of this Court agree with the district court that, irrespective of whether or not the husband is ultimately held to have a right to sue his insurer, the decedent’s brothers and sisters are without right to bring this action under the law of Louisiana. In Dowell, Inc. v. Jowers, 5 Cir., 1948, 166 F.2d 214, 219, 2 A.L.R.2d 442, this Court, with Judge Lee, a distinguished Louisiana lawyer and judge, as its organ, construed the Louisiana wrongful death statute as follows: “A careful reading of the parts set forth above and of Louisiana case law on the subject shows that under the article two causes of action are given to the named beneficiaries, one the survived action, i. e., the action which the deceased had at the time of death; the other an action given by the Code to the named beneficiaries in their own right for the damages they suffer by reason of the death of their decedent. Eichorn v. New Orleans & C. R. Light & Power Co., 112 La. 236, 36 So. 335, 104 Am. St.Rep. 437; Reed v. Warren, 172 La. 1082, 136 So. 59; Voss, ‘The Recovery of Damages for Wrongful Death,’ etc., 1931, 6 Tulane L.R. 201 et seq.” The appellee questions whether that construction is really in accord with the decision of the Supreme Court of Louisiana in Reed v. Warren, 1931, 172 La. 1082, 136 So. 59. The construction asserted in Dowell, Inc. v. Jowers, supra, has not been authoritatively corrected by the Louisiana state courts, and the appellants insist that it is correct. See also 16 Tulane L.Rev. 409, 413, n. 190. We agree with the appellants to that extent, but we think that the brothers and sisters neither succeed to the decedent’s claim for her own injury nor have any independent right to damages such as loss of affection, etc. suffered by reason of the death of their sister. That the brothers and sisters do not succeed to the decedent’s claim for her own injury would appear to be settled by the decision in Addison v. Employers Mutual Liability Insurance Co. of Wisconsin, La.App.1953, 64 So.2d 484, 485. In that case, Mrs. Addison sued her husband’s liability insurer for injuries allegedly resulting from her husband’s negligence and, while her suit was pending, Mrs. Addison died. Her children who were all majors were made parties plaintiff in place of the deceased. Despite the fact that the husband was the alleged tort feasor, the appellate court held that “exception was properly taken” to the substitution of the children as parties plaintiff, and that the husband “succeeds to her claim and stands in her shoes.” The husband was denied recovery because “the obligation was extinguished by confusion when plaintiff’s wife died and he succeeded to her rights.” As to any independent right of the brothers and sisters to damages such as grief, loss of affection, etc. suffered by reason of the death of their sister, the general rule of construction has been thus stated: “But time and time again our courts have reiterated the definite principle that the right of action for damages for the death of a human being is in derogation of a common right and cannot be extended by implication to other surviving relations than those to whom it is expressly granted by statute.” Goodwin v. El Dorado Baking Co., La.App., 2d Cir., 1947, 31 So.2d 230, 232, 233. In that case it was held that an insane daughter above the age of majority had no right of action for her mother’s death where the decedent was also survived by her husband. The decision of that case was made easier by the plain language of the last sentence of the first paragraph of Article 2315, supra, which was quoted by the Court with emphasis: “The right of action shall accrue to the major children only in those cases where there is no surviving spouse or minor child or children.” Here the appellants argue that the earlier expression, “in default of any of the above persons,” is more'ambiguous, and should be construed to mean “in event of non-recovery” by the earlier ranking beneficiaries. To support that argument, the appellants rely not on the decisions, but on law review articles simply stating the opinions of the authors as to a rule or interpretation which would be “more just.” 6 Tulane L.Rev. 201, 236; 16 Tulane L.Rev. 386, 412. The adoption of a “more just” State law is not a matter for the consideration of a federal court but is appropriately addressed to the State legislature. The rule of strict construction asserted in Goodwin v. El Dorado Baking Co., supra, by which we are bound under the Erie doctrine, forbids us so to extend the right of recovery under the statute. “In default of” is used synonymously with “where there is no” as that phrase appears in the last sentence of the first paragraph of Article 2315, supra, heretofore quoted. That use reinforces our view that the ordinary and natural meaning of the phrase “in default of” appears to be “in the absence of,” and that it was so employed in Article 2315. It seems clear to us that, Mrs. Adams having left a surviving husband, her brothers and sisters neither succeeded to her claim for her own injury, nor were granted any independent right of action for grief, loss of affection, or other damages suffered by reason of the death of their sister. The judgment is therefore Affirmed. . We are informed by the appellants that the state trial court dismissed the husband’s action against his insurer for his wife’s death, basing its decision on the case of Addison v. Employers Mutual Liability Insurance Co. of Wisconsin, La. App.1953, 64 So.2d 484, discussed later in this opinion, and that an appeal has been taken from said dismissal. . The statute was amended by Acts 1960, No. 30, § 1. . Indeed, some of the suggestions in the Law Review articles may have been adopted by the 1960 Amendment referred to in footnote 2, supra. VIII. Rule 12(b) F.R.Civ.P.: “ * * * If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be. given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Question: What is the total number of appellants in the case? Answer with a number. Answer:
sc_respondent	077	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. RADIANT BURNERS, INC., v. PEOPLES GAS LIGHT & COKE CO. et al. No. 73. Argued December 7, 1960. Decided January 16, 1961. Richard F. Levy argued the cause for petitioner. With him on the brief were Joseph Keig, Sr. and John O’C. FitzGerald. Horace R. Lamb argued the cause and filed a brief for the American Gas Association, Inc., respondent. With him on the brief in opposition to the petition for writ of certiorari was Adrian C. Leiby. Clarence H. Ross argued the cause for Peoples Gas Light & Coke Co. et al., respondents. With him on the brief were Harold A. Smith, Arthur D. Welton, Jr., Justin A. Stanley, Robert W. Murphy and Burton Y. Weitzenfeld. Charles H. Weston argued the cause for the United States, as amicus curiae, urging reversal. On the brief were Solicitor General Rankin, Assistant Attorney General Bicks and Richard A. 'Solomon. Thomas C. McConnell and Lee A. Freeman filed a brief for the Parmelee Transportation Co., as amicus curiae, urging reversal. Pee Cubiam. The question here is whether petitioner’s complaint stated a claim upon which relief could be granted. Petitioner is engaged at Lombard, Illinois, in the manufacture and sale in interstate commerce of a ceramic gas burner, known as the “Radiant Burner,” for the heating of houses and other buildings. Claiming that American Gas Association, Inc. (AGA), a membership corporation doing business in the Northern District of Illinois and in other States, and 10 of its numerous members who also are doing business in the Northern District of Illinois, combined and conspired to restrain interstate commerce in the manufacture, sale and use of gas burners in violation of § 1 of the Sherman Act, petitioner brought this action against those parties for treble damages and an injunction in the United States District Court for the Northern District of Illinois. The complaint included the following allegations: American Gas Association operates testing laboratories wherein it purports to determine the safety, utility and durability of gas burners. It has adopted a “seal of approval” which it affixes on such gas burners as it determines have passed its tests. Its tests are not based on “objective standards,” but are influenced by respondents, some of whom are in competition with petitioner, and thus its determinations can be made “arbitrarily and capriciously.” Petitioner has twice submitted its Radiant Burner to AGA for approval but it has not been approved, although it is safer and more efficient than, and just as durable as, gas burners which AGA has approved. “[B]ecause AGA and its Utility members, including Peoples and Northern, effectuate the plan and purpose of the unlawful combination and conspiracy alleged herein by . . . refusing to provide gas for use in the plaintiff’s Radiant Burner [s] . . . which are not approved by AGA,” petitioner’s gas burners have been effectively excluded from the market, as its potential customers will not buy gas burners for which they cannot obtain gas, and in consequence petitioner has suffered and is suffering the loss of substantial profits. Respondents moved to dismiss for failure of the complaint to state a claim upon which relief could be granted. The District Court granted the motions, dismissed the complaint and entered judgment for respondents. The Court of Appeals for the Seventh Circuit affirmed. 273 F. 2d 196. It stated that “No boycott, conspiracy to boycott or other form of per se violation is established by the facts alleged” (id., at 199), and that “[i]n the absence of a per se violation the Sherman Act protects the individual injured competitor and affords him relief, but only under circumstances where there is such general injury to the competitive process that the public at large suffers economic harm.” Id., at 200. It held that public injury was not alleged since “[t]he allegations of the plaintiff’s complaint fail to establish that there has been any appreciable lessening in the sale of conversion gas burners or gas furnaces or that the public has been deprived of a product of over-all superiority.” Id., at 200. Because of petitioner’s claim that this holding is contrary to-controlling decisions of this Court, we granted certiorari. 363 U. S. 809. We think the decision of the Court of Appeals does not accord with our recent decision in Klor’s, Inc., v. Broadway-Hale Stores, 359 U. S. 207. The allegation in the complaint that “AGA and its Utility members, including Peoples and Northern, effectuate the plan and purpose of the unlawful combination and conspiracy . . . by . . . refusing to provide gas for use in the plaintiff’s Radiant Burner [s] ” because they “are not approved by AGA” clearly shows “one type of trade restraint and public harm the Sherman Act forbids . . . .” Id., at 210. It is obvious that petitioner cannot sell its gas burners, whatever may be their virtues, if, because of the alleged conspiracy, the purchasers cannot buy gas for use in those burners. The conspiratorial refusal “to provide gas for use in the plaintiff’s Radiant Burner [s] [because they] are not approved by AGA” therefore falls within one of the “classes of restraints which from their 'nature or character’ [are] unduly restrictive, and hence forbidden by both the common law and the statute. ... As to these classes of restraints . . . Congress [has] determined its own criteria of public harm and it [is] not for the courts to decide whether in an individual case injury [has] actually occurred.” Id,., at 211. The alleged conspiratorial refusal to provide gas for use in plaintiff’s Radiant Burners “interferes with the natural flow of interstate commerce [and] clearly has, by its ‘nature’ and ‘character,’ a ‘monopolistic tendency.’ As such it is not to be tolerated merely because the victim is just one [manufacturer] whose business is so small that his destruction makes little difference to the economy.” Id., at 213. By § 1, Congress has made illegal: “Every contract, combination ... or conspiracy, in restraint of trade or commerce among the several States . . . .” Standard Oil Co. v. United States, 221 U. S. 1. Congress having thus prescribed the criteria of the prohibitions, the courts may not expand them. Therefore, to state a claim upon which relief can be granted under that section, allegations adequate- to show a violation and, in a private treble damage action,- that plaintiff was damaged thereby are all the law requires. The judgment of the Court of Appeals is reversed and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion. Reversed. Of the 10 members of AGA who were joined with it as defendants, two are-public utilities engaged in the distribution of gas in the Northern District of Illinois, namely, The Peoples Gas Light & Coke Company and Northern Illinois Gas Company; two are pipeline companies engaged in transporting natural gas in interstate commerce into the Northern District of Illinois, namely, Natural Gas Pipeline of America and Texas-Illinois Natural Gas Co.; the other six are manufacturers of gas burners, namely, Autogas Company, Crown Stove Works, • Florence Stove Company, Gas Appliance Service, Inc., Norge Sales Corporation, and Sellers Engineering Company. Section 1 of the Sherman Act provides: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal . . . .” Section 4 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 15, states, “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor . . . and shall recover threefold the damages by him sustained . . . .” Section 16 of the Clayton Act, 38 Stat. 737, 15 U. S. C. § 26, states, “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 Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_initiate	F	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. CARLISLE v. S. C. LOVELAND CO. et al. No. 9704. United States Court of Appeals Third Circuit. Argued March 21, 1949. Decided May 18, 1949. Louis Wagner, Philadelphia, Pa. (Richard A. Smith, Philadelphia, Pa., on the brief), for appellant. Benjamin F. Stahl, Jr., Philadelphia, Pa. (Clark, Brown, McCown, Fortcnbaugh & Young, Philadelphia, Pa., oil the brief), for appellee. Before BIGGS, Chief Judge, and MCLAUGHLIN and KALODNER, Circuit Judges. BIGGS, Chief Judge. This in a sense is a companion case to Carlisle v. Kelly Pile & Foundation Corporation (“Kelly Pile”) at our No. 9732, 175 F.2d 414. In the instant case Carlisle, a citizen of New Jersey, brought suit against 5. C. Loveland Company (“Loveland”), stated in the complaint to be a corporation created under the laws of Pennsylvania, alleging acts of negligence by Loveland which occurred in Delaware and which resulted in injury to him. Loveland answered, alleging that it was incorporated under the laws of the State of Delaware. It seems to be conceded that Loveland is a Delaware corporation and we will assume this to be the case for the purpose of the instant appeal. Loveland as a third-party plaintiff filed a complaint against Kelly Pile, a New York corporation, asserting that the liability for Carlisle’s injuries, if there be liability, rests on Kelly Pile which was operating the barge into which Car-lisle fell because of an uncovered hatch. Kelly Pile made a “special appearance” accompanied by a motion to dismiss the third-party complaint on the ground inter alia that the venue of the action is improperly laid in the District Court of the United States for the Eastern District of Pennsylvania. The Court below denied the motion, 77 F.Supp. 51, and Kelly Pile has appealed. The original suit was filed on September 6, 1946 and the third-party complaint was filed on August 26, 1947. It is obvious, therefore, that Section 51 of the Judicial Code of 1911, as amended by the Act of April 16, 1936, 49 Stat. 1213, governs the action. Schoen v. Mountain Producers Corporation, 3 Cir., 170 F.2d 707, 713, cert. den. 69 S.Ct. 746. Section 51 reads as follows: “Civil Suits; Where to be Brought. — Except as provided in the five succeeding sections no person shall be arrested in one district for trial in another, in any civil action before a district court; and, except as provided in the six succeeding sections, no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of th¿ residence of either the plaintiff or the defendant ; except that suit by. a stockholder on behalf of a corporation may be brought in any district in which suit against the defendant or defendants in said stockholders’ action, other than said corporation, might have been broug'ht by such corporation and process in such cases may be served upon such corporation in any district wherein such corporation resides or may be found.” While the record at No. 9732, Carlisle v. Kelly Pile, referred to in the first sentence of this opinion, shows that the Commonwealth of Pennsylvania o.n May 21, 1941 granted to Kelly Pile a certificate of authority to transact business in Pennsylvania pursuant to the Business Corporation Law of May 5, 1933, P.L. 364, 15 P.S.Pa. § 2852 — 1001 et seq., and that that certificate has not been surrendered or revoked, these facts do not appear of record in the instant case. However, since counsel in the oral argument in the instant case discussed Kelly Pile’s status under the certificate of authority to transact business in Pennsylvania pursuant to the Corporation Law as if the relevant circumstances were contained in the record we will take judicial notice of them for the purpose of the instant appeal in order to save the time of the litigants and of the court below and of this court. Loveland is a corporation foreign to Pennsylvania. It therefore might have had the right to invoke the provisions of Section 51 of the Judicial Code and to have objected to the venue of the original action filed against it by Carlisle. Loveland did not take such a step and it follows that any defense relating to improper venue was waived by it. See Robinson v. Coos Bay Pulp Corporation, 3 Cir., 147 F.2d 512, 513. The question next presented is whether Loveland properly may bring into the suit as a third-party defendant Kelly Pile, a corporation of New York. Kelly Pile maintains that Loveland may not voluntarily waive alleged improper venue and by that means require Kelly Pile to answer but the reasoning behind the contention is not clear. The contention seems to be based only on the statement that a defendant who may raise objection to venue but voluntarily submits thereto, may not bring into court by the device of a third-party complaint as a third-party defendant one who otherwise could not be brought into court. Kelly Pile’s assertion seems to find a complete answer by way of analogy in the decision of this court in Sheppard v. Atlantic States Gas Co., 167 F.2d 841, 845. As we have said Kelly Pile elected to make a “special appearance” in the instant case. While Rule 12 has abolished the antique distinction between general and special appearances in the federal courts and it may now be said that a defendant comes into court with the key of the ‘Court house in his pocket, Orange Theatre Corp. v. Rayherstz Amusement Corp., 3 Cir., 139 F.2d 871, 874, Kelly Pile on this aspect of the instant case has elected to seek release only by attempting to turn the key of improper venue. Since in our decision at No. 9732, Carlisle v. Kelly Pile, see note 1, supra, we hold that Kelly Pile by qualifying to do business in the State of Pennsylvania under the Business Corporation Law of May 5, 1933, P.L. 364, 15 P.S.Pa. § 2852 — 1031 et seq., waived any objection to venue in a suit brought in Pennsylvania for, a tort arising outside of that State, it follows that the key selected by Kelly Pile will not unlock the court house door and release it. The reasons for our ruling at No. 9732 need not be repeated here. Another point requires consideration. Kelly Pile insists that there is absence of any liability over as between it and Loveland; that there must be “community of negligent action” between the third-party plaintiff and the third-party defendant. Carlisle sued Loveland alleging he was injured by reason of the negligence of Loveland, its agents, servants and employees. This was Carlisle’s first cause of action. By his second cause of action he seeks maintenance and cure. His employer was Loveland, not Kelly Pile, and hence the second cause of action will run only against Loveland and Kelly Pile cannot be involved therein. In its third-party complaint, however, Loveland avers that Kelly Pile is liable over to it by reason of certain negligent acts on the part of Kelly Pile which caused Carlisle’s injuries. The allegations of the third-party complaint seem to meet squarely the requirements of Rule 14. The doctrine of Brun v. Mann, 8 Cir., 1906, 151 F. 145, 12 L.R.A.,N.S., 154, has been enlarged by more recent decisions. See for example Jones v. Waterman S. S. Corporation, 3 Cir., 155 F.2d 992. Allowance of third-party proceedings in the instant case will avoid circuity of action and will permit adjustment of Carlisle’s claim based on tort in a single suit. We have discussed the case on the merits as if the order of the court below denying Kelly Pile’s motion to dismiss the third-party complaint was an appealable one because of the effect which the instant suit may have on the case which Carlisle has brought against Kelly Pile discussed in the opinion at our No. 9732. The questions involved in the instant suit and in that at our No. 9732 are interesting and novel ones and it would be difficult for the parties at both numbers to be informed fully of their respective rights without a discussion of the merits of the pleadings in the instant action. We think, however, that the order to which Kelly Pile objects, however, is not an appealable order though this question has not been raised by the parties. We can find no case precisely in point. Our jurisdiction is purely statutory, United States v. Horns, 3 Cir., 147 F.2d 57, and it is well established, we think, that an order denying a motion to dismiss a third party complaint is not an order terminating a litigation. See Bostwick v. Brinkerhoff, 106 U.S. 3, 1 S.Ct. 15, 27 L.Ed. 73; Morgan v. Thompson, 8 Cir., 124 F. 203, 204, and Section 128 of the Judicial Code of 1911 [now 28 U.S.C.A. § 1291 et seq.]. Cf. Balitmore & O. R. Co. v. United Fuel Gas Co., 4 Cir., 154 F.2d 545, where an order dismissing a third-party complaint was deemed not to be appealable. Cf. also our decision in Beneficial Industrial Loan Corp. v. Smith, 3 Cir., 170 F.2d 44, 49, 50. But see in particular Moore, Federal Practice, Vol. 1, p. 749, wherein that authority states “If the defendant’s motion to implead a third-party was granted over the plaintiff’s objection, the plaintiff could not appeal from such an order, since it is not a final order in any sense.” By persuasive analogy the third-party defendant is not entitled to an appeal. An order will be entered dismissing the appeal. Opinion filed on the same day as the opinion in the instant case. It will be observed that special appearances are no longer possible under the Federal Rules of Civil Procedure, 28 U.S.C.A. See Rule 12 and Orange Theatre Corp. v. Rayherstz Amusement Corp., 3 Cir., 139 F.2d 871, referred to at a later point in this opinion, There are other grounds alleged for dismissal but they do not require discussion. Service upon Kelly Pile in the instant case was made by the United States Marshal of the District Court of the United States for the Eastern District of New York in New York City upon Mador, shown in the return as an “Attorney, authority to accept service.” Kelly Pile could have objected to the validity of the service of the third-party summons and complaint upon it but since it failed to do this in the court below it has waived that defense. Branic v. Wheeling Steel Corporation, 3 Cir., 152 F.2d 887, 888. See Section 1361 of revised Title 28, U.S.Code. The action of the court in this regard is not to be considered as a binding precedent. It was the duty of counsel to put into the record the pertinent facts relating to Kelly Pile’s qualification to do business in the State of Pennsylvania. 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_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. BOHANNAN v. ARIZONA ex rel. SMITH, ATTORNEY GENERAL. No. 204. Decided October 9, 1967. John P. Frank for appellant. Darrell F. Smith, Attorney General of Arizona, and Gary K. Nelson, Assistant Attorney General, for appellee. Per Curiam. The motion to dispense with printing the motion to dismiss is granted. The motion to dismiss is also granted and the appeal is dismissed for want of a properly presented federal question. 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_typeiss	C	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. COWLING v. DEEP VEIN COAL CO., Inc. No. 10024. United States Court of Appeals Seventh Circuit May 25, 1950. Rehearing Denied Aug. 17,1950. Joe Vol Butt, James M. Buthod, Evansville, Indiana, S. Hugh Dillin, Petersburg, Indiana, Dillin & Dillin, Petersburg, Indiana, for plaintiffs-appellants. Benjamin G. Cox, Terre Haute, Indiana, Charles C. Whitlock, Terre Haute, Indiana, Gerald E. Hall, Princeton, Indiana, Gambill, Dudley & Cox, Terre Haute, Indiana, for defendant-appellee Deep Vein Coal Co., Inc. Before KERNER, DUFFY and LINDLEY, Circuit Judges. DUFFY, Circuit Judge. Defendant Deep Vein Coal Company, Inc., (hereinafter referred to as “Deep Vein”), moved for a summary judgment assigning five reasons for such motion. The trial judge granted the motion without indicating the basis for his action. From a judgment entered in favor of Deep Vein plaintiffs bring this appeal. Plaintiffs, claiming to own fractional undivided interests in the oil and gas under certain lands in Gibson County, Indiana, brought this action for an injunction and an accounting and other relief. Thé complaint, after setting forth diversity of citizenship and requisite jurisdictional amount in controversy, alleges that Deep Vein drilled a producing oil well upon the real estate in question without the prior consent of the plaintiffs, and that the proportionate share of the oil recovered, being the property of the plaintiffs, _ has been appropriated and converted by Deep Vein which has failed and refused to account for same to the plaintiffs. In addition plaintiffs allege that Deep Vein is operating another producing oil well or wells on adjacent lands in such a manner as to drain the oil from under the property described in the complaint, and that the defendant Farm Bureau Oil Company (hereinafter called “Farm Bureau”) has purchased from Deep Vein oil produced from the described premises, and has failed to account to plaintiffs for their proportionate share thereof. The pleadings show and it is without dispute that on December 8, 1944, one Louise S. Davis was the owner of the entire fee simple title to 240 acres of land in Gibson County, Indiana, subject only to the interest of Citizens National Bank of Paris, Illinois, as trustee. The bank’s interest was subsequently acquired by Mrs. Davis and is of no importance in a consideration of the issues now before us. On said date Louise S. Davis, joined by her husband and the trustee, executed an oil ■and gas lease of said premises to Deep Vein. By its terms the lease expired on December 8, 1945, unless oil or gas were previously thereto produced from said premises. On October 4, 1945, by an instrument duly recorded on October 8, 1945, Louise S. Davis and her husband executed a mineral deed to one Milton A. Lobree, which purported to convey “an undivided one-half (1/2) interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described lands * * * together with the right of ingress and egress at all times for the purpose of mining, drilling, exploring, operating and developing said lands for oil, gas and other minerals * * The mineral deed was expressly made subject to the oil and gas lease to Deep Vein dated December 8, 1944, but covered and included “an undivided one-half (Y) interest of the oil royalty and gas rental or royalty to be paid under the terms of said lease.” On October 8, 1945, Milton A. Lobree and his wife executed several mineral deeds conveying an undivided 20/240ths interest in the oil, gas and other minerals in, under and that may be produced from said real estate to plaintiff Cowling, an undivided 15/240ths interest to plaintiff Rockey, and an undivided l5/240ths interest to plaintiff Watson. On October 18, 1945, by an instrument recorded October 23, 1945, Louise S. Davis and husband executed what purported to be an extension of the original oil and gas lease to Deep Vein, extending said original lease until September 1, 1947, and as long thereafter as oil or gas was produced from said leased premises in commercial quart titles, but that if no such oil or gas was produced before September 1, 1947, the original lease, as extended, was to be terminated. Deep Vein’s answer sets forth five defenses. It places in issue many of the material allegations of the complaint, and in addition pleads three affirmative defenses. In its second defense, Deep Vein asserts “that it has been paid for the working interest or has caused to be paid for the royalty sums for the oil removed by defendant, Deep Vein Coal Company, Inc., from said premises, except that a portion of the royalty oil has been suspended at the request of plaintiffs herein in accordance with the alleged ownership of plaintiffs as to such suspended portion, pending the determination of the issues presented by plaintiffs’ complaint and that defendant is ready and willing to furnish a complete statement of all oil produced by it from said premises and of all oil sold by it from said premises, and to disburse payment therefor according to any order or judgment of the Court which may issue in the premises, should said order direct payment in a manner different than has been heretofore made by this defendant.” Defendant Farm Bureau answered that it had purchased oil from the tract in question between July 16, 1947, and May 24, 1948, and that it stands ready and willing to furnish a complete statement of all oil purchased by it from said premises and to disburse payment according to any order or judgment of the court should such order direct payment in a manner different from that which has- been made by it. Neither answer was verified. Deep Vein moved the district court to require plaintiffs to procure and file for its use an abstract of title to the real estate claimed by them as set forth in the complaint. This motion was granted and thereafter plaintiffs filed such abstract. Deep Vein, invoking Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A., then moved for summary judgment, based upon the pleadings, the abstract of title, and the affidavit of one Sampliner. Plaintiffs filed an affidavit of Lobree, the grantor of the mineral deeds under which they claim. Deep Vein insists that the trial court acted correctly in ordering summary judgment in its favor based upon the pleadings, the Sampliner affidavit, and the “admissions” in the abstract of title. We cannot agree. Although plaintiff did not answer or reply to Deep Vein’s affirmative defenses, an answer or reply was not required absent an order of the court. Rule 7(a), Federal Rules of Civil Procedure. They are deemed denied. Rule 8(d), id.; Radio Shack Corp. v. Radio Shack, Inc., 7 Cir., 180 F.2d 200. The pleadings considered alone present genuine issues as to material facts. The material allegations of the Sampliner affidavit are controverted by the Lobree affidavit. If the intention of the parties as to authorizing Mrs. Davis to extend tnilaterally the lease to Deep Vein becomes material, certainly there is a violent disagreement as to the facts. Nor can we agree with the defendant Deep Vein that the abstract of title produced by plaintiffs must necessarily be considered an “admission” by plaintiffs. It was produced under court order, upon motion of and for the use of defendant. An abstract thus furnished does not become part of the pleadings. O’Mara et al. v. McCarthy, 45 Ind.App. 147, 90 N.E. 330. Ordinarily abstracts of title are regarded as secondary evidence or hearsay, and in the absence of statutory enactment usually cannot be received in evidence. Wigmore on Evidence, 3d Ed., Sec. 1705. While plaintiffs do not deny that the abstract accurately sets forth recording data, they are entitled to object to inferences which Deep Vein seeks to draw, such as that plaintiffs stood by without protest or giving notice while Deep Vein was drilling the ,well, and that Deep Vein was without knowledge of the plaintiff’s interest prior to the date when their mineral deeds were recorded. As genuine issues exist as to various material facts involved, the summary judgment should not have been entered unless it was apparent that the mineral deed from Davis to Lobree is wholly void as a matter of law and that such infirmity is apparent on the face of the instrument. Defendant Deep Vein earnestly contends that the mineral deed from Davis to Lobree as well as the mineral deeds from Lobree to plaintiffs are absolutely void under Indiana law. Deep Vein argues that the right to explore and capture oil or gas is an exclusive right — that it is co-extensive with the ownership of the land involved and is a right indivisible with respect to the particular tract of land involved. Deep Vein argues that it is legally impossible to create several divisible interests in an exclusive right. Plaintiffs and defendant Deep Vein seem to agree that the right to take oil from the lands of another is a profit á prendre in gross, which is an incorporeal hereditament, although plaintiffs deny that such interest is accessory to the superincumbent real estate. Plaintiffs and defendants also agree that the extent of plaintiffs’ rights must be determined by the law of Indiana, but that no Indiana case has defined the extent of the rights of multiple ownership as here created by the various mineral deeds under which plaintiffs claim. There is further agreement that the decisions of courts of the various States which have passed on the question have brought about a state of confusion concerning the exact nature of the interest involving the right to explore for oil and gas and to reduce same to possession. Plaintiffs cite decisions of Illinois, California and Oklahoma courts as being persuasive of the rule that Indiana coiurts would follow, but defendant Deep Vein claims that- those decisions are not instructive or helpful in determining the correct applicable rule in Indiana. The answers to the questions here involved are of vital importance to land owners in Indiana as well as to those engaged in the important work of exploring for and producing oil and gas in that State. Where the Indiana courts have not rendered a controlling decision on a point of primary concern to Indiana citizens and others doing business in that State, federal courts should be reluctant to predict what the Indiana courts would decide is the correct rule of law. Therefore, as we have done heretofore (United States v. 150.29 Acres of Land, etc. in Milwaukee County, Wis., 7 Cir., 135 F.2d 878, 881), we think it is advisable to 'remand the case to the district court with instructions to retain jurisdiction for a reasonable time, so that the parties may seek in the courts of Indiana the answers to the questions of law here involved. Spector Motor Service, Inc., v. McLaughlin, Tax Commissioner, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101; City of Chicago et al. v. Fieldcrest Dairies, Inc., 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355; Railroad Commission of Texas et al. v. Pullman Co. et al., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971. As we do not reach the question of the validity of the mineral deed from Louise Davis to Lobree, or of the mineral deeds from Lobree to plaintiffs, we must reverse the summary judgment entered in the district court, because of the existence of genuine issues as to material facts, as hereinbefore indicated. In addition, upon remand we direct the district court to retain jurisdiction for a reasonable time until the parties can litigate the questions here raised in the courts of Indiana or may otherwise dispose of the case. Reversed. . The authority relied upon for the motion and order is Burns’ Indiana Stats., 1933, Sec. 2-1032, which provides: “The court, on motion, may order a further bill of particulars, when the one filed is defective; and may, in all proper cases, upon motion, order a bill of particulars of the claim of either party, and abstract of title to be furnished.” . Buie 56(c), Federal Buies of Civil Procedure, provides: “ * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * * ” (Emphasis added.) Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
sc_authoritydecision	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. GARRETT v. UNITED STATES No. 83-1842. Argued January 16, 1985 Decided June 3, 1985 Rehnquist, J., delivered the opinion of the Court in which Burger, C. J., and White, Blackmun, and O’Connor, JJ., joined. O’Connor, J., filed a concurring opinion, post, p. 795. Stevens, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 799. Powell, J., took no part in the decision of the ease. Philip A. DeMassa argued the cause for petitioner. With him on the briefs was Richard M. Barnett. Mark I. Levy argued the cause for the United States. With him on the brief were Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Joel M. Gershowitz. Justice Rehnquist, delivered the opinion of the Court. This case requires us to examine the double jeopardy implications of a prosecution for engaging in a “continuing criminal enterprise” (CCE), in violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U. S. C. § 848, when facts underlying a prior conviction are offered to prove one of three predicate offenses that must be shown to make out a CCE violation. Petitioner Jonathan Garrett contends that his prior conviction is a lesser included offense of the CCE charge, and, therefore, that the CCE prosecution is barred under Brown v. Ohio, 432 U. S. 161 (1977). Between 1976 and 1981, Garrett directed an extensive marihuana importation and distribution operation involving offloading, transporting, and storing boatloads of marihuana. These activities and related meetings and telephone calls occurred in several States, including Arkansas, Florida, Georgia, Louisiana, Massachusetts, Michigan, Texas, and Washington. In March 1981, Garrett was charged in three substantive counts of an indictment in the Western District of Washington for his role in the off-loading and landing of approximately 12,000 pounds of marihuana from a “mother ship” at Neah Bay, Washington. He was named as a co-conspirator, but not indicted, in a fourth count charging conspiracy to import marihuana. Having learned that he was being investigated on CCE charges in Florida, Garrett moved to consolidate in the Washington proceedings “all charges anticipated, investigated and currently pending against [him].” The Government opposed the motion on the ground that no other charges had then been filed against Garrett, and the District Court denied it. Garrett pleaded guilty to one count of importation of marihuana in violation of 21 U. S. C. §§952, 960(a)(1), 960(b)(2) and 18 U. S. C. § 2. He was sentenced to five years’ imprisonment and a $15,000 fine; and the remaining counts against him, including possession of marihuana with intent to distribute, were dismissed without prejudice to the Government’s right to prosecute him on any other offenses he may have committed. Approximately two months after his guilty plea in Washington, Garrett was indicted in the Northern District of Florida for conspiring to import marihuana, 21 U. S. C. §§ 952, 960, 963, conspiring to possess marihuana with intent to distribute, 21 U. S. C. §§841, 846, using a telephone to facilitate illegal drug activities, 21 U. S. C. §§963, 846, 843(b), and engaging in a continuing criminal enterprise, 21 U. S. C. §848. The District Court denied Garrett’s pretrial motion to dismiss the CCE charge, made on the ground that it encompassed the Washington importation operation in violation of the Double Jeopardy Clause. In the Florida trial, the Government introduced extensive evidence of Garrett’s ongoing and widespread drug activities, including proof of the marihuana smuggling operation at Neah Bay, Washington. The court instructed the jury on the CCE count that it had to find beyond a reasonable doubt that Garrett had committed “a felony under Title 21 of the United States Code” that “was a part of a continuing series of violations,” defined to be “three or more successive violations of Title 21 over a definite period of time with a single or substantially similar purpose. ” The court further instructed the jury that it had to find that Garrett acted “in concert with five or more other persons,” that with respect to them Garrett occupied “a position of organizer, supervisor, or any position of management,” and that he “received substantial income from this operation.” As to the predicate violations making up the “series,” the court instructed the jury that in addition to the offenses charged as substantive counts in the Florida indictment, the felony offenses of possession of marihuana with intent to distribute it, distribution of marihuana, and importation of marihuana would qualify as predicate offenses. 14 Record 16-20. The Washington evidence, as well as other evidence introduced in the Florida trial, tended to prove these latter three offenses. The jury convicted Garrett on the CCE count, the two conspiracy counts, and the telephone facilitation count. He received consecutive prison terms totaling 14 years and a $45,000 fine on the latter three counts, and 40 years’ imprisonment and a $100,000 fine on the CCE count. The CCE prison term was made concurrent with the prison terms on the other counts, but consecutive to the prison term from the Washington conviction. The CCE fine was in addition to the fine on the other counts and the Washington fine. On appeal, the Court of Appeals for the Eleventh Circuit rejected Garrett’s contention that his conviction in Washington for importing marihuana barred the subsequent prosecution in Florida for engaging in a continuing criminal enterprise. 727 F. 2d 1003 (1984). The court held that the Washington importation offense and the CCE offense were not the same under the Double Jeopardy Clause; hence successive prosecutions and cumulative sentences for these offenses were permissible. We granted certiorari to consider this question. 469 U. S. 814 (1984). h — I This case presents two of the three aspects of the Double Jeopardy Clause identified in North Carolina v. Pearce, 395 U. S. 711, 717 (1969): protection against a second prosecution for the Washington importation conviction; and protection against multiple punishments for that conviction. Garrett focuses primarily on the former protection, which we address first. The heart of Garrett’s argument entails two steps: First, notwithstanding Jeffers v. United States, 432 U. S. 137 (1977) (plurality opinion), CCE is a separate substantive offense and not a conspiracy offense because it requires completion of the criminal objective and not merely an agreement. Thus CCE is not distinct from its underlying predicates in the way that conspiracy is a distinct offense from the completed object of the conspiracy. Cf. Pinkerton v. United States, 328 U. S. 640, 643 (1946). Second, applying the test of Blockburger v. United States, 284 U. S. 299 (1932), each of the predicate offenses is the “same” for double jeopardy purposes as the CCE offense because the predicate offense does not require proof of any fact not necessary to the CCE offense. Because the latter requires proof of additional facts, including concerted activity with five other persons, a supervisory role, and substantial income, the predicates are lesser included offenses of the CCE provision. The relationship is the same, Garrett argues, as the relationship between the joyriding and auto theft statutes involved in Brown v. Ohio, supra, and thus a subsequent prosecution for the greater CCE offense is barred by the earlier conviction of the lesser marihuana importation offense. Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature — in this case Congress — intended that each violation be a separate offense. If Congress intended that there be only one offense — that is, a defendant could be convicted under either statutory provision for a single act, but not under both — there would be no statutory authorization for a subsequent prosecution after conviction of one of the two provisions, and that would end the double jeopardy analysis. Cf. Albrecht v. United States, 273 U. S. 1, 11 (1927). This question of legislative intent arose in Blockburger in the context of multiple punishments imposed in a single prosecution. Based on one drug sale, Blockburger was convicted of both selling a drug not in the original stamped package and selling it not in pursuance of a written order of the purchaser. The sale violated two separate statutory provisions, and the question was whether “the accused committed two offenses or only one.” 284 U. S., at 303-304. The rule stated in Blockburger was applied as a rule of statutory construction to help determine legislative intent. Significantly, after setting out the rule, the Court cited a paragraph in Albrecht, supra, at 11, which included the following statement: “There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction” (emphasis added). We have recently indicated that the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history. Missouri v. Hunter, 459 U. S. 359, 368 (1983); Albernaz v. United States, 450 U. S. 333, 340 (1981); Whalen v. United States, 445 U. S. 684, 691-692 (1980). Indeed, it would be difficult to contend otherwise without converting what is essentially a factual inquiry as to legislative intent into a conclusive presumption of law. In the present case the application of the Blockburger rule as a conclusive determinant of legislative intent, rather than as a useful canon of statutory construction, would lead to the conclusion urged by Garrett: that Congress intended the conduct at issue to be punishable either as a predicate offense, or as a CCE offense, but not both. The language, structure, and legislative history of the Comprehensive Drug Abuse, Prevention and Control Act of 1970, however, show in the plainest way that Congress intended the CCE provision to be a separate criminal offense which was punishable in addition to, and not as a substitute for, the predicate offenses. Insofar as the question is one of legislative intent, the Blockburger presumption must of course yield to a plainly expressed contrary view on the part of Congress. The language of 21 U. S. C. § 848, which is set out in full in the margin, affirmatively states an offense for which punishment will be imposed. It begins: “Any person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than 10 years and which may be up to life imprisonment, to a- fine of not more than $100,000, and to the forfeiture prescribed in paragraph (2).” § 848(a)(1). At this point there is no reference to other statutory offenses, and a separate penalty is set out, rather than a multiplier of the penalty established for some other offense. This same paragraph then incorporates its own recidivist provision, providing for twice the penalty for repeat violators of this section. Significantly the language expressly refers to “one or more prior convictions... under this section.” Next, subparagraph (2), which sets out various forfeiture provisions, also refers to any person “who is convicted under paragraph (1) of engaging in a continuing criminal enterprise,” again suggesting that §848 is a distinct offense for which one is separately convicted. Subsection (b) of § 848 defines the conduct that constitutes being “engaged in a continuing criminal enterprise”: “(1) he violates any provision of this subehapter or subchapter II of this chapter [establishing various drug offenses] the punishment for which is a felony, and “(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter— “(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and “(B) from which such person obtains substantial income or resources.” A common-sense reading of this definition reveals a carefully crafted prohibition aimed at a special problem. This language is designed to reach the “top brass” in the drug rings, not the lieutenants and foot soldiers. The definition of a continuing criminal enterprise is not drafted in the way that a recidivist provision would be drafted. Indeed § 848(a)(1), as already noted, contains language that is typical of that sort of provision. Moreover, the very next section of the statute entitled “Dangerous Special Drug Offender Sentencing” is a recidivist provision. It is drafted in starkly contrasting language which plainly is not intended to create a separate offense. For example, it provides for a special hearing before the court sitting without a jury to consider the evidence of prior offenses, and the determination that a defendant is a dangerous special drug offender is made on a preponderance of the information by the court. See 21 U. S. C. § 849. This conclusion as to Congress’ intent is fortified by the legislative history. H. R. 18583 is the bill that was enacted to become the Comprehensive Drug Abuse Prevention and Control Act of 1970. In its section-by-section analysis, the House Committee Report states: “Section 408(a) [21 U. S. C. § 848(a)] provides that any person who engages in a continuing criminal enterprise shall upon conviction for that offense be sentenced to a term of imprisonment for not less than 10 years and up to life.... If the person engages in this activity subsequent to one or more convictions under this section, he shall receive a penalty of not less than 20 years’ imprisonment....” H. R. Rep. No. 91-1444, pt. 1, p. 50 (1970) (emphasis added). The intent to create a separate offense could hardly be clearer. As originally introduced in the House, H. R. 18583 had a section entitled “Continuing Criminal Enterprises” which in reality was a recidivist provision, like the current 21U. S. C. § 849, that provided for enhanced sentences for “a special offender,” who “committed [a drug] felony as part of a pattern of conduct which was criminal under applicable laws of any jurisdiction, which constituted a substantial source of his income, and in which he manifested special skill or expertise.” The House Committee substituted for this provision an amendment offered by Representative Dingell that ultimately became the current §848. “Instead of providing a post-conviction-presentencing procedure, [the Dingell amendment] made engagement in a continuing criminal enterprise a new and distinct offense with all its elements triable in court.” H. R. Rep. No. 91-1444, pt. 1, pp. 83-84 (1970) (additional views); see 116 Cong. Rec. 33302 (1970) (remarks of Rep. Eckhardt). During consideration of the bill by the full House, Representative Poff offered an amendment which would restore the recidivist provision to the bill in addition to the Dingell provision. Explaining the differences between the two approaches, Representative Eckhardt stated: “[T]he Dingell amendment created a new offense which would have to be triable in all its parts by admissible evidence brought before the court, whereas the post-conviction presentence [procedure] of the original bill similar to the Poff provisions provided that some report upon which sentence would be based would be available to the judge, cross-examination would be available of those who presented the report, but not of those who may have contributed to it.” Ibid. Later in the debate, Representative Poff explained his proposed amendment further: “Mr. Chairman, the most dangerous criminal in the criminal drug field is the organized crime offender, the habitual offender, the professional criminal. “Mr. Chairman, we need special penalties in my opinion for these special criminals. Constitutional scholars have suggested two approaches to deal with such offenders. The first is the creation of a separate crime with separate penalties. The second approach is the imposition of longer sentences upon those convicted first of the basic crime and then shown to be dangerous offenders. “Mr. Chairman, the first approach, the separate crime approach, is the approach taken by section 408 of the Committee bill [21 U. S. C. §848]. The second is found in the amendment which I have just offered which adds two new sections to the bill, sections 409 and 410 [21 U. S. C. §§849 and 850].” Id., at 33630. The distinction between the two approaches was emphasized in the continuing debate. For example, Representative Eckhardt stated: “Under the Dingell amendment, if you are going to prove a man guilty, you have to come into court and prove every element of the continuing criminal offense.” Representative Poff concurred in this characterization of the CCE provision “which embodies a new separate criminal offense with a separate criminal penalty.” Representative Poff distinguished this approach from his proposed amendment which “authorizes the judge to impose the extended sentence upon the defendant in the dock who has already been found guilty by the jury of the basic charge.” Id., at 33631. The Poff amendment was adopted, id., at 33634, and both approaches are contained in the statute, 21 U. S. C. §§848, 849, and 850. In view of this legislative history, it is indisputable that Congress intended to create a separate CCE offense. One could still argue, however, that having created the separate offense, Congress intended it, where applicable, to be a substitute for the predicate offenses. Nowhere in the legislative history is it stated that a big-time drug operator could be prosecuted and convicted for the separate predicate offenses as well as the CCE offense. The absence of such a statement, however, is not surprising; given the motivation behind the legislation and the temper of the debate, such a statement would merely have stated the obvious. Congress was seeking to add a new enforcement tool to the substantive drug offenses already available to prosecutors. During the debate on the Poff amendment, for example, Representative Fascell stated: “I see no reason to treat a drug trafficker any less harshly than an organized crime racketeer. Their acts are equally heinous, the consequences equally severe, and their punishment equally justified.” Representative Weicker stated: “The penalty structure has been designed to accommodate all types of drug offenders, from the casual drug user and experimenter to the organized crime syndicates engaged in unlawful transportation and distribution of illicit drugs.” He continued, “This bill goes further in providing those persons charged with enforcing it a wide variety of enforcement tools which will enable them to more effectively combat the illicit drug trafficker and meet the increased demands we have imposed on them.” Representative Taft stated: “[T]his amendment will do much at least to help a coordinated attack on the organized crime problem within the purview of this legislation.... Hopefully, we will see other legislation coming along broadening the attack on the crime syndicates even further.” 116 Cong. Rec. 33630-33631 (1970). It runs counter to common sense to infer from comments such as these, which pervade the entire debate and which stand unrebutted, that Congress intended to substitute the CCE offense for the underlying predicate offenses in the case of a big-time drug dealer rather than to permit prosecution for CCE in addition to prosecution for the predicate offenses. Finally, it would be illogical for Congress to intend that a choice be made between the predicate offenses and the CCE offense in pursuing major drug dealers. While in the instant case Garrett claims that the Government was aware of the possibility of bringing the CCE charge before he was indicted on the Washington offenses, in many cases the Government would catch a drug dealer for one offense before it was aware of or had the evidence to make a case for other drug offenses he had committed or in the future would commit. The Government would then be forced to choose between prosecuting the dealer on the offense of which it could prove him guilty or releasing him with the idea that he would continue his drug-dealing activities so that the Government might catch him twice more and then be able to prosecute him on the CCE offense. Such a situation is absurd and clearly not what Congress intended. II Having determined that Congress intended CCE to be a separate offense and that it intended to permit prosecution for both the predicate offenses and the CCE offense, we must now determine whether prosecution for a CCE offense after an earlier prosecution for a predicate offense is constitutional under the Double Jeopardy Clause of the Fifth Amendment. The Double Jeopardy Clause provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The critical inquiry is whether a CCE offense is considered the “same offense” as one or more of its predicate offenses within the meaning of the Double Jeopardy Clause. Quite obviously the CCE offense is not, in any commonsense or literal meaning of the term, the “same” offense as one of the predicate offenses. The CCE offense requires the jury to find that the defendant committed a predicate offense, and in addition that the predicate offense was part of a continuing series of predicate offenses undertaken by the defendant in concert with five or more other persons, that the defendant occupied the position of an organizer or manager, and that the defendant obtained substantial income or resources from the continuing series of violations. In order to properly analyze the successive prosecution issue, we must examine not only the statute which Congress has enacted, but also the charges which form the basis of the Government’s prosecution here. Petitioner pleaded guilty in the Western District of Washington in May 1981 to a count charging importation of 12,000 pounds of marihuana at Neah Bay, Washington, on August 26, 1980. He was indicted in the Northern District of Florida in July 1981, on charges of conspiring to import “multi-ton quantities of marihuana and marihuana ‘Thai sticks’” from January 1976 to July 16, 1981; of conspiring to possess with intent to distribute marihuana over the same period of time; and of engaging in a continuing criminal enterprise over the same period of time. Thus at the very moment he made his motion to require “consolidation” of all the charges against him in the Western District of Washington, he was engaging in criminal conduct of which he was later found guilty by a jury in the Northern District of Florida. Petitioner contends that the marihuana importation charge to which he pleaded guilty in Washington was a “lesser included offense” of the CCE offense of which he was convicted in Florida. He points out that evidence of the Washington offense was introduced at the Florida trial, and that the jury was permitted to find that the Washington violation was one of the “predicate offenses” for the CCE charge in Florida. He relies on Brown v. Ohio, 432 U. S. 161 (1977), for his conclusion that the use of the Washington offense as an element of the Florida charge placed him twice in jeopardy in violation of the Fifth Amendment to the United States Constitution. Brown v. Ohio held that, where the misdemeanor of joyriding was a lesser included offense in the felony of auto theft, a prosecution for the misdemeanor barred a second prosecution for the felony. We think there is a good deal of difference between the classic relation of the “lesser included offense” to the greater offense presented in Brown, on the one hand, and the relationship between the Washington marihuana offense and the CCE charge involved in this case, on the other. The defendant in Brown had stolen an automobile and driven it for several days. He had engaged in a single course of conduct — driving a stolen car. The very same conduct would support a misdemeanor prosecution for joyriding or a felony prosecution for auto theft, depending only on the defendant’s state of mind while he engaged in the conduct in question. Every moment of his conduct was as relevant to the joyriding charge as it was to the auto theft charge. In the case before us the situation is quite different. The count in the Washington indictment to which Garrett pleaded guilty charged importation of 12,000 pounds of marihuana at Neah Bay on August 26, 1980. The Washington indictment was returned on March 17, 1981, and a guilty plea entered on May 18, 1981. Two other counts of the indictment, including causing interstate travel to facilitate importation of marihuana on or about October 24, 1979, were dismissed without prejudice to the Government’s right subsequently to prosecute any other offense Garrett may have committed. The CCE indictment returned against Garrett in Florida was returned on July 16, 1981. It charged that he had, from January 1976, “up to and including [July 16, 1981],” conspired in that district and “divers other districts” to import multiton quantities of marihuana and marihuana “Thai sticks” in violation of applicable federal law. Another count charged conspiracy to possess with intent to distribute marihuana over the same period of more than five years. A third count of the Florida indictment charged that Garrett had engaged in the Northern District of Florida and in “divers other districts” in a continuing criminal enterprise over the same 5x/2-year period. Obviously the conduct in which Garrett was charged with engaging in the Florida indictment, when compared with that with which he was charged in the Washington indictment, does not lend itself to the simple analogy of a single course of conduct — stealing a car — comprising a lesser included misdemeanor within a felony. Here the continuing criminal enterprise was alleged to have spanned more than five years; the acts charged in the Washington indictment were alleged to have occurred on single days in 1979 and 1980, respectively. Whenever it was during the 5!4-year period alleged in the indictment that Garrett committed the first of the three predicate offenses required to form the basis for a CCE prosecution, it could not then have been said with any certainty that he would necessarily go ahead and commit the other violations required to render him liable on a CCE charge. Every minute that Nathaniel Brown drove or possessed the stolen automobile he was simultaneously committing both the lesser included misdemeanor and the greater felony, but the same simply is not true of Garrett. His various boatload smuggling operations in Louisiana, for example, obviously involved incidents of conduct wholly separate from his “mother boat” operations in Washington. These significant differences caution against ready transposition of the “lesser included offense” principles of double jeopardy from the classically simple situation presented in Brown to the multilayered conduct, both as to time and to place, involved in this case. Were we to sustain Garrett’s claim, the Government would have been able to proceed against him in either one of only two ways. It would have to have withheld the Washington charges, alleging crimes committed in October 1979 and August 1980, from the grand jury which indicted Garrett in March 1981, until it was prepared to present to a grand jury the CCE charge which was alleged to have been, and found by a jury to be, continuing on each of those dates; or it would have to have submitted the CCE charge to the Washington grand jury in March 1981, even though the indictment ultimately returned against Garrett on that charge alleged that the enterprise had continued until July 1981. We do not think that the Double Jeopardy Clause may be employed to force the Government’s hand in this manner, however we were to resolve Garrett’s lesser-included-offense argument. One who insists that the music stop and the piper be paid at a particular point must at least have stopped dancing himself before he may seek such an accounting. Petitioner urges that “[w]here the charges arise from a single criminal act, occurrence, episode, or transaction, they must be tried in a single proceeding. Brown v. Ohio, 432 U. S., at 170 (Brennan, J., concurring).” We have steadfastly refused to adopt the “single transaction” view of the Double Jeopardy Clause. But it would seem to strain even that doctrine to describe Garrett’s multifarious multistate activities as a “single transaction.” For the reasons previously stated, we also have serious doubts as to whether the offense to which Garrett pleaded guilty in Washington was a “lesser included offense” within the CCE charge so that the prosecution of the former would bar a prosecution of the latter. But we may assume, for purposes of decision here, that the Washington offense was a lesser included offense, because in our view Garrett’s claim of double jeopardy would still not be sustainable. In Diaz v. United States, 223 U. S. 442 (1912), the Court had before it an initial prosecution for assault and battery, followed by a prosecution for homicide when the victim eventually died from injuries inflicted in the course of the assault. The Court rejected the defendant’s claim of double jeopardy, holding that the two were not the “same offense”: “The homicide charged against the accused in the Court of First Instance and the assault and battery for which he was tried before the justice of the peace, although identical in some of their elements, were distinct offenses both in law and in fact. The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense.” Id., at 448-449. In the present case, as in Diaz, the continuing criminal enterprise charged against Garrett in Florida had not been completed at the time that he was indicted in Washington. The latter event took place in March 1981, whereas the continuing criminal enterprise charged in the Florida indictment and found by the trial jury extended from January 1976 to July 1981. The evidence at trial showed, for example, that Garrett was arrested for traffic offenses and other violations on July 23, 1981, while out on bail pending sentencing for the Washington conviction. He told the arresting officer that the officer had caught “somebody big” and that he was a “smuggler.” At the time of the arrest, Garrett was carrying $6,253 in cash. About $30 of this was in quarters. He explained that he needed them to make long-distance phone calls, on which he sometimes spent $25 to $50 a day. He also told the arresting officer and a federal agent who interviewed him the next morning that he had just bought the truck he had been driving for $13,000 cash and that he used it for smuggling. He further stated that he had a yacht in Hawaii which he had purchased for $160,000 cash. This evidence is consistent with the jury’s verdict that Garrett continued his CCE activities into July 1981. We think this evidence not only permits but requires the conclusion that the CCE charged in Florida, alleged to have begun in January 1976, and continued up to mid-July 1981, was under Diaz a different offense from that charged in the Washington indictment. We cannot tell, without considerable sifting of the evidence and speculating as to what juries might do, whether the Government could in March 1981 have successfully indicted and prosecuted Garrett for a different continuing criminal enterprise — one ending in March 1981. But we do not think any such sifting or speculation is required at the behest of one who at the time the first indictment is returned is continuing to engage in other conduct found criminal by the jury which tried the second indictment. It may well be, as Justice Stevens suggests in his dissenting opinion, that the Florida indictment did not by its terms indicate that the Neah Bay importation would be used as evidence to support it, post, at 804-805, and therefore at the time the pretrial motion to dismiss on double jeopardy grounds was made the District Court in Florida could not have rendered an informed decision on petitioner’s motion. But there can be no doubt that by the time the evidence had all been presented in the Florida trial, and the jury was charged, only one reasonable conclusion could be drawn by the District Court: the Government’s evidence with respect to the CCE charge included acts which took place after March 1981, the date of the Washington indictment, and up to and including July 1981. Therefore, the continuing criminal enterprise charged by the Government had not been completed at the time the Washington indictment was returned, and under the Diaz rule evidence of the Neah Bay importation might be used to show one of the predicate offenses. Having concluded that Congress intended CCE to be a separate offense and that it does not violate the Double Jeopardy Clause under the facts of this case to prosecute the CCE offense after a prior conviction for one of the predicate offenses, the only remaining issue is whether the Double Jeopardy Clause bars cumulative punishments. Garrett’s sentence on the CCE conviction was consecutive to his sentence on the Washington conviction. In this connection, “the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U. S., at 366; Albernaz v. United States, 450 U. S., at 344. As discussed above, Congress intended to create a separate offense. The presumption when Congress creates two distinct offenses is that it intends to permit cumulative sentences, and legislative silence on this specific issue does not establish an ambiguity or rebut this presumption: “[The defendants] read much into nothing. Congress cannot be expected to specifically address each issue of statutory construction which may arise. But, as we have previously noted, Congress is ‘predominantly a lawyer’s body,’... and it is appropriate for us ‘to assume that our elected representatives... know the law.’... As a result if anything is to be assumed from the congressional silence on this point, it is that Congress was aware of the Blockburger rule and legislated with it in mind. It is not a function of this Court to presume that ‘Congress was unaware of what it accomplished.’” Id., at 341-342. Here, of course, Congress was not silent as to its intent to create separate offenses notwithstanding Blockburger, and we can assume it was aware that doing so would authorize cumulative punishments absent some indication of contrary intent. Moreover, disallowing cumulative sentences would have the anomalous effect in many cases of converting the large fines provided by §848 into ceilings. Congress established the large fines in § 848 in an effort to deprive big-time drug dealers of some of their enormous profits, which often cannot be traced directly to their crimes for forfeiture purposes. The fines for a three-time offender who has been previously convicted of a drug felony could amount to $150,000 for the predicate offenses standing alone — an amount that exceeds the ceiling for a first-time CCE fine. Compare § 841(b)(1)(A) with § 848(a)(1). Congress was bent on depriving the big-time drug dealer of his profits; it is doubtful that Congress intended to force an election of a lower maximum fine in such a situation in order to attempt to obtain the life imprisonment penalty available under the CCE provision. In Jeffers v. United States, 432 U. S., at 156-157, a plurality of this Court stated that § 848 “reflects a comprehensive penalty structure that leaves little opportunity for pyramiding of penalties from other sections of the Comprehensive Drug Abuse Prevention and Control Act of 1970.” The focus of the analysis in Jeffers was the permissibility of cumulative punishments for conspiracy under § 846 and for CCE under 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_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. VON BRUNING v. SUTHERLAND, Alien Property Custodian, et al. Court of Appeals of District of Columbia. Submitted October 2, 1928. Decided November 5, 1928. No. 4646. Tench T. Marye, of Washington, D. C., for appellant. Peyton Gordon, Dean Hill Stanley, and Thos. E. Rhodes, all of Washington, D. C., for appellees. Before MARTIN, Chief Justice, and ROBB and VAN" ORSDEL, Associate Justices. MARTIN, Chief Justice. This is án appeal from a final deeree of the lower court, entered upon motion of the appellees, dismissing a bill of complaint filed by appellant, as plaintiff, seeking a recovery against the Alien Property Custodian and the Treasurer of the United States under the provisions of section 9 of the Trading with the Enemy Act (chapter 106, 40 Stat. 411), as amended June 5, 1920 (chapter 241, 41 Stat. 977). It appears from the allegations of the plaintiff’s bill of complaint that plaintiff was a natural-bom citizen of the United States, who prior to April 6, 1917, intermarried with one Adolph von Bruning, a German subject, and thereby acquired and has since retained German citizenship. In the year 1917, and at all times subsequent thereto, plaintiff was the owner of a life estate in a certain house and lot at 1758 N Street N. W., Washington, D. C., and in July, 1918, the Alien Property Custodian, having determined that plaintiff was an alien enemy under the Trading with the Enemy Act, seized the premises, and retained the custody thereof for a period of 28 months; whereupon, in November, 1920, the Custodian returned the property to plaintiff under the amendment to the Trading with the Enemy Act, approved June 5, 1920 (chapter 241, 41 Stat. 977), and again amended (chapter 285, 42 Stat. 1511). It is charged by plaintiff that, during the occupation of the premises by the Custodian, the house, after having been altered for such purposes, was used for departmental offices, or as a bureau by the Custodian, and that thereby the property was damaged. to the extent approximately of $6,000, and was unrepaired when it was returned to plaintiff; also that the rental value of the property during this period was not less than $500 per month, whereas the Custodian fixed the same at $100 per month, and upon the return of the property paid plaintiff $900, and no more, although the property was occupied by the Custodian for the period of 28 months; and that no part of the damages aforesaid, nor of the balance due upon rent, has since been paid by the Custodian. The plaintiff prayed that the court should ascertain and fix the amount due her for the use of the buildings by the Custodian, and'fix the damages sustained by the property as aforesaid, and enter a decree against the Custodian and the Treasurer of the United States therefor. The bill of complaint was met by a motion of defendants praying that it be dismissed on the ground that it sought to recover upon an obligation alleged to be owing to the plaintiff by the- United States, and that the United States had not consented that it or any of its officers might be sued in such case, and also that plaintiff had not stated facts sufficient to entitle her to equitable relief by decree of the lower court under the Trading with the Enemy Act, as amended or otherwise. The lower court sustained this motion, and dismissed the bill. We think this ruling correct. Section 9 (a) of the Trading with the Enemy Act as amended, provides, among other things, that any person, not an enemy or ally of enemy, claiming any interest, right, or title in any property which may have been seized by the Alien Property Custodian and held by him under the act, may institute a suit in equity in the Supreme Court of the District of Columbia, to establish the interest, right, or title so claimed, and, if so established, the court shall order the conveyance or transfer to the claimant of the property so held by the Custodian, or the interest therein to which the court shall determine the claimant to be entitled. This is the only suit authorized by section 9 of the act, and the sole remedy afforded by it is the return of the seized property in proper case to the claimant. In the present suit, however, the plaintiff does not seek the return of the property to her, for concededly that has already been accomplished. The relief sought by her is a judgment for debt and damages for the use of her property and injury to it while it was in the custody of the Custodian. This is an essentially different cause of action, and is not authorized by the act. Such a suit is in effect a suit against the United States, and cannot be sustained without permission first given by the United States. In Banco Mexicano v. Deutsche Bank et al., 53 App. D. C. 266, 289 F. 924, 929, which was a suit against the Custodian for the recovery of money seized by him, this court said: “This is in effect a suit against the United States. The rule is well established that, when the United States permits itself to be sued in its own courts, the terms of the permission must be strictly followed, and the suitor’s cause must come within the Government’s consent.” This statement of the law was affirmed on appeal by the Supreme Court, in Banco Mexicano v. Deutsche Bank, 263 U. S. 591, 602, 44 S. Ct. 209, 212 (68 L. Ed. 465), where the court said: “We are constrained to this because we agree with the Court of Appeals that this suit is in effect a suit against the United States and all of its conditions must obtain.” These provisions are not unconstitutional. In United States v. Chemical Foundation, 272 U. S. 1, 11, 47 S. Ct. 1, 5 (71 L. Ed. 131), the Supreme Court said: “Congress was untrammeled and free to authorize the seizure, use or appropriation of such properties without any compensation to the owners. There is no constitutional prohibition against confiscation of enemy properties.” In our opinion the bill of complaint filed by plaintiff is plainly unmaintainable, for it is in effect a suit against the United States in a court and cause which the United States has not authorized. The decree of the lower court is affirmed, with costs. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
sc_respondent	028	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. ROE et al. v. NORTON, COMMISSIONER OF WELFARE No. 73-6033. Argued February 25, 1975 — Decided June 24, 1975 Frank Cochran argued the cause and filed briefs for parent appellants. David N. Rosen argued the cause for children appellants. With him on the brief was Edward J. Dolan. Michael Anthony Arcari, Assistant Attorney General of Connecticut, argued the cause for appellee. With him on the brief were Robert K. Killian, Attorney General, and Paige J. Everin, Loma M. Dwyer, and Francis J. MacGregor, Assistant Attorneys General. Marian Wright Edelman, Norman Dorsen, and Leo Pfeffer filed a brief for. the American Academy of Child Psychiatry et al. as amici curiae. Per Curiam. Appellants, mothers of illegitimate children receiving Aid to Families With Dependent Children (AFDC) assistance, and the children, commenced this action challenging § 52-440b, Conn. Gen. Stat. Rev. (1973), which requires the mother of an illegitimate child to divulge to designated officials the name of the putative father of the child. Noncompliance with the statute is a contempt punishable by imprisonment up to one year and a fine of up to $200. A three-judge District Court upheld the constitutionality of § 52-440b against appellants’ claims of denial of due process and equal protection and invasion of appellants’ right to privacy, and also concluded that the statute did not conflict with the purpose and objectives of the Social Security Act. We noted probable jurisdiction, 415 U. S. 912 (1974). However, since that time Pub. L. 93-647, 88 Stat. 2337, was enacted. Public L. 93-647 amends § 402 (a) of the Social Security Act to require parents, as a condition of eligibility for AFDC assistance, to cooperate with state efforts to locate and obtain support from absent parents but provides no punitive sanctions comparable to those provided by Conn. Gen. Stat. Rev. § 52-440b (1973). Section 402 (a), as amended, 88 Stat. 2359, 42 U. S. C. § 602 (a) (1970 ed., Supp. IV), provides in pertinent part: “A State plan for aid and services to needy families with children must “(26) provide that, as a condition of eligibility for aid, each applicant or recipient will be required— “(B) to cooperate with the State (i) in establishing the paternity of a child born out of wedlock with respect to whom aid is claimed, and (ii) in obtaining support payments for such applicant and for a child with respect to whom such aid is claimed, or in obtaining any other payments or property due such applicant or such child and that, if the relative with whom the child is living is found to be ineligible because of failure to comply with the requirements of subparagraphs (A) and (B) of this paragraph, any aid for which such child is eligible will be provided in the form of protective payments as described in section [606 (b) (2) of this title] (without regard to subparagraphs (A) through (E) of such section) ... We vacate the judgment of the District Court and remand the case for further consideration in light of Pub. L. 93-647, and, if a relevant state criminal proceeding is pending, also for further consideration in light of Younger v. Harris, 401 U. S. 37 (1971), and Huffman v. Pursue, Ltd., 420 U. S. 592 (1975). It is so ordered. Mr. Justice Douglas concurs except with respect to Younger v. Harris, 401 U. S. 37 (1971), and Huffman v. Pursue, Ltd., 420 U. S. 592 (1975). Section 52-440b, Conn. Gen. Stat. Rev., provides: “(a) If the mother of any child bom out of wedlock, or the mother of any child bom to any married woman during marriage which child shall be found not to be issue of the marriage terminated by a divorce decree or by decree of any court of competent jurisdiction, fails or refuses to disclose the name of the putative father of such child under oath to the welfare commissioner, if such child is a recipient of public assistance, or to a selectman of a town in which such child resides, if such child is a recipient of general assistance, or otherwise to a guardian or a guardian ad litem of such child, such mother may be cited to appear before any judge of the circuit court and compelled to disclose the name of the putative father under oath and to institute an action to establish the paternity of said child. “(b) Any woman who, having been cited to appear before a judge of the circuit court pursuant to subsection (a), fails to appear or fails to disclose or fails to prosecute a paternity action may be found to be in contempt of said court and may be fined not more than two hundred dollars or imprisoned not more than one year or both.” Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_source	L	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. Willie S. GRIGGS et al., Appellants, v. DUKE POWER COMPANY, a corporation, Appellee. No. 13013. United States Court of Appeals, Fourth Circuit. Argued Dec. 6, 1974. Decided April 2, 1975. Robert Belton, Charlotte, N. C. (J. Le-Vonne Chambers, Charlotte, N. C., Jack Greenberg, Morris J. Bailer, New York City, and Chambers, Stein, Ferguson and Lanning, Charlotte, N. C., on brief), for appellants. George W. Ferguson, Jr., Charlotte, N. C. (Philip M. Van Hoy, Charlotte, N. G, on brief), for appellee. Before BOREMAN, Senior Circuit Judge, WIDENER, Circuit Judge, and THOMSEN, District Judge. Senior Judge, United States District Court, District of Maryland, sitting by designation. PER CURIAM: Appeal is taken herein by appellants-plaintiffs from a denial by the district court of a motion for entry of appropriate relief. The essential questions are whether or not the district court complied with the mandate of this court, and whether an adverse decision of this court not reversed by the Supreme Court is res judicata. The original action, which was a class action brought under Title VII of the Civil Rights Act of 1964, involved 13 named individual plaintiffs. The district court dismissed the complaint, Griggs v. Duke Power Company, 292 F.Supp. 243 (M.D.N.C.1968). Plaintiffs appealed and we reversed the decision in part, 420 F.2d 1225 (4th Cir. 1970). On appeal here the plaintiffs were divided into three groups: (1) Group A, four plaintiffs without a high school education who were hired by the defendant company after adoption of the education-test requirement; (2) Group B, three plaintiffs who had met the high school education requirement; and (3) Group C, six plaintiffs without a high school education who were hired prior to the adoption of the education-test requirement. This court reversed the district court as to the Group C plaintiffs and required injunctive relief, denied relief to the Group A plaintiffs, and held that the claims of the Group B plaintiffs were moot. On December 23, 1970, the district court entered an order effectuating the relief granted to the Group C plaintiffs by this court. In that order the district court noted that members of Group B had urged the court to consider allegations of discrimination which were purported to have occurred subsequent to the decision of this court. The district court stated that the proper course for the Group B plaintiffs was to file their complaints with the Equal Employment Opportunity Commission (EEOC). The district court reasoned that, since it and this court had determined that the members of Group B were entitled to no relief, their allegations were not properly before the district court. On March 8, 1971, the Supreme Court granted relief to the Group A plaintiffs, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, but not to Group B plaintiffs. Plaintiffs returned to the district court on September 8, 1971, with a motion for entry of appropriate relief. In this motion plaintiffs: (1) sought injunctive relief for the Group A plaintiffs pursuant to the decision of the Supreme Court; (2) raised new allegations of Title VII violations against the Group C plaintiffs after the decision of this court; and (3) made allegation of Title VII violations against the Group B plaintiffs. On September 25, 1972, an order was entered by the district court granting injunctive relief pursuant to the decision of the Supreme Court as to the Group A plaintiffs. Due to the new factual allegations of discrimination against Groups B and C, the district court held evidentiary hearings to determine if further relief should be given the Group C plaintiffs and whether relief should be granted to the Group B plaintiffs. On January 10, 1974, the district court reaffirmed its order of December 23, 1970, as to the Group B plaintiffs, concluding that their allegations were not properly before the court and stated that they should file their complaints with the EEOC. As to the Group C plaintiffs, the district court, after examining the evidence presented at the evidentiary hearings, made findings of fact that the company was complying with the mandate of this court and that no further relief was in order. The appellants raise two issues: (1) whether the district court erred in refusing to grant relief to the Group C plaintiffs as requested in their motion for further relief; and (2) whether the district court erred in refusing to grant relief for the Group B plaintiffs. As to the Group C plaintiffs, there is no error by the district court in its refusal to grant further relief. The court considered the extensive evidence presented by both sides and made a factual determination that the defendant company was complying with the mandate of this court and that no further relief was in order. On review of the record we find no error in the decision of the district court and affirm. Its findings are not clearly erroneous. FRCP 52(a). As to the Group B plaintiffs, appellants challenge the determination of the district court that they must file their complaint with the EEOC, see 42 U.S.C. § 2000e-5, before commencing any litigation on their allegations of discrimination and that accordingly their present allegations are not properly before the district court. We do not decide this precise question, but affirm on other grounds. Riley Inv. Co. v. Commissioner, 311 U.S. 55, 59, 61 S.Ct. 95, 85 L.Ed. 36 (1940). The appellants state in their brief that the Group B plaintiffs joined with the other plaintiffs in filing a charge with the EEOC on March 15, 1969. However, on examining the charge filed with the EEOC as so referred to, it appears that it was filed on March 15, 1966. Thus the complaint was filed before this case commenced, and before the first decision of the district court appealed from and not afterwards. We do not attribute this to any intentional act of the attorneys. As noted, having filed this EEOC complaint in 1966, the Group B plaintiffs were dismissed by the district court in 1968. The dismissal was affirmed by this court, which stated that the claims of Group B were moot. The Supreme Court did not consider these determinations as to the Group B plaintiffs and thus they stood dismissed by an order which was final. The 1968 decision is res judicata. Since the Group B plaintiffs were no longer parties to this action, their allegations in the 1971 motion for entry of appropriate relief were not properly before the district court. This ruling necessarily forecloses their cause of action as to the allegedly discriminatory acts which were “ . matters actually in issue or points controverted, upon the determination of which the judgment or decree was rendered.” Baltimore S. S. Co. v. Phillips, 274 U.S. 316, 319, 47 S.Ct. 600, 602, 71 L.Ed. 1069 (1927). Should they desire to pursue another action based on discriminatory conduct after that time, that matter is not before us. The question of whether their 1966 complaint with the EEOC would be sufficient in a new action if brought is not now before us and we express no opinion as to that question. Affirmed. Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
sc_jurisdiction	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ. HARDIN, MAYOR OF TAZEWELL, et al. v. KENTUCKY UTILITIES CO. No. 40. Argued December 13, 1967. Decided January 16, 1968. William R. Stanifer argued the cause for petitioners in Nos. 40 and 50. With him on the brief for petitioners in No. 40 was Philip P. Ardery. Clyde Y. Cridlin was on the brief for petitioner in No. 50. Robert H. Marquis argued the cause for petitioner in No. 51. With him on the brief were Acting Solicitor General Spritzer, Richard A. Posner, Charles J. McCarthy and Thomas A. Pedersen. Malcolm Y. Marshall argued the cause for respondent in all three cases. With him on the brief were Squire R. Ogden and James S. Welch. Together with No. 50, Powell Valley Electric Cooperative v. Kentucky Utilities Co., and No. 51, Tennessee Valley Authority v. Kentucky Utilities Co., also on certiorari to the same court. Mr. Justice Black delivered the opinion of the Court. The question for decision in these cases is whether Congress has prohibited the Tennessee Valley Authority from competing in the sale of electricity with respondent, the Kentucky Utilities Company, in two small villages in Claiborne County, Tennessee, and in a narrow corridor between the two villages and the Tennessee-Kentucky state boundary 16 miles away. By § 15d of the Tennessee Valley Authority Act of 1933, as added by the 1959 amendments to that Act, Congress barred the TVA from expanding its sales outside “the area for which the Corporation [TVA] or its distributors were the primary source of power supply on July , 1957/’1 and our problem is therefore the narrow one of deciding whether these villages and the narrow corridor are part of an “area” for which TYA was the primary source of power on the crucial date. The difficulty lies in determining the location and extent of the “area” to which the statute refers. In June 1957, TVA supplied 62% of the power used in all of Claiborne County, and therefore if the entire county is an “area” within the meaning of the statute, TVA would have been the “primary” source of power, and its expansion into the two villages would be permissible. On the other hand, in the villages themselves, TVA supplied only 6% of the power in June 1957, while respondent supplied 94%; thus if the two villages either alone or with the corridor constitute an “area,” TVA would not have been the primary source of power, and it would be barred by § 15d from expanding into that area. The question of statutory interpretation now before us arose in this way. TVA is the major supplier of electric power in Tennessee and in many adjoining areas- of Alabama, Mississippi, Georgia, Virginia, and Kentucky. Respondent, whose service area is centered in Kentucky, has long served customers in Tazewell and New Tazewell, the two villages within 16 miles of the Kentucky border in Claiborne County, Tennessee. The power lines of TVA distributors also crisscross Claiborne County, and TVA has therefore been- able to serve a small number of customers in the two villages, even though respondent was the predominant source of power. Because Kentucky Utilities’ retail rates for electricity in the two villages were approximately 2y2 times higher for typical consumers than the rates for TVA power, the value of residential and commercial properties served by TVA was substantially and uniformly higher than the value of similar properties served by respondent. This rate disparity created a seething discontent among residential and industrial consumers in the villages. Pointing out that they lived in the very heart of the TVA watershed and in immediate proximity to TVA’s large Norris Lake, these citizens contended that it was wholly unjust and inequitable to deny them the benefits and advantages of cheap TVA power. After complaints, planning, and consultations over a period of more than three years, the local governments engaged a contractor to build the facilities necessary to establish a municipal system linked to TVA’s cheap power. Kentucky Utilities’ customers immediately began to discontinue their service and become customers of the municipal system. Kentucky Utilities then filed this suit against TVA, the mayors of the twb Tazewells, and the Powell Valley Electric Cooperative, a TVA distributor, charging them with conspiracy to destroy its Tazewell business and asking the court to enjoin TVA from supplying power to the new municipal system in alleged violation of § 15d. The District Court upheld the determination of the TVA Board of Directors that the two Tazewells were within TVA’s primary service “area” and dismissed the case, 237 F. Supp. 502 (1964), but the Court of Appeals reversed, holding that the two villages plus the corridor constituted an “area” and that TVA accordingly was barred from extending its service in the Tazewells. 375 F. 2d 403 (1966). We granted certiorari, 386 U. S. 980 (1967), to resolve this important question in the administration of the TVA Act. We reverse and agree with the District Court that the TVA Board properly determined the relevant service “area” to extend beyond the two Taze-wells and to include the entire county. TVA, as the primary power source within this area, could therefore properly make its low-cost power available to consumers in this entire county area including the two villages. I. Before discussing the merits, we shall briefly consider petitioners’ contention that the Kentucky Utilities Company lacks standing to challenge the legality of TVA’s activities. We agree with both the courts below that this contention is without merit. This Court has, it is true, repeatedly held that the economic injury which results from lawful competition cannot, in and of itself, ■confer standing on the injured business to question the legality of any aspect of its competitor’s operations. Railroad Co. v. Ellerman, 105 U. S. 166 (1882); Alabama Power Co. v. Ickes, 302 U. S. 464 (1938); Tennessee Power Co. v. TVA, 306 U. S. 118 (1939); Perkins v. Lukens Steel Co., 310 U. S. 113 (1940). But competitive injury provided no basis for standing in the above cases simply because the statutory and constitutional requirements that the plaintiff sought to enforce were in no way concerned with protecting against competitive injury. In contrast, it has been the rule, at least since the Chicago Junction Case, 264 U. S. 258 (1924), that when the particular statutory provision invoked does reflect a legislative purpose to protect a competitive interest, the injured competitor has standing to require compliance with that provision. See Alton R. Co. v. United States, 315 U. S. 15, 19 (1942); Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77, 83 (1958). Petitioners concede, as of course they must, that one of the primary purposes of the area limitations in § 15d of the Act was to protect private utilities from TYA competition. This is evident from the provision itself and is amply supported by its legislative history. The provision grew out of TVA’s efforts to find some way to meet the cost of new facilities without dependence upon annual appropriations from Congress. In 1955 TVA began to seek authority to issue bonds to finance these expenditures. Although TVA spokesmen assured Congress that the objective was not territorial expansion but only improvement of facilities in TVA’s existing service area, many members of Congress were apprehensive and thought that if congressional budgetary control was to be weakened, some substitute to prevent territorial expansion should be found. A series of bills to give TVA borrowing power failed to pass. Several bills were then introduced combining the grant of borrowing power with various provisions to prohibit territorial expansion, and one of these bills was eventually-enacted as the TYA amendments of 1959. Although discussions of the territorial limitation mentioned a number of policy reasons for the restriction, it is clear and undisputed that protection of private utilities from TVA competition was almost universally regarded as the primary objective of the limitation. Since respondent is thus in the class which § 15d is designed to protect, it has standing under familiar judicial principles to bring this suit, see Stark v. Wickard, 321 U. S. 288, 309 (1944); cf. United States v. ICC, 337 U. S. 426, 433-434 (1949), and no explicit statutory provision is necessary to confer standing. II. Basic to our consideration of the merits of these cases is an appraisal of the significance of the TVA Board’s determination that all of Claiborne County, including the two Tazewells, constituted a single “area” in which TYA is the primary source of power. Petitioners argue that the Court of Appeals gave no weight whatever to this determination and urge that the finding should instead have been treated like an administrative interpretation by an agency or executive officer, to be set aside only if it is not properly related to the purposes of the statute. The opinion of the Court of Appeals is not altogether clear in dealing with this question, however, and respondent has not attempted to argue here that the Court of Appeals could have decided the matter entirely on its own, without any consideration of the TVA Board’s finding. Rather, respondent appears to agree with petitioners that the determination of the TVA Board is entitled to acceptance unless it lies outside the range of permissible choices contemplated by the statute, and we think this is the proper rule. The initial determination as to the extent of the “area” under § 15d must be made by the TVA Board in every case, since TVA is required under the Act to make power available to public bodies and cooperatives within the permissible area. In making this determination as to the most appropriate boundaries for its service area, the TYA Board will normally evaluate the economic and engineering aspects of providing its service to the customers in question, especially in relation to the particular topography of the affected region. Given the innate and inevitable vagueness of the “area” concept and the complexity of the factors relevant to decision in this matter, we think it is more efficient, and thus more in line with the overall purposes of the Act, for the courts to take the TVA’s “area” determinations as their starting points and to set these determinations aside only when they lack reasonable support in relation to the statutory purpose of controlling, but not altogether prohibiting, territorial expansion. Cf. SEC v. New England Electric, 384 U. S. 176, 185 (1966); Bates & Guild Co. v. Payne, 194 U. S. 106, 109-110 (1904). III. Tested by this standard, we think the determination of the TVA Board with respect to Claiborne County should have been upheld by the court below. Neither the language of § 15d, its legislative history, nor any of the economic and technical circumstances of this particular locality suggest that the TVA Board’s determination here exceeded the outer boundaries of choice contemplated in the Act. Certainly nothing in the language of § 15d (a) itself forecloses the TVA’s present decision. The second paragraph of that section reads: “Nothing in this subsection shall prevent the Corporation or its distributors from, supplying electric power to any customer within any area in which the Corporation or its distributors had generally established electric service on July 1, 1957, and to which electric service was not being supplied from any other source on the effective date of this Act.” In light of this provision, respondent argues that even within its “area,” TVA may not extend its services to new customers previously served by a private company. Literally, of course, this language does not establish such a rule. It simply states that when a customer is served by a private utility in this area of generally established service, an area perhaps broader than the “area” of primary service which is controlling under the first paragraph of § 15d (a), the Act may prevent TVA from supplying the customer; other parts of the subsection must be looked to for the actual prohibition. This literal reading, moreover, is the only' appropriate one in light of other provisions of the statute. The first paragraph of § 15d (a) authorizes TVA to provide power not only within its “area” but also within an additional region “extending not more than five miles around the periphery of such area.” This is followed by a proviso denying TVA the right to serve within this additional region any “municipality receiving electric service from another source on or after July 1, 1957.” Since the Act makes the existence of a private supplier an explicit bar to TVA expansion only within the additional region, we cannot read the statute as also making the existence of a private supplier, in and of itself, an automatic bar to expansion in the primary service “area.” The parties have also called our attention to numerous incidents in the legislative history suggesting that Congress may have regarded the very villages involved in this case as either inside or outside of TVA’s service area. Petitioners note that maps placed before the congressional committees showed the Tazewells as within TVA’s primary service area. Respondent counters that one map submitted to the House Public Works Committee showed the Tazewells as within respondent’s service area. In addition, respondent notes that a “gentlemen’s agreement” between TVA and neighboring private utilities had placed the Tazewells within respondent’s area, and respondent refers to a number of statements indicating that various sponsors of the territorial limitations intended to enact the “gentlemen’s agreement” into law. We do not find any of this information particularly helpful in resolving the question before us. The maps on which petitioners rely were large-scale representations of TYA’s entire multistate system, and they were submitted to various committees for general reference. Even if all these maps had placed the Tazewells in the same area, it would be artificial in the extreme to assume that Congress actually entertained any specific intention with respect to these small villages in one tiny portion of the county, the State and the map. With respect to the “gentlemen’s agreement,” it is undeniable that many members of Congress did hope to freeze completely the existing situation by enactment of the territorial limitation. Others, the majority of the Senate Public Works Committee in particular, undoubtedly sought to include language that would authorize adjustments and permit a certain amount of elasticity in the availability of TYA service. We think it is sufficient to note, without tracing all the changes in the wording of the territorial limitation, that the language of the Act in its final form is a compromise and that the views of those who sought the most restrictive wording cannot control interpretation of the compromise version. Finally, we think that apart from the structure of the Act and its legislative history, the facts of the situation in Claiborne County, in Tennessee, and in Kentucky support rather than undercut the TVA Board’s determination. The parties place great stress on the question whether respondent’s service area should be characterized as a “peninsula” attached to its main region of service or as a mere “island” surrounded by TVA territory and therefore more properly subject to TVA intrusion. But we can attribute no controlling significance to such characterizations. The most isolated area of private service will necessarily be connected to the private company’s main area by at least one power fine such as the one present here, and the company may even, as here, serve scattered customers along the line — if indeed the region contains any customers to serve. At the same time a broad area served almost entirely by a private company and contiguous with its main service area may be crisscrossed by the lines of TVA distributors and TVA may even have scattered customers along these lines; the fact that the private company was thus surrounded by TVA might not under this statute justify TVA expansion into the “peninsula” or “island,” whatever it may be, served by private power. In the present cases respondent did serve a substantial number of customers in the corridor between the Tazewells and its main service area in Kentucky, but if a “peninsula,” it was at best a very narrow and tiny one in relation to the possible patterns of power distribution. TVA, on the other hand, served most of the rural areas in Claiborne County and had a substantial minority of the customers in the Tazewells themselves. Under these circumstances, the TVA Board could properly have concluded that the pattern of electric power distribution would be more sensible and efficient if TVA competed in the entire Tazewell municipal area as well as serving the relatively unprofitable rural customers, many of whom were rather close to respondent’s transmission line into the Tazewells. In addition, the Board could have considered the existence of its significant, though not primary, service in the Tazewells themselves as a compelling reason for including these villages in its “area,” since the factors supporting inclusion were in any event significant and since the great disparity of rates in the villages had resulted in significant economic dislocations. Under all these circumstances we cannot say that the conclusion of the TYA Board in the present cases is incompatible with the “area” concept formulated in the Act. We therefore reverse the judgment of the Court of Appeals and affirm that of the District Court. It is so ordered. Mr. Justice Douglas and Mr. Justice Marshall took no part in the consideration or decision of these cases. Tennessee Valley Authority Act of 1933, § 15d (a), 73 Stat. 280, as amended, 73 Stat. 338, 16 U. S. C. §831n-4 (a). The full text of the relevant portion of § 15d (a) is as follows: “Unless otherwise specifically authorized by Act of Congress the Corporation shall make no contracts for the sale or delivery of power which would have the effect of making the Corporation or its distributors, directly or indirectly, a source of power supply outside the area for which the Corporation or its distributors were the primary source of power supply on July 1, 1957, and such additional area extending not more than five miles around the periphery of such area as may be necessary to care for the growth of the Corporation and its distributors within said area: Provided, however, That such additional area shall not in any event increase by more than 2% per centum (or two thousand square miles, whichever is the lesser) the area for which the Corporation and its distributors were the primary source of power supply on July 1, 1957: And provided further, That no part of such additional area may be in a State not now served by the Corporation or its distributors or in a municipality receiving electric service from another source on or after July 1, 1957, and no more than five hundred square miles of such additional area may be in any one State now served by the Corporation or its distributors. “Nothing in this subsection shall prevent the Corporation or its distributors from supplying electric power to any customer within any area in which the Corporation or its distributors had generally established electric service on July 1, 1957, and to which electric service was not being supplied from any other source on the effective date of this Act.” For the owner of an electrically heated home, TVA power might cost $30.50 for a winter month as against $75.53 for the identical amount of power supplied by respondent. S. 2373, 84th Cong., 1st Sess. (1955); H. R. 4266, 85th Cong., 1st Sess. (1957). S. 1855, S. 1869, S. 1986, S. 2145, 85th Cong., 1st Sess. (1957); S. 931, H. R. 3460, 86th Cong., 1st Sess. (1959). One of the Senators active in framing the territorial limitation expressed concern over TVA’s powerful bargaining position with respect to its purchase of coal. See S. Rep. No. 470, 86th Cong., 1st Sess., 54 (1959) (supplemental views of Senator Randolph). See, e. g., id., at 9 (majority report); id., at 54-55 (supplemental views of Senator Randolph); 105 Cong. Rec. 13053 (July 9, 1959) (remarks of Senator Cooper); id., at 13054 (remarks of Senator Holland); id., at 13055 (remarks of Senator Kerr); id., at 13060-13061 (remarks of Senator Randolph); id., at 13061 (remarks of Senator Byrd); hearings on H. R. 3460 before House Committee on Public Works, March 10-11, 1959, 86th Cong., 1st Sess., 110, 115 (testimony of Representative Vinson); id., at 122 (testimony of Representative Boykin). Petitioners’ reliance on Kansas City Power & Light Co. v. McKay, 96 U. S. App. D. C. 273, 225 F. 2d 924, cert. denied, 350 U. S. 884 (1955), is thus misplaced. The Court in McKay ruled that an explicit statutory provision was necessary to confer standing because of the “long established rule” that an injured competitor cannot sue to enforce statutory requirements not designed to protect competitors. In the case of statutes concerned with protecting competitive interests, the “long established rule” is of course precisely the opposite. The Court of Appeals stated at one point: “But, TVA argues, the 1959 Act must be read as committing to its Board of Directors authority to determine 'the area’ in which it was the primary source of power on that date. We find no words in the Act which directly or impliedly delegated to TVA’s Board such authority.” 375 F. 2d, at 412. Later in its opinion, however, the court suggests that this statement was not intended to deny any role to the Board’s determination: “We hold that the resolution of the TVA Board did not foreclose the testing of its validity by the District Judge or by this Court on this appeal.” 375 F. 2d, at 415. See § 12 of the Tennessee Valley Authority Act, 48 Stat. 65, 16 U. S. C. § 831k. It should be noted that the agency determination upon which the Court places so much weight was reached at a “special meeting” of the Board of Directors on August 26, 1964, more than eight months after respondent filed its complaint, and only three weeks before trial. One of the staff memoranda upon which the determination was based refers specifically to this litigation. One might have supposed that a determination which was made post litem, motam warranted at least cautious treatment. Question: What is the manner in which the Court took jurisdiction? A. cert B. appeal C. bail D. certification E. docketing fee F. rehearing or restored to calendar for reargument G. injunction H. mandamus I. original J. prohibition K. stay L. writ of error M. writ of habeas corpus N. unspecified, other Answer:
songer_usc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. V.S.H. REALTY, INC., Plaintiff, Appellant, v. TEXACO, INC., Defendant, Appellee. No. 84-1531. United States Court of Appeals, First Circuit. Argued Nov. 7, 1984. Decided March 15, 1985. Rehearing En Banc Denied April 29, 1985. Allan van Gestel, Boston, Mass., with whom Allan J. Sullivan and Goodwin, Procter & Hoar, Boston, Mass., were on brief for plaintiff, appellant. Robert M. Gault, Boston, Mass., with whom Bruce F. Metge, Washington, D.C., and Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Boston, Mass., were on brief for defendant, appellee. Before COFFIN and BREYER, Circuit Judges, and WYZANSKI, Senior District Judge. Of the District of Massachusetts, sitting by designation. COFFIN, Circuit Judge. Appellant V.S.H. Realty, Inc. (V.S.H.) claims that appellee Texaco, Inc. (Texaco) must return a $280,000 down payment V.S.H. paid on a piece of real estate in Chelsea, Massachusetts. V.S.H. claims that Texaco breached the sales agreement, fraudulently induced it into agreeing to the purchase, and violated a Massachusetts statute prohibiting unfair and deceptive acts in business dealings. The district court dismissed the case under Fed.R. Civ.P. 12(b)(6) for failure to state a claim, and denied V.S.H.’s subsequent motion to vacate judgment and to permit an amendment of the complaint. We think the court was correct in dismissing the breach of contract claim but erring in dismissing the common law and statutory deception counts. I. Factual Background On August 11, 1983, V.S.H. offered to purchase from Texaco a used bulk storage petroleum facility for $2.8 million. Texaco accepted the offer on September 7, and V.S.H. made a deposit of $280,000 to be applied against the purchase price. The offer to purchase required Texaco to convey the property “free and clear of all liens, encumbrances, tenancies and restrictions”, except for those set forth in the offer. Attached to the offer to purchase was an acknowledgement signed by Texaco stating that, to the best of the company’s knowledge and belief, it had not received “any notice, demand, or communication from any local county, state or federal department or agency regarding modifications or improvements to the facility or any part thereof.” The offer also included a disclosure by Texaco that fuel oils had “migrated under [Texaco’s] garage building across Marginal Street from the terminal [and that] the fuel oil underground as a result of heavy rains or high tides, seeps into the boiler room of the garage building.” V.S.H., for its part, expressly stated in the offer that it had inspected the property, and accepted it “as is” without any representation on the part of Texaco as to its condition. Problems arose when V.S.H. representatives visited the property in mid-October 1983, approximately a month after Texaco accepted the offer to purchase, and observed oil seeping from the ground at the western end of the property. During a subsequent visit, V.S.H. representatives discovered another oil seepage at the eastern end of the property. V.S.H. then notified Texaco that it would not go through with the purchase unless Texaco corrected the oil problem, provided V.S.H. with full indemnification, or reduced the purchase price. When Texaco refused, V.S.H. demanded return of its down payment. Texaco again refused, and V.S.H. filed this lawsuit on January 10, 1984. In its three-count complaint, V.S.H. alleges first that Texaco violated Mass.Gen. Laws Ann. ch. 93A, § 2, which prohibits unfair and deceptive acts and practices, basing that assertion largely on Texaco’s failure to disclose the seeping oil, and its failure to disclose an investigation of the property by the U.S. Coast Guard. V.S. H.’s second count claims relief for breach of contract, based on Texaco’s alleged inability to convey the property at the specified time free of all liens, encumbrances and restrictions. V.S.H.’s contract theory is that the penalties associated with the oil seepage problem constitute an encumbrance on the property. Finally, V.S.H. charges Texaco with common law misrepresentation and deceit for failing to disclose the oil seepage problems and Coast Guard investigation “in the face of repeated inquiries by V.S.H. about the subject.” At the conclusion of a hearing on Texaco’s motion to dismiss all three counts, the district court announced without explanation that the contract claims should be dismissed. It also dismissed the common law fraud count at that time, stating that V.S.H. had failed to allege the required affirmative misrepresentation or implicit misrepresentation by partial and ambiguous statements. It deferred decision on the chapter 93A count, and in a latter written decision dismissed that count on two grounds: an Attorney General’s regulation upon which V.S.H. relied was not. intended to apply in a transaction between two sophisticated business entities, when one party agrees to take the property “as is”; and Texaco had no duty to disclose the oil seep-ages to V.S.H., and so its failure to do so could not have violated chapter 93A. Our approach to reviewing a dismissal of a complaint at such a preliminary stage of proceedings is necessarily informed by the teaching that we must consider “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims”, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). With that view of our task in mind, we disagree with the action taken by the district court with respect to the counts based on chapter 93A and common law misrepresentation. V.S. H. ’s original complaint may well have been vague in some allegations, but we believe that it presented “enough information to ‘outline the elements of the pleaders’ claim’ ”, Kadar Corp. v. Milbury, 549 F.2d 230, 233 (1st Cir.1977) (quoting Wright & Miller, Federal Practice and Procedure § 1357). V.S.H. is therefore “entitled to be heard more fully than is possible on a motion to dismiss a complaint.” Scheuer, id. 416 U.S. at 250, 94 S.Ct. at 1693. We affirm the dismissal of the count based on breach of contract. We shall first discuss the counts based on common law misrepresentation and chapter 93A, ending with the count based on breach of contract. II. Sufficiency of the Complaint A. Common Law Misrepresentation V.S.H. bases its count for common law misrepresentation on Texaco’s partial disclosure of oil seepages, the deliberate concealment of other leaks and the failure to acknowledge the U.S. Coast Guard investigation of the spills. The failure to disclose is actionable, V.S.H. argues, because it repeatedly asked Texaco about oil leaks on the premises, yet Texaco knowingly made only partial disclosure of them. V.S.H. alleges that Texaco’s fragmentary disclosures induced it to enter into the contract, and caused it damage in the form of the $280,000 down payment which it otherwise would not have made. The district court dismissed the misrepresentation count because “[tjhere was no fiduciary duty here. The parties dealt at arm’s length with each other, and there was no peculiar duty to speak. There were no material misrepresentations on which the buyers relied.” What we face here, however, are allegations of partial or incomplete statements that may by their incompleteness be actionable. Restatement of Torts (Second), §§ 529, 551(2)(b). There is much case law in Massachusetts supporting the proposition that a party who discloses partial information that may be misleading has a duty to reveal all the material facts he knows to avoid deceiving the other party. “Although there may be ‘no duty imposed upon one party to a transaction to speak for the information of the other ... if he does speak with reference to a given point of information, voluntarily or at the other’s request, he is bound to speak honestly and to divulge all the material facts bearing upon the point that lie within his knowledge. Fragmentary information may be as misleading ... as active misrepresentation, and half-truths may be as actionable as whole lies____’ See Harper & James, Torts, § 7.14. See also Restatement: Torts, § 529; Williston, Contracts (2d ed.) §§ 1497-1499.” Kannavos v. Annino, 356 Mass. 42, 48, 247 N.E.2d 708 (1969). See also Maxwell v. Ratcliffe, 356 Mass. 560, 562-63, 254 N.E.2d 250 (1969) (“Because the question of the dryness of the cellar had been raised expressly, there was special obligation on the brokers to avoid half truths and to make disclosure at least of any facts known to them or with respect to which they had been put on notice.”); Nei v. Boston Survey Consultants, Inc., 388 Mass. 320, 322, 446 N.E.2d 681 (1983) (“[Tjhere is no suggestion that the defendants made a partial disclosure or stated a half truth which may be tantamount, under certain conditions, to a falsehood if there is no further expatiation.”); Nei v. Burley, 388 Mass. 307, 446 N.E.2d 674 (1983); Catalina Yachts v. Old Colony Bank & Trust Co., 497 F.Supp. 1227 (D.Mass.1980). This duty to avoid misrepresentations is so strong that the deceived party is not charged with failing to discover the truth. Snyder v. Sperry & Hutchinson Co., 368 Mass. 433, 446, 333 N.E.2d 421 (1975) (“[Ijf the seller’s representations are such as to induce the buyer not to undertake an independent examination of the pertinent facts, lulling him into placing confidence in the seller’s assurances, his failure to ascertain the truth through investigation does not preclude recovery.”). We believe the allegations in V.S. H.’s complaint regarding partial and ambiguous statements satisfy the requirements for stating a claim of misrepresentation. V.S.H. has alleged that it made “repeated inquiries” about oil leaks on the property, to which Texaco failed to fully respond. In addition, Texaco stated in an acknowledgement attached to the contract that it had “not received any notice, demand, or communication from any local county, state or federal department or agency regarding modifications or improvements to the facility or any part thereof.” Even if it is technically correct that Texaco had received no governmental communication specifically related to modifications or improvements to the facility, its failure to disclose the Coast Guard investigation of the property is arguably an actionable misrepresentation. The district court also recognized the ambiguity in Texaco’s assertion, noting that “the question whether that [the Coast Guard investigation] is a notice regarding modifications or improvements of the facility is a matter of argument.” Finally, and significantly, we note that Texaco affirmatively stated (with some implication of exclusivity) the existence of one leak. The combination of Texaco’s affirmative disclosure of one leak, its failure to disclose the others, and its failure to acknowledge alleged Coast Guard investigation of the seepages, at a minimum, makes this case a stronger one of misrepresentation than Nei v. Burley, 388 Mass. 307, 310, 446 N.E.2d 674, where the Supreme Judicial Court held that the defendants “did not convey half truths nor did they make partial disclosure of the kind which so often requires a full acknowledgement to avoid deception.” It is our conclusion, therefore, that the district court erred in dismissing the claim for common law misrepresentation. B. Breach of Mass.Gen.Laws Ann. ch. 93A Mass.Gen.Laws Ann. ch. 93A generally prohibits unfair or deceptive acts or practices in business. When it was first enacted in 1967, its primary goal was protection of consumers, Manning v. Zuckerman, 388 Mass. 8, 12, 444 N.E.2d 1262 (1983), but the addition of section 11 in 1972 extended chapter 93A’s coverage to business persons involved in transactions with other business persons. Id. Chapter 93A has been interpreted to be “ ‘a statute of broad impact which creates new substantive rights and provides- new procedural devices for the enforcement of those rights’ ”, id., (quoting Slaney v. Westwood Auto, Inc., 366 Mass. 688, 693, 322 N.E.2d 768 (1975)). “This act is one of several legislative attempts in recent years to regulate business activities with the view to providing proper disclosure of information ... ”, Commonwealth v. DeCotis, 366 Mass. 234, 316 N.E.2d 748 (1974). Chapter 93A § 2 provides no definition of an unfair or deceptive act or practice, and instead directs our attention to interpretations of unfair acts and practices under the Federal Trade Commission Act as construed by the Commission and the federal courts. Commonwealth v. DeCotis, 366 Mass, at 241, 316 N.E.2d 748; PMP Associates, Inc. v. Globe Newspaper Co., 366 Mass. 593, 595, 321 N.E.2d 915 (1975). The section also empowers the Attorney General to make rules and regulations interpreting § 2(a). See § 2(c). V.S.H. relies heavily on one such regulation to support its allegation that Texaco violated chapter 93A. The Attorney General’s regulation in Mass.Admin.Code tit. 20, § 3.16(2) states that an act or practice violates chapter 93A if: “Any person or other legal entity subject to this act fails to disclose to a buyer or prospective buyer any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction.” V.S.H.’s complaint appears to state a claim under this regulation and, in fact, mirrors its language. V.S.H. alleged in paragraph 19 of its complaint that Texaco’s failure to disclose the oil leaks that V.S.H. representatives discovered in October 1983 “are facts the disclosure of which may have influenced V.S.H. not to enter into the transaction and agree to pay the sum of $2,800,000 for the premises or to pay a deposit in connection therewith of $280,-000.” The district court found an inadequacy in the complaint by concluding that the disclosure language of regulation § 3.16 is incomplete. The court decided that “unless a defendant has a duty to speak, his nondisclosure of a defect does not constitute a violation of chapter 93A even if the information may have influenced the buyer not to enter into the contract.” The court then went on to hold that Texaco did not have a duty to disclose the oil leaks to V.S.H. We disagree for two reasons. First, even if we were to accept the court’s premise that nondisclosure is a violation of chapter 93A only when there is a duty to disclose, we would find that V.S.H. has met its burden of establishing a duty by alleging that Texaco made partial or incomplete statements regarding the oil leaks on the property. See Restatement of Torts (Second) §§ 551, 529. See supra p. 415. We are not convinced, however, that V.S.H. needs to allege more than a failure to disclose a material fact to state a cause of action under chapter 93A. In Slaney v. Westwood Auto, Inc., 366 Mass. 688, 322 N.E.2d 768 (1975), the Massachusetts Supreme Judicial Court examined chapter 93A at length, and emphasized the distinction between that statutory cause of action and the common law action for fraud and deceit, which would require a duty to disclose. It pointed out that “the definition of an actionable ‘unfair or deceptive act or practice’ goes far beyond the scope of the common law action for fraud and deceit____ [A] § 9 [or § 11] claim for relief ... is not subject to the traditional limitations of preexisting causes of action such as tort for fraud and deceit.” Id., at 703-04, 322 N.E.2d 768. Massachusetts case law suggests that one difference between a fraud claim and the more liberal 93A is allowance of a cause of action even in the absence of a duty to disclose. See Nei v. Boston Survey Consultants, Inc., 388 Mass. 320, 323-24, 446 N.E.2d 681 (1983), where the court appeared ready to find chapter 93A liability even though it found no duty to speak. See also Nei v. Burley, 388 Mass. 307, 316, 446 N.E.2d 674 (1983). The district court, however, had another reason for dismissing the claim. It concluded that chapter 93A liability was precluded because V.S.H. is a sophisticated buyer who had the opportunity to inspect the property and who agreed to purchase the property “as is”. The court noted that “this type of contractual arrangement is expressly permitted under the Uniform Commercial Code, M.G.L. c. 106, § 2-316, in non-consumer sales of goods”, and it thus “would be anomalous to hold that ‘as is’ contracts are permissible in sales of goods cases but not in commercial sales of land cases.” It concluded: “Absent allegations of the non-detectability of defects on inspection or their fraudulent concealment by a defendant, a plaintiff who has inspected the premises to be purchased and has agreed to purchase the land ‘as is’ cannot rely on § 3.16(2) to establish a defendant’s viola: tion of chapter 93A.” We believe the district court’s view of the law regarding “as is” clauses is incorrect. Although the Uniform Commercial Code does expressly permit disclaimers in the sale of goods between merchants, § 2-316 refers specifically to disclaimers of implied warranties, suggesting to us that it was intended only to permit a seller to limit or modify the contractual bases of liability which the Code would otherwise impose on the transaction. The section does not appear to preclude claims based on fraud or other deceptive conduct. Section 1-102(3) of Mass.Gen.Laws ch. 106 lends support to this interpretation of § 2-316. It states: “The effect of provisions of this chapter may be varied by agreement, except as otherwise provided in this chapter and except that the obligations of good faith, diligence, reasonableness and care prescribed by this chapter may not be disclaimed by agreement ...” (emphasis added). We find further support for our view implicit in Marcil v. John Deere Industrial Equipment Co., 9 Mass.App. 625, 403 N.E.2d 430, app. denied, 380 Mass. 940 (1980). The court in that case upheld a disclaimer of all express and implied warranties other than the warranty specified on the purchase order, finding that there was no indication that the disclaimer was unconscionable. The court went on to note that the vaguely worded allegations of the plaintiff’s complaint may have stated claims for deceit or violation of chapter 93A, but the plaintiff failed to characterize them as such to the trial judge, and so he was not allowed to do so for the first time on appeal. Our reading of Marcil is that even if a disclaimer on its face is not unconscionable, it is subject to challenge if a plaintiff, as in this case, properly raises allegations of deceit and violation of chapter 93A. Our conclusion here does not mean that an “as is” clause would never be given effect in real estate transactions where the buyer alleged the seller’s failure to disclose a material defect in the property. The Supreme Judicial Court has’ held that § 3.16(2) imposes liability only when the defendant had knowledge, or should have known of the defect, and where a direct relationship existed between the parties. See Lawton v. Dracousis, 14 Mass.App. 164, 171, 437 N.E.2d 543, 547, app. denied, 387 Mass. 1103, 440 N.E.2d 1177 (1982) (failure to disclose building code violations not actionable where seller did not know or have reason to know of violations); Nei v. Boston Survey Consultants, Inc., 388 Mass. 320, 324, 446 N.E.2d 681 (1983). It is possible that § 3.16(2) will be found inapplicable in other situations involving “as is” clauses. Even more persuasive than this inferential reasoning based on the Uniform Commercial Code is the fact that Massachusetts case law unequivocally rejects assertion of an “as is” clause as an automatic defense against allegations of fraud: “The same public policy that in general sanctions the avoidance of a promise obtained by deceit strikes down all attempts to circumvent the policy by means of contractual devices. In the realm of fact it is entirely possible for a party knowingly to agree that no representations have been made to him, while at the same time believing and relying upon representations which in fact have been made and in fact are false but for which he would not have made the agreement.” Bates v. Southgate, 308 Mass. 170, 182, 31 N.E.2d 551 (1941). See also Schell v. Ford Motor Company, 270 F.2d 384, 386 (1st Cir.1959) (“under the law of Massachusetts ... in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence____) (emphasis added). Texaco acknowledges that a party may not contract out of liability for fraud. It argues instead that the specific language of the disclaimer in this case precludes recovery by V.S.H., (i.e., that V.S.H. did not rely on any representations); Texaco relies heavily, however, on a case from another jurisdiction to support this proposition, Landale Enterprises, Inc. v. Berry, 676 F.2d 506 (11th Cir.1982). Bates v. Southgate, 308 Mass. 170, 31 N.E.2d 551 (1941), is the controlling precedent on this issue in Massachusetts, not Landale. Texaco also implies that the disclaimer must be given full effect because V.S.H. is a “sophisticated” purchaser, experienced in real estate transactions. Although we agree that V.S.H.’s experience in the real estate business, along with the presence of an “as is” clause, is relevant to the ultimate disposition of the chapter 93A claim, we do not find that either factor makes V.S.H.’s claim insufficient as a matter of law. Sophistication of the parties is not mentioned in chapter 93A and the amendment of chapter 93A to cover business entities did not limit the statute’s protection to small, unsophisticated businesses. It may be that the Massachusetts Supreme Judicial Court ultimately should decide the question of whether an “as is” clause ever should be ignored in a transaction between two sophisticated businesses and, thus, whether the existence of one should preclude a chapter 93A cause of action. We do not believe, however, that it would, or could, do so without development of a factual record. For that reason, and the absence of any contrary precedent in Massachusetts law, we conclude that the district court erred in dismissing the chapter 93A claim. C. Breach of Contract V.S.H. argues that Texaco breached the contract between them when it refused to return V.S.H.’s $280,000 down payment even though Texaco could not convey the Chelsea property free of all encumbrances, restrictions and liens. V.S.H.’s argument is that the oil seepages and barrier facility constructed to control the seepages subject the property and its owners to various penalties, which amount to encumbrances on the title. V.S.H. cites, among other statutes, the Massachusetts Oil and Hazardous Material Release Prevention Act, Mass. Gen.Laws Ann. ch. 21E. Section 5 of that statute imposes liability on the owner of a site at which there is or has been a release or threat of release of oil, and section 13 provides that the cost of clean-up may constitute a lien on the property of all persons liable under the statute. V.S.H. also points to Mass.Gen.Laws Ann. ch. 131, § 40, which prohibits the filling, dredging or altering of any bank bordering on any creek of any land subject to tidal action, coastal storm flowage or flooding, without permission from the local conservation commission. V.S.H. alleges in its complaint that the bank bordering on Chelsea Creek, and the land surrounding it, are subject to those environmental events, and that Texaco’s construction of a dam or barrier facility on its property following the Coast Guard investigation is a violation of the statute. The statute provides that anyone who acquires the property is responsible for restoring it to its prior condition, and that fines, imprisonment or injunctive relief may be obtained by the Attorney General, local officials or any group of ten Massachusetts residents. Texaco contends that V.S.H.’s citation to these Massachusetts statutes, and equivalent federal statutes, is insufficient because V.S.H. has not alleged enough facts to establish that conditions presently exist such that the property would be deemed encumbered by a statutory violation. As a general proposition, the “mere possibility” that someone might subject the purchaser to litigation is not enough to require a return of a deposit, Orenberg v. Johnston, 269 Mass. 312, 316, 168 N.E. 794 (1929). Sufficient facts must be alleged “showing that the property was or might be subject to adverse claims such as might reasonably be expected to expose the purchaser to controversy in order to maintain his title”, Hill v. Levine, 252 Mass. 513, 517, 147 N.E. 837 (1925) (emphasis added). On the other hand, V.S.H. cites several cases more hospitable to recognizing the existence of an encumbrance. In Silverblatt v. Livadas, 340 Mass. 474, 164 N.E.2d 875 (1960), it was held that a letter from a building inspector to a seller of property that a fire escape would have to be replaced by either the owner or the city (in which case a lien would be imposed) would not be an encumbrance made by the grant- or — even if, arguably, this kind of inchoate lien could constitute an encumbrance. In Sawl v. Kwiatkowski, 349 Mass. 712, 212 N.E.2d 228 (1965), the court held that a prospective buyer was not entitled to specific performance of a real estate contract because of a possible inheritance tax lien on the property. The master had found that there was a “ ‘reasonable probability’ ” that an inheritance tax was due and that “ ‘the probability of ... a lien ... [was] sufficiently great to render the tile non-marketable in the absence of ... evidence that [the locus was] free of such lien....’” Id. at 713, 212 N.E.2d 228. In Mahoney v. Nollman, 309 Mass. 522, 35 N.E.2d 265 (1941), the court ruled that a buyer was entitled to a return of its deposit because of a possible lien on the land in favor of a legatee who had not been satisfied by the testatrix' estate. Even though no specific claim had been made and the Attorney General was the only one who could enforce the lien, the court held that the title to the property was sufficiently doubtful: “The defendant is entitled to assume that [the Attorney General] will perform his duties in that respect in the matter of the estate of the testatrix. So far as appears, resort may be necessary to the land in question for satisfaction of these legacies for a public charity.” Id. at 527, 35 N.E.2d 265. We resolve this issue by affirming the district court. As far as any “encumbrance” attributable to chapter 21E, proscribing the release of oil and enabling the Commonwealth to secure its recovery of any clean-up costs by means of a lien, we note several missing links in the chain of imminency that characterized both Sawl and Mahoney. In the first place, nearly three months had elapsed between V.S.H.’s discovery of additional seepage and the filing of its complaint. Thus, the absence of any allegations concerning complaints or clean-up orders renders quite speculative their likely existence. In the second place, the appropriateness of any clean-up order was subject both to an adjudicatory administrative hearing and judicial review. Chapter 21E § 10. As for any encumbrance attributable to chapter 130 § 40, we note the nearly three month period mentioned above; the uncertainty of an encumbrance arising from the precondition of suit in equity being brought and won; and, finally, the fact that neither in the original nor amended complaint was there an allegation that Texaco, in responding to the Coast Guard investigation and constructing a dam or barrier on its bank bordering Chelsea Creek, did so without giving notice to and receiving permission from the appropriate authorities. In short, no violation of § 40 was alleged. We therefore cannot fault the district court for dismissing this count. For the foregoing reasons, we affirm the dismissal of the contract count, and reverse the judgment of the district court on the misrepresentation and chapter 93A counts, remanding for further proceedings consistent with this opinion. . When we consider the amended complaint, see appendix, rejected by the court, our conclusion takes on added strength. The new averments, especially paragraphs 10 and 13, seem to state a classical misrepresentation claim. Indeed, we cannot escape the impression that had the court directly focused on them, it might well have allowed the amendments. For it had earlier asked counsel for V.S.H. if he intended to amend, had learned that counsel would ask leave to amend if dismissal were contemplated, and had, on dismissing two counts, specifically noted that V.S.H. could file an amendment within a reasonable period of time. Counsel said he would await a formal ruling on all counts. Subsequently, as if the matter had fallen between stools, the court dismissed the entire complaint and, eight days later, V.S.H. served its motion on Texaco. Under these circumstances the short delay and absence of any likelihood of prejudice would have clearly indicated granting the motion for leave to amend under Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) and Austin v. Unarco Industries, Inc., 705 F.2d 1 (1st Cir.1983) had the new averments received a focused attention. . This paragraph followed V.S.H.’s acknowledgement that various regulations may require it to spend substantial sums of money for improvements to the facility, and that it was willing to assume responsibility for compliance with all applicable regulations. In its amended complaint, V.S.H. alleged that it insisted on the disclaimer from Texaco because it knew that current landowners can be held liable for oil leaks, spills and related problems even if the actual environmental damage was caused by a prior owner. V.S.H.'s allegation implies that the Texaco disclaimer was its form of protection when it agreed to accept responsibility, since the disclaimer suggested that Texaco knew of no outstanding problems with the property. It may be that there was no significant problems. V.S.H. should be allowed to proceed on the basis of its allegations, however, to discover the extent, if any, of Texaco's culpability. . Chapter 93A reads, in relevant part, as follows: "§ 2. Unfair practices; legislative intent; rules and regulations (a) Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful. "§ 11. Any person who engages in the conduct of any trade or commerce and who suffers any loss of money or property, real or personal, as a result of the use or employment by another person who engages in any trade or commerce of an unfair method of competition or an unfair or deceptive act or practice declared unlawful by section two or by any rule or regulation issued under paragraph (c) of section two may ... bring an action____” . Texaco argues that § 3.16 actually condemns only failures to disclose that are unfair or deceptive as described by Massachusetts standards, Purity Supreme, Inc. v. Attorney General, 380 Mass. 762, 775, 407 N.E.2d 297 (1980), and that this is not such a case. While we agree with that general proposition, it is also true that "the existence of unfair acts and practices must be determined from the circumstances of each case”, Commonwealth v. DeCotis, 366 Mass. at 242, 316 N.E.2d 748; see also Mechanics National Bank of Worcester v. Killeen, 377 Mass. 100, 384 N.E.2d 1231 (1979); Schubach v. Household Finance Corp., 375 Mass. 133, 376 N.E.2d 140 (1978); Noyes v. Quincy Mutual Fire Insurance Co., 7 Mass.App. 723, 389 N.E.2d 1046 (1979). . The court declined to find the statutory liability only because the defendants played a minor role in the purchase of the property. . It is worth noting that in Landale the disclaimer was drafted by the party seeking to invalidate the sales contract. Id. 676 F.2d at 508. Texaco drafted the clause in the instant contract. . We note that the district court may wish to certify this question at an appropriate point in the proceedings. . We note, but do not rely on, another section of the Attorney General regulations, § 3.05(1) (Mass.Admin.Code tit. 20), which V.S.H. pointed out in its amended complaint: "No claim or representation shall be made by any means concerning a product which directly, or by implication, or by failure to adequately disclose additional relevant information, has the capacity or tendency or effect of deceiving buyers or prospective buyers in any material respect." Although V.S.H. did not specifically cite to § 3.05 in its original complaint, the amended complaint links that section (as well as § 3.16) with Texaco’s alleged failure to disclose the oil leaks and Coast Guard investigation, and the original complaint contains all of the factual allegations necessary for that connection. . The Federal Clean Water Act, 33 U.S.C. § 1321 and the Federal Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. 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_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. EPPENAUER et al. v. OHIO OIL CO. COMPTON et al. v. SAME. Nos. 8519, 8630. Circuit Court of Appeals, Fifth Circuit. Aug. 2, 1938. Dan Moody, of Austin, Tex., C. W. Trueheart, of San Antonio, Tex., Robert G. Hughes and D. B. Hardeman, both of San Angelo, Tex., and Ed. M. Whitaker, of Midland, Tex., for appellants. • William Pannill, of Houston, Tex., for appellee. R. G. Hughes and D. B. Hardeman, both of San Angelo, ‘ Tex., Ed. M. Whitaker and Jno. Perkins, both of Midland, Tex., and Robert E. Cunningham, of El Paso, Tex., for appellants. William Pannill and R. C. Gwilliam, both of Houston, Tex., for appellee. Before FOSTER, SIBLEY, and HOLMES, Circuit Judges. Rehearing denied Sept. 20, 1938. FOSTER, Circuit Judge. These two cases were argued separately but may be conveniently disposed of by one opinion as the facts are to some extent similar and both are controlled by the same principles of law. The suits were brought originally by Marathon Oil Co., to quiet its title and possession under certain oil and gas leases covering large tracts of land in Pecos County, Texas; to remove clouds upon its title and for injunctions to prevent further acts of defendant of a similar nature. Later Ohio Oil Co., appellee, acquired all the rights of Marathon Oil Co. and was substituted as plaintiff in its stead. There was judgment for plaintiff in both cases. There is no doubt the suits were cognizable in equity. Applications for surveys, the field notes resulting therefrom and the assignments of the rights of the parties, hereafter referred to, were all officially of record and constituted clouds upon plaintiff’s titles. No patents issued until after the suits were begun. As to the few that were then granted collusion is charged between employees of the Land Office and the parties in interest. Jurisdiction of the court properly attached in both suits on the ground of diversity of citizenship and sufficient amount in controversy. Under the laws of Texas any person discovering an unsurveyed area of free school land, not so listed on the records of the Land Office and not in actual conflict on the ground with land previously sold or appropriated, may apply to the county surveyor to have the land surveyed. After the field notes of the survey are returned to the Land Office, approved and filed with the State Land Commissioner, the applicant has a preference right for 60 days thereafter to purchase a mineral lease on the land from the' State. Chapter 271, Acts of the Texas Legislature, 1931, Vernon’s Ann.Civ.St.Tex. art. 5421c. In No. 8519 the suit is against A. R. Eppenauer, H. W. Compton, Bob Reid, Mrs. Pearl Norris, H. E. Christie, S. J. Brendel, and some seven other persons, who have not appealed. The bill alleged that plaintiff is the owner in possession under mineral leases, of large tracts of land in Pecos County, Texas, described generally as the I. & G. N. Ry. Co. Surveys Nos. 61, 62, 63, 64 and 65; the T. I. & Mfg. Co. Survey No. 545; a part of the Runnels County School Land Survey No. 3; Sections 30 and 32 of Block 194 G. C. & S. F. Ry. Survey; 1767.5 acres granted to I. G. Yates under certificate No. 12341 and 446.9 acres in the I. G. Yates Survey 34%. The bill further alleged that Eppenauer and other named defendants had filed applications for surveys, contending that certain parcels of land belonging to plaintiff in said surveys, were vacant free school land; had assigned rights thereunder to others; and that there were no vacancies in the land covered by plaintiff’s leases. Plaintiff contends that its title to the land it now holds under mineral leases has been judicially determined by the Supreme Court of Texas in the cases of Turner v. Smith, 122 Tex. 338, 61 S.W.2d 792, and Douglas Oil Co. v. State of Texas, California Case, 122 Tex. 377, 61 S.W.2d 807 in which the State recovered 561 acres of land, covered by the terms of its leases, as vacant. In No. 8630 the suit was brought against H. W. Compton, Bob Reid, W. H. Bland and some 12 other persons who have not appealed. The bill alleged that plaintiff is the owner of oil and gas leases on land generally described as sections 31 and 33 of Block 194 G. C. & S. F. Ry. Co. Survey; Fred Turner, Jr.’s Surveys, Nos. 1 to 6 inclusive; 446.9 acres of the I. G. Yates’ Survey 34%. In other respects the allegations are similar to those in suit No. 8519., Plaintiff also relies in this case on the decisions in Turner v. Smith and Douglas Oil Co. v. State of Texas, supra. The records are so voluminous in both cases that it would be practically impossible to make a condensed statement of the facts appearing in detail in the transcripts. It is sufficient to say that the district court found as facts in both cases, after a careful review of the evidence, that no vacancies as contended by defendants existed. The district court also held that any person now seeking to acquire rights to vacant land from the State within the lines of survey fixed by the decisions of the Supreme Court of Texas above cited, is bound under the doctrine of stare decisis obtaining in Texas. The case of Turner v. Smith et al., 122 Tex. 338, 61 S.W.2d 792, was begun by Turner in a district court of the state in an action to mandamus the county surveyor to make a survey under the provisions of Art." 5323 .of the Revised Statutes, now superseded by Chapter 271 of 1931, above quoted. The surveyor impleaded Mrs. A. G. Smith and I. G. Yates, parties from whom plaintiff obtained leases. The Attorney General- of Texas attempted to intervene' for the State, praying for a judgment decreeing the area described in plaintiff’s petition to be vacant public free school land. This intervention was wrongfully stricken from the record. See Camp v. Gulf Production Co., 122 Tex. 383, 61 S.W.2d 773. Judgment rendered in favor of Turner by the district court was,, reversed by a court of Civil Appeals, Smith v. Turner, 13 S.W.2d 152. The Supreme Court reversed this judgment and reinstated the judgment of the district court. After the decision of the Supreme Court, the State of Texas, through its Attorney General, brought suit for the benefit of Turner, to recover the land in controversy for him. The case of Turner v. Smith was submitted and argued together with two other cases, Douglas Oil Co. v. State of Texas, California Case, 122 Tex. 377, 61 S.W.2d 807 and Douglas Oil Co. v. State of Texas, Whiteside Case, 122 Tex. 369, 61 S.W.2d 804. Both of the Douglas Oil- Co. Cases were begun by the state of Texas, through the Attorney General, by actions in trespass to try title to recover land alleged to be vacant, for the benefit of the state. The form in which these suits were brought is immaterial. They were in fact boundary suits. The Supreme Court in the cases above cited considered the various conflicting surveys within which the land covered by plaintiff’s leases is located and fixed the correct lines on the ground. Plaintiff’s title has therefore been validated by the Supreme Court of Texas. Under the doctrine of stare decisis obtaining in Texas all parties thereafter claiming vacancies in conflict with the decisions of the Supreme Court are bound by them whether parties to the suits or not. This is the settled law of Texas, which we are bound to follow. Texas Jurisprudence, Vol. 26 § 368 and authorities cited therein. We concur in the conclusions of the district court. The records present no reversible error. In each case the judgment appealed from is affirmed. 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_district	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". UNITED STATES of America, Appellee, v. SOCIETY OF INDEPENDENT GASOLINE MARKETERS OF AMERICA, Appellant. UNITED STATES of America, Appellee, v. AMERADA HESS CORPORATION, Appellant. UNITED STATES of America, Appellee, v. ASHLAND OIL, INC., Appellant. UNITED STATES of America, Appellee, v. KAYO OIL COMPANY, Appellant. UNITED STATES of America, Appellee, v. The MEADVILLE CORPORATION, Appellant. UNITED STATES of America, Appellee, v. PETROLEUM MARKETING CORPORATION, Appellant. UNITED STATES of America, Appellee, v. Robert R. CAVIN, Appellant. Nos. 77-2515 to 77-2521. United States Court of Appeals, Fourth Circuit. Argued Jan. 9, 1979. Decided December 26, 1979. Upon Rehearing June 24, 1980. Widener, Circuit Judge, filed concurring opinion. K. K. Hall, Circuit Judge, filed opinion in which he dissented in part. Wilbur D. Preston, Jr., Baltimore, Md. (Nevett Steele, Jr., Gerson B. Mehlman, Whiteford, Taylor, Preston, Primble & Johnston, Baltimore, Md., A. T. Biggers, Continental Oil Company, Houston, Tex., on brief), for appellant Kayo Oil Company. John H. Lewin, Jr., Baltimore, Md. (Benson E. Legg, Venable, Baetzer & Howard, Baltimore, Md., Adlai S. Hardin, Jr., Mil-bank, Tween, Hadley & McCloy, New York City, Howard B. Myers, Amerada Hess Corporation, Woodbridge, N. J., on brief), for appellant Amerada Hess Corporation. William Simon, Washington, D. C. (Ray S. Bolze, Roger C. Simmons, Howrey & Simon, Washington, D. C., Robert H. Compton, Ashland Petroleum Company, Ashland, Ky., on brief), for appellant Ashland Oil, Inc. Robert E. Nagle, Donald T. Bucklin, Washington, D. C. (Wald, Harkrader & Ross, Washington, D. C., on brief), for appellant Robert R. Cavin. David F. Albright, Baltimore, Md. (Richard M. Kremen, Franklin T. Caudill, Seemes, Bowen & Semmes, Baltimore, Md., on brief), for appellant Petroleum Marketing Corporation. Philip L. Cohan, David Freeman, Ginsburg, Feldman & Bress, Washington, D. C., on brief, for appellant The Meadville Corporation. David A. Donohoe, Jay D. Zeiler, Akin, Gump, Strauss, Hauer & Feld, Washington, D. C., on brief, for appellant Society of Independent Gasoline Marketers of America. Frederic Freilicher, John J. Powers, III, Dept, of Justice, Washington, D. C. (John H. Shenefield, Asst. Atty. Gen., Rodney O. Thorson, James F. Ponsoldt, Dept, of Justice, Washington, D. C., on brief), for appel-lee, United States of America. Before FIELD, Senior Circuit Judge, and WIDENER and HALL, Circuit Judges. FIELD, Senior Circuit Judge: On June 1, 1976, an indictment was returned in the District of Maryland against The Society of Independent Gasoline Marketers of America (“SIGMA”), Amerada Hess Corporation (“Hess”), Ashland Oil, Inc. (“Ashland”), Continental Oil Company (“Continental”), Crown Central Petroleum (“Crown”), Kayo Oil Company (“Kayo”), The Meadville Corporation (“Meadville”), Petroleum Marketing Corporation (“PMC”), Robert R. Cavin (“Cavin”), Norman Goldberg (“Goldberg”), Charles J. Luellen (“Luellen”) and W. H. Burnap (“Burnap”). The indictment, drawn in one count, charged that the defendants had violated Section 1 of the Sherman Act, 15 U.S.C. § 1, prior to its 1974 amendments, by engaging in a conspiracy to fix prices for the retail sale of gasoline in unreasonable restraint of commerce. After extensive pretrial proceedings, the trial commenced on May 2, 1977, and at the conclusion of the Government’s case the district court granted the motions of three of the individual defendants, Luellen, Goldberg and Burnap, for judgments of acquittal. The trial continued as to the remaining defendants, and on August 30, 1977, the jury returned verdicts of not guilty with respect to Crown and Continental and guilty as to SIGMA, Hess, Ashland, Kayo, Meadville, PMC and Cavin. Judgments of conviction were entered pursuant to the jury’s verdicts and the convicted defendants have appealed. In an opinion filed December 26,1979, the panel unanimously affirmed the convictions of all of the defendants except Ashland. Similarly, the panel unanimously reversed the conviction of Cavin. With respect to Ashland, a majority of the panel affirmed the conviction, Judge Widener dissenting. Petitions for rehearing and rehearing en banc were filed, and upon the suggestion that the case be reheard en banc less than a majority of the judges in regular active service voted in favor thereof. Accordingly, rehearing en banc is denied. On the petitions for rehearing, however, a majority of the panel are now of the opinion that the conviction of Ashland must be reversed. Additionally, the panel is of the opinion that our disposition of Cavin’s appeal must be modified. To that effect, we withdraw our prior opinion and file the present opinion in lieu thereof. I During the period covered by the indictment, and for many years prior thereto, gasoline was sold to motorists through essentially two different types of retail service stations. “Major brand” stations sold the gasoline of major companies, e. g., Exxon, Texaco, Gulf, etc., and in many instances were operated by dealers who were not employees of the major companies. These stations bore brand names that were widely advertised and sold brand name products, including tires, batteries and parts. Many of them offered repair service and accepted recognized company credit cards. “Private brand” stations, on the other hand, offered gasoline under names which were not widely advertised, e. g., Redhead, Kayo, Scatt, etc., and were usually manned by individuals who worked directly for the company which owned the stations. Private brand stations ordinarily offered few products other than gasoline, and spent little money, if any, for media advertising. With these differences in service, such stations competed with the major brands almost exclusively upon the basis of price. The private brand stations attracted customers from the majors by pricing their gasoline several cents a gallon below that of the major brand stations in the same locale, and as a result the price of major brand gasoline imposed a “ceiling” on private brand prices. In other words, to be competitive the private brand retailer was required to maintain a sufficiently attractive “differential” between his price and that of the majors. Because they were selling gasoline at less than that charged by the majors, the profit margin of the private brand stations was reduced to a marginal level, and the volume of a private brand’s sales was vitally important. In the highly competitive private brand market volume was, of course, significantly related to price. As a result, the private brand company, in the operation of a local station, took into account in pricing its gasoline from day-today not only the price charged in that locale by the major brand stations, but the prices charged by other independents in the same market. During the period in question the companies which operated private brand stations had available a certain amount of current and accurate data relative to pricing patterns in the major brand gasoline market from a publication known as “Platt’s Oil-gram”. This established trade newspaper conducts price surveys of the majors and publishes such pricing data for major brand markets throughout the country, including advance announcements of upcoming wholesale price moves by the majors. Much information, however, which was vital to the private brand companies could not be gleaned from Oilgram. Oilgram carried little news of major brand retail price behavior on a station-by-station or “street-basis,” and such information was highly important to the private brand companies since their competitive vitality depended upon the ability of their individual retail outlets to undercut at all times the prices charged by neighboring major brand stations. More significantly, Oilgram carried practically no news concerning other private brand retailers’ price behavior, either present or future, nor any analysis of the potential impact of major brand.market behavior upon the private brand market. In part to fill this void, the private brand retailers formed a trade association called The Society of Independent Gasoline Marketers of America (“SIGMA”). SIGMA’s members were firms and individuals operating private brand stations in various parts of the country. Its board of directors and officers were elected from the membership and its day-to-day operations were managed by a full-time salaried director and his supporting staff. Ordinarily the membership met in convention on a semi-annual basis. SIGMA was characterized at trial by the defendants as an “oral Platt’s Oilgram” for independents. It collected information from various sources (including telephone calls to and from private brand companies in which the companies would discuss upcoming market decisions), and it would relay such information to its members, usually by telephone. Information provided by SIGMA to its members included the behavior of independents and majors in adjoining markets, the impact of wholesale prices on retail price structures, upcoming price moves by other independents, opportunities for increased prices or the perceived need for decreases, and generally such other data which might be of assistance to the members in meeting their competition. The indictment charged that the defendants, in effectuating the conspiracy to fix prices, “used SIGMA as a clearing house for gasoline pricing information in order to coordinate price increases and to eliminate discounting and settle pricing disputes,” and that they “met at the occasion of SIGMA meetings and discussed pricing strategy, including the coordinated increase of retail gasoline prices and the curtailment and elimination of price cutting and discount practices”. The indictment alleged that this use of SIGMA, supplemented by telephonic or other contact between the several defendants with respect to coordinated price increases and agreements, had resulted in the stabilization of artificial and noncompetitive prices of gasoline, the effect of which was to restrain competition among the defendants and their co-conspirators. II In their joint brief the defendants make the prefatory charge that they “were convicted of criminal price fixing for exchanging information on prices,” and assert that no conviction has ever been sustained on such evidence in a highly competitive market of which the participants had a relatively minimal share. In making this contention the defendants draw heavily upon the Supreme Court’s recent decision in United States v. U. S. Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). Gypsum involved the practice of inter-seller price verification, a practice which is not, in itself, unlawful per se. The Government contended that such an exchange of price information was violative of Section 1 of the Sherman Act if it had either the purpose or the effect of stabilizing prices. The Court held, however, that an effect on prices, without more, would not support a criminal conviction, and that it was necessary to show that such a consequence was intended by the alleged participants. There is a marked difference between the case before us and the one considered by the Court in Gypsum. Here the indictment charged the defendants with a conspiracy to fix prices, and the “exchange of information” was merely one of the activities by which the alleged agreement was effectuated. “Under the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223, 60 S.Ct. 811, 844, 84 L.Ed. 1129 (1940). Since in a price-fixing conspiracy the conduct is illegal per se, further inquiry on the issues of intent or the anti-competitive effect is not required. The mere existence of a price-fixing agreement establishes the defendants’ illegal purpose since “[t]he aim and result of every price-fixing agreement, if effective, is the elimination of one form of competition.” United States v. Trenton Potteries, 273 U.S. 392, 397, 47 S.Ct. 377, 379, 71 L.Ed. 700 (1926). Ill The principal challenge of the defendants is that the Government failed to offer sufficient evidence to prove the conspiracy which was charged in the indictment. The indictment defined the geographical area of the conspiracy as the “Middle Atlantic states of New York, Pennsylvania, New Jersey, Delaware, Maryland and Virginia, as well as the District of Columbia. The defendants maintain that it was necessary for the Government to demonstrate a single continuing conspiracy to fix gasoline prices throughout the entire Middle Atlantic region, and contend that the only evidence of the area-wide coordination of price moves related to general increases in November, 1970, July, 1971, and August of 1972. The defendants acknowledge that there were area-wide increases on those occasions, but assert that the evidence failed to show that they were the result of any price-fixing agreement. On the contrary, they suggest that the evidence clearly showed that the price moves on these three occasions were the result of economic forces at work in the market place over which the defendants had no possible control. The defendants argue that other than those three occasions, the Government’s evidence, at best, proved nothing but a series of “local and isolated incidents occurring within the Middle Atlantic states, involving some of the defendants and co-conspirators at different, and shorter, periods of time.” Even if we were to accept the defendants’ criticism of the probative quality of the evidence on the three area-wide increases, we think the Government’s evidence with respect to the various local markets was proper for the consideration of the jury. Under the indictment the conspiracy embraced an agreement not only to fix prices on an area-wide basis, but also to establish prices in local markets within the region and to effectuate price changes on a coordinated basis. The Government’s evidence of the single conspiracy implemented in this manner was not merely circumstantial in nature. The Government’s witnesses, many of whom were employed by the corporate appellants, testified concerning the nature and intent of their pricing communications, and their testimony was augmented in many respects by the contemporaneous records of the defendants. Our review of the record persuades us that the evidence was sufficient to support the conclusion of the jury that the defendants were working together for the accomplishment of their common purpose to fix prices within the geographical area described in the indictment. We are further of the opinion that the court’s instructions to the jury were consistent with the indictment. The court instructed the jury that the defendants were charged with a “single, continuing conspiracy” to fix prices of gasoline in the Middle Atlantic states and, adverting to the evidence with respect to local pricing incidents, emphasized that “if you find that a defendant engaged in isolated incidents of gasoline price fixing, but was not a party to a single overall conspiracy covering the six-state area and the District of Columbia area, you must find that defendant not guilty of the matters charged in the indictment.” This language, we think, made it crystal clear to the jury that their consideration of the evidence should be addressed to the ultimate issue of a single overall conspiracy. IV Defendants also claim that there was a fatal variance of proof from the original indictment, the bill of particulars, and the pre-trial stipulation of the parties. Much of what we have said with respect to the sufficiency of the evidence applies equally to this contention of the defendants which, in a large degree, is predicated upon their argument that the indictment required a showing of continuous area-wide price manipulation. As we have noted, there was substantial evidence to support the jury’s finding of guilt and, assuredly, the defendants were not convicted upon a charge that was not specified in the indictment, nor were they uninformed of the charge against them. Additionally, the charges and specifications found within the four corners of the indictment, the bill of particulars, and the pre-trial stipulation not only informed the defendants of the charges against them, but are sufficiently clear to allow the defendants to assert double jeopardy in the event of any future prosecution for the same conduct. V We find no merit in the defendants’ charge that the trial court improperly denied their request for a more detailed bill of particulars. Pursuant to a stipulation entered into five months prior to trial, the Government supplied the defendants with copies of all grand jury testimony, access to all documents subpoenaed from non-defendants; all documents voluntarily submitted to the Government by third parties in the course of the investigation; and all available Brady material. In further compliance with the stipulation the defendants received copies of all trial exhibits thirty days prior to trial, as well as a list of intended witnesses and Jencks Act material fourteen days prior to trial. In the light of this extensive disclosure by the Government there was no abuse of discretion by the trial court in declining to require the Government to supply the further information requested by the defendants. See United States v. Schembari, 484 F.2d 931 (4 Cir. 1973). VI The Government’s case against the defendant, Ashland, was based primarily upon the theory that Ashland exercised direct control over the retail operations of five of its subsidiary corporations, including Payless Stations, Inc. (“Payless”). One of the Government’s principal witnesses on the question of Ashland’s control was a former vice-president of Payless, who was in charge of its pricing for the period from 1963 through 1973, and who was employed by the company from 1956 through December of 1973. This witness provided direct testimony of Ashland’s control over its subsidiaries. His testimony also included other information regarding the participation of Ashland and Payless in the conspiracy and the relationship of Payless with SIGMA. This key witness had been hospitalized for psychiatric problems on two separate occasions in Our Lady of Peace Hospital in Louisville, Kentucky, and counsel for Ash-land subpoenaed the hospital records. They were produced by the hospital administrator who was directed to deliver them to the district judge. After examining the records in camera, the judge advised counsel that they reflected two periods of hospitalization, the first being from July 26 to August 29, 1966, and the second from November 20 until December 24,1968 and that the hospitalizations involved “a mental disorder or illness at that time.” Concluding that the disclosure of the records was within his discretion, the district judge declined to deliver them to counsel for the reason, among others, that he did “not know to what extent the Government’s examination of the witness will include questioning during the relative period” (App.Vol. 3, at 777, 778). In making this ruling, however, the district judge stated that he was not foreclosing counsel for Ash-land from questioning the witness about the two periods of hospitalization, but that he would rule on the questions as the cross-examination of the witness developed. The hospital records were sealed by the district judge and after this appeal was filed Ashland moved this court for leave to examine such records. The motion was denied with the provision that counsel for Ashland might renew the motion at the time of oral argument. Following oral argument we granted Ashland’s counsel access to the records and they were jointly examined by counsel for Ashland and the Government. Based on this examination of the hospital records, with leave of the court, both Ashland and the Government filed supplemental briefs on the issue of the relevancy of these records. Counsel for Ashland contends that in denying access to the hospital records the trial court prejudicially impaired Ashland’s ability to effectively cross-examine the witness. Ashland argues, among other things, that the hospital records were significant for the purpose of evaluating the witness’ perceptive ability during the period in question and suggests, for instance, that if the witness were suffering from paranoia, he might have taken an irrational view of his communications with Ashland and interpreted simple inquiries as commands or binding directives. As we have noted, the first period of the witness’ hospitalization was from July 26 to August 29 of 1966, which was prior to Ash-land’s acquisition of Payless and also prior to the alleged conspiracy. However, the second period of hospitalization from November 20, 1968, to December 21, 1968, fell within the period of the conspiracy which was alleged to have existed from at “at least as early as 1967 * * * and continuing thereafter until November 1974.” The record discloses that the vice-president in question was admitted to the hospital on the first occasion because of work-related problems. Significantly, the 1966 records show that a “supervisor” at work brought him to the hospital, and that he believed that “people at work were plotting against him.” The official diagnosis indicated that his problems stemmed from his employment rather than being home-related. The 1968 records show that he was “manic depressed and admitted in psychotic state.” The records also state that he “still tends to push himself,” and contained observations that he was “delusional and hallucinatory with poor judgment and insight.” Although the 1968 records do not specifically state that this was a continuation of his work-related problems, the jury might reasonably have drawn such an inference had the contents of the records been disclosed to them during the cross-examination of the witness. The official record incident to the 1968 visit state the1 final diagnosis as “Schizophrenic Reaction, Schizo-affective Type.” On that occasion the “mental status examination” reflected that the patient was manic in behavior and quite talkative, and that he spoke of his experience with God. It occurs to us that the hospital records should have indicated to the district court that the witness’ hospitalization in 1966 was work-related and that'it was quite probable that his 1968 illness was of a similar nature. The records should also have indicated to the court that the witness’ judgment during both periods of illness was seriously impaired, and that a jury could have concluded that his ability to make rational observations was highly questionable. The records would further indicate that the patient had not fully recovered when he was discharged from the hospital in 1968 since they point out that his condition required further psychiatric treatment and continued medication. Bearing in mind that the case against Ashland was based upon its alleged direct control over the retail operations of its subsidiaries, including Payless, it is clear that the testimony of the former vice-president was vital to the Government’s case. Ash-land had acquired control of Payless in 1967 and the witness testified that “Ashland, from the time that they acquired the company [Payless] until the time that I left, assumed gradually more and more control.” At another point, in testifying concerning Ashland’s control of prices of Payless the witness stated “this was a growing thing that started in 1968, when Ashland bought it and extended up until at the end, when they were saying what and where and how to price, not just because of the shortage of gasoline, but because they were taking direct control from Ashland’s offices in Ash-land, Kentucky.” It should be noted that during at least a part of this period in 1968 about which the witness testified, he was experiencing acute mental problems with a hospital record which disclosed that he was “delusional and hallucinatory with poor judgment and insight,” and was “secluded for his own welfare.” Despite this fact, the court forbade Ashland from reviewing the hospital records or putting them to any effective use in the cross-examination of the witness. Even if it is fair to assume that the hospital records had no direct bearing upon the witness’ mental capacity at the time he testified, they were unquestionably relevant in regard to his perception of the events involving his work at Payless during the time of his unfortunate illness, and had a significant bearing upon his ability to testify at trial concerning his recollection of those events. United States v. Partin, 493 F.2d 750 (5 Cir. 1974), is the leading case in this field, and is quite similar to the case before us. In that case, one Rogers was a key government witness, just as the former vice-president was here. Rogers had been admitted to a Veterans Administration Hospital for treatment for mental illness. The hospital record revealed that Rogers had stated he was having auditory hallucinations and at times he thought he was some other person. The trial court rejected the admission of the hospital record either as a predicate for cross-examination or as a basis upon which another psychiatrist could have given an opinion as to the mental state of the witness Rogers as that may have had an effect on Rogers’ ability to see and hear accurately during the period in which the events occurred about which he was testifying. The court of appeals reversed the conviction because of the trial court’s error in failing to admit the hospital records, reasoning at page 762: “It is just as reasonable that a jury be informed of a witness’ mental incapacity at a time about which he proposes to testify as it would be for the jury to know that he then suffered an impairment of sight or hearing. It all goes to the ability to comprehend, know, and correctly relate the truth.” And again on page 763 appears the following: “Partin [the defendant] had the right to attempt to challenge Rogers’ credibility with competent or relevant evidence of any mental defect or treatment at a time probatively related to the time period about which he was attempting to testify.” To the same effect are United States v. Hiss, 88 F.Supp. 559 (S.D.N.Y.1950), and statements in United States v. Honneus, 508 F.2d 566, 573 (1 Cir. 1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975); Sinclair v. Turner, 447 F.2d 1158, 1163 (10 Cir. 1971), cert. denied, 405 U.S. 1048, 92 S.Ct. 1329, 31 L.Ed.2d 590 (1972); Ramseyer v. General Motors Corp., 417 F.2d 859, 863 (8 Cir. 1969); United States v. Allegretti, 340 F.2d 254, 257 (7 Cir. 1964), cert. denied, 381 U.S. 911, 85 S.Ct. 1531, 14 L.Ed.2d 433 (1965). In United States v. Figurski, 545 F.2d 389 (4 Cir. 1976), we had occasion to determine whether the contents of a protected report about a key prosecution witness should have been disclosed to defense counsel, and stated: “If the report contains only material impeaching the witness, disclosure is required only when there is a reasonable likelihood of affecting the trier of the fact. Whether there is such a likelihood depends upon a number of factors such as the importance of the witness to the government’s case, the extent to which the witness has already been impeached, and the significance of the new impeaching material on the witness’ credibility.” Id., at 391-92. As discussed above, the former vice-president of Payless was the key government witness. Although the defense presented the testimony of two witnesses that contradicted his testimony regarding Ashland’s control over its subsidiaries, the ability of defense counsel to impeach him regarding his ability to properly perceive events about which he testified was severely limited by counsel’s inability to examine the hospital records. We can think of no more relevant or significant material than a hospital record indicating that a witness who is testifying against his former employer had been under treatment for mental illness which rendered him at that time delusional and hallucinatory with poor judgment and insight. Although a trial court should seek to prevent the disclosure of embarrassing, irrelevant information concerning a witness, it is an abuse of discretion to preclude defense counsel from obtaining relevant information, and the witness’ privacy must yield to the paramount right of the defense to cross-examine effectively the witness in a criminal case. See Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1111-1112, 39 L.Ed.2d 347 (1974). Upon careful consideration, we are of the opinion that the action of the district court in denying Ashland access to the hospital records for its use in cross-examination of the former vice-president was so prejudicial that Ashland is entitled to reversal and a new trial. VII With the exception of Ashland, we affirm the convictions of the other corporate appellants. We think, however, that assurances of immunity given to Robert Cavin during the grand jury’s investigation and upon which he relied require that his conviction be set aside. The grand jury investigation was initiated about November 18, 1974, under the direction of Rodney A. Thorson of the Antitrust Division of the Department of Justice. On December 23, 1974, Cavin and Richard Reynolds, a fellow employee of SIGMA, were subpoenaed to testify before the grand jury and were jointly notified that they should appear in Baltimore on January 7, 1975. Reynolds and Cavin immediately contacted David A. Donohoe, who also represented SIGMA, and arranged to meet with him on January 2, 1975. Donohoe then called Thorson and inquired whether either Cavin or Reynolds were targets of the grand jury investigation. According to Donohoe, Thorson told him “not to worry” because Thorson “was obtaining immunity orders for both Mr. Cavin and Mr. Reynolds and that both would be testifying under a grant of immunity.” Based upon Thorson’s representation Donohoe concluded that he should suggest to Cavin and Reynolds that they obtain other counsel. In Thorson’s recollection of the conversation with Dono-hoe, he denied making any “promise” that Cavin and Reynolds would receive immunity but recalled stating that he would obtain immunity orders for both if they intended to claim the Fifth Amendment. Thorson also acknowledged that he had requested immunity authorization for both witnesses at about the time he issued subpoenas for their appearance. Thorson also discussed with Donohoe his possible conflict of interest since he was counsel for SIGMA and suggested that Donohoe secure other counsel for Cavin and Reynolds. At their meeting on January 2, 1975, Do-nohoe told Cavin and Reynolds of Thorson’s assurance that they were to receive immunity, and advised them to obtain other counsel in order to avoid any possible conflict of interest. After some discussion, Do-nohoe recommended that Cavin and Reynolds consider retaining Donald T. Bucklin. Bucklin met with Cavin and Reynolds at Donohoe’s office on that same day and was retained by them. Donohoe repeated to Bucklin the representations concerning immunity that Thorson had made to him. In the light of this information Bucklin discussed with Cavin and Reynolds their rights under a grant of immunity and they were specifically advised of the importance of testifying fully and honestly in order to obtain the maximum protection under 18 U.S.C. § 6001, et seq. Shortly after the start of a joint briefing session with Cavin and Reynolds on the afternoon of January 2nd, Bucklin called Thorson to advise him of his representation of the two witnesses and to set up a meeting on January 3rd. During this conversation Thorson confirmed the assurance that both Cavin and Reynolds would receive immunity, and was advised by Bucklin that based upon this assurance he perceived no conflict in his joint representation. Thor-son agreed that no conflict existed. While Thorson later denied discussing the question of conflict with Bucklin, he did acknowledge that he had repeated his earlier assurance that he would obtain immunity orders if the witnesses intended to claim the Fifth Amendment. On this point Thorson testified before the district court as follows: THE COURT: Did you state that he would get immunity; he would testify pursuant to an immunity order? MR. THORSON: Yes; yes, I did state that. THE COURT: Can you restate that to me to the best of your recollection as to when it occurred and what was said and to whom. MR. THORSON: I stated that initially in the telephone conversation preceding the January 3rd meeting in the context that if it is their intention to claim the Fifth Amendment I will obtain an immunity order. And I explained, expressly, that I had no intentions of having the Government go to the expense of having these people come to Baltimore from St. Louis, and then claim the Fifth Amendment and then I’d send them home. That’s why I wanted to know what their intention was, and I did not find that out until the meeting on Friday. [January 3], (App.Vol. 18, at 15,225 and 15,226.) During the initial joint interview with Bucklin on January 3rd Cavin and Reynolds refreshed each others recollections, supplemented their respective comments and responses, and corrected each others memory of events, dates and names of people with respect to incriminating evidence. On January 3,1975, Donohoe and Bucklin, together with another attorney, met with Thorson and other prosecutors in the Department of Justice. At this meeting Thorson agreed to obtain immunity orders prior to the grand jury appearances of Cavin and Reynolds based upon the representations that both witnesses would claim their Fifth Amendment privilege. Subsequent to the meeting on January 3rd, a conflict developed in Bucklin’s schedule for January 7th, and Terry F. Lenzner was brought into the ease to represent Ca-vin and Reynolds. On January 6th Thorson called Lenzner and advised him that the appearance of the two witnesses was postponed until January 8th. During that conversation Thorson again confirmed that both witnesses would receive immunity, and it was agreed that the attorneys would meet on the morning of January 8th and proceed to the supervisory judge’s chambers for the signing of the immunity orders. At about 7:30 p. m. on that evening Thorson called Lenzner at his home and advised him that the subpoena for Cavin was being can-celled. The reason given by Thorson for the cancellation was a scheduling problem and Lenzner was told that he would be advised if and when Cavin’s appearance was rescheduled. Under date of January 7, 1975, Lenzner advised Thorson by letter that his representation of Cavin and Reynolds was based upon Thorson’s assurance that both individuals were to testify under a grant of immunity on the same day, and that because of a possible conflict of interest resulting from the cancellation of Cavin’s subpoena, Lenz-ner was withdrawing from further representation of Cavin. Lenzner was unable to advise Cavin of these developments since both Cavin and Reynolds were en route to Washington. Cavin expressed some concern about the postponement but was assured by Lenzner that Thorson had indicated it was due only to a scheduling problem. At the grand jury session on January 8th Thorson commenced his examination of Reynolds concerning SIGMA documents without an immunity order, whereupon Reynolds refused to answer “on the grounds that it violates the agreement between the Government and my counsel that I would be questioned only after receiving immunity and that I would be granted immunity today before testifying.” Thorson then called upon Donohoe to produce someone to identify the SIGMA records, and the following exchange took place: MR. THORSON: Well, do I understand that you, as counsel for SIGMA are refusing on behalf of SIGMA to produce someone— MR. DONOHOE: No, I’m not. MR. THORSON: —from that association to come here and testify, take an oath and testify as to the document production? MR. DONOHOE: I think you know perfectly well what I’m saying. I brought two people to this City pursuant to subpoenas that you had directed, so I had two people who could have testified with respect to these documents, but because the commitments that you had made to these two individuals have not been kept, I’m no longer able to go get a third or fourth or fifth person. That’s a situation which is not of my making. MR. THORSON: Do I understand that you are refusing at this juncture to provide a person to make that production? MR. DONOHOE: All I’m saying is that there are two people that have — that I have brought that are capable to do that, but I’m willing to assure you that it won’t do you any good because you failed to keep your commitment to obtain a proper order from the Court. You can take Mr. Reynolds or Mr. Cavin in here, but it’s not going to do any good. MR. THORSON: Mr. Donohoe, I think you can take SIGMA’s documents with you now and would you so instruct, if he is your client, would you instruct Mr. Reynolds to appear before the Grand Jury now? (App.Yoi. 8, at M86 and M87.) Reynolds was formally granted immunity later that day and testified before the grand jury. In his affidavit, Reynolds stated that during his grand jury appearances he was questioned and testified about matters he had earlier discussed with Cavin and that his testimony, at least in part, was based upon information Cavin had given him after they were told that both would receive immunity. In the process of obtaining an immunity order for Reynolds, Thor-son showed Lenzner a document which reflected an authorization of immunity for both Cavin and Reynolds, and Lenzner concluded that Cavin was to be called later to testify under a grant of immunity. Under these circumstances, he perceived no conflict of interest, and debriefed Reynolds fully in the presence of Cavin. Some fourteen months later, in March of 1976, Reynolds was recalled as a witness before the grand jury and again discussed his testimony with Cavin, acting under the belief that neither he nor Cavin would be indicted. On June 1, 1976, Cavin was 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_numresp	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Michael J. MAYERSKY, Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, United States of America. No. 15258. United States Court of Appeals Third Circuit. Argued Oct. 19, 1965. Decided Nov. 2, 1965. W. J. Krencewicz, Shenandoah, Pa., for appellant. Merna B. Marshall, Asst. U. S. Atty., Philadelphia, Pa. (Drew J. T. O’Keefe, pj. S. Atty., Sherman L. Cohn, Edward Berlin, Attys., Dept, of Justice, Washington, D. C., on the brief), for appellee. Before McLAUGHLIN, FORMAN and GANEY Circuit Judges ’ PER CURIAM. It is conceded here that our decision in Marshall v. Celebrezze, Secretary, etc., 351 F.2d 467 (opinion filed October 4, 1965) governs this appeal. As we said in Marshall, “The order from which this appeal has been taken is interlocutory, not final. It is unappealable. 28 U.S.C. 1291.” The appeal will be dismissed. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_r_nonp	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 "groups and associations". 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. Clifford O. BOREN, Appellant, v. R. A. RIDDELL, District Director of Internal Revenue, Appellee. No. 15203. United States Court of Appeals Ninth Circuit. Feb. 19, 1957. John A. Brant and Torrance & Wan-sley, San Diego, Cal., for appellant. Charles K. Rice, Asst. Atty. Gen., Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., Helen A. Buckley, Washington, D. C., Edward R. McHale, Robert H. Wyshak and Bruce I. Hochman, Asst. U. S. Attys., Los Angeles, Cal., for appel-lee. Before STEPHENS, CHAMBERS and BARNES, Circuit Judges. BARNES, Circuit Judge. Appellant sought an injunction in the District Court restraining and enjoining appellee from making any seizure, collection or distraint of any property belonging to appellant under the authority of an assessment for income taxes, interest and penalties made by the Commissioner of Internal Revenue against appellant, for the calendar year 1951. This income tax return appellant had duly filed. Appellee moved to dismiss, filing a supporting affidavit. The District Court treated the motion as one for summary judgment, heard the matter, and ordered dismissal. This is an appeal from that order of dismissal. A taxpayer’s right to enjoin the collection of taxes is limited by statute under the Internal Revenue Code of 1954, effective August 17, 1954. In that Code, § 7421 provides: “(a) Tax. — Except as provided in sections 6212(a) and (c), and 6213 (a), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” § 6212(a) provides that after the Secretary or his delegate determines there is a deficiency, he “is authorized to send notice of such deficiency to the taxpayer by registered mail.” § 6213 provides that within ninety days after the notice authorized in § 6212 is mailed, the taxpayer may file a petition with the Tax Court for a redetermination of the proposed deficiency. In such an event, § 6212(c) (1) provides that the Secretary or his delegate shall have no right to determine any additional deficiency of the taxpayer for the same taxable year. Under the Internal Revenue Code of 1939, similar restrictions on the taxpayer’s right of injunction existed. Section 272, as amended, provided: “If in the ease of any taxpayer, the Commissioner determines that there is a deficiency in respect of the tax imposed by this chapter, the Commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail * * This Section then gives the taxpayer the right, within ninety days, to petition for a redetermination of the deficiency, and no assessment, distraint or proceeding in court for collection shall be made, begun, or prosecuted “until such notice has been mailed to the taxpayer, nor until the expiration of such ninety day period,” nor if such a petition is filed, “until the decision of the Board has become final,” and if attempted, “[it] may be enjoined.” The facts are undisputed. On March 11, 1955, the Commissioner sent a notice of deficiency by registered mail to the taxpayer at the wrong address. This notice is conceded by both parties to be ineffective for any purpose. On April 14, 1955, the Commissioner mailed a notice of deficiency by ordinary mail to the taxpayer at his correct address. It was received by taxpayer the following day. The appellant filed no petition for re-determination of the deficiency with the Tax Court at any time. On July 22 1955 (more than ninety days after the notice had been received) when no action was taken by the taxpayer, appellee gave written notice and demand for payment, and issued a warrant of distraint. The sole question presented is whether the notice of deficiency so received by the taxpayer is a valid statutory notice. If so, appellant has no defense to the threatened levy and distraint. If not, appellee has no authority to levy and distrain, and should be enjoined from doing so until after notice has been given by registered mail, the expiration of the ninety day period, and the failure of taxpayer to petition. The earlier cases, particularly those heard by the Tax Court, applied the statutory construction rule, expressio unius est exclusio alterius, and held that “notice by registered letter” meant notice in that way, and in no other way; that notice by ordinary mail, or manual delivery, was insufficient. “Any other method of notice does not comply with the statute and is invalid. The method directed by the statute is mandatory.” Day v. Commissioner, 12 B.T.A. 161; Hamilton v. Commissioner, 13 T.Ct. 747, 749; Wilson v. Commissioner, 16 B.T.A. 1280, 1290; Heinemann Chemical Co. v. Heiner, 3 Cir., 1937, 92 F.2d 344; citing Botany Worsted Mills v. United States, 278 U.S. 282, 49 S.Ct. 129, 73 L.Ed. 379, where there appears this language, interpreting the 1924 Act: “When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.” 278 U.S. 282, 49 S.Ct. 129, 132. But, argues the Government, the statute now has been revised; it does not now so “limit”; it merely “authorizes” one method of giving notice. It points out that the 1924 Act provided that notice “shall be sent by registered mail,” the 1926 Act, § 274(a), 26 U.S.C.A.Int. Rev.Acts, p. 203 was revised to provide that the Government was “authorized” to so send the notice; that this word “is a permissive word at most; ” that the real objective is actual notice. If notice by registered mail was deemed indispensable, runs the Government’s argument, it would have been simple for the Congress to have so provided; i. e., “notice must be served by registered mail.” We believe that this Court should attempt to give effect to the manifest intent of Congress, when it changed the requirement “shall use registered mail,” to the permissive “may use registered mail.” We presume the purpose of using registered mail is first, to provide the safest economical. method of insuring that in the greater majority of cases, notice is actually received by the taxpayer from his Government; second, to create some commonly accepted factual basis to permit, in good conscience, the initiation of the ninety day period against the taxpayer, without requiring the Government to face the almost impossible task of proving actual notice to the taxpayer. But the heart of the taxpayer’s right is to have actual notice, which enables him to petition his Government if he so desires. This he had here, under the notice he admittedly received by ordinary mail. We believe a broader interpretation of the language is followed in the more recent court cases. See Commissioner of Internal Revenue v. Stewart, 6 Cir., 186 F.2d 239, 241, 24 A.L.R.2d 793: “The taxpayer contends that since the statute requires the notice of the deficiency assessment to be sent ‘to the taxpayer by registered mail,’ the action of the Commissioner in sending it to the taxpayer’s auditor and attorney, instead of to the taxpayer himself, was not a compliance with the provisions of the statute, and was therefore an invalid notice. The Tax Court ruled that since the statute limited the way in which the notice could be sent it negatived any other mode of action; that the Commissioner was required to send the notice of deficiency to the taxpayer in strict accord with the statutory requirements; and since he did not do so, the petition must be dismissed for lack of jurisdiction. “We are of the opinion that such a strict literal construction of the statute is not authorized in the present case. It is clear that the purpose of the deficiency notice is to give the taxpayer notice that the Commissioner means to assess a deficiency tax against him and to give him an opportunity to have such ruling reviewed by the Tax Court before it becomes effective. Commissioner [of Internal Revenue] v. New York Trust Co., 2 Cir., 54 F.2d 463, 465; Commissioner [of Internal Revenue] v. Forest Glen Creamery Co., 7 Cir., 98 F.2d 968, 971; Olsen v. Helvering, 2 Cir., 88 F.2d 650, 651. In addition to giving the taxpayer notice of the proposed deficiency assessment, the mailing of the deficiency notice limits the period of time thereafter to ninety days in which the taxpayer can have the question reviewed by the Tax Court. If the taxpayer receives notice of the proposed assessment, and during the ninety-day period thereafter files his petition for review with the Tax Court, the purposes of the Act have been accomplished. Although some courts have said that strict compliance with the statutory notice provisions is necessary in order to validate the assessment and to give the Tax Court jurisdiction to review it, we do not think that such a view is the correct one. In Commissioner [of Internal Revenue] v. Forest Glen Creamery Co., supra, the Court said, 98 F.2d at page 971: 'x‘ * there is no indication in the statute of an intention to require the notice to be on the basis of jurisdiction of the Board in a technical sense.’ As pointed out by Commissioner [of Internal Revenue] v. New York Trust Co., supra, 54 F.2d at page 465, it is the taxpayer who invokes the jurisdiction of the Board by filing his petition to review. This Court has previously ruled that a failure to strictly comply with the statutory notice provisions does not necessarily deprive the Tax Court of its jurisdiction to act in the matter. Warner Collieries Co. v. United States, 6 Cir., 63 F.2d 34; Commissioner [of Internal Revenue] v. Nichols & Cox Lumber Co., 6 Cir., 65 F.2d 1009. See also Burnet v. San Joaquin Fruit & Investment Co., 9 Cir., 52 F.2d 123, 128. Under Section 272(d) Internal Revenue Code, the required mailing of the deficiency notice can be waived by the taxpayer without invalidating the validity of the assessment. In the following cases it was held that defects or irregularities in giving the required statutory notice were waived by the taxpayer’s action in proceeding with a petition for review in the Tax Court, which thereupon acquired jurisdiction to determine the matter: Haag v. Commissioner, 7 Cir., 59 F.2d 516, 518; Commissioner [of Internal Revenue] v. New York Trust Co., supra, 54 F.2d at page 466. “In the present case, the taxpayer received the full measure of protection guaranteed to him by Section 272(a) of the Code.” We do not go as far as the majority did in Dolezilek v. C. I. R., 1954, 94 U.S. App.D.C., 97, 212 F.2d 458, in here holding that actual notice, plus a ninety-day period thereafter within which the taxpayer may act, satisfies the statute, and that a literal compliance is unnecessary. There the majority opinion held that the mailing of an undelivered registered letter starts the ninety-day period running, where the taxpayer had actual notice within the ninety-day period by manual delivery and “adequate time remaining within such period for preparing and filing * * * ” his protest. The dissent of Judge Miller points out that he believes the legislative intent was that “the notice must actually reach the taxpayer * * * before limitation begins to run from the date of mailing,” and in conclusion he states: “My opinion is that Congress intended to permit an application to the Tax Court within ninety days after the mailing of a final or ninety-day deficiency letter which was actually delivered to the taxpayer by the post office; and, in the absence of notice by registered letter, within ninety days after the taxpayer’s actual receipt of notice delivered to him by some other method. Section 272 does not, as the majority say, provide for manual delivery. But such delivery is not forbidden, and the use of registered mail is not mude exclusive. The essential thing is that the taxpayer have notice, and not that he have it in any particular way.” (Emphasis added.) We agree with this reasoning. Here' the essential purpose of the statute was accomplished. The rights of the taxpayer were protected. He received ae-tual notice in sufficient time to petition the: Tax Court to stay the levy and dis-traint, had he desired so to do. He chose not to do so, and he cannot now complain of an alleged technical deficiency which deprived him of no rights. Our conclusion herein as to the sufficiency of the notice is based upon the circumstances of this case and our reasoning is not meant as authority for holding that actual notice is sufficient in all cases where another specific kind of notice is prescribed. Affirmed. . 28 U.S.C.A. § 1340. . Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A. . 28 U.S.C.A. § 1291. . 26 U.S.C.A. § 7421. . 26 U.S.C.A. § 6212. . 26 U.S.C.A. § 6213. . 26 U.S.C.A. (I.R.C.1939), § 272. . Internal Revenue Act of 1924, § 274(a), 26 U.S.C.A.Int.Rev.Acts, p. 56. Question: What is the total number of respondents in the case that fall into the category "groups and associations"? Answer with a number. 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". AMERICAN GAS ASSOCIATION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, The Independent Oil & Gas Association, Northwest Pipeline Corporation, El Paso Natural Gas Company, Bay State Gas Company, et al., Tenneco Oil Company, Apache Corporation, The Pennsylvania Public Utility Commission, City of Albany, et al., ONG Transmission Company, et al., Public Service Commission of the State of New York, Mobil Natural Gas, Inc., Conoco, Inc., Intervenors. No. 87-1588. United States Court of Appeals, District of Columbia Circuit. Argued May 8, 1990. Decided Aug. 24, 1990. As Amended Aug. 27, 1990. Raymond N. Shibley, with whom the following were on the joint brief for pipeline petitioners in 87-1588, et al.: Frank R. Lindh, John A. Sieger, and Judy M. Johnson for Panhandle Eastern Pipe Line Co. and Trunkline Gas Co.; John H. Cheatham, III for Interstate Natural Gas Ass’n of America, Inc.; Paul E. Goldstein and Paul W. Mallory for Natural Gas Pipeline Co. of America; Robert H. Benna and Terrence J. Collins for Tennessee Gas Pipeline Co.; Michael R. Waller for United Gas Pipe Line Co.; Michael E. Small for Williams Natural Gas Co.; Daniel F. Collins and William W. Brackett for ANR Pipeline Co. and Colorado Interstate Pipeline Co.; William B. Grealis and Deborah A. MacDonald for Transwestern Pipeline Co.; and Stephen L. Huntoon for Williston Basin Interstate Pipeline Co. Jennifer N. Waters, with whom the following were on the joint brief for petitioner state eom’n, distribution companies, and related agencies in 87-1588, et al.: Frederick Moring and Toni M. Fine for Associated Gas Distributors; William T. Miller and Susan N. Kelly for American Public Gas Ass’n; Roberta L. Halladay, Marilyn A. Specht, and C. William Cooper for United Distribution Companies; Richard A. Solomon and David D’Alessandro for Public Service Comm’n, State of N.Y.; Lynne H. Church and Robert Fleishman for Baltimore Gas and Electric Co.; Robert B. Langstaff for Board of Water Gas and Light Commissioners, Albany, Ga.; William I. Harkaway, Harvey L. Reiter, Barbara M. Gunther, and Martin J. Bregman for Consolidated Edison Co. of New York, Kansas Power and Light Co., Kansas Public Service, Missouri Public Service, and Peoples Natural Gas Co. Harvey L. Reiter, with whom the following were on the joint brief for petitioner distributors, consumers, end-users, state commissions, state agencies, and a natural gas marketer in 87-1588, et al.: William I. Harkaway and Barbara M Gunther for Consolidated Edison Co. of New York, Inc., et ah; John K. Rosenberg and Martin J. Bregman for Kansas Power and Light Co.; William T. Miller and Susan N. Kelly for American Public Gas Ass’n; Joel L. Greene and Barbara S. Jost for Apache Powder Co., et ah; Frederick Moring, Jennifer N. Waters, and Toni M. Fine for Associated Gas Distributors; Joseph P. Stevens for The Brooklyn Union Gas Co.; Donald K. Dankner and Fred J. Killion for Central Hudson Gas and Elec. Corp., et ah; Arnold D. Berkeley, Richard I. Chaifetz, and Howard L. Nelson for City of Willcox, Arizona and Arizona Elec. Power Cooperative, Inc.; Robert J. Hirasuna for Hadson Gas Systems, Inc.; Jennifer N. Waters, Toni M. Fine, and Kenneth J. Neises for Laclede Gas Co.; Jeffrey M. Petrash and Daniel L. Schiffer for Michigan Consolidated Gas Co.; David I. Bloom for Northern Illinois Gas Co.; Margaret Ann Samuels for Office of the Consumers’ Counsel, State of Ohio; Edward B. Myers for Orange and Rockland Utilities, Inc.; Edward J. Grenier, Jr. and William H. Penniman for Process Gas Consumers Group, et ah; Stephen F. Green-wald, Lindsey How-Downing, and Patrick G. Golden for Pacific Gas and Elec. Co.; Thomas M. Patrick and Karen Lee for the Peoples Gas Light & Coke Co. and North Shore Gas Co.; Lawrence F. Barth and Veronica A. Smith for Pennsylvania Public Utilities Com’n; Richard A. Solomon and David D’Alessandro for Public Service Com’n, State of N.Y.; Janice E. Kerr, Michael B. Day, Edward W. O’Neill, and Harvey Y. Morris for Public Utilities Com’n of the State of Cab; E.R. Island and David L. Huard for Southern California Gas Co.; Robert J. Haggerty, Dandrea Lynn Miller, and Robert B. Rice for Southern Union Gas Co.; William I. Harkaway for Southwest Gas Corp.; Frank J. Kelley, Louis J. Caru-so, Don L. Keskey, Henry J. Boynton, Patricia S. Barone, Ronald D. Eastman, Lynda S. Mounts, and Joel Kaufman for State of Mich, and Michigan Public Service Com’n; Frederick Moring, Jennifer N. Waters, and Tóni M. Fine for United Cities Gas Co.; Roberta L. Halladay, Marilyn A. Specht, and C. William Cooper for United Distribution Companies. Thomas G. Johnson, with whom the following were on the joint brief for producer petitioners in 87-1588, et ah: Charles J. McClees, Jr. and James A. Ruoff for Shell Offshore Inc. and Shell Western E & P Inc.; Jack M. Wilhelm for Amoco Production Co.; R. Gordon Gooch for Anadarko Petroleum Co.; Richard G. Morgan for Apache Corp.; Harris S. Wood and Kathleen E. Magruder for Arco Oil and Gas Co.; Gerald P. Thurmond and David J. Evans for Chevron U.S.A. Inc.; Ernest J. Alte-gelt, III for Conoco, Inc.; C. Roger Hoffman and D.W. Rasch for Exxon Corp.; Toni D. Hennike and Gerald M. Bendo for Hunt Oil Co.; John J. Akins for Kerr-McGee Corp.; Robert C. Murray for Marathon Oil Co.; Paul F. O’Kónski and Randolph C. Bruton for Mitchell Energy Corp.; Jay G. Martin for Mobil Natural Gas Inc. and Mobil Oil Exploration & Producing Southeast Inc.; Michael L. Pate for OXY USA Inc.; John B. Chapman, Sylvia McCor-mack, and John K. McDonald for Pennzoil Company; Larry Pain and Luke A. Mickum for Phillips Petroleum Co. and Phillips 66 Natural Gas Co.; Ronald D. Hurst for Placid Oil Co.; John Wolfe for Rosewood Resources, Inc.; Ralph J. Pearson, Jr. for Texaco Inc.; Kenneth L. Riedman, Jr. for Union Oil Co. of California; Kerry R. Brit-tain for Union Pacific Resources Co.; and Timothy J. Jacquet for Union Texas Petroleum Corp. : William W. Brackett, with whom the following were on the joint brief for pipeline petitioners in 87-1588, et ah: Daniel F. Collins for ANR Pipeline Co. and Colorado Interstate Gas Co.; William G. von Glahn, Lewis A. Posekany, J. Diana Hall, and Michael E. Small for Williams Natural Gas Co.; Michael R. Waller and Jacob M. Hiatt for United Gas Pipeline Co.; Deborah A. MacDonald, Rockford G. Meyer, and William J. Grealis for Transwestern Pipeline Co. Timothy N. Black, with whom the following were on the joint brief for certain petitioners and intervenors in opposition to continued use of disallowed deficiency-based allocation mechanism for take-or-pay pass-through in 87-1588, et al.: John H. Pickering, Stephen J. Small, and Mark D. Clark for Columbia Gas Transmission Corp.; Lynne H. Church, Robert Fleishman, and Jeffrey D. Watkiss for Baltimore Gas and Elec. Co.; Roger C. Post and Jack L. Shailer for Columbia Gas Distribution Companies; Stephen E. Williams, Kevin J. Lipson, John E. Holtzinger, and Charles C. The-baud, Jr. for CNG Transmission Corp.; Paul S. Buckley for Maryland People’s Counsel; Jeffrey M. Petrash for Michigan Consolidated Gas Co.; Margaret Ann Sam-uels for Office of the Consumers’ Counsel, State of Ohio; Lindsey How-Downing, Merek E. Lipson, and Patrick G. Golden for Pacific Gas and Elec. Co.; and Christopher J. Barr for UGI Corp. Charles F. Wheatley, Jr. and Philip B. Malter were on the brief for petitioner National Ass’n of Gas Consumers. Arnold D. Berkeley was on the brief for petitioners City of Willcox, Ariz. and Arizona Elec. Power Cooperative, Inc. Jeffrey M. Petrash for Michigan Consolidated Gas Co.; Frederick Moring, Jennifer N. Waters, and Toni M. Fine for Associated Gas Distributors; Robert Fleishman for Baltimore Gas and Elec. Co.; Margaret Ann Samuels for Office of Consumers’ Counsel, State of Ohio; Kenneth J. Neises for Laclede Gas Co.; John M. Glynn for Maryland People’s Counsel; Glenn W. Let-ham and Kenneth M. Albert for Memphis Light, Gas and Water Div., City of Memphis, Tenn.; Frank J. Kelley, Louis J. Caru-so, Don L. Keskey, Henry J. Boynton, Patricia S. Barone, Ronald D. Eastman, Lynda S. Mounts, and Joel Kaufman for the State of Mich, and Michigan Public Service Com’n; and David L. Bloom for Northern Illinois Gas Co. also were on the joint brief for petitioners concerning contract demand reduction in 87-1588, et al. Richard C. Green, Donald J. Maclver, Jr., Richard Owen Baish, Scott D. Fobes, and T. Rush Moody, Jr. entered appearances for petitioner El Paso Natural Gas Co. in 87-1588, et al. Jerome M. Feit, Solicitor, F.E.R.C., with whom William S. Scherman, Gen. Counsel, Dwight C. Alpern and Jill Hall, Attys., F.E. R.C., were on the brief, for respondent in 87-1588, et al. John Estes and Joseph Davies, Attys., F.E.R.C., also entered appearances for respondent. Edward J. Grenier, Jr., with whom the following were on the joint brief of inter-venor industrial end user groups, state commissions, and consumer advocates in 87-1588, et al: William H. Penniman, Glen S. Howard, and Sterling H. Smith for Process Gas Consumers Group, et al.; Paul S. Buckley for Maryland People's Counsel; Ronald D. Eastman, Lynda S. Mounts, and Joel Kaufman for State of Mich, and Michigan Public Service Com’n; Margaret Ann Samuels for Office of the Consumers’ Counsel, State of Ohio; Janice E. Kerr, Michael B. Day, Edward W. O’Neill, and Harvey Y. Morris for Public Utilities Com’n of the State of Cal; Richard A. Solomon and David D’Alessandro for Public Service Com’n, State of N.Y.; Robert F. Shapiro, Thomas E. Hirsch, III, and Gregory D. Chafee for American Paper Institute, Inc.; Lawrence F. Barth and Veronica A. Smith for Pennsylvania Public Utilities Com’n. John H. Cheatham, III for Interstate Natural Gas Ass’n of America, Inc.; Raymond N. Shibley, Frank R. Lindh, and John A. Siegar for Panhandle Eastern Pipe Line Co. and Trunkline Gas Co.; Paul E. Gold-stein and Paul W. Mallory for Natural Gas Pipeline Co. of America; Robert H. Benna and Terrence J. Collins for Tennessee Gas Pipeline Co.; Michael R. Waller for United Gas Pipe Line Co.; Daniel F. Collins and William W. Brackett for ANR Pipeline Co. and Colorado Interstate Pipeline Co.; William B. Grealis and Deborah A. MacDonald for Transwestern Pipeline Co.; and Stephen L. Huntoon for Williston Basin Interstate Pipeline Co. were also on the joint brief for pipeline intervenors in 87-1588, et al. Frederick Moring, Jennifer N. Waters, and Toni M. Fine for Associated Gas Distributors; William T. Miller and Susan N. Kelly for American Public Gas Ass’n; Richard A. Solomon and David D’Alessandro for Public Service Com’n, State of N.Y.; Robert Fleishman for Baltimore Gas and Elec. Co.; John W. Glendening, Jr. and Barbara K. Keffernan for the Berkshire Gas Co., et al.; Robert B. Langstaff for Board of Water Gas and Light Commissioners, Albany, Ga.; William I. Harkaway, Harvey L. Reiter, Barbara M. Gunther, and Martin J. Bregman for Consolidated Edison Co. of New York, Kansas Power and Light Co., Kansas Public Service, Missouri Public Service, and Peoples Natural Gas Co.; Jennifer N. Waters, Toni M. Fine, and Kenneth J. Neises for Laclede Gas Co.; James F. Bowe, Jr. and O. Julia Weller for Long Island Lighting Co.; Glenn W. Letham and Kenneth M. Albert for Memphis Light Gas and Water Div., City of Memphis, Tenn.; Jeffrey M. Petrash and Daniel L. Schiffer for Michigan Consol. Gas Co.; Frank J. Kelley, Louis J. Caruso, Don L. Keskey, Henry J. Boynton, Patricia S. Barone, Ronald D. Eastman, Lynda S. Mounts, and Joel Kaufman for State of Mich, and Michigan Public Service Com’n; Charles F. Wheat-ley, Jr. for National Ass’n of Gas Consumers; Harry H. Voigt and M. Reamy Ancar-row for Niagara Mohawk Power Corp.; David I. Bloom for Northern Illinois Gas Co.; William A. Spratley and Margaret Ann Samuels for Office of the Consumers’ Counsel, State of Ohio; Thomas M. Patrick, Mark J. McGuire, and Karen Lee for Peoples Gas Light & Coke Co. and North Shore Gas Co.; Lawrence F. Barth and Veronica A. Smith for the Pennsylvania Public Utility Com’n; William R. Hoatson and James R. Lacey for Public Service Elec. & Gas Co.; Janice E. Kerr and Harvey Y. Morris for the Public Utilities Com’n of the State of Cal.; Frank H. Stricklker, Gordon M. Grant, and Ralph E. Fisher for Washington Gas Light Co. were also on the joint brief for intervenors local distribution companies, state commissions, and related agencies in 87-1588, et al, Charles J. McClees, Jr., James A. Ruoff, and Thomas G. Johnson for Shell Offshore Inc. and Shell Western E & P Inc.; Jack M. Wilhelm for Amoco Production Co.; R. Gordon Gooch and F. Nan Wagoner for Anadarko Petroleum Co.; Richard G. Morgan for Apache Corp.; Harris S. Wood and Kathleen E. Magruder for Arco Oil and Gas Co.; David J. Evans for Chevron U.S.A. Inc.; Ernest J. Altgelt, III for Cono-co, Inc.; C. Roger Hoffman and D.W. Rasch for Éxxon Corp.; Toni D. Hennike and Gerald M. Bendo for Hunt Oil Co.; John J. Akins for Kerr-McGee Corp.; Robert C. Murray for Marathon Oil Co.; R; Brent Harshman for Maxus Energy Corp.; Randolph C. Bruton for Mitchell Energy Corp.; Jay G. Martin for Mobil Natural-Gas Inc. and Mobil Oil Exploration & Producing Southeast Inc.; Michael L. Pate for OXY USA Inc.; John B. Chapman, Sylvia McCormack, and John K. McDonald for Pennzoil Co.; Larry Pain and Luke A. Mic-kum for Phillips Petroleum Co. and Phillips 66 Natural Gas Co.; Ronald D. Hurst for Placid Oil Co.; John Wolfe for Rosewood Resources, Inc.; Ralph J. Pearson, Jr. for Texaco Inc.; Kenneth L. Riedman, Jr. for Union Oil Co. of California; Kerry R. Brit-tain for Union Pacific Resources Co.; and Timothy J. Jacquet for Union Texas Petroleum Corp. also were on the joint brief for intervenors producers and the State of Louisiana in 87-1588, et al. Charles F. Wheatley, Jr. and Philip B. Malter also were on the brief for inter-venor National Ass’n of Gas Consumers. David I. Bloom and Evan M. Tager for Northern Illinois Gas Co.; Frederick Mor-ing, Jennifer N. Waters, and Toni M. Fine for Associated, Gas Distributors; Harry H. Voigt and M. Reamy Ancarrow for Niagara Mohawk Power Corporation; Edward B. Myers for Orange and Rockland Utilities, Inc.; Thomas M. Patrick for Peoples Gas Light and Coke Co. and North Shore Gas Co.; Lindsey How-Downing for Pacific Gas and Elec. Co.; E.R. Island and David L. Huard for Southern California Gas Co.; Jennifer N. Waters and Toni M. Fine for United Cities Gas Co. also were on the joint brief for intervenors Northern Illinois Gas' Co., et al. in 87-1588, et al. Robert C. Platt and Mark K. Seifert entered appearances for intervenor Independent Petroleum Ass’n of America. Ivy Lincoln entered an appearance for intervenor Arkansas Public Service Com’n. Richard C. Green also entered an appearance for intervenor El Paso Natural Gas Co. Christopher K. Sandberg and Dennis D. Ahlers entered appearances for intervenor Energy Issues Intervention Office of the Minnesota Dept, of Public Service. Norma K. Scogin and Sarah P. Miller entered appearances for intervenor Railroad Com’n of Texas. Ralph E. Simon, Jr. entered an appearance for intervenor Transok, Inc. Luis M. Guzman entered an appearance for intervenor Valero Transmission, L.P. M. Frazier King, Jr. entered an appearance for intervenor Valero Interstate Transmission Co. R. David Henrickson and Donna J. Bailey entered appearances for intervenor Southern Natural Gas Co. Stephen A. Herman entered an appearance for intervenor Fertilizer Institute. Patricia A. Curran entered an appearance for intervenor Cabot Corp. Jerry M. Amos entered an appearance for intervenor Piedmont Natural Gas Co. Charles H. Shoneman entered an appearance for intervenor Independent Oil & Gas Ass’n of West Virginia. John W. Glendening, Jr. and Bruce B. Glendening entered appearances for inter-venor Bay State Gas Co., et al. Phyllis G. Rainey entered an appearance for intervenor Tenneco Oil Co. Michael J. Manning, James F. Moriarty, and James P. White entered appearances for intervenor Tennessee Small General Service Customer Group. James T. Bailey, Platt W. Davis, III, and David T. Andril entered appearances for intervenor Arkla Energy Resources. Charles M. Darling, Stephen L. Teichler, and Sheryl S. Hendrickson entered appearances for intervenor Ashland Exploration, Inc. C.Burnett Dunn and William I. Harka-way entered appearances for intervenor ONG Transmission Co., et al. David P. Yaffe entered an appearance for intervenor Citizens Energy Corp., et al. George L. Weber entered an appearance for intervenor National Fuel Gas Supply Corp. John E. Holtzinger, Jr. and Jacolyn A. Simmons, Washington, D.C., entered appearances for intervenor Atlanta Gas Light Co. F. Nan Wasgoner, Gordon Gooch, and Katherine B. Edwards, Washington, D.C., also entered appearances for intervenor Union Texas Petroleum Corp. Before: WILLIAMS, D.H. GINSBURG and SENTELLE, Circuit Judges. Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS. STEPHEN F. WILLIAMS, Circuit Judge: Table of Contents I. Introduction.1503 II. Inaction under Section 5.1504 A. Scope of Review.1504 B. The Merits.1505 1. Absence of power over nonjurisdictional contracts.1505 2. Mismatch.1507 3. Comparative advantages of individual settlement negotiations_1508 III. Crediting Mechanism.1509 A. Producer Claims that Crediting is No Longer Needed and Pipeline Claims to a Broader Weapon Against Producers.1509 B. Panhandle/Northern Natural.1510 C. Outer Continental Shelf Lands Act.1511 D. Casinghead Gas.1512 E. “Double Crediting”.1513 IV. Pregranted Abandonment.1513 A. Jurisdiction.1514 B. The Merits.1515 1. Decision illegally delegated to pipeline.1515 2. Reasoned decisionmaking.1516 C. Conclusion.1518 V. Miscellaneous Claims.1518 A. Contract Demand Reduction.1518 B. Take-or-pay Cost Passthrough.1519 1. Sunset date.1519 2. Opportunity to recover prudently incurred costs.1519 3. Continued use of passthrough mechanism.1519 C. Passthrough at the State Level.1520 VI. Conclusion.1520 I. Introduction In the Spring of 1985, as Mikhail Gorbachev was assuming the duties of General Secretary and inaugurating perestroika, the Federal Energy Regulatory Commission launched its own restructuring of the natural gas industry. See Notice of Proposed Rulemaking, Regulation of Natural Gas Pipelines After Partial Wellhead Decontrol, 50 Fed.Reg. 24,130 (June 7, 1985) (issued May 30, 1985). The cornerstone was “open access” — a process by which a pipeline would be able to avoid many of the regulatory hurdles otherwise impeding the provision of gas transportation, in exchange for committing itself to carry gas for any party, including gas that would be sold in competition with its own. Open access would thus provide a market-based incentive to pipelines to keep the costs of their own gas competitive. As with Gorbachev, the road has not been smooth. The Commission issued its final rule, Order No. 436, in October 1985. In Associated Gas Distributors v. FERC (“AGD I”), 824 F.2d 981 (D.C.Cir.1987), we generally approved the rule but vacated it on the ground that the Commission had failed to adequately address some fundamental problems, especially the rule’s effect on pipelines’ take-or-pay liabilities. The Commission moved swiftly to promulgate a substitute rule (Order No. 500, 52 Fed.Reg. 35,334 (Aug. 14, 1987)) before our mandate issued, so that open access transportation could continue without interruption. Innumerable parties attacked not only Order No. 500 (and later orders of the 500 series), but also many individual FERC adjudications of issues based on Order No. 500. Many of these were consolidated and argued before us in the Fall of 1989. In American Gas Ass’n v. FERC (“AGA I”), 888 F.2d 136 (D.C.Cir.1989), the court resolved several of the claims but remanded the record to the Commission to address some issues that AGD I had said it must consider, as well as some new problems posed by Order No. 500 itself. (We disposed of still other components of the case in Associated Gas Distributors v. FERC (“AGD II”), 893 F.2d 349 (D.C.Cir.1989), petitions for certiorari filed, 59 U.S.L.W. 3017 (Nos. 89-1988, -1989, -1990, -2000, -2016), and Transwestern Pipeline Co. v. FERC, 897 F.2d 570 (D.C.Cir.1990)). As a result of the remand, the Commission issued Order No. 500-H, III FERC Stats. & Regs. ¶ 30,867 (1989), and, on applications for rehearing, Order No. 500-1, III FERC Stats. & Regs. ¶ 30,880 (1990). The contending parties were of course not satisfied, and here we review their contentions. First, we affirm the Commission’s rejection of demands that it should have intervened under § 5 of the Natural Gas Act, 15 U.S.C. § 717d (1988), to modify uneconomic take-or-pay contracts between producers and pipelines. Second, we affirm in virtually all respects its decisions creating a “crediting” mechanism. This allows pipelines that carry gas under open access (which is likely to displace their own and thus aggravate their take-or-pay liabilities) to obtain credit in an equal amount against their take-or-pay obligations under contracts with the gas’s producer. As to one feature, however, we remand the case to the Commission for further consideration. Third, although we cannot find any insuperable legal obstacle to the Commission’s provision for “pregranted abandonment” of transportation services provided under “blanket certificates,” we remand the case on that issue because the Commission’s explanations do not adequately justify its decision or respond to opponents’ claims. Finally, we reject a series of miscellaneous contentions as either unripe or lacking in merit. II. Inaction under Section 5 In AGD I, this court vacated Order No. 436 and remanded for the Commission to reassess both its reasoning and its factual premises for refusing to modify “uneconomical pipeline-producer contracts” under § 5 of the Natural Gas Act. 824 F.2d at 1030. The Commission then collected extensive data from the pipelines, including figures on the relation between high prices and take-or-pay provisions, and on the proportion of contracts that were within or without its jurisdiction. On issuing its requests to the pipelines for data, it promised to aggregate and analyze the results promptly. Order No. 500, 52 Fed.Reg. at 30,341. Despite that promise, the Commission did virtually nothing after collecting the data, and its “half-explained cunctation [convinced the AG A I court] that it delay[ed] in order to avoid having to do the analysis that we required in AGD until after the take-or-pay problem... disappeared.” AGA I, 888 F.2d at 148. Accordingly we remanded for FERC to explain in a final rule whether it planned to take § 5 action, and if not, why not. Id. The Commission has now done so in Order Nos. 500-H and 500-1, and we find its explanation sufficient. A. Scope of Review. Certain petitioners attempt to cast the Commission’s duty to act under § 5 in mandatory terms. Drawing on the language of § 5 saying that the Commission “shall determine the just and reasonable rate... to be thereafter observed and in force,” 15 U.S.C. § 717d (1988) (emphasis added), they argue that the Commission must undertake a § 5 investigation whenever requested to do so. But the directive to impose a just and reasonable rate or provision is triggered only by the Commission’s finding that the existing one is “unjust, unreasonable, unduly discriminatory, or preferential.” Nothing in § 5 requires the Commission to embark on the inquiry in the first place. Nor did our decision in AGD I impose any such burden. We simply concluded that the Commission had not considered all the factors relevant to pursuit of such an inquiry. Most particularly, the Commission appeared virtually to deny the tendency of its restructuring program — open access transportation and a grant to customers of authority to convert purchase arrangements into transportation — to aggravate the pipelines’ take-or-pay liabilities and thus, arguably, to generate a need for action under § 5. AGD I, 824 F.2d at 1021-28, 1044; see also San Diego Gas & Elec. Co. v. FERC, 904 F.2d 727, 730-31 (D.C.Cir.1990) (summarizing material passages of AGD I). Thus our remand insisted that the Commission reassess whether § 5 should play a role in the solution. Our review of the Commission’s decision not to take action is therefore quite limited in scope. The Commission correctly invokes General Motors Corp. v. FERC, 613 F.2d 939 (D.C.Cir.1979), stating that we review a no-investigation decision under § 5 only to ensure that the Commission has “consider[ed] all the relevant factors.” Id. at 944; see also Southern Union Gas Co. v. FERC, 840 F.2d 964, 968-70 (D.C.Cir.1988). As neither the Commission nor any petitioners have invoked Heckler v. Chaney, 470 U.S. 821, 831-35, 105 S.Ct. 1649, 1655-57, 84 L.Ed.2d 714 (1985), holding that nonenforeement decisions are ordinarily unreviewable by virtue of § 10(a)(2) of the Administrative Procedure Act, we need not consider whether it argues for nonre-viewability or for greater deference. B. The Merits. The core of the Commission’s analysis was as follows: First, its authority to modify take-or-pay provisions under § 5 reaches only wellhead contracts subject to its jurisdiction. Second, even as to contracts accessible under § 5, permissible modifications would not suitably match the problems. Third, private negotiation within the industry, under Commission-created incentives, had good prospects of working and indeed seemed to be doing so. We address these in turn, concentrating on the want of authority over nonjurisdictional contracts, the only purely legal issue. 1. Absence of power over nonjurisdic-tional contracts. A major premise of the Commission’s decision was its conclusion that its § 5 power could not reach even the non-price terras of nonjurisdictional contracts. In Order Nos. 500-H and 500-1 it found that these accounted for 53% of the roughly $9 billion of unresolved take-or-pay liability at year-end 1986. Ill FERC Stats. & Regs, at 31,542, 31,715 n. 88. (The proportion of wellhead sales that is subject to FERC jurisdiction steadily declines, as Congress in the Natural Gas Policy Act eliminated such jurisdiction over what may loosely be characterized as “new” gas, which gradually increases as a share of the total as old gas is exhausted. See NGPA § 601(a)(1)(A) & (B), 15 U.S.C. § 3431(a)(1)(A) & (B); Pennzoil Co. v. FERC, 645 F.2d 360, 380 (5th Cir.1981).) Accordingly, the Commission reasoned that use of § 5 would provide a less finely tuned solution than other means — private negotiation under the incentives created by its crediting mechanism — to offset the effects of its restructuring program and to correct the industry’s disequilibrium. In reviewing the Commission’s resolution of the jurisdictional issue, we need not decide whether Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), mandates deference to an agency interpretation of its own jurisdiction. See The Business Roundtable v. SEC, 905 F.2d 406, 408-09 (D.C.Cir.1990) (reviewing authorities). As we read the Natural Gas Act, the Commission was absolutely right: Congress clearly limited its § 5 powers to jurisdictional contracts. Section 5(a) of the Natural Gas Act provides: Whenever the Commission, after hearing had upon its own motion or upon complaint of any State [etc.], shall find that any rate, charge, or classification demanded, observed, charged, or collected by any natural-gas company in connection with any transportation or sale of natural gas, subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory, or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order.... 15 U.S.C. § 717d (1988). The pipeline petitioners isolate the words “contract affecting such rate,” and argue that the Commission may assess the justness and reasonableness of the provisions of any contract that would likely influence a pipeline’s end-of-the-pipeline charges, and, if it finds any such provision unjust or unreasonable, replace it with one that meets that standard. Even they, of course, concede that any such power could not reach the prices set forth in nonjurisdic-tional contracts, as § 601(b)(1)(A) of the Natural Gas Policy Act, 15 U.S.C. § 3431(b)(1)(A), generally determines that the prices of even jurisdictional wellhead sales are automatically just and reasonable if they are either within their NGPA ceilings or are exempt from such ceilings. The Commission reads “contract affecting such rate” as limited to contracts in which a “natural gas company” (within the meaning of the NGA) acts as seller and which directly governs the rate in a jurisdictional sale — providing for the rate in whole or in part, or specifying or embodying it, or setting forth rules by which it is to be calculated. Ill FERC Stats. & Regs, at 31,539. Contracts that “affect” a rate indirectly, merely by affecting the costs that determine what pipeline sales rates are permissible under the NGA’s “just and reasonable” standard, are beyond § 5’s reach. We think petitioners’ view would make a nonsense of the Supreme Court’s decision in Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954), and (more significantly) of Congress’s effort 24 years later to undo Phillips with the Natural Gas Policy Act. The Natural Gas Act’s basic grant of jurisdiction appears in § 1(b), and extends to interstate transportation of gas, to interstate sales for resale, and to natural gas companies engaging in either. 15 U.S.C. § 717(b). In Phillips, the Supreme Court construed the authority over interstate sales for resale to encompass producers’ wellhead sales for resale, against a contention that § l(b)’s exclusion of “production or gathering” foreclosed such a view. The Court explicitly saw as the consequence of its decision the fulfillment of a congressional intent “to give the Commission jurisdiction over the rates of all wholesales of natural gas in interstate commerce.” Id. at 682, 74 S.Ct. at 799. On petitioners’ view, Phillips’s narrow construction of the “production or gathering” exemption was completely unnecessary for fulfillment of that intent; under § 5 the Commission would have had the authority to control wellhead rates merely because those rates are elements in the computation of pipelines’ sales rates. Indeed, petitioners’ theory is, more generally, an oxymoron — Commission jurisdiction over nonjurisdictional contracts. Twenty-four years after Phillips, Congress in the NGPA took away FERC’s jurisdiction over wellhead sales of what may loosely be called “new” gas, see NGPA § 601(a)(1)(A) & (B), 15 U.S.C. § 3431(a)(1)(A) & (B). In more sweeping terms, it reduced FERC’s jurisdiction over wellhead prices. The prices of wellhead sales that remained jurisdictional were deemed to satisfy the NGA’s requirement that jurisdictional prices be “just and reasonable” so long as they complied with the NGPA’s ceilings. See NGPA § 601(b)(1)(A), 15 U.S.C. § 3431(b)(1)(A). Finally, as to downstream prices, the NGPA guaranteed interstate pipelines’ recovery of amounts paid for gas if the price was deemed “just and reasonable” under § 601(b), i.e., was in compliance with the NGPA. See § 601(c), 15 U.S.C. § 3431(c). The interaction of the Commission’s residual “non-price” jurisdiction over transactions whose prices are beyond its jurisdiction itself raises a delicate issue: what kinds of § 5 control over non-price terms might the Commission exert without commandeering the price authority that 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_stateclaim	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".The issue hereby considered also pertains to cases where the court concluded that there was no proper cause of action. CALIFORNIA CARTAGE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Longshoremen’s and Warehousemen’s Union, et al., Pacific Maritime Association, Western Conference of Teamsters and Local Union 692, et al., Intervenors. PACIFIC MARITIME ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Longshoremen’s and Warehousemen’s Union, et al., Intervenors. INTERNATIONAL LONGSHOREMEN’S AND WAREHOUSEMEN’S UNION, LOCAL 10, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Western Conference of Teamsters and Local Union 692, et al., Intervenors. Nos. 86-1135, 86-1176 and 86-1183. United States Court of Appeals, District of Columbia Circuit. Argued March 16, 1987. Decided July 14, 1987. Thomas Preston Burke, with whom Linda Auerbach Allderdice was on the brief for petitioner, California Cartage Co., in No. 86-1135. Dennis A. Gladwell for Pacific Maritime Ass’n and Norman Leonard for Intern. Longshoremen’s and Warehousemen’s Union, with whom Kenneth W. Anderson, J. Kevin Lilly, for Pacific Maritime Ass’n, petitioner in No. 86-1176 and intervenor in No. 86-1135 and Richard S. Zuckerman, for Intern. Longshoremen’s and Warehouse-men’s Union, petitioner in No. 86-1183 and intervenor in Nos. 86-1135 and 86-1176 were on the joint brief. William J. Kilberg also entered an appearance for petitioner/intervenor, Pacific Maritime Ass’n. John G. Elligers, Atty., N.L.R.B., with whom Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel and Howard E. Perlstein, Supervisory Atty., N.L.R.B. were on the brief for respondent. Barbara Atkins, Atty., N.L.R.B. also entered an appearance for respondent. Herman L. Wacker, with whom Charles H. Thulin was on the brief for Western Conference of Teamsters, intervenor in Nos. 86-1135, 86-1176 and 86-1183. Before MIKVA and SILBERMAN, Circuit Judges, and MARKEY, Chief Judge, U.S. Court of Appeals for the Federal Circuit. Sitting by designation pursuant to 28 U.S.C. § 291(a). Opinion for the Court filed by Circuit Judge SILBERMAN. SILBERMAN, Circuit Judge: Seventeen years ago, the Pacific Maritime Association (“PMA”), an association of steamship lines, stevedoring firms and marine terminal operators, and the International Longshoremen’s and Warehouse-men’s Union (“ILWU”) signed a supplement to their master collective bargaining agreement (“Supplement”) under which PMA agreed that all “stuffing” and “unstuffing” of shipping containers within fifty miles of West Coast ports would be performed only by longshoremen working at container freight stations belonging to PMA. In June, 1971, pursuant to the Supplement, the ILWU instructed longshoremen working at PMA-member stevedoring and terminal operations not to unload or load aboard ships any containers destined for or arriving from the container freight station operated by California Cartage Company, Inc. (“CalCart”). CalCart does not belong to PMA, and employs members of the Teamsters Local 692 — not longshoremen. CalCart filed unfair labor practice charges with the NLRB in 1971, arguing that the PMA-ILWU Supplement was a “hot cargo” agreement in violation of section 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e) (1970), and that ILWU attempts to enforce the Supplement constituted a secondary boycott in violation of section 8(b)(4) of the Act, 29 U.S.C. § 158(b)(4) (1970). The Board agreed. In a 1974 decision, the Board held the Supplement was “obviously” illegal insofar as it obligated PMA and the longshoremen to prevent steamship lines that were not members of PMA from utilizing other than longshore labor to stuff and unstuff their containers. The Board also concluded the Supplement was illegal with respect to containers of PMA members because stuffing and unstuffing containers was not the traditional work of the ILWU bargaining unit and therefore the Supplement lacked the necessary work preservation objective. ILWU (California Cartage Co., Inc.), 208 NLRB 994 (1974), aff'd sub nom. PMA ¶. NLRB, 515 F.2d 1018 (D.C.Cir.1975), cert. denied, 424 U.S. 942, 96 S.Ct. 1409, 47 L.Ed.2d 347 (1976). Six years after the Board’s decision, the Supreme Court decided a section 8(e) case involving a similar agreement entered into by the East Coast longshoremen’s union. NLRB v. ILA, 447 U.S. 490, 100 S.Ct. 2305, 65 L.Ed.2d 289 (1980) (“ILA I”). Because the Supreme Court’s analysis of the work preservation issue in ILA I differed fundamentally from the approach the Board had followed in the 1974 ILWU case, we granted a motion by PMA and ILWU to recall our mandate and remand the ILWU case to the Board for reconsideration in light of ILA I. On remand, in 1986, the Board held that insofar as the Supplement applied to containers owned or leased by PMA steamship lines, it had a legitimate work preservation objective and was therefore lawful. The Board adhered to its original position, however, that the Supplement violated section 8(e) as it applied to containers owned or leased by non-PMA member steamship lines, and that the ILWU had violated section 8(b)(4) by instructing its members not to handle non-PMA containers. ILWU, 278 NLRB No. 20 (1986). PMA and the ILWU both have petitioned us to set aside the portion of that decision finding unfair labor practices. CalCart, on the other hand, filed a separate petition seeking to have the whole Supplement determined illegal under section 8(e). The teamsters intervened in support of CalCart. The Board filed cross-applications to enforce its order. We uphold the Board’s decision with respect to PMA containers, but remand the case for a more complete explanation as to why the Supplement is illegal with regard to non-PMA containers. I. The ILWU represents a collective bargaining unit that covers stevedoring firms, marine terminal operators and steamship lines. The Board certified the unit almost fifty years ago, defining it to include all longshoremen who worked on the West Coast for companies that were members of several listed employers associations, including the predecessor of PMA. Shipowners’ Association, 7 NLRB 1002, 1025 (1938). This bargaining unit was unusual in two respects. First, it included steamship lines even though they generally subcontract all longshore work to stevedoring firms and terminal operators because the steamship lines were “intimately associated with the employment of longshore labor.” Id. at 1017. Second, the unit encompassed many different employers. It may have been that virtually all direct or indirect employers of longshoremen on the West Coast belonged to the listed associations and thus none fell outside the unit. The Board defined the unit so broadly because of the strength shown by the employers jointly negotiating and administering labor agreements through those associations. Id. at 1024. The ILWU’s fifty-year battle to preserve the role of longshoremen on West Coast docks in the face of modernization in the methods of transporting cargo by sea is well documented in the Board’s decisions. See 208 NLRB at 994-95; 278 NLRB No. 20 at 3-5. Prior to World War II, truckdrivers generally delivered outgoing cargo to docks in separate packages (“break bulk”). Longshoremen would place the individual packages on small wooden platforms (“pallets”), transport the pallets across the dock by forklift, hoist them onto a ship, and thereupon stow them in the ship’s hold. The process was reversed for incoming cargo. After the war, when cargo often arrived at the docks already placed on pallets, the ILWU negotiated “make work” collective bargaining agreements that required all packages to be removed from truckers’ pallets, placed loose on the floor of the dock, and then reloaded by longshoremen onto longshore pallets. As more powerful hoisting equipment became available, the ILWU negotiated further “make work” contractual provisions that limited the weight that could be lifted on each hoist. In 1960, however, the ILWU reached an agreement with PMA, the Mechanization and Modernization Agreement (“M & M Agreement”), relinquishing the inefficient rehandling requirements and weight limitations in return for employer contributions to pension and unemployment funds and a promise that longshoremen would operate new dockside equipment. At the time the M & M Agreement was signed, only one steamship serving the West Coast had been fully converted to carry containers. During the subsequent decade, containers swept the industry. Containers could be moved across docks and loaded onto ships more efficiently than pallets, and because containers were much larger, fewer containers were needed to transport the same amount of cargo. These changes, according to the Board, caused a greater loss of longshore work than had been contemplated by the 1960 M & M Agreement. Longshoremen acquired some of the work of stuffing containers, because some cargo continued to be delivered to the docks in individual packages. But most container stuffing and unstuffing work was performed away from the docks — either at container freight stations manned by teamsters, such as the CalCart container freight station, or on the premises of the owner of the cargo. The longshoremen’s efforts to take over all stuffing and unstuffing of containers (performed within fifty miles of the docks but away from the owners’ premises) resulted in the Supplement that is the subject of this case. II. Section 8(e) of the Act bans contracts “whereby [an] employer ... agrees to ... cease doing business with any other person.” 29 U.S.C. § 158(e) (1982). This provision, which is congruent with section 8(b)(4), covers only “secondary” agreements. NLRB v. International Longshoremen’s Ass’n, 473 U.S. 61, 105 S.Ct. 3045, 3053, 87 L.Ed.2d 47 (1985) {“ILA II”); ILA I, 447 U.S. at 504, 100 S.Ct. at 2313; NLRB v. Enterprise Ass’n, 429 U.S. 507, 517, 97 S.Ct. 891, 897, 51 L.Ed.2d 1 (1977) (“Pipefitters ”); National Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612, 620, 638, 87 S.Ct. 1250, 1255, 1265, 18 L.Ed.2d 357 (1967). A contract is thought to be secondary if “directed tactically toward a neutral employer in a labor dispute not his own.” National Woodwork, 386 U.S. at 623, 87 S.Ct. at 1257. If the union’s sole objective is to influence the signatory employer’s labor relationship with his own employees, the employer clearly is not neutral and the agreement is primary rather than secondary. ILA II, 105 S.Ct. at 3057; ILA I, 447 U.S. at 504, 100 S.Ct. at 2313; National Woodwork, 386 U.S. at 645, 87 S.Ct. at 1268. An agreement to cease doing business is primary, for example, if aimed at preserving work traditionally done by unit employees, ILA I, 447 U.S. at 504, 100 S.Ct. at 2313; Pipefitters, 429 U.S. at 510, 517, 97 S.Ct. at 897; National Woodwork, 386 U.S. at 635, 87 S.Ct. at 1263, or the functional equivalent of that work, ILA I, 447 U.S. at 510, 100 S.Ct. at 2316, and intended for its effect on the signatory employer, not others. Pipefitters, 429 U.S. at 521-23, 97 S.Ct. at 899-901. But it is secondary if the objective is to acquire completely new jobs, id. at 528-31 n. 16, 97 S.Ct. at 903 n. 16, or to benefit other than the signatory employer’s employees, National Woodwork, 386 U.S. at 645, 87 S.Ct. at 1268. See also Local 644, United Bhd. of Carpenters v. NLRB, 533 F.2d 1136, 1147 (D.C.Cir.1975) (expansion of membership in bargaining unit is secondary objective); Meat & Highway Drivers v. NLRB, 335 F.2d 709, 716 (D.C.Cir.1964) (secondary objective to benefit union as a whole rather than members of unit). The Board ultimately decided, as we mentioned, that PMA and the ILWU did not violate section 8(e) by agreeing that PMA-owned or leased containers could be stuffed and unstuffed only by longshoremen. The Supplement was legal as applied to PMA containers because, the Board thought, it was intended to preserve the ILWU unit’s traditional work — loading and unloading cargo on and off ships, including “the unitizing of cargo to be shipped and the breaking down of cargo units for delivery” — by securing the functional equivalent of that work, stuffing and unstuffing modern containers. CalCart and the teamsters do not seriously dispute the evidentiary support for the Board’s finding of a functional relationship between consolidating cargo onto pallets and stuffing containers. CalCart notes that some of the work claimed under the Supplement is performed away from the docks — at, for example, CalCart’s Wilmington, California container freight station— whereas the longshoremen’s traditional work took place exclusively on the docks. But, as is surely clear after ILA I, the fact that longshoremen have never previously performed work at the exact same location does not prevent the work sought from being the functional equivalent of work the longshoremen have performed. ILA I, 447 U.S. at 508-09, 100 S.Ct. at 2315-16. Similarly, CalCart’s protest that the effect of the Supplement is to put CalCart “out of business” and give the ILWU a “stranglehold” over the shipping industry is of no significance to the section 8(e) inquiry. Cf. id. at 507 n. 22, 100 S.Ct. at 2315 n. 22 (“effect of work preservation agreement on the employment opportunities of employees not represented by the union, no matter how severe, is of course irrelevant to the validity of the agreement____”). CalCart’s principal attack on the Board’s decision is directed at the Board’s reconstruction of the ILWU’s intent in entering into the M & M Agreement and the Supplement. As such, CalCart challenges the Board where perhaps it is strongest before the Court of Appeals; we must affirm the Board if there is substantial evidence to support the Board’s finding, NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 691, 71 S.Ct. 943, 952, 95 L.Ed. 1284 (1951), and we traditionally defer to the Board’s factual determination of intent, see Local Union 1395, IBEW v. NLRB, 797 F.2d 1027, 1030 (D.C.Cir.1986), where its expertise is clearly employed. The ILWU, CalCart argues, permanently “waived” any claim to container stuffing and unstuffing long before it signed the Supplement. CalCart finds this waiver in the M & M Agreement, which was signed, it will be recalled, in 1960 and extended in 1966. PMA is said to have then purchased from the ILWU all future reductions in longshore work caused by the introduction of new technology such as containers, leaving the ILWU no right to claim the functional equivalent of the eliminated work, for example, container stuffing. The Board rejected this argument, noting that even during the term of the M & M Agreement longshormen performed container stuffing when cargo was delivered to the docks break bulk. In any event, the Board held, the M & M Agreement was not intended to fix for all time the rights of the signatories to deal with the economic consequences of containerization. Rather, upon expiration of the M & M Agreement, the parties were free to reassess the impact of changing technology and adopt a new approach. We believe the Board’s interpretation of the M & M Agreement is amply supported by evidence. The record indicates that the term “container” does not even appear in the M & M Agreement, and all parties agree that the impact of containerization could not have been fully appreciated in either 1960 or 1966, which suggests the signatories did not intend the Agreement to be the final word on containers. Collective bargaining, moreover, is an ongoing process, and the Board was appropriately reluctant to find in the M & M Agreement an intention to forever freeze aspects of the parties’ relationships. Cf. Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708, 103 S.Ct. 1467, 1477, 75 L.Ed.2d 387 (1983) (a waiver of collective bargaining rights must be “clear and unmistakable”). Indeed, if a union’s acquiescence to the introduction of new technology was easily construed as a permanent abandonment of the union’s right to subsequently pursue a different approach, unions would be extremely reluctant to accept any technological innovations in the first place. Cf ILA I, 447 U.S. at 505-506, 100 S.Ct. at 2314. CalCart also claims that the Supplement impermissibly sought union objectives beyond protection of bargaining unit work — even assuming that stuffing and unstuffing could be considered bargaining unit work. The real beneficiaries of the Supplement, according to CalCart, were “terminal warehousemen” who had belonged to a separate ILWU bargaining unit. The Supplement, as the argument goes, actually created a new bargaining unit for those employees to work at container freight stations (with at least two new job classifications and somewhat different terms than in the master agreement) and therefore must be deemed to have had an objective beyond protection of the primary bargaining unit. To be sure, the Board acknowledged that “the record demonstrates that the predominant source of manpower sent to the newly created stations was nonregistered warehousemen, casuals, and members of other unions,” but the Board found that was due to a decline (presumably subsequent to the signing of the Supplement) in the registered long-shore workforce. 278 NLRB No. 20 at 9-10 n. 14. Since the work performed at container freight stations was identical to work performed at the dock, and longshoremen could be and were assigned by a central dispatch hall on any given day to work either under the Supplement (at a container freight station) or the master collective bargaining agreement (on the docks), the Board saw the union’s objective as protection of bargaining unit employees’ interests. And the slight difference between the terms of the two agreements was regarded by the Board as insignificant, especially since some container freight stations actually applied the terms of the master agreement (and not of the Supplement). We think in both respects the Board’s finding is easily supportable. That incidental benefits of the union’s effort to preserve maximum work opportunities for bargaining unit longshoremen went to others (including non-union members) does not derogate from the union’s objective, and the slight difference in the agreement covering container freight stations, under the circumstances, seems to us irrelevant. III. We think the more difficult question in this case arises out of PMA’s and the ILWU’s challenge to the Board’s adherence, after remand, to the view that the Supplement constitutes a violation of 8(e) insofar as it covers containers owned or leased by non-PMA members. The Board concluded that since PMA, the signatory to the Supplement, had no power to control disposition of the work (stuffing and unstuffing of non-PMA containers), the ILWU dispute, which the Supplement seeks to resolve, is with the non-PMA members, and PMA is a neutral in that dispute. We note that the Board’s analysis has an element of artificiality about it. We see no indication of a real dispute between non-PMA members and the ILWU; the former did not even appear before the Board. The Board simply assumed that because those steamship lines are not members of PMA, and typically contract directly with container freight stations to stuff or unstuff their own containers, PMA has no “right of control,” see ILA II, 105 S.Ct. at 3054; ILA I, 447 U.S. at 504, 100 S.Ct. at 2313; Pipefitters, 429 U.S. at 521, 97 S.Ct. at 900, over the assignment of that work. According to the Board, the Supplement therefore illegally forces PMA stevedoring companies and marine terminal operators to cease handling containers belonging to nonmembers of PMA and stuffed by non-ILWU labor. The record, however, does not clearly disclose as much of an operational difference between members and nonmembers of PMA as the Board’s opinion suggests. The PMA's Southern California area manager, John MacEvoy, testified in 1972 that PMA is controlled by a voting procedure based on the tonnage unloaded by PMA-member stevedoring firms from both member and non-member ships, and that at the time the original Supplement was negotiated the stevedoring firms may have acted as proxies casting votes on behalf of the nonmember steamship lines. J.A. 1476. He also stated that non-member steamship lines pay PMA (via the stevedoring firms) a tonnage assessment, which is then contributed to a fund set up under the M & M Agreement. J.A. 1477-78. Finally, MacEvoy testified that grievances by longshoremen working under PMA-ILWU collective bargaining agreements can be filed against non-member steamship lines. J.A. 1512-13. This last point, if true, would seem to indicate, contrary to a statement in the NLRB’s brief, that non-members of PMA are bound by at least some provisions of contracts negotiated between PMA and the ILWU. It may well be, then, that PMA does indeed have some control over non-PMA members’ assignment of work, or that those steamship companies in fact have some control over PMA itself, or both. In any event, consideration of the formal indicia of control here ought not end the Board’s section 8(e) inquiry. The Board must ultimately determine whether the relationship between PMA and the non-PMA steamship companies is such that either can be treated as neutral in a dispute the other has with the ILWU. See supra p. 8. We have on several occasions held that the interrelationship between employers can be so close that neither can be regarded as a “neutral” or secondary employer. See, e.g., Production Workers, Local 707 v. NLRB, 793 F.2d 323, 333 (D.C.Cir.1986); Carpet, Linoleum, Local 419 v. NLRB, 429 F.2d 747, 752 (D.C.Cir.1970); Local No. 24, IBT v. NLRB, 266 F.2d 675, 680 (D.C. Cir.1959). See also National Woodwork, 386 U.S. at 627, 87 S.Ct. at 1259 (citing cases holding section 8(b)(4) inapplicable “where the secondary employer against whom the union’s pressure is directed has entangled himself in the vortex of the primary dispute”). A signatory employer’s absence of control over the work sought may reveal that influencing that employer was not the object of the agreement, see ILA I, 447 U.S. at 504-05, 100 S.Ct. at 2313—14, but is clearly not the only evidence that can shed light on the relationship between the signatory employer and the one the agreement was intended to influence. Although the Board decides the weight to be assigned the absence of control, see Pipefitters, 429 U.S. at 524, 97 S.Ct. at 901, the Supreme Court also made clear in Pipefitters that the Board cannot ignore other evidence of the signatory employer’s neutrality vel non, quoting with approval this statement made by the Board in a previous case: 429 U.S. at 523 n. 11, 97 S.Ct. at 901 n. 11 (quoting George Koch Sons, Inc., 201 NLRB 59, 64 (1973)). The Board thus must consider the significance of evidence tending to suggest the signatory employer is not truly neutral. The [right of control] test as stated would seem to imply that the Board looked solely at the pressured employer’s “contract right to control” the work at issue ... to determine whether that pressure was primary or secondary. In fact, this is not now the Board’s approach nor was it ever. ... [0]ur analysis has not [been] nor will it ever be a mechanical one____ [I]f we find that the employer is not truly an “unoffending employer” who merits the Act’s protections, we shall find no violation in a union’s pressures such as occurred here, even though a purely mechanical or surface look at the case might present an appearance of a parallel situation. The Board’s opinion does not, in our view, adequately explain those elements in the record that permit the ILWU and PMA to credibly assert that the distinction between member and non-member steamship companies is more formal than real. Since we cannot affirm the Board’s determination of unfair labor practices on this record without a fuller explanation, we remand the case to the Board for that purpose. It is so ordered. . Shipping containers are large portable compartments for holding and transporting freight. A typical container measures 8 by 8 by 30 feet, holds ten tons of cargo, and is specially designed to rest on both a ship and a truck or railroad car. The task of loading cargo into a container is called “stuffing”; the task of emptying a container is called "unstuffing." . The Supplement does not cover "shippers’ load” containers, which are stuffed or unstuffed on the owner’s premises and contain only cargo belonging to that shipper or consignee. Shippers’ loads constitute approximately 85 percent of all containers. . Additional charges were filed after the original version of the Supplement was amended by a Memorandum of Understanding signed on February 10, 1972. . Today, some steamship lines belong to PMA (and thus are “included” in the bargaining unit) but some do not. Nothing in the record or briefs suggests whether the reason for this situation is historical or functional, and no party provided an explanation at oral argument. . Section 8(b)(4) of the National Labor Relations Act prohibits, inter alia, strikes, threats and other forms of coercion aimed, in part or in whole, at forcing an employer "to cease doing business with any other person.” 29 U.S.C. § 158(b)(4)(B) (1982). . CalCart also argues that stuffing and unstuffing containers cannot be the functional equivalent of the longshoremen’s traditional cargo handling work because the agreement contemplates that the stuffing/unstuffing will be performed at new container freight stations the construction of which will require large expenditures of capital. This contention was not raised before the Board, and therefore is not properly before this court. 29 U.S.C. § 160(e) (1982). . The Board’s 1974 decision was most explicit in this regard, holding that the ILWU bargained away only "make work” rights, such as a claim to perform unnecessary rehandling of cargo. 208 NLRB at 996. . The teamsters present a broader argument: that even if the longshoremen intended only temporarily to bargain away their claim to traditional unit work, any subsequent attempt to preserve that work was necessarily secondary. The teamsters suggest that once a claim to traditional work is temporarily waived, the work can never again be characterized as traditional. We find no support, however, for the proposition that all waivers of claims to traditional work are necessarily permanent. See ILA v. NLRB, 613 F.2d 890, 910 n. 178 (D.C.Cir.1979), aff’d, 447 U.S. 490, 100 S.Ct. 2305, 65 L.Ed.2d 289 (1980) (citing Meat & Highway Drivers v. NLRB, 335 F.2d 709, 714 (D.C.Cir.1964)). . In 1968, ILWU Local 13 began representing a bargaining unit composed of terminal ware-housemen. See NLRB v. ILWU, Local 13, 549 F.2d 1346, 1350 (9th Cir.1977). These terminal warehousemen, who were not longshoremen, stuffed and unstuffed containers at three PMA-member container freight stations. . CalCart’s final challenge to the Supplement focuses on the composition of PMA. CalCart argues that any agreement signed by PMA regarding terms of longshore employment is necessarily secondary because PMA membership includes steamship lines and steamship lines, unlike stevedoring firms and terminal operators, generally do not directly employ longshoremen. The teamsters present the exact opposite argument: that stevedoring firms and terminal operators are the neutrals because only steamship lines decide which container freight station (and thus which union) stuffs and unstuffs containers. Both arguments are at bottom a challenge to the bargaining unit determination made by the Board in 1938. These contentions, however, were rejected by the Board in its 1974 decision and were not reasserted before the Board on remand by any party. The issue therefore has not been properly preserved for our consideration. . PMA and the ILWU argue that the Board abused its discretion by failing to reopen the record — subsequent to its 1986 decision — in order to accept an affidavit which, it is said, sheds more light on the relationship between PMA members and non-members. Because of our disposition of the case, we do not decide this issue. It is up to the Board on remand to decide in the first instance whether it would be appropriate to take additional evidence on the member/non-member distinction. . We recognize that this issue is not unrelated to the definition of the bargaining unit. Question: Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_genapel2	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the 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. Norman C. GRAY, Jr., et al., Appellants, v. J. Shane CREAMER, Attorney General of the Commonwealth of Pennsylvania, et al. No. 71-1714. United States Court of Appeals, Third Circuit. Argued June 13, 1972. Decided Aug. 14, 1972. Ronald A. Berlin, Pittsburgh, Pa., for appellants. Frederick N. Frank, Deputy Atty. Gen., J. Shane Creamer, Atty. Gen., Pittsburgh, Pa., for appellees. Before SEITZ, Chief Judge, and VAN DUSEN and ADAMS, Circuit Judges. OPINION OF THE COURT VAN DUSEN, Circuit Judge. On May 13, 1971, plaintiffs Gray, Harris, Moore, Holden and Sowers, prisoners or former prisoners at the State Correctional Institution at Pittsburgh (the “Western Penitentiary”), brought the instant civil rights action on behalf of themselves and all others similarly situated to secure redress for various allegedly unconstitutional actions by the defendants. Jurisdiction was invoked pursuant to 28 U.S.C. §§ 1343, 2201 and 42 U.S.C. §§ 1983, 1985. Plaintiffs allege that they had been deprived of rights guaranteed to them by the First, Sixth, Eighth and Fourteenth Amendments of the United States Constitution and Article One, Section Seven, of the Constitution of the Commonwealth of Pennsylvania, P.S.; both injunctive and declaratory relief were requested. On May 25, 1971, at a “final pretrial hearing” the defendants presented a “Motion to Dismiss, Presenting Defenses of Failure to State a Claim and of Improperly Bringing a Class Action,” and by order of June 21, 1971, the district court granted this Motion. See Gray v. Creamer, 329 F.Supp. 418 (W.D.Pa.1971). For the reasons to be stated, we reverse and remand to the district court 'for further proceedings consistent withrthis opinion. I. We note at the outset that a motion to dismiss a complaint, including a prisoner’s civil rights complaint, for failure to state a claim upon which relief can be granted is subject to a very strict standard. In Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), the Court reviewed a district court grant of such a motion, which grant had been affirmed by the Court of Appeals on the ground that prison officials are vested with “wide discretion” in disciplinary matters. The Court reversed: “Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).” 404 U.S. at 520, 92 S.Ct. at 595. See 2A Moore’s Federal Practice ft 12.08 at 2271-74 (1968): “[A] complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.” (Emphasis in original.) Thus, the district court’s grant of defendants’ motion to dismiss the complaint for failure to state a claim upon which relief can be granted was proper only if, taking as true all the allegations in the complaint and drawing the inferences most favorable to the plaintiffs, it appeared beyond doubt that plaintiffs were entitled to no relief. See, e. g., Haines v. Kerner, supra; Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971); Rivers v. Royster, 360 F.2d 592 (4th Cir. 1966); cf. Long v. Parker, 390 F.2d 816, 821 (3d Cir. 1968). It is with this standard in mind that we turn to an examination of the facts alleged in the complaint. II. The instant suit apparently arises from the publication of a prison news letter called Vibrations and the reaction of the prison authorities to this news letter and to the prisoners connected with it. According to the complaint, Vibrations was established in December 1970 by a group of 12 prisoners, including plaintiffs Gray, Harris, Moore and Sowers, with the encouragement of the then-acting Director of Treatment at Western Penitentiary. This news letter was intended to inform both the general public and the administration of Western Penitentiary, and to this end it contained a wide variety of information, including poems, astrology forecasts, informational articles or essays, religious expressions, lists of prisoners having illnesses, letters to the editors, statements of editorial policy, and requests for supplies needed by the news letter. Vibrations was published weekly beginning on Christmas Eve 1970, and by April 1971 at least 12,000 copies had been mailed outside of Western Penitentiary and numerous copies circulated within the prison. Plaintiffs alleged that the publication of Vibrations was of great benefit to the prisoners themselves, the prison administration, and the citizens outside the prison. Plaintiffs further alleged that the Vibrations staff exercised stringent self-censorship with the result that no material was published that could be interpreted to be obscene, libelous, or dangerous to prison administration, discipline, and security. In April 1971, relationships between the Vibrations staff and the prison administration deteriorated markedly. On April 19, 1971, after several meetings between individual defendants and members of the Vibrations staff, including plaintiff Gray, the Vibrations office at the Western Penitentiary was padlocked by order of defendants, and certain materials found in the office were confiscated and. presumably destroyed. Since that time defendants have made it impossible for Vibrations to be published. Further, according to the complaint, beginning on April 19, 1971, the plaintiffs and members of the class they represent were transferred to other prisons, placed in punitive and administrative segregation, suspended from jobs they has held and subjected to physical and verbal abuse from guards and the confiscation of their personal belongings. Specifically plaintiffs alleged that on or after April 19, 1971, defendants caused certain prisoners, including plaintiffs Moore and Holden, to be placed in either punitive segregation or segregation at the Western Penitentiary, and that the prisoners so isolated were neither charged with a violation of prison regulations nor given a hearing. Further, it was alleged that during a two-week period subsequent to April 19, 1971, defendants caused at least ten prisoners, including plaintiffs Gray, Moore and Harris, to be transferred to other penal institutions in the state without being given a hearing nor charged with any violation of prison regulations prior to the transfers. Plaintiffs alleged that some of the prisoners so transferred, including plaintiffs Gray, Moore and Harris, were placed in punitive segregation in the institutions to which they were transferred without being charged with a violation of any penal regulation and without being granted a hearing. Plaintiffs also alleged that letters written to various named plaintiffs were never received by them and that some outgoing mail sent by prisoners was not forwarded by the prison officials, which actions were allegedly in violation of a directive issued by defendant Sielaff. It was further alleged that the defendants do not permit certain publications to be delivered to plaintiffs and the class they represent. Finally, plaintiffs alleged that a prison regulation and/or practice effective since April 19, 1971, has arbitrarily restricted the number of prisoners who. can lawfully congregate to an unreasonably small number. III. It remains true that “lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948). “Some deprivations are a necessary and expected result of being an inmate of a penal institution, which institution must provide for the custody, maintenance, discipline and, optimistically, rehabilitation of those who have violated the laws of the sovereign.” Jackson v. Godwin, 400 F.2d 529, 532 (5th Cir. 1968). Furthermore, the task of determining the rights and deprivations of state prisoners falls principally upon the prison authorities, whose judgment in the exercise of this important responsibility the federal courts will not ordinarily question. As this court has recently stated : “The task of striking the proper balance between these conflicting interests is generally within the competence of the prison authorities. Thus, the federal courts have been understandably reluctant to intervene in matters of state prison administration, recognizing that a wide latitude for judgment and discretion must be extended to prison officials.” Gittle-macker v. Prasse, 428 F.2d 1, 4 (3d Cir. 1970). The fact that the federal courts will normally defer to the judgment of the state prison authorities on matters relating to the treatment of prisoners is, however, not to say.that such prisoners are bereft of all constitutional rights or that the federal courts will refuse to intervene to protect those rights which the prisoner retains. “Acceptance of the fact that incarceration, because of inherent administrative problems, may necessitate the withdrawal of many rights and privileges does not preclude recognition by the courts of a duty to protect the prisoner from unlawful and onerous treatment of a nature that, of itself, adds punitive measures to those legally meted out by the court.” Jackson v. Godwin, supra, 400 F.2d at 532. The Supreme Court has recently summarized the federal courts’ duty in this area as follows: “Federal courts sit not to supervise prisons but to enforce the constitutional rights of all ‘persons’ which include prisoners. We are not unmindful that prison officials must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. But persons in prison, like other individuals, have the right to petition the Government for the redress of grievances which, of course, includes ‘access of prisoners to the courts for the purpose of presenting their complaints.’ ” Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (Order of March 20, 1972.) (per curiam). See, e. g., Owens v. Brierley, 452 F.2d 640, 642 (3d Cir. 1971). Thus, when a state prisoner makes specific allegations of unconstitutional treatment, the federal courts must become involved in the administration of the prison system to the limited extent of determining (1) whether the inmate is entitled under the federal Constitution to the particular right claimed — a determination which often involves “a process of weighing and balancing conflicting interests,” Gittlemacker v. Prasse, 428 F.2d at 4 — (2) if so, whether such right has been infringed in the case before it, and (3) if a constitutional right has been infringed, what remedy is appropriate. IV. In the instant case plaintiffs in their complaint asserted several constitutional rights which it was alleged the defendants had abridged. We find it sufficient for purposes of this appeal to discuss in detail only the claim that plaintiffs’ Fourteenth Amendment right to due process of law was abridged by the circumstances of their transfers from the general prison population to “segregation” or “punitive segregation.” It is, of course, clear beyond doubt that a state prison inmate continues to receive the protection of the due process clause of the Fourteenth Amendment,. See, e. g., Washington v. Lee, 263 F.Supp. 327, 331 (M.D. Ala.1966), aff’d per curiam, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1967): “ [I]t is well established that prisoners do not lose all their constitutional rights and that the Due Process and Equal Protection Clause of the Fourteenth Amendment follow them into prison and protect them there from unconstitutional action on the part of prison authorities carried out under color of state law.” See also Jackson v. Bishop, 404 F.2d 571, 576 (8th Cir. 1968) (Blackmun, Cir. J.). Plaintiffs alleged in their complaint that they and members of the class they represent were transferred into solitary confinement or “punitive segregation” without being either charged with a breach of prison regulations or given a hearing. The district court dismissed this charge in the complaint on the ground that “there is no constitutional right infringed by placing a state penal inmate in solitary confinement or in administrative segregation,” 329 F.Supp. at 420, suggesting that “the right to take such action is equivalent to the right to administer discipline, maintain safety, or security.” 329 F.Supp. at 421. The Government has argued in support of the district court’s dismissal of this count that “decisions concerning punitive segregation or transfer of state prisoners are wholly within the discretion of prison officials and are not a proper subject for judicial interference.” Brief for appellees at 16. We do not consider it appropriate, on review of the district court grant of a motion to dismiss the complaint for failure to state a claim upon which relief can be granted, to suggest what may be the precise requirements of the due process clause in this case,- since the determination of “what process is due” will necessarily depend upon facts to be developed in the district court on remand. See Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1515, 4 L.Ed.2d 1307 (1960): “[A]s a generalization, it can be said that due process embodies the differing rules of fair play, which through the years, have become associated with differing types of proceedings. Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden of that proceeding, are all considerations which must be taken into account.” But we do hold that the transfer of a prisoner from the general prison population to solitary confinement without either notice of the charges or a hearing does not, absent unusual circumstances not evident in the pleadings, meet minimal due process requirements. See Sostre v. McGinnis, 442 F.2d 178, 198 (2d Cir. 1971): “If substantial deprivations are to be visited upon a prisoner, it is wise that such action should at least be premised on facts rationally determined. This is not a concept without meaning. In most cases it would probably be difficult to find an inquiry minimally fair and rational unless the prisoner were confronted with the accusation, informed of the evidence against him, . and afforded a reasonable opportunity to explain his actions.” (Citations and footnote omitted.) This decision is consistent with a great number of federal court decisions indicating that the Fourteenth Amendment to the United States Constitution requires that certain safeguards accompany the imposition by state prison authorities of substantial punishment. See Sostre v. McGinnis, 442 F.2d 178, 198 (2d Cir. 1971); Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1970); Alverez v. Turner, 422 F.2d 214, 220 (10th Cir. 1970); Howard v. Smyth, 365 F.2d 428 (4th Cir. 1966); Krause v. Schmidt, 341 F. Supp. 1001 (W.D.Wis.1972); Landman v. Royster, 333 F.Supp. 621, 651-656 (E.D.Va.1971); Sinclair v. Henderson, 331 F.Supp. 1123 (E.D.La.1971), on hearing after remand, 435 F.2d 125 (5th Cir. 1970); Clutchette v. Procunier, 328 F.Supp. 767 (N.D.Cal.1971); Bundy v. Cannon, 328 F.Supp. 165 (D.Md.1971); Rhem v. McGrath, 326 F.Supp. 681 (S.D.N.Y.1971); Meola v. Fitzpatrick, 322 F.Supp. 878, 885-886 (D.Mass.1971); Wright v. McMann, 321 F.Supp. 127 (N.D.N.Y.1970), on hearing after remand, 387 F.2d 519 (2d Cir. 1967); Carothers v. Follette, 314 F.Supp. 1014 (E.D.N.Y.1970); Kritsky v. McGinnis, 313 F.Supp. 1247 (N.D.N.Y.1970); Cf. United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971). V. Plaintiffs’ complaint also contained allegations of the deprivation of other constitutional rights. Since this case is to be remanded to the district court for consideration on the merits, at which time the allegations in the complaint will be more fully developed, we make the following observations: 1. Plaintiffs alleged that their rights under the First and Fourteenth Amendments to the Constitution were violated by the actions of the defendants in unlawfully shutting down the news letter, Vibrations, by the transfer of prisoners to other penal institutions and/or to varying degrees of isolation, by unlawful physical and verbal harassment, and by the unlawful confiscation of various personal belongings bearing a significant relationship to constitutionally protected freedoms. We note that even though a state prisoner may have no constitutional right to distribute his materials within the prison, see Sostre v. McGinnis, supra, 442 F.2d at 190-191, 202, and n. 48, he does have a right to be free of discriminatory punishment inflicted solely because of his beliefs. As the Second Circuit observed in Sostre v. McGinnis, supra at 202-203: “To sanction such punishment, even though in the judgment of prison officials the writings were ‘inflammatory’ and ‘racist,’ as in the instant case, would permit prison authorities to manipulate and crush thoughts under the guise of regulation. The intimidating threat of future similar punishment would chill a wide range of prisoner expression, not limited to that expression which Follette might in fact deem dangerous enough to discipline. The danger of undetected discriminatory punishment of ideas is particularly acute in the absence of statutory standards to guide the exercise of Follette’s discretion.” See Howard v. Smyth, 365 F.2d 428, 430-431 (4th Cir. 1966); Sewell v. Pegelow, 291 F.2d 196 (4th Cir. 1961). Whether this constitutional right of plaintiffs has been violated by defendants is, of course, a matter, among others, for the district court’s consideration on remand. 2. Plaintiffs further alleged that defendants have deprived them of rights guaranteed by the First and Fourteenth Amendments by unlawfully censoring and interfering with their mail. It is abundantly clear that the state prison authorities do not possess unfettered discretion to censor or restrict an inmate’s mail in the name of preserving order, safety and discipline. See, e. g., Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941); Owens v. Brierley, 452 F.2d 640 (3d Cir. 1971); Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); Sostre v. McGinnis, 442 F.2d 178, 200-201 (2d Cir. 1971), and cases cited; Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1970); Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968); Long v. Parker, 390 F.2d 816, 822 (3d Cir. 1968). The scope of the constitutional rights to which the plaintiffs were entitled in this area and the extent to which such rights may have been abridged by defendants are matters to be considered in the first instance by the district court on the basis of the facts which are developed on these issues. 3. Plaintiffs also alleged that they were subjected by defendants to cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments, by their confinement in punitive or administrative segregation, in which they were allegedly “not permitted out of their cells for any period of time, . . . deprived of personal belongings, visits, and other rights afforded the general prison population.” Complaint, f[ 39. We note that although many federal courts have declared that commitment to solitary confinement does not, in itself, violate the Eighth Amendment, certain particular practices in such confinement have been found to constitute cruel and unusual punishment. See, e. g., Holt v. Sarver, 442 F.2d 304 (8th Cir. 1971), aff’g 309 F.Supp. 362 (E.D.Ark.1970) (Arkansas State Penitentiary System involving a trustee system, confinement of large numbers of men in open barracks, bad conditions in isolation cells, and the absence of a meaningful rehabilitation program held cruel and unusual punishment); Wright v. McMann, 387 F.2d 519 (2d Cir. 1967) (confinement in dirty cell encrusted with human excretion without clothing or rudimentary hygienic implements under threat of beatings held cruel and unusual punishment); Sinclair v. Henderson, 331 F.Supp. 1123 (E.D.La.1971), after hearing on remand, 435 F.2d 125 (5th Cir. 1970) (confinement of prisoners in cell for all but 15 minutes per day without opportunity for regular outdoor exercise constitutes cruel and unusual punishment); Knuckles v. Prasse, 302 F.Supp. 1036 (E.D.Pa.1969), aff’d, 435 F.2d 1255 (3d Cir. 1970) (confinement of two prisoners for 2% days to cell with no windows or artificial light, a single bed, no clothing or toilet articles, and a malfunctioning toilet held cruel and unusual punishment); cf. Landman v. Peyton, 370 F.2d 135, 141 (4th Cir. 1966) (“Where the lack of effective supervisory procedures exposes men to the capricious imposition of added punishment, due process and Eighth Amendment questions inevitably arise.”) We agree with the district court that the plaintiffs’ allegations on this issue do not clearly present the extreme type of situation required to establish an Eighth Amendment violation. Since this case is to be remanded to the district court for further proceedings, we see no good reason to prevent the plaintiffs from presenting evidence on this issue if they choose to do so. 4. Finally, plaintiffs alleged that their rights to due process guaranteed by the Sixth and Fourteenth Amendments were violated by their transfer to other prisons without hearings or notice of the charges against them. Based on the allegations of the complaint, we find no merit to this argument, since we agree with the district court that a state prisoner has no constitutional right to remain in any particular prison. See Hanvey v. Pinto, 441 F.2d 1154 (3d Cir. 1971); Bundy v. Cannon, 328 F.Supp. 165, 173 (D.Md.1971). The district court order of June 21, 1971, will be reversed and the case remanded for proceedings consistent with this opinion. Chief Judge SEITZ concurs in the result because he believes that the important legal issues here presented should be decided on the basis of a fully developed record. . At the pretrial hearing held on May 25, 1971, the defendants conceded some of the allegations in the plaintiffs’ complaint, as, for example, the allegations contained in Paragraphs 39 and 41 of the complaint that certain prisoners, including plaintiffs Moore and Holden, were transferred to punitive segregation and segregation without being charged with violations of prison regulations or granted a hearing. The district court ignored such stipulations in its opinion and disposed of the case on the basis of the allegations of the complaint. See N.T. 76. . In Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967), this court upheld the dismissal of a prisoner’s civil rights complaint on the ground, inter alia, that the complaint as filed was “broad and conclusory” and failed “to state facts in support of its conclusions.” See 379 F.2d at 215. Although we have observed that actions under the civil rights statutes are to be “liberally construed by reviewing courts,” United States ex rel. Birnbaum v. Dolan, 452 F.2d 1078, 1079 (3d Cir. 1971), we have continued to affirm the dismissal of actions which contain only vague and conclusory allegations. See, e. g., Marcedes v. Barrett, 453 F.2d 391 (3d Cir. 1971); United States ex rel. Birnbaum v. Dolan, 452 F.2d 1078 (3d Cir. 1971); Fletcher v. Hook, 446 F.2d 14 (3d Cir. 1971). There is no reason to believe that this procedure is inconsistent with the Court’s holding in Haines v. Kerner, supra, since in that case the prisoner made specific allegations of unconstitutional conduct. As will appear below, however, since at least some of the allegations made by the plaintiffs are specific, the procedure involved in Negrich is inapplicable to the instant case. . Plaintiffs alleged that Vibrations was entirely supported by donations from outside sources, and that the defendants frustrated their efforts to expand by refusing to permit the use of certain donated equipment (typewriters, cameras, etc.) and withholding financial contributions and mail regarding such contributions. . The complaint alleged that while in punitive segregation prisoners are not permitted out of their cells for any period of time, and are deprived of personal belongings, visits, and other rights afforded the general prison population.” Complaint, ¶ 39. . See also Goldberg v. Kelly, 397 U.S. 254, 262-263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1969). . This is not to say, of course that this notice or hearing must in all cases precede the transfer to solitary confinement; in some cases, as, for example, during a prison riot, notice and hearing must be delayed a reasonable period of time. . The Supreme Court has recently held that there is no distinction between personal liberties and property rights with respect to jurisdiction under 28 U.S.C. § 1343(3), explicitly rejecting the Second Circuit’s approach in Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), which rested upon Mr. Justice Stone’s concurring opinion in Hague v. C.I.O., 307 U.S. 496, 531, 59 S.Ct. 954, 83 L.Ed. 1423. See Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972). . See, e. g., Sostre v. McGinnis, supra, 442 F.2d at 192 and cases cited; Bundy v. Cannon, 328 F.Supp. 165, 171 (D.Md.1971), and cases cited. 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_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. Vern U. AYRES, Appellant, v. UNITED STATES of America, Appellee. No. 10853. Circuit Court of Appeals, Ninth Circuit. Nov. 10, 1944. Morris Lavine, of Los Angeles, Cal., for appellant. Charles H. Carr, U. S. Atty., and Ray H. Kinnison, Asst. U. S. Atty., both of Los Angeles, Cal., for appellee. Before WILBUR, GARRECHT, and MATHEWS, Circuit Judges. PER CURIAM. Upon consideration of the stipulation of counsel for respective parties for dismissal of appeal herein and good cause therefor appearing, it is ordered that the appeal herein be dismissed, that a judgment be filed and entered accordingly and that the mandate of this court in this cause issue forthwith. 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_usc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. UNITED STATES ex rel. JACKSON et al. v. BRADY, Warden. No. 5034. Circuit Court of Appeals, Fourth Circuit. Feb. 9, 1943. Writ of Certiorari Denied May 3, 1943. See 63 S.Ct. 1029, 87 L.Ed. -. C. Arthur Eby, of Baltimore, Md. (William Curran, of Baltimore, Md., on the brief), for appellants. D. Heyward Hamilton, Jr., Asst. Atty. Gen., and William C. Walsh, Atty. Gen., of Maryland (J. Bernard Wells, State’s Atty., and Douglas N. Sharretts and Joseph G. Finnerty, Asst. State’s Attys., all of Baltimore, Md., on the brief), for appellee. Before PARKER, SOPER, and DOBIE, Circuit Judges. SOPER, Circuit Judge. The appellants, who are Negroes, complain of the dismissal by the District Court of their petition for habeas corpus wherein they sought release from a sentence of death imposed by the Criminal Court of Baltimore after a conviction by a jury of murder in the first degree committed in the course of an attempted robbery. The judgment was affirmed on appeal by the Court of Appeals of Maryland. Jackson v. State, 26 A.2d 815. The point now raised is that the defendants in the Criminal Court were deprived of their constitutional rights at the trial in that there was racial discrimination in the selection of the Grand Jury which indicted, and the Petit Jury which tried and convicted them. The defendants were without means to employ counsel, and the Criminal Court therefore appointed three able and experienced lawyers, one for each of the defendants, whose earnest efforts on their clients’ behalf were indicated by their voluntary payment, at their own expense, of the cost of a large record in the Court of Appeals. The defendants did not ask for a severance, but were tried jointly before a jury. At the beginning of the trial the jurymen on the regular panel in the Criminal Court were sworn on their voir dire and examined by counsel, and as the result of peremptory challenges and challenges for cause the whole panel was exhausted. Additional jurymen were then successively brought from three other courts in Baltimore, and similarly examined and challenged, and at the end of the examination eight jurors only had been chosen. More jurymen were then brought in, and thereupon counsel for the defendants, pointing out that of fifty-two jurymen submitted to them only two were colored, challenged the array on the ground that the jury had not been selected in accordance with the Constitution of the United States or the Constitution and laws of Maryland. No evidence or argument was offered to sustain the charge and it was overruled by the court. This action formed the basis of one of the objections considered on appeal, but it was overruled by the Court of Appeals on the ground that prejudice could not be assumed from the presence of only two Negroes on a list of fifty-two jurymen, but must be proved by substantial evidence tending to show that Negroes were intentionally excluded in the formation of the jury panel. No objection was made at any time in the trial or in the appellate court as to the mode of selection of the Grand Jury. The opinion of the Court of Appeals was filed on June 17, 1942, and later the Governor of Maryland appointed October 2, 1942, as the date of execution of sentence. The petition for habeas corpus was filed in the District Court on October 1, 1942 after application for a writ to a State judge had been refused on the same day. From the denial of the writ of habeas corpus by a State judge no appeal lies to the Court of Appeals under the law of Maryland. Betts v. Brady, 316 U.S. 455, 460, 62 S.Ct. 1252, 86 L.Ed. 1595. There is no charge that Negroes are discriminated against for jury service by the Constitution or laws of the State; the complaint relates to the method by which the laws have been executed. The record on appeal contains a full description of the mode of selection of jurors in Baltimore, accompanied by the testimony of the Chief Judge and an Associate Judge of the Supreme Bench of Baltimore City, the court of superior jurisdiction in the city, and by the testimony of the clerical official under whose supervision the work is done. Detailed findings of fact and conclusions of law, accompanied by an exhaustive opinion, were filed by the District Judge. 47 F. Supp. 362. Summarizing the findings of fact it appears that in accordance with the statute law of the State a list of seven hundred and fifty persons qualified for jury service is selected by the judges of the Supreme Bench in the following manner: A jury clerk obtains the names of prospective jurymen from city and telephone directories and other reliable sources and summons them to appear for examination as to their qualifications before a member of the Supreme Bench called the Jury Judge. He either accepts or. rejects them after they have filled in the answers to a written questionnaire and he has personally examined them. A service file is made up of the names of the persons accepted, from which the clerk takes from time to time as needed seven hundred and fifty names and submits them to the Bench, and from them the names of four or five hundred persons, as needed, are drawn by chance from a wheel for service as petit jurors in the courts of the city. In addition, the members of the Bench at each term of court personally select twenty-three persons believed to be of good character and of more than average intelligence to serve on the Grand Jury.. In 1942 the service file was made up of the names of 18,901 white and 653 colored persons, so that the latter comprised approximately 3.34 per cent of the whole. Over a period of years the number of colored jurors has varied from one to four per cent of the whole. At the time of the trial of the case in the Criminal Court there were seven jury panels of twenty-five each in the courts of the city, containing eight Negroes out of a total of one hundred and seventy-five men. The Grand Jury has always contained one colored juror. It is not suggested that any one-engaged in the selection of jurors in Baltimore is actuated by a conscious personal bias against Negroes; but it is pointed out that the colored population, according - to the 1940 census, was approximately nineteen per cent of the whole population, and it is contended that racial discrimination must be presumed from the contrast between this figure and the small percentage of Negroes actually in jury service. Other facts found by the District Judge must be considered in weighing this argument. The names of jurors in the service file are kept on cards which are classified by months selected by the jurors themselves as most convenient for service. For convenience white cards are used for white jurors, brown cards for colored jurors, pink cards to indicate military service, and blue cards to indicate disability. When the jury clerk draws seven hundred and fifty names from the service file for submission to the Supreme Bench, the list always contains the name of twenty-five colored persons, in other words, approximately the same percentage of Negroes as is found in the whole service list. Consequently there is no numerical discrimination against Negroes at this point, and discrimination, if it exists, must be found in the method by which the names are selected and placed on the service list. It appears from the record in the pending case that in selecting names from directories and from other sources, the jury clerk takes pains to select names of persons who live in that large section of Baltimore City occupied exclusively by colored persons and also makes use of lists of members of colored clubs and associations. The evidence, however, fails to show how many of the persons notified to appear for examination by the Jury Judge are Negroes or what percentage of persons rejected by the Judge are of the colored race. There is evidence, however, from which it may be inferred that the percentage of rejections for normal causes is greater amongst Negroes than amongst whites. The District Judge found that of the persons in Baltimore City twenty-five years of age who have completed seven or eight years of grade school, sixty per cent are whites and twenty per cent colored, and of those who have, completed high school or some part thereof twenty-two per cent are white and eight per cent are colored. It has been the policy of the Supreme Bench to exclude from service persons on relief, and in recent years a very large proportion of Negroes in comparison to the white population has been on relief. The percentage of convictions for crime of Negroes is higher than that of whites. Moreover, the Jury Judges have found it difficult to secure the service of qualified Negroes, many of whom present excuses based on professional or industrial occupations. Two judges of the Supreme Bench testified that, unless it is necessary, it is not the custom in Baltimore to compel jury service from professional men or from small business men or industrial workers, white or colored, whose service would entail financial sacrifice. The judges and the jury clerk also testified without contradiction that there has been no systematic or arbitrary exclusion of Negroes because of their race but, on the contrary, a positive effort, especially by the jury judges, to obtain the service of qualified Negro jurors. The District Judge found from the evidence the ultimate fact “that there has been no intentional and systematic exclusion of Negroes from juries in Baltimore City; and no discrimination against them in practice on account of race and color in the selection of jurors by the Supreme Bench of Baltimore City”; and he reached the conclusion of law that the petition for the writ of habeas corpus should be dismissed (1) on the substantial ground that racial discrimination against Negroes for jury service had not been shown, and (2) on the procedural ground that the petitioners, when represented by competent counsel in the trial of their case in the State court, did not interpose any objection to the constitution of the Grand Jury; and did not submit any evidence in support of their charge of racial discrimination against Negroes in the composition of the Petit Juries and therefore must be held to have waived that objection. The law to be applied in this case is not in dispute. It has long been established that under the prohibition contained in the Fourteenth Amendment of the Federal Constitution a State may not deprive a colored citizen of the right to which he is entitled “that, in the selection of jurors to pass upon his life, liberty or property, there shall be no exclusion of his race, and no discrimination against them because of their color”. State of Virginia v. Rives, 100 U.S. 313, 322, 25 L.Ed. 667; Neal v. Delaware, 103 U.S. 370, 394, 26 L.Ed. 567. This rule has been frequently applied and was recently given effect in Hill v. Texas, 316 U.S. 400, 406, 62 S.Ct. 1159, 1162, 86 L.Ed. 1559, where the duty of the federal courts in such a situation was outlined in the following terms: “A prisoner whose conviction is reversed by this Court need not go free if he is in fact guilty, for Texas may indict and try him again by the procedure which conforms to constitutional requirements. But no state is at liberty to impose upon one charged with crime a discrimination in its trial procedure which the Constitution, and an Act of Congress passed pursuant to the Constitution, alike forbid. Nor is this Court at liberty to grant or withhold the benefits of equal protection, which the Constitution commands for all, merely as we may deem the defendant innocent or guilty. Tumey v. [State of] Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445, 71 L.Ed. 749, 50 A.L.R. 1243. It is the state’s function, not ours, to assess the evidence against a defendant. But it is our duty as well as the state’s to see to it that throughout the procedure for bringing him to justice he shall enjoy, the protection which the Constitution guarantees. Where, as in this case, timely objection has laid bare a discrimination in the selection of grand jurors, the conviction cannot stand, because the Constitution prohibits the procedure by which it was obtained. Equal protection of the laws is something more than an abstract right. It is a command which the state must respect, the benefits of which every person may demand. Not the least merit of our constitutional system is that its safeguards extend to all— the least deserving as well as the most virtuous.” A salutary warning on this subject was given to the courts on September 8, 1942, in the report to the Conference of the Chief Justice with the Senior Circuit Judges of the United States by a Committee on Selection of Jurors, composed of District Judges of the United States. The report states (pp. 18, 20): “In each district where there is a large Negro or other minority racial group the problem of selecting a suitable number of qualified representatives of that race is one which should receive the careful consideration of the clerk and jury commissioner. The Constitution, together with statutes and decisions, make it evident that anything that amounts to a conscious and deliberate exclusion from jury lists of representatives of any class of persons solely on account of race, color, economic, or social status is improper and may be unlawful. The selection of qualified persons to give adequate representation to certain groups may in some districts present difficulties. Nevertheless, no jury panel can be regarded as secure from challenge unless there has been an earnest effort on the part of the court, the clerk, and the jury commissioner to assure that there is no discrimination against these groups. ****** “Since the ‘Scottsboro’ cases, it has been the practice in several courts to include in the jury boxes the names of a few Negroes to avoid the violations of the Fourteenth Amendment. The validity of this method may be questioned in the light of the Supreme Court’s language in the case of Smith v. State of Texas, 1940, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84”. In the last mentioned case, which considered the composition of the Grand Jury challenged by one convicted of crime, the number of Negroes called for service and actually permitted to serve for a long time had been so scanty as to compel the conclusion that Negroes had been arbitrarily and systematically excluded because of their race. In the pending case, considering the number of Negro jurymen in service in Baltimore during a long period of years in comparison with the substantial size of the Negro population, and taking this fact separate and apart from the surrounding circumstances, one might be disposed to infer that an intentional and systematic effort had been made to cut down the number of Negro jurymen in such a fashion as to create the superficial appearance of obeying the constitutional mandates while actually ignoring them. But a careful examination of all the facts in the record before us demonstrates that such a deduction is not warranted and supports the findings of fact and conclusions of law of the District Judge. Except as to the Grand Jury, whose organization was not challenged in this case, no discrimination can be found, even when attention is confined to comparative percentages alone, in the number of Negroes drawn for the juries in Baltimore from the established service list. Discrimination, if any exists, must occur in the selection of persons notified by the Jury Clerk to appear in court for examination by the Jury Judge. But such discrimination was not charged by any one at the hearing on the petition for the writ, and no one inquired into the relative numbers of white and color.ed persons subjected to the preliminary inquiry. On the other hand, we have the uncontradicted testimony of the Jury Clerk of special efforts on his part to bring in persons from the residential centers of the Negro population, and the uncontradicted evidence of the judges of the difficulties encountered in securing the attendance of colored persons for jury service; and all of this testimony is supported by statistics which bring out the disqualifying handicaps under which a disproportionate part of the colored race is still laboring. The ultimate fact found by the District Judge was indicated by the evidence before him; and the petitioners did not meet the burden which rests upon a prisoner who seeks release on habeas corpus of proving by a preponderance of evidence the facts which he claims entitle him to a discharge. See, Martin v. State of Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497; Walker v. Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 85 L.Ed. 830. The second ground upon which the decision below was based was also well taken, that is, the defendants in the Criminal Court made no effort to sustain, and, therefore, waived the charge of racial discrimination after they had presented it. As we have seen, the defendants made no objection whatever in the Criminal Court to the constitution of the Grand Jury, and confined their objection to the Petit Jury to an oral challenge of the array on the ground that the jurors had not been selected in accordance with the Constitution, because only two of the fifty-two jurors submitted for membership on the trial panel were- colored. No further offer of proof and no argument to support the challenge were made. The bare recital of these facts demonstrates that nothing was shown at the trial in the Criminal Court to justify a ruling that the jury was disqualified on constitutional grounds. The only fact shown was insufficient to indicate racial discrimination in defiance of the Constitution; for it is well established that a colored citizen charged with crime cannot claim as a constitutional right that his race be represented on the trial jury, and the mere absence of Negroes from the jury does not prove that they were excluded because of their race. See, State of Virginia v. Rives, 100 U.S. 313, 322, 25 L.Ed. 667; Neal v. Delaware, 103 U.S. 370, 394, 26 L.Ed. 567; Martin v. State of Texas, 200 U.S. 316, 320, 26 S.Ct. 338, 50 L.Ed. 497. The Criminal Court was, therefore, given nothing more than the bare charge of denial of constitutional right without proof or offer of proof to sustain it. In this state of affairs, as the Court of Appeals of Maryland held, the trial court was clearly right in overruling the objection. In Martin v. State of Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497, the court overruled a motion to quash the indictment based on the ground that Negroes had been excluded from the Grand Jury because of their race in a county in which one-fourth of the persons qualified to serve were Negroes. The accused offered no evidence whatever to prove racial discrimination. The Supreme Court said (200 U.S. at page 320, 26 S.Ct. at page 339, 50 L.Ed. 497): “A different conclusion in this case would mean that, in a criminal prosecution of a Negro for crime, an allegation of discrimination against the African race because of their race could be established by simply proving that no one of that race was on the grand jury that returned the indictment, or on the petit jury that tried the accused; whereas, a mixed jury, some of which shall be of the same race with the accused, cannot be demanded, as of right, in any case; nor is a jury of that character guaranteed by the 14th Amendment. What an accused is entitled to demand, under the Constitution of the United States, is that, in organizing the grand jury as well as in the impaneling of the petit jury, there shall be no exclusion of his race, and no discrimination against them, because of their race or color. [State of] Virginia v. Rives, 100 U.S. 313, 323, 25 L.Ed. 667, 671; In re Wood, 140 U.S. 278, 285, 11 S.Ct. 738, 35 L.Ed. 505, 508. Whether such discrimination was practised in this case could have been manifested only by proof overcoming the denial on the part of the state of the facts set out in the written motions to quash. The absence of any such proof from the record in this case is fatal to the charge of the accused that his rights under the 14th Amendment were violated.”' See also Glasser v. United States, 315 U.S. 60, 87, 62 S.Ct. 457, 86 L.Ed. 680. The facts presented to the District Court on hearing on habeas corpus were not hidden or unknown at the time of the trial in the Criminal Court. They were as easily accessible when the charge of racial discrimination was formally made during the selection of the jury as they were later; and the failure of experienced counsel; for reasons of their own, to offer the necessary proof tó support the charge was as deliberate and effective a waiver as if the point had not been made at all. That a defendant, especially when represented by counsel, may make a competent and intelligent waiver of a constitutional right binding upon him is well established by repeated decisions. So it has been held, not only with respect to the right of a jury selected without racial discrimination but also as to the right to be represented by counsel, the right to a jury trial and the right not to testify as a witness upon the trial of a criminal charge. Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263; Adams v. United States, 63 S.Ct. 236, 87 L.Ed. -; Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461; Cundiff v. Nicholson, 4 Cir., 107 F.2d 162; Howard v. United States, 58 App.D.C. 179, 26 F.2d 551; Bracey v. Zerbst, 10 Cir., 93 F.2d 8; Carruthers v. Read, 8 Cir., 102 F.2d 933, certiorari denied 307 U.S. 643, 59 S.Ct. 1047, 83 L.Ed. 1523. There is especial justification for applying the doctrine of waiver when a defendant raises a constitutional point effectively for the first time on petition for a writ of habeas corpus in the federal court after he has been convicted of crime in the State court and the conviction has been upheld by the highest court of the State. It has been decided many times that it is only, in exceptional cases, differing in character from the pending case, that the Federal courts will interfere by habeas corpus with the final administration of criminal justice by the courts of the State; and since it is the duty of every State, and one not likely to be ignored, to provide corrective judicial process for persons convicted of crime without due process of law, the federal courts may not be asked to issue the writ of habeas corpus on behalf of a person held under a State commitment until the remedies afforded by the State courts have been exhausted. This procedure is designed to eliminate conflicts between the State and Federal courts, and especially to. avoid the unseemly situation which occurs when a lower Federal court is asked to set aside the deliberate judgment or order of the highest court of a State. Surely, such a request should not be granted on the petition of a defendant in the State court who has had full opportunity to raise his objection during his trial in that tribunal but has failed to do so. So it was held in Ex parte Spencer, 228 U.S. 652, 33 S.Ct. 709, 57 L.Ed. 1010, with regard to a charge raised for the first time in the Federal court, that the State court had imposed an illegal sentence upon the petitioner. The court said (228 U.S. at pages 660, 661, 33 S.Ct. at page 711, 57 L.Ed. 1010) : “It is true the rule has been announced in cases where habeas corpus was applied for in advance of final decision in the state courts; but the principle of the rule applies as well after decision. The rule would be useless except to enforce a temporary delay, if it did not compel a review of the question in the state court, and, in the event of an adverse decision, the prosecution of error from this court. In other words, if it gave freedom to omit such defenses in the state court and subsequent review by this court, and yet the accused have an absolute right to habeas corpus. And this case shows the necessity of the application of the rule. We have pointed out the opportunity petitioners had to object to their sentences when they were imposed, and successively to attack their validity in the appellate tribunals of the state and in this court. And this satisfies justice. More than this, that for which petitioners contend, will make unstable and uncertain the administration of the criminal laws of the states. If defenses may be omitted at trials, rights of review omitted, and yet availed of through habeas corpus, the whole course of criminal justice will be deranged, and, it may be, defeated.” In a number of cases it has been held that if the point upon which the petition for the writ of habeas corpus is based has been raised and decided adversely in the State courts, the decision, except in extraordinary cases, is res adjudicata and may not be reviewed on habeas corpus in the Federal court. Andrews v. Swartz, 156 U.S. 272, 15 S.Ct. 389, 39 L.Ed. 422; Morton v. Henderson, 5 Cir., 123 F.2d 48; Hawk v. Olsen, 8 Cir., 130 F.2d 910. But we need not go so far in the pending case. It is sufficient to say that the objection of racial discrimination was raised so inadequately in the Criminal Court of Baltimore by the petitioners here, that in effect it was not raised at all and was therefore waived; and it may be added that in any case when the denial of a constitutional right by the courts of a State is charged, the desirable procedure, whenever it is possible, is to apply to the Supreme Court of the United States rather than to seek relief in a District Court of the United States. There is no reason to doubt that the point now raised by the petitioners for the writ would have received sympathetic consideration, if it had been supported by proof, by the Court of Appeals of Maryland in view of its decisions in Lee v. State, 163 Md. 56, 161 A. 284, and 164 Md. 550, 165 A. 614, in which the constitutional right of a Negro, accused of crime, to a jury selected without discrimination against his race was protected and enforced. Since the petitioners failed to present any proof to support their charge during their trial in the State court, they must be held to have waived the privilege. It follows that whether the complaint made in the petition for habeas corpus be considered on its merits or from a procedural standpoint, the decision of the District Court must be affirmed Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_district	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". Ernest King BRAMBLETT, Appellant, v. UNITED STATES of America, Appellee. No. 12813. United States Court of Appeals District of Columbia Circuit. Argued Dec. 2, 1955. Decided Jan. 19, 1956. Writ of Certiorari Denied April 9, 1956. See 76 S.Ct. 658. Bazelon, Circuit Judge, dissented. Mr. Edward Bennett Williams, Washington, D. C., with whom Mr. Murdaugh Stuart Madden and Miss Agnes A. Neill, Washington, D. C., were on the brief, for appellant. Mr. Lewis Carroll, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., and William Hitz and William F. Becker, Asst. U. S. Attys., were on the brief, for appellee. Before WILBUR K. MILLER, BAZELON and FAHY, Circuit Judges. FAHY, Circuit Judge. Appellant, whom we shall hereinafter refer to as defendant, was convicted under each of seven counts of an indictment charging violations of 18 U.S.C. § 1001 (1952), 62 Stat. 749 (1948) On appeal hi? principal contention is that the prosecution was barred by the three-year statute of limitations then applicable. See 18 U.S.C. § 3282 (1952), 62 Stat. 828 (1948). , The earlier history of the case is set forth in considerable part in United States, v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594. The District Court, 120 F.Supp. 857, had granted a motion in arrest of judgment on the theory that the Disbursing Office of the House of Representatives was not a “department or agency of the United States” within the meaning of 18 U.S.C. § 1001. See note 1 supra. The Supreme Court disagreed and reversed, after which the District Court sentenced the defendant and the present appeal was taken to this court. Insofar as now material the indictment charges that defendant did knowingly and wilfully falsify by a scheme a material fact. The indictment then explains how this was done. Certain allegations are common to each count. These are that to accomplish the scheme defendant on or about August 27, 1949, as a member of Congress, presented to the Disbursing Office of the House of Representatives in Washington a Clerk-Hire Allowance .form dated August 27, J.949, to take effect September 1, 1949, in which he designated Margaret M. Swanson to be a plerk to him in the disfeharge of his official and representative duties, thereby entitling her to receive compensation at the basic rate of $4700 per annum; and that the defendant’s purpose in the scheme was to convert to his own use the compensation authorized by this -form to be paid to Margaret M.” Swanson. The first count alleges in addition that on or about June 30, 1950, in a matter within the jurisdiction of a department and agency of the United States, namely, the aforementioned Dis-r bursing Office of the House of Representatives, the defendant did knowingly and wilfully falsify by a scheme a material fact by continuing in full force and effect up to and including June 30,. 1950, the designation contained in said document. The material fact falsified by the scheme is alleged in the first count to be the representation that Margaret M. Swanson during June, 1950, was a clerk to defendant in the discharge of his official duties and entitled to receive compensation as such. Each of the six remaining counts contains similar allegations, except that a different month is given for the continuing in force and effect of the designation, and for the material fact falsified by the scheme. These months are July, August, September, October, November and December of 1950. The proof is not in dispute. In substance it is that the designation was made and remained throughout the times alleged, and that. Margaret M. Swanson received for each of the specified months the payments called for under the designation. The checks representing the payments were deposited in a joint account of herself and her husband. Periodically the husband turned over to defendant the amount thus paid to Margaret M. Swanson. Defendant paid the husband an amount equal to the increased income tax of the Swansons. ■ The contention with respect to the statute of limitations is that the crime was complete on or about August 27,1949, when the designation was made, and that this was more than three years prior to the indictment, which was returned on June 17, 1953. . Defendant argues that the designation, assuming it to be false, was a completed falsification when made and was the only falsification, because, it is said, there is no allegation or evidence of any subsequent representation by the defendant as to Mrs. Swanson’s status. From this it is argued that when defendant was convicted of falsifying her status he was of necessity convicted only of falsely representing in 1949, more than three years prior to the indictment, that she was his clerk. We are unable to accept this view of the case. As we understand it the indictment does not merely charge the making of a false statement. To be sure, the statute would cover such a charge. See note 1 supra. But this indictment specifies a violation of a different portion of the statute. It alleges that defendant did “falsify by a scheme a material fact” by wilfully and knowingly continuing the incorrect designation in effect into periods less than three years before the date of the indictment. The material fact falsified by the scheme is said by the indictment to be defendant’s representation that Mrs. Swanson was his clerk at the times stated in the several counts and that she was then entitled to receive compensation. The factual allegations are sustained by the undisputed proof to which we have referred. A continuing crime of falsification by a scheme is thus charged and proved, and the period of limitations did not begin to run until the scheme ended. This did not occur when the designation was filed on August 27, 1949. We may assume that some crime defined in the statute was then completed, and that the period of limitations began to run against that crime. But not so of the particular crime charged in this indictment. We have here a situation comparable to some conspiracies in the sense that the scheme continued over a period of time, as conspiracies often do. Of course there is no conspiracy charged; only one person is indicted. But we see no greater legal obstacle to an indictment based on the continuing scheme of one person than on the continuing conspiracy of more than one. Defendant’s conduct in lodging the designation with the Disbursing Office, thus falsifying a material fact, and in leaving it on file, thereby continuing the falsification in order repeat-' edly to partake of the fruits of the' scheme, fairly falls within the terms of' section 1001. ' Defendant urges that the Government’s theory that an offense was committed each of the seven months specified in the seven counts leads to an untenable postulate, namely, that a separate offense, was committed each moment after the. form was filed. In the end, however, this, contention does not help defendant, for the alternative to this postulate is not, as defendant would have it, that a single crime was completed when the form was filed on or about August 27, 1949, but that defendant’s course of conduct constituted a single offense which continued into December, 1950. The portion of the statute upon which the indictment rests we think does reveal a Congressional intent to reach a pattern of conduct rather than to penalize a series of acts which manifest the pattern. In construing a criminal statute doubts should be resolved in favor of a construction that avoids subjecting an offender to multiple convictions by reason of a single unified pattern of behavior even though the behavior continues over a period of time. See United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260. See, also, In re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658 ; United States v. Kissel, 218 U.S. 601, 607-608, 31 S.Ct. 124, 54 L.Ed. 1168; State v. Licari, 132 Conn. 220, 43 A.2d 450; Kirchheimer, “The Act, the Offense and Double Jeopardy,” 58 Yale L.J. 513, 540, and cases there cited. Absolving defendant of multiple offenses, however, does not absolve him entirely. We construe the statute, as applied to the facts of this case, to support an indictment of defendant for a single offense which continued until the scheme ended in December, 1950. And the fact that the indictment instead charges seven offenses does not require reversal. The Supreme Court dealt with a similar problem in Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23. There the indictment in each of several counts charged a separate crime of conspiracy on the theory that the different criminal objects of a single agreement- gave rise to separate crimes. The Court concluded that only one conspiracy existed notwithstanding its various objects and that therefore convictions on each of the several counts were erroneous. But the Court did not set aside the action of the jury or grant a new trial. It simply remanded for resentencing, so that the punishment could be reduced to come within that allowable for conviction of a single conspiracy. The theory of the case seems to be that several verdicts of guilty on counts charging as separate crimes conduct which in fact comprised only one crime, amounted to a verdict of guilty of that one crime. This theory is equally applicable here. But since the sentence, unlike that in Braverman, is well within the maximum which could have been imposed for a single violation of the statute, and since all the counts deal with a closely interrelated factual situation, no remand for resentencing is required. We have examined each of the cases relied upon by counsel for defendant. They add cogency to his contention with respect to the statute of limitations. Nevertheless we believe none is controlling and each is distinguishable. For example, in Marzani v. United States, 83 U.S.App.D.C. 78, 168 F.2d 133, affirmed 335 U.S. 895, 69 S.Ct. 299, 93 L.Ed. 431, the indictment charged the making of false representations, not a falsifying by a continuing scheme. When the falsifications were made the crime charged was complete. In Bridges v. United States, 346 U.S. 209, 73 S.Ct. 1055, 97 L.Ed. 1557, the indictment was for a conspiracy to make, and the making of, a false statement in a naturalization proceeding more than three years prior to the indictment. It may be said that the United States relied upon the statement within the three-year period by continuously extending to Bridges the benefits of citizenship; but in the case at bar it is not simply that reliance was placed upon the falsification within the limitations period but that the scheme itself continued into that period. Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196, merely held that a conspiracy continues only until the final overt act in pursuance of it. Here the conduct of defendant which constituted the scheme did not terminate until the scheme itself ended. The cases of United States v. Gottfried, 2 Cir., 165 F.2d 360, certiorari denied 333 U.S. 860, 68 S.Ct. 738, 92 L.Ed. 1139; United States v. Anzalone, 3 Cir., 197 F.2d 714, and Butzman v. United States, 6 Cir., 205 F.2d 343, certiorari denied 346 U.S. 828, 74 S.Ct. 50, 98 L.Ed. 353, may stand for the proposition that a criminal act which by legislative definition is transitory in nature cannot be extended over a period of time simply because its effects continue, but they are irrelevant to this case where the statute allows the criminal act to be a continuing offense quite apart from the duration of its effects. And we think United States v. Irvine, 98 U.S. 450, 25 L.Ed. 193, which, with Marzani, is most heavily relied upon by defendant, falls into the same general class of cases. There the Court merely construed a statute condemning the wrongful withholding of a pension as not intended to support an indictment for continuing to withhold it. Here, however, the statutory terms are different. The Irvine decision is not inconsistent with our construing the statute before us to include within its terms a continuing scheme operative over a period of time. That such conduct can be punished consistently with the beneficent policy of statutes of limitations we think is indicated by such cases as Hyde v. United States, 225 U.S. 347, 367-370, 32 S.Ct. 793, 56 L.Ed. 1114; United States v. Kissel, 218 U.S. 601, 607-608, 31 S.Ct. 124, 54 L.Ed. 1168, and Brown v. Elliott, 225 U.S. 392, 400-401, 32 S.Ct. 812, 56 L.Ed. 1136, all referred to in Pendergast v. United States, 317 U.S. 412, 419-420, 63 S.Ct. 268, 87 L.Ed. 368, where, in dicta, a continuous fraudulent scheme is discussed as constituting a crime. See, also, Brayerman v. United States, supra. We have considered also defendant’s only other contention, namely, that the designation of Margaret M. Swanson “to be” his clerk, “to succeed” another, and “to receive” the stated compensation, said designation “to take effect” September 1,1949, were representations concerning future facts, and therefore not the proper basis for a charge of falsification. In view of the use made of the form after it was filed we think this contention is not meritorious. Affirmed. . This statute reads as follows: “Whoever, in any matter within the jurisdicUnited States knowingly and willfully faltion of any department or agency of the sifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be. fined not more than $10,000 ór imprisoned not more than five years, or both.” . Appellant was given a suspended sentence of from four to. twelve months, fined $5,000, and placed on probation for one year. . At the direction of the District Court appellant was acquitted on certain counts not before us. . Assuming that we have a discretion to reverse and remand for the limited purpose of permitting the District Court to resentence, cf. Nelms v. United States, 94 U.S.App.D.C. 267, 215 F.2d 678, we would not be disposed to do so in the absence of a request from the defendant. If so advised he may by motion or petition -make such a request prior to issuance of our mandate. 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_appfiduc	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 "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. UNITED STATES of America, Plaintiff-Appellee, v. Charles D. STAPLETON, Defendant-Appellant. No. 73-2304. United States Court of Appeals, Ninth Circuit. April 11, 1974. Rehearing Denied July 11, 1974. Ralph C. Larsen, Gardena, Cal., for defendant-appellant. William D. Keller, U. S. Atty., Eric A. Nobles, Jerry L. Newton, Asst. U. S. Attys., for plaintiff-appellee. Before DUNIWAY, CARTER and WRIGHT, Circuit Judges. OPINION DUNIWAY, Circuit Judge: This case presents an unusual question under the double jeopardy clause of the Fifth Amendment. In 1969, Staple-ton was convicted under six counts of an indictment charging violations of 18 U. S.C. §§ 371, 472 and 473. He appealed, and we remanded the case. Our order read as follows: The government concedes because of government error that the defendant is entitled to a new trial. The cause is remanded to the district court with authority to entertain a motion from defendant for a new trial, which, in the circumstances here, should be granted. When he appeared before the district court, however, Stapleton did not move for a new trial. The following colloquy occurred: “THE COURT: It is a rather strange order from the Ninth Circuit. In the light of this order it seems to say that the defendant is entitled to a new trial and the Court will order a new trial and I will set it down for trial setting. MR. LEE [attorney for Stapleton]: Your Honor, if I may just for clarification, let the record show that this is on the Court’s own motion and over the objection of the defendant. THE COURT: Yes.” This appeal is from a conviction at the new trial that had thus been ordered by the trial judge. We are forced to agree that our order is “rather strange.” It does not reverse or vacate the judgment. It might be construed to mean that the district court need not have granted a new trial if the defendant did not move for a new trial. In that case, Stapleton would have still stood convicted under the first judgment. That, however, is not the result that he was after when he appealed. We are confident that, when he refused to move for a new trial, he was not seeking to preserve the original judgment. He was simply making a record to preserve a double jeopardy claim when the court granted the new trial. We think that the proper construction of our order is that we wanted a new trial granted, and, instead of ordering one ourselves, instructed the trial court to do so. There is no doubt that jeopardy attached when Stapleton was first tried. However, a defendant who appeals and is found entitled to a new trial has waived his right to claim double jeopardy at the second trial. See, e. g., United States v. Ball, 1896, 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300; United States v. Jorn, 1971, 400 U.S. 470, 484, 91 S.Ct. 547, 27 L.Ed.2d 543. It does not matter that the decision is based on the government’s confession of error, rather than on independent finding of error by the appellate court. Stroud v. United States, 1919, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103. There, a conviction was reversed on appeal, on the basis of a confession of error. The Court said: [T]he conviction and sentence upon the former trials were reversed upon writs of error sued out by the plaintiff in error. The only thing the appellate court could do was to award a new trial on finding error in the proceeding, thus the plaintiff in error himself invoked the action of the court which resulted in a further trial. In such cases he is not placed in second jeopardy within the meaning of the Constitution. Id. at 18, 40 S.Ct. at 51. Our order was made in response to Stapleton’s appeal from his first conviction. In spite of the form of our order, the only way to eliminate the error confessed by the government was to grant a new trial. That is the gist of what we said, although we did not order a new trial. The principle of Stroud is equally applicable here. There was no double jeopardy at the second trial. Stapleton’s second claim of error is without merit. The trial was by the court. Seven exhibits had been produced by the government and marked for identification. There was extensive testimony about each of them, but they were not formally offered or received in evidence. Nonetheless, both parties, and the judge, acted as if they were in evidence, and the judge relied upon them in finding Stapleton guilty. When the parties rested, defense counsel raised no question about the exhibits not being in evidence. Thus the exhibits had in fact been admitted. After the judge made his decision, and at the time when Stapleton appeared for sentencing, the government asked the judge to reopen the case to permit the government to move that the exhibits be admitted. The court granted the motion and formally admitted the exhibits. This was, in substance, a mere correction of the record to show what actually happened. Sta-pleton was not prejudiced. Affirmed. . A different problem would be presented if Stapleton had not appealed and the trial judge had ordered a new trial on his own motion, over Stapleton’s objection. See cases cited in 8A J. Moore, Federal Practice H 33.02 [1] at 33-4-33-5 (1973) and 2 C. Wright, Federal Practice and Procedure § 551 at 483 (1969). The Supreme Court has not ruled on this question. See United States v. Smith (1947) 331 U.S. 469, 474-475, 67 S.Ct. 1330, 91 L.Ed. 1610. We express no opinion on it. Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
songer_respond2_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 second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". Ruth KAMERMAN, Executrix of the Estate of Norman Kamerman, Plaintiff-Appellant, v. Saul STEINBERG, Reliance Group Holdings, Inc., Reliance Group, Inc., Reliance Financial Services Corp., Reliance Insurance Company, and Walt Disney Productions, Inc., Defendants-Appellees. No. 1021, Docket 89-7054. United States Court of Appeals, Second Circuit. Argued April 17, 1989. Decided Dec. 6, 1989. Irving Malchman, New York City (Kaufman, Malchman, Kaufmann & Kirby, New York City, of counsel), for plaintiff-appellant. Lewis A. Kaplan, New York City (Paul, Weiss, Rif kind, Wharton & Garrison, Blair C. Fensterstoek, Reliance Group Holdings, Inc., New York City, of counsel), for defendants-appellees. Before VAN GRAAFEILAND, ALTIMARI and MAHONEY, Circuit Judges. MAHONEY, Circuit Judge: Plaintiff-appellant Ruth Kamerman (“Kamerman”), executrix of the estate of Norman Kamerman, the original plaintiff, alleges that defendant-appellee Saul Stein-berg (“Steinberg”), in concert with defendants-appellees Reliance Group Holdings, Inc. (“RGH”), Reliance Group Inc. (“RG”), Reliance Financial Services Corp. (“RFS”) and Reliance Insurance Company (“RIC”) (collectively “Reliance”), companies in which Steinberg holds a controlling interest, “greenmailed” defendant-appellee Walt Disney Productions, Inc. (“Disney”), a company of which Kamerman is a shareholder, by purchasing a large block of Disney stock and then, following the threat of a hostile tender offer, selling that stock to Disney at a substantial premium over market. This appeal, arising from a consolidated action below, is taken from a judgment of the United States District Court for the Southern District of New York, Constance Baker Motley, Judge, which dismissed Kamerman’s (1) derivative claim brought on behalf of Disney seeking rescission and related injunctive relief on the basis that Reliance filed materially false Schedule 13D forms which failed to disclose its intention to greenmail Disney, in violation of sections 10(b) and 13(d) of the Securities Exchange Act of 1934 (the “Act”), 15 U.S.C. § 78j(b) (1982) and 15 U.S.C.A. § 78m(d) (West 1981 & Supp.1989), and Rules 10b-5 and 13d-101 promulgated thereunder, 17 C.F.R. §§ 240.10b-5, 240.-13d-101 (1988); (2) derivative and individual claim for injunctive relief requiring Reliance to correct the Schedule 13D filings made for each purchase of Disney stock to state that the basic and primary purpose of the purchases was to greenmail Disney; and (3) derivative state claim for rescission and related injunctive relief for duress and coercion in connection with Disney’s purchase of its common stock from Reliance. The district court dismissed Kamerman’s derivative securities fraud claims after finding that Disney was not deceived by the Schedule 13D filings. The district court dismissed as moot Kamerman’s claim demanding that Reliance amend its Schedule 13D filings, since Reliance had already sold all of its shares of Disney stock. Finally, the district court dismissed Kamer-man’s state law claim for rescission based upon duress and coercion because Reliance’s alleged threat to make a tender offer involved only a legal corporate action. We affirm. BACKGROUND A. The Transactions. Reliance began investing in Disney’s common stock in the spring of 1984. A Schedule 13D was filed with the Securities and Exchange Commission (“SEC”) on March 29, 1984 in accordance with section 13(d) of the Act, 15 U.S.C.A. § 78m(d) (West 1981 & Supp.1989), announcing that Reliance had acquired 2,162,644 shares (6.3%) of Disney’s common stock. As required, Reliance disclosed its purpose in purchasing the shares, stating the following: The Securities listed in Item 5 herein were purchased for investment as part of the general investment portfolios of the Purchasers listed therein. Subject to availability and price and subject to applicable laws and regulations, the Purchasers may increase their holdings but also reserve the right to dispose of all or a portion of such Securities on terms and at prices determined by them. While the Purchasers have no present intention of participating in the formulation, determination or direction of the basic business decisions of the Issuer, the Purchasers reserve the right at any time to cease being passive investors if in their judgment such action becomes necessary or desirable to protect or enhance the value of their investment in the Issuer. In the event that the Purchasers cease being passive investors, a Notification and Report Form under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 will have to be filed, and the applicable waiting period expire, before additional purchases of voting securities of the issuer may be made by the Purchasers. Reliance increased its investment in Disney over the next several weeks. The increases were reflected in appropriate amendments to the original Schedule 13D. Amendment No. 1 dated April 2, 1984 disclosed that Reliance had increased its holding to 2,507,708 shares (7.3%) of Disney’s common stock. Amendment No. 2 dated April 10, 1984 disclosed a total accumulation of 2,852,933 shares (8.3%). Amendment No. 3 dated April 12, 1984 showed that Reliance had brought its total to 3,198,233 shares (9.3%). None of these amendments reflected a change in the purpose of the transaction from that which was asserted in the original Schedule 13D. On April 25, 1984, however, Reliance filed a fourth amendment to the Schedule 13D indicating no new acquisitions of stock, but revealing that a Notification and Report Form was being filed pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 with respect to the acquisition of up to 5,467,000 additional shares of Disney common stock. Such an acquisition, if consummated, would have raised Reliance’s share of Disney common stock to approximately twenty-five percent. Amendment No. 5 to the Schedule 13D, dated May 2, 1984, disclosed that Reliance had purchased one million shares of Disney stock in a single block trade, thus bringing Reliance’s total investment to 4,198,233 shares (12.2%) of Disney’s stock. This amendment did not indicate any change in the purpose of the transaction from that which was previously stated. On May 17, 1984, Disney announced that it was acquiring a Florida real estate company, the Arvida Corporation (“Arvida”), in exchange for between 2,649,007 and 3,809,-524 shares of Disney common stock. Reliance thereupon filed Amendment No. 6 to its Schedule 13D, dated May 25, 1984, which stated: In light of the proposed Arvida purchase, and recent public statements of the Issuer, the Purchasers have concluded that in order to protect the value of their investment in the Issuer they cannot continue to be merely passive investors, trusting that the Issuer’s management and Board will act to serve and protect the best interests of all shareholders. While no determination as to a specific course of action has yet been made, the Purchasers are considering obtaining control of the Issuer through one or more of the following: (i) a tender or exchange offer or a merger or other corporate reorganization ..., (ii) acquiring additional shares [of Disney common stock] in brokerage or private transactions, or (iii) a proxy solicitation to replace the Issuer’s incumbent Board of Directors. The Purchasers have been notified by the Federal Trade Commission that the waiting period under the Hart-Scott-Ro-dino Antitrust Improvements Act of 1976 has been terminated. Consequently, the Purchasers may acquire up to 49.9% of the outstanding shares of the Issuer without any additional notice or waiting period under such Act. The seventh amendment to Reliance’s Schedule 13D, dated May 28, 1984, stated the following: The Purchasers have determined to seek removal of the Issuer’s Board of Directors and expect, following the filing with the Securities and Exchange Commission of proxy materials under the Securities Exchange Act of 1934, to solicit consents of the Issuer’s shareholders for such purpose.... The Purchasers have also determined to seek to enjoin the Issuer’s Board of Directors from causing the Issuer to purchase or otherwise acquire Arvida Corporation. ... On June 6, 1984, Disney agreed to acquire Gibson Greetings, Inc., a greeting card company, in exchange for between 4,485,021 and 6,210,029 shares of Disney common stock. Reliance then filed its eighth amendment to the Schedule 13D, dated June 8, 1984, which stated: The Purchasers have determined to seek control of the Issuer by acquiring at least 49% (including shares already owned) of the Securities outstanding. Subject to completion of documentation for the financing, a cash tender offer (the “Tender Offer”) will be made for 49% of the Securities outstanding by MM Acquisition Corp., a subsidiary of RGH formed for such purpose. Following the Tender Offer, the Purchasers will seek to effect a merger or other business combination (the “Merger”) between MM Acquisition Corp. and the Issuer. The Purchasers anticipate that shareholders of the Issuer would receive cash and/or securities in the Merger valued at the same price per share as paid in the Tender Offer. The Purchasers still expect to solicit consents of the Issuer’s shareholders for the removal of the Issuer’s Board of Directors. The same day, Reliance advised Disney by letter of Reliance’s intention to initiate a cash tender offer for forty-nine percent of Disney’s common stock at $67.50 per share, to be increased to $72.50 per share in cash and securities for all of Disney’s outstanding shares if Disney agreed to endorse the tender offer, terminate the proposed acquisition of Gibson Greetings, Inc., and eschew further such corporate transactions until the tender offer was completed. Negotiations ensued over the weekend of June 8-10, 1984 with respect to a repurchase by Disney of the Disney common stock owned by Reliance. Reliance and Disney, as well as three other parties engaged with Reliance in its tender offer, then entered into a letter agreement dated June 11, 1984 (the “Buyback Agreement”) providing, inter alia, for (1) the payment to Reliance of $70.83 per share for its holdings of Disney common stock; (2) the further payment of twenty-eight million dollars to Reliance in reimbursement of “expenses incurred in connection with its actual and contemplated purchases” of Disney common stock; (3) the termination of certain litigation previously initiated against Disney by Reliance; and (4) a commitment by Reliance not to acquire Disney stock or otherwise seek to control or influence Disney for ten years. Kamerman alleges that this transaction resulted in a profit to Reliance of approximately sixty million dollars (including reimbursement of expenses). The $70.83 per share purchase price substantially exceeded the market price of Disney common stock on June 11, 1984. Reliance then filed a final amendment to its Schedule 13D, dated June 13, 1984, which transmitted the Buyback Agreement as an enclosure and stated that: On June 11, 1984, the Purchasers sold all 4,198,333 shares of the Security beneficially owned by them to the Issuer for $70.83 per share in a private transaction. As a result, Reliance Financial ceased to be the beneficial owner of more than 5% of the Securities outstanding and does not beneficially own any shares of the Security. B. Legal Proceedings. This lawsuit was then filed in the United States District Court for the Southern District of New York, and was consolidated for all purposes with three class actions (including one initiated by Norman Kamerman) which challenged the same Disney-Reliance transaction by order entered August 27, 1984. See Kamerman v. Steinberg, 113 F.R.D. 511, 513 n. 1 (S.D.N.Y.1986). By order dated November 12, 1987, the district court granted summary judgment to Reliance dismissing Kamerman’s state law claim of coercion and duress. In a subsequent opinion filed March 3, 1988, the district court explained that “[tjender offers are perfectly legitimate corporate maneuvers, and ‘it is not duress to threaten to take action which is legally permissible.’ ” Kamerman v. Steinberg, 681 F.Supp. 206, 215 (S.D.N.Y.1988) (quoting Hammelburger v. Foursome Inn Corp., 54 N.Y.2d 580, 593 n. 4, 431 N.E.2d 278, 285 n. 4, 446 N.Y.S.2d 917, 924 n. 4 (1981)). In a later unpublished order and opinion, the district court granted Reliance’s motion for summary judgment dismissing the federal derivative claims, holding: Plaintiffs [sic] cannot bring the federal securities claims on Disney’s behalf unless the company itself was victimized through some misrepresentation by Defendants in connection with the buy-back of Steinberg’s Disney stock.... ... Viewed this way, it would be silly to say that Steinberg concealed his plan to resell his shares to Disney at a premium since that is exactly what happened. Kamerman v. Steinberg, 123 F.R.D. 66, 68-69 (S.D.N.Y.1988). With respect to the claim for corrective disclosures, the district court ruled, in a later unpublished opinion, that: The sale by Steinberg of all his Disney holdings back to Disney moots out any question of the propriety of granting an injunction requiring him to correct the 13D filings related to the purchase and sale of that Disney stock. See Trane Company v. O’Conner [sic] Securities, 718 F.2d 26 (2d Cir.1983). Kamerman v. Steinberg, No. 84 Civ. 4440, slip op. at 23, 1988 WL 140743 (S.D.N.Y. Dec. 20, 1988). An “Order of Dismissal and Final Judgment” was then entered dismissing the claim for corrective disclosure, and further providing: 2. The complaint in this action is dismissed in its entirety on the merits, with prejudice and without costs; and 3. The Clerk of the Court is directed to enter forthwith final judgment dismissing the complaint in its entirety on the merits, with prejudice and without costs. Kamerman v. Steinberg, 84 Civ. 4550 (S.D.N.Y. Dec. 19, 1988). Apparently, no subsequent final judgment was entered by the clerk of the district court. Kamerman filed a timely notice of appeal “from an order and final judgment of the Court dated December 19, 1988, granting defendants’ motion for summary judgment and dismissing the complaint, and from each and every part thereof.” DISCUSSION A. Jurisdiction of the Appeal. Before turning to the merits, we examine first our jurisdiction to hear this appeal. In this action, the district court dismissed the complaint in its entirety on the merits, and directed the entry of a final judgment to that effect. Under normal circumstances, this final decision would be immediately appealable pursuant to 28 U.S.C. § 1291 (1982). As indicated earlier, however, this case previously was consolidated with several class actions arising out of the same alleged greenmail of Disney. At the time of this appeal, these class actions were still pending before the district court. During oral argument of this appeal, we requested that the litigants file letter briefs concerning the appealability of this action in light of Hageman v. City Investing Co., 851 F.2d 69 (2d Cir.1988), where an appeal was dismissed for lack of appellate jurisdiction, in the absence of a certification pursuant to Fed.R.Civ.P. 54(b), because there remained pending in the district court an action with which the case on appeal was consolidated. In Hageman, a discharged employee filed two separate pro se actions against his employer, the Home Insurance Company (“HIC”), in federal court. In the first action, Hageman alleged a violation of the Age Discrimination in Employment Act. Approximately ten months later, he filed a second action against HIC and several other defendants alleging, inter alia, a violation of the Employee Retirement Income Security Act (“ERISA”). These two actions were subsequently consolidated by the district court. The district court thereafter granted defendants’ motions for dismissal and/or summary judgment with respect to all of plaintiffs claims except the ERISA violation, which remained to be triéd. The district court did not direct entry of final judgment with respect to any of the claims that were dismissed, and no Fed.R.Civ.P. 54(b) certification was requested. Nonetheless, Hageman filed a notice of appeal. 851 F.2d at 70. On appeal, we examined the question “whether, in a consolidated action, a judgment that does not dispose of all claims is a final decision within the purview of section 1291 absent certification under Fed.R.Civ.P. 54(b).” Id. at 71. This question had not been previously considered by this circuit, but six other circuits had addressed the question, two answering the question in the affirmative, two in the negative, and two adopting a case-by-case approach. See id. After assessing these varying positions, we concluded that: the best way to weigh these competing benefits of an absolute rule and a more flexible approach is to hold that when there is a judgment in a consolidated ease that does not dispose of all claims which have been consolidated, there is a strong presumption that the judgment is not appealable absent Rule 54(b) certification. In highly unusual circumstances, a litigant may be able to overcome this presumption and convince us that we should consider the merits of the appeal immediately, rather than waiting for a final judgment. Id. In the instant appeal, Kamerman now contends that no “highly unusual circumstances” are presented to overcome the “strong presumption” against appealability, and that no Rule 54(b) certification can be implied in view of this court’s “insist[ence] that the District Court’s Rule 54(b) determination be made in the words of the Rule.” See, e.g., Davis v. National Mortgage Corp., 320 F.2d 90, 91 (2d Cir.1963) (no rule 54(b) certification found despite express direction by district court for entry of judgment). Reliance argues that because (1) the case on appeal is the only one of the consolidated cases that presents derivative claims; (2) the judgment on appeal decides all such claims in favor of all defendants; and (3) the district court clearly intended final judgment to be entered with respect to those claims, this case presents highly unusual circumstances of the type excepted from the strong presumption of nonappeal-ability mandated by Hageman. As to the third factor, Reliance points particularly to the following language in the district court’s unpublished opinion dated December 20, 1988: Since our decision disposes of the final remaining claim in the Kamerman derivative suit, this Court grants summary judgment on the derivative complaint in full and will enter final judgment for the Defendants on all claims contained in 84 Civ. 4550. An order to that effect will accompany this opinion. Kamerman v. Steinberg, 84 Civ. 4440, slip op. at 3 (S.D.N.Y. Dec. 20, 1988). We agree with Reliance's argument, conclude that we have jurisdiction of this appeal, and proceed to the merits. B. The Section 13(d) Claim. Kamerman’s complaint alleges that “[t]he Schedule 13Ds, and various amendments thereto, filed with the SEC by defendants ... falsely and misleadingly omitted the material fact that it was the basic and primary purpose of defendants to sell their Disney stock back to Disney at a substantial premium above the abnormally high market prices at which Disney stock was trading” as a result of Reliance’s purchases of Disney stock. Section 13(d) requires any person acquiring more than five percent of specified classes of equity securities to send to the issuer thereof and the exchanges on which the security is traded, and file with the SEC, a Schedule 13D as prescribed by 17 C.F.R. § 240.13d-101 (1988). These schedules elicit, among other information, the filing person’s purpose in acquiring the security, and are “intended to alert investors to potential changes in corporate control so that they could properly evaluate the company in which they had invested or were investing.” GAF Corp. v. Milstein, 453 F.2d 709, 720 (2d Cir.1971), cert. denied, 406 U.S. 910, 92 S.Ct. 1610, 31 L.Ed.2d 821 (1972). One complaining of a false or misleading statement in a Schedule 13D may seek damages only under Section 18(a) of the Act, 15 U.S.C. § 78r(a) (1982). Sanders v. Thrall Car Mfg. Co., 582 F.Supp. 945, 960 (S.D.N.Y.1983), aff'd, 730 F.2d 910 (2d Cir.1984) (per curiam) (adopting district court opinion). Section 18(a) provides in pertinent part: Any person who shall make or cause to be made any statement in any ... document filed pursuant to this chapter or any rule or regulation thereunder ..., which statement was at the time and in the light of the circumstances under which it was made false or misleading with respect to any material fact, shall be liable to any person (not knowing that such statement was false or misleading) who, in reliance upon such statement, shall have purchased or sold a security at a price which was affected by such statement, for damages caused by such reliance, unless the person sued shall prove that he acted in good faith and had no knowledge that such statement was false or misleading. 15 U.S.C. § 78r(a) (1982). Since Kamerman sues derivatively on behalf of Disney, she stands in Disney’s shoes. Accordingly, in order to prevail on her section 18(a) claim, she must establish that Disney’s purchase of its stock from Reliance was made in reliance upon false or misleading statements in Reliance’s Schedule 13D filings. In the language of her own brief, however, Kamerman “does not claim that Disney was deceived by the false 13Ds.” Accordingly, this claim was properly dismissed. C. The Rule 10b-5 Claim. Kamerman also makes a derivative claim under section 10(b) of the Act and Rule 10b-5 promulgated thereunder. Section 10(b) forbids the use of “any manipulative or deceptive device or contrivance in contravention of” pertinent rules and regulations promulgated by the SEC. 15 U.S.C. § 78j(b) (1982). Rule 10b-5 provides: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (a) To employ any device, scheme, or artifice to defraud, (b) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. 17 C.F.R. § 240.10b-5 (1988). Kamerman’s 10b-5 derivative claim alleges that the assertedly false statements of purpose in Reliance’s Schedule 13D filings constituted violations of Rule 10b-5. In order to recover upon such a claim, however, a plaintiff must have purchased or sold stock in reliance upon the alleged misrepresentation by the defendant. See, e.g., Wilson v. Comtech Telecommunications Corp., 648 F.2d 88, 92-94 (2d Cir.1981). As with the Section 13(d) claim, Kamerman concedes that Disney was not deceived, a fact that would appear to doom her Rule 10b-5 claim. She contends, however, that she has stated a good Rule 10b-5 claim under the authority of Goldberg v. Meridor, 567 F.2d 209 (2d Cir.1977), cert. denied, 434 U.S. 1069, 98 S.Ct. 1249, 55 L.Ed.2d 771 (1978). Specifically, according to Kamerman, “Goldberg establishes that, where the shareholders are deceived so that they do not act to enjoin a securities transaction harmful to their corporation, Rule 10b-5 is violated.” In Goldberg, self-interested directors of a subsidiary cooperated in the subsidiary’s acquisition, for stock, of the assets and liabilities of its parent in a transaction in which it was alleged that the parent’s financial condition had been dramatically misrepresented. See 567 F.2d at 212 n. 1. We have since construed Goldberg as establishing that “where the remedy of an injunction is needed (and is available under state law) to prevent irreparable injury to the company from willful misconduct of a self-serving nature, disclosure of facts necessary to make other statements not misleading is required where the misleading statements will lull shareholders into forgoing the injunctive remedy.” Field v. Trump, 850 F.2d 938, 948 (2d Cir.), cert. denied, - U.S. -, 109 S.Ct. 1122, 103 L.Ed.2d 185 (1988). We deem this rule to have no application here, where the alleged misrepresentations were made by Reliance, not Disney, and the facts alleged by Kam-erman simply fail to meet the Goldberg requirements as glossed in Field v. Trump. Accordingly, Kamerman’s derivative section 10(b) claim fails because Disney was not deceived when it bought its stock from Reliance. D. The Claim for Corrective Disclosure. Kamerman’s complaint also requests that an injunction be granted requiring Reliance to amend its 13D filings to reflect that its “basic and primary purpose in purchasing Disney’s stock was to sell the stock back to Disney for a premium above market price.” We agree with the district court that in view of Reliance’s sale to Disney of Reliance’s holdings of Disney stock, our decision in Trane Co. v. O’Connor Securities, 718 F.2d 26 (2d Cir.1983), precludes the injunctive relief which Kamerman seeks. E. Derivative State Law Claim for Duress and Coercion. Kamerman seeks to have the Buyback Agreement rescinded on grounds of duress and coercion. New York law, which governs the question, establishes the following elements of economic duress: (1) a threat, (2) which was unlawfully made, and (3) caused involuntary acceptance of contract terms, (4) because the circumstances permitted no other alternative. Gulf & W. Corp. v. Craftique Prods., Inc., 523 F.Supp. 603, 610 (S.D.N.Y.1981). Here, Kamerman asserts that Reliance improperly threatened a tender offer. As the district court correctly concluded, however, “it is not duress to threaten to take action which is legally permissible.” Hammelburger v. Foursome Inn Corp., 54 N.Y.2d 580, 593 n. 4, 431 N.E.2d 278, 285 n. 4, 446 N.Y.S.2d 917, 924 n. 4 (1981). Tender offers are legal corporate actions. Accordingly, this claim also fails. F. Sanctions. Reliance seeks sanctions against Kam-merman for a frivolous appeal pursuant to Fed.R.App.P. 38 and 28 U.S.C. § 1912 (1982). Although we decide this appeal adversely to Kamerman, we do not regard it as so lacking in merit as to warrant sanctions. Cf. Paulson v. United States, 758 F.2d 61, 62 (2d Cir.1985) (per curiam) (appellant’s position “entirely without merit”); In re Hartford Textile Corp., 659 F.2d 299, 303 (2d Cir.1981) (appeal “frivolous and wholly lacking in merit”), cert. denied, 455 U.S. 1018, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982). CONCLUSION The judgment of the district court is affirmed. . RIC is a wholly owned subsidiary of RFS, which itself is a wholly owned subsidiary of RG, which in turn is a wholly owned subsidiary of RGH. All of the common voting stock of RGH is owned by or for the benefit of Steinberg and members of his family. . Although the parties here and below, and the district court, refer to this claim as exclusively individual, it is pleaded in Kamerman’s complaint as a derivative and individual claim. . A fourth additional case was apparently consolidated with this case subsequently, judging by the caption of certain district court opinions and orders in this litigation, but the docket entries for this case provided to us do not reflect the subsequent consolidation. . The fact that apparently no separate final judgment was subsequently entered, as envisioned in the Order of Dismissal and Final Judgment entered December 19, 1988, is without jurisdictional significance. See Bankers Trust Co. v. Mallis, 435 U.S. 381, 382-88, 98 S.Ct. 1117, 1118-22, 55 L.Ed.2d 357 (1978); Fennell v. TLB Kent Co., 865 F.2d 498, 499 n. 1 (2d Cir.1989). . Rule 54(b) states in pertinent part: When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
sc_lcdisposition	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. ARIZONA v. MARICOPA COUNTY MEDICAL SOCIETY et al. No. 80-419. Argued November 4, 1981 Decided June 18, 1982 Stevens, J., delivered the opinion of the Court, in which Brennan, White, and Marshall, JJ., joined. Powell, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 357. Blackmun and O’Connor, JJ., took no part in the consideration or decision of the case. Kenneth R. Reed, Special Assistant Attorney General of Arizona, argued the cause for petitioner. With him on the briefs were Robert K. Corbin, Attorney General, Charles L. Eger, Assistant Attorney General, Alison B. Swan, and Patricia A. Metzger. Philip P. Berelson argued the cause for respondents. With him on the brief were Robert O. Lesher and Daniel J. McAuliffe. Deputy Solicitor General Shapiro argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General McCree, Assistant Attorney General Baxter, Deputy Solicitor General Wallace, Barry Grossman, Robert B. Nicholson, and Nancy C. Garrison. Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Charles A. Graddick, Attorney General of Alabama, and Susan Beth Farmer, Sarah M. Spratling, and James Drury Flowers, Assistant Attorneys General; Wilson L. Condon, Attorney General of Alaska, and Louise E. Ma, Assistant Attorney General; Steve Clark, Attorney General of Arkansas, and David L. Williams, Deputy Attorney General; J. D. MacFarlane, Attorney General of Colorado, and B. Lawrence Theis, First Assistant Attorney General; Carl R. Ajello, Attorney General of Connecticut, and Robert M. Larger, John R. Lacey, John M. Looney, Jr., and Steven M. Rutstein, Assistant Attorneys General; Richards. Gebelein, Attorney General of Delaware, and Robert P. Lobue, Deputy Attorney General; Jim Smith, Attorney General of Florida, and Bill L. Bryant, Jr., Assistant Attorney General; Tany S. Hong, Attorney General of Hawaii, and Sonia Faust, Deputy Attorney General; Tyrone C. Fahner, Attorney General of Illinois, and Thomas M. Genovese, Assistant Attorney General; Linley E. Pearson, Attorney General of Indiana, and Frank A. Baldwin, Assistant Attorney General; Thomas J. Miller, Attorney General of Iowa, and John R. Perkins, Assistant Attorney General; Robert T. Stephan, Attorney General of Kansas, and Carl M. Anderson, Assistant Attorney General; Steven L. Beshear, Attorney General of Kentucky, and James M. Ringo, Assistant Attorney General; William J. Guste, Jr., Attorney General of Louisiana, and JohnR. Flowers, Jr., Assistant Attorney General; James E. Tierney, Attorney General of Maine; Stephen H. Sachs, Attorney General of Maryland, and Charles 0. Monk II, Assistant Attorney General; Frank J. Kelley, Attorney General of Michigan, and Edwin M. Bladen, Assistant Attorney General; Warren R. Spannaus, Attorney General of Minnesota, and Stephen P. Kilgrijf, Special Assistant Attorney General; Bill Attain, Attorney General of Mississippi, and Robert E. Sand ers, Special Assistant Attorney General; John Ashcroft, Attorney General of Missouri, and William L. Newcomb, Jr., Assistant Attorney General; Michael T. Greely, Attorney General of Montana, and Jerome J. Cate, Assistant Attorney General; Paul L. Douglas, Attorney General of Nebraska, and Dale A. Comer, Assistant Attorney General; Gregory H. Smith, Attorney General of New Hampshire; James R. Zazzali, Attorney General of New Jersey, and Laurel A. Price, Deputy Attorney General; Jeff Bingaman, Attorney General of New Mexico, and James J. Wechsler and Richard H. Levin, Assistant Attorneys General; Robert Abrams, Attorney General of New York, and Lloyd Constantine, Assistant Attorney General; Rufus L. Edmisten, Attorney General of North Carolina, H. A. Cole, Jr., Special Deputy Attorney General, and R. Darrell Hancock, Associate Attorney General; Robert 0. Wefald, Attorney General of North Dakota, and Gary H. Lee, Assistant Attorney General; Jan Eric Cartwright, Attorney General of Oklahoma, and Gary W. Gardenshire, Assistant Attorney General; Dennis J. Roberts II, Attorney General of Rhode Island, and Patrick J. Quinlan, Special Assistant Attorney General; Daniel R. McLeod, Attorney General of South Carolina, and John M. Cox, Assistant Attorney General; Mark V. Meierhenry, Attorney General of South Dakota, and James E. McMahon, Assistant Attorney General; William M. Leech, Jr., Attorney General of Tennessee, and William J. Haynes, Deputy Attorney General; Mark White, Attorney General of Texas, and Linda A. Aaker, Assistant Attorney General; David L. Wilkinson, Attorney General of Utah, and Peter C. Collins, Assistant Attorney General; John J. Easton, Jr., Attorney General of Vermont, and Jay I. Ashman, Assistant Attorney General; Kenneth 0. Eikenberry, Attorney General of Washington, and John R. Ellis, Assistant Attorney General; Chauncey H. Browning, Attorney General of West Virginia, and Charles G. Brown, Deputy Attorney General; Bronson C. La Follette, Attorney General of Wisconsin, and Michael L. Zaleski, Assistant Attorney General; and John D. Troughton, Attorney General of Wyoming, and Gay R. Venderpoel, Assistant Attorney General; for the State of Ohio by William J. Brown, Attorney General, and Charles D. Weller, Doreen C. Johnson, and Eugene F. McShane, Assistant Attorneys General; for Chalmette General Hospital, Inc., et al. by John A. Stassill; and for Hospital Building Co. by John K. Train III and John R. Jordan, Jr. Briefs of amici curiae urging affirmance were filed by William G. Kopit and Robert J. Moses for the American Association of Foundations for Medical Care; by Richard L. Epstein and Jay H. Hedgepeth for the American Hospital Association; and by M. Laurence Popofsky and Peter F. Sloss for California Dental Service. Alfred Miller filed a brief for the American Association of Retired Persons et al. as amici curiae. Justice Stevens delivered the opinion of the Court. . The question presented is whether § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1, has been violated by agreements among competing physicians setting, by majority vote, the maximum fees that they may claim in full payment for health services provided to policyholders of specified insurance plans. The United States Court of Appeals for the Ninth Circuit held that the question could not be answered without evaluating the actual purpose and effect of the agreements at a full trial. 643 F. 2d 553 (1980). Because the undisputed facts disclose a violation of the statute, we granted certiorari, 450 U. S. 979 (1981), and now reverse. h-H In October 1978 the State of Arizona filed a civil complaint against two county medical societies and two “foundations for medical care” that the medical societies had organized. The complaint alleged that the defendants were engaged in illegal price-fixing conspiracies. After the defendants filed their answers, one of the medical societies was dismissed by consent, the parties conducted a limited amount of pretrial discovery, and the State moved for partial summary judgment on the issue of liability. The District Court denied the motion, but entered an order pursuant to 28 U. S. C. § 1292(b), certifying for interlocutory appeal the question “whether the FMC membership agreements, which contain the promise to abide by maximum fee schedules, are illegal per se under section 1 of the Sherman Act.” The Court of Appeals, by a divided vote, affirmed the District Court’s order refusing to enter partial summary judgment, but each of the three judges on the panel had a different view of the case. Judge Sneed was persuaded that “the challenged practice is not a per se violation.” 643 F. 2d, at 560. Judge Kennedy, although concurring, cautioned that he had not found “these reimbursement schedules to be per se proper, [or] that an examination of these practices under the rule of reason at trial will not reveal the proscribed adverse effect on competition, or that this court is foreclosed at some later date, when it has more evidence, from concluding that such schedules do constitute per se violations.” Ibid. Judge Larson dissented, expressing the view that a per se rule should apply and, alternatively, that a rule-of-reason analysis should condemn the arrangement even if a per se approach was not warranted. Id., at 56S-569. Because the ultimate question presented by the certiorari petition is whether a partial summary judgment should have been entered by the District Court, we must assume that the respondents’ version of any disputed issue of fact is correct. We therefore first review the relevant undisputed facts and then identify the factual basis for the respondents’ contention that their agreements on fee schedules are not unlawful. p-H h-H The Maricopa Foundation for Medical Care is a nonprofit Arizona corporation composed of licensed doctors of medicine, osteopathy, and podiatry engaged in private practice. Approximately 1,750 doctors, representing about 70% of the practitioners in Maricopa County, are members. The Maricopa Foundation was organized in 1969 for the purpose of promoting fee-for-service medicine and to provide the community with a competitive alternative to existing health insurance plans. The foundation performs three primary activities. It establishes the schedule of maximum fees that participating doctors agree to accept as payment in full for services performed for patients insured under plans approved by the foundation. It reviews the medical necessity and appropriateness of treatment provided by its members to such insured persons. It is authorized to draw checks on insurance company accounts to pay doctors for services performed for covered patients. In performing these functions, the foundation is considered an “insurance administrator” by the Director of the Arizona Department of Insurance. Its participating doctors, however, have no financial interest in the operation of the foundation. The Pima Foundation for Medical Care, which includes about 400 member doctors, performs similar functions. For the purposes of this litigation, the parties seem to regard the activities of the two foundations as essentially the same. No challenge is made to their peer review or claim administration functions. Nor do the foundations allege that these two activities make it necessary for them to engage in the practice of establishing maximum-fee schedules. At the time this lawsuit was filed, each foundation made use of “relative values” and “conversion factors” in compiling its fee schedule. The conversion factor is the dollar amount used to determine fees for a particular medical specialty. Thus, for example, the conversion factors for “medicine” and “laboratory” were $8 and $5.50, respectively, in 1972, and $10 and $6.50 in 1974. The relative value schedule provides a numerical weight for each different medical service — thus, an office consultation has a lesser value than a home visit. The relative value was multiplied by the conversion factor to determine the maximum fee. The fee schedule has been revised periodically. The foundation board of trustees would solicit advice from various medical societies about the need for change in either relative values or conversion factors in their respective specialties. The board would then formulate the new fee schedule and submit it to the vote of the entire membership. The fee schedules limit the amount that the member doctors may recover for services performed for patients insured under plans approved by the foundations. To obtain this approval the insurers — including self-insured employers as well as insurance companies — agree to pay the doctors' charges up to the scheduled amounts, and in exchange the doctors agree to accept those amounts as payment in full for their services. The doctors are free to charge higher fees to uninsured patients, and they also may charge any patient less than the scheduled maxima. A patient who is insured by a foundation-endorsed plan is guaranteed complete coverage for the full amount of his medical bills only if he is treated by a foundation member. He is free to go to a nonmember physician and is still covered for charges that do not exceed the maximum-fee schedule, but he must pay any excess that the nonmember physician may charge. The impact of the foundation fee schedules on medical fees and on insurance premiums is a matter of dispute. The State of Arizona contends that the periodic upward revisions of the maximum-fee schedules have the effect of stabilizing and enhancing the level of actual charges by physicians, and that the increasing level of their fees in turn increases insurance premiums. The foundations, on the other hand, argue that the schedules impose a meaningful limit on physicians’ charges, and that the advance agreement by the doctors to accept the maxima enables the insurance carriers to limit and to calculate more efficiently the risks they underwrite and therefore serves as an effective cost-containment mechanism that has saved patients and insurers millions of dollars. Although the Attorneys General of 40 different States, as well as the Solicitor General of the United States and certain organizations representing consumers of medical services, have filed amicus curiae briefs supporting the State of Arizona’s position on the merits, we must assume that the respondents’ view of the genuine issues of fact is correct. This assumption presents, but does not answer, the question whether the Sherman Act prohibits the competing doctors from adopting, revising, and agreeing to use a maximum-fee schedule in implementation of the insurance plans. HH H-l ► — 4 The respondents recognize that our decisions establish that price-fixing agreements are unlawful on their face. But they argue that the per se rule does not govern this case because the agreements at issue are horizontal and fix maximum prices, are among members of a profession, are in an industry with which the judiciary has little antitrust experience, and are alleged to have procompetitive justifications. Before we examine each of these arguments, we pause to consider the history and the meaning of the per se rule against price-fixing agreements. A Section 1 of the Sherman Act of 1890 literally prohibits every agreement “in restraint of trade.” In United States v. Joint Traffic Assn., 171 U. S. 505 (1898), we recognized that Congress could not have intended a literal interpretation of the word “every”; since Standard Oil Co. of New Jersey v. United States, 221 U. S. 1 (1911), we have analyzed most restraints under the so-called “rule of reason.” As its name suggests, the rule of reason requires the fact-finder to decide whether under all the circumstances of the case the restrictive practice imposes an unreasonable restraint on competition. The elaborate inquiry into the reasonableness of a challenged business practice entails significant costs. Litigation of the effect or purpose of a practice often is extensive and complex. Northern Pacific R. Co. v. United States, 356 U. S. 1, 5 (1958). Judges often lack the expert understanding of industrial market structures and behavior to determine with any confidence a practice’s effect on competition. United States v. Topco Associates, Inc., 405 U. S. 596, 609-610 (1972). And the result of the process in any given case may provide little certainty or guidance about the legality of a practice in another context. Id., at 609, n. 10; Northern Pacific R. Co. v. United States, supra, at 5. The costs of judging business practices under the rule of reason, however, have been reduced by the recognition of per se rules. Once experience with a particular kind of restraint enables the Court to predict with confidence that the rule of reason will condemn it, it has applied a conclusive presumption that the restraint is unreasonable. As in every rule of general application, the match between the presumed and the actual is imperfect. For the sake of business certainty and litigation efficiency, we have tolerated the invalidation of some agreements that a fullblown inquiry might have proved to be reasonable. Thus the Court in Standard Oil recognized that inquiry under its rule of reason ended once a price-fixing agreement was proved, for there was "a conclusive presumption which brought [such agreements] within the statute.” 221 U. S., at 65. By 1927, the Court was able to state that “it has... often been decided and always assumed that uniform price-fixing by those controlling in any substantial manner a trade or business in interstate commerce is prohibited by the Sherman Law.” United States v. Trenton Potteries Co., 273 U. S. 392, 398. “The aim and result of every price-fixing agreement, if effective, is the elimination of one form of competition. The power to fix prices, whether reasonably exercised or not, involves power to control the market and to fix arbitrary and unreasonable prices. The reasonable price fixed today may through economic and business changes become the unreasonable price of tomorrow. Once established, it may be maintained unchanged because of the absence of competition secured by the agreement for a price reasonable when fixed. Agreements which create such potential power may well be held to be in themselves unreasonable or unlawful restraints, without the necessity of minute inquiry whether a particular price is reasonable or unreasonable as fixed and without placing on the government in enforcing the Sherman Law the burden of ascertaining from day to day whether it has become unreasonable through the mere variation of economic conditions.” Id., at 397-398. Thirteen years later, the Court could report that “for over forty years this Court has consistently and without deviation adhered to the principle that price-fixing agreements are unlawful per se under the Sherman Act and that no showing of so-called competitive abuses or evils which those agreements were designed to eliminate or alleviate may be interposed as a defense.” United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 218 (1940). In that case a glut in the spot market for gasoline had prompted the major oil refiners to engage in a concerted effort to purchase and store surplus gasoline in order to maintain stable prices. Absent the agreement, the companies argued, competition was cutthroat and self-defeating. The argument did not carry the day: “Any combination which tampers with price structures is engaged in an unlawful activity. Even though the members of the price-fixing group were in no position to control the market, to the extent that they raised, lowered, or stabilized prices they would be directly interfering with the free play of market forces. The Act places all such schemes beyond the pale and protects that vital part of our economy against any degree of interference. Congress has not left with us the determination of whether or not particular price-fixing schemes are wise or unwise, healthy or destructive. It has not permitted the age-old cry of ruinous competition and competitive evils to be a defense to price-fixing conspiracies. It has no more allowed genuine or fancied competitive abuses as a legal justification for such schemes than it has the good intentions of the members of the combination. If such a shift is to be made, it must be done by the Congress. Certainly Congress has not left us with any such choice. Nor has the Act created or authorized the creation of any special exception in favor of the oil industry. Whatever may be its peculiar problems and characteristics, the Sherman Act, so far as price-fixing agreements are concerned, establishes one uniform rule applicable to all industries alike.” Id., at 221-222. The application of the per se rule to maximum-price-fixing agreements in Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U. S. 211 (1951), followed ineluctably from Socony-Vacuum: “For such agreements, no less than those to fix minimum prices, cripple the freedom of traders and thereby restrain their ability to sell in accordance with their own judgment. We reaffirm what we said in United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 223: ‘Under the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se.’” 340 U. S., at 213. Over the objection that maximum-price-fixing agreements were not the “economic equivalent” of minimum-price-fixing agreements, Kiefer-Stewart was reaffirmed in Albrecht v. Herald Co., 390 U. S. 145 (1968): “Maximum and minimum price fixing may have different consequences in many situations. But schemes to fix maximum prices, by substituting the perhaps erroneous judgment of a seller for the forces of the competitive market, may severely intrude upon the ability of buyers to compete and survive in that market. Competition, even in a single product, is not cast in a single mold. Maximum prices may be fixed too low for the dealer to furnish services essential to the value which goods have for the consumer or to furnish services and conveniences which consumers desire and for which they are willing to pay. Maximum price fixing may channel distribution through a few large or specifically advantaged dealers who otherwise would be subject to significant nonprice competition. Moreover, if the actual price charged under a maximum price scheme is nearly always the fixed maximum price, which is increasingly likely as the maximum price approaches the actual cost of the dealer, the scheme tends to acquire all the attributes of an arrangement fixing minimum prices.” Id., at 152-153 (footnote omitted). We have not wavered in our enforcement of the per se rule against price fixing. Indeed, in our most recent price-fixing case we summarily reversed the decision of another Ninth Circuit panel that a horizontal agreement among competitors to fix credit terms does not necessarily contravene the antitrust laws. Catalano, Inc. v. Target Sales, Inc., 446 U. S. 643 (1980). B Our decisions foreclose the argument that the agreements at issue escape per se condemnation because they are horizontal and fix maximum prices. Kiefer-Stewart and Albrecht place horizontal agreements to fix maximum prices on the same legal — even if not economic — footing as agreements to fix minimum or uniform prices. The per se rule “is grounded on faith in price competition as a market force [and not] on a policy of low selling prices at the price of eliminating competition.” Rahl, Price Competition and the Price Fixing Rule — Preface and Perspective, 57 Nw. U. L. Rev. 137, 142 (1962). In this case the rule is violated by a price restraint that tends to provide the same economic rewards to all practitioners regardless of their skill, their experience, their training, or their willingness to employ innovative and difficult procedures in individual cases. Such a restraint also may discourage entry into the market and may deter experimentation and new developments by individual entrepreneurs. It may be a masquerade for an agreement to fix uniform prices, or it may in the future take on that character. Nor does the fact that doctors — rather than nonprofessionals — are the parties to the price-fixing agreements support the respondents’ position. In Goldfarb v. Virginia State Bar, 421 U. S. 773, 788, n. 17 (1975), we stated that the “public service aspect, and other features of the professions, may require that a particular practice, which could properly be viewed as a violation of the Sherman Act in another context, be treated differently.” See National Society of Professional Engineers v. United States, 435 U. S. 679, 696 (1978). The price-fixing agreements in this case, however, are not premised on public service or ethical norms. The respondents do not argue, as did the defendants in Goldfarb and Professional Engineers, that the quality of the professional service that their members provide is enhanced by the price restraint. The respondents’ claim for relief from the per se rule is simply that the doctors’ agreement not to charge certain insureds more than a fixed price facilitates the successful marketing of an attractive insurance plan. But the claim that the price restraint will make it easier for customers to pay does not distinguish the medical profession from any other provider of goods or services. We are equally unpersuaded by the argument that we should not apply the per se rule in this case because the judiciary has little antitrust experience in the health care industry. The argument quite obviously is inconsistent with Socony-Vacuum. In unequivocal terms, we stated that, “[w]hatever may be its peculiar problems and characteristics, the Sherman Act, so far as price-fixing agreements are concerned, establishes one uniform rule applicable to all industries alike.” 310 U. S., at 222. We also stated that “[t]he elimination of so-called competitive evils [in an industry] is no legal justification” for price-fixing agreements, id., at 220, yet the Court of Appeals refused to apply the per se rule in this case in part because the health care industry was so far removed from the competitive model. Consistent with our prediction in Socony-Vacuum, 310 U. S., at 221, the result of this reasoning was the adoption by the Court of Appeals of a legal standard based on the reasonableness of the fixed prices, an inquiry we have so often condemned. Finally, the argument that the per se rule must be rejustified for every industry that has not been subject to significant antitrust litigation ignores the rationale for per se rules, which in part is to avoid “the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable — an inquiry so often wholly fruitless when undertaken.” Northern Pacific R. Co. v. United States, 356 U. S., at 5. The respondents’ principal argument is that the per se rule is inapplicable because their agreements are alleged to have procompetitive justifications. The argument indicates a misunderstanding of the per se concept. The anticompet-itive potential inherent in all price-fixing agreements justifies their facial invalidation even if procompetitive justifications are offered for some. Those claims of enhanced competition are so unlikely to prove significant in any particular case that we adhere to the rule of law that is justified in its general application. Even when the respondents are given every benefit of the doubt, the limited record in this case is not inconsistent with the presumption that the respondents’ agreements will not significantly enhance competition. The respondents contend that their fee schedules are pro-competitive because they make it possible to provide consumers of health care with a uniquely desirable form of insurance coverage that could not otherwise exist. The features of the foundation-endorsed insurance plans that they stress are a choice of doctors, complete insurance coverage, and lower premiums. The first two characteristics, however, are hardly unique to these plans. Since only about 70% of the doctors in the relevant market are members of either foundation, the guarantee of complete coverage only applies when an insured chooses a physician in that 70%. If he elects to go to a nonfoundation doctor, he may be required to pay a portion of the doctor’s fee. It is fair to presume, however, that at least 70% of the doctors in other markets charge no more than the “usual, customary, and reasonable” fee that typical insurers are willing to reimburse in full. Thus, in Maricopa and Pima Counties as well as in most parts of the country, if an insured asks his doctor if the insurance coverage is complete, presumably in about 70% of the cases the doctor will say “Yes” and in about 30% of the cases he will say “No.” It is true that a binding assurance of complete insurance coverage — as well as most of the respondents’ potential for lower insurance premiums — can be obtained only if the insurer and the doctor agree in advance on the maximum fee that the doctor will accept as full payment for a particular service. Even if a fee schedule is therefore desirable, it is not necessary that the doctors do the price fixing. The record indicates that the Arizona Comprehensive Medical/ Dental Program for Foster Children is administered by the Maricopa Foundation pursuant to a contract under which the maximum-fee schedule is prescribed by a state agency rather than by the doctors. This program and the Blue Shield plan challenged in Group Life & Health Insurance Co. v. Royal Drug Co., 440 U. S. 205 (1979), indicate that insurers are capable not only of fixing maximum reimbursable prices but also of obtaining binding agreements with providers guaranteeing the insured full reimbursement of a participating provider’s fee. In light of these examples, it is not surprising that nothing in the record even arguably supports the conclusion that this type of insurance program could not function if the fee schedules were set in a different way. The most that can be said for having doctors fix the maximum prices is that doctors may be able to do it more efficiently than insurers. The validity of that assumption is far from obvious, but in any event there is no reason to believe that any savings that might accrue from this arrangement would be sufficiently great to affect the competitiveness of these kinds of insurance plans. It is entirely possible that the potential or actual power of the foundations to dictate the terms of such insurance plans may more than offset the theoretical efficiencies upon which the respondents’ defense ultimately rests. C Our adherence to the per se rule is grounded not only on economic prediction, judicial convenience, and business certainty, but also on a recognition of the respective roles of the Judiciary and the Congress in regulating the economy. United States v. Topco Associates, Inc., 405 U. S., at fill-612. Given its generality, our enforcement of the Sherman Act has required the Court to provide much of its substantive content. By articulating the rules of law with some clarity and by adhering to rules that are justified in their general application, however, we enhance the legislative prerogative to amend the law. The respondents’ arguments against application of the per se rule in this case therefore are better directed to the Legislature. Congress may consider the exception that we are not free to read into the statute. > HH Having declined the respondents invitation to cut back on the per se rule against price fixing, we are left with the respondents’ argument that their fee schedules involve price fixing in only a literal sense. For this argument, the respondents rely upon Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U. S. 1 (1979). In Broadcast Music we were confronted with an antitrust challenge to the marketing of the right to use copyrighted compositions derived from the entire membership of the American Society of Composers, Authors and Publishers (ASCAP). The so-called “blanket license” was entirely different from the product that any one composer was able to sell by himself. Although there was little competition among individual composers for their separate compositions, the blanket-license arrangement did not place any restraint on the right of any individual copyright owner to sell his own compositions separately to any buyer at any price. But a “necessary consequence” of the creation of the blanket license was that its price had to be established. Id., at 21. We held that the delegation by the composers to ASC AP of the power to fix the price for the blanket license was not a species of the price-fixing agreements categorically forbidden by the Sherman Act. The record disclosed price fixing only in a “literal sense.” Id., at 8. This case is fundamentally different. Each of the foundations is composed of individual practitioners who compete with one another for patients. Neither the foundations nor the doctors sell insurance, and they derive no profits from the sale of health insurance policies. The members of the foundations sell medical services. Their combination in the form of the foundation does not permit them to sell any different product. Their combination has merely permitted them to sell their services to certain customers at fixed prices and arguably to affect the prevailing market price of medical care. The foundations are not analogous to partnerships or other joint arrangements in which persons who would otherwise be competitors pool their capital and share the risks of loss as well as the opportunities for profit. In such joint ventures, the partnership is regarded as a single firm competing with other sellers in the market. The agreement under attack is an agreement among hundreds of competing doctors concerning the price at which each will offer his own services to a substantial number of consumers. It is true that some are surgeons, some anesthesiologists, and some psychiatrists, but the doctors do not sell a package of three kinds of services. If a clinic offered complete medical coverage for a flat fee, the cooperating doctors would have the type of partnership arrangement in which a price-fixing agreement among the doctors would be perfectly proper. But the fee agreements disclosed by the record in this case are among independent competing entrepreneurs. They fit squarely into the horizontal price-fixing mold. The judgment of the Court of Appeals is reversed. It is so ordered. Justice Blackmun and Justice O’Connor took no part in the consideration or decision of this case. The complaint alleged a violation of § 1 of the Sherman Act as well as of the Arizona antitrust statute. The state statute is interpreted in conformity with the federal statute. 643 F. 2d 533, 554, n. 1 (CA9 1980). The State of Arizona prayed for an injunction but did not ask for damages. The District Court offered three reasons for its decision. First, citing Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36 (1977), the court stated that “a recent antitrust trend appears to be emerging where the Rule of Reason is the preferred method of determining whether a particular practice is in violation of the antitrust law.” App. to Pet. for Cert. 43. Second, “the two Supreme Court cases invalidating maximum price-fixing, [Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U. S. 211 (1951), and Albrecht v. Herald Co., 390 U. S. 145 (1968)], need not be read as establishing a per se rule.” Id., at 44. Third, “a profession is involved here.” Id., at 45. Under the rule-of-reason approach, the plaintiff’s motion for partial summary judgment on the issue of liability could not be granted “because there is insufficient evidence as to the [purpose and effect of the allegedly unlawful practices and the power of the defendants.]” Id., at 47. The District Court also denied the defendants’ motion to dismiss based on the ground that they were engaged in the business of insurance within the meaning of the McCarran-Ferguson Act, 15 U. S. C. § 1011 et seq. See App. to Pet. for Cert. 39-41. The defendants did not appeal that portion of the District Court order. 643 F. 2d, at 559, and n. 7. The quoted language is the Court of Appeals’ phrasing of the question. Id., at 554. The District Court had entered an order on June 5,1979, providing, in relevant part: “The plaintiff’s motion for partial summary judgment on the issue of liability is denied with leave to file a similar motion based on additional evidence if appropriate.” App. to Pet. for Cert. 48. On August 8, 1979, the District Court entered a further order providing: “The Order of this Court entered June 5, 1979 is amended by addition of the following: This Court’s determination that the Rule of Reason approach should be used in analyzing the challenged conduct in the instant case to determine whether a violation of Section 1 of the Sherman Act has occurred involves a question of law as to which there is substantial ground for difference of opinion and an immediate appeal from the Order denying plaintiff’s motion for partial summary judgment on the issue of liability may materially advance the ultimate determination of the litigation. Therefore, the foregoing Order and determination of the Court is certified for interlocutory appeal pursuant to 28 U. S. C. § 1292(b).” Id., at 50-51. Judge Sneed explained his reluctance to apply the per se rule substantially as follows: The record did not indicate the actual purpose of the maximum-fee arrangements or their effect on competition in the health care industry. It was not clear whether the assumptions made about typical price restraints could be carried over to that industry. Only recently had this Court applied the antitrust laws to the professions. Moreover, there already were such significant obstacles to pure competition in the industry that a court must compare the prices that obtain under the maximum-fee arrangements with those that would otherwise prevail rather than with those that would prevail under ideal competitive conditions. Furthermore, the Ninth Circuit had not applied Keifer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U. S. 211 (1951), and Albrecht v. Herald Co., 390 U. S. 145 (1968), to horizontal agreements that establish maximum prices; some of the economic assumptions underlying the rule against maximum price Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:
songer_procedur	C	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. Norman E. PETERSON, Plaintiff-Appellee, v. SHEARSON/AMERICAN EXPRESS, INC., Defendant-Appellant. No. 85-2158. United States Court of Appeals, Tenth Circuit. June 9, 1988. Stuart N. Bennett, Roath & Brega, P.C., Denver, Colo., for plaintiff-appellee. Douglas J. Gilbert (Stephen M. Duncan and Thomas D. Birge, with him, on the brief), Hopper, Kanouff, Smith, Peryam, Terry and Duncan, Denver, Colo., for defendant-appellant. Before McKAY and BALDOCK, Circuit Judges, and SAFFELS, District Judge. The Honorable Dale E. Saffels, United States District Judge for the District of Kansas, sitting by designation. BALDOCK, Circuit Judge. Plaintiff-appellee Norman C. Peterson (Peterson) commenced this action in April 1983. His complaint alleged that a broker employed by defendant-appellant Shear-son/American Express, Inc. (Shearson) was responsible for losses incurred by Peterson arising from trading in stock options. The complaint stated six claims for relief: one federal claim based on § 10(b) of the Securities Exchange Act of 1934 (1934 Exchange Act), 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.10b-5, and five pendent state law claims. Shearson successfully moved for a more definite statement, but did not move to dismiss on the grounds that all or part of the claims were arbitra-ble. Shearson then filed a timely answer to the amended complaint, but neglected to assert arbitration as a defense. Trial was originally set for March 1985, but was rescheduled for August 1985. In July 1985, Shearson filed a motion to compel arbitration and to stay the proceedings pending arbitration of four of the state law claims. The trial court denied the motion. Shearson appeals pursuant to 28 U.S.C. § 1292(a), which has been interpreted to allow an interlocutory appeal from the grant or denial of a motion to compel arbitration. Miller v. Drexel, Burnham, Lambert, Inc., 791 F.2d 850, 852-53 (11th Cir.1986). Peterson claims that Shearson has waived any right to arbitrate the state law claims and that the federal claim is not arbitrable. Shearson claims that it has the right to arbitrate all claims and that it has not waived its right to compel arbitration. Shearson argues that it could not have sought arbitration of the state law claims prior to Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), which was decided on the original trial date, and that it could not have sought arbitration of the federal claim until Shearson/American Express Inc. v. McMahon, — U.S.-, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987), which was decided during the pendency of this appeal. The contract between Peterson and Shearson included the following arbitration clause: Unless unenforceable due to federal or state law, any controversy arising out of or relating to my accounts, to transactions with you for me or to this agreement or the breach thereof, shall be settled by arbitration____ Rec. vol. I at 240. There is a strong federal policy favoring arbitration for dispute resolution. Perry v. Thomas, — U.S. -, 107 S.Ct. 2520, 2525, 96 L.Ed.2d 426 (1987); Rush v. Oppenheimer & Co., 779 F.2d 885, 887 (2d Cir.1985). When a contract mandates arbitration, courts generally will enforce the arbitration clause absent a waiver. See Nesslage v. York Securities, Inc., 823 F.2d 231, 234 (8th Cir.1987) (citing Moses H. Cone Memorial Hosp. v. Mercury Constr. Co., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983)). A party asserting a waiver of arbitration has a heavy burden of proof. Belke v. Merrill Lynch, Pierce, Fenner & Smith, 693 F.2d 1023, 1025 (11th Cir.1982). Shearson contends that although it did not suggest arbitration of the Rule 10b-5 claim either by motion or in its amended answer, it did not waive arbitration of the federal claim. We agree. Before the Supreme Court’s decision in McMahon, Rule 10b-5 claims under the 1934 Exchange Act were not considered arbitrable. See, e.g., Merrill Lynch, Pierce, Fenner & Smith Inc. v. Moore, 590 F.2d 823, 827 (10th Cir.1978). The courts of appeals had relied on Wilko v. Swann, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), which involved an action under § 12(2) of the Securities Act of 1933 (1933 Securities Act). See McMahon, 107 S.Ct. at 2348-49 (Blackmun, J., concurring in part and dissenting in part). In Wilko, the Court determined that an agreement to arbitrate was void under § 14 of the 1933 Securities Act. Wilko, 346 U.S. at 434-35, 74 S.Ct. at 186. In McMahon, the Supreme Court essentially overruled Wilko. See Rodriguez de Quijas v. Shearson/Lehman Bros., 845 F.2d 1296 (5th Cir.1988). In so doing, the Court recognized arbitration as an acceptable method of dispute resolution under the 1934 Exchange Act. McMahon, 107 S.Ct. at 2338-43. Because Shearson almost certainly could not have obtained an order for arbitration of the Rule 10b-5 claim prior to McMahon, it did not waive its right to arbitrate the claim. See Benoay v. Prudential-Bache Securities Inc., 805 F.2d 1437, 1440 (11th Cir.1986). There was no requirement that Shearson make a futile attempt to obtain arbitration on the federal claim given the state of the law; indeed, it would be difficult to argue that such an attempt had a basis in existing law. See Fed.R.Civ.P. 11 (by signing a pleading, an attorney certifies that the position advocated is “warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law”); Miller, 791 F.2d at 854 (no need for a party to engage in futile gestures to avoid a claim of waiver of arbitration). Shearson correctly asserts that McMahon should be applied so that it now may arbitrate the Rule 10b-5 claim. See Nesslage, 823 F.2d at 238 (requiring arbitration of Rule 10b-5 claims after McMahon ). The general rule is that absent injustice, an appellate court should apply the case law in effect at the time it renders its decision. Saint Francis College v. Al-Khazraji, — U.S. -, 107 S.Ct. 2022, 2025, 95 L.Ed.2d 582 (1987). A new decision will be applied to a pending case when (1) the decision establishes a new principle of law, either by overruling clear past precedent upon which the litigants may have relied or by deciding an issue of first impression whose resolution was not clearly foreshadowed, (2) application of the decision will further its operation, as determined by looking at its history, purpose and effect, and (3) application of the decision will not create substantial inequity. Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971); accord Jones v. Consolidated Freightways Corp. of Delaware, 776 F.2d 1458, 1460 (10th Cir.1985). The Fifth Circuit, applying the Chevron criteria, has considered whether McMahon should be applied to cases already pending, and has concluded that such application is warranted. Noble v. Drexel, Burnham, Lambert, Inc., 823 F.2d 849, 850-51 (5th Cir.1987). We agree with that decision. First, McMahon overrules the considerable line of past authority which held that arbitration agreements of claims brought under the 1934 Exchange Act were unenforceable. See McMahon, 107 S.Ct. at 2349 n. 6 (Blackmun, J., concurring in part and dissenting in part). Second, the “strong federal policy in favor of arbitration — and the absence of any federal policy favoring securities litigation — suggests that the rule should be applied retroactively.” Noble, 823 F.2d at 850 (footnote omitted). Third, though arbitration might impose some hardship on Peterson at this stage, we cannot say that it would be unjust considering that this case has not yet been tried. See id. at 851. Peterson’s Rule 10b-5 claim, therefore, is subject to arbitration. The more difficult question is whether the state law claims also should be arbitrated. Shearson maintains that it did not waive arbitration of these claims because they were not arbitrable prior to the original trial date. Shearson relies on the “intertwining doctrine,” which it maintains precluded it from seeking arbitration of the state law claims. This doctrine was rejected by Byrd, 470 U.S. at 217, 105 S.Ct. at 1240. It provided that “[wjhen arbitrable and nonarbitrable claims arise out of the same transaction, and are sufficiently intertwined factually and legally, the district court ... may in its discretion deny arbitration as to the arbitrable claims and try all the claims together in federal court.” Id. at 217-18, 105 S.Ct. at 1241 (footnote omitted). Shearson maintains that the federal and state law claims were intertwined and that it could not have sought arbitration of any of the claims prior to the original trial date because the Rule 10b-5 claim was not arbitrable. We reject this argument for two reasons. First, the argument is premised on a misunderstanding of what constitutes circuit precedent. Shearson contends that, prior to Byrd, “the law of this circuit clearly required denial of arbitration on intertwined state law claims as well.” Appellant’s Brief at 10. Shearson then cites three cases in support of its contention, Noland v. Gurley, No. 83-K-247, slip op. (D.Colo. Oct. 15,1985); N. Donald & Co. v. American United Energy Corp., 585 F.Supp. 533 (D.Colo.), aff'd, 746 F.2d 666 (10th Cir.1984); and Lane v. Dean Witter Reynolds Inc., 505 F.Supp. 610 (W.D.Okla.1980). Upon review of these cases, we find that only the Lane case arguably supports Shearson’s position that the intertwining doctrine had been accepted in this circuit. Shearson, however, cannot claim that a decision of a single district court within this circuit constituted the law of the circuit. To be sure, the court of appeals also is a lower federal court, but one which functions in a review capacity. Additionally, there was a split in the circuits regarding the validity of the intertwining doctrine prior to the original trial date. See Byrd, 470 U.S. at 216-17, 105 S.Ct. at 1240 (recognizing that the Fifth, Ninth and Eleventh Circuits had relied on the doctrine, while the Sixth, Seventh and Eighth Circuits had disregarded the doctrine in favor of bifurcating the arbitrable and the nonarbitrable claims). The split of appellate authority, combined with the fact that the validity of the doctrine in Colorado and in the Tenth Circuit was an open question, should have indicated to Shearson that the doctrine of intertwining was not necessarily the law governing the instant case. But even assuming that the intertwining doctrine had been the law of the circuit, it was a discretionary doctrine; the district court had the ultimate authority to decide its applicability. See Belke, 693 F.2d at 1027. Given the open state of the law and the discretionary nature of the doctrine, Shearson probably should have requested arbitration of the state claims at the outset. Despite our view of what good practice might have been, we must examine whether Shearson waived arbitration due to its inaction prior to the filing of its motion to compel arbitration and to stay the proceedings. In determining whether a party has waived its right to arbitration, this court examines several factors: (1) whether the party’s actions are inconsistent with the right to arbitrate; (2) whether “the litigation machinery has been substantially invoked” and the parties “were well into preparation of a lawsuit” before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) “whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place”; and (6) whether the delay “affected, misled, or prejudiced” the opposing party. Reid Burton Constr., Inc. v. Carpenters Dist. Council of S. Colorado, 614 F.2d 698, 702 (10th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 85, 66 L.Ed.2d 27 (1980). Under these factors, we conclude that Shearson has waived its right to arbitrate the state law claims. First, Shear-son’s actions were inconsistent with its alleged intent to arbitrate because it prepared for a scheduled trial without objecting on the grounds of arbitration. See rec. vol. I at 65-66, 203-09. As we have discussed, given both the unsettled state of the law in this circuit concerning the intertwining doctrine and the discretionary nature of that doctrine, Shearson should have asked the district court for arbitration of the state law claims initially. Second, the parties were well into case preparation when the arbitration request was made; indeed, they would have gone to trial had the district court not rescheduled it. See id. at 210. Third, Shearson sought arbitration close to the trial date, for reasons which include Shearson’s failure to examine the contract governing Peterson’s accounts. Fourth, important intervening steps were undertaken which were unavailable in arbitration, such as deposing witnesses. See id. at 203-09; Reid Burton, 614 F.2d at 703. Finally, Shearson’s delay in filing a motion to compel arbitration, until four months after the Byrd decision and approximately five weeks prior to the rescheduled trial date, affected and probably misled Peterson, who already had prepared for a trial. See Reid Burton, 614 F.2d at 703 (holding that defendant’s request to arbitrate on the day of trial constituted sufficient prejudice for waiver of arbitration). We hold that Shearson has waived its right to arbitrate Peterson’s state law claims, but has retained a right to arbitrate the Rule 10b-5 claim. See Byrd, 470 U.S. at 217, 105 S.Ct. at 1240 (permitting bifurcation of intertwining claims to enable arbitration). Trial of the state law claims may proceed; the federal claim is subject to arbitration. AFFIRMED IN PART and REVERSED IN PART and REMANDED. The mandate shall issue forthwith. . In its motion to compel arbitration and to stay the proceedings, Shearson sought arbitration of four of Peterson’s state claims. It failed to request arbitration of Peterson’s negligence claim. Consequently, Shearson has waived the right to arbitrate that claim. 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_realapp	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine whether or not the formally listed appellants in the case are the "real parties." That is, are they the parties whose real interests are most directly at stake? (e.g., in some appeals of adverse habeas corpus petition decisions, the respondent is listed as the judge who denied the petition, but the real parties are the prisoner and the warden of the prison) (another example would be "Jones v A 1990 Rolls Royce" where Jones is a drug agent trying to seize a car which was transporting drugs - the real party would be the owner of the car). For cases in which an independent regulatory agency is the listed appellant, the following rule was adopted: If the agency initiated the action to enforce a federal rule or the agency was sued by a litigant contesting an agency action, then the agency was coded as a real party. However, if the agency initially only acted as a forum to settle a dispute between two other litigants, and the agency is only listed as a party because its ruling in that dispute is at issue, then the agency is considered not to be a real party. For example, if a union files an unfair labor practices charge against a corporation, the NLRB hears the dispute and rules for the union, and then the NLRB petitions the court of appeals for enforcement of its ruling in an appeal entitled "NLRB v Widget Manufacturing, INC." the NLRB would be coded as not a real party. Note that under these definitions, trustees are usually "real parties" and parents suing on behalf of their children and a spouse suing on behalf of their injured or dead spouse are also "real parties." UNITED STATES of America, Appellee, v. Sanford J. MOORE, Sherwood Schwach and Allen Kerner, Defendants-Appellants. No. 364, Docket 26909. United States Court of Appeals Second Circuit. Argued April 11, 1961. Decided May 18, 1961. George Becker, New York City, for defendants-appellants. Averill M. Williams, Asst.' U. S. Atty., E. D. N. Y., Brooklyn, N. Y. (Elliott Kahaner, U. S. Atty., Brooklyn, N. Y., on the brief), for appellee. Before CLARK, MEDINA, and FRIENDLY, Circuit Judges. PER CURIAM. Defendants appeal from a judgment denying their motions to withdraw pleas of guilty to a three-count indictment charging them with fraudulently concealing the assets of a bankrupt estate and with conspiring to do so. 18 U.S.C. §§ 2, 152, 371. The pleas in question were entered against the advice of counsel on March 9, 1961, before Judge Ray-fiel, who set March 30, 1961, as the date for sentencing. When defendants appeared in court for sentencing on that day, they moved under F.R.Crim.Proc. 32 (d) to withdraw their pleas of guilty. Denying the motions, Judge Rayfiel sentenced the defendants to prison terms of three years, two years, and fifteen months, respectively. A motion to withdraw a plea of guilty is addressed to the sound discretion of the district court. Before pleading guilty, defendants were carefully questioned by the clerk in the presence of the court, and acknowledged they understood that they had the right to a speedy and public trial by an impartial jury, that they were entitled to compulsory process to obtain witnesses in their behalf and to be confronted by the witnesses against them, that they could be sentenced to imprisonment, and that they were pleading guilty voluntarily, without any threat or promise to induce them so to plead. On this appeal, defendants make no attempt to deny that they entered their pleas knowingly and voluntarily, and with full knowledge of the possible consequences. Furthermore, their counsel does not offer any direct affidavits from them, but advances only his own assertions and hearsay belief in his clients. We do not think this case shows any abuse of discretion. See United States v. Panebianco, 2 Cir., 208 F.2d 238, certiorari denied Panebianco v. United States, 347 U.S. 913, 74 S.Ct. 478, 98 L.Ed. 1069. Judgment affirmed. Question: Are the formally listed appellants in the case the "real parties", that is, are they the parties whose real interests are most directly at stake? A. both 1st and 2nd listed appellants are real parties (or only one appellant, and that appellant is a real party) B. the 1st appellant is not a real party C. the 2nd appellant is not a real party D. neither the 1st nor the 2nd appellants are real parties E. not ascertained Answer:
songer_r_bus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES v. ONE 1937 MODEL STUDEBAKER SEDAN AUTOMOBILE, MOTOR NO. D 136774 (MORGAN, Intervener). No. 1616. Circuit Court of Appeals, Tenth Circuit. April 6, 1938. Richard P. Shanahan, Sp. Asst., U. S. Department of Justice, of Washington, D. C. (William C. Lewis, U. S. Atty., and Wade II. Loofbourrow, Asst. U. S. Atty., both of Oklahoma City, Okl., on the brief), for the United States. John W. Tyree, of Lawton, Old., for appellees. Before LEWIS, BRATTON, and WILLIAMS, Circuit Judges. WILLIAMS, Circuit Judge. The appellant (United States of America) instituted this proceeding under section 3450 of the Revised Statutes, 26 U.S. C.A. § 1441, for forfeiture of an appropriately described Studebaker automobile which had been seized by federal agents on the ground that it contained and concealed intoxicating liquor upon which the tax had not been paid, it being averred in the information that one George H. Morgan claimed some right, title, and interest in such automobile. After being permitted to intervene, said Morgan filed a motion to suppress all of the evidence taken and acquired in the course of the search and seizure of the automobile on the ground that the search and seizure were unlawful and illegal, in that same was made without a search warrant and in violation of his rights under the Fourth Amendment to the Constitution of the United States. A jury having been waived, the cause was tried by the court. The facts relative to the search and seizure were partly stipulated. Soon after a federal investigator, named Harris, arrived in Lawton, Oklahoma, on December 1, 1936, he in person received reliable information verbally and by telephone that said intervener and his son, Herman Morgan, and his son-in-law Lee Roy Walker, were engaged in or carrying on an active illicit business in said city in both taxpaid and nontaxpaid intoxicating liquors. Further investigation by him disclosed that each of said parties had been convicted of violation of the liquor laws of the United States and that said Herman Morgan and said Walker were each holders of current Retail Liquor Dealer’s .Special Tax Stamps, and were illicitly handling such taxpaid as well as nontaxpaid liquor. Further investigation followed. On January 13, 1937, said Harris observed Walker deliver to a known and notorious bootlegger a paper carton which resembled a whiskey carton. Two days later said Harris again saw said Walker deliver a paper sack which he thought contained two half-gallon jars of whisky and following this delivery he saw Walker drive to the residence of intervener. Said Harris received further evidence about that time to the effect that Walker was selling nontaxpaid liquor from his residence and thereafter undertook to watch said Walker’s premises. While engaged in that task on February 4, 1937, the said officer, Harris, accompanied by his wife, observed a green Buick automobile back out from the said Walker’s residence at about 3:15 in the afternoon and start northward, it being the same automobile that Walker had used in making the two prior deliveries. Said Harris followed said green Buick automobile, which was driven over the streets and along a driveway to a point near a garage of intervener’s, located 35 feet from his residence, where the said green Buick car was then located in the driveway five feet from said garage, when said officer and his wife saw the intervener sitting under the steering wheel of a Studebaker car located in said driveway five feet from said garage, the said Walker then and there standing between the two cars about three feet apart in said driveway. The said officer having followed said Buick car and driving in on said driveway behind said car and the Studebaker car, announced his identity as being an Alcoholic Tax Unit United States officer, and inquired of Walker whether he had any liquor in his car, who replied in the negative, at which time, the officer seeing intervener remove a paper sack from the seat in the Studebaker car beside him and place it on the floor of said car near his feet, then and there heard glass clink in said sack. Thereupon the officer opened the door of the said Studebaker car, took hold of the sack, and found that it contained two half-gallon jars of nontaxpaid whisky, whereupon he asked intervener where he obtained the whisky, who replied from a man that he did not know and that he got it for his son, Herman Morgan. Following this, the said investigator’s wife called the Sheriff. Another United States Alcoholic Tax Unit investigator, E. T. Smith, shortly thereafter arrived upon the scene. The intervener, George H. Morgan, was then arrested and charged with possession of whisky, the car being seized and the libel action instituted. The evidence further disclosed that after the seizure of the whiskey in said car, said officers going to the premises of Lee Roy Walker there found that he was the holder of a Retail Liquor Dealer’s Special Tax Stamp, and seized a quantity of moonshine whisky, Walker being arrested and charged in a separate case. Said officer Smith testified that the said Herman Morgan and said Walker were known bootleggers witli prior convictions therefor in the federal court. No search warrant was had by the said officer, Harris, for said premises or Studebalcer car, and no warrant had been issued for the arrest of George H. Morgan or said Walker, the arrest of George H. Morgan being made after the seizure of the whisky in the car. The first time that Harris saw the package in Morgan’s car was when he heard the clinking of the glass as he saw Morgan moving the package from the seat of the car to its floor. In this investigation Harris was in the discharge of his duty as such federal officer in that city and had been since ábout December 1, 1936, during which period said officer having made investigation as 'to the two Morgans and the said Walker, which disclosed the facts to Harris as herein set out. Said Harris' with his wife in his car coasted along behind said green Buick car with the evident expectation of finding whiskey therein. Flis identifying himself as such officer, and interrogating Walker as to whether he had liquor in said car so discloses. The movement of intervener at that time as to removal of the package from the seat of his car to its floor and the clinking of the glass attracting Harris’ attention obviously diverted him from further attention then as to Walker and the green Buick car. With the facts and information before him he was justified in reaching the conclusion that Walker had probably delivered the paper package to intervener. Harris in thus coasting behind said green Buick car down said driveway, Walker would not have been permitted to complain as to a search of same as the evidence discloses that he had no interest in intervener’s premises. Occinto v. U. S., 8th Cir., 54 F.2d 351; Kelley v. U. S., 8th Cir., 61 F.2d 843, 845, 86 A.L.R. 338, 346; Wida v. U. S., 8th Cir., 52 F.2d 424; Nelson v. U. S., 8th Cir., 18 F.2d 522; U. S. v. Messina, 2d Cir., 36 F.2d 699; Whitcombe v. U. S., 3rd Cir., 90 F.2d 290; Chepo v. U. S., 3rd Cir., 46 F.2d 70; U. S. v. Crushiata, 2d Cir., 59 F.2d 1007; In re Dooley, 2d Cir., 48 F.2d 121. In Wida v. U. S., supra, in paragraph 1 of the syllabus, it is said: “Officers receiving information accused had still at his home held authorized to go there to investigate without search warrant (27 USCA, § 39; 18 USCA, § 53).” In the opinion, it is said: “The validity of this arrest is beyond successful challenge. Before going to this place, the officers had received information and complaints that Wida had a still in operation at his home and they went about one hundred and twenty miles to investigate the accuracy of this information. They had a right to go to the house for this purpose, and when they arrived there, and before entering the house, they received unmistakable evidence * * * that their information was correct.” Further in the opinion, at the top of page 426, of 52 F.2d, it is said: “We hold: (1) That where officers have reasonable information that a felony is being committed at a certain place they are justified in making a proper investigation at that place to ascertain whether such information is correct.” This evidence on motion was suppressed by the trial court as being illegally obtained, from which action of the court the government prosecutes this appeal. There is a well-recognized difference in the application of the constitutional provision between the search of a dwelling, store, or other structure, and that of a boat, wagon, or automobile, of necessity arising- out of a dissimilarity of conditions. A warrant may be readily obtained for search of a dwelling, store, or other structure, where the information is at hand before the structure is visited, there being little excuse or justification for a search without it, but emergencies justifying a search of a structure may arise so as to render the search without a search warrant excusable or justifiable. However, as to the search of a boat, wagon, or automobile in time to accomplish a lawful result, it may be impracticable or impossible to secure a writ to practically meet an emergency. While the writ is being obtained the boat, or wagon, or automobile, may be rushed out of the locality and even beyond the jurisdiction of the process, or the contraband secreted or destroyed so as to defeat the purposes of the law. Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790. The indiscriminate stopping and searching of automobiles on the .highways on the mere chance of finding contraband liquor is within the prohibition of the Fourth Amendment. However, an automobile may be searched without a search warrant upon probable cause. In order to warrant a valid search the officer must have such information as to cause a reasonable, discreet, and prudent person to believe in good faith that the automobile is being used for the purpose of concealment or transportation of contraband liquor. Carroll v. U. S., supra; Husty v. U. S., 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629, 74 A.L.R. 1407; Hester v. U. S., 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898; Eierman v. U. S., 10th Cir., 46 F.2d 46; Underhill v. U. S., 10th Cir., 47 F.2d 891; Moore v. U. S., 10th Cir., 56 F.2d 794 ; Mulrooney v. U. S., 4th Cir., 46 F.2d 995; Fisher v. U. S., 4th Cir., 46 F.2d 994; Milam v. U. S., 4th Cir., 296 F. 629; Van Eeckhoute v. U. S., 8th Cir., 79 F.2d 827; Kaiser v. U. S., 8th Cir., 60 F.2d 410;. McInes v. U. S., 9th Cir., 62 F.2d 180; Rodriguez v. U. S., 5th Cir., 80 F.2d 646; Whitcomb v. U. S., supra; and Kopp v. U. S., 7th Cir., 55 F.2d 878. Intervener lays stress upon the point that search was made within his curtilage. The Studebaker was located in the driveway five feet from the said garage and 35 feet from the dwelling. The officer had the right under the circumstances to go to the point where these cars were located for the purpose of investigating. Being there for a rightful purpose, facts and circumstances coming to his attention while in the performance and lawful discharge of his duty, in connection with his previously acquired information, the search of the car belonging to the intervener was justifiable. In intervener’s (appellee) brief it is asserted that after the bearing of the clinking of the glass and seeing the package removed by intervener from the car seat and placed upon its floor, officer Harris could have sent his wife to call Smith, for him to procure a search warrant, Harris to leave the premises but to remain in view of both Walker and intervener, Morgan, and that if intervener left the premises in the Studebaker automobile then Harris might have been justified in searching said Studebaker automobile. The record is that the “officer then opened the door of the Morgan car, took out the paper sack and found that it contained two half-gallon jars of nontaxpaid whiskey. Fie asked Morgan where he obtained it and Morgan said from a man he did not know, that he was getting it for Herman Morgan. Following this, the officer’s wife called the Sheriff, and another Federal officer, E. T. Smith, shortly joined the officer Harris.” There is nothing in the record to the effect that Harris sent his wife to call Smith or that he knew where Smith was, or that the sheriff was contacted over the phone by his wife, or that the sheriff responded at any time on that occasion whilst the officer Flarris was there, or why Smith appeared upon the scene, and the further statement in appellees’ brief is that by Harris leaving the premises but remaining in view of both Walker and the intervener, if intervener had left the premises in the Studebaker automobile then Harris might have been justified in searching said Studebaker automobile, is tantamount to an admission that his motion to suppress the evidence is -without merit. The Studebaker car in which intervener was sitting on the seat on which by his side was the paper sack in which the glass clinked, said jars containing two half-gallons of nontaxpaid whisky, was 35 feet from his residence or house and if Harris withdrew from the driveway by which he had followed the green Buick car which Walker was driving, with the evident purpose of discovering him in the delivery of nontaxpaid whiskey, what was to prevent' said intervener, Morgan, from taking said paper sack in which the whisky was contained and going into his house, 35 feet away, where he had a right to go and making away with the whisky, as he was attempting to do when Harris, in following the green Buick car as he had a right to do, happened upon him, or to drive in the Studebaker down the driveway to the street and out into the city ? To have forcibly kept him (Morgan) there would have been in effect taking him in custody. Intervener’s theory that he should have withdrawn and then if intervener had attempted to leave in the Studebaker that then Harris would have been justified in searching him, would have then meant to forcibly stop the car. The judgment of the lower court is reversed, and the case remanded with directions to overrule motion to suppress and to proceed with a new trial. 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_source	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 86-1199. United States Court of Appeals, Fourth Circuit. Argued April 6, 1987. Decided Nov. 12, 1987. Daniel M. Gribbon (Jerome Ackerman, Douglas S. Abel, Covington & Burling, Washington, D.C., James J. Burns, William A. Young, Jr., Wallerstein, Goode & Dobbins, Richmond, Va., on brief), for petitioner. Karen Ruth Cordry, N.L.R.B. (Rosemary M. Collyer, General Counsel, John E. Higgins, Jr., Deputy General Counsel, Robert E. Allen, Associate General Counsel, Elliott Moore, Deputy Associate General Counsel, Peter Winkler, Supervisory Atty., Washington, D.C., on brief), for respondent. Before WIDENER and PHILLIPS, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge. ■ WIDENER, Circuit Judge: This is a petition of Prudential Insurance Company of America to review an order of the National Labor Relations Board and the Board’s cross petition for enforcement. Prudential challenges a representation election based on the propriety of a bargaining unit which included an alleged confidential employee. We hold that the employee was not properly included in the bargaining unit and remand the case with instructions. The United Food & Commercial Workers International Union, AFL-CIO-CLC, filed a petition with the Board seeking to represent a unit of office and clerical employees at Prudential’s Cape Cod district office located in Hyannis, Massachusetts. These employees, referred to by Prudential as the field service staff, support the Company’s sales agents in their selling and service functions. There are several job categories that are involved in these functions: service representative, senior service representative, service assistants, service coordinator, senior service coordinator, and assistant to the district manager. These positions comprise the bargaining unit sought by the Union and approved by the Board. The Company’s challenge is directed to the inclusion within the unit of the assistant to the district manager, Patricia Roberts. In May 1985, the Board conducted a pre-election hearing. The Company contended that the inclusion of Mrs. Roberts was improper because she was a confidential employee. After hearings, the Board’s Regional Director issued a Decision and Direction of Election in which he concluded that Mrs. Roberts was not a confidential employee. The Regional Director’s conclusion was based on two alternative findings. First, he found that the district manager does not formulate, determine and effectuate labor relations policies. Second, the Regional Director also found that Mrs. Roberts did not assist and act in a confidential capacity to the district manager. The Company subsequently filed a request for review with the Board, challenging the Regional Director’s unit determinations. The Board denied this request based on the Regional Director’s finding that the district manager does not formulate, determine, and effectuate management labor relations policy. Given this determination, the Board did not comment on the Regional Director’s alternate finding. On August 28,1985, the Board’s regional office conducted a secret ballot election. The Company unsuccessfully challenged the ballot of Mrs. Roberts. The Board agent rejected Prudential’s challenge and refused to impound and segregate her ballot since the Board had already ruled on her eligibility. However, the agent permitted the Union’s challenge to two votes. Those two ballots were sealed and not counted in the election count. The tally, including the ballot of the assistant to the district manager, was 4-1 in favor of the Union. Prudential objected to both the conduct of the election and the conduct affecting the results of the election, but these objections were rejected by the Regional Director, who certified the Union as the bargaining unit’s representative. The Company then requested Board review of the Regional Director’s certification of the Union as representative. However, this request for review was denied by the Board on October 29,1985 as raising “no substantial issues warranting review.” In order to gain judicial review of the Board’s certification of the representative, Prudential refused to bargain with the Union. As stated, this case comes to us upon a petition to review the Board’s order requiring Prudential to bargain with the Union and its determination that the Company violated §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (5), by refusing to do so. In order to evaluate Prudential’s claim that the assistant to the district manager should have been excluded from the field service bargaining unit as a confidential employee, it is necessary for us to examine the relationship between her and the district manager as well as the district manager’s responsibilities. With little exception, the facts in this case are not in dispute and the Board’s findings are essentially a summary of undisputed evidence. Accordingly, it is appropriate to reproduce the Board’s findings concerning the district manager and the assistant to the district manager. As district manager, Leary oversees the day-to-day operation of the Cape Cod district office. He is responsible for hiring and training new employees, setting their levels of compensation, determining work assignments, scheduling overtime, scheduling vacations, evaluating employees, making disciplinary recommendations, recommending promotions, merit increases and bonuses and resolving day-to-day problems that arise in the office. The collective bargaining agreement between the Employer and the Petitioner covering district agents provides that the district manager is the Employer’s representative at Step One of the contractual grievance procedure. While Leary has the authority to respond to grievances at Step One, since he has been at the Cape Cod District office (a year and a half) his practice has been to receive and investigate each grievance, formulate a recommended response and then clear it with YPRM Russo before presenting it to the Petitioner. Leary does not participate either in the preparation for, or the actual negotiations with the Petitioner concerning the district agents’ unit. The Employer’s labor relations and personnel policies, including compensation plans and levels, and benefits, are established and/or negotiated and managed from the Employer’s corporate headquarters in Newark, New Jersey and/or its regional offices, in this case located in Boston, Massachusetts. As district manager, Leary is responsible for ensuring that the Employer’s policies are administered in the Cape Cod District office consistently with the Employer’s national policy. Patricia Roberts is the ATTM in the Cape Cod District office. In this capacity, she handles correspondence and clerical work for Leary. Thus, she performs customary secretarial duties, such as typing and filing; she does not take dictation. Roberts maintains files of grievances submitted by the Petitioner and types Leary’s proposed and actual responses to them. Roberts types Leary’s correspondence with Russo and other Employer representatives and maintains a file of such correspondence in her desk, which is unlocked. Roberts also compiles and types office sales reports and submits them to the appropriate regional office. Roberts types correspondence concerning the employment, compensation, evaluation and discipline of district agents. Roberts has access, as needed, to employees’ personal job history files, which are maintained in a locked portion of Leary’s desk. She also shares a private telephone line with Leary, but she has never been asked by him to listen in on a conversation. In one instance, at Leary’s request, Roberts compiled mileage figures as part of a grievance response. However, she was asked to perform this task after the Employer had given its grievance answer to the Petitioner. In another instance, she looked up a date in an unspecified file. Section 2(3) of the NLRA provides that the “term ‘employee’ shall include any em-ployee_” 29 U.S.C. § 152(3). But, notwithstanding that under a literal reading of this language Mrs. Roberts would be an employee, both the Board and the courts exclude certain confidential employees from collective bargaining units. See NLRB v. Hendricks County Rural Electric Membership Corp., 454 U.S. 170, 177, 102 S.Ct. 216, 222, 70 L.Ed.2d 323 (1981). In Hendricks, the Supreme Court approved the Board’s “labor-nexus” rule as determinative of whether or not a worker is to be deemed a confidential employee. Under this labor-nexus rule, “the term ‘confidential’ ... embrace[s] only those employees who assist and act in a confidential capacity to persons who exercise ‘managerial’ functions in the field of labor relations.” Hendricks, 454 U.S. at 180-81, 102 S.Ct. at 224. This concise statement of law presents the two questions involved in this case. First, whether the district manager was a person who exercised managerial functions in the field of labor relations. And, second, whether the Regional Director erred in finding that the assistant to the district manager did not assist or act in a confidential capacity to the district manager. In NLRB v. Quaker City Life Insurance Co., 319 F.2d 690 (4th Cir.1963), we held that the secretary of the district manager of a national insurance company was a confidential employee and that “[i]t would be patently unfair to require the company to bargain with a union that contain[ed] such an employee.” 319 F.2d at 694. The facts of this case are indistinguishable from those of the Quaker City case. In Quaker City, we noted that the district manager in that case “generally supervises the day to day operations of the office, operating under general rules set by the home office. He recommends the hiring, firing, and disciplining of the office employees and he may, under certain conditions, fire summarily. He trains the local employees, and, within limits set out by the company, makes recommendations as to promotions, increases and allowances.” 319 F.2d at 692. This description of Quaker City’s district manager’s duties takes in only a part of those of Prudential’s district manager here. Additionally, for example, Prudential’s district manager is the employer’s representative at Step One of the grievance procedure. He may respond to Step One or formulate and recommend a response for his superior. He is also responsible for ensuring that Prudential’s national labor and personnel policies are carried out in the district office. Accordingly, we conclude that the district manager here exercises managerial functions in the field of labor relations. The Board has invited us to reject Quaker City as lacking in precedential value in light of the Supreme Court’s ruling in Hendricks. However, this argument is foreclosed by our decision in NLRB v. Rish Equipment Co., 687 F.2d 36 (4th Cir.1982). In Rish, on facts similar to those here, we rejected the argument that our decision in Quaker City was displaced by Hendricks. 687 F.2d at 37. We follow our earlier determination, and Quaker City and Rish are yet controlling precedent in this circuit. Accordingly, we conclude that the Board erroneously decided to deny review of the Regional Director’s decision on the ground that the district manager did not exercise sufficient managerial functions in the field of labor relations. This conclusion, however, does not end our review. We must also examine the Regional Director’s alternate finding that Mrs. Roberts, the assistant to the district manager, did not assist or act in a confidential manner in her relations with the district manager. We think that the Regional Director’s finding is not supported by substantial evidence in light of the entire record. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The Regional Director’s own findings concerning Mrs. Roberts, already reproduced, supra, demonstrate that her position’s confidential characteristics exceed those of the Quaker City employee “who makes weekly reports to the home office indicating receipts, disbursements, attendance of the agents and sales productions. She checks the details of each new policy before they are submitted. She types correspondence for the District Manager and is privy to all confidential matters and communications between the District Manager and the home office, including those in which the performance of the other employees of the branch office is discussed. Although she is licensed to sell insurance, she never has done so, and the license is probably not a condition of her employment.” Quaker City, 319 F.2d at 692. Moreover, there was undisputed documentary evidence that Prudential’s job description questionnaire for the position of assistant to the district manager describes the job as “confidential” by its very nature. The confidential character of the position of assistant to the district manager is further elaborated on in Prudential’s personnel policy handbook. Significantly, both the district manager and Mrs. Roberts testified that the Company had told her that her job was confidential. Finally, the Board has cited us to no convincing reason to sustain the Regional Director’s finding in light of our decisions in Quaker City and Rish. We thus find that the Regional Director’s finding that Mrs. Roberts did not assist or act in a confidential manner to the district manager is not supported by substantial evidence. Having concluded that Mrs. Roberts does serve in a confidential capacity to a manager who exercises sufficient managerial function in the field of labor relations, we are of the opinion that she should not be included within the bargaining unit in question. We must now decide what action should be taken on remand. We reject the Company’s position that a new election must be held merely because the employees’ vote may have been different had they known that the assistant to the district manager was not a member of the bargaining unit. The case cited by the Company for that proposition, Hamilton Test Systems, N. Y., Inc. v. NLRB, 743 F.2d 136 (2d Cir.1984), does not support that result. In Hamilton Test Systems, the voting employees were misinformed by the Board and believed that they were voting for representation in a broad facility-wide unit. However, the Board later considered “the ballot as a vote for representation in a unit that [was] less than half [that] size and considerably different in character.” 743 F.2d at 140. Thus, that case should be distinguished on its facts from ours because we deal here with a unit that has been altered by only one member. While we conclude that the Company is not necessarily entitled to a new election, we recognize that upon remand it will be necessary for the Board to consider the two votes challenged by the Union and not included in the tally. Given the fact that it is impossible to determine which way Mrs. Roberts’ improper vote was cast, we have no way of knowing whether a correct tally would favor the Union by a 3-1 or 4-0 margin. Accordingly, it is quite possible that the two challenged employee votes, if they survive the Union’s challenge and if they were cast against union representation, would affect the Union’s majority status. In that case, it would in fact be necessary to hold a new election in a properly constituted unit. Otherwise, the representation election result must stand. Accordingly, we reverse the Board’s finding that Mrs. Roberts was not a confidential employee and remand this case for proceedings consistent with this opinion. The petition for review of Prudential is granted in part and remanded in part. The cross petition of the Board for enforcement is denied at this time but may be reinstated depending on the result of the proceedings on remand. Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
songer_circuit	I	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. Guadalupe CASTRO-ROMERO, Defendant-Appellant. No. 91-30152. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 5, 1992. Decided May 19, 1992. Scott H. Hansen, Blaser, Sorensen & Hansen, Blackfoot, Idaho, for defendant-appellant. Monte J. Stiles, Asst. U.S. Atty., Boise, Idaho, for plaintiff-appellee. Before: PREGERSON, TROTT and KLEINFELD, Circuit Judges. PER CURIAM: Guadalupe Castro-Romero appeals his sentence and conviction following jury trial for two counts of sexual abuse of a minor in violation of 18 U.S.C. § 2241(c). Castro-Romero contends the district court erred by (1) permitting the government in violation of the Equal Protection Clause to exercise a peremptory challenge to excuse a black juror, (2) permitting the government in violation of his right to confront witnesses to engage in leading and suggestive questions during the examination of the minor victim, and (3) increasing his offense level under the Sentencing Guidelines because the minor victim was in his custody, care, or supervisory control. We have jurisdiction under 28 U.S.C. § 1291 and we affirm. I Equal Protection Castro-Romero contends he was denied equal protection when the prosecutor exercised a peremptory challenge to strike the only black juror in the venire solely on the basis of that juror’s race. This contention is without merit. We review for clear error the district court’s factual determination regarding purposeful discrimination in the jury selection process. United States v. Power, 881 F.2d 733, 739 (9th Cir.1989). We employ a two-stage analysis when reviewing Castro-Romero’s claim of improper use of peremptory challenges. See id. First, he must establish a prima facie case of purposeful discrimination in the jury selection process. See id. (citing Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1722-23, 90 L.Ed.2d 69 (1986). Second, once a prima facie case is established, the government must come forward with a “ ‘neutral explanation’ for its challenges, an explanation ‘related to the particular case tried.’ ” Id. at 740 (quoting United States v. Chinchilla, 874 F.2d 695, 697 (9th Cir.1989)). “The prosecution’s explanations ... need not rise to the level justifying use of a challenge for cause.” Power, 881 F.2d at 740. Even if we assume that Castro-Romero established a prima facie case under the Batson standard, his claim fails because the government provided a neutral explanation for its use of a peremptory challenge against the black juror. The prosecutor stated she challenged the juror because he “said he thinks that children can lie in such matters [as those involved in the instant case],” and not because of his race. The district court did not find this reason a pretext for racial discrimination. Under the circumstances of this case, we cannot say the district court clearly erred by finding the prosecutor provided a “reasonable, neutral basis” for challenging the juror. See Power, 881 F.2d at 740. II Right to Confront Witnesses Castro-Romero contends he was denied the right to confront his accuser when on direct examination the district court allowed the prosecution to ask leading questions of the minor victim. This contention is without merit. We review for abuse of discretion the district court’s decision to permit leading questions of a witness. Esco Corp. v. United States, 340 F.2d 1000, 1005 (9th Cir.1965); Mitchell v. United States, 213 F.2d 951, 956 (9th Cir.1954), cert. denied, 348 U.S. 912, 75 S.Ct. 290, 99 L.Ed. 710 (1955). “[W]e will ... reverse on the basis of improper leading questions only if ‘the judge’s action ... amounted to, or contributed to, the denial of a fair trial.’ ” Miller v. Fairchild Industries, Inc., 885 F.2d 498, 514 (9th Cir.1989) (quoting Cleary, ed., McCormick on Evidence, at 12 (1984) (footnote omitted)), cert. denied, 494 U.S. 1056, 110 S.Ct. 1524, 108 L.Ed.2d 764 (1990). Fed.R.Evid. 611(c) provides that “[Heading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony.” The Advisory Committee Note to Rule 611(c) explains that “[t]he rule continues the traditional view that the suggestive powers of the leading question are as a general proposition undesirable.” Fed. R.Evid. 611(c), Adv.Com.Notes (1972). However, the Advisory Committee went on to note that asking leading questions of a child witness is a recognized exception to the general rule. Id.; see also United States v. Demamas, 876 F.2d 674, 678 (8th Cir.1989) (leading questions permitted of minor sexual abuse victim); United States v. Brady, 579 F.2d 1121, 1130 (9th Cir.1978) (noting in dicta that permitting leading questions of minor witnesses “not an unusual practice), cert. denied, 439 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41 (1979); Rotolo v. United States, 404 F.2d 316, 317 (5th Cir.1968) (leading questions permitted of nervous and upset fifteen year old witness); Antelope v. United States, 185 F.2d 174, 175 (10th Cir.1950) (leading questions permitted of minor statutory rape victim). Here, the victim was an eight year old girl. She was so reluctant to testify initially that the district court ordered a recess during the course of her testimony. In addition, the prosecution introduced other evidence without objection regarding Castro-Romero’s admissions to police investigators and to a state court that he had molested the victim. In light of the age of the witness and the nature of the testimony, we hold that the district court did not abuse its discretion in allowing leading questions of the minor witness. See Esco Corp., 340 F.2d at 1005; Mitchell, 213 F.2d at 956. Further, even if the leading questions had been improper, they would not have resulted in denial of a fair trial because of the evidence that Castro-Romero admitted to the crime. See Miller, 885 F.2d at 514-515. III Sentencing Guidelines Castro-Romero contends the district court erred by adjusting upward his base offense level because the victim was in his custody, care, or supervisory control. This contention lacks merit. We review for clear error the district court’s factual findings underlying its application of the Guidelines. United States v. Bos, 917 F.2d 1178, 1180 (9th Cir.1990). The Guidelines provide that “if the victim was in the custody, care, or supervisory control of the defendant,” the defendant’s base offense level shall be adjusted upward two points. U.S.S.G. § 2A3.1(b)(3) (1990). A defendant is in a custodial position for purposes of this section when he “is a person the victim trusts or to whom the victim is entrusted.” U.S.S.G. § 2A3.1, Comment., Background. Here, the victim was the daughter of Castro-Romero’s common-law wife. Although Castro-Romero never adopted the victim, he was present at her birth and helped raise her. The victim referred to him as-“daddy.” He lived with the victim and was home alone with her when the second incident of sexual abuse occurred. The district court’s factual determination that the victim was in the custody, care, or supervisory control of Castro-Romero was not clearly erroneous. See Bos, 917 F.2d at 1182. AFFIRMED. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
sc_adminaction	117	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. FORSYTH COUNTY, GEORGIA v. NATIONALIST MOVEMENT No. 91-538. Argued March 31, 1992 Decided June 19, 1992 Blackmun, J., delivered the opinion of the Court, in which Stevens, O’Connor, Kennedy, and Souter, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which White, Scalia, and Thomas, JJ., joined, post, p. 137. Robert S. Stubbs III argued the cause for petitioner. With him on the briefs was Gordon A. Smith. Richard Barrett argued the cause and filed a brief for respondent. Jody M. Litchford filed a brief for the city of Orlando et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Eric Neisser, Steven B. Shapiro, John A Powell, and Elliot M. Mincberg; for the American Federation of Labor and Congress of Industrial Organizations by Marsha S. Berzon and Laurence Gold; and for Public Citizen by David C. Vladeck and Alan B. Morrison. Justice Blackmun delivered the opinion of the Court. In this case, with its emotional overtones, we must decide whether the free speech guarantees of the First and Fourteenth Amendments are violated by an assembly and parade ordinance that permits a government administrator to vary the fee for assembling or parading to reflect the estimated cost of maintaining public order. H-C Petitioner Forsyth County is a primarily rural Georgia county approximately 30 miles northeast of Atlanta. It has had a troubled racial history. In 1912, in one month, its entire African-American population, over 1,000 citizens, was driven systematically from the county in the wake of the rape and murder of a white woman and the lynching of her accused assailant. Seventy-five years later, in 1987, the county population remained 99% white. Spurred by this history, Hosea Williams, an Atlanta city councilman and civil rights personality, proposed a Forsyth County “March Against Fear and Intimidation” for January 17, 1987. Approximately 90 civil rights demonstrators attempted to parade in Cumming, the county seat. The marchers were met by members of the Forsyth County Defense League (an independent affiliate of respondent, The Nationalist Movement), of the Ku Klux Klan, and other Cumming residents. In all, some 400 counterdemonstrators lined the parade route, shouting racial slurs. Eventually, the counterdemonstrators, dramatically outnumbering police officers, forced the parade to a premature halt by throwing rocks and beer bottles. Williams planned a return march the following weekend. It developed into the largest civil rights demonstration in the South since the 1960’s. On January 24, approximately 20,000 marchers joined civil rights leaders, United States Senators, Presidential candidates, and an Assistant United States Attorney General in a parade and rally. The 1,000 counterdemonstrators on the parade route were contained by more than 3,000 state and local police and National Guardsmen. Although there was sporadic rock throwing and 60 counterdemonstrators were arrested, the parade was not interrupted. The demonstration cost over $670,000. in police protection, of which Forsyth County apparently paid a small portion. See App. to Pet. for Cert. 75-94; Los Angeles Times, Jan. 28, 1987, Metro section, p. 5, col. 1. “As a direct result” of these two demonstrations, the For-syth County Board of Commissioners enacted Ordinance 34 on January 27,1987. See Brief for Petitioner 6. The ordinance recites that it is “to provide for the issuance of permits for parades, assemblies, demonstrations, road closings, and other uses of public property and roads by private organizations and groups of private persons for private purposes.” See App. to Pet. for Cert. 98. The board of commissioners justified the ordinance by explaining that “the cost of necessary and reasonable protection of persons participating in or observing said parades, assemblies, demonstrations, road closings and other related activities exceeds the usual and normal cost of law enforcement for which those participating should be held accountable and responsible.” Id., at 100. The ordinance required the permit applicant to defray these costs by paying a fee, the amount of which was to be fixed “from time to time” by the Board. Id., at 105. Ordinance 34 was amended on June 8,1987, to provide that every permit applicant “ ‘shall pay in advance for such permit, for the use of the County, a sum not more than $1,000.00 for each day such parade, procession, or open air public meeting shall take place/ ” Id., at 119. In addition, the county administrator was empowered to “ ‘adjust the amount to be paid in order to meet the expense incident to the administration of the Ordinance and to the maintenance of public order in the matter licensed.’” Ibid. In January 1989, respondent The Nationalist Movement proposed to demonstrate in opposition to the federal holiday commemorating the birthday of Martin Luther King, Jr. In Forsyth County, the Movement sought to “conduct a rally and speeches for one and a half to two hours” on the courthouse steps on a Saturday afternoon. Nationalist Movement v. City of Cumming, 913 F. 2d 885, 887 (CA11 1990). The county imposed a $100 fee. The fee did not include any calculation for expenses incurred by law enforcement authorities, but was based on 10 hours of the county administrator’s time in issuing the permit. The county administrator testified that the cost of his time was deliberately undervalued and that he did not charge for the clerical support involved in processing the application. Tr. 135-139. The Movement did not pay the fee and did not hold the rally. Instead, it instituted this action on January 19, 1989, in the United States District Court for the Northern District of Georgia, requesting a temporary restraining order and permanent injunction prohibiting Forsyth County from interfering with the Movement’s plans. The District Court denied the temporary restraining order and injunction. It found that, although “the instant ordinance vests much discretion in the County Administrator in determining an appropriate fee,” the determination of the fee was “based solely upon content-neutral criteria; namely, the actual costs incurred investigating and processing the application.” App. to Pet. for Cert. 13-14. Although it expressed doubt about the constitutionality of that portion of the ordinance that permits fees to be based upon the costs incident to maintaining public order, the District Court found that “the county ordinance, as applied in this ease, is not unconstitutional.” Id., at 14. The United States Court of Appeals for the Eleventh Circuit reversed this aspect of the District Court's judgment. Nationalist Movement v. City of Cumming, 913 F. 2d 885 (1990). Relying on its prior opinion in Central Florida Nuclear Freeze Campaign v. Walsh, 774 F. 2d 1515, 1521 (CA11 1985), cert. denied, 475 U. S. 1120 (1986), the Court of Appeals held: “An ordinance which charges more than a nominal fee for using public forums for public issue speech, violates the First Amendment.” 913 F. 2d, at 891 (internal quotation marks omitted). The court determined that a permit fee of up to $1,000 a day exceeded this constitutional threshold. Ibid. One judge concurred specially, calling for Central Florida to be overruled. 913 F. 2d, at 896. -- The Court of Appeals then voted to vacate the panel's opinion ánd to rehear the ease en banc, 921 F. 2d 1125 (1990). After further briefing, the court issued a per cu-riam opinion reinstating the panel opinion in its entirety. 934 F. 2d 1482, 1483 (1991). Two judges, concurring in part and dissenting in part, agreed that any fee imposed on the exercise of First Amendment rights in a traditional public forum must be nominal if it is to survive constitutional scrutiny. Those judges, however, did not believe that the county ordinance swept so broadly that it was facially invalid, and would have remanded the case for the District Court to determine whether the fee was nominal. Ibid. Three judges dissented, arguing that this Court’s cases do not require that fees be nominal. Id., at 1493. We granted certiorari to resolve a conflict among the Courts of Appeals concerning the constitutionality of charging a fee for a speaker in a public forum. 502 U. S. 1023 (1991). II Respondent mounts a facial challenge to the Forsyth County ordinance. It is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable. See, e.g., City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 798-799, and n. 15 (1984); Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569, 574 (1987). This exception from general standing rules is based on an appreciation that the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court. See, e.g., New York v. Ferber, 458 U.S. 747, 772 (1982); Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 503 (1985). Thus, the Court has permitted a party to challenge an ordinance under the overbreadth doctrine in eases where every application creates an impermissible risk of suppression of ideas, such as an ordinance that delegates overly broad discretion to the decisionmaker, see Thornhill v. Ala bama, 310 U. S. 88, 97 (1940); Freedman v. Maryland, 380 U. S. 51, 56 (1965); Taxpayers for Vincent, 466 U. S., at 798, n. 15, and in cases where the ordinance sweeps too broadly, penalizing a substantial amount of speech that is constitutionally protected, see Broadrick v. Oklahoma, 413 U. S. 601 (1973); Jews for Jesus, 482 U. S., at 574-575. The Forsyth County ordinance requiring a permit and a fee before authorizing public speaking, parades, or assemblies in “the archetype of a traditional public forum,” Frisby v. Schultz, 487 U. S. 474, 480 (1988), is a prior restraint on speech, see Shuttlesworth v. Birmingham, 394 U.S. 147, 150-151 (1969); Niemotko v. Maryland, 340 U. S. 268, 271 (1951). Although there is a “heavy presumption” against the validity of a prior restraint, Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70 (1963), the Court has recognized that government, in order to regulate competing uses of public forums, may impose a permit requirement on those wishing to hold a march, parade, or rally, see Cox v. New Hampshire, 312 U. S. 569, 574-576 (1941). Such a scheme, however, must meet certain constitutional requirements. It may not delegate overly broad licensing discretion to a government official. See Freedman v. Maryland, supra. Further, any permit scheme controlling the time, place, and manner of speech must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication. See United States v. Grace, 461 U. S. 171, 177 (1983). -A Respondent contends that the county ordinance is facially invalid because it does not prescribe adequate standards for the administrator to apply when he sets a permit fee. A government regulation that allows arbitrary application is “inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view.” Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640, 649 (1981). To curtail that risk, “a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license” must contain “narrow, objective, and definite standards to guide the licensing authority.” Shuttlesworth, 394 U. S., at 150-151; see also Niemotko, 340 U. S., at 271. The reasoning is simple: If the permit scheme “involves appraisal of facts, the exercise of judgment, and the formation of an opinion,” Cantwell v. Connecticut, 310 U. S. 296, 305 (1940), by the licensing authority, “the danger of censorship and of abridgment of our precious First Amendment freedoms is too great” to be permitted, Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 553 (1975). In evaluating respondent’s facial challenge, we must consider the county’s authoritative constructions of the ordinance, including its own implementation and interpretation of it. See Ward v. Rock Against Racism, 491 U. S. 781, 795-796 (1989); Lakewood v. Plain Dealer Publishing Co., 486 U. S. 750, 770, n. 11 (1988); Gooding v. Wilson, 405 U. S. 518, 524-528 (1972). In the present litigation, the county has made clear how it interprets and implements the ordinance. The ordinance can apply to any activity on public property— from parades, to street corner speeches, to bike races — and the fee assessed may reflect the county’s police and administrative costs. Whether or not, in any given instance, the fee would include any or all of the county’s administrative and security expenses is decided by the county administrator. In this case, according to testimony at the District Court hearing, the administrator based the fee on his own judgment of what would be reasonable! Although the county paid for clerical support and staff as an “expense incident to the administration” of the permit, the administrator testified that he chose in this instance not to include that expense in the fee. The administrator also attested that he had deliberately kept the fee low by undervaluing the cost of the time he spent processing the application. Even if he had spent more time on the project, he claimed, he would not have charged more. He further testified that, in this instance, he chose not to include any charge for expected security expense. Tr. 135-139. The administrator also explained that the county had imposed a fee pursuant to a permit on two prior occasions. The year before, the administrator had assessed a fee of $100 for a permit for the Movement. The administrator testified that he charged the same fee the following year (the year in question here), although he did not state that the Movement was seeking the same use of county property or that it required the same amount of administrative time to process. Id, at 138. The administrator also once charged bike-race organizers $25 to hold a race on county roads, but he did not explain why processing a bike-race permit demanded less administrative time than processing a parade permit or why he had chosen to assess $25 in that instance. Id., at 143-144. At oral argument in this Court, counsel for Forsyth County stated that the administrator had levied a $5 fee on the Girl Scouts for an activity on county property. Tr. of Oral Arg. 26. Finally, the administrator testified that in other eases the county required neither a permit nor a fee for activities in other county facilities or on county land. Tr. 146. Based on the county’s implementation and construction of the ordinance, it simply cannot be said that there are any “narrowly drawn, reasonable and definite standards,” Niemotko, 340 U. S., at 271, guiding the hand of the Forsyth County administrator. The decision how much to charge for police protection or administrative time — or even whether to charge at all — is left to the whim of the administrator. There are no articulated standards either in the ordinance or in the county’s established practice. The administrator is not required to rely on any objective factors. He need not provide any explanation for his decision, and that decision is unreviewable. Nothing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees. The First Amendment prohibits the vesting of such unbridled discretion in a government official. B The Forsyth County ordinance contains more than the possibility of censorship through uncontrolled discretion. As construed by the county, the ordinance often requires that the fee be based on the content of the speech. The county envisions that the administrator, in appropriate instances, will assess a fee to cover “the cost of necessary and reasonable protection of persons participating in or observing said . . . activitfyj.” See App. to Pet. for Cert. 100. In order to assess accurately the cost of security for parade participants, the administrator “ ‘must necessarily examine the content of the message that is conveyed/” Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221, 230 (1987), quoting FCC v. League of Women Voters of Cal., 468 U. S. 364, 383 (1984), estimate the response of others to that content, and judge the number of police necessary to meet that response. The fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit. Although petitioner agrees that the cost of policing relates to content, see Tr. of Oral Arg. 15 and 24, it contends that the ordinance is content neutral because it is aimed only at a secondary effect — the cost of maintaining public order. It is clear, however, that, in this case, it cannot be said that the fee’s justification ‘“ha[s] nothing to do with content.’” Ward, 491 U. S., at 792, quoting Boos v. Barry, 485 U. S. 312, 320 (1988) (opinion of O’Connor, J.). The costs to which petitioner refers are those associated with the public’s reaction to the speech. Listeners’ reaction to speech is not a content-neutral basis for regulation. See id., at 321 (opinion of O’Connor, J.); id., at 334 (opinion of Brennan, J.); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 55-56 (1988); Murdock v. Pennsylvania, 319 U. S. 105, 116 (1943); cf. Schneider v. State (Town of Irvington), 308 U. S. 147, 162 (1939) (fact that city is financially burdened when listeners throw leaflets on the street does not justify restriction on distribution of leaflets). Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob. See Gooding v. Wilson, 405 U. S. 518 (1972); Terminiello v. Chicago, 337 U. S. 1 (1949). This Court has held time and again: "Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.” Regan v. Time, Inc., 468 U. S. 641, 648-649 (1984); Simon & Schuster, Inc. v. Member of N. Y. State Crime Victims Bd., 502 U. S. 105, 116 (1991); Arkansas Writers' Project, 481 U. S., at 230. The county offers only one justification for this ordinance: raising revenue for police services. While this undoubtedly is an important government responsibility, it does not justify a content-based permit fee. See id., at 229-231. Petitioner insists that its ordinance cannot be unconstitutionally content based because it contains much of the same language as did the state statute upheld in Cox v. New Hampshire, 312 U. S. 569 (1941). Although the Supreme Court of New Hampshire had interpreted the statute at issue in Cox to authorize the municipality to charge a permit fee for the “maintenance of public order,” no fee was actually assessed. See id., at 577. Nothing in this Court’s opinion suggests that the statute, as interpreted by the New Hampshire Supreme Court, called for charging a premium in the case of a controversial political message delivered before a hostile audience. In light of the Court’s subsequent First Amendment jurisprudence, we do not read Cox to permit such a premium. C Petitioner, as well as the Court of Appeals and the District Court, all rely on the maximum allowable fee as the touchstone of constitutionality. Petitioner contends that the $1,000 cap on the fee ensures that the ordinance will not result in content-based discrimination. The ordinance was found unconstitutional by the Court of Appeals because the $1,000 cap was not sufficiently low to be “nominal.” Neither the $1,000 cap on the fee charged, nor even some lower nominal cap, could save the ordinance because in this context, the level of the fee is irrelevant. A tax based on the content of speech does not become more constitutional because it is a small tax. The lower courts derived their requirement that the permit fee be “nominal” from a sentence in the opinion in Murdock v. Pennsylvania, 319 U. S. 105 (1943). In Murdock, the Court invalidated a flat license fee levied on distributors of religious literature. In distinguishing the case from Cox, where the Court upheld a permit fee, the Court stated: “And the fee is not a nominal one, imposed as a regulatory measure and calculated to defray the expense of protecting those on the streets and at home against the abuses of solicitors.” 319 U. S., at 116. This sentence does not mean that an invalid fee can be saved if it is nominal, or that only nominal charges are constitutionally permissible. It reflects merely one distinction between the facts in Murdock and those in Cox. The tax at issue in Murdock was invalid because it was unrelated to any legitimate state interest, not because it was of a particular size. Similarly, the provision of the Forsyth County ordinance relating to fees is invalid because it unconstitutionally ties the amount of the fee to the content of the speech and lacks adequate procedural safeguards; no limit on such a fee can remedy these constitutional violations. The judgment of the Court of Appeals is affirmed. It is so ordered. The 1910 census counted 1,098 African-Americans in Forsyth County. U. S. Dept, of Commerce, Bureau of Census, Negro Population 1790-1915, p. 779 (1918). For a description of the 1912 events, see generally Hack-worth, “Completing the Job” in Forsyth County, 8 Southern Exposure 26 (1980). See J. Clements, Georgia Facts 184 (1989); Hackworth, 8 Southern Exposure, at 26 (“[0]ther than an occasional delivery truck driver or visiting government official, there are currently no black faces anywhere in the county”). See Chicago Tribune, Jan. 25, 1987, p. 1; Los Angeles Times, Jan. 25, 1987, p. 1, col. 2; App. to Pet. for Cert. 89-91. Petitioner Forsyth County does not indicate what portion of these costs it paid. Newspaper articles reported that the State of Georgia paid an estimated $579,148. Other government entities paid an additional $29,769. Figures were not available for the portion paid by the city of Atlanta for the police it sent. See id., at 95-97. The ordinance was amended at other times, too, but those amendments are not under challenge here. The demonstration proposed was to consist of assembling at the For-syth County High School, marching down a public street in Cumming to the courthouse square, and there conducting a rally. Only the rally was to take place on property under the jurisdiction of the county. The parade and assembly required permits from the city of Cumming and the Forsyth County Board of Education. Their permit schemes are not challenged here. These judges also found that the ordinance contained sufficiently tailored standards for the administrator to use in reviewing permit applications. 934 F. 2d 1482, 1487-1489 (1991). This issue was raised by respondent, but the panel did not reach it. Compare the Eleventh Circuit’s opinions in this litigation, 913 F. 2d 885, 891 (1990), and 934 F. 2d 1482, 1483 (1991), with Stonewall Union v. Columbus, 931 F. 2d 1130, 1136 (CA6) (permitting greater than nominal fees that are reasonably related to expenses incident to the preservation of public safety and order), cert. denied, 502 U. S. 899 (1991); Eastern Conn. Citizens Action Group v. Powers, 723 F. 2d 1050, 1056 (CA2 1983) (licensing fees permissible only to offset expenses associated with processing applications for public property); Fernandes v. Limmer, 663 F. 2d 619, 632-633 (CA5 1981) ($6 fiat fee for permit was unconstitutional), cert. dism’d, 458 U. S. 1124 (1982). In pertinent part, the ordinance, as amended, states that the administrator “shall adjust the amount to be paid in order to meet the expense incident to the administration of the Ordinance and to the maintenance of public order.” §3(6) (emphasis added), App. to Pet. for Cert. 119. This could suggest that the administrator has no authority to reduce or waive these expenses. It has not been so understood, however, by the county. See 934 F. 2d, at 1488, n. 12 (opinion concurring in part and dissenting in part). In its February 23, 1987, amendments to the ordinance, the board of commissioners changed the permit form from “Have you paid the application fee?” to “Have you paid any application fee?,” see App. to Pet. for Cert. 115 (emphasis added), thus acknowledging the administrator’s authority to charge no fee. The District Court’s finding that in this instance the Forsyth County administrator applied legitimate, content-neutral criteria, even if correct, is irrelevant to this facial challenge. Facial attacks on the discretion granted a decisionmaker are not dependent on the facts surrounding any particular permit decision. See Lakewood v. Plain Dealer Publishing Co., 486 U. S. 760, 770 (1988). “It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion.” Thornhill v. Alabama, 310 U. S. 88, 97 (1940). Accordingly, the success of a facial challenge on the grounds that an ordinance delegates overly broad discretion to the decisionmaker rests not on whether the administrator has exercised his discretion in a content-based manner, but whether there is anything in the ordinance preventing him from doing so. Petitioner also claims that Cox v. New Hampshire, 312 U. S. 569 (1941), excuses the administrator’s discretion in setting the fee. Reliance on Cox is misplaced. Although the discretion granted to the administrator under the language in this ordinance is the same as in the statute at issue in Cox, the interpretation and application of that language are different. Unlike this case, there was in Cox no testimony or evidence that the statute granted unfettered discretion to the licensing authority. Id., at 576-577. The dissent prefers a remand because there are no lower court findings on the question whether the county plans to base parade fees on hostile crowds. See post, at 142. We disagree. A remand is unnecessary because there is no question that petitioner intends the ordinance to recoup costs that are related to listeners’ reaction to the speech. Petitioner readily admits it did not charge for police protection for the 4th of July parades, although they were substantial parades, which required the closing of streets and drew large crowds. Petitioner imposed a fee only when it became necessary to provide security for parade participants from angry crowds opposing their message. Brief for Petitioner 6. The ordinance itself makes plain that the costs at issue are those needed for “necessary and reasonable protection of persons participating in or observing” the speech. See App. to Pet. for Cert. 100. Repayment for police protection is the “[m]ost importan[t]” purpose underlying the ordinance. Brief for Petitioner 6-7. In this Court, petitioner specifically ruges reversal because the lower court has “taken away the right of local government to obtain reimbursement for administration and policing costs which are incurred in protecting those using government property for expression.” Id., at 17 (emphasis added). When directly faced with the Court, of Appeals’ concern about “the enhanced cost associated with policing expressive activity which would generate potentially violent reactions,” id., at 36, petitioner responded not by arguing that it did not intend to charge for police protection, but that such a charge was permissible because the ordinance provided a cap. See id., at 36-37; Tr. of Oral Arg. 24. At no point, in any level of proceedings, has petitioner intimated that it did not construe the ordinance consistent with its language permitting fees to be charged for the cost of police protection from hostile crowds. We find no disputed interpretation of the ordinance necessitating a remand. Question: What is the agency involved in the administrative action? 001. Army and Air Force Exchange Service 002. Atomic Energy Commission 003. Secretary or administrative unit or personnel of the U.S. Air Force 004. Department or Secretary of Agriculture 005. Alien Property Custodian 006. Secretary or administrative unit or personnel of the U.S. Army 007. Board of Immigration Appeals 008. Bureau of Indian Affairs 009. Bureau of Prisons 010. Bonneville Power Administration 011. Benefits Review Board 012. Civil Aeronautics Board 013. Bureau of the Census 014. Central Intelligence Agency 015. Commodity Futures Trading Commission 016. Department or Secretary of Commerce 017. Comptroller of Currency 018. Consumer Product Safety Commission 019. Civil Rights Commission 020. Civil Service Commission, U.S. 021. Customs Service or Commissioner or Collector of Customs 022. Defense Base Closure and REalignment Commission 023. Drug Enforcement Agency 024. Department or Secretary of Defense (and Department or Secretary of War) 025. Department or Secretary of Energy 026. Department or Secretary of the Interior 027. Department of Justice or Attorney General 028. Department or Secretary of State 029. Department or Secretary of Transportation 030. Department or Secretary of Education 031. U.S. Employees' Compensation Commission, or Commissioner 032. Equal Employment Opportunity Commission 033. Environmental Protection Agency or Administrator 034. Federal Aviation Agency or Administration 035. Federal Bureau of Investigation or Director 036. Federal Bureau of Prisons 037. Farm Credit Administration 038. Federal Communications Commission (including a predecessor, Federal Radio Commission) 039. Federal Credit Union Administration 040. Food and Drug Administration 041. Federal Deposit Insurance Corporation 042. Federal Energy Administration 043. Federal Election Commission 044. Federal Energy Regulatory Commission 045. Federal Housing Administration 046. Federal Home Loan Bank Board 047. Federal Labor Relations Authority 048. Federal Maritime Board 049. Federal Maritime Commission 050. Farmers Home Administration 051. Federal Parole Board 052. Federal Power Commission 053. Federal Railroad Administration 054. Federal Reserve Board of Governors 055. Federal Reserve System 056. Federal Savings and Loan Insurance Corporation 057. Federal Trade Commission 058. Federal Works Administration, or Administrator 059. General Accounting Office 060. Comptroller General 061. General Services Administration 062. Department or Secretary of Health, Education and Welfare 063. Department or Secretary of Health and Human Services 064. Department or Secretary of Housing and Urban Development 065. Administrative agency established under an interstate compact (except for the MTC) 066. Interstate Commerce Commission 067. Indian Claims Commission 068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 069. Internal Revenue Service, Collector, Commissioner, or District Director of 070. Information Security Oversight Office 071. Department or Secretary of Labor 072. Loyalty Review Board 073. Legal Services Corporation 074. Merit Systems Protection Board 075. Multistate Tax Commission 076. National Aeronautics and Space Administration 077. Secretary or administrative unit or personnel of the U.S. Navy 078. National Credit Union Administration 079. National Endowment for the Arts 080. National Enforcement Commission 081. National Highway Traffic Safety Administration 082. National Labor Relations Board, or regional office or officer 083. National Mediation Board 084. National Railroad Adjustment Board 085. Nuclear Regulatory Commission 086. National Security Agency 087. Office of Economic Opportunity 088. Office of Management and Budget 089. Office of Price Administration, or Price Administrator 090. Office of Personnel Management 091. Occupational Safety and Health Administration 092. Occupational Safety and Health Review Commission 093. Office of Workers' Compensation Programs 094. Patent Office, or Commissioner of, or Board of Appeals of 095. Pay Board (established under the Economic Stabilization Act of 1970) 096. Pension Benefit Guaranty Corporation 097. U.S. Public Health Service 098. Postal Rate Commission 099. Provider Reimbursement Review Board 100. Renegotiation Board 101. Railroad Adjustment Board 102. Railroad Retirement Board 103. Subversive Activities Control Board 104. Small Business Administration 105. Securities and Exchange Commission 106. Social Security Administration or Commissioner 107. Selective Service System 108. Department or Secretary of the Treasury 109. Tennessee Valley Authority 110. United States Forest Service 111. United States Parole Commission 112. Postal Service and Post Office, or Postmaster General, or Postmaster 113. United States Sentencing Commission 114. Veterans' Administration or Board of Veterans' Appeals 115. War Production Board 116. Wage Stabilization Board 117. State Agency 118. Unidentifiable 119. Office of Thrift Supervision 120. Department of Homeland Security 121. Board of General Appraisers 122. Board of Tax Appeals 123. General Land Office or Commissioners 124. NO Admin Action 125. Processing Tax Board of Review Answer:
sc_issue_9	32	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. COSTELLO et al. v. WAINWRIGHT, SECRETARY, FLORIDA DEPARTMENT OF OFFENDER REHABILITATION, et al. No. 76-5920. Decided March 21, 1977 Per Curiam. The motion to strike the brief of the United States as amicus curiae is denied. Petitioners in this case attacked the overcrowding in Florida’s prisons as violative of the Cruel and Unusual Punishments Clause of the Eighth Amendment, made applicable to the States by the Fourteenth. A single District Judge found substantial constitutional violations and issued a preliminary injunction ordering the Division of Corrections either to reduce the inmate population or to increase prison capacity. In an en banc decision, the United States Court of Appeals for the Fifth Circuit vacated the District Court’s decision on the ground that only a three-judge court convened in accordance with 28 U. S. C. § 2281 could order such relief. 539 F. 2d 547 (1976). On its face, the complaint that initiated this case involved no challenge to state statutes or regulations. There was thus no reason at the beginning of this litigation to suspect that a three-judge court should hear the case. See Moody v. Flowers, 387 U. S. 97, 104 (1967); Baxter v. Palmigiano, 425 U. S. 308 (1976); Morales v. Turman, ante, p. 322. In granting equitable relief, however, the District Court contemplated as one means of relieving the prison system’s unconstitutional overcrowding the possibility that state prison officials would have to violate their statutory duty to continue to accept custody of prisoners properly committed to them. The Court of Appeals concluded that such equitable relief could be granted only by a three-judge court, apparently because it viewed the possible temporary suspension of an otherwise valid state statute to effectuate federally mandated relief as equivalent to finding that statute unconstitutional. We cannot agree. The applicability of § 2281 as written turns on whether a state statute is alleged to be unconstitutional, not on whether an equitable remedy for unconstitutional state administrative behavior ultimately impinges on duties imposed under concededly constitutional state statutes. To hold otherwise would require postponing the threshold question of jurisdiction until the merits of the controversy had been fully resolved and the broad outlines of equitable relief discerned. Section 2281 embodies no such wasteful and uncertain mandate. Since we conclude that the single District Judge properly exercised full jurisdiction in this case, and that his judgment is, therefore, reviewable on the merits in the Court of Appeals (28 U. S. C. § 1291), the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Question: What is the issue of the decision? 01. comity: civil rights 02. comity: criminal procedure 03. comity: First Amendment 04. comity: habeas corpus 05. comity: military 06. comity: obscenity 07. comity: privacy 08. comity: miscellaneous 09. comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals 10. assessment of costs or damages: as part of a court order 11. Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules 12. judicial review of administrative agency's or administrative official's actions and procedures 13. mootness (cf. standing to sue: live dispute) 14. venue 15. no merits: writ improvidently granted 16. no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit 17. no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals) 18. no merits: adequate non-federal grounds for decision 19. no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law) 20. no merits: miscellaneous 21. standing to sue: adversary parties 22. standing to sue: direct injury 23. standing to sue: legal injury 24. standing to sue: personal injury 25. standing to sue: justiciable question 26. standing to sue: live dispute 27. standing to sue: parens patriae standing 28. standing to sue: statutory standing 29. standing to sue: private or implied cause of action 30. standing to sue: taxpayer's suit 31. standing to sue: miscellaneous 32. judicial administration: jurisdiction or authority of federal district courts or territorial courts 33. judicial administration: jurisdiction or authority of federal courts of appeals 34. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753) 35. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court 36. judicial administration: jurisdiction or authority of the Court of Claims 37. judicial administration: Supreme Court's original jurisdiction 38. judicial administration: review of non-final order 39. judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision) 40. judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question) 41. judicial administration: ancillary or pendent jurisdiction 42. judicial administration: extraordinary relief (e.g., mandamus, injunction) 43. judicial administration: certification (cf. objection to reason for denial of certiorari or appeal) 44. judicial administration: resolution of circuit conflict, or conflict between or among other courts 45. judicial administration: objection to reason for denial of certiorari or appeal 46. judicial administration: collateral estoppel or res judicata 47. judicial administration: interpleader 48. judicial administration: untimely filing 49. judicial administration: Act of State doctrine 50. judicial administration: miscellaneous 51. Supreme Court's certiorari, writ of error, or appeals jurisdiction 52. miscellaneous judicial power, especially diversity jurisdiction Answer:
songer_typeiss	C	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. Herbert TRAPP, T. A. McGaughey, F. J. Kailer, J. A. Todd, and Vincent Bogart, as the Board of Trustees of the Firemen’s Pension Fund, and Ralph A. Klose, City Treasurer of the City of Wichita, Appellants, v. Peggy J. GOETZ, Appellee. No. 8402. United States Court of Appeals Tenth Circuit. July 29, 1966. Eugene Pirtle and H. Jay Setter, Wichita, Kan. (John Dekker, Wichita, Kan., with them on the brief), for appellants. Harry L. Hobson, Wichita, Kan. (J. Francis Hesse and Stephen M. Blaes, of Joehems, Sargent & Blaes, Wichita, Kan., with him on the brief), for appellee. Before BREITENSTEIN, HILL and SETH, Circuit Judges. SETH, Circuit Judge. Appellee commenced this action in the United States District Court for the District of Kansas by the filing of a complaint which asserted that she was the widow of a member of the Wichita Fire Department, that the Board of Trustees of the Firemen’s Pension Fund had denied her benefits under a Kansas statute relating to firemen’s pensions, and a money judgment was sought. Appellants, the trustees of the pension fund and the city treasurer, in their answer denied that the appellee was entitled to relief, and asserted that the federal court had no jurisdiction. The United States District Judge* who handled the pretrial proceedings overruled the appellants’ assertions as to lack of jurisdiction, found that diversity jurisdiction existed, and found it was not necessary to consider a due process argument of lack of notice and hearing which had been raised by the appellee. The judge further held that the plaintiff had asserted a claim for relief and that she at trial would have to establish the alleged contractual relationship arising under the statute providing for a pension and the breach thereof. The case was thereafter tried to a jury. The trial judge was different from the one who held the pretrial proceedings. He submitted the case to the jury upon two questions for a special verdict. The jury answered one of the questions, but did not answer the other. On the basis of the answer given the trial court entered judgment for the plaintiff. Some consideration of the proceedings which antedated the appellee’s complaint is necessary. The record shows that appellee’s husband, a Wichita fireman, was denied a pension by the appellants which he claimed was due him by reason of a heart condition incurred during the course of his duties. The fireman thereafter sought a writ of mandamus in the state district court, and an order directing payment of his pension. This procedure was followed since there is no express statutory provision for appeal from or review of the action of the board of trustees of the Wichita Firemen’s Pension Fund. The court upheld the action of the board, after a remand with a board rehearing, and from this ruling the fireman took an appeal to the Kansas Supreme Court. The Supreme Court affirmed the district court’s action on June 6, 1964. However, some five months before the Kansas Supreme Court acted on the case, the fireman died. On January 21, 1964, the appellee-widow of the fireman filed her claim with the pension board for a pension as a widow. Thus her claim was filed before the Kansas Supreme Court had acted upon the claim of her husband. The record shows that on March 4, 1964, the board met, and among other matters presented was the application of appellee for a pension. The board minutes recite that the board members had read her application prior to the meeting, but on motion made and seconded it was decided that no action be taken until the state Supreme Court had decided the appeal of appellee’s deceased husband. The appellee was advised by letter of the board’s resolution. The letter stated that the board was not in a position to hold a hearing upon the application, and that it was awaiting the decision of the Supreme Court on the claim of her deceased husband. The record thus shows that the administrative board made no decision on the merits of appellee’s claim. It received the claim, but the minutes of the meeting and the correspondence show that action was deferred until the state Supreme Court had acted. Thus there had been no final determination on the merits. Under this state of facts, a court could not interfere with the administrative proceedings. This action with which we are here concerned was filed in the federal district court before the Kansas Supreme Court had acted; and consequently, the pension board had no opportunity to proceed further. Where a court has the power and authority to consider action of administrative bodies, there must be a reviewable decision of the board, and here there is none. St. Germaine v. Alamo Motor Lines, 252 F.2d 10 (5th Cir.). A federal court cannot undertake functions which are properly those of an administrative agency. Converse v. Commonwealth of Massachusetts, 101 F.2d 48 (2d Cir.). Even if it be considered that there was final action taken by the board, as urged by the appellee, the United States District Court had no power to consider an appeal from the state administrative tribunal. Such a proceeding is not within its statutory jurisdiction. The appellee in her complaint asserted that her application for benefits was denied by the board, and that it continued to refuse to pay. The complaint so asserting denial of relief by the board was in reality an appeal from the board’s action. No such appeal lies to the United States District Court. This issue was considered by the United States Supreme Court in Chicago, R. I. & P. R. R. v. Stude, 346 U.S. 574, 74 S.Ct. 290, 98 L.Ed. 317, which arose in a different manner, but where the same principle was applied. There the Court held that a United States District Court could not review an appeal action taken either administratively or judicially in a state proceeding. The Court there cited Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424, an equitable action where the Court also held in substance that a United States District Court could not be changed into an appellate tribunal. See also General Inv. & Serv. Corp. v. Wichita Water Co., 236 F.2d 464 (10th Cir.). Thus the presence of diversity of citizenship and of the requisite amount in controversy is not always sufficient to provide jurisdiction to a United States District Court where the proceedings originate in the administrative or judicial acts of a state. An appeal from a state administrative board is not a “civil action” as required by 28 U.S.C.A. § 1331 or § 1332. The district courts are, of course, courts of limited jurisdiction and the jurisdictional statutes are closely construed. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194; F & S Construction Co. v. Jensen, 337 F.2d 160 (10th Cir.); Buell v. Sears, Roebuck and Co., 321 F.2d 468 (10th Cir.). If on the other hand the proceedings in the United States District Court were not an appeal, then they were an orginal action there commenced to obtain a pension. Appellee alleges a contractual right, and in oral argument such a right to bring an original action was indicated by appellee. There is however no showing that the Kansas state courts would have any jurisdiction to hear such an original proceeding and so to bypass the administrative agency. If the state court has no such authority the federal district court has none. We so held in Erwin v. Barrow, 217 F.2d 522 (10th Cir.), and Britton v. Dowell, Inc., 237 F.2d 630 (10th Cir.). There is no substance to the due process argument asserted by the appellee as the basis for jurisdiction of the trial court. The record clearly shows that no decision was made on the merits of her application, and all that was done by the board was to defer action. Thus there is no issue of a denial of benefits without notice and hearing because there was no denial. For the reasons hereinabove stated, the case is reversed with directions that the cause be dismissed. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_usc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. UNITED STATES of America, Appellee, v. Seymour Joseph CASSEL, Appellant. No. 81-1651. United States Court of Appeals, Eighth Circuit. Submitted Dec. 17, 1981. Decided Jan. 14, 1982. Rehearing and Rehearing En Banc Denied Feb. 12,1982. Richard G. Sherman, Los Angeles, Cal., for defendant-appellant, Seymour Joseph Cassel. Judith A. Whetstine, Asst. U. S. Atty., N. D. Iowa, Cedar Rapids, Iowa, for appellee. Before HEANEY, BRIGHT and ROSS, Circuit Judges. HEANEY, Circuit Judge. Seymour Cassel appeals from his convictions for conspiracy to possess cocaine with intent to distribute and to distribute cocaine in violation of 21 U.S.C. §§ 841, 846 and 18 U.S.C. § 2(a), and for using a telephone to facilitate the possession of cocaine with intent to distribute in violation of 21 U.S.C. § 843. We affirm. Cassel was fined $15,000 and sentenced to five-years imprisonment, to be suspended on the condition that he be confined to a treatment center for six months and thereafter be placed on probation for four years on the conspiracy count, and was fined $10,-000 and sentenced to a six-month term in a treatment center to be followed by four years of probation on the telephone count. The sentences are to run consecutively. Cassel appeals, contending that the district court committed reversible error (1) by failing to give the defendant’s requested jury instructions, and (2) by refusing to include certain questions requested by the defendant in the court’s voir dire of prospective jurors. As to Cassel’s first contention, we have carefully reviewed the record and briefs, and find that the district court’s refusal to give the requested instructions did not constitute reversible error. Cassel’s second contention presents more troublesome questions which require greater discussion. The district court conducted the jury voir dire. The defendant proposed a number of questions for prospective jurors which the trial judge refused to ask. The questions can be placed in three general categories: (1) whether the venirepersons had some relationship with anyone in a law enforcement agency; (2) whether they, or any of their friends or family, had been a victim of a crime; and (3) whether they understood or were willing to accept the trial court’s instructions regarding burden of proof and a variety of other propositions of law. The record is silent as to why the district court refused to ask the precise question in category (1). The district court indicated that it refused to ask the questions in category (2) because it had already covered the inquiry in substance in another form. Finally, the district court declined to ask the questions in category (3) on the ground that they would be covered in the jury instructions. After reviewing the record, we are left with the view that the district court’s failure to ask the proposed questions was unjustified. While a busy trial judge can always consider the factor of time in determining how to conduct voir dire; here, the defendant’s proposed questions could have been asked in a reasonably short period. Moreover, the questions might have aided Cassel in exercising his peremptory and for cause challenges. The question remains, however, as to whether the district court’s voir dire was so inadequate as to deny the defendant a fair trial. “Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored.” Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68 L.Ed. 22, 28 (1981). Without an adequate voir dire, the trial judge cannot fulfill his duty to remove prospective jurors who will not be able to impartially follow the court’s instructions and evaluate the evidence. Id. Moreover, a careful voir dire is necessary to solicit sufficient information to permit a defendant to intelligently exercise his peremptory challenges, as well as his challenges for cause. Id.; United States v. Barnes, 604 F.2d 121, 142 (2d Cir. 1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980). Notwithstanding the importance of voir dire, federal judges are accorded substantial discretion in determining how best to conduct voir dire. Rosales-Lopez v. United States, supra, 451 U.S. at 188-91, 101 S.Ct. at 1634-35, 68 L.Ed. at 28-29; United States v. Bowman, 602 F.2d 160, 165 (8th Cir. 1979). This discretion, however, is not unlimited. It must be exercised consistent with “the essential demands of fairness.” E.g., Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 471, 75 L.Ed. 1054 (1931); United States v. Delval, 600 F.2d 1098, 1102 (5th Cir. 1979). The district court has a duty to ensure that the defendant receives a fair trial. United States v. Poludniak, 657 F.2d 948, 957 (8th Cir. 1981). To comply with this duty, the district court’s voir dire must “have created ‘a reasonable assurance that prejudice could be discovered if present.’ ” United States v. Delval, supra, 600 F.2d at 1102-1103. In other words, “the central inquiry is whether the district judge’s ‘overall examination, coupled with his charge to the jury, affords a party the protection sought.’ ” Id. We recognize that there is no set formula for determining when a district court’s voir dire is constitutionally deficient. But several factors present here convince us that the district court’s voir dire was not so inadequate as to violate the Constitution. First, the district court asked a question with respect to law enforcement officers that was similar to defendant’s proposed question in category (1). The court inquired: “Have you or any members of your immediate families ever served as law enforcement officers? This would mean members of police force, sheriff’s department, deputies, any type of law enforcement. FBI, whatever it might be.” Second, after the defense counsel objected to the court’s failure to ask the proposed questions in category (2), the court stated: “Have any of you ever been a victim of a crime? Have any of you, or members of your immediate family, ever been a complaining witness in a criminal case?” While it is not entirely clear that this statement was addressed to the jury as a question, it was made in the presence of the jury and the jury had some opportunity to respond. Third, Cassel has not demonstrated that his proposed questions related to specific issues or circumstances in this case. Compare United States v. Dellinger, 472 F.2d 340, 367-370 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973) (In “Chicago 7” trial, the district court erred by not asking questions that would have elicited a prospective juror’s attitude toward public protest against the Vietnam War, long hair, lifestyles different than their own, policemen and so forth.). Fourth, the defendant does not point to any specific prejudice that the proposed questions might have uncovered. See United States v. Delval, supra, 600 F.2d at 1103 (No reversible error in district court’s voir dire.). Finally, the district court’s jury instructions covered at least the substance of defendant’s proposed questions in category (3). See Jacobs v. Redman, 616 F.2d 1251, 1255-1256 (3d Cir.), cert. denied, 446 U.S. 944, 100 S.Ct. 2170, 64 L.Ed.2d 799 (1980) (No reversible error in district court’s voir dire.). The judgment of the district court is, therefore, affirmed. . 1. Are any of you friendly, associated, or related to any one in the prosecutor’s office, the police department, or any law enforcement agency? . [1] Have any of you ever been the victim of a crime, and if so, what was the crime? [2] Have any members of your family or close friends ever been the victim of a crime, and if so, what was the crime? [3] Have you or any members of your families ever been the complaining witnesses in a criminal case, and if so, with what crime was the defendant charged? . For example, the defendant requested that the trial court ask the following questions: [1] Do you understand that all the elements of the crime charged must be proved beyond a reasonable doubt, and that if one element is not proven beyond a reasonable doubt, would you then vote not guilty? ♦ * ¡j« * * * [2] You understand, do you not, that the burden of proving the defendant guilty beyond a reasonable doubt rests with the prosecution, and that the accused need not introduce any evidence whatsoever? [3] You understand of course, that an impartial trial by an unbiased jury is a constitutional guarantee no matter what the charges are against the defendant? [4] Do you realize that you are bound to reach a verdict solely on the evidence introduced during the trial? [5] Do you understand that the comments of the United States attorney and defense counsel are not evidence in this case? ifc * !(< Sfc S(! * [6] Do you understand that you must accept the law in this case as presented to you by the Judge? In total, the defendant requested that the trial court ask fifteen such questions regarding legal propositions. . While the existence or nonexistence of actual juror bias is relevant to the question of whether the court’s voir dire prejudiced the defendant, a defendant need not necessarily show that members of the jury were in fact prejudiced to establish a constitutional violation. United States v. Dellinger, 472 F.2d 340, 367 (7th Cir. 1972). Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_casetyp1_2-3-3	I	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 "civil rights - other civil rights". Early C. COOPER, Plaintiff-Appellant, v. Angus WILSON, Defendant-Appellee. No. 14827. United States Court of Appeals Sixth Circuit. Oct. 12, 1962. George Bailes, Cincinnati, Ohio, Richard L. Hinton, Flemingsburg, Ky., for plaintiff-appellant. Robert G. McIntosh, Cincinnati, Ohio, McIntosh & McIntosh, Cincinnati, Ohio, Robert G. McIntosh, Cincinnati, Ohio, of counsel, for defendant-appellee. Before CECIL, Chief Judge, Mc-ALLISTER, Circuit Judge, and DARR, Senior District Judge. ORDER The appellant brought this action based on Section 1983, Title 42 U.S.C.A., jurisdiction being asserted under Section 1343, Title 28 U.S.C.A., for deprivation of his alleged civil rights by his commitment to and confinement in a mental institution. The claim is made that the appel-lee, a private practicing attorney, by his fraudulent conduct in the sanity proceedings resulted in appellant’s confinement in a mental institution. The District Court sustained appellee’s motion to dismiss the action. Appellee, acting as a private lawyer, charged with making false statements in sanity proceedings which resulted in appellant’s commitment to Longview State Hospital, a mental institution, was not amenable to action based on civil rights statute. Kenny v. Fox, 232 F.2d 288 (1956) C.A. 6. It is, therefore, ordered and adjudged that the District Court’s judgment dismissing the action is in all things affirmed. Question: What is the specific issue in the case within the general category of "civil rights - other civil rights"? A. alien petitions - (includes disputes over attempts at deportation) B. indian rights and law C. juveniles D. poverty law, rights of indigents (civil) E. rights of handicapped (includes employment) F. age discrimination (includes employment) G. discrimination based on religion or nationality H. discrimination based on sexual preference federal government (other than categories above) I. other 14th amendment and civil rights act cases J. 290 challenge to hiring, firing, promotion decision of federal government (other than categories above) K. other civil rights Answer:
songer_respond2_3_2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. REGULAR COMMON CARRIER CONFERENCE OF AMERICAN TRUCKING ASSOCIATIONS, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Kroblin Refrigerated Xpress, Inc. and Schanno Transportation, Inc., Intervenors. No. 76-1452. United States Court of Appeals, District of Columbia Circuit. Argued April 21, 1977. Decided June 2, 1977. Certiorari Denied Oct. 17, 1977. See 98 S.Ct. 299. Homer S. Carpenter, Arlington, Va., with whom R. Edwin Brady and Richard R. Sigmon, Washington, D. C., were on the brief, for petitioner. Walter H. Walker, III, Atty., I. C. C., Washington, D. C., with whom Robert S. Burk, Acting Gen. Counsel, Charles H. White, Jr., Associate Gen. Counsel, I. C. C., and Lloyd John Osborn, Atty., Dept, of Justice, Washington, D. C., were on the brief, for respondents. Anthony C. Vance, Washington, D. C., for intervenor, Schanno Transp., Inc. Thomas R. Kingsley, Washington, D. C., was on the brief for intervenor, Kroblin Refrigerated Xpress, Inc. Before McGOWAN, MacKINNON and ROBB, Circuit Judges. Opinion for the court filed by MacKINNON, Circuit Judge. MacKINNON, Circuit Judge: In April of 1973, Kroblin Refrigerated Xpress, Inc. of Waterloo, Iowa, and Schanno Transportation, Inc. of West St. Paul, Minnesota, petitioned the ICC for certificates of public convenience and necessity for carriage over “irregular routes of general commodities, with the usual exceptions . (1) from Boston, Mass., Newark, N.J., New York, N.Y., and Philadelphia, Pa., to Kansas City, Mo., Dallas and Houston, Tex., and New Orleans, La.; and (2) from Springfield, Mass., to Kansas City, Mo., and Dallas and Houston, Tex. . . .” (J.A. 8). The petitions alleged that there was an inadequacy of service between those locations as provided by currently licensed carriers and by the railroads. The principal inadequacy was felt by freight forwarders, who supported the two long-haul carriers’ applications. Freight forwarders operate as common-carriers, and hold themselves out to the public as able to provide long-haul service. In actuality, however, their function is limited to collecting small shipments and consolidating them into what were called carload lots in railroad parlance,' applicable now to the trucking industry. The administrative law judge found that the freight forwarders’ concern was an inadequate basis for finding that the required convenience and necessity existed for granting the applicant carriers the operating certificates requested. The ICC reversed that decision on October 30, 1975, and granted both applications. 123 M.C.C. 831 (1975). Competing long-haul carriers have taken this appeal. The ICC premised its decision on the ground that the need of freight forwarders to obtain long-haul rates low enough to allow the forwarders a reasonable profit was a proper consideration in determining public convenience and necessity. The Commission relied on its decision in Armellini Express Lines, Inc. Extension — Freight Forwarder Traffic, 113 M.C.C. 603 (1971), aff’d sub nom., Alterman Transport Lines, Inc. v. United States, 361 F.Supp. 664 (M.D. Fla.1973) (three-judge court). That decision held that freight forwarders could support an application for a motor carrier certificate by long-haul shippers. If the rate structure by existing carriers was so unsuitable that the freight forwarder could not obtain a return on investment sufficient to stay in business, that was held to constitute adequate proof of the necessity to authorize carriers who were willing to provide such service at lower rates and that the public convenience would be served by granting such operating authority. The problem involves a combination of service and suitable rates. In Armellini, and in the present case, the freight forwarders sought a special type of rate, the “freight-all-kinds” or “FAK” rate. The existing motor carriers were willing to offer some of the service needed at higher rates set by type of commodity; but the freight forwarders were interested in avoiding the cost of separating out types of goods being shipped (with some exceptions) and desired a lower FAK rate. Kroblin and Schanno were willing to offer the suitable rates that the forwarders considered they needed whereas protestants were not. The challenge brought against this rationale is based on the difference between freight forwarders, shippers, and common carriers. The Commission held, “suffice it to say that freight forwarders are recognized as common carriers by the act.” 123 M.C.C. at 839. Petitioners emphasize that whereas common carriers must demonstrate a “public convenience and necessity” for their service, 49 U.S.C. § 307(a), freight forwarders need only show that their service is “consistent with the public interest,” 49 U.S.C. § 1010(c), and with the national transportation policy declared in the act. Nor, in petitioners’ view, are freight forwarders equivalent to underlying shippers; their service is simply to consolidate and schedule long-haul shipments provided by other persons. Although petitioners’ disparagement of the service provided by freight forwarders in the post-rail transportation world has some validity, the fact remains that many shippers choose to deal with freight forwarders rather than to deal directly with long-haul carriers. The promptness and dependability of service offered by the freight forwarders evidently afford advantages of significant value, as judged by the marketplace. The case before us does not involve hypothetical freight forwarders attempting to prove, as a theoretic matter, the usefulness of their service. Rather, the freight forwarders concerned here are already established, and their persistent clientele testifies to the underlying public convenience and necessity in the forwarders’ continued service. To override the Commission’s decision holding that this service is consistent with the public interest, convenience and necessity in the light of such market experience would certainly go far beyond this Court’s duty to inspect for substantial evidence, and might even trespass on an area committed to the agency’s discretion. 5 U.S.C. §§ 701(a)(2), 706(2)(E) (1970). However, we do not have to decide whether freight forwarders’ support (when their services are being widely used at competitive rates) will alone suffice to uphold a carrier’s application for certificate authority, because in this case the Commission paid careful attention to the inadequacy of service currently available to shippers over the routes applied for. The Commission also found, with substantial evidence, that “the protestants [petitioners here] have refused to make any meaningful effort to negotiate suitable FAK rates with the supporting forwarders and have, thereby, demonstrated their lack of interest in the involved traffic.” (123 M.C.C. at 842; J.A. 12). The pattern of conduct by the protesting carriers is again quite similar to that found in Armellini. Cf. 361 F.Supp. at 669. And even if there were no actual intent to boycott, technical deficiencies in the existing carriers’ authority prevent them from providing the service to freight forwarders proposed by Kroblin and Schanno; Rail TOFC [trailer-on-flat-car] service has been demonstrated to be slow and erratic, and we disagree with the Administrative Law Judge that transit times of 5 to 11 days are adequate Joint-line motor carrier service is likewise slow and erratic, and it is significant that no rail carrier and only three motor common carriers oppose the application. As to the protestants, (a) none services New Orleans, (b) none has solicited or handled any of the supporting forwarders traffic, and (e) none indicated except in the most general terms, the nature, frequency, and quality of service it would provide. (123 M.C.C. at 843; J.A. 13). There being substantial evidence in support of the findings of fact of the Interstate Commerce Commission (123 M.C.C. 831), based on the entire record, Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), and this court agreeing with the conclusions of law stated by the three-judge court in Alterman Transport Lines, Inc. v. United States, supra, concerning the position of freight forwarders in the national transportation scheme, the Commission’s decision is in all respects affirmed. So ordered. . Subject to section 310 of this title, a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found that the applicant is fit, willing, and able properly to perform the service proposed and to conform to the provisions of this chapter and the requirements, rules, and regulations of the Commission thereunder, and that the proposed service, to the extent to be authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied; Provided, however, That no such certificate shall be issued to any common carrier of passengers by motor vehicle for operations over other than a regular route or routes, and between fixed termini, except as such carriers may be authorized to engage in special or charter operations. 49 U.S.C. § 307(a) (1970). . The Commission shall issue a permit to any qualified applicant therefor, authorizing the whole or any part of the service covered by the application, if the Commission finds that the applicant is ready, able, and willing properly to perform the service proposed, and that the proposed service, to the extent authorized by the permit, is or will be consistent with the public interest and the national transportation policy declared in this Act; otherwise such application shall be denied. No such permit shall be issued to any common carrier subject to chapters 1, 8, or 12 of this title; but no application made under this section by a corporation controlled by, or under common control with, a common carrier subject to chapters 1, 8, or 12 of this title, shall'’be denied because of the relationship between such corporation and such common carrier. 49 U.S.C. § 1010(c) (1970). . “NATIONAL TRANSPORTATION POLICY “It is hereby declared to be the national transportation policy of the Congress to provide for fair and impartial regulation of all modes of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each; to promote safe, adequate, economical, and efficient service and foster sound economic conditions in transportation and among the several carriers; to encourage the establishment and maintenance of reasonable charges for transportation services, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices; to cooperate with the several States and the duly authorized officials thereof; and to encourage fair wages and equitable working conditions; — all to the end of developing, coordinating, and preserving a national transportation system by water, highway, and rail, as well as other means, adequate to meet the needs of the commerce of the United States, of the Postal Service, and of the national defense. Ail of the provisions of this Act shall be administered and enforced with a view to carrying out the above declaration of policy.” Act of Sept. 18, 1940, ch. 722, tit. I, § 1, 54 Stat. 899. . Surely [freight forwarders] . . must be allowed to testify in support of applications for motor authority since motor carriage is one form of transportation that they must depend upon to move the freight of individual shippers tendered to them. , See, e. g., Central Forwarding Inc., Ext. — Household Goods, 107 M.C.C. 706, 714 (1968), modified on other grounds, 110 M.C.C. 20; Dobbert Common Carrier Application, 73 M.C.C. 711 (1957). 361 F.Supp. at 667. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
songer_circuit	J	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. CRAIG v. CONSOLIDATED CEMENT CORPORATION. No. 884. Circuit Court of Appeals, Tenth Circuit. March 22, 1934. Austin M. Cowan, of Wichita, Kan. (W. A. Ayres, C. A. MeCorkle, J. D. Fair, W. A. Kahrs, and Robert H. Nelson, all of Wichita, Kan., on the brief), for appellant. Homer H. Berger, of Kansas City, Mo. (W. D. Jocherás, of Wichita, Kan., and E. R. Morrison, of Kansas City, Mo., on the brief), for appellee. Before LEWIS, PHILLIPS, and Mc-DERMOTT, Circuit Judges. McDERMOTT, Circuit Judge. Appellee sued for the purchase priee of cement purchased by J. W. Craig, appellant’s testate, hereafter referred to as appellant. By way of counterclaim, appellant prayed for judgment on $5,000 of bonds issued by ap-pellee. After a trial without a jury, recovery on the counterclaim was denied. Error is assigned to that ruling; The bonds tendered to apply on the cement purchased were part of an issue of $5,-000. 000 dated March 1, 1926, and due March 1, 1931. The issue was under a trust agreement of even date; the bonds contain a promise to pay bearer the amount thereof, but recite that the rights of the holders are subject to the provisions of the trust agreement, and that “AE rights of action on this note and the annexed interest coupons, except as otherwise provided by said trust agreement, are vested in said trustee, and the enforcement thereof is governed by the provisions of said trust agreement.” J. W. Craig was a member of the discount committee of The Union National Bank. That bank acquired these bonds in 1927. On March .1, 1931, they became in default. Craig testified that between March 5th and l(>th he bought the bonds from his bank for $4,500 cash. The records show he acquired them on March 27th, and gave his note in payment. Whichever is correct, he did acquire them for value, after they were due and in default. Craig then, for his stone company, ordered cement of appellee, and after delivery thereof, and on June 5,1931, tendered these bonds in payment. On October 16, 1931, the trustee brought an action under the trust agreement, receivers were appointed and an order restraining other actions issued. The present suit was filed September 26, 1931, and the answer and counterclaim filed October 2'6fh. We do not stop on the question of the right to counterclaim on these bonds in the face of the restraining order issued in the receivership action, for we are convinced that the trial court’s decision was right on the merits. Whether the owner of one or more of these bonds is vested with a personal right which he may assert against the corporation, or whether his right is to share with other bondholders in the proceeds of a right vested alone in the trustee, must be determined by an examination of the bond and the trust agreement. The following are significant provisions of the trust agreement: “This Agreement is for the common and equal use, benefit and security of all and singular the present and future holders or owners of said notes and coupons, or any of them, without preference, priority or distinction of any of said notes and/or interest coupons over any of the others by reason of priority in the issue, authentication, sale or negotiation thereof or otherwise. “All rights of action on or because of said notes and any interest coupons thereto appertaining, or any of them, or under this Agreement, except as hereinafter otherwise provided, are hereby expressly declared to be vested exclusively in the Trustee, and such rights may be enforced by the Trustee without the possession of any such notes or interest coupons. Any suit or proceeding instituted by the Trustee shall be brought in its name as Trustee, and any recovery or judgment shall be for the pro rata benefit of the holders of said notes or interest coupons or both, as hereinbefore provided. No holder of any such note or interest coupon shall have any right to institute any suit, action or proceeding (except for the conversion of notes into stock as hereinbefore provided) for the enforcement of the terms of this Agreement, or of such notes or interest coupons, or any of them, without first giving to the Trustee written notice of the fact that default has occurred and continued beyond the period of grace, if any, heroin provided in respect thereof, nor unless also the holders of at least one-fourth in amount of the then outstanding notes shall have requested the Trustee in writing, and shall have afforded to it a reasonable opportunity, to institute such action, suit or proceeding in its own name, and shall have offered satisfactory indemnity to the Trustee, and the Trustee shall have neglected or refused so to do.” This language is plain and unambiguous. The plan clearly contemplates that all bondholders shall be on a parity, and that one may not secure an advantage over another by individual action or counterclaim, and that the company shall not be harassed by actions by individual bondholders. The right of a bondholder is derivative; he may compel the trustee to act; if the trustee fails, then and then only, may the bondholder proceed individually. We are referred to clauses in the trust deed giving the company the right to redeem all or part of the bonds before maturity at a premium, and reserving in the company the right to pay directly to the bondholders after default but before suit is brought by the trustee. These clauses raise no ambiguity, and do not require that the quoted provisions of the bonds and the trust agreement be ignored. The authorities sustain the validity of provisions such as we have here, and the extensive and intricate web of corporate financing in this country is woven about the legality of such plans. The provisions of the trust indenture construed in Allan v. Moline Plow Co. (C. C. A. 8) 34 F.(2d) 912, are indistinguishable from the one before us; the facts more strongly support individual action by the bondholder than the facts here. It was held that the provisions of the trust deed permitted individual action on the bonds only on express conditions. The Fourth Circuit has denied a bondholder the right to sue under similar provisions in a deed of trust. Home Mortg. Co. v. Ramsey (C. C. A.) 49 F.(2d) 738. To the same effect, see lidgerwood v. Hale & Kilburn Corp. (D. C. N. Y.) 47 F. (2d) 318; McG-eorge v. Big Stone Gap Imp. Co. (C. C. Ya.) 57 F. 263; Harvey v. Illinois Power & Light Corp. (D. C. 111.) 3 F. Supp. 489; Crosthwaite v. Moline Plow Co. (D. C. N. Y.) 298 F. 466. Kimher v. Gunnell Gold Min. & Mill Co. (C. C. A. 8) 126 F. 137, is readily distinguishable, for there the trust indenture only purported to restrict the bondholder’s right to foreclose the lion, but did not, as here, restrict his right to sue at law on the bond. Bank of Commerce & Trust Co. v. Iiood (C. C.'A. 5) 65 F.(3d) 281 was a receivership action; it was held that where a bank deposit was pledged as additional security for bonds purchased by the hank, the bank eo'nld not he required to pay out on the deposit until the bonds were paid. That decision has no hearing here. The bonds and trust agreement make appellant’s right to sue on these bonds, either directly or by way of counterclaim, dependent upon conditions precedent which have not occurred. The agreement is valid, and has been uniformly sustained by the federal courts. This opinion might well end here, hut the ingenious argument of learned counsel for appellant deserves a word of recognition. That argument, as we understand it, is this: That notwithstanding the prayer to recover judgment on the bonds in appellant’s counterclaim, the only relief sought is to hold appellee to the balance disclosed when a balance is struck between the obligations. That even if appellant has no right to sue on the bonds, he was the owner of the appellee’s obligation represented thereby, and may use it to arrive a.t the balance owing appellee. Support for the contention is thought to he found in the eases which hold that although a sovereign may not be sued by a subject, its obligation may be used as a counterclaim when the sovereign sues the subject; and in the cases where a debtor of an insolvent is permitted to set off obligations of the insolvent to him. Perhaps the most satisfactory answer is that our task is to construe the bond and the trust agreement; a fair reading of those instruments convinces us that it was intended that, save upon conditions not here present, a bondholder may not sue upon his bond or use it to offset his indebtedness to the corporation. An answer, pitched more closely to the key of the argument, is that a bondholder’s right, as well as his remedy, is traceable through the trustee, to the end that bondholders will share alike in the obligation and lien of the trust agreement. The critical analysis of Judge Phillips, speaking for this court, in ¡ Vinson v. Graham, 44 F.(2d) 772, certioi'ari denied 283 TJ. S. 819, 51 S. Ct. 344, 75 L. Ed. 1435, makes it unnecessary here to discuss “causes of action” or “rights of action.” By this holding, we do not deny that a bondholder has a beneficial, although participating, right in an obligation of the corporation and a similarly restricted lien on the assets pledged. Such a qualified right and lien may be cognizable in equity, if need there be. Fraud or collusion or other like circumstance might well persuade a chancellor to reach through the trustee to protect the beneficial owner. Or, equities might exist that would support an equitable set-off. But this effort of a bondholder, thinly veiled, to gain a preference over his fellows offers no appeal to the conscience of the chancellor, if the cause were in equity, which it is not. The judgment below is affirmed. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
sc_casesource	031	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. UNITED STATES NATIONAL BANK OF OREGON v. INDEPENDENT INSURANCE AGENTS OF AMERICA, INC., et al. No. 92-484. Argued April 19, 1993 Decided June 7, 1993 Christopher J. Wright argued the cause for petitioners in both eases and filed a brief for petitioners in No. 92-507. With him on the brief were Acting Solicitor General Bryson, Assistant Attorney General Gerson, Deputy Solicitor General Wallace, Robert V. Zener, Jacob M. Lewis, William R Bowden, Jr., Ernest C. Barrett III, and Lester N. Scall. Kenneth L. Bachman, Jr., and Michael R. Lazerwitz filed briefs for petitioner in No. 92-484. Ann M. Kappler argued the cause for respondents in both eases. With her on the brief were Donald B. Verrilli, Jr., and Nory Miller. Together with No. 92-507, Ludwig, Comptroller of the Currency, et al. v. Independent Insurance Agents of America, Inc., et al., also on certiorari to the same court. John J. Gill III, Michael F. Crotty, Richard M. Whiting, Leonard J. Rubin, and John S. Jackson filed a brief for the American Bankers Association et al. as amici curiae urging reversal. Justice Souter delivered the opinion of the Court. The Comptroller of the Currency recently relied on a statutory provision enacted in 1916 to permit national banks located in small communities to sell insurance to customers outside those communities. These cases present the unlikely question whether Congress repealed that provision in 1918. We hold that no repeal occurred. I Almost 80 years ago, Congress authorized any national bank “doing business in any place the population of which does not exceed five thousand inhabitants... [to] act as the agent for any fire, life, or other insurance company.” Act of Sept. 7, 1916, 39 Stat. 753. In the first compilation of the United States Code, this provision appeared as section 92 of Title 12. See 12 U. S. C. § 92 (1926 ed.); see also United States Code editions of 1934, 1940, and 1946. The 1952 edition of the Code, however, omitted the insurance provision, with a note indicating that Congress had repealed it in 1918. See 12 U. S. C. § 92 (1952 ed.) (note). Though the provision has also been left out of the subsequent editions of the United States Code, including the current one (each containing in substance the same note that appeared in 1952, see United States Code editions of 1958, 1964, 1970, 1976, 1982, and 1988), the parties refer to it as “section 92,” and so will we. Despite the absence of section 92 from the Code, Congress has assumed that it remains in force, on one occasion actually-amending it. See Gam-St. Germain Depository Institutions Act of 1982, § 403(b), 96 Stat. 1511; see also Competitive Equality Banking Act of 1987, § 201(b)(5), 101 Stat. 583 (imposing a 1-year moratorium on section 92 activities). The regulators concerned with the provision’s subject, the Comptroller of the Currency and the Federal Reserve Board, have likewise acted on the understanding that section 92 remains the law, see Brief for Federal Petitioners in No. 92-507, pp. 31-32; Brief for Petitioner in No. 92-484, pp. 26-28, and indeed it was a ruling by the Comptroller relying on section 92 that precipitated these cases. The ruling came on a request by United States National Bank of Oregon (Bank), a national bank with its principal place of business in Portland, Oregon, to sell insurance through its branch in Banks, Oregon (population: 489), to customers nationwide. The Comptroller approved the request in 1986, interpreting section 92 to permit national bank branches located in communities with populations not exceeding 5,000 to sell insurance to customers not only inside but also outside those communities. See App. to Pet. for Cert, in No. 92-507, pp. 74a-79a. The Bank is the petitioner in the first of the cases we decide today; the Comptroller of the Currency, the Office of the Comptroller of the Currency, and the United States are the petitioners in the other. Respondents in both cases are various trade organizations representing insurance agents. They challenged the Comptroller’s decision in the United States District Court for the District of Columbia, claiming the Comptroller’s ruling to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” under the Administrative Procedure Act (APA), 5 U. S. C. § 706(2)(A). Respondents argued, among other things, that the ruling was inconsistent with section 92, which respondents maintained permits national banks located in small communities to sell insurance only to customers in those communities. The District Court disagreed and granted summary judgment for the federal parties and the Bank, a defendant-intervenor, on the ground that the Comptroller’s interpretation was “rational and consistent with [section 92].” National Assn. of Life Underwriters v. Clarke, 736 F. Supp. 1162, 1173 (1990) (internal quotation marks and citation omitted). The District Court thought it “worth noting that this section no longer appears in the United States Code” as it “apparently was inadvertently repealed” in 1918; but because Congress, the Comptroller, and other courts have presumed its continuing validity, the court was content to assume that the provision exists “in proprio vigore,” meaning, we take it, of its own force. Id., at 1163, n. 2. Respondents had not asked the District Court to rule that section 92 no longer existed, and they took the same tack before the Court of Appeals for the District of Columbia Circuit, merely noting in their opening brief that section 92 may have been repealed in 1918 and then stating that all the relevant players had assumed its validity. The Court of Appeals, nevertheless, directed the parties to be prepared to address the status of section 92 at oral argument, and after oral argument (at which respondents’ counsel declined to argue that the provision was no longer in force) ordered supplemental briefing on the issue. In their supplemental brief, respondents urged the court to decide the question, but took no position on whether section 92 was valid law. The Court of Appeals did decide the issue, reversing the District Court’s decision and remanding with instructions to enter judgment for respondents. The court found first that, though the parties had not on their own questioned the validity of section 92, the court had a “duty” to do so, Independent Ins. Agents of America, Inc. v. Clarke, 293 U. S. App. D. C. 403, 406, 955 F. 2d 731, 734 (1992); and, second, that the relevant statutes, “traditionally construed,” demonstrate that Congress repealed section 92 in 1918, id., at 407, 955 F. 2d, at 735. Judge Silberman, dissenting, would have affirmed without addressing the validity of section 92, an issue he thought was not properly before the court. Id., at 413-416, 955 F. 2d, at 741-744. The Court of Appeals denied respondents’ suggestion for rehearing en banc, with several judges filing separate statements. See 296 U. S. App. D. C. 115, 965 F. 2d 1077 (1992). The Bank and the federal parties separately petitioned for certiorari, both petitions presenting the question whether section 92 remains in force and the Bank presenting the additional question whether the Court of Appeals properly addressed the issue. Because of a conflict on the important question whether section 92 is valid law, see American Land Title Assn. v. Clarke, 968 F. 2d 150, 151-154 (CA2 1992), cert. pending, Nos. 92-482, 92-645, we granted the petitions. 506 U. S. 1032 (1992). We now reverse. II Before turning to the status of section 92, we address the Bank’s threshold question, whether the Court of Appeals erred in considering the issue at all. Respondents did not challenge the validity of section 92 before the District Court; they did not do so in their opening brief in the Court of Appeals or, despite the court’s invitation, at oral argument. Not until the Court of Appeals ordered supplemental briefing on the status of section 92 did respondents even urge the court to resolve the issue, while still taking no position on the merits. The Bank contends that the Court of Appeals lacked the authority to consider whether section 92 remains the law and, alternatively, that it abused its discretion in doing so. There is no need to linger long over either argument. “The exercise of judicial power under Art. Ill of the Constitution depends on the existence of a case or controversy,” and “a federal court [lacks] the power to render advisory opinions.” Preiser v. Newkirk, 422 U. S. 395, 401 (1975); see also Flast v. Cohen, 392 U. S. 83, 97 (1968). The Bank maintains that there was no case or controversy about the validity of section 92, and that in resolving the status of the provision the Court of Appeals violated the Article III prohibition against advisory opinions. There is no doubt, however, that from the start respondents’ suit was the “pursuance of an honest and actual antagonistic assertion of rights by one [party] against another,” Muskrat v. United States, 219 U. S. 346, 359 (1911) (internal quotation marks and citation omitted), that “valuable legal rights... [would] be directly affected to a specific and substantial degree” by a decision on whether the Comptroller’s ruling was proper and lawful, Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249, 262 (1933), and that the Court of Appeals therefore had before it a real case and controversy extending to that issue. Though the parties did not lock horns over the status of section 92, they did clash over whether the Comptroller properly relied on section 92 as authority for his ruling, and “[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law,” Kamen v. Kemper Financial Services, Inc., 500 U. S. 90, 99 (1991), even where the proper construction is that a law does not govern because it is not in force. “The judicial Power” extends to cases “arising under___the Laws of the United States,” Art. Ill, § 2, cl. 1, and a court properly asked to construe a law has the constitutional power to determine whether the law exists, cf. Cohens v. Virginia, 6 Wheat. 264, 405 (1821) (“[I]f, in any controversy depending in a court, the cause should depend on the validity of such a law, that would be a case arising under the constitution, to which the judicial power of the United States would extend”) (Marshall, C. J.). The contrary conclusion would permit litigants, by agreeing on the legal issue presented, to extract the opinion of a court on hypothetical Acts of Congress or dubious constitutional principles, an opinion that would be difficult to characterize as anything but advisory. Nor did prudence oblige the Court of Appeals to treat the unasserted argument that section 92 had been repealed as having been waived. Respondents argued from the start, as we noted, that section 92 was not authority for the Comptroller’s ruling, and a court may consider an issue “antecedent to... and ultimately dispositive of” the dispute before it, even an issue the parties fail to identify and brief. Arcadia v. Ohio Power Co., 498 U. S. 73, 77 (1990); cf. Cardinal Chemical Co. v. Morton Int'l, Inc., ante, at 88-89, n. 9 (addressing a legal question as to which the parties agreed on the answer). The omission of section 92 from the United States Code, moreover, along with the codifiers’ indication that the provision had been repealed, created honest doubt about whether section 92 existed as law, and a court “need not render judgment on the basis of a rule of law whose nonexistence is apparent on the face of things, simply because the parties agree upon it.” United States v. Burke, 504 U. S. 229, 246 (1992) (Scalia, J., concurring in judgment). While the Bank says that by initially accepting the widespread assumption that section 92 remains in force, respondents forfeited their right to have the Court of Appeals consider whether the law exists, “[tjhere can be no estoppel in the way of ascertaining the existence of a law,” South Ottawa v. Perkins, 94 U. S. 260, 267 (1877). In addressing the status of section 92, the Court of Appeals did not stray beyond its constitutional or prudential boundaries. The Court of Appeals, accordingly, had discretion to consider the validity of section 92, and under the circumstances did not abuse it. The court was asked to determine under the APA whether the Comptroller’s ruling was in accordance with a statutory provision that the keepers of the United States Code had suggested was no longer in force, on appeal from a District Court justifying its reliance on the law by the logic that, despite its “inadverten[t] repea[l],” section 92 remained in effect of its own force. 736 F. Supp., at 1163, n. 2. After giving the parties ample opportunity to address the issue, the Court of Appeals acted without any impropriety in refusing to accept what in effect was a stipulation on a question of law. Cf. Swift & Co. v. Hocking Valley R. Co., 243 U. S. 281, 289 (1917). We need not decide whether the Court of Appeals had, as it concluded, a “duty” to address the status of section 92 (which would imply error in declining to do so), for the court’s decision to consider the issue was certainly no abuse of its discretion. Ill A Though the appearance of a provision in the current edition of the United States Code is “prima facie” evidence that the provision has the force of law, 1 U. S. C. § 204(a), it is the Statutes at Large that provides the “legal evidence of laws,” § 112, and despite its omission from the Code section 92 remains on the books if the Statutes at Large so dictates. Cf. United States v. Welden, 377 U. S. 95, 98, n. 4 (1964); Stephan v. United States, 319 U. S. 423, 426 (1943) (per curiam). The analysis that underlies our conclusion that section 92 is valid law calls for familiarity with several provisions appearing in the Statutes at Large. This section provides the necessary statutory background. The background begins in 1863 and 1864, when the Civil War Congress enacted and then reenacted the National Bank Act, which-launched the modern national banking system by providing for federal chartering of private commercial banks and empowering the newly created national banks to issue and accept a uniform national currency. Act of Feb. 25, 1863, ch. 58,12 Stat. 665; Act of June 3,1864, ch. 106,13 Stat. 99; see E. Symons, Jr., & J. White, Banking Law 22-25 (3d ed. 1991); see also 12 U. S. C. §38. In a section important for these eases, the National Bank Act set limits on the indebtedness of national banks, subject to certain exceptions. See §42,12 Stat. 677 (1863 Act); §36,13 Stat. 110 (1864 Act). Ten years later, Congress adopted the indebtedness provision again as part of the Revised Statutes of the United States, a massive revision, reorganization, and reenactment of all statutes in effeet at the time, accompanied by a simultaneous repeal of all prior ones. Rev. Stat. §§ 1-5601 (1874); see also Dwan & Feidler, The Federal Statutes — Their History and Use, 22 Minn. L. Rev. 1008, 1012-1015 (1938). Title 62 of the Revised Statutes, containing §§ 5133 through 5243, included the Nation’s banking laws, and, with a few stylistic alterations, the National Bank Act’s indebtedness provision became § 5202 of the Revised Statutes: Sec. 5202. No association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock at such time actually paid in and remaining undiminished by losses or otherwise, except on account of demands of the nature following: First. Notes of circulation. Second. Moneys deposited with or collected by the association. Third. Bills of exchange or drafts drawn against money actually on deposit to the credit of the association, or due thereto. Fourth. Liabilities to the stockholders of the association for dividends and reserved profits. In 1913 Congress amended Rev. Stat. § 5202 by adding a fifth exception to the indebtedness limit. The amendment was a detail of the Federal Reserve Act of 1913 (Federal Reserve Act or 1913 Act), which created Federal Reserve banks and the Federal Reserve Board and required the national banks formed pursuant to the National Bank Act to become members of the new Federal Reserve System. Federal Reserve Act, ch. 6, 38 Stat. 251; see P. Studenski & H. Krooss, Financial History of the United States 255-262 (2d ed. 1963). The amendment came in § 13 of the 1913 Act, the first five paragraphs of which set forth the powers of the new Federal Reserve banks, such as the authority to accept and discount various forms of notes and commercial paper, including those issued by national banks. Federal Reserve Act, § 13,38 Stat. 263-264. This (subject to ellipsis) followed: Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows: No national banking association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock at such time actually paid in and remaining undiminished by losses or otherwise, except on account of demands of the nature following: Fifth. Liabilities incurred under the provisions of the Federal Reserve Act. 38 Stat. 264. The next and final paragraph of § 13 authorized the Federal Reserve Board to issue regulations governing the rediscount by Federal Reserve banks of bills receivable and bills of exchange. Ibid. In 1916, Congress enacted what became section 92. It did so as part of a statute that amended various sections of the Federal Reserve Act and that, in the view of respondents and the Court of Appeals, also amended Rev. Stat. §5202. Act of Sept. 7, 1916, 39 Stat. 752 (1916 Act). Unlike the 1913 Act, the 1916 Act employed quotation marks, and those quotation marks proved critical to the Court of Appeals’s finding that the 1916 Act placed section 92 in Rev. Stat. § 5202. After amending § 11 of the Federal Reserve Act, the 1916 Act provided, without quotation marks, [t]hat section thirteen be, and is hereby, amended to read as follows: Ibid. Then followed within quotation marks several paragraphs that track the first five paragraphs of § 13 of the 1913 Act, the modifications generally expanding the powers of Federal Reserve banks. After the quotation marks closed, this appeared: Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows: “No national banking association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock at such time actually paid in and remaining undiminished by losses or otherwise, except on account of demands of the nature following: “First. Notes of circulation. “Second. Moneys deposited with or collected by the association. “Third. Bills of exchange or drafts drawn against money actually on deposit to the credit of the association, or due thereto. “Fourth. Liabilities to the stockholders of the association for dividends and reserve profits. “Fifth. Liabilities incurred under the provisions of the Federal reserve Act. “The discount and rediscount and the purchase and sale by any Federal reserve bank of any bills receivable and of domestic and foreign bills of exchange, and of acceptances authorized by this Act, shall be subject to such restrictions, limitations, and regulations as may be imposed by the Federal Reserve Board. “That in addition to the powers now vested by law in national banking associations organized under the laws of the United States any such association located and doing business in any place the population of which does not exceed five thousand inhabitants, as shown by the last preceding decennial census, may, under such rules and regulations as may be prescribed by the Comptroller of the Currency, act as the agent for any fire, life, or other insurance company authorized by the authorities of the State in which said bank is located to do business in said State.... “Any member bank may accept drafts or bills of exchange drawn upon it having not more than three months’ sight to run, exclusive of days of grace, drawn under regulations to be prescribed by the Federal Reserve Board by banks or bankers in foreign countries or dependencies or insular possessions of the United States for the purpose of furnishing dollar exchange as required by the usages of trade in the respective countries, dependencies, or insular possessions. Such drafts or bills may be acquired by Federal reserve banks in such amounts and subject to such regulations, restrictions, and limitations as may be prescribed by the Federal Reserve Board....” 39 Stat. 753-754 The second-to-last paragraph just quoted is the first appearance of the provision eventually codified as 12 U. S. C. § 92. After the quotation marks closed, the 1916 Act went on to amend § 14 of the Federal Reserve Act, introducing the amendment with a phrase not surrounded by quotation marks and then placing the revised language of § 14 within quotation marks. 39 Stat. 754. The pattern was repeated for amendments of §§ 16, 24, and 25 of the Federal Reserve Act. Id., at 754-756. The final relevant statute is the War Finance Corporation Act, ch. 45, 40 Stat. 506 (1918 Act), which in §20 amended Rev. Stat. § 5202 by, at least, adding a sixth exception to the indebtedness limit: Sec. 20. Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows: “Sec. 5202. No national banking association shall at any time be indebted, or in any way liable, to an amount exceeding the amount of its capital stock at such time actually paid in and remaining undiminished by losses or otherwise, except on account of demands of the nature following: “Sixth. Liabilities incurred under the provisions of the War Finance Corporation Act.” 40 Stat. 512. B The argument that section 92 is no longer in force, adopted by the Court of Appeals and pressed here by respondents, is simply stated: the 1916 Act placed section 92 in Rev. Stat. § 5202, and the 1918 Act eliminated all of Rev. Stat. § 5202 except the indebtedness provision (to which it added a sixth exception), thus repealing section 92. Our discussion begins with the first premise of that argument, and there it ends, for we conclude with petitioners that the 1916 Act placed section 92 not in Rev. Stat. § 5202 but in § 13 of the Federal Reserve Act; since the 1918 Act did not touch § 13, it did not affect, much less repeal, section 92. A reader following the path of punctuation of the 1916 Act would no doubt arrive at the opposite conclusion, that the statute added section 92 to Rev. Stat. § 5202. The 1916 Act reads, without quotation marks, Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows. 39 Stat. 753. That phrase is followed by a colon and then opening quotation marks; closing quotation marks do not appear until several paragraphs later, and the paragraph that was later codified as 12 U. S. C. § 92 is one of those within the opening and closing quotation marks. The unavoidable inference from familiar rules of punctuation is that the 1916 Act placed section 92 in Rev. Stat. § 5202. A statute’s plain meaning must be enforced, of course, and the meaning of a statute will typically heed the commands of its punctuation. But a purported plain-meaning analysis based only on punctuation is necessarily incomplete and runs the risk of distorting a statute’s true meaning. Along with punctuation, text consists of words living “a communal existence,” in Judge Learned Hand’s phrase, the meaning of each word informing the others and “all in their aggregate tak[ing] their purport from the setting in which they are used.” NLRB v. Federbush Co., 121 F. 2d 954, 957 (CA2 1941). Over and over we have stressed that “[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but 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_state	41	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". UNITED STATES v. WIGGIN. No. 4094. Circuit Court of Appeals, Fourth Circuit. April 6, 1937. Robert E. Wilson, Atty., Department of Justice, of Columbia, S. C. (Claud N. Sapp, U. S. Atty., of Columbia, S. C., Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C., Wilbur C. Pickett, Sp. Asst, to the Atty. Gen., and Young M. Smith, Atty., Department of Justice, of Washington, D C., on the brief), for the United States. John W. Crews, of Columbia, S. C., for appellee. Before PARKER, NORTHCOTT, and SOPER, Circuit Judges. PER CURIAM. This is a suit on a converted policy of war risk insurance which was kept in force by the payment of premiums until February 5, 1931. The only question raised by the appeal is whether there was sufficient evidence that plaintiff was totally and permanently disabled on that date to carry the case to the jury. We do i!ot think that there was. There is evidence which justifies the conclusion that on that date and prior thereto plaintiff was suffering from visceroptosis, or falling of the organs of the abdominal cavity, and also from hypothyroidism, and that these, together with injury to a foot which he sustained while serving in the Navy, resulted in partial disability; but there is no evidence to justify the conclusion that at the time of the lapse of the policy the disability had become total or that it was of such character that it could not have been relieved by proper treatment. On the contrary, it appears that plaintiff worked as foreman of. a print shop with a printing company of which he was vice president until the fall of 1931, at a salary of $225 per month; that during the winter of 1932-1933 he was engaged with another in the operation of a printing company, which they sold in the spring of 1933; and that, from April, 1933, until December, 1934, he worked for another printing company, making about half time and earning an average of around twenty-two or twenty-three dollars per week. While the plaintiff testified that he quit work in the fall of 1931 because he was unable to work, there is no evidence that his condition, even at that time, could not have been relieved by proper treatment, and no evidence that his subsequent employment was fraught with danger to his health. Under the circumstances, the government’s motion for a directed verdict should have been granted. Mikell v. United States (C. C.A.4th) 64 F.(2d) 301, 303; United States v. Farnsworth (C.C.A.4th) 77 F.(2d) 91; Boone v. United States (C.C.A.4th) 79 F. (2d) 702; United States v. Derrick (C.C.A. 4th) 83 F.(2d) 99. The judgment appealed from will accordingly be reversed. Reversed. 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_treat	F	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. Diana T. VORSHECK; John P. Vorsheck, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE SERVICE, Respondent-Appellee. No. 90-70266. United States Court of Appeals, Ninth Circuit. Submitted May 9, 1991. Decided May 16, 1991. Diana Yorsheck and John P. Yorsheck, pro se. Shirley D. Peterson, Tax Div., U.S. Dept, of Justice, Washington, D.C., for respondent-appellee. Before BROWNING, GOODWIN and POOLE, Circuit Judges. The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a). PER CURIAM: Diana Todaro Vorsheck and John P. Vor-sheck appeal pro se the tax court’s decision upholding the Commissioner of Internal Revenue’s (“Commissioner”) determination of a tax deficiency of $10,910 for the 1982 tax year. The tax court upheld the Commissioner’s disallowance of a deduction for losses incurred through their investment in Western Reserve Oil & Gas Co., Ltd. (“WROG”), a limited partnership, because WROG did not have a profit motive. In addition, the tax court upheld the 10% penalty for substantial understatement of income tax pursuant to 26 U.S.C. § 6661. The Vorshecks contend that they invested in WROG with an intent to make a profit, and that they should not be liable for the penalty under section 6661 because they acted reasonably in their investment. We have jurisdiction pursuant to 26 U.S.C. § 7482, and affirm in part, reverse in part. The tax court’s rulings of law are reviewable de novo. Vukasovich, Inc. v. Commissioner, 790 F.2d 1409, 1413 (9th Cir.1986). The issue of whether the Vorshecks invested in WROG with the requisite profit motive is a finding of fact reviewable for clear error. Baxter v. Commissioner, 816 F.2d 493, 495-96 (9th Cir. 1987). I Deficiency Determination Section 162 of the Internal Revenue Code (“Code”), 26 U.S.C. § 162, allows deductions for all ordinary and necessary expenses paid or incurred in carrying on any trade or business. Section 167 of the Code allows a depreciation deduction for property used in trade or business. 26 U.S.C. § 167. Before a deduction is allowed under these sections, “it must be shown that the activity was entered into with the dominant hope and intent of realizing a profit.” Brannen v. Commissioner, 722 F.2d 695, 704 (9th Cir.1984). The petitioner has the burden of showing she entered into the transaction with a profit motive. Baxter, 816 F.2d at 495. When the profit motive of a limited partnership is at issue, the tax court makes its determination of profit at the partnership level. Polakof v. Commissioner, 820 F.2d 321, 323 (9th Cir.1987). In Ferrell v. Commissioner, 90 T.C. 1154 (1988), the tax court found that WROG did not have a profit motive, did not engage in a trade or business, and was carried on to enrich its organizers and offer investors a tax shelter. Id. at 1198-99. The law in the Ninth Circuit is well settled that profit motive is determined at the partnership level. See Polakof 820 F.2d at 323. Although the Vorshecks may have invested in WROG with the intent of realizing a profit, they are bound by the motive of the partnership, as determined in Ferrell. Thus, the tax court correctly decided that the Vorshecks failed to distinguish their case from Ferrell. Accordingly, we affirm the tax court’s decision upholding the Commissioner’s determination of a $10,-910 deficiency in the Vorshecks’s taxes for the 1982 tax year. II Section 6661 Penalty The Vorshecks argue that even if they are liable for the deficiency, they acted reasonably and in good faith and therefore should not be liable for a penalty under 26 U.S.C. § 6661. Section 6661 provides that if there is a substantial understatement of income taxes, a penalty of 10 percent of the amount of the understatement shall be added to the tax. 26 U.S.C. § 6661(a). An understatement is substantial if it exceeds $5,000 or 10 percent of the income tax for the taxable year. 26 U.S.C. § 6661(b)(1)(A). Section 6661(c) provides that the Secretary may waive the penalty “on a showing by the taxpayer that there was reasonable cause for the understatement ... and that the taxpayer acted in good faith.” According to the Treasury Regulations promulgated under this statute: Reliance on an information return or on the advice of a professional (such as an appraiser, an attorney, or an accountant) would not necessarily constitute a showing of reasonable cause and good faith_ Reliance on an information return, professional advice, or other facts, however, would constitute a showing of reasonable cause and good faith if, under all the circumstances, such reliance was reasonable and the taxpayer acted in good faith. Treas. Reg. § 1.6661-6(b). Thus, if it was reasonable for the taxpayer to rely upon the advice of an accountant under the circumstances, and the taxpayer did so in good faith, then the Commissioner may waive the penalty. See also Heasley v. Commissioner, 902 F.2d 380, 383 (5th Cir. 1990) (couple with no advanced business experience or sophisticated business knowledge who invested in tax shelter on the advice of their financial advisor were not liable for penalty under section 6661 because, “[g]iven [their] inexperience and limited knowledge about investing, and their level of education, their misunderstanding is reasonable” and the penalty should be waived). Here, the tax court found that, although the fact that WROG was a tax shelter would have been apparent to an “experienced businessman,” the Vorshecks were not sophisticated business persons. “[T]hey relied upon the advice of their trusted tax adviser who assured them that they would obtain certain deductions.” On the basis of its evaluation of the motives and experience of the Vorshecks, the tax court denied the penalties under sections 6653 and 6659. The tax court, however, found that the Vorshecks were liable for the penalty under section 6661. We do not agree. If the Vorshecks were acting as “an ordinary prudent person in the circumstances,” then their reliance upon the investment advice of their accountant was “reasonable” and “in good faith under all the circumstances.” See Treas.Reg. § 1 — 6661.6(b); Heasley, 902 F.2d at 385. Thus, the Vorshecks meet the standard for waiver of the penalty under section 6661. Accordingly, we reverse the tax court’s decision upholding the Commissioner’s assessment of a 10% penalty under section 6661. AFFIRMED IN PART, REVERSED IN PART. . The tax court found that because the Vor-shecks were not negligent, they were not liable for penalties or additions to tax under section 6653 or section 6659. . The tax court found: Petitioners in this case did not have that kind of business experience. They knew nothing about the tax laws. They relied upon their advisor. They knew nothing about the circumstances in which they would be expected to obtain special advice. In my judgment, they acted as an ordinary prudent person in the circumstances. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_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. S.S. PHILIPPINE JOSE ABAD SANTOS and National Development Co., Appellants, v. Jessie P. BANNISTER, Appellee. No. 21211. United States Court of Appeals Fifth Circuit. July 16, 1964. Leon Sarpy, Paul A. Nalty and J. Dwight LeBlanc, Jr., New Orleans, La., Chaffe, McCall, Phillips, Burke, Toler' lz Hopkins, New Orleans, La., of counsel, for appellants. Shelly M. Barto, John R. Martzell, New Orleans, La., Ungar & Dulitz, New Orleans, La., of counsel, for appellee. Before RIVES, WISDOM and BELL, Circuit Judges. RIVES, Circuit Judge: A longshoreman brought this libel in the District Court for the Eastern District of Louisiana against a vessel, the SS PHILIPPINE JOSE ABAD SANTOS, and its owner, the National Development Company, for injuries received while unloading the vessel in New Orleans. Since the owner is not qualified to do business in Louisiana and is without an assigned agent for service of process there, service was made on the Louisiana Secretary of State pursuant to the Louisiana Watercraft Statute, LSA-R.S. 13:3479-80. The respondents moved to quash service, asserting that the Watercraft Statute is unconstitutional. The motion was denied, and this appeal was certified and granted in accordance with 28 U.S.C. § 1292(a) (3), (b). The respondents contend that the issues presented by this case are whether the Watercraft Statute is unconstitutional as being in conflict with the commerce clause and federal admiralty jurisdiction, and whether, if constitutional, the statute’s use is precluded by the Supreme Court Admiralty Rules. The Louisiana Watercraft Statute provides for substituted service on the Louisiana Secretary of State in actions against non-resident vessel owners if the suit grows out of any accident or collision while the owner is operating the vessel in Louisiana. It is patterned after the Louisiana non-resident motorist statute, LSA-R.S. 13:3474-75. The Louisiana Watercraft Statute has been held to be valid in three previous district court opinions. Similar non-resident vessel-owner statutes of other states have been uniformly upheld and applied. Although the respondents in this case do not attack the statute on due process grounds, such attacks have been rejected in the past on the theory that there is no substantial difference between a nonresident vessel-owner statute and a nonresident motorist statute. Admiralty suits in federal courts, being of a nondiversity nature, .are governed by federal substantive and procedural law. Federal law, however, often adopts state law either by express or implied reference or by virtue of the interstitial nature of federal law. So the initial question to be decided is whether it was proper for the district court to apply the state substituted service statute in the instant case. The Rules of Practice in Admiralty and Maritime Cases were promulgated by the Supreme Court in 1920. 'The present Admiralty Rule 1, which is substantially the same as the Rule 1 .adopted in 1844, provides: “Rule 1. Process on filing libel “No mesne process shall issue from the District Court in any civil cause of admiralty and maritime jurisdiction until the libel, or libel of .information, shall have been filed in •the clerk’s office from which such process is to issue. All process shall be served by the marshal or by his deputy, or, where he or they are interested, by some discreet and disinterested person appointed by the court.” .Admiralty Rule 2 states: “Rule 2. Suits in personam — process in — arrest in same “In suits in personam the mesne process shall be by a simple monition in the nature of a summons to appear and answer to the suit, or by a simple warrant of arrest of the person of the respondent in the nature of a capias, as the libellant may, in his libel or information pray for or elect; in either case with a clause therein to attach his goods and chattels, or credits and effects in the hands of the garnishees named in the libel to the amount sued for, if said respondent shall not be found within the district. But no warrant of arrest of the person of the respondent shall issue unless by special order of the court, on proof of the propriety thereof by affidavit or otherwise.” No other admiralty rules deal with service of process. It is significant to this case that although Rule 1 states that the marshal shall serve process, neither Rule 1 nor Rule 2 designates who is an authorized agent to receive process. Prior to the promulgation of the Federal Rules of Civil Procedure, the Supreme Court in In re Louisville Underwriters, 1890, 134 U.S. 488, 10 S.Ct. 587, 33 L.Ed. 991, was faced with whether service could properly be made on an agent appointed by a corporation so as to meet state requirements for doing business there. The Supreme Court noted: “In the present case, the libellee had, in compliance with the law of Louisiana, appointed an agent at New Orleans, on whom legal process might be served, and the monition was there served upon him. This would have been a good service in an action at law in any court of the state or of the United States in Louisiana. * * * And no reason has been, or can be suggested why it should not be held equally good in admiralty.” As the court in Doe v. Springfield Boiler & Mfg. Co., 9 Cir. 1900, 104 F. 684, 686, summarized, “Service of monition in admiralty may be made under the provisions of a state statute regulating the mode of service in actions at law and in equity.” Since the adoption of the Federal Rules of Civil Procedure, however, the tendency has been to use the Civil Rules “to fill the gaps in, or to improve upon, the admiralty practice”: “There is a general trend to apply the liberal rules of the F.R.C.P. where there is no specific rule in the Admiralty Rules and the rule of the F.R.C.P. sought to be applied is not inconsistent with any provision of the Admiralty Rules or any justifiable construction thereof.” This has been particularly true with respect to service of process and Rule 4 of the Federal Rules of Civil Procedure. Since the Admiralty Rules are silent as to who is an authorized agent to receive process *and since Civil Rule 4(d) (7) specifically adopts state law, the Seventh Circuit was correct in applying a state non-resident vessel-owner statute: “At the outset, we reject the argument of those respondents that valid process can never be served under the Illinois Act in admiralty cases because the Act provides a method of service of process which conflicts with the provision of Admiralty Rule 1, 28 U.S.C., that all process ‘shall be served by’ a United States marshal, or deputy marshal. The Illinois Act provides that the operation of watercraft in waters of that State by a non-resident constitutes a designation by such non-resident of the Secretary of State of Illinois as his agent upon whom process may be served. “In a proper case, and upon a proper finding of an implied designation of the Secretary of State as the agent of an non-resident for receipt of process, there is sufficient compliance with Admiralty Rule 1 when the marshal serves process upon that State official. Here, process for both Irish and Pinkster was served by the marshal upon the Secretary of State, and a copy of the libel was then mailed to each of those respondents as the Illinois statute required. We think the rule is no bar to that procedure if the libel is a proper ease for substituted service under the provisions of the Act.” The Louisiana Watercraft Statute applies as adopted federal law. Thus, the district court’s use of the statute was in no way contrary to federal admiralty jurisdiction or the commerce clause. The district court’s denial of the motion to quash service is Affirmed. . The Louisiana Watercraft Statute, La. Bev.Stat. 13:3479-80, reads as follows: “§ 3479. The operation, navigation or maintenance by a non-resident or nonresidents of a boat, ship, barge or other water craft in the state, either in person or through others, and the acceptance thereby by such non-resident or non-residents of the protection of the laws of the state for such water craft, or the operation, navigation or maintenance by a non-resident or non-residents of a boat, ship, barge or other water craft in the state, either in person or through others, other than under the laws of the state, shall be deemed equivalent to an appointment by each such non-resident of the Secretary of State, or his successor in office or some other person in his office during his absence he may designate, to be the true and lawful attorney of each such non-resident for service of process, upon whom may be served all lawful process in any suit, action or proceeding against such non-resident or non-residents growing out of any accident or collision in which such non-resident or non-residents may be involved while, either in person or through others, operating, navigating or maintaining a boat, ship, barge or other water craft in the state; and such acceptance or such operating, navigating or maintaining in the state of such water craft shall be a signification of each such non-resident’s agreement that any such process against him which is so served shall be of the same legal force and effect as if served on him personally.” “3480. Service of citation in any case provided in B.S. 13.3479 shall be made by serving a copy of the petition and citation on the Secretary of State, or his successor in office, and such service shall be sufficient service upon any such non-resident ; provided that notice of such service, together with a copy of the petition and eitation are forthwith sent by registered mail by the plaintiff to the defendant, or actually delivered to the defendant, and the defendant’s return receipt, in case notice is sent by registered mail, or affidavit of the party delivering the petition and citation in case notice is made by actual delivery, is filed in the proceedings before judgment can be rendered against any such non-resident. The court in which the action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the action.” . Paige v. Shinnihon Kishen, E.D.La.1962, 206 F.Supp. 871, Tardiff v. Bank Line, Ltd., E.D.La.1954, 127 F.Supp. 945; Goltzman v. Rougeot, W.D.La.1954, 122 F.Supp. 700; cf. Sioux City & New Orleans Barge Lines, Inc. v. Upper Miss Towing Corp., S.D.Tex.1963, 221 F.Supp. 737, 739. See generally, Kierr, “Use of State Statutes to Effect Service on a Non-Resident Vessel Owner,” 8 La.Bar J. 113 (1960). . See Valkenburg, K.-G. v. The S.S. Henry Denny, 7 Cir. 1961, 295 F.2d 330 (Ill. Rev.Stat. c. 110, § 263b); Franklin v. Tomlinson Fleet Corp., N.D.Ill.1957, 158 F.Supp. 850 (same); Frase v. Columbia Transp. Co., N.D.Ill.1957, 158 F.Supp. 858 (same); Coyle v. Pope & Talbot, Inc., E.D.Pa.1962, 207 F.Supp. 685 (12 P.S.Pa. §§ 336, 337); Edmundson v. Hamilton, Fla.1962, 148 So.2d 262, 264-265 (Fla.Stat.Ann. § 47.162). . See authorities cited in notes 2 and 3, supra. Compare Hess v. Pawloski, 1927, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091. . See generally, Hart & Wechsler, The Federal Courts and the Federal System 435-36 (1953); Hill, “State Procedural Law in Federal Nondiversity Litigation,” 69 Harv.L.Rev. 66 (1955); Mishkin, “The Variousness of ‘Federal Law’,” 105 U.Pa. L.Rev. 797 (1957); Note, 69 Yale L.J. 1428 (1960); Fahs v. Martin, 5 Cir. 1955, 224 F.2d 387, 392. . The present Rule 2 is the same as the Rule 2 adopted in 1844, except that the text of the first sentence has been rearranged and the Rule 7 of 1844 was made the second sentence of the present rule. . 134 U.S. at 493, 10 S.Ct. at 589. . Letter of Transmittal of Proposed Amendments to Rules of Civil Procedure by the Advisory Committee on Admiralty Rules, printed in Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the United States District-Courts p. 2 (1964). . Monsieur Henri Wines, Ltd. v. S.S. Covadonga, D.N.J.1963, 222 F.Supp. 139, 140; accord D/S A/S Flint v. Sabre Shipping Corp., E.D.N.Y.1964, 228 F. Supp. 384, 389. . See, e.g., Seawind Compania, S.A. v. Crescent Line, Inc., 2 Cir. 1963, 320 F.2d 580; cases cited note 9, supra. . Thus there is no conflict between the Admiralty Rules and the Watercraft Statute, so that 28 U.S.C. § 2073, which states-that, “All laws in conflict with such [admiralty] rules shall be of no further force or effect after such rules have taken effect,” is of no relevance. . Valkenburg, K.-G. v. The S.S. Henry Denny, 7 Cir. 1961, 295 F.2d 330, 333; accord Paige v. Shinnihon Kisken, E.D. La.1962, 206 F.Supp. 871. 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	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Willie GLINSEY, Appellant, v. H. L. PARKER, Superintendent Shelby County Jail, Appellee. Arthur FRANKLIN, Appellant, v. H. L. PARKER, Superintendent Shelby County Jail, Appellee. Euan BAILEY, Appellant, v. H. L. PARKER, Superintendent Shelby County Jail, Appellee. Nos. 73-1806 to 73-1808. United States Court of Appeals, Sixth Circuit. Argued Dec. 4, 1973. Decided Feb. 13, 1974. Ural B. Adams, Jr. (Court-appointed), Memphis, Tenn., on brief, for appellants. James H. Allen, Asst. Dist. Atty. Gen., Memphis, Tenn., on brief, for appellee; David M. Pack, Atty. Gen. of Tenn., Nashville, Tenn., of counsel. Before PHILLIPS, Chief Judge and PECK and LIVELY, Circuit Judges. LIVELY, Circuit Judge. The petitioners, Glinsey, Franklin and Bailey, appeal the orders of the district court which denied them habeas corpus relief. All are serving penitentiary sentences imposed in state court proceedings in which they were found guilty by a jury of committing armed robbery. Following a two-day evidentiary hearing, the district court filed an opinion in which three constitutional issues that had been raised by petitioners were considered. In denying habeas corpus writs the district court found that the arrests, interrogation and state court proceedings which resulted in the petitioners’ imprisonment did not violate their constitutional rights. In order to deal with the issues presented on appeal it is necessary to make a brief statement of the facts surrounding the arrest and trial of petitioners. On the evening of December 8, 1969 the Memphis police picked up two young men named Hurd and Harris in connection with a holdup which had taken place earlier that evening. Hurd and Harris admitted their participation in the December 8 robbery and divulged to the police the fact that they had also been involved in approximately 13 other armed robberies which were unsolved at the time. In discussing the other robberies, Hurd and Harris implicated all three of the petitioners and one Frederick Johnson. Beginning shortly after 3:00 a. m. on December 9, 1969, the police, led by Lieutenant Hadaway who was then a detective lieutenant in the robbery bureau, arrested each of the petitioners and Frederick Johnson. Each petitioner was arrested at his home in the presence of an adult and all were taken to police headquarters and then to juvenile court where their names, addresses, telephone numbers and family information were recorded. A juvenile court attendant notified the parents of each petitioner of the arrests, the charges and the fact that they were not eligible for release because of the seriousness of the charges. Each one was checked physically to determine if any beating or mistreatment had taken place. All three petitioners and Frederick Johnson were taken back to the police station and placed in a room with Hurd and Harris. Another youth who had been implicated by Hurd and Harris was released by the police when it was learned that he had only loaned a gun to Hurd and Harris and had not actually participated in any of the holdups. By the time the petitioners were first brought to the police station, Hurd and Harris had already admitted the armed robbery of a liquor store on November 29, 1969 and had implicated all three petitioners and Frederick Johnson. The six suspects were questioned intermittently for approximately 12 hours beginning about 5:00 a. m. Since the three petitioners were 17 years of age, they were taken back to juvenile court for nearly two hours around the middle of the day on December 9 for preliminary disposition of their cases. Food was available to them during this period. The juvenile judge entered an order bringing them within the protective custody of the court but ordering detention pending a hearing which was set for December 15. Between 3:00 and 5:00 p. m. on December 9 all six suspects signed written confessions in the presence of each other in which they admitted taking part in the November 29 liquor store robbery. Before the petitioners and Johnson had made any statements they requested the police to leave them alone in the room with Hurd and Harris. This was done, and it was following a discussion among all six of the suspects that petitioners and Johnson agreed to give statements. Many statements were taken by the police. At first the six suspects, while together, were asked about a number of separate robberies. An officer would describe the date and place of the robbery and ask which ones of the suspects had taken part in that robbery. Those who had taken part would raise their hands, and notes were taken by another officer recording the names of those who admitted participation in each ’ of the crimes. After the group session was completed, the officers began taking statements from each individual suspect concerning specific robberies. These statements were written in long hand, signed by the suspects and were referred to by the police as “I” statements. Each of the petitioners made such a confession with respect to the November 29 liquor store robbery. Following their return from juvenile court at about 2:00 p. m. on December 9, the petitioners and Johnson, Hurd and Harris were questioned in the presence of a stenographer who typed all the questions and answers. In the presence of each other all six suspects admitted certain robberies, including the one involving the liquor store on November 29, and typed statements were signed. These were referred to by the police as “We” statements. Each statement contained a Miranda type warning above the body of the confession. On December 15, 1969 juvenile court ordered the petitioners remanded to the sheriff for disposition of the charges under the criminal laws of Tennessee on a finding of probable cause that they had committed the crimes charged. All were subsequently indicted for armed robbery in connection with the November 29 liquor store holdup and the court ordered all six defendants to be tried together. Bach defendant moved for a severance, but the motions were denied. Prior to the trial, Hurd and Harris had agreed to plead guilty and the State offered to recommend a 25-year sentence if all six defendants would plead guilty. Armed robbery was a capital offense in Tennessee at that time. The petitioners and Johnson refused this proposition and entered not guilty pleas. After the jury had been impanelled, Hurd and Harris pled guilty in the presence of the jury and the other four defendants pled not guilty. Because the jury fixes punishment under Tennessee criminal practice, Hurd and Harris remained as defendants and their cases were submitted to the jury for the purpose of fixing punishment along with those of the other defendants. Before the end of the trial, Frederick Johnson changed his plea to guilty. All three petitioners took the stand and repudiated the confessions which they had made on December 9, 1969. Hurd, Harris and Johnson did not testify, but the “We” statements of all six defendants confessing the November 29 robbery and implicating the others were introduced at the trial. The jury was instructed both at the time the statements were introduced and in the final charge that admissions could not be considered as evidence against any defendant other than the one who had made the admission. The jury determined the guilt of the petitioners and fixed their punishment at the same time that it fixed the punishment of Hurd and Harris and Johnson. After exhausting their state remedies the three petitioners brought this action, alleging that the confessions introduced at the trial were not freely and voluntarily given, but were the result of coercion; that they were denied their Sixth and Fourteenth Amendment rights to confront and cross-examine witnesses against them; and, that the denial of a severance and subsequent use of the “We” statements in the trial was a violation of due process under the Fourteenth Amendment. In addition to conducting a hearing, the district judge had before him the entire record of proceedings in the state courts. The district court found that at the time of arrest and prior to interrogation the petitioners were clearly advised of their rights and that they never requested counsel nor were deprived of their right to counsel. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). The court found that there were no threats or promises and that the confessions of the petitioners were freely and voluntarily given. It was pointed out in the court’s memorandum that the petitioners had confessed to the November 29 liquor store robbery in the morning of December 9 and shortly thereafter had signed “I” statements. The “We” statements which were introduced at the trial of the petitioners, although taken near the end of twelve hours of interrogation, were consistent with the oral confessions and the “I” statements which were taken near the beginning of the period of interrogation. We are mindful of the extreme care which must be exercised in determining whether a confession given by a juvenile charged with a serious crime is voluntary or coerced. Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948); Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962). We believe from examining this record that the experienced and able district judge did closely scrutinize the facts and circumstances surrounding these confessions and that his findings and conclusions that the admission into evidence against them of the petitioners’ own confessions was not a violation of their federal constitutional rights are fully supported by the record. Waddy v. Heer, 383 F.2d 789, 793 (6th Cir. 1967), cert. denied, 392 U.S. 911, 88 S.Ct. 2069, 20 L.Ed.2d 1369 (1968). The second issue in the case arises under the confrontation clause of the Sixth Amendment which provides in part as follows: “In all criminal prosecutions, the accused shall enjoy the right . to be confronted with the witnesses against him . . In Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), the Supreme Court held that the right to confront witnesses and cross-examine them is essential to a fair trial and is made applicable to the states by the Fourteenth Amendment. Petitioners maintain that the introduction of the “We” confessions of Hurd and Harris at the joint trial constituted a violation of their right of confrontation and cross-examination under the Supreme Court holding in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). There the Supreme Court held that a statement of one defendant who does not testify and which implicates another defendant in the crime for which they are on trial may not be introduced in a joint trial since the right of confrontation and cross-examination is denied the co-defendant. The Court held that even clear instructions to disregard such a statement as evidence against the co-defendant, as were given in the present case, do not make it admissible. The Court reasoned that the jury was likely to believe the portions of the statement implicating Bruton and that thus substantial weight was added to the prosecution’s case against him by the use of inadmissible evidence. In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), the Supreme Court held that the confrontation clause does not preclude the use of all hearsay evidence in a criminal trial and upheld the admission of testimony which recounted a statement of an alleged co-conspirator. This testimony had been permitted in evidence under a state rule which allowed statements of co-conspirators to be introduced as evidence against other members of a conspiracy. The case is distinguishable from Bruton in that it involved a separate rather than a joint trial and the witness who related the alleged statement of the co-conspirator was cross-examined at length. In Campbell v. United States, 415 F.2d 356 (6th Cir. 1969), this court held that an out-of-court statement of a co-conspirator could be admitted in a joint trial because of a federal rule permitting such testimony to be received as evidence against other members of the conspiracy. This court held that the Bruton rule is limited to situations where the out-of-court statements are inadmissible hearsay and has no application to situations where the extrajudicial statement is admissible under the narrowly defined co-conspirator exception to the hearsay rule. In considering this issue in the present case the district judge found that the “We” confessions of Hurd and Harris were actually admissible as to the petitioners because the six suspects each adopted the statements given by the others as the officers questioned them as a group. The district court thus reasoned that the state trial court could have received the “We” statements of Hurd and Harris as evidence against these petitioners the same as the statements which petitioners themselves had given because they were “adoptive statements.” The petitioners were present when Hurd and Harris gave the statements which were introduced at the trial. Their adoption of such statements was inferred from the similarity between the statements of Hurd and Harris and their own statements and the failure of petitioners to object or specifically disavow the statements of Hurd and Harris at the time they were made. This court has had occasion to deal with the issue of an adoptive statement in a recent case. In Miller v. Cardwell, 448 F.2d 186 (6th Cir. 1971), cert. denied, 405 U.S. 1033, 92 S.Ct. 1295, 31 L.Ed.2d 490 (1972), one Swiger made a statement in Miller’s presence which was recorded on an electric device. Following the completion of Swiger’s statement, Miller was asked by the officers whether the statement was true and he eventually ratified Swiger’s statement and this was recorded as well. At Miller’s trial the recording was played following correct instructions to the jury to the effect that it should consider Swiger’s statement as evidence against Miller only if the jury found that Miller had accepted Swiger’s statement as his own. Following conviction, Miller sought a writ of habeas corpus asserting that he was denied his right to confront witnesses and cross-examine them by the admission of Swiger’s out-of-court statement. We held that Miller’s consitutional rights had not been violated since he adopted the statement of Swiger as his own and thus made it admissible against him. The case before us now raises the issue of whether petitioners can be held to have adopted the statements of Hurd and Harris by reason of their silence upon hearing such statements given. Of course all were in custody when the statements were given and this court has long held that no derogatory inferences may be drawn from the silence of a person who is in custody and accused of crime. McCarthy v. United States, 25 F.2d 298 (6th Cir. 1928). One in custody has the right to remain silent and it would violate rights guaranteed by the Fifth Amendment to hold that such a person, by his silence, has acquiesced in a statement made by another in his presence which implicates him in a crime. See Miranda v. Arizona, supra, 384 U.S. 436 at 468, n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694. In reversing the conviction in the McCarthy case, the court noted that the defendants later took the stand and denied all connection with the crime as was done here. The holding of McCarthy v. United States, supra, was reaffirmed in a recent case where it was held that an admission by silence, made while the defendant on trial and the maker of an inculpatory statement were undergoing police interrogation and at the time when they were obviously accused of having committed an offense, may not be received in evidence. To permit the jury to treat silence of one accused and in custody as an admission of guilt would contravene that person’s rights under the Fifth Amendment to remain silent. United States v. McKinney, 379 F.2d 259 (6th Cir. 1967). In United States v. Brinson, 411 F.2d 1057 (6th Cir. 1969), the decisions in McCarthy and McKinney were relied upon in holding that the use of the fact that a person accused of a crime remains silent against such person is an error of constitutional magnitude. Hurd and Harris did not testify at the joint trial. Thus there was no opportunity for the petitioners’ counsel to cross-examine Hurd and Harris concerning the contents of the statements. As the Supreme Court said in Pointer v. Texas, supra, “. . .a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.” 380 U.S. 400 at 406-407, 85 S.Ct. 1065 at 1069, 13 L.Ed.2d 923. The petitioners cannot be held to have waived their right of confrontation and cross-examination by their silence in the police station when Hurd and Harris made statements which implicated them. The right to confrontation and cross-examination is meaningful only if it can be exercised in the presence of the jury which is charged with deciding the question of guilt or innocence. We therefore hold that the silence of petitioners in the face of incriminating statements of Hurd and Harris cannot constitutionally be held to be an adoption of such statements under the circumstances of this case. On the basis of the finding that each of the defendants had adopted the statements of the others, the district court also held that it was not a violation of due process for the trial court to refuse to sever the Hurd and Harris cases from those of petitioners, stating, “If the guilty pleas of Hurd and Harris can be said to be an assertion of guilt as to petitioners such assertion of guilt was encompassed by the confessions of Hurd and Harris that could have, though they were not, admitted in evidence against petitioners.” While we do not agree that the petitioners adopted the confessions of Hurd and Harris, this nevertheless is not dispositive of the issue of severance. The matter of severance is always addressed to the sound discretion of the trial judge and accordingly is only reviewable for abuse. United States v. Ethridge, 424 F.2d 951 (6th Cir. 1970), cert. denied, 400 U.S. 993, 91 S.Ct. 463, 27 L.Ed.2d 442 (1971). Though there appears to be little reason for joining guilty-pleading defendants with those pleading not guilty even under Tennessee practice where the jury must set the punishment of those pleading guilty, still we cannot say that thisjoinder standing alone was prejudicial to the petitioners. Compare Crampton v. Ohio, 402 U.S. 183, 208-222, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). It is conceivable that such a joint trial could be conducted without the use of the Hurd and Harris confessions and, if so, it would not be an abuse of discretion to deny severance. One other point needs to be considered in this case. The district court found that all of the “We” statements were in substance the same concerning the November 29 liquor store robbery. Since the petitioners’ own statements were found to be admissible against them, if the statements of Hurd and Harris which were admitted were identical with those of the petitioners in every material detail, such statements might be considered merely cumulative evidence and their admission harmless error. In Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), while holding that the rule of Bruton applies to state prosecutions, the Supreme Court refused to set aside a conviction where the other co-defendants were tried jointly with Hárrington over his objection that there should be a severance. The confessions of each of the four defendants were introduced into evidence with limiting instructions and one of them took the stand and was cross-examined. The other two co-defendants did not testify. The Supreme Court affirmed the conviction of Harrington, holding that in view of the other evidence of guilt the introduction of statements of co-defendants was merely cumulative evidence and was harmless beyond a reasonable doubt. At a joint murder trial where neither defendant took the stand, a police officer in Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), testified to certain admissions by each of the defendants implicating both of them in a murder. Both were convicted and the conviction of one defendant (Snell) was reversed by the Florida Supreme Court after remand from the United States Supreme Court. Nevertheless, the Supreme Court affirmed the conviction of the other defendant (Schneble) on the ground that any violation of the Bruton doctrine which had occurred at the trial was, as to him, harmless beyond a reasonable doubt. The admissions of Schneble were held to be voluntary and admissible against him, but he contended that the introduction of his co-defendant’s out-of-court statement deprived him of a constitutional right. The Court held that there was independent evidence of guilt which was overwhelming and that the allegedly inadmissible statement of the co-defendant merely tended to corroborate details of the petitioner’s own comprehensive confession. Holding that there was no rational hypothesis on which the jury could have found Schneble guilty without reliance on his own confession the Court stated “In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.” 405 U.S. at 430, 92 S.Ct. at 1059. We have examined the trial transcript of the state proceedings against the appellants. Aside from the statements which were introduced, there is no evidence linking Glinsey or Bailey with the November 29 robbery. Franklin was positively identified by an employee of the liquor store as one of the holdup men. The same witness identified Hurd, but was unable to identify either of the other participants, though the statements of all agreed that Hurd and the three appellants took part in the robbery inside the store while the other two z’emained in the car. We find the error in the introduction of the Hurd and Harris statements to be harmless beyond a reasonable doubt insofar as it affected the trial of Franklin. His own confession in conjunction with the positive . identification by a victim of the robbery constituted overwhelming evidence of guilt. Schneble v. Florida, supra. We find no such overwhelming evidence of guilt outside of the improperly admitted statements with respect to Glinsey and Bailey. The judgment of the district court is affirmed in No. 73-1807; it is vacated in Nos. 73-1806 and 73-1808 and these cases are remanded with directions to grant writs of habeas corpus to the petitioners Glinsey and Bailey unless the State of Tennessee shall grant them new trials within a reasonable time to be fixed by the district court. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
sc_caseorigin	087	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. VERMILYA-BROWN CO., INC. et al. v. CONNELL et al. No. 22. Argued October 15, 1948. Decided December 6, 1948. Charles Fahy argued the cause for petitioners. With him on the brief were Joseph Markle, Franklin Nevius, J. Randall Creel and Philip Levy. Sol L. Fj/rstenberg argued the cause for respondents. With him on the brief was Jacob Bromberg. Solicitor General Perlman, Assistant Attorney General Morison, Robert L. Stern, Paul A. Sweeney and Melvin Richter filed a brief for the United States, as amicus curiae, urging reversal. Mr. Justice Reed delivered the opinion of the Court. This case brings before us for review the applicability of the Fair Labor Standards Act of 1938, 52 Stat. 1060, to employees allegedly engaged in commerce or the production of goods for commerce on a leasehold of the United States, located on the Crown Colony of Bermuda. The leasehold, a military base, was obtained by the United States through a lease executed by the British Government. This lease was the result of negotiations adequately summarized for consideration by the letters of the Marquess of Lothian, the British Ambassador to the United States, of date September 2, 1940; the reply of Mr. Cordell Hull, then our Secretary of State, of the same date; and the Agreement of March 27, 1941, between the two nations to further effectuate the declarations of the Ambassador in his letter. The Fair Labor Standards Act covers commerce “among the several States or from any State to any place outside thereof.” State means “any State of the United States or the District of Columbia or any Territory or possession of the United States.” § 3 (b) and (c) of the Act. Certain employees of contractors who had contracts for work for the United States on the Bermuda base brought this suit under § 16 (b) of the Act for recovery of unpaid overtime compensation ¿nd damages, claimed to be due them for the employer’s violation of § 7, requiring overtime compensation. We do not enter into any consideration of the employees’ right to recover if the Fair Labor Standards Act is applicable to employment on the Bermuda base, for the complaint was dismissed on defendant’s motion for summary judgment on the ground that the applicability depended upon the “sovereign jurisdiction of the United States,” that the executive and legislative branches of the Government had indicated that such leased areas were not under our sovereign jurisdiction and that this was a political question outside of judicial power. Connell v. Vermilya-Brown Co., 73 F. Supp. 860. The United States Court of Appeals for the Second Circuit, holding that the Act applied to the Bermuda base, reversed this judgment and remanded the case to the District Court for further proceedings on the merits. 164 F. 2d 924. Our affirmance of this judgment approves that disposition of the appeal. On account of the obvious importance of the case from the standpoint of administration, in view of the number of leased areas occupied by the United States, we granted certiorari. 333 U. S. 859. (1) We shall consider first our power to explore the problem as to whether the Fair Labor Standards Act covers this leased area. Or, to phrase it differently, is this a political question beyond the competence of courts to decide? Cf. Coleman v. Miller, 307 U. S. 433, 450; Colegrove v. Creen, 328 U. S. 549, 552. There is nothing that indicates to us that this Court should refuse to decide a controversy between litigants because the geographical coverage of this statute is involved. Recognizing that the determination of sovereignty over an area is for the legislative and executive departments, Jones v. United States, 137 U. S. 202, does not debar courts from examining the status resulting from prior action. De Lima v. Bidwell, 182 U. S. 1; Hooven & Allison Co. v. Evatt, 324 U. S. 652. We have no occasion for this opinion to differ from the view as to sovereignty expressed “for the Secretary of State” by The Legal Adviser of the Department in his letter of January 30, 1948, to the Attorney General in relation to further legal steps in the present controversy after the judgment of the Court of Appeals. It was there stated: “The arrangements under which the leased bases were acquired from Great Britain did not and were not intended to transfer sovereignty over the leased areas from Great Britain to the United States.” Nothing in this opinion is intended to intimate that we have any different view from that expressed for the Secretary of State. In the light of the statement of the Department of State, we predicate our views on the issue presented upon the postulate that the leased area is under the sovereignty of Great Britain and that it is not territory of the United States in a political sense, that is, a part of its national domain. (2) We have no doubt that Congress has power, in certain situations, to regulate the actions of our citizens outside the territorial jurisdiction of the United States whether or not the act punished occurred within the territory of a foreign nation. This was established as to crimes directly affecting the Government in United States v. Bowman, 260 U. S. 94. This Court there pointed out, p. 102, that clearly such legislation concerning our citizens could not offend the dignity or right of sovereignty of another nation. See Blackmer v. United States, 284 U. S. 421, 437; Skiriotes v. Florida, 313 U. S. 69, 73, 78. A jortiori civil controls may apply, we think, to liabilities created by statutory regulation of labor contracts, even if aliens may be involved, where the incidents regulated occur on areas under the control, though not within the territorial jurisdiction or sovereignty, of the nation enacting the legislation. This is implicitly conceded by all parties. This power is placed specifically in Congress by virtue of the authorization for “needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Constitution, Art. IV, § 3, cl. 2. It does not depend upon sovereignty in the political or any sense over the territory. So the Administrator of the Wage-Hour Division has issued a statement of general policy or interpretation that directs all officers and agencies of his division to apply this Act to the Canal Zone, admittedly territory over which we do not have sovereignty. 29 C. F. R., 1947 Supp., pp. 4392-93. (3) In this view of the relationship of our government to a leased area, the terms of this particular lease become important. Reference, note 1, supra, has been made to the United States Statutes where the title documents are readily available. It is unnecessary to print them here in full. In the margin are extracts that indicate their meaning as to the control intended to be granted. Under this agreement we have no doubt that the United States is authorized by the lessor to provide for maximum hours and minimum wages for employers and employees within the area, and the question of whether the Fair Labor Standards Act applies is one of statutory construction, not legislative power. (4) At the time of the enactment of the Act, June 25, 1938, the United States had no leased base in Bermuda. This country did have a lease from the Republic of Cuba of an area at Guantanamo Bay for a coaling or naval station “for the time required for the purposes of coaling and naval stations.” The United States was granted by the Cuban lease substantially the same rights as it has in the Bermuda lease. The time limits of the grant were redefined on June 9, 1934, as extending until agreement for abrogation or unilateral abandonment by the United States. A similar arrangement existed in regard to the Panama Canal Zone. Further, in the Philippine Independence Acts of January 17, 1933, and March 24, 1934, provisions existed looking toward the retention of military and other bases in the Philippine Islands. 47 Stat. 761, §§ 5 and 10; 48 Stat. 456, §§ 5 and 10. A Convention between the governments of Nicaragua and the United States of America, proclaimed June 24, 1916, 39 Stat. 1661, gave the United States for 99 years “sovereign authority” over certain islands in the Caribbean Sea. None of these international arrangements were discussed in reports or the debates concerning the scope of the Fair Labor Standards Act. After the passage of the Fair Labor Standards Act and during World War II, a number of bases for military operations were leased by the United States not only on territory of the British Commonwealth of Nations but on that of other sovereignties also. The provisions of these leases paralleled in many respects the Bermuda lease. Neither this lack of specific reference in the legislative history to leased areas, however, nor the fact that the particular Bermuda base was acquired after the passage of the Act seems to us decisive of its coverage. “The reach of the act is not sustained or opposed by the fact that it is sought to bring new situations under its terms.” The Sherman Act of 1890, a date when we had no insular possessions, was held by its use of the word “Territory” in its § 3 to be applicable in Puerto Rico, a dependency acquired by the Treaty of Paris in 1898. The answer as to the scope of the Wage-Hour Act lies in the purpose of Congress in defining its reach. (5) The point of statutory construction for our determination is as to whether the word “possession,” used by Congress to bound the geographical coverage of the Fair Labor Standards Act, fixes the limits of the Act’s scope so as to include the Bermuda base. The word “possession” is not a word of art, descriptive of a recognized geographical or governmental entity. What was said of “territories” in the Shell Co. case, 302 U. S. 253, at 258, is applicable: “Words generally have different shades of meaning, and are to be construed if reasonably possible to effectuate the intent of the lawmakers; and this meaning in particular instances is to be arrived at not only by a consideration of the words themselves, but by considering, as well, the context, the purposes of the law, and the circumstances under which the words were employed.” The word “possession” has been employed in a number of statutes both before and since the Fair Labor Standards Act to describe the areas to which various congressional statutes apply. We do not find that these examples sufficiently outline the meaning of the word to furnish a definition that would include or exclude this base. While the general purpose of the Congress in the enactment of the Fair Labor Standards Act is clear, no such definite indication of the purpose to include or exclude leased areas, such as the Bermuda base, in the word “possession” appears. We cannot even say, “We see what you are driving at, but you have not said it, and therefore we shall go on as before.” Under such circumstances, our duty as a Court is to construe the word “possession” as our judgment instructs us the lawmakers, within constitutional limits, would have done had they acted at the time of the legislation with the present situation in mind. The word “possession” in the Act includes far-off islands whose economy differs markedly from our own. Thus the employees of Puerto Rico, Guam, the guano islands, Samoa and the Virgin Islands have the protection of the Act. See 29 C. F. R., 1947 Supp., 4393. Since drastic change in local economy was not a deterrent in these instances, there is no reason for saying that the wage-hour provisions of the Act were not intended to bring these minimum changes into the labor market of the bases. Since its passage of the Act, Congress has extended the coverage of the Longshoremen's and Harbor Workers’ Compensation Act to the bases acquired since January 1, 1940, and to Guantanamo Bay. When one reads the comprehensive definition of the reach of the Fair Labor Standards Act, it is difficult to formulate a boundary to its coverage short of areas over which the power of Congress extends, by our sovereignty or by voluntary grant of the authority by the sovereign lessor to legislate upon maximum hours and minimum wages. Under the terms of the lease, we feel sure that the House of Assembly of Bermuda would not also undertake legislation similar to our Fair Labor Standards Act to control labor relations on the base. Since citizens of this country would be numerous among employees on the bases, the natural legislative impulse would be to give these employees the same protection that was given those similarly employed on the islands of the Pacific. Under subdivisions 2 and 3, supra, we have pointed out that the power rests in Congress under our Constitution and the provisions of the lease to regulate labor relations on the base. We have also pointed out that it is a matter of statutory interpretation as to whether or not statutes are effective beyond the limits of national sovereignty. It depends upon the purpose of the statute. Where as here the purpose is to regulate labor relations in an area vital to our national life, it seems reasonable to interpret its provisions to have force where the nation has sole power, rather than to limit the coverage to sovereignty. Such an interpretation is consonant with the Administrator’s inclusion of the Panama Canal Zone within the meaning of “possession.” We think these facts indicate an intention on the part of Congress in its use of the word “possession” to have the Act apply to employer-employee relationships on foreign territory under lease for bases. Such a construction seems to us to carry out the remedial enactment in accord with the purpose of Congress. Affirmed. 55 Stat. 1560, 1572, 1576, 1590. Those documents are published in Department of State publication No. 1726, Executive Agreement Series 235. No due process question arises from this extension of legislation over such controlled areas such as was considered to bar state action concerning contracts made and to be performed beyond the boundaries of a state. Cf. Home Ins. Co. v. Dick, 281 U. S. 397, 407, with Alaska Packers Assn. v. Comm’n, 294 U. S. 532, 541. Cf. Ashwander v. T. V. A., 297 U. S. 288, 330, et seq. 55 Stat. 1560: Article I, “(1) The United States shall have all the rights, power and authority within the Leased Areas which are necessary for the establishment, use, operation and defence thereof, or appropriate for their control,...” Article XI, “ (4) It is understood that a Leased Area is not a part of the territory of the United States for the purpose of coastwise shipping laws so as to exclude British vessels from trade between the United States and the Leased Areas.” P. 1565. Article XIII, “(1) The immigration laws of the Territory shall not operate or apply so as to prevent admission into the Territory, for the purposes of this Agreement, of any member of the United States Forces posted to a Leased Area or any person (not being a national of a Power at war with His Majesty the King) employed by, or under a contract with, the Government of the United States in connection with the construction, maintenance, operation or de-fence of the Bases in the Territory; but suitable arrangements will be made by the United States to enable such persons to be readily identified and their status to be established.” P. 1565. Article XIV, “(1) No import, excise, consumption or other tax, duty or impost shall be charged on— “(c) goods consigned to the United States Authorities for the use of institutions under Government control known as Post Exchanges, Ships’ Service Stores, Commissary Stores or Service Clubs, or for sale thereat to members of the United States forces, or civilian employees of the United States being nationals of the United States and employed in connection with the Bases, or members of their families resident with them and not engaged in any business or occupation in the Territory; ” P.1566. Article XXIX, “During the continuance of any Lease, no laws of the Territory which would derogate from or prejudice any of the rights conferred on the United States by the Lease or by this Agreement shall be applicable within the Leased Area, save with the concurrence of the United States.” P. 1570. There are also articles arranging for postal facilities and tax exemptions. 1 Malloy, Treaties, Conventions, International Acts, Protocols and Agreements (S. Doc. No. 357, 61st Cong., 2d Sess.) 359: “While on the one hand the United States recognizes the continuance of the rdtimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas with the right to acquire (under conditions to be hereafter agreed upon by the two Governments) for the public purposes of the United States any land or other property therein by purchase or by exercise of eminent domain with full compensation to the owners thereof.” Id., 361. See Joint Resolution No. 24, April 20, 1898, on the recognition of the independence of Cuba, 30 Stat. 738; the Act of March 2, 1901, in fulfillment thereof, 31 Stat. 898, Art. VII; Treaty with Cuba proclaimed June 9, 1934, 48 Stat. 1682, 1683, Art. III. Isthmian Canal Convention, 33 Stat. 2234: “The United States of America and the Republic of Panama being desirous to insure the construction of a ship canal across the Isthmus of Panama to connect the Atlantic and Pacific oceans, and the Congress of the United States of America having passed an act approved June 28, 1902, in furtherance of that object, by which the President of the United States is authorized to acquire within a reasonable time the control of the necessary territory of the Republic of Colombia, and the sovereignty of such territory being actually vested in the Republic of Panama, the high contracting parties have resolved for that purpose to conclude a convention and have accordingly appointed as their plenipotentiaries, —” Id., 2235: “Article III. “The Republic of Panama grants to the United States all the rights, power and authority within the zone mentioned and described in Article II of this agreement and within the limits of all auxiliary lands and waters mentioned and described in said Article II which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters are located to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority.” Through the Joint Resolution of June 29, 1944, 58 Stat. 625, these provisions were effectuated in leases for 99 years by an agreement of March 14, 1947. 61 Stat. 2834, Treaties and International Acts No. 1611. The rights of control over the areas obtained by the United States from the Republic of the Philippines are quite similar to those obtained over the Bermuda base. The power of control over leased areas obtained by the United States through the above leases is not greater than that ordinarily exercised by sovereign lessees of foreign territory. See 34 American Journal of International Law 703; Lawrence, Principles of International Law (6th ed., 1915) 175; H. R. Doc. No. 1, 56th Cong., 2d Sess., 386; Oppenheim’s International Law (6th ed. by Lauterpacht, 1947) 412-14. Oppenheim contains numerous illustrations of leases by an owner-state to a foreign power. His views upon the leases of the bases herein referred to correspond to that of our Department of State and to the postulate as to sovereignty stated in this opinion. E. g., 55 Stat. 1245, Executive Agreement Series 204 (Greenland); 56 Stat. 1621, Executive Agreement Series 275 (Liberia). Browder v. United States, 312 U. S. 335, 339; Barr v. United States, 324 U. S. 83, 90. Puerto Rico v. Shell Co., 302 U. S. 253, 257. Federal Employers' Liability Act, 35 Stat. 65, § 2, 45 U. S. C. § 52 (1908) (“Every common carrier by railroad in the Territories, the District of Columbia, the Panama Canal Zone, or other possessions of the United States....”); Neutrality Act, 40 Stat. 231, § 1, 18 U. S. C. § 39 (1917) (“The term ‘United States’... includes the Canal Zone and all territory and waters, continental or insular, subject to the jurisdiction of the United States.”); Bank Conservation Act, 48 Stat. 2, § 202, 12 U. S. C. § 202 (1933) (“... the term ‘State’ means any State, Territory, or possession of the United States, and the Canal Zone.”) ; Federal Communications Act, 48 Stat. 1064, 1065, §3(g), as amended, 47 U. S. C. § 153 (g) (1934) (“ ‘United States’ means the several States and Territories, the District of Columbia, and the possessions of the United States, but does not include the Canal Zone.”); Food, Drug, and Cosmetic Act, 52 Stat. 1040, § 201 (a), 21 U. S. C. § 321 (a) (1938) (“The term ‘Territory’ means any Territory or possession of the United States, including the District of Columbia and excluding the Canal Zone.”); Federal Firearms Act, 52 Stat. 1250, § 1 (2), as amended, 15 U. S. C. § 901 (2) (1938) (“The term ‘interstate or foreign commerce’ means commerce between any State, Territory or possession (not including the Canal Zone), or the District of Columbia, and any place outside thereof;...”); Investment Company Act, 54 Stat. 795, § 2 (a) (37), as amended, 15 U. S. C. § 80a-2 (37) (1940) (“‘State’ means any State of the United States, the District of Columbia, Alaska, Hawaii, Puerto Rico, the Canal Zone, the Virgin Islands, or any other possession of the United States.”); Nationality Act, 54 Stat. 1137, § 101 (e), 8 U. S. C. § 501 (e) (1940) (“The term ‘outlying possessions’ means all territory... over which the United States exercises rights of sovereignty, except the Canal Zone.”); War Damage Corporation Act, 56 Stat. 174, 176,'§ 2, 15 U. S. C. § 606b-2 (a) (1942) (“Such protection shall be applicable only (1) to such property situated in the United States (including the several States and the District of Columbia), the Philippine Islands, the Canal Zone, the Territories and possessions of the United States, and in such other places as may be determined by the President to be under the dominion and control of the United States....”). The War Damage Corporation Act and the Defense Base Act, 56 Stat. 1035, 42 U. S. C. § 1651 (1942), infra, note 16, use terms different from “possession” to describe these leased areas. When these acts were passed, however, the problems posed by the bases were specifically considered by Congress. Hearings on H. R. 6382, House of Representatives, 77th Cong., 2d Sess., p. 27; 88 Cong. Rec. 1851. Thus they afford no touchstone as to the meaning of the Fair Labor Standards Act, where such problems were not specifically considered. United States v. Darby, 312 U. S. 100, 115: “The motive and purpose of the present regulation are plainly to make effective the Congressional conception of public policy that interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the states from and to which the commerce flows.” Substandard conditions included excessive hours of labor. Overnight Motor Co. v. Missel, 316 U. S. 572, 577. Johnson v. United, States, 163 F. 30, 32. When Congress dealt with coverage in the National Labor Relations Act, enacted July 5, 1935, 49 Stat. 449, 450, it used a narrower definition of commerce, one restricted to States and Territories. That has been held to cover Puerto Rico but we are not advised of any application to the bases. Cf. Labor Board v. Gonzalez Padin Co., 161 F. 2d 353. Defense Base Act, 56 Stat. 1035, 42 U. S. C. § 1651 (1942). This act extends the coverage of the Longshoremen’s and Harbor Workers’ Compensation Act to “any employee engaged 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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songer_procedur	C	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. UNITED STATES of America, Appellee, v. Alfred LABAT, Defendant-Appellant. No. 950, Docket 89-1368. United States Court of Appeals, Second Circuit. Argued March 2, 1990. Decided May 25, 1990. John G. Duncan, Asst. U.S. Atty., Syracuse, N.Y. (Frederick J. Scullin, Jr., U.S. Atty. for the N.D. of N.Y., Syracuse, N.Y., on the brief), for appellee. Cesar De La Puente, Miami, Fla. (Cesar M. de la Puente, P.A., Miami, Fla., on the brief), for defendant-appellant. Before OAKES, Chief Judge, KEARSE and WALKER, Circuit Judges. KEARSE, Circuit Judge: Defendant Alfred Labat appeals from a judgment entered in the United States District Court for the Northern District of New York, following a jury trial before Howard G. Munson, Judge, convicting him on one count of conspiracy to distribute and to possess cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1988) and 18 U.S.C. § 2 (1988), one count of possession of cocaine with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and one count of use of a communication facility to commit a narcotics felony, in violation of 21 U.S.C. § 843(b) (1988). La-bat was sentenced principally to concurrent prison terms of 60 months on the possession count, 51 months on the conspiracy count, and 48 months on the communication facility count; the prison terms were to be followed by four years’ supervised release. On appeal, Labat contends that the evidence was insufficient to convict him of any of these offenses. We agree as to the possession count; in all other respects, we affirm. ' I. BACKGROUND Labat and several others were named in a seven-count indictment charging them with various narcotics offenses. All of the other defendants entered pleas of guilty. Labat, charged in three counts, was tried alone. The government’s case against Labat was presented principally through the testimony of codefendant Ralph Moon, unindict-ed coconspirator Joseph Ray, who, like Moon, had pleaded guilty to narcotics violations, and Investigator James Mathews, a New York State police officer working with the Federal Bureau of Investigation. The government also introduced tape recordings of ten telephone conversations between Moon and Labat between December 20, 1987, and January 21, 1988. The trial evidence, taken in the light most favorable to the government, showed the following. Labat was a resident of Florida whom Moon had known for some 12 years; prior to 1985, the two had engaged in cocaine trafficking in Florida. In 1985, Moon moved to New York; from 1985 until early 1988, Moon engaged in sales of cocaine and marijuana with Ray in the vicinity of Fulton, New York. As discussed in greater detail in Part II.A. below, in December 1987, Moon, in New York, had several telephone conversations with Labat, in Florida, with respect to Labat’s efforts to obtain one-to-two kilograms of cocaine to sell to Moon at $17,000 to $18,000 per kilo. Beginning in the spring of 1987, Mathews, working in an undercover capacity, had purchased smaller quantities of cocaine and marijuana from Moon on a number of occasions. On January 15, 1988, Mathews told Moon he was interested in purchasing a kilogram of cocaine. Moon suggested that he and Mathews could travel together to Florida and purchase the desired kilogram for $18,000 from Labat. After conferring with Ray, Moon suggested, as an alternative, that Mathews could obtain a kilogram of cocaine from Ray for $30,000. Moon and Mathews parted company, leaving both options open. On January 18, 1988, Labat telephoned Moon and said he would try to obtain one kilogram of cocaine at a price of $22,000, and personally deliver it to Moon in New York. Over the next two days, Moon informed Mathews that he could obtain one kilo from Labat for $22,000; Ray renewed his offer to provide a kilo for $30,000. On Thursday, January 21, Labat called Moon and told him, “there’s no problem on the numbers.” He said he had not seen the cocaine in question, which was at a location between Florida and New York, but was working on the details of inspecting it and transporting it to Moon. Labat promised to have details for Moon the following Monday. In the meantime, however, Ray decided to obtain the cocaine for sale to Mathews from another source at a lower price. Thus, on January 22, Ray left New York to drive to Florida, where he purchased one kilo of cocaine for $16,000 from one Randy Dentel. Ray returned to New York on January 26; on January 29, Moon and Ray sold that kilogram of cocaine to Mathews for $30,000. This prosecution soon followed. Labat was charged with one count of conspiring with Moon and others to distribute and to possess cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2, one count of aiding and abetting the possession of the cocaine sold to Mathews, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and one count of using a communication facility, i.e., the telephone, to commit, or to cause or facilitate the commission of, a narcotics felony, in violation of 21 U.S.C. § 843(b). Testifying at trial, Labat did not deny that he had discussed supplying cocaine to Moon, but he said (a) he did not in fact attempt to find any cocaine to provide to Moon and never intended to do so, and (b) he did not know Ray and the other coconspirators and did not know that Moon ever considered obtaining cocaine from another source. The jury found Labat guilty on all three' counts, and he was sentenced as indicated above. II. DISCUSSION On appeal, Labat contends that the evidence was insufficient to support his eon-viction of any of the charged offenses. For the reasons below, we reject his challenge with respect to the conspiracy and telephone counts; but we conclude that the evidence was insufficient to support his conviction on the possession count. A. The Conspiracy and Telephone Counts In challenging his conviction for conspiracy, Labat contends that the evidence showed that he did not know, never heard of, and never talked with Ray or any of Moon’s other coconspirators. Though conceding that the evidence showed a conspiracy among Moon, Ray, and others, La-bat contends that there was insufficient proof that Labat joined that conspiracy. His arguments lack merit. In order to prove a conspiracy charge against a given defendant, the government must present “ ‘some evidence from which it can reasonably be inferred that the person charged with conspiracy knew of the existence of the scheme alleged in the indictment and knowingly joined and participated in it.’” United States v. Sanchez Solis, 882 F.2d 693, 696 (2d Cir.1989) (quoting United States v. Gaviria, 740 F.2d 174, 183 (2d Cir.1984)). Both the existence of the conspiracy and the defendant’s participation in it with the requisite criminal intent may be established through circumstantial evidence. See, e.g., United States v. Tutino, 883 F.2d 1125, 1129 (2d Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990); United States v. Young, 745 F.2d 733, 762 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985). The defendant need not know the identities of all of the other conspirators, nor all of the details of the conspiracy. See Blumenthal v. United States, 332 U.S. 539, 557, 68 S.Ct. 248, 256, 92 L.Ed. 154 (1947). Since the essence of conspiracy is the agreement and not the commission of the substantive offense that is its objective, the offense of conspiracy may be established even if the collaborators do not reach their goal. See United States v. Abel, 258 F.2d 485, 489 (2d Cir.1958), aff'd on other grounds, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). In challenging the sufficiency of the evidence to support his conviction, a defendant bears a heavy burden. United States v. Adegbite, 877 F.2d 174, 179-80 (2d Cir.), cert. denied, — U.S. -, 110 S.Ct. 370, 107 L.Ed.2d 356 (1989); United States v. Chang An-Lo, 851 F.2d 547, 553 (2d Cir.), cert. denied, — U.S. -, 109 S.Ct. 493, 102 L.Ed.2d 530 (1988). In reviewing such a challenge, we must credit every inference that could have been drawn in the government’s favor, United States v. Bagaric, 706 F.2d 42, 64 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 134, 78 L.Ed.2d 128 (1983); United States v. Carson, 702 F.2d 351, 361 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983), and we must affirm the conviction so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt, United States v. Buck, 804 F.2d 239, 242 (2d Cir.1986); United States v. Taylor, 464 F.2d 240, 244-45 (2d Cir.1972). Labat has not carried his burden with respect to the conspiracy count. Both the furtiveness and the contents of the telephone conversations permitted the jury to find that Labat knew Moon was associated with others in a scheme to possess and distribute at least one-to-two kilograms of cocaine and that Labat in fact agreed to join that conspiracy. Frequently a call to or from Labat’s home was made simply to arrange a subsequent conversation in which Labat would use a pay telephone. The ensuing conversations then were carried on in a code that used the word “shoe” to denote a kilogram of cocaine. For example, when Moon told Labat in a December 21, 1987 conversation that he wanted one kilogram of uncut cocaine for $14,000, Labat responded that he could not sell uncut cocaine for that price (“I don’t think I can do it unless — unless you want to take something that’s less quality”), and that he could not sell a kilogram of that purity for less than $17-18,000 (“I don’t think I’d be able to — to sell a shoe for less than 17, 18”; “[tjhose shoes don’t go any cheaper”). Moon said he actually had $16,000, needed a whole kilogram, and did not want to settle for lower purity, so he would take what Labat was offering. La-bat asked "so how are you gonna come up with the ... V’ (Ellipsis represents pause.) Moon said that though $16,000 was all he and his “associate” had, he would get the rest from a friend. Moon again insisted that the cocaine be uncut (“there can’t be no — no wear on the shoe at all, you know what I’m saying?”), and Labat assured him that he would be satisfied. In later conversations, Moon sought to purchase two kilos of cocaine; Labat kept Moon informed as to his efforts to obtain the desired cocaine, sought reassurance that Moon had the money, and said he would work out the details for inspection and delivery. Labat stated that he might bring the cocaine to New York personally, and he insisted that his meeting there be with Moon alone. In all, the evidence was sufficient to permit a rational juror to infer beyond a reasonable doubt that Labat knew that Moon and at least one associate were engaged in a conspiracy to possess and distribute narcotics and that Labat joined that conspiracy. In light of the sufficiency of the evidence to support his conviction for conspiracy, Labat’s challenge to his conviction for using the telephone to facilitate that crime is similarly without merit. B. The Possession Count Labat’s conviction on the possession count is a different matter. The government concedes that there was no evidence that Labat ever supplied any cocaine to Moon during the period in question and that Labat never had possession of the cocaine sold to Mathews, which Ray had obtained from Dentel, not from Labat. It argues, however, that Labat’s conviction for possession may be upheld either on the theory that Labat aided and abetted the possession by Moon and Ray of the kilogram of cocaine eventually delivered to Mathews or on a Pinkerton theory, see Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946). We disagree. To convict a defendant on a theory of aiding and abetting, the government must prove that the underlying crime was committed by a person other than the defendant and that the defendant acted, or failed to act in a way that the law required him to act, with the specific purpose of bringing about the underlying crime. See United States v. Wiley, 846 F.2d 150, 154 (2d Cir.1988); United States v. Zambrano, 776 F.2d 1091, 1097 (2d Cir.1985). To prove that the defendant acted with that specific intent, the government must show that he knew of the proposed crime. See, e.g., United States v. Gallishaw, 428 F.2d 760, 763 (2d Cir.1970); see also Nye & Nissen v. United States, 336 U.S. 613, 620, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949) (aiding and abetting theory supports liability when the defendant “consciously shares in” the underlying criminal act). A general suspicion that an unlawful act may occur is ■■ not enough. See, e.g., United States v. Wiley, 846 F.2d at 154; United States v. Zambrano, 776 F.2d at 1097. The government must also show that the defendant had some interest in furthering the unlawful act, see United States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir.1977), and that he “consciously assisted the commission of the specific crime in some active way,” United States v. Dickerson, 508 F.2d 1216, 1218 (2d Cir.1975). In sum, aiding and abetting is not proven unless it is shown that the defendant joined the specific venture and shared in it, and that his efforts contributed to its success. See, e.g., United States v. Wiley, 846 F.2d at 154. The evidence with respect to the possession count did not meet these standards. It did not show any connection between Labat and Dentel. Nor did it show that Labat attempted or desired to further a cocaine purchase by Moon from any other source; indeed, since there was no evidence that Labat was to receive any benefit unless he himself sold cocaine to Moon, it was plainly contrary to Labat’s interest to have Moon purchase from a source other than Labat. Nor was there any evidence that Labat’s efforts made any contribution whatever to Moon’s obtaining the cocaine from Dentel. Accordingly, the evidence did not support the verdict that Labat was guilty of aiding and abetting possession of the cocaine obtained from Dentel. The government’s Pinkerton theory fares no better, though for another reason. Under this theory, a coconspirator who does not directly commit a substantive offense may nonetheless be held liable for that offense if it was committed by another coconspirator in furtherance of the conspiracy and was a reasonably foreseeable consequence of the conspiratorial agreement. See, e.g., Pinkerton v. United States, 328 U.S. at 646-47, 66 S.Ct. at 1183-84; United States v. Ciambrone, 787 F.2d 799, 809 (2d Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986); United States v. Pugliese, 712 F.2d 1574, 1583 (2d Cir.1983). Even if it were a reasonably foreseeable consequence of the conspiracy in which Labat joined that Moon and the other defendants would obtain cocaine instead from an unrelated source, the Pinkerton theory is not available on this appeal, for the jury was not instructed that it could find Labat guilty of possession on this basis. We may not permissibly infer either that the jury found Labat guilty on a theory as to which it was not instructed, see, e.g., Nye & Nissen v. United States, 336 U.S. at 618, 69 S.Ct. at 769 (verdict may not be upheld on Pinkerton theory without “submission of those fact issues to the jury”); United States v. Brown, 823 F.2d 591, 599 (D.C.Cir.1987), or that, had the jury been properly instructed on that theory, it would have found him guilty on that basis, cf. Dunn v. United States, 442 U.S. 100, 106-07, 99 S.Ct. 2190, 2194, 60 L.Ed.2d 743 (1979). CONCLUSION For the foregoing reasons, the conviction on the possession count is reversed, and the matter is remanded for dismissal of that count. In all other respects, the judgment of conviction is affirmed. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_adminaction_is	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. NEITZKE et al. v. WILLIAMS No. 87-1882. Argued February 22, 1989 Decided May 1, 1989 Marshall, J., delivered the opinion for a unanimous Court. Robert S. Spear argued the cause for petitioners. With him on the briefs was Linley E. Pearson, Attorney General of Indiana, and David A. Noioak, Deputy Attorney General. George A. Rutherglen, by appointment of the Court, 488 U. S. 939, argued the cause and filed a brief for respondent. Justice Marshall delivered the opinion of the Court. The question presented is whether a complaint filed in forma pauperis which fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) is automatically frivolous within the meaning of 28 U. S. C. § 1915(d). The answer, we hold, is no. I On October 27, 1986, respondent Harry Williams, Sr., an inmate in the custody of the Indiana Department of Corrections, filed a complaint under 42 U. S. C. § 1983 in the United States District Court for the Southern District of Indiana, naming five Indiana correctional officials as defendants. App. 38. The complaint alleged that, while at the Indiana State Prison, Williams had been diagnosed by a prison doctor as having a small brain tumor which affected his equilibrium. Id., at 40. Because of this condition, the doctor placed Williams for one year on “medical idle status.” A medical report Williams attached to the complaint stated that “[i]t is very likely that he will have this condition for some time to come.” Id., at 48. The complaint further alleged that, when Williams was transferred to the Indiana State Reformatory, he notified the reformatory staff about the tumor and about the doctor’s recommendation that he not participate in any prison work program. Id., at 41. Despite this notification, reformatory doctors refused to treat the tumor, id., at 40-41, and reformatory officials assigned Williams to do garment manufacturing work, id., at 42. After Williams’ equilibrium problems worsened and he refused to continue working, the reformatory disciplinary board responded by transferring him to a less desirable cell house. Id., at 42-43. The complaint charged that by denying medical treatment, the reformatory officials had violated Williams’ rights under the Eighth Amendment, and by transferring him without a hearing, they had violated his rights under the Due Process Clause of the Fourteenth Amendment. Id., at 44. The complaint sought money damages and declaratory and injunctive relief. Id., at 45-46. Along with the complaint, Williams filed a motion to proceed informa pauperis pursuant to 28 U. S. C. § 1915(a), stating that he had no assets and only prison income. App. 36-37. The District Court dismissed the complaint sua sponte as frivolous under 28 U. S. C. § 1915(d) on the grounds that Williams had failed to state a claim upon which relief could be granted under Federal Rule of Civil Procedure 12(b)(6). Insofar as Williams claimed deficient medical care, his pleadings did not state a claim of “deliberate indifference to [his] serious medical needs,” as prisoners’ Eighth Amendment claims must under Estelle v. Gamble, 429 U. S. 97, 104 (1976), but instead described a constitutionally noncognizable instance of medical malpractice. Williams v. Faulkner, Cause No. IP 86-1307-C (SD Ind., Jan. 16, 1987), reprinted at App. 67. Insofar as Williams protested his transfer without a hearing, his pleadings failed to state a due process violation, for a prisoner has no constitutionally protected liberty or property interest in being incarcerated in a particular institution or a particular wing. Id., at 26. The court gave no other reasons for finding the complaint frivolous. On Williams’ ensuing motion to vacate the judgment and amend his pleadings, the District Court reached these same conclusions. Williams v. Faulkner, Cause No. IP 86-1307-C (SD Ind., Mar. 11, 1987), reprinted at App. 29. The Court of Appeals for the Seventh Circuit affirmed in part and reversed in part. Williams v. Faulkner, 837 F. 2d 304 (1988). In its view, the District Court had wrongly equated the standard for failure to state a claim under Rule 12(b)(6) with the standard for frivolousness under § 1915(d). The frivolousness standard, authorizing sua sponte dismissal of an in forma pauperis complaint “only if the petitioner cannot make any rational argument in law or fact which would entitle him or her to relief,” is a “more lenient” standard than that of Rule 12(b)(6), the court stated. 837 F. 2d, at 307. Unless there is “‘indisputably absent any factual or legal basis’” for the wrong asserted in the complaint, the trial court, “[i]n a close case,” should permit the claim to proceed at least to the point where responsive pleadings are required. Ibid, (citation omitted). Evaluated under this frivolousness standard, the Court of Appeals held, Williams’ Eighth Amendment claims against two of the defendants had been wrongly dismissed. Although the complaint failed to allege the level of deliberate indifference necessary to survive a motion to' dismiss under Rule 12(b)(6), at this stage of the proceedings, the court stated, “we cannot state with certainty that Williams is unable to make any rational argument in law or fact to support his claim for relief” against these defendants. 837 F. 2d, at 308. Accordingly, the Court of Appeals reversed and remanded these claims to the District Court. The Court of Appeals affirmed the dismissal of Williams’ due process claims as frivolous, however. Because the law is clear that prisoners have no constitutionally protected liberty interest in remaining in a particular wing of a prison, the court stated, Williams could make no rational argument in law or fact that his transfer violated due process. Id., at 308-309. We granted the petition for a writ of certiorari, 488 U. S. 816 (1988), filed by those defendants against whom Williams’ claims still stand to decide whether a complaint that fails to state a claim under Rule 12(b)(6) is necessarily frivolous within the meaning of § 1915(d), a question over which the Courts of Appeals have disagreed. We now affirm. I — H HH The federal informa pauperis statute, enacted in 1892 and presently codified as 28 U. S. C. § 1915, is designed to ensure that indigent litigants have meaningful access to the federal courts. Adkins v. E. I. DuPont de Nemours & Co., 335 U. S. 331, 342-343 (1948). Toward this end, § 1915(a) allows a litigant to commence a civil or criminal action in federal court in forma pauperis by filing in good faith an affidavit stating, inter alia, that he is unable to pay the costs of the lawsuit. Congress recognized, however, that a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits. To prevent such abusive or captious litigation, § 1915(d) authorizes federal courts to dismiss a claim filed informa pauperis “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” Dismissals on these grounds are often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such complaints. See Franklin v. Murphy, 745 F. 2d 1221, 1226 (CA9 1984). The brevity of § 1915(d) and the generality of its terms have left the judiciary with the not inconsiderable tasks of fashioning the procedures by which the statute operates and of giving content to § 1915(d)’s indefinite adjectives. Articulating the proper contours of the § 1915(d) term “frivolous,” which neither the statute nor the accompanying congressional reports defines, presents one such task. The Courts of Appeals have, quite correctly in our view, generally adopted as formulae for evaluating frivolousness under § 1915(d) close variants of the definition of legal frivolousness which we articulated in the Sixth Amendment case of Anders v. California, 386 U. S. 738 (1967). There, we stated that an appeal on a matter of law is frivolous where “[none] of the legal points [are] arguable on their merits.” Id., at 744. By logical extension, a complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact. As the Courts of Appeals have recognized, § 1915(d)’s term “frivolous,” when applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual allegation. Where the appellate courts have diverged, however, is on the question whether a complaint which fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) automatically satisfies this frivolousness standard. The petitioning prison officials urge us to adopt such a per se reading, primarily on the policy ground that such a reading will halt the “flood of frivolous litigation” generated by prisoners that has swept over the federal judiciary. Brief for Petitioners 7. In support of this position, petitioners note the large and growing number of prisoner civil rights complaints, the burden which disposing of meritless complaints imposes on efficient judicial administration, and the need to discourage prisoners from filing frivolous complaints as a means of gaining a “‘short sabbatical in the nearest federal courthouse.’” Id., at 6, quoting Cruz v. Beto, 405 U. S. 319, 327 (1972) (Rehnquist, J., dissenting). Because a complaint which states no claim “must be dismissed pursuant to Rule 12(b)(6) anyway,” petitioners assert, “delaying] this determination until after service of process and a defendant’s response only delays the inevitable.” Reply Brief for Petitioners 3. We recognize the problems in judicial administration caused by the surfeit of meritless in forma pauperis complaints in the federal courts, not the least of which is the possibility that meritorious complaints will receive inadequate attention or be difficult to identify amidst the overwhelming number of meritless complaints. See Turner, When Prisoners Sue: A Study of Prisoner Section 1983 Suits in the Federal Courts, 92 Harv. L. Rev. 610, 611 (1979). Nevertheless, our role in appraising petitioners’ reading of § 1915(d) is not to make policy, but to interpret a statute. Taking this approach, it is evident that the failure-to-state-a-claim standard of Rule 12(b)(6) and the frivolousness standard of § 1915(d) were devised to serve distinctive goals, and that while the overlap between these two standards is considerable, it does not follow that a complaint which falls afoul of the former standard will invariably fall afoul of the latter. Appealing though petitioners’ proposal may appear as a broadbrush means of pruning meritless complaints from the federal docket, as a matter of statutory construction it is untenable. Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law. Hishon v. King & Spalding, 467 U. S. 69, 73 (1984); Conley v. Gibson, 355 U. S. 41, 45-46 (1957). This procedure, operating on the assumption that the factual allegations in the complaint are true, streamlines litigation by dispensing with needless discovery and factfinding. Nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations,” Hishon, supra, at 73, a claim must be dismissed, without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one. What Rule 12(b)(6) does not countenance are dismissals based on a judge’s disbelief of a complaint’s factual allegations. District court judges looking to dismiss claims on such grounds must look elsewhere for legal support. Section 1915(d) has a separate function, one which molds rather differently the power to dismiss which it confers. Section 1915(d) is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11. To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly baseless. Examples of the former class are claims against which it is clear that the defendants are immune from suit, see, e. g., Williams v. Goldsmith, 701 F. 2d 603 (CA7 1983), and claims of infringement of a legal interest which clearly does not exist, like respondent Williams’ claim that his transfer within the reformatory violated his rights under the Due Process Clause. Examples of the latter class are claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar. To the extent that a complaint filed in forma pauperis which fails to state a claim lacks even an arguable basis in law, Rule 12(b)(6) and § 1915(d) both counsel dismissal. But the considerable common ground between these standards does not mean that the one invariably encompasses the other. When a complaint raises an arguable question of law which the district court ultimately finds is correctly resolved against the plaintiff, dismissal on Rule 12(b)(6) grounds is appropriate, but dismissal on the basis of frivolousness is not. This conclusion follows naturally from § 1915(d)’s role of replicating the function of screening out inarguable claims which is played in the realm of paid cases by financial considerations. The cost of bringing suit and the fear of financial sanctions doubtless deter most inarguable paid claims, but such deterrence presumably screens out far less frequently those arguably meritorious legal theories whose ultimate failure is not apparent at the outset. Close questions of federal law, including claims filed pursuant to 42 U. S. C. § 1983, have on a number of occasions arisen on motions to dismiss for failure to state a claim, and have been substantial enough to warrant this Court’s granting review, under its certiorari jurisdiction, to resolve them. See, e. g., Estelle v. Gamble, 429 U. S. 97 (1976); McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273 (1976); Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971); Jones v. Alfred Mayer Co., 392 U. S. 409 (1968). It can hardly be said that the substantial legal claims raised in these cases were so defective that they should never have been brought at the outset. To term these claims frivolous is to distort measurably the meaning of frivolousness both in common and legal parlance. Indeed, we recently reviewed the dismissal under Rule 12(b)(6) of a complaint based on 42 U. S. C. § 1983 and found by a 9-to-0 vote that it had, in fact, stated a cognizable claim — a powerful illustration that a finding of a failure to state a claim does not invariably mean that the claim is without arguable merit. See Brower v. County of Inyo, 489 U. S. 593 (1989). That frivolousness in the § 1915(d) context refers to a more limited set of claims than does Rule 12(b)(6) accords, moreover, with the understanding articulated in other areas of law that not all unsuccessful claims are frivolous. See, e. g., Penson v. Ohio, 488 U. S. 75 (1988) (criminal defendant has right to appellate counsel even if his claims are ultimately unavailing so long as they are not frivolous); Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 422 (1978) (attorney’s fees may not be assessed against a plaintiff who fails to state a claim under 42 U. S. C. § 1988 or under Title VII of the Civil Rights Act of 1964 unless his complaint is frivolous); Hagans v. Lavine, 415 U. S. 528, 536-537 (1974) (complaint that fails to state a claim may not be dismissed for want of subject-matter jurisdiction unless it is frivolous). Our conclusion today is consonant with Congress’ overarching goal in enacting the in forma pauperis statute: “to assure equality of consideration for all litigants.” Coppedge v. United States, 369 U. S. 438, 447 (1962); see also H. R. Rep. No. 1079, 52d Cong., 1st Sess., 1 (1892). Under Rule 12(b)(6), a plaintiff with an arguable claim is ordinarily accorded notice of a pending motion to dismiss for failure to state a claim and an opportunity to amend the complaint before the motion is ruled upon. These procedures alert him to the legal theory underlying the defendant’s challenge, and enable him meaningfully to respond by opposing the motion to dismiss on legal grounds or by clarifying his factual allegations so as to conform with the requirements of a valid legal cause of action. This adversarial process also crystallizes the pertinent issues and facilitates appellate review of a trial court dismissal by creating a more complete record of the case. Brandon v. District of Columbia Board of Parole, 236 U. S. App. D. C. 155, 158, 734 F. 2d 56, 59 (1984), cert. denied, 469 U. S. 1127 (1985). By contrast, the sua sponte dismissals permitted by, and frequently employed under, § 1915(d), necessary though they may sometimes be to shield defendants from vexatious lawsuits, involve no such procedural protections. To conflate the standards of frivolousness and failure to state a claim, as petitioners urge, would thus deny indigent plaintiffs the practical protections against unwarranted dismissal generally accorded paying plaintiffs under the Federal Rules. A complaint like that filed by Williams under the Eighth Amendment, whose only defect was its failure to state a claim, will in all likelihood be dismissed sua sponte, whereas an identical complaint filed by a paying plaintiff will in all likelihood receive the considerable benefits of the adversary proceedings contemplated by the Federal Rules. Given Congress’ goal of putting indigent plaintiffs on a similar footing with paying plaintiffs, petitioners’ interpretation cannot reasonably be sustained. According opportunities for responsive pleadings to indigent litigants commensurate to the opportunities accorded similarly situated paying plaintiffs is all the more important because indigent plaintiffs so often proceed pro se and therefore may be less capable of formulating legally competent initial pleadings. See Haines v. Kerner, 404 U. S. 519, 520 (1972). We therefore hold that a complaint filed informa pauperis is not automatically frivolous within the meaning of § 1915(d) because it fails to state a claim. The judgment of the Court of Appeals is accordingly Affirmed, Both in its initial ruling and upon the motion to vacate and amend, the District Court also denied Williams leave to proceed informa pauperis. It based this denial exclusively on its finding of frivolousness, stating that Williams had presumptively satisfied § 1915’s poverty requirement. Williams v. Faulkner, Cause No. IP 86-1307-C (SD Ind., Jan. 16, 1987), reprinted at App. 22. In so ruling, the District Court adhered to precedent in the Court of Appeals for the Seventh Circuit to the effect that, if a district court finds a complaint frivolous or malicious, it should not only dismiss the complaint but also retroactively deny the accompanying motion to proceed informa pauperis under § 1915, regardless of the plaintiff’s financial status. See Wartman v. Branch 7, Civil Division, County Court, Milwaukee County, Wis., 510 F. 2d 130, 134 (1975). Other Circuits, however, treat the decision whether to grant leave to file in forma pauperis as a threshold inquiry based exclusively on the movant’s poverty. See, e. g., Franklin v. Murphy, 745 F. 2d 1221, 1226-1227, n. 5 (CA9 1984); Boyce v. Alizaduh, 595 F. 2d 948, 950-951 (CA4 1979). Because our review is confined to the question whether the complaint in this case is frivolous within the meaning of § 1915(d), we have no occasion to consider the propriety of these varying applications of the statute. The two defendants against whom the Eighth Amendment claims were reinstated were Han Chul Choi, a reformatory doctor whom Williams alleged had refused to treat the brain tumor, and Dean Neitzke, who as administrator of the reformatory infirmary was presumptively responsible for ensuring that Williams received adequate medical care. Williams v. Faulkner, 837 F. 2d 304, 308 (CA7 1988). The Court of Appeals held that Williams’ complaint had alleged no personal involvement on the part of the remaining three defendants in his medical treatment, and that these defendants’ prison jobs did not justify an “inference of personal involvement in the alleged deprivation of medical care.” Ibid. Because Williams could thus make no rational argument to support his claims for relief against these officials, the Court of Appeals stated, the District Court had appropriately dismissed those claims as frivolous. Ibid. Compare Brandon v. District of Columbia Board of Parole, 236 U. S. App. D. C. 155, 159, 734 F. 2d 56, 59 (1984), cert. denied, 469 U. S. 1127 (1985), with Harris v. Menendez, 817 F. 2d 737, 740 (CA11 1987); Spears v. McCotter, 766 F. 2d 179, 182 (CA5 1985); Franklin, supra, at 1227; Malone v. Colyer, 710 F. 2d 258, 261 (CA6 1983). See, e. g., Catz & Guyer, Federal In Forma Pauperis Litigation: In Search of Judicial Standards, 31 Rutgers L. Rev. 655 (1978); Feldman, Indigents in the Federal Courts: The In Forma Pauperis Statute — Equality and Frivolity, 54 Ford. L. Rev. 413 (1985). See, e. g., Payne v. Lynaugh, 843 F. 2d 177, 178 (CA5 1988); Franklin, 745 F. 2d, at 1227-1228; Johnson v. Silvers, 742 F. 2d 823, 824 (CA4 1984); Brandon, supra, at 159, 734 F. 2d, at 59; Wiggins v. New Mexico State Supreme Court Clerk, 664 F. 2d 812, 815 (CA10 1981), cert. denied, 459 U. S. 840 (1982). A patently insubstantial complaint may be dismissed, for example, for want of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See, e. g., Hagans v. Lavine, 415 U. S. 528, 536-537 (1974) (federal courts lack power to entertain claims that are “ ‘so attenuated and unsubstantial as to be absolutely devoid of merit’ ”) (citation omitted); Bell v. Hood, 327 U. S. 678, 682-683 (1946). At argument, Williams’ counsel estimated that many, if not most, prisoner complaints which fail to state a claim also fall afoul of § 1915’s strictures, Tr. of Oral Arg. 27, an estimate with which our experience does not incline us to take issue. We have no occasion to pass judgment, however, on the permissible scope, if any, of sua sponte dismissals under Rule 12(b)(6). Petitioners’ related suggestion that, as a practical matter, the liberal pleading standard applied to pro se plaintiffs under Haines provides ample protection misses the mark for two reasons. First, it is possible for a plaintiff to file in forma pauperis while represented by counsel. See, e. g., Adkins v. E. I. DuPont de Nemours & Co., 335 U. S. 331 (1948). Second, the liberal pleading standard of Haines applies only to a plaintiff’s factual allegations. Responsive pleadings thus may be necessary for a pro se plaintiff to clarify his legal theories. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_appel2_7_3	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained". Dossie Wayne KEMP et al., Appellants, v. Leroy BEASLEY et al., Appellees. No. 19017. United States Court of Appeals Eighth Circuit. Jan. 9, 1968. Rehearing Denied Feb. 5, 1968. John W. Walker and Norman J. Chachkin, Little Rock, Ark., for appellants; George Howard, Jr., Pine Bluff, Ark., and Jack Greenberg and Michael Meltsner, New York City, on the brief. Herschel H. Friday and Robert V. Light, Little Rock, Ark., for appellees; William I. Prewett, El Dorado, Ark., and G. Ross Smith, Little Rock, Ark., on the brief. Before VOGEL, Chief Judge, and MATTHES and LAY, Circuit Judges. LAY, Circuit Judge. Our attention is once again directed to the problem of school desegregation. This case was presented to us once before, see Kemp v. Beasley, 8 Cir., 352 F.2d 14, decided in October 1965 (hereinafter referred to as Kemp I). Basically, its history since that time represents an apparent failure by both parties to cooperate in carrying out the mandate of this court for an immediate and efficacious plan of desegregation within the El Dorado School District. The various hearings, amended plans and objections, as well as this appeal, demonstrate that cooperative efforts by the parties to reach a workable agreement short of litigation have reached an unfortunate impasse. **Constitutional guidelines exist and should not be so elusive. The District Court is always present to assure the expeditious consummation of steps to “effectuate a transition to a racially nondiscriminatory school system.” Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955) (hereinafter Brown II). However, we are confident that facile solutions will not find their genesis in desegregation plans filed with a court. Words alone will not achieve the goal of equality. The initiative and positive actions of school officials are still the true predicate to success of any desegregation plan. The simple, troubling truth becomes increasingly apparent: in a formerly de jure segregated school system, equality of education for Negro students is only as far away as local school boards want it to be. It is true that community understanding is involved as well. However, its growth, too, is dependent on the cooperative attitudes and willing spirit of school boards, administrators and their faculties. The Supreme Court in Brown II recognized the supervisory powers of the district courts in “implementation of the governing constitutional principles” because of their knowledge and proximity to local conditions whereby they can best offer “judicial appraisal.” 349 U.S. at 299, 75 S.Ct. at 756. But Brown II recognized first and foremost that “School authorities have the primary responsibility for elucidating, assessing and solving these problems * Id. We have attempted to follow this principle in this Circuit, fully recognizing that even the district courts do not have the expertise or time to become the alter ego of school boards in carrying out educational policies. However, as we indicated in Clark v. Board of Education, 369 F.2d 661 (8 Cir. 1966), transitional periods for gradual integration of grades and faculty are no longer meaningful excuses for school boards ordered to get on with their task of equal education for all. We are here now. We must now face the problems with realistic and practical resolution. Laudatory goals and ritualistic phraselogy will no longer rule the day. Within these principles we proceed to review the recurring problems before us. Freedom, of Choice. Appellants challenge the Board’s use of the freedom of choice plan. There is no need to repeat our observations made in Kemp I. Clark, and Kelley v. Altheimer, 378 F.2d 483 (8 Cir. 1967), concerning the constitutional validity of freedom of choice plans. At the present time, we are still not persuaded that such plans are objectionable per se. But recognition must now be made that the only permissible program is one that works. Or~ai~often repeated, “the proof of the pudding is in the eating.” Once again, we give a freedom of choice plan tentative approval solely as a transitional program to achieve a unitary school system. As said in Kemp I, it is still in the “experimental stage” and as such can only serve as an “interim measure” and as “a permissible method at this stage.” 352 F.2d at 21. School boards must recognize the constitutional inadequacy of maintaining school systems where the formerly all white school has the appearance of only token integration and the all Negro school is still perpetuated as a segregated unit. It becomes judicial hypocrisy to approve a plan which simply continues the status quo under the guise that the segregation is no longer coerced. Where “freedom of choice” does not implement, or produce meaningful advance toward the ultimate goal of a racially integrated school system, it cannot be said to work in the constitutional sense. Sometimes goals become elusive when obscured in the controversy over the mechanics with which we pursue them. Many times solutions become.obtainable when we simply recall why we want to get there. With intended repetition, we recall principles which relate advantages common to all races. 1. “Separate educational facilities are inherently unequal.” Brown v. Board of Education, 347 U.S. 483, 495, 74 S.Ct. 686, 692, 98 L.Ed. 873 (1954) (hereinafter Brown I). 2. “Today, education is perhaps the most important function of state and local governments.” Id. at 493, 74 S.Ct. at 691. 3. “It is the very foundation of good citizenship.” Id. at 493, 74 S.Ct. at 691. 4. “Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. Id. at 493, 74 S.Ct. at 691. 5. “To separate [grade and high school children] from others of similar age and qualification solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Id. at 494, 74 S.Ct. at 691. 6. “Segregation in public education is not reasonably related to any proper governmental objective. * * * ” Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct, 693, 694, 98 L.Ed. 884 (1954). 7. “Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.” Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691. But goals cannot be accomplished with present attitudes. Once again the School Board relies upon the now discarded approach of Briggs, first refuted in this Circuit in 1965, when Judge Gibson, in Kemp I, speaking for this Court, said: “In support of their ‘freedom of choice’ plan the Board places great reliance in the dicta found in Briggs v. Elliott, 132 F.Supp. 776, 777 (E.D. S.C.1955) to the effect ‘the Constitution, in other words, does not require integration. It merely forbids discrimination.’ Therefore, they argue that as long as the Negro is not required to attend the Negro school his constitutional rights have not been violated. “We cannot accept the position advanced by the Board on this matter. The dictum in Briggs has not been followed or adopted by this Circuit and it is logically inconsistent with Brown and subsequent decisional law on this subject.” 352 F.2d 14, 21. See also our repudiation of this view in Kelley v. Altheimer, 378 F.2d 483 (8 Cir. 1967), and in Yarbrough v. Hulbert-West Memphis School District, 380 F.2d 962 (8 Cir. 1967). See specifically the concurring opinion at p. 969. In the present case appellants urge that they were restricted by the trial court in presenting evidence as to the degree of success of the Board’s plan. We recognize the discretion of the District Court to hold separate hearings on the form of the plan itself and the question of good faith efforts of the School Board under a plan. Although the two issues generally coalesce, in the instant case we feel the District Court was simply trying to sift the chaff from the wheat to arrive at the wording of an acceptable plan as of August 1967. The misunderstanding between court and counsel apparently arose from the delay in the hearing of the plan filed by the Board in December 1965. Appellants were attempting to support their objections to the filed plan by evidence of ineffectiveness over two years of operative experience under the plan. Appellants urged that Negro families were intimidated and afraid to exercise their free choice of schools. Evidence of alleged intimidation occurring two years ago was set forth. For the time being, we think the trial court’s realistic awareness and stated concern is sufficient answer for this. If the allegation is true, we are confident the District Court will not tolerate it. Of course, any coercion of choice is not a free one. We have sufficient facts before us to pass on both the plan submitted as well as the questioned implementation of this Court’s prior decree. We do this to avoid “splintering” of issues on appeal. Cf. A. L. Mechling Barge Lines, Inc. v. United States, 376 U.S. 375, 383, 84 S.Ct. 874, 11 L.Ed.2d 788 (1964). In the El Dorado School District, the record shows that the freedom of choice plan started in 1965 resulted in 11 Negro children moving into white schools in 1965-66; 97 children transferring by 1966-67; and a total of 293 moving in 1967-68. Under our first opinion, the school year 1967-68 now in session is the first year providing free choice for all grades. Appellees urge that their plan has resulted in 13.6% of integration and in comparison to other school districts this is sufficient progress. We disagree. However, the disturbing factor is not found in the insufficient • number of Negro children moving into white schools. The combined Washington Junior and Senior High School is still providing a racially isolated education to approximately 900 Negro students. In the third year after Bradley v. School Board, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965) and Rogers v. Paul, 382 U.S. 198, 86 S.Ct. 358, 15 L.Ed.2d 265 (1965), the high school still has an all Negro faculty. In addition, in the six Negro elementary schools the pupils attend under the same racial pattern as before. These schools must still be considered all Negro schools existing in a school system that was created under law requiring separation of races. It becomes self-deception to say that freedom of choice is successfully desegregating these schools. Perpetuation of the all Negro school in a formerly de jure segregated school system is simply constitutionally impermissible. Thus, we must recognize “freedom of choice” for what it is. It may yet serve as a permissible means to the desired end, but it is certainly not the goal itself. If desegregation continues at the present pace, the District Court is instructed to see that affirmative steps be taken to supplement or substitute for the current program. There must be positive recognition by school officials of their responsibility to create a nondiscriminatory school system. It is not our role to direct the actual means by which this is to be accomplished. This belongs in the hands of the District Court and the School Board. The District Court is available to continually process ideas and cooperative efforts to accomplish the same. We are not that flexible. What might work for one district could result in mere resegregation for another. But we repeat that further affirmative planning and study is necessary. Community wide planning is essential. H. E.W. is available to offer helpful solu-tións. As Judge Blackmun acknowledged in Yarbrough, although H.E.W. guidelines are obviously not binding on the courts that “courts should endeavor to model their standards after the executive guidelines.” 380 F.2d at 964. The methods adopted by other school districts in Arkansas who have succeeded in changing segregated dual districts into integrated systems are close at hand for ready reference. “Freedom of choice” is not the only plan available. We reemphasize that the burden is on school officials to make work whatever plan is adopted. The burden cannot be passed on to the Negro student or his family. We now pass to the mechanics of the plan submitted: Lateral Transfer and Notice. Appellants complain of inadequate notice provisions. In Clark we specifically held that, “ * * * every precaution should be taken to fully inform these people of their rights under this new and unfamiliar system. Only by thorough notice can we be assured that the students and parents * * * are fully aware of their newly accorded rights. Only when the affected persons are aware of their rights can we be assured that they are making independent and informed choices.” 369 F.2d at 668. Notice of “freedom of choice” within the Board’s plan is basically as follows: (1) Undefined distribution of parent letter to only three classes of students ready to begin or enter new school levels; (2) undefined (oral?) notice to all other students not changing grade levels; (3) choice annually provided, but not mandatory; (4) only students failing to exercise choice into new school levels are assigned; all others remain in same school; and (5) public notice. The “freedom of choice” plan places the primary burden of desegregation upon the Negro family. As long as this type of plan has been adopted we stress the desirability of eliminating every possible deterrent to its success. In Clark we there approved permissive choice for students not changing school levels as an administrative deviation from the H.E.W. guidelines of mandatory choice. We nevertheless required the extent of the notice to be the same for all students. We are now faced with evidence of a plan that has not functioned with measured success. We can do no less here. We feel adequate notice should be in substantial compliance with the H.E.W. guidelines (see Kemp I at 18-19 of 352 F.2d) by directing to every parent either by first class mail or by delivery of the letter and choice form to the pupil with adequate safeguard to assure delivery to the parent. This additional requirement should not be a great burden on the School Board as appellees describe this only as a “minimal administrative detail.” Provisions for public notice as required by the trial court should likewise be followed. However, interrelated to notice is the action of the Board when the student fails to exercise the choice. In Kemp I we held that the failure of the plan to provide for some nonracial basis for assignment, if the “freedom of choice” was not exercised, was fatal to the plan. We said: “The continuation of the dual attendance areas wherein whites are required to attend all-white schools and Negroes are required to attend all-Negro schools should they fail to elect otherwise is unconstitutional and must be remedied.” 352 F.2d at 22. We cited the H.E.W. guidelines of assignment to the school “nearest their homes or on the basis of nonracial attendance zones.” We then said, “If a child is to be given a meaningful choice, this choice must be afforded annually.” Judge Gibson said: “Although a provision is made for students to escape from the segregated school, the dual attendance area, segregated school system is kept in operation. To illustrate, the present plan has resulted, according to the Board, in only four Negroes enrolling in the first grade, and seven in the second grade in previously all-white classes. The balance, which includes the great majority of the Negroes, attend all-Negro schools as before. This constitutes only tardy and inadequate recognition of constitutional rights and must be remedied by an elimination of the existing dual attendance areas for children who fail to exercise a choice.” (Emphasis ours.) 352 F.2d at 21. After three years of operation we fail to see any substantial progress in the elimination of the dual attendance zones as discussed in Kemp I. Merely saying they are to be eliminated obviously does not accomplish the task. In Clark we said as long as every student was afforded an annual right to transfer schools, it was not required that he annually exercise that right. We approved a plan which required only those students entering new school levels to be assigned to schools closest to their residence upon failure to exercise their choice. All other students remained in their previously chosen schools. In doing this, we gave deference to the administrative problems However, where the result of the plan adopted strongly suggests a segregated system is being maintained, this consideration must be rationally balanced. And the expert advice and planning that have entered into the H.E.W. guidelines should not be totally ignored. This Court said in Smith v. Board of Educ. of Morrilton School Dist. No. 32, relying upon the Fifth Circuit: “ * * * HEW guidelines * * * are entitled to serious judicial deference. Kemp v. Beasley, supra, pp. 18-19 of 352 F.2d. See, also, Singleton v. Jackson Municipal Separate School Dist., 348 F.2d 729, 731 (5 Cir. 1965); Price v. Denison Independent School Dist. Bd. of Educ., 348 F.2d 1010, 1012-1014 (5 Cir. 1965); Singleton v. Jackson Municipal Separate School Dist., 355 F.2d 865, 869 (5 Cir. 1966).” 365 F.2d 770 at 780. Where a plan is working with measurable success, perhaps the deviation from that policy would not merit change. We do make strong suggestion for the Board and the District Court to consider the complete adoption of the H.E.W. guidelines in this area. We discuss this only as suggestive circumstance to affirmatively improve the operative effects of the plan of desegregation involved. If the School Board can more effectively speed desegregation by other means, it is not only their prerogative, but their responsibility to do so. We turn now to other features of ap-pellees’ plan. Appellants challenge alleged deficiencies in other areas since this Court’s decree in 1965. Transportation. Appellees pledge a biracial bus system. Yet, out of twenty-one buses, each serving a group of three schools, only-two buses are “integrated” by 1967-68. It is obvious that for this plan to work, Negro students living in the same geographical area as white pupils should share the same buses where they attend the same or contiguous schools. The adequacy of. the transportation plan at any time can only be its actual result in terms of integrated use. We are confident that the trial court will properly appraise the system. If greater success is not achieved, the District Court may have to deal with the problem in specific terms. Small and Inadequate Schools. There is no evidence within the record to support appellants’ charge in this regard. Pwpil-Teacher Ratios and Overcrowding. Appellants claim there is a major discrepancy between the white and Negro schools as to pupil-teacher ratios. We feel there is insufficient evidence on this record to demonstrate that these conditions will be perpetuated. Further implementation of freedom of choice should relieve this condition. We are certain that the School Board and its administrators are as interested in the highest level of education for all children as is humanly possible. Of course, any apprehension or perpetuation of unequal ratios which smacks of discrimination can always be brought to the District Court’s attention for appropriate relief. It is true appellees’ plan does not set forth any objective standards to measure “overcrowding” such as would require transfer by reason of a rejected preference of any student exercising his choice of schools. However, the District Court has observed: “[T]he essential criteria is that the determination be uniformly and fairly made throughout the system in a manner to fairly implement desegregation, and in no event is there to be discrimination based on race, color or any other improper consideration.” We feel this is in substantial compliance to the guideline principles. Of course, once again, only the plan that works is the right one. Faculty. In Kemp I we placed confidence in the School Board, believing that the inadequate faculty integration would “be corrected by the Board during the transitional period.” 852 F.2d 22. In November and December, 1965, the Supreme Court handed down Bradley v. School Bd. of City of Richmond, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187 and Rogers v. Paul, 382 U.S. 198, 86 S.Ct. 358, 15 L.Ed.2d 265, respectively. The Supreme Court observed that racial allocation of faculty “renders inadequate an otherwise constitutional pupil desegregation plan * * 382 U.S. at 200, 86 S.Ct. at 360. At the commencement of the 1967-68 term, despite specific objections filed by appellants back in December 1965, the first token steps to desegregate the faculties of the El Dorado schools were undertaken. At that time six white teachers were assigned to three Negro schools, two at the Washington Junior High and two each at Fairview and Carver ele'mentary schools. This leaves-Washington High School, an all Negro enrollment and four all Negro'elementary schools with an all Negro faculty. At El Dorado High School, and at both of the predominantly white junior highs, as well as one elementary school, there are no Negroes on the faculty. For the first time one Negro staff member was assigned to each of six other predominantly white schools. In Clark, we observed that a Board should make “all additional positive commitments necessary to bring about some measure of racial balance in the staffs of the individual schools in the very near future.” And as we pointed out in Yar-brough, Kelley v. Altheimer suggests “examples of steps which can be taken to effect faculty and staff desegregation.” It recommends: (1) encouragement of voluntary transfers from majority to minority staff situations, and (2) vacancies, when possible, to be filled by qualified and competent teachers to effect racial balance. Only if these steps were to fail did we refer staff desegregation to Board assignment. Our suggestions in Kelley, repeated here, are not rigid ones. Local conditions may command different considerations. However, it is not enough to file a plan only incorporating the policy statements set out in Clark and Yarbrough. A plan should not only specify “a positive commitment to a reasonable program”; it should also state what that program is. This embodies (1) the steps to be carried out, and (2) the time schedule to be followed in doing so. Cf. Bowman v. County School Bd., 4 Cir., 382 F.2d 326, 328 n. 4. Appellees urge in their brief: “[Transition is complete when the authorities of the district have made clear their commitment to handling this phase of their operations on a non-racial basis, and have confirmed their announced ‘good intentions’ by affirmatively breaking the pre-exist-ing racial pattern of faculty assignments. * * * racial balance is no more mandated by the Constitution for public school faculties than it is for the student bodies. The mandate is ending state-imposed segregation based on racial classification.” This rationale adopts the earlier Fourth Circuit view in Bradley v. School Bd., 345 F.2d 310, 320 (1965), when it said: “The possible relation of a reassignment of teachers to protection of the constitutional rights of pupils need not be determined when it is speculative. When all direct discrimination in the assignment of pupils has been eliminated, assignment of teachers may be expected to follow the racial patterns established in the schools.” This view was promptly rejected and the case reversed by the Supreme Court. Bradley v. School Bd., 382 U.S. 103, 105, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965). Appellees’ argument that racial balance is not mandated demonstrates continued misconstruction of their constitutional obligation under Brown, as interpreted by this Court in Kemp, Clark, Kelley and Yarbrough. As stated in Brown II, “ * * * vitality of these constitutional principles cannot be allowed to yield because of disagreement with them.” 349 U.S. at 300, 75 S.Ct. at 756. Appellees repeat, as they did in Kemp I, that to require positive action of integration would require assignment by races, which would be “racial discrimination” in reverse. The Fourth Circuit has responded to such a rationalization with clear voice: “When school authorities, recognizing the historic fact that existing conditions are based on a design to segregate the races, act to undo these illegal conditions — especially conditions that have been judicially condemned— their effort is not to be frustrated on on the ground that race is not a permissible consideration. This is not the ‘consideration of race’ which the the Constitution discountenances. * * * There is no legally protected vested interest in segregation. If there were, then Brown v. Board of Education and the numerous decisions based on that case would be pointless. Courts will not say in one breath that public school systems may not practice segregation, and in the next that they may do nothing to eliminate it.” (Emphasis ours.) Wanner v. County School Bd., 357 F.2d 452, 454-455 (4 Cir. 1966). In view of appellees’ continued argument, we feel the plan filed in the District Court is deficient because it expresses no commitment to correct the present racial imbalance in the El Dor-rado school faculties. H.E.W. guidelines state that “race * * * may not be a factor in hiring or assignment * * * except to correct the effects of past discriminatory assignments.” 45 C.F.R. 181.13 (1967). This Court in dealing with faculty dismissals and placement in Smith v. Board of Educ. of Morrilton School Dist. No. 32, quoted with approval our early statement in Dove v. Parham, 282 F.2d 256, 258 (8 Cir. 1960) by saying: “The Board’s stated * * * policy must give way if the result of its use is a deprivation of constitutional rights. Cf. Cooper v. Aaron, 358 U.S. 1, 16, 78 S.Ct. 1401, 3 L.Ed.2d 5, 19 (1958). In Dove v. Parham, 282 F.2d 256, 258 (8 Cir. 1960), we said: “ ‘Standards of placement cannot be devised or given application to preserve an existing system of imposed segregation. Nor can educational principles and theories serve to justify such a result. These elements, like everything else, are subordinate to and may not prevent the vindication of constitutional rights.’ ” 365 F.2d at 777. The present plan as filed envisages both (1) filling vacancies and (2) assignment of staff. These are positive steps by which faculty desegregation can take place, and represent an adequate statement of intent. The “good faith” test must await their results. However, this amended plan was not filed until June 1967. There can be no doubt that the faculty desegregation contemplated is two years late under this Court’s mandate in Kemp I. Instead of just seeing the start of faculty desegregation, we had every reason to expect that the transition would be complete in 1967-68. Appellants have therefore asked for injunctive relief for the Spring semester of 1968. This Court advanced this case on its appellate docket to consider this request. Although we are not unsympathetic to appellants’ plea, we feel it would be too disruptive of the educational process to require affirmative action in the middle of the school year. We ask, however, that appellees submit to the District Court by August 1 of this year the number of Board assignments to be made in each school for the school term 1968-69. These assignments shall effectuate, satisfactorily to the District Court, the measure of racial balance necessary to be in. substantial compliance with our ruling here. We now briefly address ourselves to the meaning of “racial balance.” Argument is strenuously repeated that assignment by race completely disregards the standards of qualification of the teacher-applicant. In the face of our prior holdings, this contention only raises argument for argument’s sake. Surely all recognize that quality of education for any student depends on many factors, not the least of which is the competence of his teacher. We reaffirm the principle that faculty selection must remain for the broad and sensitive expertise of the School Board and its officials. However, refusal to transfer or assign white staff to minority schools or Negro staff to majority classrooms cannot be justified on the argument that educational standards would thereby be lowered. Any teacher qualified to teach white children ought to be competent to teach Negroes and vice-versa. We are concerned with standards of equal education for all students — -whether they be white or Negro. The argument for providing superior education for either race alone does not attract or persuade us. “Racial balance” can perhaps be measured more adequately by what it is not than by definition of what it is. It is not (1) a segregated Negro high school with an all Negro faculty, (2) nor is it an all Negro junior high school and four elementary schools with an all Negro faculty, (3) nor is it an all white faculty in predominantly all white schools, (4) nor is it the assignment of one Negro teacher to school staffs composed of a dozen to twenty white teachers, (5) nor 2.4% of the school system’s white faculty assigned to three of the seven minority schools. What then may be said to be that measure of racial balance necessary to meet constitutional standards? It is misleading to think that “balance” means exact symmetry or equilibrium of the races. Numerical quotas or percentages, although appealing for their simplicity, lack that equitable flexibility which is still needed for a selective distribution of qualified teachers for particular faculty roles. But it misses the constitutional mark to say that this principle of flexibility then justifies a segregated faculty pattern. Both extremes overlook the derivation of the rights involved. We are dealing with the equal protection clause as it affects the overall educational process. The question thus becomes, when is there such faculty distribution as to provide equal opportunities to all students and to all teachers — whether white or Negro? Students in each school should have the same quality of instruction as in any other school. Every predominantly Negro school should have wherever possible, substantially as integrated a faculty as the predominantly white school. Involved is the basis principle that instruction for both white and Negro should include the opportunity for equal educational experiences. Obviously, the democratic ideal of equality of opportunity cannot be nurtured in a segregated environment. The court’s role in striking a racial balance of faculty is not the perplexing judicial task normally faced in the ordinary resolution of conflicting claims. Here there no longer exist conflicting interests between the parties. Their goal must be the same: a wholly desegregated school system. When the predominant race of the students attending a particular school continues to serve as the predicate for the Board assignment of a teacher, then equal opportunity is denied. If a predominantly Negro faculty continues to create a pervasive influence on the students’ choice of school, then equal opportunity is denied. It is the simple recognition that all students and teachers must be treated alike. This guaranty has always been aimed at undue favor or class privilege. Thus, the real determinant of racial balance becomes only the measurable application of equal protection of the law. Appraisal of conformity to this principle is not new and should not be difficult within the judicial process. In conclusion we hold: (1) that serious consideration should be given by the School Board and the District Court to a more positive program to eliminate segregation in all of the schools within the El Dorado school system; (2) that the Court’s decree be modified to provide the same adequate notice for all grades as to the right to exercise choice to change schools; (3) that in the event the freedom of choice plan is continued, serious consideration should be given by the School Board and the District Court toward removal of all obstacles for its success. Strongly recommended is adoption of the H.E.W. guidelines relating to annual choice for all students or some other practical means to speed the desegregation process; (4) that the Court’s decree be modified to require the School Board to make a positive commitment to desegregate the faculty in each school in conformity with our opinion herein; (see H.E.W. guidelines p. 20, supra) and (5) a supplemental report be filed with the District Court setting forth details for faculty desegregation to achieve substantial racial balance within the staff of each school commencing with the school year 1968-69. This report is to be filed in accordance with a date to be set by the District Court but in no event later than August 1, 1968. Complete faculty desegregation to be accomplished by the school term of 1969-70, and a similar report in this regard shall be filed in accordance with the District Court’s order. Our opinion is in no way intended to preclude either party from further evi-dentiary hearings if deemed necessary for proper implementation of the plan. Nor do we order it. In fact, if the parties will accept this Court’s opinion in the spirit in which it is intended, no further evidentiary hearings should be necessary, unless the Court desires further information for implementing a more effective program. Pointing toward a more cooperative atmosphere and in balancing all circumstances, we deny appellants’ request for attorney fees at this time. This case is remanded to the continuing jurisdiction of the District Court in conformity with this opinion. . We said in Kemp I: “It is the duty of the Board to propose an acceptable plan in conformity with the view expressed herein and to fill in the details of such plan without further order from the Court. The hour is late and an adequate plan should be put into operation, not later than the beginning of the second half of the 1965-66 school year." (Emphasis ours.) 352 F.2d at 22. Although a plan was filed in December 1965, the first time any plan was actually approved by the District Court was in August 1967. And despite this Court’s strong reference to the H.E.W. guidelines, the original plan filed was deficient in many particulars, the most obvious being the complete absence of steps to integrate the faculty. . In January 1966, the District Court ordered faculty integration to commence in 1966-67. Yet, there were no steps taken whatsoever to implement this until a token gesture was made in 1967-68. This plan, of course, is before us now for review. . Much of the delay in all of these cases can be avoided by the parties actively working together toward agreement upon a plan ultimately to be proposed. Guidelines are now sufficiently explicit in this Circuit to enable School Boards to project acceptable, definite plans for implementation without continued hearings and disputes before district courts. See also H.E.W. guidelines, 45 C.F.R. 181 et seq. (1967). . “The child is not trained in the way he should go; for he is trained under the ban of inequality. How can he grow up to the stature of equal citizenship? He is pinched and dwarfed while the stigma of color is stamped upon him. * * * "Nor is separation without evil to the whites. The prejudice of color is nursed when it should be stifled. * * * the school itself must practice the lesson [of equality]. Children learn by example more than by precept. How precious the example which teaches that all are equal in rights. But this can be only where all commingle in the common school as in common citizenship. * * * There should be no separate school. It is not enough that all should be taught alike; they must all be taught together. * * * nor can they receive equal quantities of knowledge in the same way, except at the common school.” Speech Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion? A. not ascertained B. caucasian - specific indication in opinion C. black - specific indication in opinion D. native american - specific indication in opinion E. native american - assumed from name F. asian - specific indication in opinion G. asian - assumed from name H. hispanic - specific indication in opinion I. hispanic - assumed from name J. other Answer:
songer_applfrom	L	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). Ernest BADARACCO, Sr. and Rose Badaracco, Ernest Badaracco, Jr. and Barbara Badaracco, v. COMMISSIONER OF INTERNAL REVENUE, Appellant in No. 81-3033. DELEET MERCHANDISING CORP. v. UNITED STATES of America, Appellant in No. 82-5171. Nos. 81-3033, 82-5171. United States Court of Appeals, Third Circuit. Argued Sept. 16, 1982. Decided Nov. 29, 1982. Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Gary R. Allen, John A. Dudeck, Jr. (argued), Tax Division, Dept, of Justice, Washington, D.C., for appellant in No. 81-3033. Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Gary R. Allen, John A. Dudeck, Jr. (argued), Tax Division, Dept, of Justice, Washington, D.C., for appellant in No. 82-5171. Starr, Weinberg & Fradkin, Roseland, N.J., for appellees in No. 81-3033; John J. O’Toole (argued), Roseland, N.J., of counsel. Fredericks & Messinger, Hackensack, N.J., and Goldschmidt, Fredericks & Oshatz, New York City, for appellee in No. 82-5171; Barry I. Fredericks (argued), Richard H. Waxman, S. Timothy Ball, New York City, of counsel. Before ADAMS, HUNTER and BECKER, Circuit Judges. OPINION OF THE COURT ADAMS, Circuit Judge. These two appeals concern the effect of filing nonfraudulent, amended income tax returns, subsequent to the filing of fraudulent original returns, on the statute of limitations provisions of 26 U.S.C. § 6501. I. The facts in each proceeding are undisputed. In the first case, Ernest Badaracco, Sr. and Ernest Badaracco, Jr. were equal partners in an electrical contracting business, Badaracco Brothers and Company. They filed individual and partnership returns for the years 1965 to 1969, which fraudulently understated their taxable income. After federal grand juries subpoenaed the partnership’s books and records, the taxpayers, on August 17, 1971, filed amended returns for each of the years in question. Three months later, on November 17, 1971, the Badaraccos were indicted on fifteen counts under 26 U.S.C. § 7206(1) for filing false and fraudulent income tax returns for the years 1965 to 1969. They each entered a plea of guilty to the charge of filing a false and fraudulent partnership tax return for 1967, and the district court entered a judgment of conviction on June 6, 1973. United States v. Badaracco, (N.J. Crim. No. 766-71). The remaining counts of the indictment were dismissed. Four and one-half years after the conviction, the Commissioner of Internal Revenue issued deficiency notices for each of the five years in question. The Badaraccos asserted that the Commissioner’s action was time-barred by 26 U.S.C. § 6501(a), because more than three years had passed since the filing of their non-fraudulent, amended returns. The Tax Court agreed, and the Commissioner appealed to this Court. In the second case, Deleet Merchandising Corporation (“Deleet”) filed timely corporate income tax returns for the years 1967 and 1968. Amended returns for these years were then filed on August 9, 1973. Following lengthy criminal and civil investigations, the Internal Revenue Service (“I.R. S.”) issued a notice of deficiency to Deleet on December 14, 1979 for the years 1967 and 1968. The taxpayer paid the deficiencies and penalties assessed on or about December 27, 1979, and then filed a complaint in district court to recover those monies. On December 14, 1981, Deleet moved for summary judgment on the ground that even if the original returns had been fraudulent, the deficiencies and penalties could not be assessed more than three years after the filing of a non-fraudulent amended return. The district court, 535 F.Supp. 402, granted the motion and the Commissioner appealed. II. To support their claims that the three year statute of limitations has run, the taxpayers rely principally on Dowell v. Commissioner, 614 F.2d 1263 (10th Cir.1980), and the cases which have followed it. Britton v. U.S., 532 F.Supp. 275 (D.Vt.1981), aff’d without opinion (2d Cir. April 15, 1982); Klemp v. Commissioner, 77 T.C. 201 (1981), on appeal (9th Cir. No. 81-7744); see also, Espinoza v. Commissioner, 78 T.C. 412 (1982); Kramer v. Commissioner, 44 T.C.M. (CCH) 42 (1982); Elliott Liroff v. Commissioner, 44 T.C.M. (CCH) 42 (1982); Deyel v. Commissioner, 44 T.C.M. (CCH) 45 (1982); Richard B. Liroff v. Commissioner, 44 T.C.M. (CCH) 47 (1982); Nesmith v. Commissioner, 42 T.C.M. (CCH) 1269 (1981); appeal docketed, No. 82-4162 (5th Cir. April 29, 1982) (all following Klemp). The Dowell court held that a fraudulent return was in effect no return at all, because the taxpayer had failed to evince “an honest and genuine effort to satisfy the law” within the meaning of Zellerbach Paper Co. v. Helvering, 293 U.S. 172, 55 S.Ct. 127, 79 L.Ed. 264 (1934), and John D. Alkire Inv. Co. v. Nicholas, 114 F.2d 607 (10th Cir.1940). It then reasoned that the filing of a non-fraudulent, amended return subsequent to the filing of a false and fraudulent original return would have exactly the same effect as the filing of a late original return following the fraudulent failure to file any return at all. Because in Bennett v. Commissioner, 30 T.C. 114 (1958), acq. 1958-2, C.B. 3, the Táx Court had held that the late filing of a non-fraudulent return began the running of the general three year statute of limitations, the court in Dowell concluded that the filing of a non-fraudulent amended return after the filing of an original fraudulent return also started the running of the limitations period. We disagree. Section 6501(c)(1) is clear on its face. It permits the Commissioner “[i]n the case of a false or fraudulent return with the intent to evade tax” to assess the tax or proceed in court without an assessment “at any time." 26 U.S.C. § 6501(c)(1) (emphasis added). There is nothing in the statute, its legislative history, or the regulations to indicate that the subsequent filing of an amended return has any effect on this provision. Original returns which are filed late, in contrast, are dealt with explicitly in section 6501(a): Except as otherwise provided in this section, the amount of any tax imposed by this title shall be assessed within 3 years after the return was filed (whether or not such return was filed on or after the date prescribed). (Emphasis added.) There is no comparable language relating to fraudulent original returns, and we have no reason to believe that Congress acted inadvertently when it treated the two situations differently. III. Section 6501, as the district court noted in Britton v. United States, “balances the policy of repose to the taxpayer with the purpose of providing the Commissioner of Internal Revenue adequate time to assess taxes and deficiencies.” 532 F.Supp. at 278. We find no evidence that Congress struck that balance in such a way as to permit the Commissioner only three years to proceed against persons who filed fraudulent original returns and later submitted non-fraudulent amended returns. According to the taxpayers, if a citizen has alerted the government to problems with an original tax return by filing an amended return, there is no need to permit the Commissioner unlimited time to assess taxes and deficiencies; furthermore, treating repentant and unrepentant tax evaders alike under section 6501(c)(1) removes all incentive for taxpayers to amend their fraudulent returns. They also assert that to allow the I.R.S. unlimited time to dangle the threat of prosecution, like the sword of Damocles, over the heads of persons who have filed amended returns is to invite abuse. The relevant question, however, is not whether it would be wise for Congress to create incentives for filing amended returns after fraudulent returns were filed or to restrict the ability of the Commissioner to assess taxes at any time, but rather whether Congress, in fact, did so. We are limited to interpreting the statute before us. It is not our role to set tax policy. Not only is the language of this section of the statute relating to fraudulent returns clear, but nothing in the structure of the Internal Revenue Code leads us to believe that Congress intended parties who filed fraudulent returns to be permitted to take advantage of the general three year statute of limitations. The willful filing of fraudulent returns with intent to evade tax is consistently treated as the most serious form of tax evasion. A person who commits such fraud subjects himself to major civil and criminal penalties. He cannot escape those penalties or eradicate the fraud merely by filing a non-fraudulent amended return. The Commissioner has six years to assess deficiencies against taxpayers who omit more than 25 percent of their gross income from their original returns. Amended returns have no effect on the six year period. Houston v. Commissioner, 38 T.C. 486 (1962); Goldring v. Commissioner, 20 T.C. 79 (1953). If, therefore, section 6501 were read as the taxpayers in these appeals urge us to do, we would create a situation in which persons who committed willful, deliberate fraud would be in a better position than those who, without an intent to commit fraud, had omitted more than 25 percent of their gross income from their original returns. There is no basis for concluding that in the single area of the statute of limitations Congress intended so to favor persons or corporations that have perpetrated tax fraud. Moreover, the I.R.S. has advanced strong reasons for believing that a three year limitations period is not adequate to permit the Commissioner to meet his dual responsibility of proceeding both civilly and criminally. Cf. United States v. LaSalle National Bank, 437 U.S. 298, 308-309, 98 S.Ct. 2357, 2363-2364, 57 L.Ed.2d 221 (1978). It has long been the policy of the I.R.S. to defer civil assessment and collection until the completion of criminal proceedings. See, e.g., Policy Statement P-4-84, 1 Administration, CCH Internal Revenue Manual, ¶ 1218; IV Audit, CCH Internal Revenue Manual, ¶¶ 4565.32(2) and 4565.42. This policy, which the Fifth Circuit characterized as both “necessary and wise,” Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir.1962), permits the I.R.S. to avoid the serious constitutional problems that could be created by simultaneous proceedings, problems which can limit, for example, the availability of the ordinary tools for investigating civil tax liability once the commitment is made to refer a case for criminal prosecution. U.S. v. LaSalle National Bank, supra. It is, furthermore, simply not the case that once an amended return is filed, the Commissioner can easily discover the fraud in the original return. The I.R.S. faces a heavy burden of proof in fraud cases, and thorough investigation of such frauds is a time-consuming process. Klemp v. Commissioner, 77 T.C. 201, 212-213 (1981) (Parker, J. dissenting). When passing the Act, Congress certainly knew of I.R.S. procedures and of the problems involved in fer-. reting out fraud. There is nothing to indicate that Congress intended to imply a term, absent in the statute itself, that would force the Commissioner to decide to proceed with only civil or criminal remedies or to jeopardize both by going forward civilly and criminally at the same time. IV. As Learned Hand reminded us, “[tjhere is no surer guide in the interpretation of a statute than its purpose when that is sufficiently disclosed.” F.D.I.C. v. Tremaire, 133 F.2d 827, 830 (2d Cir.1943). But the courts in their search for the true purpose of Congress should not lightly go beyond the plain language of the statutes they are supposed to be interpreting and arrogate to themselves the power to divine in oracular fashion which among constitutionally permissible alternatives is the appropriate one. The decision of the Tax Court in Badarac-co and the judgment of the district court in Deleet will be reversed, and these cases will be remanded for further proceedings consistent with this opinion. . These cases were not consolidated. They were, however, argued together and contain no relevant differences of fact. We will, therefore, discuss them in a single opinion. . 26 U.S.C. § 6501 provides in relevant part: (a) Except as otherwise provided in this section, the amount of any tax imposed by this title shall be assessed within 3 years after the return was filed (whether or not such return was filed on or after the date prescribed) or, if the tax is payable by stamp, at any time after such tax became due and before the expiration of 3 years after the date on which any part of such tax was paid, and no pror ceeding in court without assessment for the collection of such tax shall be begun after the expiration of such period. * * * * * * (c) Exceptions. (1) False return. In the case of a false return or fraudulent return with the intent to evade tax, the tax may be assessed, or a proceeding in court for collection of such tax may be begun without assessment, at any time. .Deleet Merchandising Corporation denies any fraud on its part in the preparation of its income tax returns. The district court, however, assumed that the original returns were fraudulent for the purposes of the summary judgment motion, and we must make the same assumption in deciding the appeal from that decision. . Zellerbach Paper presented essentially the opposite of the problem posed by this case. A taxpayer filed a non-fraudulent return. Subsequent to the filing of that return, Congress passed the Revenue Act of 1921 which applied retroactively and had a de minimis effect on the tax liability of the company. After the limitations period had run, the government attempted to assess large deficiencies, on grounds unrelated to the 1921 Act, on the theory that the failure to file an amended return rendered the original return a nullity and tolled the statute of limitations. The Supreme Court rejected the argument, noting that where a return purported to be a return and evinced an honest and genuine endeavor to satisfy the law it would not be treated as a nullity because of inaccuracies or omissions. “Supplement and correction in such circumstances will not take from a taxpayer, free from personal fault, the protection of a term of limitation already running for his benefit.” Zellerbach Paper Co. v. Helvering, 293 U.S. 172, 180, 55 S.Ct. 127, 130, 79 L.Ed. 264 (1934) (emphasis added). Nothing in the opinion suggests that a culpable taxpayer, who files a fraudulent return with the intent to evade tax, renders the original fraudulent return a nullity for the purpose of the statute of limitations, by filing an amended return. . We note that the treatment of amended returns is a matter of internal administration, and solely within the discretion of the Commissioner. Miskovsky v. U.S., 414 F.2d 954, 955 (3d Cir.1969). Neither the Internal Revenue Code nor the Treasury Regulations make any provision for the acceptance of an amended return in place of the original return previously filed. Koch v. Alexander, 561 F.2d 1115, 1117 (4th Cir.1977); Kearney v. A’Hearn, 210 F.Supp. 10, 16-17 (S.D.N.Y.1962), aff’d per curiam, 309 F.2d 487 (2d Cir.1962). See also Kaltreider Constr., Inc. v. United States, 303 F.2d 366, 368 (3d Cir.1962), cert. denied, 371 U.S. 877, 83 S.Ct. 148, 9 L.Ed.2d 114 (1962) (three year period of limitation for filing refund claim is not altered by the filing of an amended return). . The court in Dowell declared that section 6501(c)(1) and section 6501(c)(3) are in pari materia and should, therefore, be construed consistently with one another. We agree with that statement but reach a different conclusion, because we believe that Congress provided a clear indication in section 6501(a) that it did intend “statute of limitations treatment to differ between taxpayers who filed fraudulent returns, and those who fraudulently failed to file.” Dowell v. Commissioner, 614 F.2d at 1266. . The appellees have pointed to no cases in which the Commissioner has used his power under section 6501(c)(1) to prosecute fraud “at any time” in an abusive way. As the government notes in its brief, there are no real incentives for it to delay bringing civil assessment actions and very powerful incentives for it to act as quickly as possible. Delays serve only to make it more difficult for the I.R.S. to carry its burden of proof in fraud cases. The Commissioner, recognizing the problems inherent in delay, specifically requires agents to keep investigations involving possible fraud as “current” as any other type of case, even though the agents theoretically are faced with no limits on when such actions could be brought. II Audit, CCH Internal Revenue Manual, § 4565.-51(3). . 26 U.S.C. § 6501(e)(1)(A) states: Substantial omission of items. Except as otherwise provided in subsection (c)— (1) Income taxes. In the case of any tax imposed by subtitle A— (A) General rule. If the taxpayer omits from gross income an amount properly in-cludible therein which is in excess of 25 percent of the amount of gross income stated in the return, the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time within 6 years after the return was filed. 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_7_3	H	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained". Artemio UGALDE, Plaintiff-Appellant, v. W.A. McKENZIE ASPHALT CO., et al., Defendants, W.A. McKenzie Asphalt Co., Defendant-Appellee. No. 92-1891 Summary Calendar. United States Court of Appeals, Fifth Circuit. May 12, 1993. Noemi A. Collie, Dallas, TX, for plaintiff-appellant. Jeffrey Scott Levinger, Henry Floyd Sherrod, III, Jane Makela, Darla Rae DeS-teiguer, Carrington, Coleman, Sloman & Blumenthal, Dallas, TX, for defendant-ap-pellee. Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges. E. GRADY JOLLY, Circuit Judge: Artemio Ugalde filed this suit against his employer, W.A. McKenzie Asphalt Co., after being referred to as a “wetback” by his supervisor. Ugalde brought claims for constructive discharge pursuant to Title VII, 42 U.S.C. § 2000e, et seq., and for intentional infliction of emotional distress. McKenzie Asphalt moved for summary judgment and the district court granted the motion. Ugalde appeals. We hold that Ugalde has failed to present a genuine issue of material fact relating to either of his claims, and we therefore affirm the decision of the district court. I Ugalde was employed by McKenzie Asphalt as an operator of an asphalt paving machine. Ugalde is an Hispanic male originally from Mexico. On September 26, 1990, Ugalde was working as an asphalt paving machine operator on a road crew supervised by Bobbie Pope. Pope is alleged to have called Ugalde a “wetback” and asked him to stop operating the paving machine and help other employees shovel. When Ugalde could not find a shovel to use, Pope allegedly told two other employees to let Ugalde use their shovels because they were Americans and did not have to do that type of labor. Ugalde walked off the work site and went to the main office to speak with John McKenzie, who was in charge of employee complaints. Ugalde told McKenzie’s secretary that he was having problems with Pope and threatened to quit; Ugalde did not, however, report that Pope had used racial slurs against him on that day. Furthermore, Ugalde had never complained about Pope on any other previous occasion. Ugalde did not wait around to speak to McKenzie but instead left the office and did not return to the work' site. Two days later, Ugalde returned to the main office to collect his paycheck. On this occasion, Ugalde spoke with McKenzie but still did not tell him about Pope’s alleged racial comments. At this time, McKenzie offered to let Ugalde return to work at a lower rate of pay, but Ugalde declined this offer; according to Ugalde, McKenzie’s offer was accompanied by the statement that he would pay Ugalde what he was paying the other Mexicans. About a week later, Jeff McKenzie went to Ugalde’s home and offered him a job at the same rate of pay that he had formerly been receiving and one in which Pope would not be his supervisor; Ugalde declined this offer. Ugalde instead filed a complaint with the Equal Employment Opportunity Commission (EEOC) claiming racial discrimination, a claim which was later denied by the EEOC. Ugalde then filed suit on August 21, 1991, against McKenzie Asphalt for constructive discharge pursuant to Title VII, 42 U.S.C. § 2000e, et seq., and for intentional infliction of emotional distress. Ugalde alleged that McKenzie Asphalt constructively discharged him when it failed to take immediate remedial steps after Ugalde complained of racial slurs made to him. Ugalde also alleged that McKenzie Asphalt intentionally inflicted emotional distress upon him because a supervisor consistently referred to him as a “Mexican” and a “wetback.” McKenzie Asphalt filed a motion for summary judgment, and on September 11, 1992, the district court granted its motion. Ugalde appeals. II Ugalde argues that summary judgment was inappropriate because there was sufficient evidence to create a genuine issue of material fact as to whether he was constructively discharged in violation of Title VII and whether McKenzie Asphalt’s conduct was extreme or outrageous as required under the common law tort of intentional infliction of emotional distress. In addition, Ugalde argues that it was error for the district court to deny his motion for leave to amend his complaint to provide for compensatory and punitive damages and a jury trial pursuant to the Civil Rights Act of 1991. On the other hand, McKenzie Asphalt argues that Ugalde did not act reasonably when he walked off the job without giving it a chance to remedy the situation. McKenzie Asphalt also argues that its conduct was not sufficiently extreme or outrageous to support a claim of intentional infliction of emotional distress. Finally, McKenzie Asphalt argues that the district court correctly denied Ugalde’s motion to amend his complaint because the provisions of the Civil Rights Act of 1991 that Ugalde sought to apply do not apply retroactively. III A Summary judgment is appropriate if the moving party establishes that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A genuine factual issue is one that “properly can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party.” Id., at 250, 106 S.Ct. at 2511. We review the district court’s granting of summary judgment de novo and affirm if the nonmoving party failed to present sufficient evidence to create a genuine issue. Palmer v. Fayard, 930 F.2d 437, 438 (5th Cir.1991). B We first review Ugalde’s constructive discharge claim pursuant to Title VII. Ugalde argues that the continuous, pervasive, and deliberate use of racial slurs and other abusive language by McKenzie Asphalt’s employee, Pope, was so deficient and unpleasant that a reasonable person in his shoes would have felt compelled to resign. Furthermore, Ugalde argues that any reasonable person would have felt compelled to resign after walking off the job site to complain of harassment and then being denied the opportunity to make the complaint to the person in charge. Ugalde argues that racial slurs alone can be the basis for a constructive discharge claim where a supervisor continuously and deliberately uses racial slurs and other abusive language. In short, Ugalde argues that he has set forth facts that would have made any reasonable person feel compelled to resign. Ugalde further argues that the district court erred by considering his treatment by McKenzie Asphalt only on the day he walked off the job, and the district court should have instead considered McKenzie Asphalt’s treatment of him as a whole. Ugalde further argues that it was error for the district court to find that Pope, his supervisor, was not an agent of McKenzie Asphalt and McKenzie Asphalt could not be held liable for Pope’s actions. C McKenzie Asphalt argues that Ugalde’s allegations do not rise to the level of severe and pervasive harassment necessary to support a claim for constructive discharge. McKenzie Asphalt argues that these alleged ethnic slurs are insufficient to establish a claim of constructive discharge, particularly in a job context such as Ugalde’s where rough language may be expected and Ugalde was not singled out for abuse. It also points out that although Pope’s alleged comments supposedly were directed to other Hispanic employees in addition to Ugalde, none of these workers quit or threatened to do so. Even if the alleged ethnic slurs were severe and pervasive enough to support a constructive discharge, Ugalde’s claim would still fail, McKenzie argues, because he did not give it a chance to address the alleged harassment. A reasonable employee in Ugalde’s shoes would not have felt compelled to resign without giving his employee a chance to institute measures to stop the alleged harassment. It further notes that it offered to let Ugalde return to work at his previous rate of pay in a position that would not require him to work with Pope. Ugalde cannot rely on an alleged agency relationship between Pope and it, McKenzie Asphalt asserts, to support a claim that Pope constructively discharged him. Regarding Ugalde’s alternative theory that he was constructively discharged when he returned to pick up his paycheck and was offered another position at a lower rate of pay, McKenzie Asphalt argues that even on this date Ugalde did not report Pope’s alleged misconduct. Furthermore, Ugalde concedes he quit two days earlier and therefore on the date he picked up his paycheck Ugalde had no job or position from which he could be constructively discharged. D In order to establish that he was constructively discharged, Ugalde must prove that his working conditions were so difficult or unpleasant that a reasonable person in his shoes would have felt compelled to resign. Cortes v. Maxus Exploration Co., 977 F.2d 195, 200 (5th Cir.1992) (quoting Landgraf v. USI Film Prods., 968 F.2d 427, 429 (5th Cir.1992)). The general rule is that if the employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into involuntary resignation, then the employer has committed a constructive discharge and is as liable as if it had formally discharged the aggrieved employee. Jurgens v. EEOC, 903 F.2d 386, 390 (5th Cir.1990). To find that a constructive discharge has occurred, the trier of fact must be satisfied that the working conditions to which the employee was subjected were so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt, compelled to resign. Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 (5th Cir.1980). The burden is on the employee to prove constructive discharge. Boze v. Branstetter, 912 F.2d 801, 804-05 (5th Cir.1990). After reviewing the record, we do not find evidence to suggest that a reasonable person in Ugalde’s position would have felt compelled to resign. Aside from Ugalde’s conclusory accusations, Ugalde’s only evidence of discriminatory conduct is that one supervisor employed by McKenzie Asphalt referred to him and other Hispanic employees as “Mexicans” and “wetbacks.” Ugalde attempted to complain about these comments on only one occasion. Even at that time, Ugalde did not mention that the supervisor had used ethnic slurs. When Ugalde was not immediately given a chance to meet with the head of the company, he walked off the job; it was at this point Ugalde’s constructive discharge claim arose. Under the circumstances presented in this case, “a reasonable employee instead of resigning would first have pursued either or both of two courses — completed the internal grievance procedure, or filed a complaint with the EEOC.” Boze, 912 F.2d at 805. Assuming all facts in a light most favorable to Ugalde, we conclude that his working conditions were not so difficult or unpleasant that a reasonable employee in his shoes would have felt compelled to resign. For this reason, the district court did not err in granting summary judgment to McKenzie Asphalt as a matter of law on Ugalde’s Title VII claim. IV We now turn to Ugalde’s claim of intentional infliction of emotional distress. The district court clearly did not err in granting summary judgment on this claim to McKenzie Asphalt. To prevail on a claim of intentional infliction of emotional distress, Texas law requires a finding of four elements: (1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s actions caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe. Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir.1989). Conduct is considered to be “outrageous” if it surpasses “all bounds of decency” such that it is “utterly intolerable in a civilized community.” Id. (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. d). Liability does not extend to mere insults, indignities, threats, annoyances, or petty oppressions. See Wilson v. Monarch Paper Co., 939 F.2d 1138, 1143 (5th Cir.1991). Even conduct which may be illegal in an employment context may not be the sort of conduct constituting extreme and outrageous conduct. Id. The only conduct alleged to have •been outrageous and extreme is that a supervisor referred to Ugalde over a period of time as a “Mexican” and as a “wetback.” Although we condemn this conduct, we simply cannot say that it rises to the level of extreme and outrageous conduct necessary to support a claim for intentional infliction of emotional distress. Accordingly, the district court did not err in granting summary judgment as a matter of law on this issue. V We find that the district court was correct in its determination that Ugalde has failed to present a genuine issue of material fact regarding either of his claims. The district court therefore did not err in granting McKenzie Asphalt summary judgment and dismissing Ugalde’s claims of constructive discharge and intentional infliction of emotional distress. AFFIRMED. . Because we affirm the district court’s granting of summary judgment to McKenzie Asphalt, we need not reach Ugalde’s third issue, i.e., whether the district court should have allowed him to . amend his pleadings to provide for a jury trial and compensatory and punitive damages pursuant to the Revised Civil Rights Act of 1991. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion? A. not ascertained B. caucasian - specific indication in opinion C. black - specific indication in opinion D. native american - specific indication in opinion E. native american - assumed from name F. asian - specific indication in opinion G. asian - assumed from name H. hispanic - specific indication in opinion I. hispanic - assumed from name J. other Answer:
songer_appel1_1_2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". MELVIN BEENE PRODUCE COMPANY, Petitioner, v. The AGRICULTURAL MARKETING SERVICE, Respondent. No. 82-3826. United States Court of Appeals, Sixth Circuit. Argued Jan. 11, 1984. Decided Feb. 28, 1984. Thomas E. Ray, argued, Chattanooga, Tenn., for petitioner. U.S. Dept. of Agr. Marketing, Virginia Strasser, James Michael Kelly, argued, Washington, D.C., for respondent. Before KENNEDY, MARTIN and CONTIE, Circuit Judges. CORNELIA G. KENNEDY, Circuit Judge. Melvin Beene Produce Company (Beene) appeals a revocation of its license under the Perishable Agricultural Commodities Act (PACA), 7 U.S.C. § 499a et seq. The Secretary of Agriculture’s revocation of Beene’s license resulted from a complaint, filed on August 31, 1981, alleging that Beene had violated 7 U.S.C. § 499b(4) by failing to make full and prompt payment to fourteen sellers for some 227 lots of perishable agricultural commodities. The violations had occurred between May 1979 and August 1980. The complaint further alleged that Beene’s violations were willful, flagrant, and repeated. The agency sought revocation of Beene’s license pursuant to 7 U.S.C. § 499h(a). The case was heard by an Administrative Law Judge who found that Beene had willfully, flagrantly, and repeatedly violated 7 U.S.C. § 499b(4). Accordingly, she ordered a ninety-day suspension of Beene’s PACA license. The agency appealed this decision to a Judicial Officer, who also found that Beene had committed willful, flagrant, and repeated violations of PACA and ordered that its license be revoked. We affirm the Judicial Officer’s decision. Beene makes three arguments on appeal: (1) The Secretary of Agriculture lacked subject matter jurisdiction to revoke Beene’s license because the complaint was untimely. (2) Revocation of Beene’s license in lieu of a ninety-day suspension was inappropriate under the circumstances and constituted an impermissible failure on the Judicial Officer’s part to use discretion in dispensing sanctions. (8) The revocation of its license by an Administrative Law Judge and a Judicial Officer who are not Article III judges is unconstitutional. All these claims are without merit. I. It is uncontested that Beene violated 7 U.S.C. § 499b(4). PACA provides for two different types of suits which may be filed for such a violation. Section 499e provides for a reparations action for damages incurred by any person injured by virtue of a § 499b violation, while § 499h provides for disciplinary actions brought by the Secretary of Agriculture for such violations. This action was brought under the latter section. Section 499f sets out a procedure for complaints of § 499b violations. Section 499f(a) provides: Any person complaining of any violation of any provision of section 499b of this title by any commission merchant, dealer, or broker may, at any time within nine months after the cause of action accrues, apply to the Secretary by petition, which shall briefly state the facts, whereupon, if, in the opinion of the Secretary, the facts therein contained warrant such action, a copy of the complaint thus made shall be forwarded by the Secretary to the .commission merchant, dealer, or broker, who shall be called upon to satisfy the complaint, or to answer it in writing, within a reasonable time to be . prescribed by the Secretary. (Emphasis added.) The complaint in this case was filed more than nine months after the time period during which the violations occurred. The question here is whether this time limit applies to disciplinary actions by the Secretary under § 499h, or only to reparations proceedings under § 499e. We find that the nine-month limit applies only to reparations actions under § 499e, and that the Secretary did not lack subject matter jurisdiction here. First, the language of § 499f(a) states that any person complaining of a § 499b violation may apply to the Secretary within nine months after the cause of action accrues. Semantically, the nine-month limit does not apply to actions by the Secretary, only to complaints directed to him. This is borne out by the fact that all of the cases cited by Beene • holding the time limit to be a jurisdictional prerequisite to action by the Secretary of Agriculture under the' statute involve § 499e reparations actions, not disciplinary actions by the Secretary. We believe that subsection 499f(b), which does not contain a nine-month time limit, supplies the procedure for disciplinary actions under § 499h. Subsection 499f(b) states: Any officer or agency of any State or Territory having jurisdiction over commission merchants, dealers, or brokers in such State or Territory and any employee of the United States Department of Agriculture or any interested person may file, in accordance with the rules and regulations of the Secretary, a complaint of any violation of any provision of this chapter by any commission merchant, dealer, or broker, and may request an investigation of such complaint by the Secretary. This conclusion is consistent with other language in the statute. Section 499m(b), provides that the Secretary, in order to insure compliance with the prompt payment provision of § 499b(4), “shall from time to time inspect the accounts, records, and memoranda of any commission merchant, dealer, or broker determined in a formal disciplinary proceeding under § 499f(b) of this title to have violated such provision.” (Emphasis added.) The statute thus indicates that the procedure for disciplinary actions is set out in § 499f(b), and not § 499f(a). A recent decision of the District of Columbia Circuit, Finer Foods Sales Co. v. Block, 708 F.2d 774 (D.C.Cir.1988), supports our view. While Finer Foods does not address the precise question of whether the time limit applies to § 499h disciplinary actions, it does hold that another clause of § 499f(a) applies only to reparations proceedings and not to disciplinary actions. The Court examined subsections (a), (b) and (c) of § 499f and concluded: These subsections do not expressly state which of them applies to reparations proceedings, which to disciplinary proceedings, and which to both. Analysis of their language and structure, however, indicates that the requirement in [§ 499f(a)] for the filing and serving upon the licensee of an informal complaint of a third person ... applies only in reparations proceedings and not in disciplinary proceedings. Id. at 780. Beene argues that if the nine-month time limit were read not to apply to disciplinary actions by the Secretary, then there would be no statute of limitations on the Secretary’s disciplinary power. We see no serious problems with this situation. The doctrine of laches does apply to the Secretary. Moreover, this is not the only instance in which Congress has chosen not to put a statutory time limit on the Secretary of Agriculture’s disciplinary power. See, e.g., Packers and Stockyards Act of 1921, 7 U.S.C. § 181 et seg. The statute itself and the case law point to our conclusion that the nine-month time limit does not apply to actions by the Secretary under § 499h. II. Beene next argues that revocation of its license was inappropriate under the circumstances. It argues that the Judicial Officer impermissibly refused to exercise discretion in dispensing Beene’s sanction, that the Judicial Officer was in error in this and should have used his discretion not to revoke Beene’s license. We disagree. The choice of sanctions imposed by the Secretary of Agriculture through his Judicial Officer may not be overturned unless it is unwarranted in law or without justification in fact. Butz v. Glover Livestock Commission Co., Inc., 411 U.S. 182, 185-86, 93 S.Ct. 1455, 1457-58, 36 L.Ed.2d 142 (1973); American Fruit Purveyors, Inc. v. United States, 630 F.2d 370, 373 (5th Cir.1980) (per curiam), cert. denied, 450 U.S. 997, 101 S.Ct. 1701, 68 L.Ed.2d 197 (1981). This is not the case here. Beene misreads the Judicial Officer’s opinion. Beene in its brief quotes portions of the Judicial Officer’s opinion as support for its contention that the Judicial Officer refused to exercise any discretion in imposing a sanction. However, the Judicial Officer says only that he has no discretion to consider mitigating circumstances in deciding whether Beene violated PACA, and whether it did so willfully. He does not address the question of discretion in dispensing sanctions. The Secretary is authorized, under 7 U.S.C. § 499h(a), to revoke a PACA license for flagrant or repeated violations of § 499b. Both the Administrative Law Judge and the Judicial Officer found that Beene had committed such violations, and Beene does not challenge this on appeal. Beene went into bankruptcy after failing to pay for the 227 lots of perishable produce. This does not, however, have any effect on the Secretary’s power to revoke Beene’s license. As the Judicial Officer explains at length, Congress specifically amended § 525 of the 1978 Bankruptcy Law in order to authorize continuation of the Secretary’s license revocation authority under PACA when the violations involve debts dischargeable in bankruptcy. Par from denying that he had discretion regarding the license revocation, the Judicial Officer carefully examined the evidence that Beene put forward as justification for a more lenient penalty. Beene presented unsworn petitions by five of its fourteen unpaid sellers, asking for leniency for Beene. The Judicial Officer noted that the petitions had no probative value, first, because they were unsworn, and second, because Beene’s creditors had an interest in Beene’s staying in business, hoping that it would eventually be able to make full payment. Beene presented no testimony or other evidence of mitigating circumstances. The Judicial Officer justified the revocation of Beene’s license saying: “If lenient sanctions were imposed in the case of serious and flagrant violations of the Act for the benefit of a few of respondent’s creditors, the sanctions would not have a strong deterrent effect and, therefore, such a policy would be contrary to the public interest.” III. Appellant also urges that the administrative mechanism for dispute resolution between a licensee and its creditors in which a money judgment may be entered against the licensee for unpaid sums is an unconstitutional exercise of judicial power. Relying upon Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50, 67, 102 S.Ct. 2858, 2869, 73 L.Ed.2d 598 (1982), Beene argues that the right to recover contract damages is a state-created private right which can only be enforced in an Article III court. However, we are concerned here only with a public right controversy, whether Beene’s license should be revoked. The Supreme Court in Marathon specifically recognized licenses as examples of public rights which are within the province of administrative agencies without violating Article III. The Judicial Officer’s revocation was not unwarranted in law or without justification in fact, and therefore cannot be overturned. Accordingly, the judgment of the Judicial Officer revoking Beene’s license is affirmed. . Section 499e provides, in part: (a) If any commission merchant, dealer, or broker violates any provision of section 499b of this title he shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of such violation. (b) Such liability may be enforced either (1) by complaint to the Secretary as hereinafter provided, or (2) by suit in any court of competent jurisdiction. . Section 499h(a) provides, in part: (a) Whenever (a) the Secretary determines, as provided in section 499f of this title, that any commission merchant, dealer, or broker has violated any of the provisions of section 499b of this title . . . the Secretary may publish the facts and circumstances of such violation and/or by order, suspend the license of such offender for a period not to exceed ninety days, except that, if the violation is flagrant or repeated, the Secretary may, by order, revoke the license of the offender. . Cooper v. Caro & Longo Wholesale Produce Co., 40 Agric.Dec. 454 (1981); Bar-Well Foods Ltd. v. Valley Packing Service International, 39 Agric.Dec. 1200 (1980); Maggio, Inc. v. First National Stores, Inc., 39 Agric.Dec. 1179 (1980); Kaplan’s Fruit & Produce Co. v. Jim Weatherford Co., 37 Agric.Dec. 812 (1978), holding that the Secretary of Agriculture had no subject matter jurisdiction to revoke' its PACA license, are all actions by sellers for reparations. We find additional support in the margin notation to section 6(a), Perishable Agricultural Commodities Act, ch. 436, 46 Stat. 531 (1930). This was the original enacted version of PACA 7 U.S.C. § 499f(a), and is identical to the present provision. The margin notation reads: Complaint and investigation. Petition of individual complainant to the Secretary. (Emphasis added.) . 7 U.S.C. § 193(a) gives the Secretary the power to require a packer to attend and testify at a hearing “[w]henever the Secretary has reason to believe that any packer has violated or is violating any provision of this subchapter .... ” The Secretary may assess a penalty of up to $10,000 for each violation, pursuant to 7 U.S.C. § 193(b). . The section provides in pertinent part: Except as provided in the Perishable Agricultural Commodities Act, 1930 (7 U.S.C. 499a-499s) ... a governmental unit may not deny, revoke, suspend, or refuse to renew a license ... [to] a person that is or has been a debtor' under this title or a bankrupt or a debtor under the Bankruptcy Act ;... ” 11 U.S.C. § 525 (emphasis added). For a discussion of the rationale for this exemption for PACA, see 123 Cong.Rec. 35,671-72 (1977). 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:
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. LUCAS et al. v. RHODES, GOVERNOR OF OHIO, et al. No. 568. Decided December 4, 1967. Jack G. Day, Russell T. Adrine, Richard Gurm and Kenneth G. Weinberg for appellants. William B. Saxbe, Attorney General of Ohio, and J. Philip Redick, Assistant Attorney General, for appellees. Per Curiam. The judgment is reversed and the cause is remanded to the United States District Court for the Northern District of Ohio. Wesberry v. Sanders, 376 U. S. 1 (1964). Mr. Justice Marshall took no part in the consideration or decision of this case. 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_usc2sect	45	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". UNITED STATES of America, Plaintiff-Appellee, v. DANUBE CARPET MILLS, INC., and Carl D. Hagaman, Defendants-Appellants. No. 82-8456. United States Court of Appeals, Eleventh Circuit. July 30, 1984. Santarelli & Gimer, Richard H. Gimer, M. Stuart Madden, Washington, D.C., for defendants-appellants. Richard H. Gimer, Washington, D.C., for intervenor. William J. Roberts, Barry Grossman, Nancy C. Garrison, Benjamin P. Schoen, Antitrust Div., U.S. Dept, of Justice, Washington, D.C., Curtis E. Anderson, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appel-lee. Before RONEY, FAY and CLARK, Circuit Judges. CLARK, Circuit Judge: Appellants, Danube Carpet Mills, Inc. (Danube) and its president, Carl D. Hagaman (Hagaman), appeal from an adverse summary judgment ruling in a civil penalty action instituted under the Federal Trade Commission Act (FTCA), 15 U.S.C. § 45(a)(1). The government alleged that appellants violated a consent decree that they had entered into with the Federal Trade Commission (FTC). Appellants and the FTC entered into the agreement pursuant to a FTC investigation of the appellants’ carpet manufacturing operations which revealed nonconformance with the flammability standard, established in the Flammable Fabrics Act (FFA), 15 U.S.C. § 1191 et seq. The district court, 540 F.Supp. 507 (D.C.Ga.1982), held that appellants had committed seven separate violations of the decree and ordered them to pay a civil penalty of $3,500 for each violation. We have jurisdiction. 28 U.S.C. §§ 1291 & 1294 (1982). I. A. The Regulatory Framework The FFA authorized the Secretary of Commerce (Secretary) to promulgate standards to protect the public against the risks associated with flammable fabric products. 15 U.S.C. § 1193. The Secretary promulgated a carpet flammability standard effective April 16, 1971. This standard is codified at 16 C.F.R. § 1630.1-.5. The manufacture, distribution or sale of products which fail to conform to this standard is a violation of the FFA, 15 U.S.C. § 1192. Congress originally entrusted the FTC with enforcement of the FFA but in 1973 transferred such authority to the Consumer Product Safety Commission (CPSC). Apparently, neither the FTC nor the CPSC issued a binding regulation or published a policy statement which would have guided carpet manufacturers in their attempt to comply with the flammability standard. The FTC did, however, promulgate “Guaranty Regulations” which prescribed “reasonable and representative tests” to support any guaranties which manufacturers may voluntarily have issued under FFA § 8, 15 U.S.C. § 1197. These “Guaranty Regulations” required testing at three stages of production: (1) at the inception, (2) after production of the first 100,000 square yards, and (3) after production of every 200,000 square yards thereafter. 16 C.F.R. § 302.15(c). Separate testing is required under these regulations for each “quality” of carpet as defined in 16 C.F.R. § 302.15(a)(6). Essentially, a line of carpets constitutes a separate “quality” for purposes of the testing requirement if it is not “substantially alike” another line of carpets in those respects enumerated at 16 C.F.R. § 1630.31(a)(6). It should be noted that “Guaranty Regulations” were not binding upon Danube because appellants (as was true of most carpeting mills at the time) had not issued FFA § 8 guaranties. They were, nevertheless, the only published evidence of the enforcing agencies’ concept of a reasonable testing program under the flammability standard, and, therefore, Danube, like many other mills, referred to the “Guaranty Regulations” for guidance in their attempt to comply with the standard. Appellant’s Brief at 12. B. Danube’s Business Operations Danube is a carpet manufacturing company located in Georgia. As a smaller firm, Danube is involved only - in the primary stage of carpet production, which involves the tufting of carpet yarns or “face fiber” into a primary backing. The resulting product, known as “greige,” is suitable neither for sale to customers nor for flammability testing. Appellant’s Brief at 9. Therefore, Danube contracts with “commission finishers” who perform the remaining stages of production. These commission finishers perform according to Danube’s instructions. Once the finishers have completed their portion of the manufacturing process, the carpet is suitable for flammability testing. Because Danube does not possess the in-house capability to test the completed product, it must either instruct the finisher to conduct testing or contract with an outside testing laboratory. Appellant’s Brief at 5. C. The 1972 Consent Order One method of FFA enforcement is the filing of administrative complaint proceedings to secure cease and desist orders, the subsequent violation of which exposes the respondent to civil penalties under FTCA § 5(0, 15 U.S.C. § 45(0. After a FTC investigation revealed that one sample of a carpet style manufactured and sold by Danube failed a flammability test, both Danube and its president, Mr. Hagaman, became signatories to such an administrative order. This order provides, in pertinent part, that appellants shall not manufacture for sale, sell or distribute any carpeting that fails to conform “to an applicable standard or regulation continued in effect, issued or amended under the provisions” of the FFA. On October 13, 1972, the- FTC approved the decree, and it has continued in force and effect from that date to the present. D. Violation of the Order During 1973, Danube tufted a quantity of DuPont nylon into “greige” for use in a nylon shag carpet, known as “Cason.” In 1974,. Danube adopted a different coloring process for “Cason”: printing as opposed to immersion in a dye beck. With the adoption of this new coloring process, Danube changed the carpet’s name from “Ca-son” to “Brady.” Although “Cason” and “Brady” were identical save for the coloring process, the newly adopted coloring process adversely affected the flammability characteristics of the previously tested and approved “Cason” product. Appellants manufactured about 15,000 square yards of “Brady” carpet, of which approximately 12,000 square yards were sold to consumers. Between November 1974 and March 1975, the CPSC investigated Danube’s compliance with the flammability standard. Seven rolls of appellants’ “Brady” carpet failed the test. On June 10, 1977, the CPSC certified to the Attorney General facts indicating that the consent order had been violated, and on November 25, 1977, the United States Department of Justice filed a complaint seeking civil penalties for seven violations of the decree. E. Proceedings Below On March 2, 1979, the CPSC moved for partial summary judgment on the issue of "whether appellant had violated the consent decree. On June. 29, 1979, the court granted the motion without an evidentiary hearing. At the court’s request, the parties submitted legal briefs on the question of the number of violations. On June 18, 1980, the court granted judgment in accordance with the government’s contention that seven violations had occurred, i.e., one for each roll of “Brady” carpet which failed the flammability test. On March 29-31, 1982, the parties appeared before the district court for a hearing on the appropriateness of penalties. By Order dated May 26, 1982, the court ordered defendants Danube and its president, Hagaman, to pay a civil penalty of $3,500 per violation for a total of seven violations, amounting to a jointly imposed penalty of $24,500. II. Appellants raise numerous issues in this appeal, only a few of which merit discussion. Two of appellants’ principal contentions arise because the district court decided this case on the government’s motion for summary judgment. Appellants argue that summary judgment was inappropriate because the affidavits they submitted and sworn answers to interrogatories raised a triable issue of material fact concerning the presence of a violation, and because the trial court incorrectly construed the consent decree in finding seven separate violations. Appellants next argue that the district court erred in assessing civil penalties. Finally, Hagaman challenges the imposition of personal liability against him as president of Danube. III. A. Summary Judgment In determining whether appellants had violated the consent decree, the district court considered whether the seven rolls of carpet described in the complaint violated the order by failing to conform to the flammability standard. Appellants contend that the issue is not simply whether the seven specified rolls were nonconforming, but whether an unspecified majority of “Brady” samples failed to meet the standard. In other words, appellants argue that if their affidavits demonstrated that a majority of the products of the type at issue conformed to the standard, a triable issue of fact existed as to the existence of a violation. To support its motion for summary judgment, the government presented affidavits by CPSC officials demonstrating that all seven rolls of carpet had been sampled and tested in accordance with the carpet flammability regulations and that each roll had failed the test. In opposition, appellant submitted the affidavit of its president, Mr. Hagaman, which stated that Danube had tested “Brady” style carpet for compliance with the flammability standard; however, this affidavit did not controvert the CPSC’s test results as to the seven rolls of carpet involved in this case. The district court ruled that, regardless of the successfulness of flammability tests conducted on other “Brady” style carpet, Mr. Hagaman’s affidavit raised no factual issue concerning the accuracy of the CPSC’s test on the seven rolls listed in the complaint. (R. 357). Clearly, the district court’s ruling is correct if the focus is on only those rolls of carpet listed in the complaint, rather than a “representative sample” of a certain style of carpeting, such as “Brady.” Because the question of what constitutes a violation of a FFA carpet order is a case of first impression, neither party submits any authority in support of its contention. Appellants simply argue that it is inappropriate to attribute greater significance to an isolated failing test than to a representative passing test made in the ordinary course of business. Appellants’ Brief at 22. We agree with the government’s contention, however, that evidence as to the compliance of other products is a factor to be considered only in determining the appropriate amount of civil penalties, not in establishing the existence of a violation. Accordingly, the district court did not err in finding no triable issue of fact as to the existence of a violation. Appellants next contend that summary judgment was erroneous because the trial court improperly excluded extrinsic evidence that was necessary to resolve alleged ambiguities in the 1972 cease and desist order relevant to the number of violations. Under the order in question, appellants were to “cease and desist from ... manufacturing for sale ... any product made of fabric or related material as ... ‘product’, ‘fabric’ and ‘related material’ are defined in the [PPA], ... which product, fabric or related material fails to conform to [the flammability standard].” Appellants contend that the term “any product” as used in the order is ambiguous because, in their view, it refers to styles of carpet rather than individual rolls. The government, on the other hand, contends that the term “any product” is unambiguous and, therefore, the court did not err in refusing to examine extrinsic evidence. Reference to extrinsic evidence to construe a consent order is proper only where the language is ambiguous. Robinson v. Vollert, 602 F.2d 87, 92 (5th Cir.1979), reh’g denied, 609 F.2d 1177 (5th Cir.1980). The order in this case specifically provides that the term “product” is used as it is defined in the PPA. The PPA defines “product” as “any article of wearing apparel or interior furnishing,” and further defines “interior furnishing” as “any type of furnishing made in whole or in part of fabric or related material____” 15 U.S.C. § 1191(h), (e) (emphasis added). The government contends that; because a roll of carpet is a “type' of furnishing,” the meaning of “any product” includes carpet rolls. Government’s Brief at 21. We agree. The court’s construction provides a logical interpretation of the consent order, and no extrinsic evidence was necessary. B. Civil Penalties In determining the amount of the penalty, the district court considered (1) the good or bad faith of the defendants; (2) the injury to the public; (3) the defendants’ ability to pay; (4) the desire to eliminate the benefits derived by the violations; and (5) the necessity of vindicating the authority of the FTC. Appellants challenge the district court’s findings as to the first three considerations. 1. Good Faith Appellants contend that the district court abused its discretion in imposing substantial civil penalties in light of alleged good faith efforts to comply with the order and prompt remedial action upon discovery of the violations. The record supports the district court's finding to the contrary. Appellants did not have a policy or plan to test carpeting at regular time intervals or at' periodic output intervals; appellants did not change their policy of random flammability testing after the consent agreement. Furthermore, Danube’s president, Mr. Hagaman, delegated testing responsibility to a subordinate who did not keep any accurate records of the flammability tests. Moreover, while appellants ceased production and sale of Brady style carpet and recalled it from distributors after the CPSC gave notice of test failures, the district court found that appellants would have continued production and sale of the nonconforming carpet had the CPSC not tested Brady style carpet. The district court’s finding as to appellants’ “good faith” was not error. 2. Public Harm The district court concluded that “the receipt by consumers of approximately 12,000 square yards of Brady style carpet caused significant public harm.” Conclusion 11. Appellants contend that this finding is erroneous because appellants have made an unrebutted showing of lack of actual injury or loss to the public and the appellee has, in turn, failed to show any actual injury. (Reply Br. at 22). Appellants rely on United States v. Chevron Oil Co., 583 F.2d 1357, 1363-64 (5th Cir.1978), an action for civil penalties under the Federal Water Pollution Control Act Amendments of 1972 (FWPCA), in which an oil company responsible for an oil spill presented evidence that the spill was not harmful, even though it caused a “sheen” on the water, and the government did not produce rebuttal evidence to establish that the spill was in fact harmful. Under these circumstances, the former Fifth Circuit held that the oil company was not liable for civil penalties. Id. On the other hand, appellee relies upon United States v. Reader’s Digest Ass’n, Inc., supra note 10, 662 F.2d, at 969, an action for civil penalties under the FTCA, in which the court held that if the information reaching the public possessed the capacity to deceive, “the Government was not obligated to adduce evidence of specific injuries to consumers.” We find that the rule in Reader’s Digest governs this case. The FFA, like the FTCA, protects consumers; the FWPCA protects the environment. Therefore, consumers need not actually be burned before a carpet which fails to conform with the. flammability ' standard presents public harm. 3. Appellants’ Ability to Pay The district court concluded that Danube and Hagaman had the ability to pay a monetary penalty of $3,500 per violation. Conclusion 24. The court based this conclusion on its finding that Danube and Ha-gaman,- as 100% shareholder, compiled over $1.2 million in profits between November 1, 1979 and October 31, 1981, $376,167 between November 1, 1979 and October 31, 1980, and $594,684 between November 1, 1978 and October 31, 1979, and had a net worth of approximately $3.5 million as of October 31, 1981. Appellants contend, however, that these figures have no bearing on appellants’ ability to pay, because (1) the relevant gauge of ability to pay is the profit earned from the nonconforming carpet and (2) calculation of net worth should focus on liquid, not illiquid, assets. (Br. at 53). Appellants rely on United States v. Papercraft Corp., 393 F.Supp. 415 (W.D.Pa.1975), rev’d on other grounds, 540 F.2d 131 (3d Cir.1976), in support of their contention that the profit from the alleged wrongdoing is the gauge for civil penalties and, because appellants did not profit from “Brady” carpeting, the penalty was excessive. Appellants’ reliance on Papercraft is inappropriate. That case held that the profit which the corporation receives from the product in question is relevant only in ascertaining the amount of harm to the public, not in determining the wrongdoer’s ability to pay. Id. at 426. Indeed, Paper-craft considered the corporation’s overall sales and earning capacity in assessing the civil penalty. Appellants next contend the present ability to pay as determined by liquid assets is the relevant inquiry, not a net worth figure contemplating illiquid assets and facilities. Appellants point to testimony which established that Danube is now operating in the red, that the company’s cash flow is so poor that Hagaman, as president, did not take a salary in 1981 and that imposition of a large penalty would be “disastrous.” Appellants urge, therefore, that the district court’s consideration of overall net worth was erroneous because it overestimated appellants’ ability to pay a civil penalty. We find no such error. The very portion of the record cited by appellants contains a statement by Hagaman that “we [appellants] frankly, at this point, could come up with $70,000 [the amount of penalties sought by the government in its complaint] without being put out of business.” Transcript at 111. In light of such testimony, appellants’ contention that imposition of a $24,500 penalty overestimated appellants’ ability to pay is not persuasive. C. Personal Liability Appellant Hagaman contends that the district court erred in imposing personal liability against him for the civil penalties. In 1972, Hagaman, president of Danube, signed the “Agreement Containing Consent Order to Cease and Desist,” which, like the cease and desist order, expressly applies to “Carl D. Hagaman, individually and as an officer of [Danube].” Appellant relies on the CPSC’s ruling in In re Imperial Carpet Mills, supra note 7, in which the CPSC announced that, at least “ ‘where the violation ... was inadvertent and not likely to recur,’ ” the CPSC may not apply a cease and desist order to a corporate officer in his individual capacity “ ‘unless the Commission can show some reason for including an officer other than the mere fact that he is an officer.’ ” Id. at 60,967 (quoting Barrett Carpet Mills v. CPSC, 635 F.2d 299, 304 (4th Cir.1980) (emphasis Commission’s)). Assuming for purposes of this portion of the opinion only that the violation which led to the cease and desist order was “inadvertent,” Hagaman’s contention is nonetheless without merit. In both the Barrett case and the Imperial decision, a corporate officer challenged a cease and desist order which named the officer, in his individual capacity, as a respondent. Unlike the officers in Barrett and Imperial, Hagaman did not challenge the cease and desist order; in fact, in paragraph 3(c) of the consent agreement, he expressly waived his right to do so. In view of such acquiescence at the time the order was entered, a court cannot now countenance Hagaman’s claim that he was improperly named in his individual capacity as a respondent in the cease and desist order. The district court, therefore, did not err in imposing civil penalties against Hagaman personally. IV. Having found no merit in appellants’ contentions, the district court’s granting of summary judgment and imposition of civil penalties is AFFIRMED. . The Carpet and Rug Institute has intervened in this appeal on appellants’ behalf. Danube, Hagaman, and the intervenor-appellant are represented by the same counsel and have submitted a single brief. . The FFA was, as originally enacted, limited in its application to wearing apparel, but was amended to cover both "wearing apparel" and "interior furnishings.” Pub.L. No. 90-189 (1967). . 15 U.S.C. § 2079(b). . See 16 C.F.R. § 1630.31(a), (c). . Appellants entered into the agreement with the FTC on June 22, 1972, before the complaint was issued. . The testing method employed, known as the “Pill Test,” is set forth at 16 C.F.R. § 1630.4 (1984). . The CPSC has enforcement authority under the FFA and the FTCA; however, the Commis-. sion usually prosecutes cases for civil penalties through the Department of Justice. In re Imperial Carpet Mills, Inc., et al., CPSC Dkt. No. 80-2, 3 Cons. Prod. Safety Guide (CCH) ¶ 75.319 at 60,970 n. 23 (1983). . Defendants’ motion for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) was denied on September 22, 1980. . Contrary to Hagaman’s statement in his affidavit, the district court found that no Brady style carpet was tested. Finding of Fact 38. Given our position as to the effect of evidence of other products that comply with the standard, this apparent conflict is immaterial. The fact remains that the affidavit did not controvert the CPSC’s tests conducted on the seven rolls of Brady carpet named in the complaint, and, therefore, there was no triable issue as to the existence of a violation. Furthermore, because the affidavit states neither the nature nor frequency of the alleged testing, it does not conflict with the district court’s finding that appellants had no plan or program to conduct tests at regular time or output intervals. . These criteria were developed in well-reasoned opinions from the Third and Second Circuits. See United States v. Reader’s Digest Ass’n, 662 F.2d 955, 967 & n. 18 (3d Cir.1981), cert. denied, 455 U.S. 908, 102 S.Ct. 1253, 71 L.Ed.2d 446 (1982); United States v. J.B. Williams Co., 498 F.2d 414, 438-39 (2d Cir.1974); United States v. Papercraft Corp., 393 F.Supp. 415, 420 (W.D.Pa.1975), aff’d in part, 540 F.2d 131, 141 (3d Cir.1976). The CPSC has articulated a non-comprehensive list of factors which the Directorate for Compliance and Administrative Litigation should consider when deciding whether to seek a civil penalty or determining the amount of the penalty to seek for violation of a cease and desist order: (1) Whether the individual or firm established and maintained an adequate program of pre-production flammability testing of each carpet style; (2) whether the individual or firm established and maintained an adequate program of flammability testing at regular intervals during production of each carpet style; (3) when a failing test result was received, whether the individual or firm undertook immediate, adequate, and appropriate remedial action {e.g., halted production, retested as appropriate, notified distributors and retailers, stopped shipment of the style(s) that fail to comply, and in appropriate cases issued public notification concerning the flammability of the carpet); (4) the degree, if. any, to which the violation was inadvertent; and (5) the number of violative products. In re Imperial Carpet Mills, Inc., supra note 7, at 60,970. For the most part, these factors are subsumed by the factors listed in Reader’s Digest, supra-, in fact, factors 1 and 2 are relevant in the instant case as to our inquiry into appellants’ good faith. See Part III.B.l, infra. . Appellants also assert that the district court’s ruling should be reversed because the government sought a $10,000 penalty for each violation in its complaint, but the statute and agreement limit the per-violation penalty to $5,000. Appellants’ Brief at 34-37. Because the court assessed a per-violation penalty of only $3,500, and because the $10,000 maximum did not enter into its decision, this court need not address appellants' arguments as to the maximum penalty. Appellants’ reliance on United States v. Papercraft Corp., 540 F.2d 131, 139-40 (3d Cir.1976), is misplaced because, in that case, the trial court assessed a $7,500 penalty. Id. at 134. . Appellants enjoyed a competitive cost advantage in manufacturing Brady style carpet over those companies which endeavored to comply with the flammability standard. Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15? Answer with a number. Answer:
songer_usc1	30	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. Bert F. DUESING, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. George Hall DOUGLASS, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. Gene B. GRAHAM, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. Rodney L. JOHNSTON, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. H. Willard NAGLEY, Jr., Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. E. E. RASMUSON, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. Milan RAYKOVICH, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. Robert B. ATWOOD, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. Nos. 17358, 17403-17409. United States Court of Appeals District of Columbia Circuit. Argued May 26, 1965. Decided June 30, 1965. Petition for Rehearing En Banc Denied Sept. 23, 1965. Mr. Max Barash, Washington, D. C., for appellant in No. 17358. Mr. H. St. John Butler, Washington, D. C., for appellants in Nos. 17403-17409. Mr. Edmund B. Clark, Atty., Dept. of Justice, with whom Asst. Atty. Gen. Ramsey Clark, Messrs. Roger P. Marquis and Herbert Pittle, Attys., Dept. of Justice, were on the brief, for appellee. Before Danaher, Circuit Judge, Bastian, Senior Circuit Judge, and Leventhal, Circuit Judge. LEVENTHAL, Circuit Judge: These are appeals from orders granting summary judgment to appellee, Secretary of the Interior, and dismissing the complaints of appellants. The lawsuits sought to establish the invalidity of the decision of the Secretary of the Interior closing the southern half of the Kenai National Moose Range in Alaska for oil and gas leasing, in consequence of which appellants’ noncompetitive applications were rejected. We affirm. The Moose Range was created in 1941 by Executive Order No. 8979, 6 F.R. 6471, by which approximately two million acres of the public domain were set aside “as a refuge and breeding ground for moose.” Between December 1955 and January 1958, noncompetitive oil gas lease applications relating to acreage in the southern half of the Moose Range were filed by appellants pursuant to section 17 of the Mineral Leasing Act, as amended (30 U.S.C. § 226). Appellants contend that these offers, which were consistent with, and it is claimed “invited” by, the regulations then in effect (Circular 1945, approved December 6, 1955, 20 F.R. 9009), conferred a vested right in appellants which was unlawfully impaired and cancelled by the Secretary’s actions in refusing to lease, done pursuant to revision of the regulation (Circular 1990, January 8, 1958, 23 F.R. 227). The background of the regulations pertaining to leasing of wildlife refuge lands (see 43 C.F.R. 192.9), and a description of their increasingly restrictive quality, are set forth in Udall v. Tallman, 380 U.S. 1, at 5-14, 85 S.Ct. 792, 13 L.Ed. 2d 616 (1965). The 1955 regulation was more restrictive than an initial 1947 regulation, which had simply required that leases be subject to an approved unit plan and required the Secretary’s consent prior to drilling. By an inter-agency memorandum dated August 31, 1953, the Interior Department suspended action on all pending oil and gas lease applications for lands within wildlife refuges, pending completion of a study and possible revision of policy and regulations. The 1955 regulation gave increased power to the Fish and Wildlife Service to avoid impairment of usefulness of the lands for wildlife conservation purposes. Certain areas were declared “not available for leasing,” other areas were available under restrictions. As to the areas in question the regulation provided : “Oil and gas leases may be issued for other lands administered by the Fish and Wildlife Service” provided they contain specified conditions requiring approval by the Fish and Wildlife Service of the type of prospecting to be conducted, and adoption by the lessee of a unit plan approved by the Service. In 1956 bills were introduced seeking Congressional restriction of oil and gas leasing in wildlife refuges. Instead, an arrangement was worked out, for an experimental period, whereby proposals for lease would be submitted, for approval or disapproval within 60 days, to the House Committee on Merchant Marine and Fisheries. In July 1956, that Committee concluded that administrative proposals for leases for 71,680 acres in the northern half of the Moose Range “would not be detrimental to the wildlife values of the Moose Range” and concurred therein. The Secretary’s 1958 revision of the regulation “represented a near total victory for the conservationists.” It was a general prohibition of oil and gas leasing in wildlife refuges. Alaska was an exception and here it was provided that agreements were to be reached by the Bureau of Land Management and the Fish and Wildlife Service, specifying lands not subject to leasing and provisions required in leases on the remaining lands, to be effective upon approval by the Secretary. The Secretary published notice in the Federal Register on August 2, 1958, 23 F.R. 5883, of an agreement he had approved July 24, 1958, which set forth that certain lands in the Moose Range (essentially the southern half comprising about 1,689 square miles) “are hereby closed to oil and gas leasing because such activities would be incompatible with management thereof for wildlife purposes.” About 1,525 square miles covering the northern half of the range was left open to leasing. I Appellants fail in their contention that they obtained a vested right with their applications since it lay entirely within the discretion of the Secretary whether or not to issue leases on the lands involved. Section 17 of the Mineral Leasing Act of 1920, 41 Stat. 437, 30 U.S.C. § 181, as amended to and including the Act of August 8, 1946, 60 Stat. 950, read insofar as pertinent: “Sec. 17. All lands subject to disposition under this Act which are known or believed to contain oil or gas deposits may be leased by the Secretary of the Interior. When the lands to be leased are within any known geological structure of a producing oil or gas field, they shall be leased to the highest responsible qualified bidder by competitive bidding under general regulations, * * *. When the lands to be leased are not within any known geological structure of a producing oil or gas field, the person first making application for the lease who is qualified to hold a lease under this Act shall be entitled to a lease of such lands without competitive bidding.” Under section 17 it is permissive or discretionary whether or not the Secretary will issue a lease on lands believed to contain oil or gas deposits. What is mandatory is who is to get the lease if it is decided that a lease will be issued —if there is a known geologic structure, the highest bidder; if not, the applicant first in line. As we said in Haley v. Seaton, 108 U.S.App.D.C. 257, 262, 281 F.2d 620, 625 (1960), the legislative intent was “to give the Secretary of the Interior discretionary power, rather than a positive mandate to lease.” More recently the Supreme Court said in Tollman (380 U.S. at 4, 85 S.Ct. at 795): “Although the Act directed that if a lease is issued on such a tract [not within a known geologic structure of a producing oil and gas field], it must be issued to the first qualified applicant, it left the Secretary discretion to refuse to issue any lease at all on a given tract.” The filing of an application which has not been accepted does not give any right to a lease, or generate a legal interest which reduces or restricts the discretion vested in the Secretary whether or not to issue leases for the lands involved. II Without specifying which appellants make which arguments, we address ourselves to a collection of contentions assailing the Secretary’s exercise of his discretion. It is contended that the Secretary’s authority permits refusal to lease “on a given tract” (see Tollman), but not on a large area of 1,689 square miles. A subsidiary contention is that the Secretary’s 1958 action amounted to an indirect “withdrawal” that did not comply with the Pickett Act of June 25, 1910, 36 Stat. 847, 43 U.S.C. § 141 et seq., which requires that withdrawals be reported to Congress, and further did not comply with the regulations providing for notice and public hearings prior to making withdrawals. Circular 1982, August 12, 1957, 22 F.R. 6613, 43 C.F.R. 295. Assistant Secretary Caiwer’s thoughtful decision in the case of Richard K. Todd et al., 68 I.D. 291, pointed out that the Secretary of Interior had not exercised his withdrawal power. Thus the Secretary had not designated his action as “public land orders” which is required as to withdrawal by Executive Order No. 10355 of May 26, 1952 (17 F.R. 4831), whereby the President expressly delegated to the Secretary the authority to withdraw public lands. Mr. Carver further stated (68 I.D. at 296): “Stripped of all authority to withdraw lands, the Secretary would still have his discretionary authority to refuse to issue leases where he thinks issuance would not be in the public interest. “The formal exercise by the Secretary of his discretionary authority is nothing new in the administration of the Mineral Leasing Act.” Reference is made to actions whereby the Department formalized the cessation of leasing in New Mexico in 1939 (4 F.R. 1012), in Iranpah Valley, California in 1942, and in the wilderness areas of the Los Padres National Forest, California, and the Sante Fe National Forest, New Mexico, in 1953 (Departmental Order 2714, 18 F.R. 700). We show great deference to the construction and application of a statute by the officers charged with its administration, Udall v. Tallman, swpra, at 16, and cases cited. The construction recorded in the Todd decision presents 'a reasonable viewpoint, supported by the administrative practice cited therein. We find that the Secretary has not exceeded his authority under section 17. Appellant Duesing starts off from the general proposition that an agency’s authority to issue implementing regulations contemplates regulations in furtherance of the act and winds up with the conclusion that the Secretary can only exercise his discretion under the Mineral Leasing Act by taking action in furtherance of the objective of that act to promote mineral development in the public domain. We reject the argument that in answering the question, to lease or not to lease, the Secretary must ignore the primary objectives of holding and using the land and consider solely the purpose of the lease. This tail wags dog construction is not put forward as supported by legislative history and we see no warrant for overturning what is at least a reasonable administrative construction. Indeed the argument would not even merit discussion were it not stressed by counsel knowledgeable in the field and supported by vigorous statements of the late Senator O’Mahoney, former Chairman of the Subcommittee on Public Lands. Of course Senator O’Mahoney’s 1958 and 1959 comments are no part of the legislative history of the Mineral Leasing Act, passed in 1920 and amended through 1946. His spark did not catch fire with the other members of his Committee, and the hearings he requested were never held. The 1956 House Committee actions described above reflect a contrary approach. It is not insignificant that when the Mineral Leasing Act was amended in 1960, section 17 was left substantially intact, notwithstanding obvious Congressional awareness of the Secretary’s construction of the law, and his deliberate adherence to that construction notwithstanding Senator O’Mahoney’s sharp protest against alleged executive usurpation of authority. The implication of legislative approval is heightened by the fact that the 1960 amendment was enacted after extensive hearings held on the bill and predecessor measures sponsored by Senator O’Mahoney, and that the bill was described as having two purposes: First, to make certain changes of substance in the Mineral Leasing Act shown by experience to be desirable; second, to restate sections 17 and 27 (described as amended so much over the years “that they have become something of a hodgepodge”), restating them “in their entirety to clarify the language.” The initial sentence of section 17, which was dominant in the thinking of the Secretary and the courts, was left intact. Finally, some appellants allege that the Secretary’s closing of the southern half of the Moose Range from leasing was arbitrary and capricious, because “oil and gas exploration and development is compatible with the management of the Range for wildlife purposes.” Or in the words of the Todd decision, appellants purport “to demonstrate that ‘oil is compatible with moose’ or that the division made is illogical.” Appellants do not contradict Assistant Secretary Carver’s statement in the Todd decision that at the hearing held December 9 and 10, 1957, on the proposed revision of 43 C.F.R. 192.9, there was testimony both in support of and in opposition to advocates of leasing. The agreement by the Bureau of Land Management and the Fish and Wildlife Service represented their considered judgment that the division made is the proper method of balancing the several components of the public interest in this area. In a case like this the court does not seek to make a de novo determination. It suffices if there was reasonable basis for the executive department to reach its conclusion. Appellants have not made a tender sufficient to overcome the presumption of validity of administrative action. The court does not presume to substitute its discretion for that of the Secretary. Affirmed. . Senator O’Mahoney’s letter of January 24, 1958, to the Chainnan of the Senate Committee on Interior and Insular Affairs, and his letter of January 26, 1959, to the members of the Committee, appear in “Executive Modification of the Mineral Leasing Act on Federal Wildlife Lands” 1, iii, 85th Cong., 2d Sess. (Comm. Print 1959). . National Lead Co. v. United States, 252 U.S. 140, 146, 40 S.Ct. 237, 64 L.Ed. 496 (1920); Boesche v. Udall, 373 U.S. 472, 482-483, 83 S.Ct. 1373, 10 L.Ed.2d 491 (1963); Fishgold v. Sullivan Drydock & Repair Corp., 154 F.2d 785, 790-791 (2d Cir.1946). . S. Rep. No. 1549, 86th Cong. 2d Sess. 1 (1960) U.S.Oode Congressional and Administrative News, p. 3313. . The hearing was held pursuant to notice in the Federal Register of October 11, 1957 (22 F.R. 8088), which clearly stated that all or part of the Alaska wildlife areas might be closed to mineral leasing. In view of this notice and hearing we see no merit in the contention that there was a procedural defect in the adoption of the regulation. Sec. 4 of the Administrative Procedure Act, 5 U.S.C. § 1003, is inapplicable, since this was' a regulation relating to “public property.” McNeil v. Seaton, 108 U.S.App.D.C. 296, 301, 281 F.2d 931, 936 (1960). 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_appel1_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 first 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. SHICK v. GOODMAN. Circuit Court of Appeals, Third Circuit. March 19, 1929. Rehearing Denied May 13, 1929. No. 3822. Robert P. Shiek, of Philadelphia, Pa., for appellant. Ellwood H. Deysher, of Reading, Pa., for appellee. " Before BUFFINGTON, WOOLLEY, and DAYIS, Circuit Judges. BUFFINGTON, Circuit Judge. Prior to the bankruptcy of Albright, he wished to sell some real estate. It was subject to the lien of judgments owned by Shiek, the validity of which were contested by Albright. Accordingly they agreed that the land be sold by Al-bright, that Shiek release the lien of his judgments, sufficient of the purchase money, placed in escrow in the Norristown Trust Company, and substituted for the land. That fund is the subject-matter in dispute in the present case. Within four months thereafter Albright was adjudged a bankrupt, and the rights and status of all parties were thereby fixed, as follows: First, the bankrupt estate had a vested but contingent interest in the fund in the trust company, for if Shiek’s judgments were not valid it would go to Al-bright’s trustee; second, Shiek had an interest in the fund, adverse to the bankrupt and his estate, contingent upon the validity of his judgments. Now whatever rights Shiek might have asserted to have his adverse claim decided elsewhere, he chose to submit them to the bankruptcy court by filing claims of his judgments and taking part in the consideration of their validity by that court. He asserted or invoked no right as an adverse claimant to have such validity decided elsewhere, and while he made objections from time to time to the course of procedure, he did not challenge the jurisdiction of the bankruptcy court as such. Accordingly, that court proceeded and held his judgments invalid. Shiek’s attempt, pending such adjudication, to go into the state'court, where his judgments were entered, and have that court determine their validity, and as a result the validity of the claims he had filed and litigated in the bankruptcy court, was unwarranted. We find no error in the court below enjoining him from so doing. Its decree is therefore affirmed. Question: This question concerns the first 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_respond1_3_2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. Don D. DIAL; Elizabeth A. Dial, Petitioners-Appellants, v. COMMISSIONER INTERNAL REVENUE SERVICE, Respondent-Appellee. No. 90-70231. United States Court of Appeals, Ninth Circuit. Submitted June 1, 1992. Decided June 30, 1992. Don D. Dial, Elizabeth A. Dial, in pro per. Doris D. Coles, Tax Div., U.S. Dept, of Justice, Washington, D.C., for respondent-appellee. Before: WRIGHT, CANBY, and WIGGINS, Circuit Judges. Oral argument was waived by appellant. CANBY, Circuit Judge. Don Dial appeals a summary judgment of the Tax Court finding deficiencies in his federal income taxes for 1977, 1978, and 1979. We affirm. BACKGROUND During the years in question, Dial traded in Treasury bill futures contracts for his own account. As the Tax Court explained, Treasury bills are short-term debt obligations of the United States that are sold at a price discounted below face value. The return to a holder of a Treasury bill is the difference between the discounted price and the face value at maturity. As the interest rate varies, prices at which Treasury bills are sold also vary. Dial did not deal directly in Treasury bills. He dealt in futures contracts that treated Treasury bills as the underlying commodity. Commodity futures contracts are exec-utory contracts representing a commitment to deliver or receive a specified quantity and grade of a commodity during a specified future month at a designated price.... The parties to a futures contract are the buyer, who is said to take a ‘long’ position, and the seller, who takes a ‘short’ position. The buyer is obligated to accept delivery of, and the seller is obligated to deliver, the quantity and grade of commodity at the time specified by the futures contract. A futures contract is satisfied only by performance or offset. An offset occurs when a trader takes a position equivalent, but opposite, to an earlier position. That is, a seller would offset a short position by taking a long position for the identical commodity for the same number of contracts in the same delivery month.... Only a small percentage of futures contracts are performed, since, unlike the underlying commodity, they cannot be disposed of in a secondary market. Moody v. Commissioner, 49 T.C.M. (CCH) 514, 515 (1985). Thus, when Dial purchased a Treasury bill futures contract, he obtained the right to receive delivery of a certain quantity and type of Treasury bills on a specific date. When Dial sold a Treasury bill futures contract, he obligated himself to deliver a certain quantity and type of Treasury bills on a specific date. The parties agree that Dial dealt only in futures; he always satisfied his contracts by offset, and never sold, bought, or possessed Treasury bills. Dial sustained losses of $34,175, $511,-850, and $214,331 during tax years 1977, 1978, and 1979, respectively, on his sales and purchases of Treasury bill futures contracts. Dial claimed each of these losses as “ordinary losses” and, accordingly, deducted them from his taxable income for 1977, 1978, and 1979. The Commissioner disallowed Dial’s claimed losses after determining that the Treasury bill futures contracts were “capital assets” within the meaning of 26 U.S.C. § 1221. This determination required treating the losses as capital losses, which cannot be deducted in full from ordinary income. The Commissioner assessed deficiencies of $8,660 for 1977, $228,788 for 1978, and $129,007 for 1979. Dial filed a petition for redetermination in the Tax Court. The Commissioner moved for summary judgment. Five days before the hearing in Washington, D.C., Dial, who is representing himself, filed a “motion for dismissal of summary judgment” requesting cancellation of the hearing in Washington, D.C., and seeking a trial in Seattle, Washington. The “motion” also stated: “This constitutes official notice in the above entitled case that a Motion for Summary Judgment is not warranted and that petitioner expects to present a line of facts and reasoning such as to overturn the applicability of Moody v. Commissioner, T.C. Memo 1985-20 to petitioner’s case; and that, therefore, these losses are not capital as a matter of law.” The Tax Court issued an order on the day of the hearing permitting Dial to respond in writing to the Commissioner’s summary judgment motion. Dial filed a memorandum in opposition. The Tax Court granted summary judgment to the Commissioner, relying on its decision in Moody v. Commissioner, 49 T.C.M. (CCH) 514 (1985). As in Moody, the court concluded that, although section 1221(5) at the time in question excepted Treasury bills from the definition of “capital assets,” Treasury bill futures contracts were a different type of asset and did not fit within any of the narrowly drawn exceptions to the broad definition of “capital asset” set forth in section 1221. Thus, Dial's losses were capital losses rather than ordinary losses. Dial v. CIR, 58 T.C.M. (CCH) 1138 (1990). Dial wrote two letters to the Tax Court to determine whether the court had considered his opposition to the Commissioner’s summary judgment motion before issuing its decision. The court interpreted the letters as a motion to vacate and a motion to reconsider. After determining that it had not considered Dial’s opposition, the court granted the motion to vacate. On reconsideration, the court rejected Dial’s argument that the futures contracts were “hedges” excepted from the definition of “capital assets”: [Acquisition of a futures contract is a hedge only if the transaction is undertaken to offset a risk involving the underlying commodity, not another futures contract. Although petitioner argues that not all of his trades involved offsetting contracts, the fact remains that he was not a broker or dealer in dollars, the “commodity” fluctuations in the value of which he was ostensibly protecting against by engaging in hedging transactions. Thus, his trades in Treasury bill futures contracts were not hedging transactions and do not qualify for ordinary loss treatment. Order and Decision, No. 44906-86, slip op. at 2 (T.C. Feb. 16, 1990) (emphasis added). Dial again moved to vacate the court’s order granting summary judgment. The court denied the motion. Dial now appeals, challenging the Tax Court’s substantive decision regarding section 1221 and “hedging transactions,” as well as several of its procedural rulings. DISCUSSION We review de novo the Tax Court’s grant of summary judgment to the Commissioner. Guaranty National Insurance Co. v. Gates, 916 F.2d 508, 511 (9th Cir.1990). Capital Assets Treatment for Futures Contracts Section 1221 defines “capital asset” as “property held by the taxpayer (whether or not connected with his trade or business),” and lists five specific exceptions. Dial first argues that, even if his futures contracts do not fall within the enumerated exceptions, they are entitled to be treated as noncapital assets under the “hedging” exception recognized in Corn Products Co. v. Commissioner, 350 U.S. 46, 76 S.Ct. 20, 100 L.Ed. 29 (1955). Corn Products manufactured a variety of products from grain corn (e.g., starch, syrup, sugar). Having limited storage capacity and fearing an increase in the price of corn, Corn Products bought corn futures and thereby guaranteed an adequate supply of raw materials at specified prices. Id. at 48, 76 S.Ct. at 22. Because Corn Product’s profits from its futures transactions far exceeded its losses, it sought a ruling that its futures contracts were capital assets under 26 U.S.C. § 117, the predecessor to section 1221. Id. at 49, 76 S.Ct. at 22. Recognizing that “hedges,” as defined in United States v. New York Coffee & Sugar Exchange, Inc., 263 U.S. 611, 619, 44 S.Ct. 225, 227, 68 L.Ed. 475 (1924), had long been treated administratively as noncapital transactions, Corn Products offered two arguments. First, it argued that its transactions were not true hedges because they did not protect against loss from a position already taken in a commodity. Second, they argued that the statute listed no exception for hedges, and the statutory exceptions must be deemed exclusive. The Supreme Court recognized that Corn Products’ transactions were not complete hedges, and that they did not fall within the “literal language” of the enumerated exceptions. Id., 350 U.S. at 51, 76 S.Ct. at 24. The Court held, however, that the transactions involved “everyday operation of a business,” id. at 52, 76 S.Ct. at 24, that Congress intended to subject to ordinary gain or loss treatment. The Court agreed with administrative interpretations that viewed “hedging transactions as insurance rather than dealing in capital assets.” Id. at 52-53, 76 S.Ct. at 24. Relying on Corn Products’ broad language, Dial argues that any futures transaction undertaken for a “business purpose” rather than an “investment motive” should be regarded as a hedge leading to ordinary income or loss. In response, we note first that the Supreme Court rejected this broad reading of Corn Products in Arkansas Best Corp. v. Commissioner, 485 U.S. 212, 219-23, 108 S.Ct. 971, 975-78, 99 L.Ed.2d 183 (1988). Section 1221 provides that ‘capital asset’ means property held by the taxpayer[,] ... but does not include the five classes of property listed as exceptions. We believe this locution signifies that the listed exceptions are exclusive. The body of § 1221 establishes a general definition of the term ‘capital asset,’ and the phrase ‘does not include’ takes out of that broad definition only the classes of property that are specifically mentioned. Id. at 217-18, 108 S.Ct. at 975 (emphasis added). Arkansas Best then characterized the holding in Corn Products as an application of the inventory exception contained in subsection 1221(1). Id. at 220-22, 108 S.Ct. at 976-77. Only futures contracts guaranteeing or requiring delivery of the taxpayer’s stock in trade or other property properly included in the taxpayer’s inventory may be excepted from capital-asset treatment under Arkansas Best. Business purpose is not relevant to the determination whether property is a capital asset. Id. at 221-22, 108 S.Ct. at 976-77; see also Azar Nut Co. v. Commissioner, 931 F.2d 314, 317 (5th Cir.1991) (explaining Arkansas Best); accord Swartz v. Commissioner, 876 F.2d 657, 659 (8th Cir.1989) (business motive is irrelevant after Arkansas Best), cert. denied, 494 U.S. 1006, 110 S.Ct. 1301, 108 L.Ed.2d 478 (1990). Dial argues that the adoption of a narrow view of “hedges” is unfairly retroactive, because he acted in reliance on th.e broader standard that he derives from Corn Products. There are formidable problems with Dial’s arguments against re-troactivity. Because the Arkansas Best Court applied the narrower view of hedges retroactively to the taxpayer in that case, it follows that its rule would apply retroactively here. See James B. Beam Distilling Co. v. Georgia, - U.S. -, 111 S.Ct. 2439, 2446, 115 L.Ed.2d 481 (1991) (“[T]he question is whether it is error to refuse to apply a rule of federal law retroactively after the case announcing the rule has already done so. We hold that it is”). We need not depend on retroactivity here, however. It makes little difference in Dial’s case whether a broad or narrow view is taken of the hedging exception. His transactions would not qualify for ordinary loss treatment even under an expansive reading of Corn Products. Dial did not deal in futures contracts to assure himself a supply of raw materials necessary to the functioning of his business. See, e.g., Agway, Inc. v. United States, 524 F.2d 1194, 1200-02, 207 Ct.Cl. 682 (1975); Booth Newspapers, Inc. v. United States, 303 F.2d 916, 920-22, 157 Ct.Cl. 886 (1962) (and cases cited therein); Mansfield Journal Co. v. Commissioner, 274 F.2d 284, 286 (6th Cir.1960); see also Hollywood Baseball Association v. Commissioner, 423 F.2d 494, 500-03 (9th Cir.), cert. denied, 400 U.S. 848, 91 S.Ct. 35, 27 L.Ed.2d 85 (1970). Nor did he buy into his futures contracts to protect himself against market fluctuations in the price of a commodity integral to his ordinary business. See, e.g., Wool Distributing Corp. v. Commissioner, 34 T.C. 323, 331-33 (1960). On the contrary, he purchased or sold his contracts primarily for the purpose of making profits from the trading. The contracts accordingly were capital assets even under a broad reading of Corn Products. See, e.g., Day v. U.S., 734 F.2d 375, 376-77 (8th Cir.1984); United States v. Rogers, 286 F.2d 277, 280-82 (6th Cir.), cert. denied, 366 U.S. 951, 81 S.Ct. 1902, 6 L.Ed.2d 1243 (1961); see also Faroll v. Jarecki, 231 F.2d 281, 288 (7th Cir.), cert. denied, 352 U.S. 830, 77 S.Ct. 45, 1 L.Ed.2d 51 (1956). Dial’s argument based on Corn Products and its progeny therefore fails. As an alternative, Dial suggests that Treasury bill futures should be included in a broad reading of former section 1221(5), the exception from capital-asset treatment for any “obligation of the United States.” That exception was repealed by the Economic Recovery Tax Act of 1981, Pub.L. No. 97-34, Sec. 505(a), 95 Stat. 331, but it was in effect during the tax years in dispute here. Dial’s argument is similar to that raised by the taxpayer in Moody v. Commissioner, 49 T.C.M. (CCH) 514 (1985). The Tax Court responded to that contention as follows: “Section 1221(5) deals with Treasury bills — the asset itself — and not with Treasury bill futures. When an investor purchases a Treasury bill future, he is trading in contracts, not in the underlying asset.” Id. The court also found no indication in the legislative history that Congress intended to except futures contracts along with Treasury bills from the definition of “capital assets.” Id. at 516. We agree with the Tax Court’s interpretation of former section 1221(5). Dial argues that the 1981 repeal of the Treasury bill exception previously embodied in section 1221(5) supports his position that his futures transactions caused ordinary loss. He points out that Congress repealed the former section 1221(5) to eliminate ordinary loss treatment arising from “tax straddles” involving Treasury bill futures contracts, and that the repeal indicates that Congress believed that such treatment was permissible before 1981. The problem with Dial’s argument is that his transactions did not constitute the kind of “tax straddle” that Congress was targeting when it repealed the exception for Treasury bills. The tax shelter that Congress was attempting to eliminate occurred when a taxpayer holding offsetting Treasury bill futures contracts would take delivery of the Treasury bill on the loss contract, and would sell the underlying bill and take an ordinary loss. The taxpayer would then, usually in the following year, sell the gain futures contract, taking a short-term capital gain. See S.Rep. 144, 97th Cong. 1st Sess. 165-67, reprinted in 2 1981 U.S.Code Cong. & Admin.News 105, 262-64. Even if we assume, without deciding, that such tax straddles were permissible before 1981, Dial did not engage in this type of transaction. He never took delivery of a Treasury bill and sold it at a loss. Yet it is the Treasury bill itself, as an obligation of the United States, that was excepted from the definition of capital asset by former section 1221(5). Dial bought and sold only Treasury bill futures, and they met section 1221’s definition of capital assets without qualifying for any of the exceptions to that definition. We conclude, therefore, that the district court did not err in deciding that Dial’s losses from futures transactions in Treasury bills created capital losses. Dial’s Statutory and Constitutional Procedural Contentions Dial argues that the IRS and the Tax Court made a number of procedural errors while disposing of this case. We address them individually. A.Commissioner’s Failure to Notify Dial of Trial Location Dial claims that the Commissioner failed to notify him of a change in the hearing location from Albuquerque, New Mexico to Seattle, Washington. This claim is frivolous. Even if the Commissioner has such a duty, the Tax Court disposed of the case by summary judgment. Dial was not prejudiced by any failure on the part of the Commissioner to notify him of the hearing location. Further, Dial admits that he received notice from the Tax Court that the hearing would be held in Seattle. Dial may be referring to the Washington, D.C. hearing on the Commissioner’s summary judgment motion. Tax Court Rule 50(b)(2) indicates that summary judgment motion hearings “normally will be held in Washington, D.C.” Dial did not request that the hearing be relocated and he was given an opportunity to oppose the summary judgment motion in writing. B. Commissioner’s Failure to Consult with Dial Dial asserts that the Commissioner violated Tax Court Rule 70(a) by failing to “consult and communicate” with him prior to filing for summary judgment. This claim is also meritless. Rule 70(a) deals exclusively with discovery: “the Court expects the parties to attempt to attain the objectives of discovery through informal consultation or communication before utilizing the discovery procedures provided in these Rules.” (Emphasis added). The Commissioner points out that he never engaged in discovery. Rule 70(a) did not apply here. C. Tax Court Treating Letters as Motions and then Denying Dial’s Subsequent Motion to Vacate Dial complains that the Tax Court treated two of his letters as a motion to vacate and a motion for reconsideration. The court gave a liberal interpretation to these letters in recognition of Dial’s status as a pro se litigant, see Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.1987), and clearly did so to Dial’s benefit. The court granted the motion to vacate to permit consideration of Dial’s opposition to the Commissioner’s motion for summary judgment. The court then considered Dial’s arguments and modified its opinion to reflect that consideration and provide a response. Dial also asserts that the Tax Court erred by denying his subsequent motion to vacate. Although this motion was more extensive than Dial’s memorandum in opposition to summary judgment, it did nothing more than restate Dial’s arguments at greater length. The Tax Court considered and addressed each argument raised in the motion. The Tax Court acted within its discretion in denying Dial’s second motion to vacate. D. Laches Dial contends that the Commissioner and the Tax Court unfairly delayed disposition of his case. He has not shown, however, any reason why the delay should be cause for reversal. No statute of limitation was violated, and laches is not a defense to the United States’ enforcement of tax claims. United States v. First National Bank of Circle, 652 F.2d 882, 890 (9th Cir.1981). E. IRS’s Failure to Serve Dial with Summary Judgment Motion Dial asserted in his opening brief that he did not receive a copy of the Commissioner’s motion for summary judgment until three years after its filing. Dial conceded in his reply brief, however, that he received the Commissioner’s Memorandum of Law in Support of Respondent’s Motion for Summary Judgment before preparing and filing his opposition to the Commissioner’s summary judgment motion. Any error in failing to serve Dial with the actual motion was harmless. Tax Court Rule 160. In sum, we conclude that Dial’s procedural rights were not violated. CONCLUSION The judgment of the Tax Court is AFFIRMED. . Elizabeth Dial is also a party to this matter because she filed joint returns with Don Dial. . Section 1221 defines a "capital asset” as "property held by the taxpayer.” As it read in 1977 through 1979, subsection 1221(5) excluded from the definition of "capital assets" any "obligation of the United States or any of its possessions ... issued ... on a discount basis and payable without interest at a fixed maturity date not exceeding one year from the date of issue.” This exception was repealed by the Economic Recovery Tax Act of 1981, Pub.L. No. 97-34, § 505(a), 95 Stat. 331. . The Tax Court considered the "motion” as a Rule 50(c) statement. Tax Court Rule 50(c) states: “If a motion is noticed for hearing, a party to the motion may, prior to or at the time for such hearing, submit a written statement of his position together with any supporting documents. Such statement may be submitted in lieu of or in addition to attendance at the hearing." . "Those who deal in 'futures’ are divided into three classes: first, those who use them to hedge, i.e. to insure themselves against loss by unfavorable changes in price at the time of actual delivery of what they have to sell or buy in their business; second, legitimate capitalists who, exercising their judgment as to the conditions, purchase or sell for future delivery with a view to profit based on the law of supply and demand; and third, gamblers or irresponsible speculators who buy or sell as upon the turn of a card.” New York Coffee, 263 U.S. at 619, 44 S.Ct. at 227. . The exception for "hedging transactions” was originally an administrative and judicial creation; however, Congress subsequently provided explicit exceptions from capital gain or loss treatment for hedging transactions in 26 U.S.C. § 1233(g) and 26 U.S.C. § 1256(e). . Capital gains treatment for post-1981 futures transactions is now governed by section 1256(a), with the exception provided by subsection 1256(e) for hedging transactions. . Dial also complains of the Tax Court’s initial failure to consider his response to the motion for summary judgment. Because the Tax Court acknowledged its failure to consider Dial’s opposition to the Commissioner’s motion for summary judgment and remedied its error by granting Dial’s motion to vacate, this claim is frivolous. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
songer_respond1_3_3	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Your task is to determine which specific federal government agency best describes this litigant. UNITED STATES of America, Plaintiff, Appellee, v. POLE NO. 3172, HOPKINTON, etc., Defendant, Appellee. Appeal of Alice GAZDA, Ida Ambrosio and Charles Fogarty, Claimants. No. 87-1600. United States Court of Appeals, First Circuit. Argued April 8, 1988. Decided July 29, 1988. John F. Cicilline, Providence, R.I., for claimants, appellants. Michael P. Iannotti, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief for plaintiff, appellee U.S. Before BOWNES, BREYER and TORRUELLA, Circuit Judges. TORRUELLA, Circuit Judge. In this case the defendant is a piece of real estate, while the real party in interest, Charles Fogarty, has disappeared, and his mother and aunt, who have been found by a jury to have no interest in the defendant, are prosecuting Fogarty’s case in his absence. On May 30, 1986, the government filed a complaint against the named property, seeking to forfeit the same on the basis that it was purchased with the proceeds of drug trafficking. 21 U.S.C. § 881(a)(6). The record owner of the property is Fogarty, but the other two claimants, Ida Ambro-sio and Alice Gazda, argued that they provided the money for its purchase pursuant to a family joint venture. Fogarty, through a power of attorney he gave his mother (Gazda), appeals from an order of the district court granting the government’s motion for summary judgment against him. Gazda and Ambrosio, on their own behalf, appeal after a jury found that they did not have an ownership interest in the property. The issues raised on appeal are several. All three appellants argue that the government’s complaint was inadequate as a matter of law, for lack of particularity. Fogarty challenges the dismissal of his claim both as a result of the application of the fugitive from justice doctrine to this case, see Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970), and as a Rule 37(d) sanction for failure to comply with a deposition subpoena. Finally, Gazda and Ambrosio assert that the district court improperly limited the issues presented to the jury. After careful consideration of these issues we reverse and remand the claims for further proceedings. I. The Adequacy of the Complaint The threshold issue concerns the adequacy of the complaint in terms of particularity. Forfeiture complaints are governed by the Supplemental Rules for Certain Admiralty and Maritime Claims. See 21 U.S.C. § 881(b). Supplemental Rule E(2)(a) requires that “the complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.” As the Eleventh Circuit has stated, “a section 881(a) forfeiture complaint must allege sufficient facts to provide a reasonable belief that the property is subject to forfeiture.” United States v. $38,000 in United States Currency, 816 F.2d 1538, 1548 (11th Cir.1987). See also United States v. $39,000 in Canadian Currency, 801 F.2d 1210, 1219 (10th Cir.1986) (“specific facts sufficient to support an inference that the property is subject to forfeiture... ”). The peculiar stringency of the particularity requirement in these cases is based on a concern for due process which arises by reason of the “drastic nature” of these remedies. See $39,000 in Canadian Currency, at 1217-18, and cases cited therein. The requirement is not merely a procedural technicality, but a way of ensuring that the government does not seize and hold, for a substantial period of time, property to which, in reality, it has no legitimate claim. The failure to meet the standard set forth above requires dismissal of the complaint, albeit without prejudice. See $38,000, 816 F.2d at 1549; $39,000, 801 F.2d at 1222. There is no question that the complaint in this case fails to meet the standard. The government merely described the property, and, parroting the language of the statute, stated that it was forfeitable as proceeds of a drug transaction. The government, in effect, provided no facts whatsoever to support its claim. The government argues, however, that dismissal is inappropriate under the facts of this case. The government seized the property pursuant to a seizure warrant issued by a magistrate. The magistrate found probable cause to seize the property on the basis of an affidavit, signed by Special Agent McCarthy and filed by the federal agents. The government argues that (a) due process concerns are allayed by the magistrate’s determination of probable cause, and (b) the affidavit should be deemed incorporated by reference into the complaint, to supply the requisite particularity, because the claimants were on notice that it existed. We reject both arguments. As to the due process problems, the affidavit upon which the probable cause determination was based does little to set us at ease. If anything, it provides a striking illustration of the need to strictly enforce the requirements of Rule E(6). The affidavit was described by the district court here in less than complimentary terms: “even a cursory examination... reveals it to be riddled with hearsay on virtually all its constitutive assertions.” The fact that parts of the affidavit consist of third-hand allegations that Fogarty was arrested in connection with an unsuccessful drug run in 1978, although charges against him were subsequently dropped, makes the affidavit even less reassuring. While a probable cause determination may be based on otherwise inadmissible evidence, the evidence must still be found reliable. United States v. $250,000 in United States Currency, 808 F.2d 895, 899 (1st Cir.1987). In this case, the district court made no such determination. In addition, the probable cause determination of the magistrate and that in the complaint address two different questions: the first, whether the government has probable cause to hold the property until it can file a complaint against it, includes considerations of the need to protect the government’s interest, and comes at an earlier stage in the proceedings; the second, whether the facts in the government’s possession support an inference that the property is subject to forfeiture, must be more narrowly tailored to precisely identify the portion of the property the government can keep. We cannot say, therefore, that this affidavit alone provides all the due process to which Fogarty is entitled. The second argument also meets insurmountable obstacles. Even taking its allegations at face value, the affidavit itself falls far short of supplying facts sufficient to support a belief that the entire property is forfeitable. The very earliest indication of Fogarty’s involvement with drugs is his arrest, described above, for an operation which, since it was unsuccessful, could not have generated any revenue. Furthermore, it took place two years after the purchase of the property. The property was purchased with a downpayment constituting 20.8% of its value. Since that 20.8% interest was acquired two years before the earliest indication of drug activity there is absolutely no reason to believe it is forfei-table. The government, however, tells us the property is forfeitable in any event because Fogarty has continued making mortgage payments over periods of time for which there are indications of drug dealing. We agree that the interest acquired as a result of mortgage payments made with the proceeds of drug transactions should be forfei-table. We do not believe, however, that forfeitability spreads like a disease from one infected mortgage payment to the entire interest in the property acquired prior to the payment. After all, only the actual proceeds of drug transactions are forfeita-ble. Unless section 881(a)(6) deprives persons accused of dealing drugs of the right to own any property, the existence of an undivided interest in a felon’s property which constitutes proceeds cannot mean that his entire property is proceeds. It appears, therefore, that the government may have an interest equal only to the portion of the property acquired by Fogarty as a result of mortgage payments (if, of course, the government can demonstrate probable cause to believe those payments were made with proceeds of drug transactions). In consequence, at the pleadings stage, the government must allege facts from which one could infer that the payments claimed to be proceeds actually were tainted; the fact finder can then later determine the percentage interest acquired as a result of tainted payments. The McCarthy affidavit fails to allege the requisite facts. We find it completely devoid of any allegations of lucrative drug dealing until July 14, 1981. On that date an anonymous “reliable informant” stated that Fogarty “travelled from Rhode Island to Miami, Florida on a weekly basis to purchase not less than a kilogram of cocaine.” Only sheer speculation could provide an earlier starting date for this activity. Further information from anonymous tipsters, however, indicates Fogarty may have been profiting from the sale of cocaine on February 17, 1982, and September 19, 1983. These three allegations of ongoing cocaine dealing, coupled with the lack of legitimate income, may well support a reasonable belief that the government could demonstrate probable cause for mortgage payments made between July 14, 1981, and September 19, 1983 or even thereafter, given the profits to be had from such extensive dealing. It also appears, however, from documents in the record, that Alice Gazda took over responsibility for the mortgage payments in 1986. Appendix 8, at 30. The government has not argued that her income is the result of drug transactions, so, unless it has more facts that it does not disclose in the affidavit, any interest acquired during and after 1986 is also not forfeitable. Even taking the affidavit as fully incorporated into the complaint, therefore, it appears that the government only has a facially valid claim to a proportion of the property equal to the percentage of principal paid on the mortgage from July 14, 1981 to 1986, when Gazda began making the payments. To recapitulate: the complaint itself is patently inadequate, but the government argues that we should consider the affidavit as part of the complaint, because the claimants knew or should have known its contents; and it argues that incorporating the contents of the affidavit into the complaint would bring the complaint into compliance with Rule E(2). We find, however, that this particular affidavit is inadequate to meet Rule E(2) requirements as to the whole property. In addition, we reject a rule that would require district courts generally to look at the knowledge of the claimants in determining the sufficiency of a forfeiture complaint. It is hardly a heavy burden to impose on the government the requirement that it express in the complaint the facts which it has already disclosed to the claimants. Nor can the government claim to be surprised by this requirement: Rule E(2) leaves little room to doubt that a higher than normal standard of particularity is in order, and several courts have emphasized the need for particularity in the complaint itself. See, e.g., $38,000 in United States Currency, 816 F.2d at 1547-49; $39,000 in Canadian Currency, 801 F.2d at 1219; United States v. Certain Real Estate Property Located at 4880 S.E. Dixie Highway, 612 F.Supp. 1492, 1498 (S.D.Fla.1985). Furthermore, this case demonstrates that the district court must insist on knowing the factual grounds of the government’s claim. Here, the United States was given full title to a parcel of land that was purchased two years before the forfeiture statute was even passed, two years before any indication of involvement with drugs, and five years before the date on which the government first shows the owner profiting from a transaction in drugs. Such a result could only have come about because the government was not forced to clearly articulate in its complaint the facts on which the seizure was premised. The district court therefore should have dismissed the complaint for lack of particularity. Nothing in this opinion, of course, precludes the government from refiling an amended complaint. Ordinarily, our discussion would end here, since dismissal of the complaint voids all subsequent proceedings based on that complaint. However, two issues raised by Fogarty in his appeal are likely to recur on remand. These issues concern the apparent dismissal of Fogarty’s claim on alternate grounds: as a Rule 37 sanction for failing to appear at a scheduled deposition; and pursuant to the fugitive from justice doctrine established in Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed. 2d 586 (1970). We find that neither of these grounds justified dismissal of his complaint. II. Rule 37 Sanctions Federal Rule of Civil Procedure 37 provides that whatever sanctions are “just,” including dismissal, may be applied against a party who fails to appear at his own deposition after being served with proper notice. The decision to sanction and the choice of the sanction lie in the discretion of the district judge. National Hock ey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976). Several considerations go into the choice of a sanction. These include the willfulness or bad faith of the non-complying party, see National Hockey League, 427 U.S. at 640, 96 S.Ct. at 2779, and the prejudice to the opposing party resulting from the failure to appear. See Batson v. Neal Spelce Associates, Inc., 765 F.2d 511, 514 (5th Cir.1985). See also Societe Internationale v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1096, 2 L.Ed.2d 1255 (Rule 37 does not authorize dismissal in absence of “wilfulness, bad faith, or any fault of petitioner”). These two factors appear to have been the determinative ones in the lower court’s decision against Fogarty: Fogarty, having invoked the processes of the court to prosecute his claim to the real estate, cannot simultaneously ignore those processes to deprive his foes of customary pretrial discovery. To hold otherwise would be to allow a real party in interest unfairly to confound his litigation adversaries by wrapping himself in the protective cocoon of a power of attorney. The government urges us to find willfulness “in that he [Fogarty] deliberately absented himself from this jurisdiction without leaving any method for one holding the power of attorney to contact him. Obviously, Fogarty was attempting to escape from his discovery obligations as well as the criminal charges.” It also claims that Fogarty’s failure to appear at that deposition caused “extreme prejudice” to its case. Neither of these assertions finds any support in the record. Fogarty left the jurisdiction — leaving his mother the power of attorney — long before the government began this action. There is no indication that he is still alive, let alone that he knows anything at all about this litigation. Under these circumstances we cannot see how the court could find that he was willfully refusing to appear. The cases cited by the government are not to the contrary. In each of these cases, the attorney upon whom notice was served was in contact with his client, or it was clear that the client himself decided, after learning of his discovery obligations, not to appear. See United States v. $239,500 in U.S. Currency, 764 F.2d 771 (11th Cir.1985); United States v. One Lot of U.S. Currency totalling $506,537.00, 628 F.Supp. 1473 (S.D.Fla.1986). At least insofar as the failure to appear for the deposition is concerned, there is no evidence of willfulness. We also fail to see any evidence of prejudice to the government. The allocation of the burden of proof itself in forfeiture cases goes a long way towards protecting the government. The government must initially show that it has probable cause to believe that the defendant property has been purchased with proceeds of drug transactions. Once probable cause is established, the burden passes to the claimant, who must show by a preponderance of the evidence that the property was legitimately acquired. See United States v. $250,000 in United States Currency, 808 F.2d 895, 897 (1st Cir.1987). The government’s burden is not overly weighty: it need only demonstrate — even by otherwise inadmissible evidence, id. at 899 — that it reasonably believes the property is forfeita-ble, and that its belief is supported by more than mere suspicion, although less than prima facie proof. See, id. at 897, and cases cited therein. The government is not even required to link the alleged proceeds to any particular drug transaction. Id. at 899-900. What, then, was the government seeking to discover by deposing Fogarty? In the first place, we are not aware of any showing by the government of a need for this deposition. Furthermore, if we were to speculate, we would note that it already knew that Fogarty had claimed little or no legitimate income since 1976. Any evidence of undeclared non-drug income would only contribute to Fogarty’s refutation of the government’s initial case and the satisfaction of his own burden of proof. On the other hand, any information which could be supplied by Fogarty connecting him with a drug transaction the government did not yet know about is obviously protected by the Fifth Amendment privilege against self-incrimination, especially in light of the indictment pending in Florida. At most, the government may have needed information about alleged legitimate earnings in order to prepare to rebut Fogarty’s attempts to prove the property was not purchased with drug proceeds. In light of Fogarty’s absence, however, that need does not appear too pressing. In any event, the court could have denied Fogarty that advantage by means much less drastic than outright dismissal. It could have, for example, precluded Fogarty from using at trial any information he should have produced at that deposition, perhaps even allowing the government to prevail after a showing of probable cause. The most drastic of sanctions must be available to the district court to serve as a deterrent for future offenders, see National Hockey League, 427 U.S. at 643, 96 S.Ct. at 2781; and the question “is not whether we would have imposed a more lenient penalty had we been sitting in the trial judge’s place.” Spiller v. U.S.V. Laboratories, Inc., 842 F.2d 535, 537 (1st Cir.1988) (emphasis supplied). However, we still consider in reviewing the district court’s exercise of its discretion “whether the district court could have fashioned an equally effective but less drastic remedy.” Griffin v. Aluminum Company of America, 564 F.2d 1171, 1172 (5th Cir.1977). The reason for this is, as we noted in the Rule 41 context, that “unconditional dismissal with prejudice is a ‘harsh’ and ‘severe’ sanction that runs counter to our ‘strong policy favoring disposition of cases on the merits.’ ” Enlace Mercantil Internacional, Inc. v. Senior Industries, 848 F.2d 315, 317 (1st Cir.1988) (footnotes omitted). While Rule 37 and Rule 41 address significantly different problems, the same considerations are at work whenever a sanction precludes disposition of a case on the merits. We conclude, therefore, that dismissal of Fogarty’s claim as a sanction for failing to appear at a deposition was an abuse of discretion, under the facts of this case. We are troubled by the government’s disingenuous attempt to rid itself of even the light burden of showing probable cause by simply noticing a party for a deposition, when it knows that party probably will not appear, and when it has little if any need for the deposition. We refuse to condone a rule that essentially allows the government to go through the missing persons list and seize all the property of everyone who fails to respond to a forfeiture complaint, without even showing the court that it reasonably believes the property is forfeitable as Congress intended it to do. III. The Fugitive from Justice Doctrine The alternative basis on which the district court granted the government’s motion to dismiss also cannot stand. The fugitive from justice doctrine simply cannot be extended far enough to justify the seizure of this property. One of the main considerations in the fugitive from justice cases is the fact that the fugitive is trying, either successfully or unsuccessfully, to reap the benefit of the judicial process without subjecting himself to an adverse determination. See, e.g., United States v. Puzzanghera, 820 F.2d 25, 27 (1st Cir.1987); United States v. Gordon, 538 F.2d 914, 915 (1st Cir.1976). That concern does not arise here. Fogarty is not appealing a conviction or seeking habeas relief. On the contrary, the government seized his property and will hold it forfeit if Fogarty does not respond. As we see below, while technically he is a claimant, in reality Fogarty’s claim is more in the nature of a response. The Supreme Court recognized this possibility in Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). There, the Court reversed the imposition of sanctions on plaintiff by the district court for failing to comply with a discovery order in a case in which it was trying to recover assets previously seized by the government. The Supreme Court said “petitioner, though east in the role of plaintiff, cannot be deemed to be in the customary role of a party invoking the aid of a court to vindicate rights asserted against another. Rather petitioner’s position is more analogous to that of a defendant, for it belatedly challenges the government’s action by now protesting against a seizure and seeking the recovery of assets -” Id. at 210 (emphasis in original). These observations apply equally well to Fogarty in this case. We thus disagree with the district court’s determination that Fogarty has “invoked the processes of this court.” Neither can Fogarty avoid the “rigors of an adverse determination” by failing to appear. Again, Fogarty’s situation is similar to the plaintiff’s in Societe Internationale. The allocation of the burden of proof, and, as a result, the effect of Fogarty’s noncompliance (here non-appearance) on the trial is the same. The Court in Societe Internationale recognized that the petitioner bore the ultimate burden of proof, and that by not producing the documents at issue, it was simply impairing its own ability to carry that burden. Id. at 212-13, 78 S.Ct. at 1095-96. In the same way here, if Fogarty does not appear to prove an alternate source of income once the government establishes probable cause, he stands to lose his property. Fogarty, therefore, would fully feel the rigors of an adverse determination, and can do nothing to avoid such a result without submitting to the court’s jurisdiction. Furthermore, while we have previously extended the application of the doctrine beyond an appeal in a criminal case, to a civil case, see United States, ex rel. Bailey v. U.S.C.O. of Provost Marshal, U.S. Army, 496 F.2d 324, 326 (1st Cir.1974), it is clear that this must be a civil case closely related to the criminal matter from which the applicant is a fugitive. See United States v. $129,374 in United States Currency, 769 F.2d 583, 588 (9th Cir.1985) (“clear... that Lewis’ criminal conviction and the property involved in this civil forfeiture proceeding are integrally related parts of the same unlawful drug dealing scheme”); Schuster v. United States, 765 F.2d 1047, 1049 (11th Cir.1985) (“no question that the civil case here at issue... is related to the criminal case”); United States v. $45,940 in United States Currency, 739 F.2d 792 (2d Cir.1984) (criminal prosecution was for illegally importing the money subject to forfeiture in civil case); Conforte v. C.I.R., 692 F.2d 587, 590 (9th Cir.1982) (criminal conviction and tax court appeal “are each related components of a general tax evasion scheme.”)- The two proceedings here — the civil forfeiture and the Florida criminal indictment — may very well be related. At this point, however, we can only speculate as to the contents of that indictment. The fact that the property was purchased eight years before the indictment was obtained only suggests that this action cannot be based solely on the facts alleged in that indictment. Without more, we cannot conclude that Fogarty’s status as a fugitive is sufficiently related to the civil forfeiture to deprive him of the right to process of any sort before his property is taken from him. Perhaps most importantly, there is no evidence that Fogarty had notice of this proceeding, and elected not to defend it. Compare, United States v. $129,374, 769 F.2d at 589; United States v. $45,940 in U.S. Currency, 739 F.2d 792 (2d Cir.1984). The record here does not show that Fogarty is acting willfully and hiding from the court while asking it to resolve his claims. True, he has not appeared to answer the indictment in the Southern District of Florida, but there is no evidence that he is purposely avoiding the Rhode Island District court or flaunting its processes. The core concept in the fugitive from justice doctrine seems to be that the courts need not act on behalf of an individual who has attempted to bring about the same result by the “self-help” method of escaping from justice. That characterization simply does not fit Fogarty’s actions. Fogarty should be treated, therefore, like any other absent civil litigant, and any misconduct or prejudice to the opposing party should be redressed subject to the strictures of the rules set up for that purpose. As we have seen, Rule 37 does not support the drastic sanction of dismissal, and we see no other reason under the facts of this case to relieve the government of even its minimal burden of showing probable cause. The case is reversed and remanded for proceedings consistent with this opinion. The district court may dismiss the government’s complaint with leave to amend, if it feels such action is proper. APPENDIX AFFIDAVIT I,DANIEL J. McCarthy, being duly sworn deposes and says: 1. I am a Special Agent of the Drug Enforcement Administration, United States Department of Justice, and have been so employed for the past twenty years. I am presently assigned to the Providence Office of the Drug Enforcement Administration (DEA). 2. This affidavit is submitted in support of an application to seize property in Hop-kinton, Rhode Island namely one parcel of real property with buildings, appurtenances, and improvements, known as Plat # 20, Lots 18,18B, and 19 located at Pole # 3172, Dye Hill Road, in the Town of Hopkinton, Rhode Island owned by Charles E. Fogarty hereinafter collectively referred to as “The Property” and more fully described as follows: That certain lot or parcel of land with any improvements thereon, situated in the northerly side of Dye Hill Road and the easterly side of Woody Hill Road, in the Town of Hopkinton, County of Washington, State of Rhode Island.... $ * * * ‡ * 3. Said “Property” is the proceeds of the exchange of controlled substances in violation of Title 21, United States Code, Section 841(a)(1) and is subject, therefore, to seizure and forfeiture under Title 21, United States Code, Section 881(a)(6). 4. I have reviewed the deeds for the “Property” and Special Agent Gilbert Howard has spoken to the previous owner Helen M. Dinwoodie. Howard advises me that Dinwoodie advised him that Fogarty purchased the “Property” on October 29, 1976 for $120,000. A cashier’s check in the amount of $25,000 was given to her by Fogarty with the rest of the purchase price covered by mortgage. A new deed was written and filed to correct defects on November 30, 1984. I am advised by Assistant U.S. Attorney James H. Leavey that he has reviewed a civil tax audit of Fogarty for the years 1974, 1975, 1976, and 1977. Fogarty reported an income of only $7,956.25 in 1974; $9,380.88 in 1975; $12,265.89 in 1976; and $9,974.16 in 1977. And yet, defendant was able to purchase the “Property” as noted above. Furthermore the mortgages on said “Property” have been paid from 1976 to present without any apparent legitimate occupation of Fogarty despite an intensive investigation. Fogarty holds all offices of Dutch Cove Development Corporation which was incorporated in June 1972. On May 7, 1981 Fogarty pleaded guilty to False Statement on a Tax Return on behalf of the corporation in United States District Court for the District of Rhode Island. I have checked with the Rhode Island Secretary of State and am advised that the mailing address of Dutch Cove Development Corporation is RR2, Box 248, Boston Neck Road, Narragansett, Rhode Island. I am advised by Geraldine Steinmetz of the United States Postal Inspectors office that she spoke with the postal carrier for Boston Neck Road on May 27, 1986. Said postal carrier told her that there is no such address. He did say Charles Fogarty had a box 24A, Boston Neck Road many years ago. I am also advised by New England Telephone company that it has no listing for Dutch Cove Development Corporation. 5. I am advised by Special Agent Gordon J. Rayner (Rayner) of the Savannah, Georgia DEA office that he has been advised by the Georgia Bureau of Investigation (GBI) that on October 27, 1978 at a farm in Wrens, Georgia, GBI agents arrested Fogarty and Neil P. Coady (Coady) immediately after they had flown 3,500 pounds of marijuana from Columbia to Georgia. Rayner advises me that the charges were dismissed due to a defective search warrant. 6. On or about July 14, 1981, I received information from a reliable informant, hereinafter referred to Source # 1, (all informants mentioned in this affidavit shall be referred to in the masculine gender to protect his/her identity) that Fogarty trav-elled from Rhode Island to Miami, Florida on a weekly basis to purchase not less than a kilogram of cocaine. Information provided by Source # 1 to DEA has led to numerous multi-kilogram seizures of cocaine and information provided by him has never been found to be false by me or other agents to my knowledge. Source # 1 stated that Fogarty conceals the cocaine in plastic packets inside cowboy boots that he wears and returns to Green Airport in Warwick, Rhode Island or to Logan Airport in Boston, Massachusetts usually on a nonstop flight. Source # 1 further said that Fogarty has several customers in the State of Rhode who purchase all the cocaine he has within twelve to twenty-four hours of Fogarty’s return. 7. I was advised on February 17, 1982 by Special Agent Joseph F. Ritucci (Ritucci) that he has a confidential informant hereinafter referred to as Source # 2. Source # 2 advised Ritucci that Fogarty and Coady utilized North Central Airport in Lincoln, Rhode Island to smuggle drugs. He further stated that Fogarty recently purchased a Cessna 310 which he converted in order to fly to and from Columbia. 8. On August 10, 1984 Fogarty, along with Coady and fifteen others were indicted in the Southern District of Florida on a four count indictment. Said indictment charged Fogarty with two counts of conspiracy to import into the United States in excess of five hundred pounds of cocaine and two counts of possession with intent to distribute in excess of five hundred pounds of cocaine. Source # 1 advised me that Fogarty’s role in the conspiracy was to fly the cocaine from Columbia. Fogarty is presently a fugitive on said indictment and despite an intensive search, his whereabouts are unknown. 9. On September 19, 1983 Coady sold Special Agent Richard Scovel (Scovel) of DEA four ounces of cocaine for $5,600. I was one of the surveillance agents during that transaction. Also present during the transaction was Source #1. I am advised by Source # 1 that Fogarty as well as a now deceased North Smithfield police officer who was also a defendant in the above-mentioned Florida indictment played a peripheral role in the four ounce sale to Scov-el. 10. On April 13, 1985 I conducted a surveillance of the wedding of Fogarty in Newport, Rhode Island. At said wedding I observed a vehicle registered to Michael Kelly of North Miami, Florida. This is a known alias of William McCann a co-defendant of Fogarty in the above-mentioned Florida indictment. I also observed at the said wedding vehicles registered to other major cocaine dealers from Connecticut. 11. I am advised by Special Deputy U.S. Marshal Lisa Silvestro that she has periodically been contacted by an anonymous individual hereinafter referred to as Source # 3. Source # 3 is extremely knowledgeable concerning the drug operation headed by Coady and Fogarty. Much of his information has been corroborated by other informants and surveillances. In January, 1986 Source # 3 advised Silvestro that Fo-garty was then in Florida negotiating a cocaine transaction. 12. Fogarty has been under investigation with varying intensity by DEA since at least 1978. During that period of time I have been unable to discover any legitimate source of income for him. He has been listed as an officer and/or shareholder of several corporations. Only one corporation known to me has performed any legitimate work. That corporation is the Dutch Cove Development Corporation. As noted in paragraph 4 above, it has apparently been out of business for many years and Fogarty’s reported income from 1974 through 1977 does not justify his purchase of the “Property”. 13. Fogarty although a fugitive is presently attempting to sell the “Property” for $550,000. His aunt, Ida Ambrosia, of South Kingston, Rhode Island apparently has the power of attorney to sell the “Property”. On May 1, 1986 I attempted to interview Ambrosia and upon identifying myself she slammed the door in my face. Despite having apparently no legitimate income, Fogarty has continued to made mortgage payments on the land from the time of its purchase up to the present time. WHEREFORE, there is probable cause to believe that the “Property” as more fully described above is the proceeds of violations of Title 21, United States Code, Sections 841(a)(1) and 846 and are therefore subject to seizure and forfeiture under Title 21, United States Code, Section 841(a)(6). (s) Daniel J. McCarthy daniel j. McCarthy Special Agent Drug Enforcement Administration . This last issue is meritless. The government conceded every relevant point concerning Gaz-da and Ambrosio’s claims, except for the existence of their ownership interest. The jury therefore was correctly instructed to decide only this one issue. . The operative paragraphs of the complaint, in their totality, stated: 6. That the defendant real property with buildings, appurtenances, and improvements is a proceed traceable to exchanges of controlled substances as within the meaning of 21 U.S.C. 881(a)(6). 7. That by reason of the foregoing, the defendant real property, with buildings, appurtenances, and improvements is forfeited to the United States pursuant to the provisions of 21 U.S.C. 881(a)(6). . The Affidavit is reproduced as an appendix to this opinion. . That information is readily available from the mortgage holders, who keep schedules of the percentage of the principal that is paid off with each remittance of the mortgagee. . There is also mentioned a 1984 indictment for a drug-related conspiracy. The allegations in that indictment may well provide specific facts to indicate a drug-related income for other periods of time, but the affidavit itself presents not an inkling of the time frame involved in those allegations or the extent of Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Which specific federal government agency best describes this litigant? A. United States - in corporate capacity (i.e., as representative of "the people") - in criminal cases B. United States - in corporate capacity - civil cases C. special wartime agency D. Other unlisted federal agency (includes the President of the US) E. Unclear or nature not ascertainable Answer:
songer_appel1_7_2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). UNITED STATES of America v. Joseph FLENORY, Appellant. No. 88-3817. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) May 18, 1989. Decided May 26, 1989. George E. Schumacher, Federal Public Defender, Pittsburgh, Pa., for appellant, Joseph Flenory. Charles D. Sheehy, Acting U.S. Atty., Bonnie R. Schlueter, Asst. U.S. Atty., Pittsburgh, Pa., for appellee, U.S. Before GIBBONS, Chief Judge, MANSMANN and ALDISERT, Circuit Judges. OPINION OF THE COURT GIBBONS, Chief Judge: Joseph Flenory appeals from an order denying a Fed.R.Crim.P. 35 motion. As a result of a plea bargain in 1976, he was sentenced to six years and nine months for violation of 21 U.S.C. § 841(a)(1), a sentence which included a three-year special parole term. He contends, and for purposes of this appeal we assume, that the federal sentence was to be concurrent with, and not exceeding, a state court sentence and that the purpose of the plea agreement was to avoid the risk of state incarceration because of his cooperation in an investigation. Flenory was released by the federal authorities in March of 1981. He was taken into state custody and served part of his 1976 state sentence. He was paroled by the state authorities, and he began serving his three-year federal parole term on January 14,1983. In 1984 he was charged with, and pleaded guilty to, indecent assault and theft by deception. The state court sentenced him to two one- to two-year concurrent terms on these charges. The state also charged Flenory with violation of his parole on the 1976 state sentence, and he was required to serve the remainder of that five- to ten-year term. The Federal Parole Commission revoked his parole on January 8, 1988. Having served all of his state sentence, he now faces an additional three years of federal time. This, he contends, violates the plea agreement made in 1976. The district court held that it lacked jurisdiction to entertain a Rule 35 motion because the 1976 sentence was not illegal, and thus the 120 day time limit in Rule 35(b) is applicable. Unquestionably the sentence imposed in 1976 was “legal” in the sense that it was within the statutory maximum, it did not violate double jeopardy, and it was not ambiguous or contradictory. See United States v. Katzin, 824 F.2d 234, 237 (3d Cir.1987). On the other hand, if it violated a plea agreement, it was illegal in the sense that a breach of a plea agreement is ground for the withdrawal of a guilty plea. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Since on this record we must assume such a breach, the sole question presented is whether Rule 35(a) is a source of authority to afford relief. The question is one of first impression in this court, although at least one other court has held that Rule 35(a) relief is not available for relief from breach of a plea agreement. See United States v. Warren, 610 F.2d 680, 684 (9th Cir.1980); United States v. Stevens, 548 F.2d 1360, 1362 (9th Cir.1977). It is, however, a question we do not answer today, because we decide this case on other grounds. Whether or not Rule 35 relief is available, it appears that a sentence imposed in violation of a plea bargain is one “imposed in violation of the Constitution or laws of the United States” within the meaning of 28 U.S.C. § 2255. The Rule 35 motion was addressed to the same court that has jurisdiction to entertain a section 2255 motion. The United States was informed of the grounds of the motion. It would elevate form over substance to hold that Flenory’s motion should be denied for lack of jurisdiction because he cited Rule 35 rather than section 2255. We hold, therefore, that the district court had jurisdiction to entertain Flenory’s contention that the parole feature of the 1976 sentence, if it permits incarceration after completion of his full state sentence, violated a plea bargain. The order appealed from will therefore be reversed, and the case remanded for further proceedings on the merits. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
songer_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". In re John HOUTMAN and Gladys Irene Houtman, Bankrupts. John HOUTMAN and Gladys Irene Houtman, Petitioners-Appellants, v. Edgar F. MANN and Edna M. Mann, Creditors-Appellees. No. 76-3611. United States Court of Appeals, Ninth Circuit. Jan. 25, 1978. Richard K. Park, Sacramento, Cal., for petitioners-appellants. James A. Thompson, Redwood City, Cal., for creditors-appellees. Before HUFSTEDLER and SNEED, Circuit Judges, and RENFREW, District Judge. Hon. Charles B. Renfrew, United States District Court Judge, for the Northern District of California, sitting by designation. This is an appeal from an order of the district court affirming a decision of the bankruptcy judge that a 1971 state court judgment for $55,000 against the appellants was nondischargeable in bankruptcy. The bankruptcy judge found that the judgment rested on a transaction “so tainted by fraud as to render it [the judgment] a nondischargeable obligation.” Presumably this meant that the judgment represented a “liability for obtaining money or property by false pretenses or false representations” and was therefore nondischargeable under § 17(a)(2) of the Bankruptcy Act. 11 U.S.C. § 35(a)(2). We affirm. I. Facts. The Manns, appellees and judgment creditors of the bankrupts, were awarded both compensatory and punitive damages in a suit brought against the Houtmans in the El Dorado County Superior Court in California in November, 1971. This judgment was awarded after a jury trial on a complaint alleging fraud and misrepresentation resulting from a three-party real estate transaction. On June 9, 1972 both Houtmans filed petitions for bankruptcy. Each listed the Manns in the proper schedule as unsecured creditors. On October 4, 1972, the Manns, pursuant to the bankruptcy rules then in effect, filed an application to determine whether their judgment debt was nondischargeable. On January 11, 1973, the bankruptcy judge held a hearing on this application, at which time he examined the complaint, the jury instructions and the judgment contained in the state court record but, although offered by the Manns, refused to consider the pretrial order and trial transcript. He also heard testimony from the appellants in which they denied the underlying transaction involved fraud. Thereafter, he orally announced that the debt was dischargeable. The Manns filed a notice of appeal which, at the suggestion of the bankruptcy judge, was withdrawn to permit him to reconsider the matter. On May 10, 1974, he issued new findings of fact and conclusions of law holding that the debt was nondischargeable because of fraud. It is these findings and conclusions that the district court affirmed. II. The Proper Role of State Court Proceedings. We begin by recognizing that we may not set aside the findings of fact of the bankruptcy judge which have been affirmed by the district court unless such findings are clearly erroneous. Coen v. Zick, 458 F.2d 326 (9th Cir. 1972). The appellants do not dispute this rule; their argument is that the bankruptcy judge improperly gave conclusive weight to the documents depicting the state court proceedings and refrained from exercising his exclusive jurisdiction to determine the dischargeability of debt as required by section 17(c)(2) of the Bankruptcy Act as amended in 1970. To support this contention appellants point to the bankruptcy judge’s oral order holding the debt dischargeable and his recantation, which appellants insist can only be explained by the bankruptcy judge believing that, under the authority of Coen v. Zick, supra, he was bound by the state court proceedings to find the debt not dis-chargeable. Were we to accept the view that the bankruptcy judge considered himself compelled by the state court documents presented to him to find the debt not dis-chargeable we would agree that the district court’s order would have to be reversed. The 1970 Amendments to the Bankruptcy Act imposed upon the bankruptcy courts the exclusive jurisdiction to determine dischargeability. As we read those Amendments there is no room for the application of the technical doctrine of collateral estoppel in determining the nondischargeability of debts described in section 17(a)(2), (4), and (8) of the Bankruptcy Act. This does not mean that the documents which officially enshrine the state court proceedings may not be considered by the bankruptcy judge as establishing the nondischargeability of a debt. What is required is that the bankruptcy court consider all relevant evidence, including the state court proceedings, that is offered by the parties, or requested by the court, and on the basis of that evidence determine the nondischargeability of judgment debts which the creditors contend are described in section 17(a)(2), (4), and (8). See In re Mountjoy, 368 F.Supp. 1087, 1096 (W.D.Mo.1973). Nor do we believe that Coen v. Zick, supra, is inconsistent with our position even though it dealt with a bankruptcy proceeding and a judgment debt originating prior to the 1970 Amendments. In that case both the bankrupt and the judgment creditor chose to rest their case on “the record of the proceedings in the state court, including the complaint, the amended answer, the instructions numbered 6 and 7 with respect to punitive damages and the amended judgment in favor of appellants awarding $5,100 as compensatory damages and the sum of $1,000 as punitive damages.” 458 F.2d at 329. Under these circumstances the court was quite justified in treating the above documents as true and looking only to them to determine whether the findings of the bankruptcy referee, as affirmed by the district court, were clearly erroneous. Should Coen v. Zick be regarded as holding more than this, its more expansive reading must be considered as qualified by the enactment of the 1970 Amendments. Returning to the facts of the case before us, we are convinced that the bankruptcy judge did not consider himself bound by the state court proceedings to find the Mann judgment debt nondischargeable. Although he should have accepted the offer of the pretrial order and trial transcript and might well have better articulated the basis of his findings, we hold that under the circumstances of this case, one in which oral testimony of bankrupts was heard, the following findings indicate that the bankruptcy judge did not consider himself bound by the state court proceedings; “4. That the Bankruptcy Court should consider the State Court proceedings resulting in a judgment based upon fraud to determine if the State Court has proceeded in such a manner and has found facts in its determination that would convince the Bankruptcy Court considering these facts from its exclusive view with relation to bankruptcy, that the transaction was so tainted by fraud as to render it a nondischargeable obligation; 5. The Court has reviewed the State Court record and finds that the evidence presented, if heard directly by it, would support the contention that the obligation is nondischargeable because of the findings of fraud.” These findings indicate that the bankruptcy judge evaluated the facts before him to determine nondischargeability and after such evaluation concluded that the judgment debt of the Mann’s was not discharge-able. We must determine not only that the bankruptcy judge applied the correct legal standard to the facts before him but also that his application was not clearly erroneous. We hold that his findings of fact were not clearly erroneous. A state court judgment based on fraud is sufficient to establish a prima facie case that it represents a debt nondischargeable under § 17(a)(2). As we have discussed, see pp. 653-654 supra, the bankrupt is entitled to rebut this prima facie case, but the conclusion that the Houtmans failed to do so is not clearly erroneous. In his testimony before the bankruptcy judge, Mr. Houtman admitted that his testimony there duplicated his testimony in state court, which was obviously disbelieved. His testimony that he lost in state court because his lawyer failed to prepare adequately for trial due to the lawyer’s confidence in a statute-of-limitations defense is conclusory, uncorroborated by his attorney, and belied by the bankrupts’ failure to introduce any new evidence before the bankruptcy judge. Under the circumstances, the judge was not required to find that the state court judgment was unreliable, and his finding of fact that the Houtmans’ “obligation is nondischargeable because of the finding of fraud” in state court is supported by the evidence. III. The Meaning of Scienter Under Section 17(a)(2). There remains but one possible error of law by the bankruptcy judge which we should consider. That is whether the type of fraud on which the judgment debt rests is that described in section 17(a)(2) of the Bankruptcy Act. We have adopted a five-part test for determining when a debt is nondischargeable under this provision. That test is: “(1) the debtor made the representations; (2) That at the time he knew they were false; (3) That he made them with the intention and purpose of deceiving the creditor; (4) that the creditor relied on such representations; (5) that the creditor sustained the alleged loss and damage as the proximate result of the representations having been made.” (Italics supplied). In re Taylor, 514 F.2d 1370, 1373 (9th Cir. 1975). The bankruptcy judge looked at the jury instructions given in the state court trial as indicative of the specific facts found by the jury. These instructions put all five issues specified in the Taylor test before the jury. However, the instructions given in the state case allowed the jury to convict if the representation was “known to be false or recklessly made without knowing whether it is true or false.” The bankruptcy judge accepted this as an appropriate formulation of the knowledge element, and, as indicated above, accepted “the contention that the obligation is nondischargeable because of the finding of fraud.” Therefore, we must decide whether the second element of the Taylor test can be satisfied only by actual knowledge or whether reckless disregard for the truth also satisfies this requirement. We hold that the latter is sufficient. This conclusion is suggested by the very case from which the five-part Taylor test was derived, Sweet v. Ritter Finance Company, 263 F.Supp. 540 (W.D.Va.1967). There the court actually applied a reckless disregard standard. An illiterate bankrupt was accused of making a false representation on the basis of a statement prepared by his wife which he signed. The court found that there was no evidence of recklessness in Sweet’s reliance on his wife. Id. at 544. The clear implication is that a showing of recklessness would have been sufficient to make the debt nondischargeable even if the bankrupt had had no actual knowledge of the falsity. The Supreme Court decision in Morimura, Arai & Company v. Taback, 279 U.S. 24, 49 S.Ct. 212, 73 L.Ed. 586 (1929) provides further support for our holding. In that case the Court held that “reckless indifference to the actual facts, without examining the available source of knowledge which lay at hand, and with no reasonable ground to believe that it was in fact correct” was sufficient to establish the knowledge element under a provision of the Bankruptcy Act then current which completely barred a discharge of all debts if the bankrupt had made a materially false statement in order to obtain property on credit. Id. at 33, 49 S.Ct. at 215. Since the 1960 amendment to the Bankruptcy Act, use of a materially false statement in order to obtain credit is no longer a complete bar to discharge for individual bankrupts, but is included in § 17(a)(2) along with false representations as one of the grounds which will render an individual debt nondischargeable. The close statutory relationship of these two concepts now suggests that a similar definition of knowledge would be appropriate. Further, a strict reading of the knowledge element of the false representation exception would have the incongruous effect of imposing a stricter standard for exempting a single debt from discharge than formerly was required to completely bar discharge of all debts. In addition, the scienter requirement in the tort of misrepresentation generally has been interpreted to include recklessness. See W. Prosser, Torts, § 701 (4th Ed. 1971). The reasons for inclusion, viz. the difficulty in distinguishing knowledge from reckless disregard, and to discourage the shunning of truth to preserve the defense of no scienter, are applicable with equal force in the bankruptcy context. Finally, there are dicta in other decisions of this circuit which suggest that our interpretation is proper. Matter of Nelson, 561 F.2d 1342 (1977) (“knew or should have known”); Wright v. Lubinko, 515 F.2d 260 (9th Cir. 1975) (“fraudulent intent or reckless disregard for the truth tantamount to wilful misrepresentation”). We recognize that exceptions to dischargeability are to be strictly construed Gleason v. Thaw, 236 U.S. 558, 35 S.Ct. 287, 59 L.Ed. 717 (1915). A canon of interpretation adjuring strictness is not, however, a justification for abandoning good sense. It makes good sense to hold that either actual knowledge of the falsity of a statement, or reckless disregard for its truth, satisfies the scienter requirement for nondischargeability of a debt under § 17(a)(2). We so hold. AFFIRMED. . This section now provides that “[a] creditor who contends that his debt is not discharged under clause (2), (4) or (8) of subdivision (a) of this section must file an application for a determination of dischargeability . . and, unless an application is timely filed, the debt shall be discharged.” (Emphasis added). By requiring action in the bankruptcy court to secure a determination of nondischargeability, this section effectively precludes any concurrent action by state courts. See 1A Collier on Bankruptcy fl 17.28A[3] (1976). The legislative history explicitly states that one of the objectives of the amendments was to put “the matter of dischargeability of [this] type of debt within the exclusive jurisdiction of the bankruptcy court.” H.Rep.No.91-1502, 91st Cong., 2d Sess. 2 (1970), U.S.Code Cong. & Admin.News 1970, p. 4156. . We acknowledge that a grant of exclusive jurisdiction to federal courts does not automatically preclude the application of the doctrine of collateral estoppel. Becher v. Contoure Laboratories, 279 U.S. 388, 49 S.Ct. 356, 73 L.Ed. 752 (1928); cf. Clark v. Watchie, 513 F.2d 994 (9th Cir.), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975). However, we believe that collateral estoppel is inappropriate when “a new determination is warranted by factors relating to the allocation of jurisdiction between [the two courts]." Restatement 2d of Judgments § 68.1(c) [Tent. Draft No. 4, 1977]; cf. Lyons v. Westinghouse Electric Corp., 222 F.2d 184 (2d Cir.), cert. denied, 350 U.S. 825, 76 S.Ct. 52, 100 L.Ed. 737 (1955) (refusal to give collateral estoppel effect to state court finding of no antitrust violation because of need for “an untrammeled jurisdiction of the federal courts.” Id. at 189). Congress, in enacting the 1970 Amendments to the Bankruptcy Act, felt that One of the strongest arguments in support of the bill is that, ... a single court, to wit, the bankruptcy court, will be able to pass upon the question of dischargeability of a particular claim and it will be able to develop an expertise in resolving the problems in particular cases . . . . Since this is a Federal statute, the Federal courts necessarily have the final word as to the meaning of any term contained therein. S.Rep.No.91-1173, 91st Cong., 2d Sess. (1970) at 9. To give collateral estoppel effect to prior state court factual findings would impair the exercise of the expertise of the bankruptcy court. The determination of nondischargeability should remain an exclusive function of the bankruptcy court unimpeded by the refinements of collateral estoppel by state court judgments. Our view is supported by action in other circuits. The Third Circuit refused to give collateral estoppel effect to a state court “judgment in fraud” even prior to the 1970 amendments. In re Johnson, 323 F.2d 574 (3rd Cir. 1963). The Fourth Circuit has emphasized that the bankruptcy court can look beyond the prior judgment and even hear new evidence at the hearing on dischargeability. Matter of Pigge, 539 F.2d 369 (4th Cir. 1976). . The just-quoted fifth finding of fact creates some uncertainty about which facts the bankruptcy judge relied on to support his determination that the Houtmans owed money to the Manns because of Mr. Houtman’s fraud. Since most of the evidence presented in state court was not presented in federal court, even by way of a transcript, it is difficult to understand how the bankruptcy judge could know that this evidence, “if heard directly by [him], would support the contention that the obligation is nondischargeable because of the findings of fraud.” This finding, however, cannot be isolated from its context, and when the whole record before the bankruptcy judge is considered, it becomes reasonably clear what he was talking about. . “(a) A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as (2) are liabilities for obtaining money or property by false pretenses or false representations, or for obtaining money or property on credit or obtaining an extension or renewal of credit in reliance upon a materially false statement in writing respecting his financial condition made or published or caused to be made or published in any manner whatsoever with intent to deceive, or for willful and malicious conversion of the property of another.” 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_numresp	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Appellee, v. Willie Foster SELLERS, Appellant. No. 74-1683. United States Court of Appeals, Fourth Circuit. Argued Jan. 6, 1975. Decided April 10, 1975. Modified Sept. 2, 1976. Certiorari Denied Jan. 25, 1977. See 97 S.Ct. 815. Robert B. Thompson [Court-appointed], for appellant. Jimmie C. Proctor, Asst. U. S. Atty., Asheville, N. C. (Keith S. Snyder, U. S. Atty., Asheville, N. C., on brief), for appellee. Before CLARK, Supreme Court Justice, HAYNSWORTH, Chief Judge, and WINTER, Circuit Judge. Sitting by Designation. Mr. Justice CLARK: Part III of our original opinion is hereby modified to read as follows: We turn then to appellant’s last contention— that the case was improperly submitted to the jury under instructions which allowed them to convict him of both possession of stolen bank funds under 18 U.S.C. § 2113(c) and theft of bank funds under 18 U.S.C. § 2113(a), (b), and (d). While we agree that this was error, we believe that it is harmless error under the recent Supreme Court decision of United States v. Gaddis, 424 U.S. 544, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976). Gaddis provides that instructions may be given on both the theft and the possession counts, but that convictions may not be sustained on both counts arising out of the same set of facts. The jury is to first consider the theft charges under § 2113(a), (b), and (d), and should consider the possession charge under § 2113(c) only if it finds insufficient evidence to support the theft charges. In this case, the jury obviously found sufficient evidence to bring in a finding of guilt on the theft charges. Having done so, it was error to consider the possession charge. However, as we noted supra, it was harmless error in our view. Any prejudice resulting to Sellers may be quickly dispensed with by simply reversing the conviction on the possession count. In view of the Gaddis decision and its effect upon our prior decision in this case, our prior order is modified as follows: The conviction on the possession of stolen money under 18 U.S.C. § 2113(c) is hereby reversed, and the remaining convictions under 18 U.S.C. § 2113(a), (b), and (d) are affirmed. This case is remanded to the District Court for proceedings not inconsistent with this opinion. It is so ordered. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_casetyp1_7-2	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". Gregg A. TALLMAN, Appellant, v. Ronald W. REAGAN, Ed Meese, Otis Bowen and Richard Turner, Appellees. No. 87-1586. United States Court of Appeals, Eighth Circuit. Submitted Dec. 17, 1986. Decided May 10, 1988. Gregg A. Tallman, pro se. John Beamer, Asst. U.S. Atty., Des Moines, Iowa, for appellees. Before McMILLIAN, FAGG and BOWMAN, Circuit Judges. PER CURIAM. Gregg A. Tallman appeals pro se from a final order entered in the District Court for the Southern District of Iowa dismissing his complaint. For the reasons discussed below, we affirm the judgment of the district court. Tallman’s action arises out of his application in 1982 for Social Security disability benefits after he was injured in an industrial accident. On August 20, 1986, Tallman filed the instant complaint claiming that Ronald Reagan, Otis Bowen, Ed Meese, Richard Turner, and the United States government deprived Tallman of his constitutional rights and his rights under the Social Security Act. Tallman argued, that at that point, several years had passed since his disability claim was initially filed and he had not yet been awarded benefits, due to appellees’ negligence in handling his application. Tallman alleged that the delay in receiving benefits caused his injury to worsen, and he sought actual and punitive damages in the amount of ten million dollars. On November 14, 1986, the district court dismissed Tallman’s complaint. Tallman subsequently filed a “motion to amend judgment” (November 18, 1986), a “motion for continuance” (December 8, 1986), and a “motion for judgment” (April 2, 1987). On April 7, 1987, the same district court entered a final judgment in Tallman’s disability case, reversing the decision of the Secretary of Health and Human Services to deny Tallman disability benefits and ordering the Secretary to pay Tallman benefits past due. On May 7, 1987, the court denied Tallman’s post-judgment motions in the instant action, and this appeal followed. A complaint should not be dismissed for failure to state a claim “ ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Kaylor v. Fields, 661 F.2d 1177, 1181 (8th Cir.1981) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). As we read Tallman’s pleadings, we understand his complaint as an attempt to state a Bivens-type constitutional tort action against the individual appellees, and an action under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2674, against the government. Tallman’s complaint, however, is deficient in several respects. Only federal officials who actually participate in alleged violations are subject to a Bivens-type suit. Laswell v. Brown, 683 F.2d 261, 268 (8th Cir.1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983). Tallman did not allege that appellees Reagan, Meese or Bowen actually participated in, nor how appellee Turner may have contributed to, the alleged violations. Tallman’s complaint alleged at the most gross negligence on the part of appellees, which does not implicate the due process clause. See Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 347, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986). The Social Security Act, 42 U.S.C. § 405(h), precludes a FTCA action “to recover on any claim arising under this subchapter.” Cf. Marin v. HEW, Health Care Fin. Agency, 769 F.2d 590, 592 (9th Cir.1985) (FTCA action for damages caused by negligently tardy processing of cost reports barred), cert. denied, 474 U.S. 1061, 106 S.Ct. 808, 88 L.Ed.2d 783 (1986). Finally, we note that in Heckler v. Day, 467 U.S. 104, 104 S.Ct. 2249, 81 L.Ed.2d 88 (1984), the Supreme Court held that Congress, in enacting the Social Security Act, had repeatedly rejected the “imposition of mandatory deadlines on agency adjudication of disputed disability claims.” Id. at 119, 104 S.Ct. at 2257. Although we are sympathetic to Tallman in that it took several years before he was finally awarded benefits, his complaint in the instant action failed to state a claim upon which relief could be granted. Accordingly, the judgment of the district court is affirmed. . The Honorable William C. Stuart, Senior United States District Judge for the Southern District of Iowa. . The record indicates that Assistant United States Attorney Richard Turner represented the Secretary of Health and Human Services in Tallman's action for judicial review of the Secretary’s decision to deny benefits. . In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court recognized a cause of action for damages against federal officials for violation of one’s fourth amendment rights. In Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), this right was extended to actions arising under the due process clause of the fifth amendment. 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_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. NEW ENGLAND ACCESSORIES TRADE ASSOCIATION, INC., et al., Plaintiffs, Appellants, v. James E. TIERNEY, et al., Defendants, Appellees. No. 81-1886. United States Court of Appeals, First Circuit. Submitted June 11, 1982. Decided Sept. 28, 1982. James M. Smith, Denver, on brief, for plaintiffs, appellants. James E. Tierney, Atty. Gen., James W. Brannigan, Jr., Deputy Atty. Gen., and William R. Stokes, Asst. Atty. Gen., Augusta, Me., on brief, for defendants, appellees. Before CAMPBELL, BOWNES and BREYER, Circuit Judges. BOWNES, Circuit Judge. Challenged here is the facial validity of portions of the Maine Drug Paraphernalia Act, Me.Rev.Stat.Ann.tit. 17A, § 1111-A, an act patterned on the Drug Enforcement Administration’s Model Drug Paraphernalia Act. The district court struck subsection 3(F) of the act, but concluded the act was otherwise facially valid. Plaintiffs, a trade association, wholesalers, and retailers subject to the act, have appealed. The Maine Act is set forth in the appendix to this opinion. Plaintiffs, pointing to the definitional section (subsection 1 of the Maine Act) which does not expressly state whose intent is relevant in determining whether an item is drug paraphernalia, first argue that the statute exposes a defendant to criminal responsibility for the intent or misdeeds of another. Interpreting a New Hampshire statute which contained a substantially identical definition of drug paraphernalia, see N.H.Rev.Stat.Ann.c. 318-B:1 X-a, we rejected a similar “transferred intent” argument concluding that a fair reading of the statute as a whole, including the portions defining the substantive offenses which focus on the mental state of the accused, indicated the intent referred to is that of the person alleged to have violated the statute. See New England Accessories Trade Association, Inc. v. City of Nashua, 679 F.2d 1, 5-6 (1st Cir. 1982) and cases cited therein. See also Tobacco Accessories and Novelty Craftsmen Merchants Association of Louisiana v. Treen, 681 F.2d 378, 383 (5th Cir. 1982) (“[t]he ‘intended for use’ language applies to the state of mind of the individual charged with the offense of selling, distributing, or displaying drug paraphernalia”); Florida Businessmen for Free Enterprise v. City of Hollywood, 673 F.2d 1213, 1219 (11th Cir. 1982) (“[t]o ensure that defendants will not be convicted based on the transferred intent of others ... the . .. states of mind on which the definition of drug paraphernalia relies . . . require proof of general criminal intent of the accused”). It is true that unlike the situation in City of Nashua, we are not here aided by a state supreme court interpretation of the Maine statute, but that does not preclude us from ascertaining the meaning of the Maine statute. It is also true that, unlike the New Hampshire statute, the substantive trafficking offense of the Maine Act contains the “reasonably should know” language of the Model Act, compare N.H.Rev.Stat. Ann.c. 318-B:2 II with Me.Rev.Stat.Ann.tit. 17-A, § 1111-A 5, but this difference does not affect our determination that the definitional section itself, subsection 1 of the Maine Act, requires proof of the defendant’s intent. Accord, Levas and Levas v. Village of Antioch, 684 F.2d 446, 452-53 (7th Cir. July 7, 1982); Tobacco Accessories, 681 F.2d at 383; Florida Businessmen, 673 F.2d at 1219; Hejira Corp. v. MacFarland, 660 F.2d 1356, 1366-1367 (10th Cir. 1981); Casbah, Inc. v. Thone, 651 F.2d 551, 559, 561 (8th Cir. 1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982) (No. 81-415); Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916, 928-929 (6th Cir. 1980), vacated, 451 U.S. 1013, 101 S.Ct. 2998, 68 L.Ed.2d 384 (1981); Delaware Accessories Trade Association v. Gebelein, 497 F.Supp. 289, 292-293 (D.Del.1980). Once the definitional section is so read, plaintiffs’ further argument that subsection 5' — which makes it “unlawful for any person to traffick in or furnish drug paraphernalia, knowing, or under circumstances where one reasonably should know” that it will be used for illegal drug purposes, Me.Rev.Stat.Ann.tit. 17-A, § 1111-A 5 (emphasis added) — permits conviction on a negligence standard looses its foundation. This is because in view of the definitional section — which, as interpreted, renders an item in a seller’s hands drug paraphernalia only if the seller intends it to be used with scheduled drugs — constructive knowledge of the buyer’s purpose alone is not enough for conviction: “In the context of an alleged sale or delivery of drug paraphernalia, the Act requires the state to prove both (1) that the defendant intended that an item would be used for the production or consumption of controlled substances and also (2) that he either knew, or that he acted in a set of circumstances from which a reasonable person would know, that the buyer of the item would thereafter use it for those purposes. So-called constructive knowledge thus has significance only in a situation where the defendant is selling or delivering items that he intends to be used to produce or consume illicit drugs in the first place. The legitimate merchant who sells innocuous items need make no judgment about the purpose of the buyer based upon the surrounding circumstances. The dealer, on the other hand, who sells innocuous items with the intent that they be used with drugs is, in effect, put on notice by the illicit nature of his activity that he must be careful to conform his conduct to the law. Even the illicit dealer, however, is not held legally responsible ... for guessing what is in the mind of a buyer. The seller is safe as long as he does not actually know the buyer’s purpose and as long as the objective facts that are there for him to observe do not give fair notice that illegal use will ensue.” Delaware Accessories, 497 F.Supp. at 294. See also Casbah, Inc. v. Thone, 651 F.2d at 561 (following Delaware Accessories). The foregoing is the interpretation of the act the Maine Attorney General advanced and the lower court adopted. New England Accessories Trade Association v. Tierney, 528 F.Supp. 404 (D.Me.1981). Plaintiffs nevertheless contend the statute is unconstitutionally vague because the standard of intent is itself so vague that it provides no guidance to actors or prosecutors. Plaintiffs claim merchants are unable to discern what mental state on their part— i.e., whether knowledge that an innocuous object may be used with scheduled drugs is enough — will transgress the act. Both “intentionally” and “knowingly” are defined in the Maine criminal code, and we find these definitions sufficiently specific to avoid a due process vagueness problem. While plaintiffs argue that the facts listed in subsection 3 fail to provide black and white standards from which law enforcement officers can determine a merchant’s intent, law enforcement always requires the exercise of some judgment, Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972), and the assessment called for under the Maine Act is no different in kind than that ordinarily encountered. Delaware Accessories, 497 F.Supp. at 295. In New England Accessories, 679 F.2d at 6, we rejected a similar attack leveled against a list containing 13 of the same 14 factors, and we adhere to that view. Plaintiffs’ last argument — that subsection 1(K) creates a mandatory presumption that the objects listed therein are drug paraphernalia — fails. The list gives examples of items which, depending on the circumstances — actual use or the accused’s intent — may be drug paraphernalia. Affirmed. APPENDIX § 1111-A. Sale and use of drug paraphernalia 1. As used in this section the term “drug paraphernalia” means all equipment, products and materials of any kind which are used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a scheduled drug in violation of this chapter or Title 22, section 2383. It-includes, but is not limited to: A. Kits used or intended for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a scheduled drug or from which a scheduled drug can be derived; B. Kits used or intended for use in manufacturing, compounding, converting, producing, processing or preparing scheduled drugs; C. Isomerization devices used or intended for use in increasing the potency of any species of plant which is a scheduled drug; D. Testing equipment used or intended for use in identifying or in analyzing the strength, effectiveness or purity of scheduled drugs; E. Scales and balances used or intended for use in weighing or measuring scheduled drugs; F. Dilutents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used or intended for use in cutting scheduled drugs; G. Separation gins and sifters, used or intended for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana; H. Blenders, bowls, containers, spoons and mixing devices used or intended for use in compounding scheduled drugs; I. Capsules, balloons, envelopes and other containers used, or intended for use in packaging small quantities of scheduled drugs; J. Containers and other objects used or intended for use in storing or concealing scheduled drugs; and K. Objects used or intended for [sic] in ingesting, inhaling or otherwise introducing marijuana, cocaine, hashish or hashish oil into the human body, such as: (1) Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls; (2) Water pipes; (3) Carburetion tubes and devices; (4) Smoking and carburetion masks; (5) Roach clips, meaning objects used to hold burning material, such as a marijuana cigarette that has become too small or too short to be held in the hand; (6) Miniature cocaine spoons and cocaine vials; (7) Chamber pipes; (8) Carburetor pipes; (9) Electric pipes; (10) Air-driven pipes; (11) Chillums; (12) Bongs; or (13) Ice pipes or chillers. 2. For purposes of this section, drug paraphernalia does not include hypodermic apparatus. Possession of, furnishing or trafficking in hypodermic apparatus constitute separate offenses under sections 1110 and 1111. 3. In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following: A. Statements by an owner or by anyone in control of the object concerning its use; B. Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any scheduled drug; C. The proximity of the object, in time and space, to a direct violation of this chapter; D. The proximity of the object to scheduled drugs; E. The existence of any residue of scheduled drugs on the object; F. Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this chapter; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this chapter shall not prevent a finding that the object is intended for use as drug paraphernalia; G. Instructions, oral or written, provided with the object concerning its use; H. Descriptive materials accompanying the object which explain or depict its use; I. National and local advertising concerning its use; J. The manner in which the object is displayed for sale; K. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products; L. Direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise; M. The existence and scope of legitimate uses for the object in the community; and N. Expert testimony concerning its use. 4. It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a scheduled drug in violation of this chapter or Title 22, section 2383. 5. It is unlawful for any person to traffick in or furnish drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a scheduled drug in violation of this chapter or Title 22, section 2383. 6. It is unlawful for any person to place in any newspaper, magazine, handbill or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects intended for use as drug paraphernalia. 7. Violation of subsection 4 is a civil violation for which a forfeiture of not more than $200 may be adjudged. 8. Violation of subsection 5 or 6 is a Class E crime, except that, if the actor trafficks or furnishes drug paraphernalia to a child under 16 years of age, it is a Class D crime. 9. Any drug paraphernalia possessed in violation of this section is declared to be contraband and may be seized and confiscated by the State. . Plaintiffs argue that those federal courts which have read state statutory drug paraphernalia definitions patterned after the Model Act as referring to the intent of the accused have engaged in an impermissible process of placing a limiting construction on an act, a function a federal court has no authority to perform when reviewing a state statute. We disagree. It is the meaning of the Maine statute as written which both the district court and we have sought to ascertain through the use of traditional and appropriate canons of statutory interpretation. See Casbah, Inc. v. Thone, 651 F.2d 551, 557-558 (8th Cir. 1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982). . Courts reaching this result have relied on the general principle of statutory interpretation that statutes should be read to avoid an unconstitutional result, see, e.g., Record Revolution, 638 F.2d at 928-929; Delaware Accessories v. Gebelein, 497 F.Supp. at 292; the structure of the Model Act — the initial ambiguity in § 1, viewed alone, being explained by the fact that it was drafted to be appropriate in the context of a number of different prohibited activities including possession (subsection 4 of the Maine Act), manufacturing or selling (subsection 5), and advertising (subsection 6), all of which substantive offenses focus on the mental state of the violator, see, e.g., Casbah, Inc. v. Thone, 651 F.2d at 559; Delaware Accessories Trade Association v. Gebelein, 497 F.Supp. at 292 and n.1; and the Model Act comments indicating the relevant intent for purposes of the definitional section is that of the defendant, see, e.g., Delaware Accessories, 497 F.Supp. at 293. . “1. ‘Intentionally.’ “A. A person acts intentionally with respect to a result of his conduct when it is his conscious object to cause such a result. “B. A person acts intentionally with respect to attendant circumstances when he is aware of the existence of such circumstances or believes that they exist. “2. ‘Knowingly.’ “A. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result. “B. A person acts knowingly with respect to attendant circumstances when he is aware that such circumstances exist.” Me.Rev.Stat.Ann.tit. 17-A, § 35. Question: What is the total number of respondents in the case? Answer with a number. 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. John J. NERONE, a/k/a “J.J.,” Victor Joseph Seppi, a/k/a “Vic,” Marvin Martin Hornstein, a/k/a “Pete,” Leonard Vieth, Arthur Gentry, Donald Lee Hornstein, Donald K. Bradley, a/k/a “Moose,” Wilbur Y. Caples, a/k/a “Butch,” Laverne Jamerson, Reubin Helfer, Larron Joe Schellinger, a/k/a “Jo-Jo,” and Dominic Joseph Greco, Sr., Defendants-Appellants. Nos. 76-2181 — 76-2189. United States Court of Appeals, Seventh Circuit. Argued June 15, 1977. Decided Sept. 29, 1977. Rehearings and Rehearing En Banc Denied Dec. 15, 1977. John J. Casey, Springfield, Ill., Charles A. Bellows, Chicago, Ill., Charles J. Gramlich, Walter H. Kasten, Springfield, Ill., Gerald M. Werksman, Chicago, Ill., Grady E. Holley, Thomas F. Londrigan, Springfield, Ill., Giles A. Franklin, Chicago, Ill., for defendants-appellants. Michael W. Farrell, Paul J. Brysh, Attys., U. S. Dept. of Justice, Washington, D. C., Gerald D. Fines, U. S. Atty., Elijah Richardson, Asst. U. S. Atty., Springfield, Ill., T. George Gilinsky, Washington, D. C., J. Kenneth Lowrie, Dept. of Justice, Chicago Strike Force, Chicago, Ill., for plaintiff-appellee. Before FAIRCHILD, Chief Judge, and PELL and BAUER, Circuit Judges. PELL, Circuit Judge. On September 24, 1975, a seven-count indictment was returned in the Southern District of Illinois, charging thirteen individuals with violations of the federal statutes relating to illegal gambling and racketeering. The twelve appellants have filed timely notices of appeal from final judgments of convictions on Counts I, II, III, VI and VII of the indictment. These consolidated appeals present for review approximately fourteen issues, demonstrating once again the direct relationship between the proliferation of parties and issues in a conspiracy case. The factual and procedural context of these appeals is both complicated and subtle. No useful purpose will be served by setting forth factual details which are germane only to issues which our disposition of the case eliminates from formal consideration. Accordingly, this opinion will refer only to those facts pertinent to our adjudication of the case. Additionally, we must note that the Government and several appellants have interpreted the conspiracy count of the indictment as charging an offense which in its literal language it does not clearly state. Our summation of the indictment will set forth the theory of the indictment advanced by the Government, but in a subsequent part of the opinion we will discuss more fully the legal problems engendered by the parties’ confusion regarding the criminal charge actually made in that conspiracy count. We turn to the indictment. Count I charged that from approximately September 1, 1974, to May 19, 1975, appellants Nerone, Seppi, Marvin “Pete” Hornstein, Gentry, Donald Hornstein, Bradley, Capies, Jamerson, and Heifer had participated in the operation of an illegal gambling business in violation of 18 U.S.C. § 1955. Count II charged that appellants Seppi, Vieth, Gentry, Schellinger, and both Horn-steins had participated in the use of extortionate means to collect a gambling debt in violation of 18 U.S.C. § 894. Count III charged that Marvin “Pete” Hornstein had used a deadly weapon in a forcible assault upon a federal law enforcement officer engaged in the performance of his duties, in violation of 18 U.S.C. §§ 111 and 1114. Count VI charged that appellants Nerone and Seppi had conducted the affairs of Maple Manor, Inc., doing business as Cottonwood Cove Estates Mobile Home Park, an enterprise engaged in and the activities of which affected interstate commerce, through a pattern of racketeering activity and/or through collection of an unlawful debt, in violation of, inter alia, 18 U.S.C. § 1962(c). Finally, as stated in the Government’s brief to this court, Count VII charged all of the appellants with conspiracy to conduct the affairs of Maple Manor, Inc., an enterprise affecting interstate commerce through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d). Testimony adduced at trial revealed that Robert Fox had conducted a weekend “casino gambling operation” involving dice and card games in the basement of his modular home. This particular mobile home was located on Lot 2 of the Cottonwood Cove Estates Mobile Home Park, which was operated by Maple Manor, Inc. The president and major stockholder of the corporation was Blanche Fox, mother of Robert Fox. The secretary of the corporation was appellant Seppi. The board of directors was composed of Blanche Fox, Seppi, and Ner-one. Appellant Nerone had signed a form purchase agreement on April 21,1973, for a three-bedroom Regent mobile home, manufactured in Indiana, from Mobile World, Inc., whose offices were located in Springfield. The purchase agreement bore the notation “For Resale,” set forth a tax and a dealer number, and indicated that Nerone had executed the agreement on behalf of Maple Mobile Home Sales. Cash payment of the total sum mentioned in the purchase agreement was made two days later, and the Regent mobile home presumably was placed on Lot 88 of Cottonwood Cove. Many other residents of Cottonwood Cove had likewise purchased mobile homes manufactured in states other than Illinois. The trial testimony established that the weekend dice and card games conducted in Fox’s basement were conducted, with three exceptions, every Saturday and Sunday from early September 1974 to May 1975. The gambling in Fox’s basement was discontinued in May 1975 because the Fox home was under surveillance by local law enforcement officials. Appellants Donald and Marvin Hornstein conducted a weekend card and dice gambling operation under the name “Where Else” at the Palmer Hotel at Fifth and Jefferson on two weekends in May 1975. It was raided on May 19, 1975. The appellants admitted at trial that the weekend games were illegal under Illinois law. The testimony of Government witnesses also established that from September 1974 to May 1975 appellants Nerone and Seppi worked in Fox’s basement dealing blackjack, running the dice game, and collecting and paying out money. Appellant Jamerson throughout this period also assisted the operation of the games by working at the dice game and by running errands. Appellant Bradley ran the dice game for most of the time when Fox’s casino operation was functioning, and appellants Capíes and Heifer each dealt blackjack and played poker for a few months while the illegal gambling was in operation. Appellant Gentry never gambled or operated any games in Fox’s basement but did on two or three occasions open an inside door in Fox’s basement in order to let people enter. Appellants Donald and Marvin Hornstein were not shown to have been actively involved in the casino when it was operated at Fox’s basement, but there was circumstantial evidence, discussed hereinafter, which the Government utilized to support its theory that the “Where Else” gambling enterprise actually operated as an integral part of the Fox casino. Law enforcement officers began investigating Fox’s gambling operation in late 1974, and by early 1975 Steven Salmieri, a special agent of the Federal Bureau of Investigation (FBI) was working on the investigation. On February 13, 1975, he met with Donald Nance, who was to meet with Fox that morning to pay off a four hundred dollar gambling debt. Fox and Nance had had several telephone discussions concerning the debt, in one of which Fox threatened Nance, who thereupon said he would meet Fox “[a]t the Attorney General’s Office.” At 10:00 a. m. that morning, Salmi-eri and Nance went to the latter’s health spa, where they awaited the planned meeting with Fox. At approximately 10:15 a. m. Fox, together with the six men charged in Count II, arrived at the health spa in two cars. Appellants Schellinger and Seppi, who were the drivers, remained outside the spa. Fox, the Hornsteins, Gentry, and Vieth went inside. Upon entering the inner room where Salmieri and Nance were waiting, Fox said, in reference to Nance’s earlier telephonic comment, “what was all this about the Attorney General?” Marvin Hornstein then asked Salmieri why the latter’s hand was in his pocket. Hornstein then took a revolver from his belt and held it close to Salmieri’s head. Fox threw Salmieri against a wall and “frisked” him, finding a gun that Agent Salmieri was carrying. Salmieri and Nance proclaimed that they wanted to pay Fox. As Salmieri approached a desk drawer, Fox said that if Salmieri went near the drawer Fox would kill him. When Salmieri later put his hand in his pocket to get a cigar, Fox said “Put your hands down or I’ll knock your teeth out.” After Fox swung at Salmieri with a gun and missed, Marvin Hornstein hit him in the ribs. Fox inquired as to Salmieri’s identity and the fact that he was carrying a gun. The agent told Fox that he was a friend of Nance’s from St. Louis. Fox then told Nance to “forget the money.” Except on the occasions when Salmieri and Nance brought up the subject, nothing was said during the entire encounter regarding the collection of the debt. During the entire incident, none of the appellants asked Nance for any money. On each occasion that agent Salmieri brought up the topic of paying the money, those appellants who had come into the back room responded that the money didn’t make any difference and that they didn’t want it. Fox then told Nance that they were going to take Salmieri “for a ride.” As Salmieri began to walk out of the back room of the health spa, Fox became excited and shouted, “Shoot him, shoot him. Leonard [Vieth], grab him.” At that point the agent was going out the front door and Vieth was with him. As Salmieri went out, he put his hands up. Vieth then said, “Come on, we better go back inside.” Vieth then grabbed the agent by the arm. After going back in, the agent was told to spread out on the floor. Nance and his. business partner were also in the front on the floor. After Fox told them to walk out of the health spa but before they had a chance to get out, Marvin Hornstein came to the front of the room where Salmieri remained on the floor, cocked the gun, put it to the agent’s head, and said he was going to “blast” him. Salmieri and Nance were then taken outside, but Fox and his confederates left without them. Salmieri and Nance then returned to the health spa. At 11:45 the same morning, Fox telephoned Nance and apologized for the incident at the health spa. He asked Nance to come out to the Cottonwood Cove, with Salmieri, to repay the debt. That afternoon, Nance and Salmieri visited Fox’s mobile home. Appellants Donald Hornstein, Nerone, Seppi, Capíes, Jamerson, and Gentry were present. Nance paid Fox, and Fox showed Salmieri his basement casino and invited him to return to gamble. When Salmieri requested the return of his gun, Fox replied that Marvin Hornstein had it and that they would try to get it back. On February 22, 1975, Agent Salmieri arrived at Cottonwood Cove and went into the recreation hall, which was adjacent to Fox’s mobile home, where a party was in progress. There he found Gentry and told him that he had come for “a littlé action.” Gentry, remarking that “[tjhey’ve got a pretty good game,” took Salmieri next door to Fox’s mobile home. He knocked on a basement door containing a two-way mirror, and they were admitted. Inside Salmi-eri observed seventy to eighty people. Fox told him that the minimum bet was five dollars and the maximum was one hundred dollars, but that with approval a player could bet more, provided he remained at the higher level throughout the night. Salmieri got into a blackjack game in which appellant Nerone was the dealer. In the course of the evening the house took in between four and five thousand dollars at the blackjack table alone. Salmieri observed Fox approve loans of up to $700 for customers at the blackjack table, and cash a four or five hundred dollar check for another customer. Salmieri also observed appellants Seppi, Capíes, Bradley, and Jamerson working at the dice table. Throughout the night appellant Gentry was “watching” the door. On March 9, 1975, Agent Salmieri returned to the casino with John Meduga, an agent of the Illinois Bureau of Investigation. They gambled for three or four hours, and during that period Salmieri observed twenty-five or thirty people in the casino. He also observed Fox lend five hundred dollars each to one customer who already owed him $3,000 and to another who was already $2,000 in debt. In the course of the night Nerone and Capíes dealt at the blackjack table, and Seppi, Capíes, Bradley, and Jamerson ran the dice game. On March 23, 1975, Salmieri and Meduga were again in the casino where they observed Nerone and Heifer dealing blackjack and Seppi and Bradley operating the dice table. On this occasion Marvin Hornstein was present in the basement. The two agents returned once more to the casino on April 13, 1975. Appellant Heifer was dealing blackjack that night, and appellants Seppi and Nerone were operating the dice table. That evening Salmieri told Fox that earlier in the day he had wanted to place a bet on a baseball game but was not able to do so because he did now know any bookies in town. Fox replied that any time Salmieri wanted to get any action in, he should let him know and Fox would cover it. Fox then gave Salmi-eri a telephone number for placing bets, but warned him not to call the number from out of state because he did not want the FBI to get involved. Testimony of the Government witness Charles “Burrhead” Albright established that Nerone would take line information and accept bets on the telephone. Albright was also present during numerous conversations between appellants Nerone and Greco regarding line information, and he had heard Fox instruct Nerone to “lay-off” bets to Greco. Several weeks after Fox gave Salmieri the telephone number, the agent called and asked for Nerone. Salmieri attempted to place bets on a Spirits basketball and Cardinal baseball game, but Nerone would not accept the bets because he did not have “the line” on those games. However, Salmieri did place a bet on a National Basketball Association game between Washington and Buffalo. Nerone also gave Salmieri two additional telephone numbers. On the evening of May 11, 1975, Agents Salmieri and Meduga went to the “Where Else” at the Palmer Hotel. Initially, they had gone to the recreation hall at Cottonwood Cove. There, they found a sign which read “call Bob [Fox] or John [Nerone]” and which listed a telephone number. Salmieri dialed the number and reached Nerone, who said “[t]here’s a little problem in the area. We have moved to the Palmer Hotel.” At the hotel, the agents observed Nerone, Sep-pi, Bradley, and Donald Hornstein take turns running the dice table. Appellant Heifer volunteered to start a blackjack game, and Marvin Hornstein was acting as a lookout at the door. The house took in roughly twenty-four hundred dollars that evening. On May 17, 1975, there was some form of gambling at the Cottonwood Cove. Agent Nancy Lewis, working underground for the Illinois Bureau of Investigation, had been conducting a surveillance at the Cottonwood Cove since December 26, 1974. She kept memoranda of her observations. Her reports indicated that she had observed thirteen cars at Fox’s trailer at 1:40 a.m. on May 17. Almost five hours later, at 6:05 a.m., she observed that the cars of six individuals known to her were parked at Fox’s trailer. On May 18, 1975, law enforcement officers raided the “Where Else.” Agents Salmieri and Meduga were present on that evening and observed appellants Nerone, Seppi, Bradley, and the two Hornsteins take turns running the dice table at the hotel. On the same night that the Palmer Hotel was raided, FBI agents, acting pursuant to a search warrant, raided Fox’s mobile home and found bookmaking records in the lining of one of Fox’s coats. These records pertained to the same transactions as did gambling papers found on Nerone in the raid at the hotel. In Fox’s home, the agents found baseball schedules of a type commonly distributed by bookmakers to their customers, a “baseball calculator” or device similar to a slide rule used by bookmakers to calculate the amount of payoffs in baseball parley bets, and dice which had been altered to increase the likelihood that certain sides would come to rest face up. I The first issue in this case pertains to the jurisdictional basis for Count I. Appellant Heifer argues that there was no proof that the weekend gambling in the Fox basement met the jurisdictional requirements of 18 U.S.C. § 1955. Heifer observes that the statute is directed at syndicated gambling having an effect upon interstate commerce and the national interest. He further contends that the gambling reflected in this record is not the type of gambling which falls within the purview of the statute and that the facts of this case illustrate an effort by the Federal Strike Force to create a federal offense from essentially local gambling activity. Heifer points to the Government’s use of such nomenclature as'“casino operation” the participants of which were denominated “employees” as constituting the substitution of objurgatory terminology for proof. He further insists that the Government found it necessary to confuse the long standing and continuous bookmaking of appellants Nerone and Greco with the games of chance in which the other nine appellants participated. Heifer also claims, as a corollary to the jurisdictional argument, that his conviction on Count I must be reversed because of variance and erroneous instructions. Bookmaking was not alleged in Count I. Thus, Heifer sets out a straightforward argument invoking the concept of variance. He submits that the Government cannot charge ten defendants with games of chance, i. e., “cards and dice,” and then claim that instead they have proven bookmaking by two defendants to meet the statute’s jurisdictional requirements. Heifer asserts that the Government compensated for an obvious variance and absence of proof by submitting instructions, given by the court over the appellants’ objections, which directed the jury to consider the bookmaking activity to determine if the games of chance were in substantially continuous operation for a period in excess of thirty days. Putting aside for the moment the question of erroneous instructions, the core question as to all appellants convicted under Count I clearly relates to proof of “substantially continuous” operation in excess of the statutory period. On the present record, proof of the five-man requirement is sufficient to withstand attack. Reviewing the evidence in the light most favorable to the Government, we hold that Fox, Nerone, Seppi, Bradley and Capíes were clearly shown to have conducted, financed, managed, supervised, directed or owned all or part of an illegal gambling business. If the evidence similarly establishes that the thirty-day requirement was met, the illegal gambling business disclosed by this record was subject to federal criminal prosecution. We recognize that Congress “has placed strict limits on those gambling operations which warrant federal intervention.” Altese, supra at 109 (Van Graafeiland, J., dissenting). Nonetheless, the purpose of § 1955 is to prohibit illegal gambling of such a size as would affect interstate commerce. See United States v. Hawes, 529 F.2d 472, 478 (5th Cir. 1976). See also United States v. McCoy, 539 F.2d 1050 (5th Cir. 1976). Still, the purpose of § 1955 is not to subject almost any small gambling operation to federal regulation. See United States v. Bridges, 493 F.2d 918, 922 (5th Cir. 1974). We can readily agree with the Fifth Circuit that a broad construction of § 1955 would not always further the Congressional purpose, see id., and that “the contours of federal jurisdiction under § 1955 have not yet been fully delineated.” McCoy, supra at 1058. Congress, however, in final analysis, has made a judgment that gambling operations involving more than five people and operating in excess of thirty days affect interstate commerce. This court has no power to excise as trivial, an individual instance falling within the defined class which is within the reach of federal power. Cf. Maryland v. Wirtz, 392 U.S. 183,192-93, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968). We agree with the Government that the thirty-day requirement was satisfied in this case. More accurately stated, we think that there was sufficient evidence from which the jury could find that the dice and card games in Fox’s basement were in “substantially continuous” operation for the statutory period. The evidence showed that, with but three exceptions, Fox’s casino was in operation every weekend between the beginning of September 1974 and early May 1975. The evidence thus showed an established pattern of operation at least two days every week for approximately eight months. Simple arithmetical calculations would support a jury inference that the games took place on more than thirty individual calendar days. Moreover, there was testimony that sometimes gambling commenced on Friday nights and continued into the succeeding Monday. Larry Dellomo, a salesman for Mobile World, Inc., testified that he had participated in gambling at Fox’s basement approximately fifteen times, usually on Saturday or Sunday nights, during the period charged in the indictment. William Roscetti, a dentist, also testified that he had gambled in Fox’s basement from five to eight times during the same period. The appellants do not appear to controvert the inference that gambling occurred on more than thirty separate calendar days. Their argument touches instead on the requirement of continuity. We note, however, that Congress did not purport to require absolute or total continuity in the gambling operations. Thus, we agree with the Government’s contention that it would be unreasonable to construe the term “substantially continuous” as meaning every day. There was ample evidence for the jury to conclude that what was involved here was a gambling casino which operated substantially continuously by virtue of being open for business almost every weekend with consistent regularity. We do not read the Congressional intent as requiring proof of an operation occurring substantially around-the-clock but rather one that was operated upon a schedule of regularity sufficient to take it out of the casual non-business category. The proof here met the test. We further agree that Heifer’s allegation that the Government used the bookmaking activity as a means of meeting the requirements of the statute is without substance. The evidence of continuity in Fox’s casino operation needed no assistance but was self-sufficient for the purpose. As to the claimed instruction error, the court’s definition of gambling as including “bookmaking” merely set forth a portion of the statutory language. See Appendix. We do not interpret the instruction as directing the jury to consider that particular form of illegal gambling in determining the substantial continuity of the casino operation. Indeed, a distinct instruction expressly left for the jury’s determination that significant factual question. Heifer’s argument that the instruction improperly bolstered the assertion of federal jurisdiction accordingly must be rejected. We affirm his conviction on Count I. II Appellants Gentry and the Horn-steins similarly contend that the evidence was insufficient to sustain their convictions on Count I. The Government responds, as to Gentry, that his performance of the function of “doorman” demonstrated that he was part of the casino operation. In so arguing, the Government asserts that both Charles Albright and Agent Salmieri testified that Gentry “guarded” the door to the casino. As to the Hornsteins, the Government asserts that there was ample evidence that the Palmer Hotel was merely a new location for the casino operation which had been operating at ‘Cottonwood Cove. The Government specifies particularly the note listing a Palmer Hotel telephone number and Nerone’s assertion to Agent Salmieri that they had “moved” to the Palmer Hotel. Close review of the trial transcript does not support the Government’s theory that Gentry guarded the casino door. Although Salmieri did give Gentry’s name when asked whether he had seen anyone “guarding” the door area, he never did state expressly that Gentry “guarded” the door, nor really, and more to the point in view of the conclusionary nature of the word “guard,” did he testify as to activities by Gentry which would appear to be guarding. Likewise, Albright’s testimony did not support that characterization. Albright, who was a star witness for the prosecution, stated that Gentry would “[t]ake care of the door a little bit” and that he might “have been a body guard, I don’t know.” Al-bright also made a reference to the fact that Gentry had opened both doors to Fox’s basement. The prosecutor interpreted this language as pertaining to a guarding function, going so far as to state in closing argument, mistakenly in our view, that Al-bright had stated, “Well, he guarded both of them [the doors].” (Emphasis supplied.) Our examination of the trial transcript discloses no such statement. Without regard to Gentry’s complaints about persistent prosecutorial misstatements of the evidence, we note that numerous witnesses established that Gentry never gambled or assisted in the operation of any of the games. Gentry usually sat in the bar area and tried to sell Indian jewelry. We are satisfied that the Government has failed to establish that he was an employee or a participant in the casino operation. Accordingly, his conviction on Count I of the indictment is reversed. As to the Hornsteins, the Government concedes that they were not shown to have been actively involved in the casino when it was operated at Cottonwood Cove. The Government asserts, however, that the Hornsteins clearly worked for it at the Palmer Hotel. Apart from the note and Nerone’s statement, the Government pinpoints the evidence that Fox, Nerone, Sep-pi, Bradley and Albright “worked” at both locations and Agent Meduga’s testimony that the operation at the “Where Else” was “just about identical” to that at Fox’s mobile home. It also points to the evidence of Nerone’s bookmaking at the hotel, conceding, however, that this evidence was not used as evidence of the illegal gambling business charged in Count I. The Government discounts the significance of the considerable testimony that the Hornsteins owned the gambling operation at the Hotel, that the games there operated were “head-to-head” rather than “house” games (as in Fox’s basement), and that the Hornsteins themselves, without financial input from Fox and Nerone, were responsible for maintaining a sufficient reserve of funds to cover the losses which might occur at the “Where Else.” By discounting the evidence tending to show that the Hornsteins’ operation was separate and independent, of course, the Government adheres to its basic theory that the “Where Else” was operated for the approximate three week period in May 1975 in conjunction with, and as an “alternative gambling location” for, the illegal gambling business run by Fox and his associates. The key circumstantial evidence to support the inference that the games were moved to the Palmer Hotel as an accommodation to and to facilitate Fox’s operation was the fact that a note was found at the recreation hall at Cottonwood Cove telling Fox’s patrons to go downtown where some gambling was occurring. While downtown, various defendants, who were involved in Fox’s games, operated the “stick,” served liquor and performed other minor tasks at the Fifth Street location. However, there was substantial direct and circumstantial evidence presented both by the Government and the appellants which militates against any inference that there was a connection between the two gambling operations. Significantly, trial testimony, unrebutted by the Government and coming from its own witnesses, indicates that there was gambling at the Cottonwood Cove, including the playing of dice, two days before the raid on Fifth Street. The surveillance notes of IBI Agent Lewis showed the presence of a dozen or more cars around Fox’s establishment in the early morning hours. These automobiles belonged to persons who were known to frequent Fox’s basement for purposes of gambling. Such evidence, albeit circumstantial, undercuts the Government’s theory that the Palmer Hotel was an alternative location. We shall have occasion hereinafter to comment upon the manner in which the Government has confused its theory of the case with inferences properly to be drawn from the evidence. At this point, we need only state that the trial testimony, measured in the light of the reasonable doubt standard and in conformity with Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), is not sufficient to convict the brothers Homstein of a violation of 18 U.S.C. § 1955. Thus, we need not consider Marvin Hornstein’s claim that the trial court’s admission into evidence of his brother’s post-conspiracy statements to FBI agents prejudiced his defense to the § 1955 count. Finding no reversible error as to the defendants convicted under Count I, with the exceptions noted of Gentry and the two Hornsteins, we affirm all other convictions under this Count. Ill Appellants Seppi, Vieth, Gentry, Schellinger, and the Hornstein brothers present a variety of arguments aimed at showing that the convictions on Count II must be reversed. Allowing for the variations in formulation, the essential thrust of the common sufficiency of the evidence argument is that the Government has not proved that these six appellants knowingly participated in the use of extortionate means to collect or attempt to collect a debt. The first prong of the argument is that the evidence abundantly shows that the sole reason for Fox’s visit to the health spa was to stop Nance from going to the Attorney General, so that the collection of Nance’s debt was not really involved in the incident. We think that the jury could properly infer that all the appellants went to the health spa for the purpose of attempting to collect a debt. The second prong of the argument relates to knowledgeable participation in the extortion episode. The Government conceded at oral argument that its case, in this respect, is dependent on Albright’s testimony. According to that testimony, he had been in Fox’s mobile home at around ten o’clock. He further testified that Fox, Seppi, Vieth, Schellinger and Donald Hornstein were present. As Albright entered, Fox was calling Gentry on the phone. Albright heard Fox say that they were going down to the health spa to put muscle on a guy. After Gentry arrived, there was more conversation, which Albright heard. He stated that Fox had mentioned something to do with the reason they were going to put muscle on the guy. The record discloses this colloquy: Q. What did he [Fox] say the reason was? A. He [Nance] wasn’t going to pay off and he [Fox] was going down and tear the place up or get his money. Immediately after this conversation, according to Albright, the appellants left for the health spa. The appellants quarrel with Albright’s version of what happened in or around Fox’s mobile home on the morning of February 13, 1975. Nevertheless, the jury was entitled to credit Albright’s version. Moreover, there was a tape recording of the incident itself played at the trial. Although that recording does tend to show that Nance’s remark about the Attorney General and Salmieri’s possession of a gun were factors when the confrontation occurred, it also established that the $400 debt played an important role. Thus, the tape contains the statement, presumably that of Fox, to this effect: We don’t care about the money now. I’m not forgetting. The money’s no object now. [Emphasis added.] That Fox’s associates lost interest in collecting the money because of mounting anger arising from Salmieri and Nance being armed or because of Nance’s earlier remark does not mean that there was no attempt to collect an extension of credit. Albright’s testimony inculpated all of the appellants charged with the extortion. Absent a determination that Albright’s version was completely incredible, which we cannot make on the present record, there was ample evidence from which the jury could find a violation of § 894. We note that the extortion incident was one of the overt acts charged in the conspiracy count of the indictment. We therefore consider at this point the problem of the claimed use of post-conspiracy admissions by the admission of the statements of Schellinger and Gentry which, speaking generally, indicated that they knew that the purpose of the visit to the health spa was to recover a debt owed by Nance to Fox. The Government’s assertion that the statements “implicated no one but themselves” may be arguably incorrect. Nonetheless, the statements did not directly implicate any of the other appellants charged in Count II. Therefore, any error of admitting the statements did not reach constitutional proportions under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). See United States v. Fellabaum, 408 F.2d 220, 225 (7th Cir. 1969); United States v. Guajardo-Melendez, 401 F.2d 35 (7th Cir. 1968). Moreover, the trial court correctly instructed the jury as to the limited purposes for which the Schellinger and Gentry statements could be used. Inasmuch as the jury was so instructed and in view of Albright’s testimony showing that the other appellants knew the purpose of the visit to the health spa, we conclude that any error in admitting the post-conspiracy statements was harmless. IV Appellant Marvin Hornstein contends that the instructions pertinent to Count III, when taken together, were prejudicial to his theory of defense. His specific instruction challenges are somewhat “straw-grasping” in nature, but Hornstein presents a very substantial challenge to the manner in which all objections were handled. That matter deserves extended comment. Hornstein concedes that the trial court informed the appellants of its proposed instructions prior to closing arguments, but contends that Rule 30, Fed.R.Crim.P., was violated in that the defense was not given an opportunity to inform the court of its objections or to request permission to withdraw instructions which they had originally tendered, prior to arguments to the jury and submission of the court’s instructions to the jury. Hornstein observes that the reviewing court sanctions the practice of promoting potential error in jury trials when it allows the trial courts to engage in a policy of denying the defendant the right to make objections to instructions prior to submission to the jury. We agree with appellant Hornstein that both the letter and the spirit of Rule 30 were violated in this case. The record establishes that there was an informal instructions conference prior to argument but that the trial judge put off the formal statement of objections until after the jury began its deliberation. This court stated in United States v. Hollinger, 553 F.2d 535, 543 (7th Cir. 1977), as follows: If, however, the judge conducts only an informal conference prior to the giving of the charge as to what requests will be granted or denied and what instructions the judge intends to give, a full opportunity must be given after the jury has been instructed, but before it begins to deliberate, for counsel to make a full record on their objections to the charge as given as well as to the denial of requests. Further... full opportunity must be given after the statement of the charge and before the retirement of the jury to state any additional objections which may have developed as a result of the giving of the charge. [Emphasis added.] Applying that language to the instant case, it clearly appears that the trial judge’s handling of objections failed to comply with this circuit’s requirements. However, this trial took place some months before the decision in Hollinger. The question thus becomes one of determining the consequences of refusing to allow counsel an opportunity to voice their objections to instructions before the jury retires. The language of the rule suggests the answer. A party who fails to make timely and specific objections to the jury charge loses the opportunity to assign as error any portion of the charge or omission therefrom. When a trial judge prevents the party from complying with the rule, the remedy should be appellate consideration of the claimed errors in instruction. Our prior decisions are consistent with this approach. E. g., United States v. Lisowski, 504 F.2d 1268, 1272 (7th Cir. 1974); American National Bank and Trust Company v. Aetna Insurance Company, 447 F.2d 680, 683 (7th Cir. 1971). We do not say that an outright reversal is beyond either our power or a distinct possibility. We merely state that appellate review of Hornstein’s contentions with respect to Instructions 31, 36, 37, and 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_genresp1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. UNITED STATES of America, Plaintiff-Appellee, v. Alfred James SMITH, Defendant-Appellant. No. 91-6096. United States Court of Appeals, Tenth Circuit. Nov. 15, 1991. Jerry S. Duncan, Oklahoma City, Okl., for defendant-appellant. Timothy D. Leonard, U.S. Atty. and Barbara E. Poarch, Asst. U.S. Atty., Oklahoma City, Okl., for plaintiff-appellee. Before McKAY, Chief Judge, SEYMOUR, and EBEL, Circuit Judges. SEYMOUR, Circuit Judge. Defendant Alfred James Smith appeals his twenty-four month sentence for violation of 18 U.S.C. §§ 2 and 1014 (1988) (aiding and abetting and false statements to a federally insured lending institution). Mr. Smith’s sentence was imposed pursuant to the United States Sentencing Commission Guidelines Manual (Nov. 1, 1990) (hereinafter Guidelines). The district court adopted the probation officer’s offense level calculation under section 2F1.1 of the Guidelines, which governs offenses involving fraud and deceit. The calculation of nineteen reflects a base offense level of six, a nine level enhancement for a loss value of $440,896, and a four level enhancement for Mr. Smith’s role as an organizer pursuant to section 3Bl.l(a) of the Guidelines. Appendix for Appellant, vol. II, Presentence Report. His sentence was reduced from a guideline range of thirty to thirty-seven months to the statutory maximum of two years. Mr. Smith challenges the district court’s calculation of total loss, and the enhancement of his sentence for his role in the offense. We reverse as to both matters and remand for immediate release because Mr. Smith has served his sentence under the proper guideline range. I. Because Mr. Smith’s appeal goes only to the propriety of his sentence, we need not restate the facts in great detail. Briefly, from 1986 to 1989, Mr. Smith operated Handcraft Homes, which constructed and marketed single family residences. In the one count on which he pled guilty, Mr. Smith represented to a federally insured institution that a buyer had made a five hundred dollar earnest money payment on a new home, when in fact he had not. On six different occasions, Mr. Smith represented to federally insured institutions that his customers had made down payments of specified amounts when they had either made substantially smaller down payments or no down payments at all. The cumulative value of the loans advanced on the basis of these misrepresentations was $440,896. Not a single loan was in default at the time of sentencing. II. In its application of Guideline § 2F1.1, the district court adopted the probation officer’s position that the appropriate loss valuation for computation of the specific offense characteristic was $440,896. Under section 2Fl.l(b)(l)(J), this resulted in a nine level addition to the base offense level of six. To support the increase, the probation officer, and by inference the district court, relied on Guideline Application Note 7 to section 2F1.1, which provides: “Valuation of loss is discussed in the Commentary to § 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft). In keeping with the Commission’s policy on attempts, if a probable or intended loss that the defendant was attempting to inflict can be determined, that figure would be used if it was larger than the actual loss.” (Emphasis added). The district court apparently found that there was no actual loss and that the defendant intended and attempted to inflict a loss of $440,896. We review factual findings supporting a district court’s offense level calculation under the “clearly erroneous” standard. United States v. Poole, 929 F.2d 1476, 1483 (10th Cir.1991) (calculation of drug quantity). Other circuits have applied this standard to a district court’s calculation of loss under section 2F1.1. United States v. Haddon, 927 F.2d 942, 952 (7th Cir.1991); United States v. Davis, 922 F.2d 1385, 1388 (9th Cir.1991). Because we find no support in the record for the district court’s finding that Smith attempted to inflict a loss in the amount for which he was sentenced, we must reverse the calculation. The Guidelines increase a defendant’s base offense level sentence for either actual or intended loss, whichever is greater. United States v. Palinkas, 938 F.2d 456, 465 n. 19 (4th Cir.1991) (“if a probable or intended loss was greater than the actual loss, the larger figure will be used”); United States v. Schneider, 930 F.2d 555, 556 (7th Cir.1991). Where the fraud results in actual loss within the definition provided by the commentary to Guidelines § 2B1.1, that value will be considered for purposes of enhancement under section 2F1.1. Where there is no such loss, or where actual loss is less than the loss the defendant intended to inflict, intended or probable loss may be considered. Application Note 7, Guidelines § 2F1.1; see, e.g., United States v. Lohan, 945 F.2d 1214, 1219 (2d Cir.1991) (“Under the Guidelines ‘loss’ ‘may consist of the “probable” loss resulting from the fraud' ” (quoting United States v. Brach, 942 F.2d 141, 143 (2d Cir.1991)); Haddon, 927 F.2d at 951-52; United States v. Wills, 881 F.2d 823, 827 (9th Cir.1989) (affirmed enhancement in credit card fraud case on basis of intended loss where intended loss was greater than actual loss). A. Actual Loss There is no evidence of any actual loss in the record. Neither the probation officer nor the government contended below, nor does the government contend here, that the $440,896 figure represented the amount of property “taken” by Mr. Smith through his misrepresentations. See Application Note 2, Guidelines § 2B1.1. Moreover, the district court made no such finding. Nevertheless, because enhancement could properly be based on actual loss, we review the record to see if the district court’s enhancement of Mr. Smith’s sentence is justified on the basis of actual loss. Under the circumstances of this case, we conclude that actual loss should be measured by the net value, not the gross value, of what was taken. Although Mr. Smith did receive all the proceeds from the loans, he delivered to the lenders something in return: the security interest in the houses and the promises of the individual borrowers to repay the loans. Under the Guidelines, net loss must reflect the value of the property securing the loans. The government has the burden of proving the amount of actual loss. Because the government has failed to prove any actual loss in this case, Mr. Smith’s sentence may not be enhanced on the basis of actual loss. This net concept of actual loss comports with common law valuation of fraud. Under the common law, if a defendant deceitfully persuaded a victim to give up something of value, the calculation of loss takes into account any value given to the victim by the defrauder. See Dan B. Dobbs, Remedies § 9.2 at 594-98 (1973) (various damage formulae for civil fraud based on net rather than gross value); Guidelines § 2F1.1, Application Note 7(a) (Nov. 1, 1991). Our approach thus distinguishes between naked fraudulent takings, and exchanges of property where the wrongdoer merely misrepresents the value of the consideration advanced. If a fraud is a naked taking of property, the net and gross loss are the same since the victim got nothing of value in return for the property given up. However, if the fraud consists of an unequal exchange of property, the loss or taking consists only of the difference in value between what was given and what was obtained. In any event, it is a net value that must be used to measure loss. Any other approach ignores reality. See Schneider, 930 F.2d at 559; cf. United States v. Whitehead, 912 F.2d 448, 452 (10th Cir.1990) (economic loss overvalued). A thief who steals $100,000 is more culpable than a salesman who obtains $100,000 by selling a victim an $80,000 house he fraudulently represents as being worth $100,000. In the latter case, it makes no sense to suggest that $100,000 is the accurate measure of the victim’s loss. United States v. Johnson, 941 F.2d 1102 (10th Cir.1991), is not to the contrary. In that case we upheld, on the basis of the indictment, a sentence based on the value of several houses that were fraudulently acquired by the defendant. Id. at 1113. Although Mr. Johnson lied about his intention to repay the loans on the houses, the indictment alleged that he fraudulently took the houses, rather than the value of the loans. That indictment made sense in Johnson, where the loans at issue were assumed, and were not the target of the defendant’s fraud. Thus, the seller in Johnson gave the defendant title to the houses in exchange for a fraudulent promise that the defendant would assume the seller’s obligation. In this sense, Johnson involved a naked taking in which the seller received nothing in return because the only consideration offered by the defendant was a worthless promise to assume the loans. Here there is no actual loss. Mr. Smith’s misrepresentations resulted in an exchange for value, not a net loss to the lending institutions. The government does not contest Mr. Smith’s assertion that the loans were “fully secured by the property involved.” Corrected Brief for Appellant at 5. In order to justify enhancement on the basis of actual loss, the government simply must do more. Our approach is consistent with the new commentary to Guidelines § 2F1.1, promulgated by the Sentencing Commission to “provide[ ] additional guidance with respect to the determination of loss.” Guidelines, App. C, at 224 (Nov. 1, 1991). The commentary provides: “In fraudulent loan application cases and contract procurement cases where the defendant’s capabilities are fraudulently represented, the loss is the actual loss to the victim (or if the loss has not yet come about, the expected loss). For example, if a defendant fraudulently obtains a loan by misrepresenting the value of his assets, the loss is the amount of the loan not repaid at the time the offense is discovered, reduced by the amount the lending institution has recovered, or can expect to recover, from any assets pledged to secure the loan.” Guidelines § 2F1.1, Application Note 7(b) (Nov. 1, 1991) (emphasis added). While our interpretation does not depend on this recent amendment to the Guidelines, its focus on net loss further buttresses our approach. See United States v. Urbanek, 930 F.2d 1512, 1514-15 (10th Cir.1991). B. Probable or Intended Loss Admittedly, the district court need not find an actual loss to increase a defendant’s offense level under section 2F1.1. “The fact that good police work diminished the actual loss to the employer victim should not affect the determination of the extent of defendant’s culpability and responsibility for purposes of sentencing.” United States v. Westmoreland, 911 F.2d 398, 399 (10th Cir.1990) (recovery of stolen car does not bar its inclusion in loss calculation). As we have noted above, in the absence of actual loss, intended loss may be considered. Application Note 7, Guidelines § 2F1.1. To meet the requirements of the Guideline, however, the record must support by a preponderance of the evidence the conclusion that Mr. Smith realistically intended a $440,896 loss, or that a loss in that amount was probable. Neither the Order entered by the district court in this case, nor the transcript of the sentencing proceedings indicate that the district court had any factual basis for adopting the probation officer’s calculation. Specifically, investigating agent Kevin Markey, of the F.B.I., answered “[n]o,” at the sentencing hearing to defense counsel’s question: “Did you have any indication when [Smith] made the false statements that he wanted the government to lose money?” Supplemental Appendix to Ap-pellee’s Brief at 16. In the same proceeding, on cross-examination, after asserting that the $440,896 figure represented the loss within the meaning of Application Note 7, Probation Officer McKeever cited no factual support for his belief that the total of the six loans constituted the probable or intended loss. Id. at 29-31. Indeed, on direct examination, support for Officer McKeever’s belief was limited to his affirmative response to the question: “Are you satisfied that this 440,000-some-odd dollar figure is the appropriate amount of intended loss?” Id. at 25. This affirmative response, standing alone, is insufficient to support the increase in Mr. Smith’s offense level. Mr. Smith specifically stated that “[a]t no time did I intend for a federally insured loan company to lose any money or — or anybody else, for that matter.” Id. at 36. As of sentencing, no money has been lost on the loans enabled by Mr. Smith’s fraud. On appeal, the government never argues that Smith intended to cause loss in the full amount of the loans, only that “the potential that these six loans may eventually go into default is ever present.” Brief of Plaintiff-Appellee at 5. However, as Mr. Smith points out, each of the six loans was secured by the house on which the loan was made, and the home buyers have been paying down their loans. Thus, even under a worst case scenario, the total potential loss could not be the full amount of the loans. We do not believe the possibility that some loss might occur on one or more of the six loans in the future amounts to the “probable” loss contemplated by section 2F1.1. The government has simply failed to offer any support for its calculation. This is not a case like United States v. Johnson, 908 F.2d 396 (8th Cir.1990), where the court declined to reduce the loss calculation by the amount recovered by the defrauded bank. “[A] defendant’s offense level should not turn on whether or not the banks recovered some of their potential loan losses. Rather, the focus for sentencing purposes should be on the amount of the possible loss which Johnson attempted to inflict on the banks.” Id. at 398 (emphasis added). In Johnson, the defendant was a con artist who used falsified identification to obtain loans for herself. See also Davis, 922 F.2d at 1391-92 (the defendant operated a scheme to steal property). The present case is more like the one where “fraud is committed in order to obtain a contract that the defendant might otherwise not obtain, but he means to perform the contract.” Schneider, 930 F.2d at 558. In Schneider, the court distinguished between two types of fraud: “One is where the offender — a true con artist (as in Davis ) — does not intend to perform his undertaking, the contract or whatever; he means to pocket the entire contract price without rendering any service in return. In such a case the contract price is a reasonable estimate of what we are calling the expected loss, and we repeat that no more than a reasonable estimate is required. The other type of fraud is committed in order to obtain a contract that the defendant might otherwise not obtain, but he means to perform the contract (and is able to do so) and to pocket, as the profit from the fraud, only the difference between the contract price and his costs. This is such a case.” Id. at 558 (citations omitted). This is not to say that Mr. Smith’s crime must go unpunished. The base offense level of six provided by the Guidelines applies irrespective of loss. Guidelines § 2Fl.l(a). As the court in Schneider noted: “It is simply that the Guidelines award bonus punishment points for different levels of proven loss beginning with $2,000. The government did not earn a bonus in this case.” 930 F.2d at 559. So here, the court may only properly sentence on the basis of the base offense level of six provided by section 2Fl.l(a). III. Mr. Smith also appeals the four level enhancement assigned by the probation officer for his role in the offense pursuant to section 3Bl.l(a). The Guidelines provide for an increase in the offense level “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” Guidelines § 3Bl.l(a). The government does not offer support for this enhancement on appeal. Instead, like the district court’s order, the government assumes the propriety of the nine level adjustment for loss valuation and simply notes that the sentence could have been the same without the organizer enhancement, because of the requirement that the sentence could not exceed the twenty-four month maximum sentence authorized by statute for the offense of conviction. Brief of Plaintiff-Ap-pellee at 9. In its written Order, the district court stated: “Eliminating the four points assessed as a leader or organizer, the defendant’s Guideline imprisonment range would be 18-24 months.” United States v. Smith, No. CR-90-236-T at 3 (W.D.Okla. filed March 5, 1991). Given our holding above, that is no longer the case. Consequently, we review the district court’s application of Guidelines § 3Bl.l(a). Because the applicability of a guideline is an issue of law, our review is de novo. United States v. Reid, 911 F.2d 1456, 1461 (10th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 990, 112 L.Ed.2d 1074 (1991); United States v. Pettit, 903 F.2d 1336, 1340 (10th Cir.), cert. denied, — U.S. —, 111 S.Ct. 197, 112 L.Ed.2d 159 (1990). Application of the enhancement for a leadership or organizational role requires consideration of the following factors: “the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.” Guidelines § 3B1.1, Application Note 3. The inapplicability of these criteria to the relevant conduct at issue here illustrates the inappropriateness of assigning a four level enhancement in this case. While Mr. Smith participated in obtaining each loan, there was no connection at all among the various borrowers. This was no organization. To support enhancement under this Guideline, the government must show that each member of the organization is answerable to the defendant and is under his continuing control. See Reid, 911 F.2d at 1465. Mr. Smith’s clients were not continually dependent on him. This was not “a criminal activity that involved five or more participants.” Guidelines § 3Bl.l(a). The four level enhancement was thus inappropriate. IV. As a result of the above analysis, we deduct thirteen levels from the district court’s calculation of Mr. Smith’s offense level. His corrected offense level is 6. With no criminal history points, the Sentencing Table provides a guideline range of zero to six months imprisonment. Mr. Smith has been incarcerated since March 26, 1991. Six months expired near the end of September, 1991. Mr. Smith has served his maximum sentence. Consequently, we REVISE his sentence to six months and order him released immediately from custody. The mandate shall issue forthwith. . Also included, but not at issue on appeal, were a two level enhancement for an offense involving more than minimal planning, pursuant to § 2F1.1(b)(2), and a two level reduction for acceptance of responsibility pursuant to § 3E1.1. Appendix for Appellant, vol. II, Pre-sentence Report. . Application Note 2, Guidelines § 2B1.1, defines "loss" to mean “the value of the property taken, damaged, or destroyed.” . Because we find no sufficient evidence of any intended loss here, we do not need to explore whether there might be some limitations on the unrestricted use of intent to establish loss. . The loan proceeds apparently were paid to the individual borrowers rather than directly to Mr. Smith. The borrowers then used the proceeds to purchase homes from Mr. Smith. Because Mr. Smith was convicted of aiding and abetting the fraud of the borrowers, Smith is properly sentenced as a principal. See Nye & Nissen v. United States, 336 U.S. 613, 618-19, 69 S.Ct. 766, 769-70, 93 L.Ed. 919 (1949); United States v. Espinosa, 771 F.2d 1382, 1398 n. 18 (10th Cir.1985) (citing Nye & Nissen); Guidelines § 2X2.1. We may therefore treat him as the recipient of the fraudulently obtained loan proceeds. . The burden on the government is not onerous, as loss does not need to be calculated with exactitude. See Guidelines § 2B1.1, Application Note 3 ("loss need not be determined with precision, and may be inferred from any reasonably reliable information available"). Moreover, to the extent that requiring the government to prove actual loss makes it a little more difficult for the government to obtain sentence enhancements under § 2F1.1, this does not seem to be cause for great concern. The government can obtain the basic sentence in any event, Guidelines § 2Fl.l(a), and if it seeks to enhance the sentence because of the size of the victim’s loss, it is not asking too much for the government to be prepared to prove the actual amount of such loss. 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_genapel1	H	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. CENTRAL HANOVER BANK & TRUST CO. v. PHILADELPHIA & READING COAL & IRON CO. et al. No. 6646. Circuit Court of Appeals, Third Circuit. Oct. 14, 1938. Thomas W. Reath, of Philadelphia, Pa., Larkin, Rathbone & Perry, of New York City, and Dechert, Smith & Clark, of Philadelphia, Pa. (Frank H. Heiss, of New York City, and Geoffrey S. Smith, of Philadelphia, Pa., of counsel), for appellant. Knox Henderson, Allen Hunter White, and Frederic L. Ballard, all of Philadelphia, Pa. (Ballard, Spahr, Andrews & Ingersoll, of Philadelphia, Pa., of counsel), for appellees Schofield Andrews, Reid Kennedy, George A. Barnewall, William F. Walsh, and Cornelius A. Sullivan, as and constituting Protective Committee for Holders of Philadelphia & Reading Coal & Iron Co. Twenty-Year Convertible 6% Debenture Bonds. E. R. von Starcle and W. James Macintosh, of Philadelphia, Pa. (Penrose Hertzler, of Pottsville, Pa., and Morgan, Lewis & Bockius, of Philadelphia, Pa., of counsel) for appellee Philadelphia & Reading Coal & Iron Co. Percival E. Jackson, of New York City, and David Bortin, of Philadelphia, Pa., for intervener-appellee. Before DAVIS, MARIS, and BUFFINGTON, Circuit Judges. MARIS, Circuit Judge. On February 26, 1937, the Philadelphia and Reading Coal and Iron Company (hereinafter called the Debtor) filed in the District Court for the Eastern District of Pennsylvania its petition for reorganization under Section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207. On the same date its petition was approved by the court which by a decree then entered continued the Debtor in possession of its properties and enjoined the enforcement of any liens or claims against them. On March 22, 1937, the appellant, Central Hanover Bank and Trust Company, which is the trustee under a mortgage covering substantially all the properties of the Debtor given to secure an issue of Refunding Mortgage 5% Sinking Fund Gold Bonds outstanding in the amount of $24,411,822.66, filed a petition in the reorganization proceeding praying that it be permitted to intervene generally in the proceeding and that the Debtor be directed to sequester and impound for the benefit of the holders of the Refunding Mortgage Bonds all the income arising out of the mortgaged property after February 26, 1937. The petition contained the allegation that the approval of the Debtor’s petition for reorganization and its continuance in possession of its properties under the decree of February 26, 1937, was the equivalent of the appointment of a receiver and, therefore, constituted an event of default under the mortgage which entitled the petitioner to the relief prayed for. To this petition an answer was filed by a committee of holders of debentures of the Debtor and the petition and answer were referred by the District Court to a special master who, after hearing, recommended that the petition be dismissed. Thereafter on September 2, 1937, the appellant filed a second petition praying for similar relief based upon the allegation that a second event of default had occurred under the mortgage in that the Debtor had failed to pay the installment of interest due on the Refunding Mortgage Bonds on July 1, 1937, and that the default had continued for a period of sixty days. Exceptions were filed by the appellant to the report of the special master upon the first petition and these exceptions together with the second petition were heard by the District Court which subsequently dismissed the exceptions to the master’s report and entered orders denying both petitions. From these orders the present appeal was taken to this court. The first question raised upon the appeal is whether the court below erred in refusing appellant’s petitions for leave to intervene generally as a party in the reorganization proceeding. This brings us to a consideration of some of the circumstances under which intervention may be allowed in reorganization proceedings under the Bankruptcy Act. Subdivision (c) of Section 77B,11 U.S.C.A. § 207 (c), contains the following provisions: “The debtor shall have the right to be heard on all questions. Any creditor or stockholder shall have the right to be heard on the question of the permanent appointment of any trustee or trustees, and- on the proposed confirmation of any reorganization plan, and upon filing a petition for'leave to intervene, on such other questions arising in the proceeding as the judge shall determine.” By the amending Chandler Act of June 22, 1938, Section 77B of the Bankruptcy Act was superseded by Chapter 10 on September 22, 1938, 11 U.S.C.A. § 501 et seq. Chapter 10 applies not only to all reorganization proceedings commenced after its adoption but also to those previously commenced under Section 77B to the extent that its provisions are deemed by the court to be practicably applicable. It contains in Sections 206 and 207, 11 U.S.C.A. §§ 606, 607 the following provisions: “The debtor, the indenture trustees, and any creditor or stockholder of the debtor shall have the right to be heard on all matters arising in a proceeding under this- chapter. * * . The judge may for cause shown permit a party in interest to intervene generally or with respect to any specified matter. * * ” Chapter 10 contains in Section 213, 11 U.S.C.A. § 613, the further provision that “* * * ail agent, indenture trustee or committee, purporting to represent creditors or stockholders, shall not be heard or allowed to intervene in a proceeding under this chapter -until such person or persons shall have satisfied the court that they have complied with all applicable laws regulating the activities and personnel of such persons.” It will thus be seen that both Section 77B and Chapter 10 contemplate the allowance of intervention by creditors and stockholders in the discretion of the court. Chapter 10 makes clear what was implied by Section 77B, namely, that representatives of creditors and stockholders, such as indenture trustees and committees, may also be permitted to intervene in their behalf in the court’s discretion. In Steere v. Baldwin Locomotive Works, 3 Cir., 98 F.2d 889, we recently had occasion to point out the manner in which that discretion should be exercised so as to secure the assistance in reorganization proceedings of properly qualified committees representing all classes of creditors and stockholders whose numbers are large but whose individual interests are relatively small. What we said in that case which arose under Section 77B, 11 U.S.C.A. § 207, is, we think, equally applicable to proceedings carried on under Chapter 10, 11 U.S.C.A. § 501 et seq., although in the latter proceedings the District Court will have to take into consideration the additional requirements imposed by Chapter 10 particularly those contained in Sections 211 and 213, 11 U.S.C.A. §§ 611, 613. We think it clear that creditors and stockholders whose individual interests are relatively small and who are adequately represented by a committee should not be permitted to intervene individually. Individual creditors or stockholders who are "not represented otherwise and whose interests are relatively large and likely to be affected to a substantial degree by such intermediate steps as may be taken during the course of the proceeding are in a different situation, however. They should, we think, ordinarily be granted leave to intervene as parties entitled to participate generally in the proceeding if they request it. The same rule should be followed in the case of indenture trustees, such as the appellant in this case, who, as the legal representatives of bondholders, have a definite and usually very substantial interest in reorganization proceedings which fully justifies their intervention as parties. The interest of an indenture trustee, as we have seen, is expressly recognized by Chapter 10. Its interest in the proceeding is quite distinct from that of a committee representing the bondholders for whom it is trustee, however, and the intervention of a committee should therefore be permitted in a proper case without regard to the fact that the trustee may also have intervened. In the case before us the appellant is the trustee under a mortgage which is a lien upon substantially all the Debtor’s property and secures an issue of over $24,000,000.00 of bonds. As such it is the legal representative of a very large number of creditors whose individual interests are relatively very small but whose aggregate claim against the Debtor’s estate is very large. We think that it should have been permitted to intervene generally as a party in the reorganization proceeding and that the court below abused its discretion in refusing it leave to do so. The appellant also complains of the refusal of the court below to direct that the net income derived from the mortgaged property be sequestered and impounded by the Debtor for the benefit of the holders of the Refunding Mortgage Bonds. It contends that it was entitled to the decree sought in order to protect the bondholders’ title to the income. The Debtor and the representatives of unsecured creditors strongly urge that such an order would defeat the purposes of Section 77B, 11 U.S.C.A. § 207, and render a reorganization of the Debtor under that section impossible. The underlying purpose of Section 77B was to maintain the status quo of the debtor pending a reasonable opportunity to reorganize its financial structure with the consent of the requisite majorities of creditors and stockholders. The section clearly contemplated that the court would stay adverse action - by secured creditors until a reasonable opportunity had been afforded the debtor to submit a plan of reorganization for approval or rejection. Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & P. Ry. Co., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110; In re Prudence Bonds Corporation, 2 Cir., 75 F.2d 262. The sequestration of substantially all the Debtor’s current income would undoubtedly so impede its operation as a going concern as to render well nigh impossible its reorganization as such. Consequently it was entirely proper for the court below to refuse to order the physical sequestration and impounding by the Debtor for the benefit of the bondholders of the income of the mortgaged property. It is clear that the court in so doing did not deprive the appellant or the bondholders it represents of their property without due process of law in violation of the fifth amendment. Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & P. Ry. Co., supra; Wright v. Vinton Branch, 300 U.S. 440, 57 S.Ct. 556, 81 L.Ed. 736, 112 A.L.R. 1455. It was suggested at the argument, however, that all the appellant really seeks is a decree fixing its right to the net income of the mortgaged property received during the pendency of the reorganization proceeding and remaining in the hands of the Debtor in case reorganization fails and liquidation is ordered. For this purpose, however, an adjudication by the court below was unnecessary. It is settled in this circuit that in a bankruptcy proceeding a mortgage creditor is entitled without prior demand to the net income of the mortgaged property from the date of adjudication if it is needed to pay the amount due him. In re Torchia, 3 Cir., 188 F. 207; Bindseil v. Liberty Trust Co., 3 Cir., 248 F. 112; Associated Co. v. Greenhut, 3 Cir., 66 F.2d 428. This is because the bankruptcy proceeding has taken from the Debtor the possession of his property and in so doing has deprived the mortgage creditor of his ordinary remedy to reach the property mortgaged and its income. It, therefore, follows upon equitable principles, as Judge Woolley pointed out in Bindseil v. Liberty Trust Co., supra, page 114, “that after insolvency has taken the debtor’s property out of his hands, its income or product belongs to the lien creditor, who has thus become its virtual owner; and that such income or product issuing from mortgaged property, should not be diverted from the mortgage creditor who has a lien to general creditors who have no lien.” The right of the mortgage creditor, however, attaches only to the net income remaining after payment of proper administration expenses, operating expenses and taxes, as allowed by the Bankruptcy Court. Petersburg Sav. & Ins. Co. v. Dellatorre, 5 Cir., 70 F. 643; Florida Nat. Bank of Jacksonville v. United States, 5 Cir., 87 F.2d 896. An analogous situation arises in a reorganization proceeding under Section 77B, 11 U.S.C.A. § 207 where after the approval of the debtor’s petition its property comes into the custody of the law and its mortgage creditors are enjoined from pursuing their normal remedies. This is the case even though the debtor is continued by the court in possession of its property since under these circumstances, by the express terms of. subdivision (c) of Section 77B, 11 U.S.C.A. § 207 (c), as well as of Section 188 of Chapter 10, 11 U.S.C.A. § 588, it has the powers and duties of a trustee and is subject at all times to the control of the court. It follows upon the equitable principles to which we have referred that a mortgage creditor in a reorganization proceeding becomes entitled to the net income of the mortgaged property, to thé extent required to satisfy his claim, without the necessity of any demand on his part or adjudication by the court. Consequently in the present case the appellant as trustee became entitled to the net income of the mortgaged property from February 26, 1937, the date the court approved the Debtor’s petition, which was also the date the Debtor’s property came into the custody of the law and likewise the date which, under the provisions of subdivision (k) of Section 77B, 11 U.S.C.A. § 207(k) and Sections 102 and 200 of Chapter 10, 11 U.S.C.A. §§ 502, 600 corresponded to the date of adjudication in an ordinary bankruptcy proceeding. The orders of the court below are reversed insofar as they deny the appellant leave to intervene. In all other respects they are affirmed. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_issue_2	33	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. SMITH v. CROUSE, WARDEN. No. 915, Misc. Decided June 22, 1964. Petitioner pro se. William M. Ferguson, Attorney General of Kansas, and J. Richard Foth, Assistant Attorney General, for respondent. Per Curiam. The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is reversed. Douglas v. California, 372 U. S. 353. 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_treat	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. A & S TRANSPORTATION CO., INC., et al., Plaintiffs, Appellees, v. The TUG FAJARDO, etc., et al., Defendants, Appellees, v. The UNITED STATES of America, Third Party Defendant, Appellee. PCI International, Inc., Plaintiff, Appellant. No. 81-1770. United States Court of Appeals, First Circuit. Argued April 7, 1982. Decided Sept. 1, 1982. Nicolas Jimenez, with whom Jimenez & Fuste, San Juan, Puerto Rico, was on brief, for plaintiff, appellant. William P. Kardaras, with whom Bigham, Englar, Jones & Houston, New York City, was on brief, for appellees. Before FAIRCHILD, Senior Circuit Judge, CAMPBELL and BOWNES, Circuit Judges. Of the Seventh Circuit, sitting by designation. LEVIN H. CAMPBELL, Circuit Judge. Plaintiff PCI International, Inc. (PCI) seeks damages from Puerto Rico Lighter-age Company and its underwriters for loss of use of a waste disposal barge of which it was the bareboat charterer. The barge was stranded, and became a total loss, while being towed by a tug (the “Fajardo”) owned by Lighterage pursuant to a written agreement of towage with PCI. PCI asserts that the stranding was due to the carelessness of the tug, and that because of loss of use of the barge, and the difficulty of securing a suitable replacement, it was put to great expense in order to meet commitments to customers who had contracted for PCI to dispose of their chemical wastes at sea. After the stranding, the underwriters of the barge determined that it was a constructive total loss, and reimbursed the owner, A & S Transportation Co., from whom PCI had chartered it, the full insured value of the hull (with certain adjustments) plus an additional sum under the sue and labor provisions of the policy. The owner, in return, assigned all its rights respecting the barge to the underwriters. The underwriters also reimbursed PCI, under the sue and labor provisions of the policy, PCI having been named in the policy as an additional insured, for certain amounts PCI had expended to preserve the wreck. Thereafter PCI joined the owner and the barge’s underwriters in this damages action against the tug, Lighterage, and their underwriters. Before trial, however, the barge’s underwriters effected a settlement with defendants. As part of the settlement, they released defendants and assigned to them all rights of action, including all the rights which had been assigned to them by A & S. After a trial, the district court sitting in admiralty rejected the owner’s claims for damages in excess of the amount already received from its underwriters. The court held that the owner had effectively divested itself of any claims in the matter by its previous settlement and assignment to its own underwriters, who had thereafter settled with defendants. The owner has not appealed from this judgment. The court also rejected appellant PCI’s claims for consequential damages based on the uniqueness of the barge and alleged expenses incurred in procuring a substitute. Although PCI had not been a party to the settlement between the owner and the barge’s underwriters, the court held that PCI, as a bareboat charterer, stood in the shoes of the owner. The court relied upon, The well-settled rule where a ship is a total loss . . . the aggrieved party may not recover compensation for contemplated profits or the loss of use of the ship. Damages are limited to the value of the ship, plus interest and the net freight pending at the time of the collision. The Umbria, 166 U.S. 404 [17 S.Ct. 610, 41 L.Ed. 1053] (1897); Barger v. Hanson, [426 F.2d 640, 641 (9th Cir. 1970) ]. The court acknowledged PCI’s claims that the tug had been negligent as to it; that the tug’s owner had committed a breach of duties owed to PCI individually under the towing contract; and, finally, that it had violated its implied warranty of workmanlike service owed to PCI under the towing contract. However, the court ruled that as bareboat charterer PCI was limited to the same damages an owner could have claimed in like circumstances, and that these would not have gone beyond the value of the totally lost vessel and of certain other items not material to PCI’s claim. The court contrasted the situation with that which would have prevailed if the barge had been a partial, not a total, loss. In such case, the court said, the owner would have been entitled to lost earnings or to the cost of providing a substitute ship, citing The Emma Kate Ross v. Myers Excursion Nav. Corp., 50 F. 845 (3d Cir. 1892). We sustain the judgment of the district court. Where a vessel is totally lost, the measure of damages is its value at the time of loss, plus interest and the net freight pending at the time of the collision. The Umbria, 166 U.S. 404, 421-22, 17 S.Ct. at 617 (1897). Loss of use is not allowable. Alkmeon Naviera, S.A. v. M/V Marina L, 633 F.2d 789, 797 (9th Cir. 1980); Ozanic v. United States, 165 F.2d 738, 743 (2d Cir. 1948); The Hamilton, 95 F. 844 (E.D.N.Y. 1899). While termed a “collision” rule, courts have applied it where barges under tow have been damaged or lost because of the inattention of the tug, and we see no reason not to apply it where the barge was stranded by the tug as here. The June Ames, 66 F.2d 415, 416 (2d Cir. 1933) (tow damaged by hitting abutment of a bridge through negligence of tug; rule in issue followed); Mobile Towing & Wrecking Co. v. Dredge, 299 F.Supp. 358, 367 (N.D.Fla. 1969) (tow sank as a result of tug’s negligence; consequential damages denied). As the district court here recognized, damages for loss of use would have been recoverable had the loss been partial. E.g., The June Ames, 66 F.2d at 416; compare The Ames & Carroll No. 20, 66 F.2d 413, 415 (2d Cir. 1933) (demurrage recoverable for loss of use during repairs). The only deviation from this rule which has come to our attention occurred in Barger v. Hanson, 426 F.2d 640 (9th Cir. 1970), where, after citing the rule in its full strength, the circuit court nonetheless upheld damages for one month’s loss of use of a destroyed fishing vessel. The court declined to re-examine the rule in the absence of careful adversary briefing and argument, but implied some dissatisfaction with it, and then proceeded to let the challenged damages item stand in lieu of interest which should have been, but was not, awarded. We think the rule in question is too well-established to be altered now, at least at our level. While arguments may be made, pro and con, for its soundness as an original proposition, it was announced by the Supreme Court and has been followed by admiralty judges of the stature of Learned and Augustus Hand. The June Ames, supra. There is much to be said in the world of shipping and commerce for predictability, simplicity and stability of rules, so that shipowners and insurers may plan their financial exposure. PCI could have insured itself against the consequences of loss of use of this special barge had it thought to do so. G. Gilmore & C. Black, The Law of Admiralty § 4-22 (2d ed. 1975); Arnould, Marine Insurance § 300 n.73 (15th ed. 1961). PCI argues that, as a bareboat charterer, not an owner, it should not be bound by a rule developed for owners — otherwise it will receive no recompense for the tug’s mistake. Bareboat charterers, however, are ordinarily treated as if they are owners, Reed v. Yaka, 373 U.S. 410, 412, 83 S.Ct. 1349, 1351, 10 L.Ed.2d 448 (1963); Williams v. McAllister Bros., Inc., 534 F.2d 19 (2d Cir. 1976); they acquire the character and become subject to the legal duties and responsibilities of ownership. See Reed v. United States, 78 U.S. (11 Wall.) 591, 600-07, 20 L.Ed. 220 (1871); Leary v. United States, 81 U.S. (14 Wall.) 607, 610, 20 L.Ed. 756 (1872). We recognize that the Supreme Court cases dealt only with situations in which the bare-boat charterer as a defendant was held to stand in the shoes of the owner, but we think that it must wear the same shoes here. It would be illogical to restrict owners in the recovery of special damages of this nature but to allow bareboat charterers to recover them. Owners, it is true, will in any event receive the value of their investment with interest, but these amounts will not necessarily make up for additional damages from the loss of a profitable charter or the inability to perform pending contracts with third parties. If owners are denied special damages of this type, it is difficult to see why a bareboat charterer should recover them. The liability of those responsible for the loss should not depend on whether the injured party is an owner or a bare-boat charterer. As a practical matter, the question may often come down to whether the bareboat charterer or the putative tortfeasor should procure insurance against consequential damages. A good reason for placing this requirement on the charterer— at least where, as here, the uniqueness of the vessel or other special circumstances are claimed to create exceptionally high consequential damages — is that he is better able to predict the extent of consequential damages in the event the chartered vessel is lost. Cf. R. Posner, Economic Analysis of Law §§ 4.11, 6.8 (2d ed. 1977) (party best able to foresee consequences should take precaution against anticipated losses). When a bareboat charterer raised a claim similar to the present one in 1969,. the district court dismissed it as “novel and imaginative” but “without basis in law.” Mobile Towing & Wrecking Co. v. Dredge, 299 F.Supp. 358, 367 (N.D.Fla.1969). We agree that the claim for lost profits and other consequential damages lacks a basis in law. Affirmed. . The profits of the same voyage on which the ship was engaged at the time of its loss have been allowed in the case of a total loss. The June Ames, 66 F.2d 415, 416 (2d Cir. 1933). In a total loss decision described by Circuit Judge Lowell as “an advance on any which has beeh made,” District Judge Fox allowed the net freight for the unexpired time of a charter. The Hope & Freddie L. Porter, 5 F. 822, 825 (D.Me.1880), aff’d, 8 F. 170, 171 (C.C.Me.1881). Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_respond1_4_2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant. THE WESTERN WAVE. NORTH AMERICAN FRUIT & S. S. CORPORATION et al. v. BOARD OF COMMISSIONERS OF PORT OF NEW ORLEANS et al. No. 7594. Circuit Court of Appeals, Fifth Circuit. May 20, 1935. Harry F. Stiles, Jr., of New Orleans, La., for. appellants. Nicholas Callan, Philip S. Pugh, Jr., and Harold A. Moise, all of New Orleans, La., for appellees. Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges. BRYAN, Circuit Judge. These are two libels in rem against the steamship Western Wave; one by the Johnson Iron Works Dry Dock & Shipbuilding Company for repairs, and the other by the Board of Commissioners of the Port of New Orleans for wharfage. The claimant and owner of the ship, the North American Fruit & Steamship Corporation, defended on the grounds that the repairs and wharfage were furnished to the New Orleans, Houston & Corpus Christi Steamship Company, charterer, which was forbidden by the terms of the charter party from subjecting the ship to any liens except for seamen’s wages and salvage, and that neither libelant was entitled to a lien on it, because by the exercise of reasonable diligence each of them could have ascertained that the charterer had no authority to bind the vessel. A decree was entered awarding to each libelant a lien on the vessel for the full amounts claimed which admittedly were due and owing by the charterer; and from it the shipowner appeals. Appellant on March 28, 1931, entered into a charter party for the hire of the steamship Western Wave for the period of one year to the New Orleans, Houston & Corpus Christi Steamship Company. The bare boat was chartered. The charterer agreed to pay all charges, make all necessary repairs, and not to permit any liens except for crew’s wages and salvage; to notify any person furnishing repairs, supplies, towage, or other necessaries, that it had no right to create liens therefor; to post on the steamer in a conspicuous place, and to maintain there during the life of the charter, a notice reading as follows: “This steamer is the property of the North American Fruit & Steamship Corporation. It is under Charter to New Orleans, Houston & Corpus Christi S. S. Co. Inc., and by the terms of the Charter neither the Charterer nor the Master has any right, power, or authority to create, incur, or permit to be imposed upon the steamer any liens whatsoever except for crew’s wages and salvage.” The charterer was given the option during the life of the charter to purchase the vessel for $35,000. It was also required to keep a copy of the charter party with the ship’s papers, and according to the undisputed evidence this was done. At the time the charter party was entered into, the Western Wave was laid up at Walnut street in the harbor of New Orleans, and before being moved copies of the notice were posted in the passageway to the saloon, in the smoking room, in the pilot house, and in the crew’s messroom. The charterer was incorporated by two brothers, N. L. Proctor, who became president, and J. C. Proctor, who became vice president. The former acted as master of the Western Wave and the latter as manager. J. C. Proctor arranged with Neil Armstrong, superintendent of the Johnson Iron Works, whom he had known for many years, to make certain repairs to the vessel which were necessary before it could be put into commission and engage in the carrying trade for which it had been chartered between New Orleans and other Gulf ports. lie testified he told Armstrong that he and his brother were chartering the ship from appellant, and Armstrong agreed to make repairs on the credit of the Proctors and their newly formed corporation. Armstrong denied that this was the arrangement, and said J. C. Proctor told him that he and his brother, acting for the corporation which they had just organized, had bought the ship. Armstrong knew that appellant had theretofore been the owner, because as superintendent of the Johnson Iron Works he had been accustomed to make all repairs to it for appellant; but he said that he did not see any of the posted notices, and accounts for this by the circumstance that none of them was placed in the engine room where the repairs ordered by Proctor were made. A newspaper article published in New Orleans stated that according to an announcement made by J. C. Proctor steamship service would soon be inaugurated by the Proctor Company between New Orleans and other Gulf ports; and added that the new company had purchased the Western Wave. That article is relied on to discredit J. C. Proctor and to corroborate Armstrong, and further as justification for the belief on the part of the Johnson Iron Works that it would have a maritime lien on the vessel; hut it was published after Armstrong agraed to make the repairs. Appellant had a local representative at New Orleans by the name of Campbell, who acted during the time the vessel was chartered also as bookkeeper and auditor for the charterer. Campbell knew that Armstrong, for the Johnson Iron Works, was making the repairs, and he knew also that the Board of Commissioners of the Port of New Orleans, commonly called the “Dock Board,” was furnishing wharfage space; but he kept silent as to the terms on which the Western Wave was turned over to the Proctors and their corporation, and as to the continued ownership of the vessel by appellant. The Dock Board does not claim to have been misled into extending credit to the charterer. It is a public agency of the state of Louisiana, vested by law with complete jurisdiction of the public wharves of the Port of New Orleans, and with authority to establish and collect charges for the use of all facilities administered by it. Ulster S. S. Co. v. Board of Commissioners of Port of New Orleans (C. C. A.) 299 F. 474. It stands on its published tariffs which provide that the ship is responsible for all charges for use of the public wharves, and takes the position that it has a maritime lien .on the Western Wave for wharfage, regardless of the ownership of that vessel or of the authority of the person in custody of it. The Johnson Iron Works in our opinion did not acquire a maritime lien, because by the exercise of reasonable diligence it could have ascertained that J. C. Proctor had no authority from the owner to bind the vessel for the repairs which were made upon his order. 46 USCA § 973. Armstrong, according to his testimony, which the District Court apparently accepted in preference to that of Proctor, had known appellant as owner of the Western Wave. Reasonable diligence on his part, upon being told by Proctor that he and his brother had bought the ship, would have required an examination of the ship’s papers, and such an examination in turn would have revealed the truth that neither Proctor nor the new company had authority to place a lien upon the ship for repairs. An inquiry of Campbell, the local agent, would have resulted either in a denial of Proctor’s claim of ownership, or in the Johnson Iron Works being in a better position to assert the claim now made of fraud and deception. The newspaper article could not have influenced Armstrong to enter into the contract for repairs, since it was published after that contract was made. The evidence strongly suggests that Armstrong intentionally refrained from seeking information from Campbell, and that Campbell as deliberately and carefully refrained from volunteering any information to Armstrong. But the statute places the burden of exercising diligence upon the furnisher of repairs, and not upon the owner or his agent; and so we have here no question of estoppel of the owner to assert the truth. The charter party was on board among the ship’s papers where it was required by the owner to be kept, and where it was open to inspection. Under the undisputed facts, the Johnson Iron Works was chargeable with knowledge that the vessel was under charter, and of the terms of that charter. United States v. Carver, 260 U. S. 482, 43 S. Ct. 181, 67 L. Ed. 361. We are of opinion also that the Dock Board, because of its failure to make inquiry as to the charterer’s authority, and because of the charterer s lack of authority to bind the vessel, has no maritime lien for wharfage. By the general maritime law, without the aid of.a statute, liens are given for necessaries furnished upon the credit of a foreign vessel. The Roanoke, 189 U. S. 185, 23 S. Ct. 491, 47 L. Ed. 770. Among these necessaries are wharfage, Ex parte Easton, 95 U. S. 68, 24 L. Ed. 373; pilotage on the high seas, Id.; and on inward and outward voyages, The Pirate (D. C.) 32 F. 486; stevedoring, El Amigo (C. C. A.) 285 F. 868; Atlantic Transpor Co. v. Imbrovek, 234 U. S. 52, 34 S. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157; and of course seamen’s wages and salvage. By the Maritime Lien Act of 1910, 36 Stat. 604 [46 USCA § 971 note] Congress provided that: “Any person furnishing repairs, supplies, or other necessaries, including the use of dry dock or marine railway, to a vessel, whether foreign or domestic, upon the order of the owner or owners of such vessel, or of a person by him or them authorized, shall have a maritime lien on the vessel which may be enforced by a proceeding in rem, and it shall not be necessary to allege or prove that credit was given to the vessel.” After the passage of this act it was held in the Second circuit that towage was not included within its provisions. The J. Doherty (D. C.) 207 F. 997; The Hatteras (C. C. A.) 255 F. 518. The case last cited was decided in 1918, and in 1920 the act of 1910 was amended to include towage by name, and so as to read: “Any person furnishing repairs, supplies, towage, use of dry dock or marine railway, or other necessaries,” etc. 46 USCA § 971. Section 973 of the same title provides: “But nothing in this chapter shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs,. supplies, or other necessaries was without authority to bind the vessel therefor.” In Piedmont & George’s Creek Coal Co. v. Seaboard Fisheries Co., 254 U. S. 1, it was said at page 11, 41 S. Ct. 1, 4, 65 L. Ed. 97, that the purpose of the act of 1910 was: “First, to do away with the artificial distinction by which a maritime lien was given for supplies furnished to a vessel in a port of a foreign country or state, but denied where SUppjies Were furnished in the home port or state. * * * Second, to do away with the doctrine that when the owner of a vessei contracts in person for necessaries or js present in the port when they are ordered, it is presumed that the materialman did not intend to rely upon the credit of the vessel, and that hence no lien arises. * * * Third, to substitute a singje federal statute for the state statutes in so far as they confer liens for repairs, suppijes and other necessaries.” While the acts of 1910 and 1920 were not intended to take away any maritime lien, Piedmont & George’s Creek Coal Co. v. Seaboard Fisheries Co., supra; New Bedford Dry Dock Co. v. Purdy, 258 U. S. 96, 42 S. Ct. 243, 66 L. Ed. 482; Marshall & Co. v. S. S. President Arthur, 279 U. S. 564, 49 S. Ct. 420, 73 L. Ed. 846, they were intended to require those who furnish necessaries to vessels, as conditions precedent to the ex-jstence of liens, to use reasonable diligence to aScertain that the persons ordering necessaries have authority to bind such vesseis. We think the statutory words “other necessaries” should not be narrowly, interpreted as was done in cases like The J. Doherty, The Hatteras, supra, The Muskegon (C. C. A.) 275 F. 348, The Suelco (D. C.) 286 F. 286, but that they should be given a broad meaning, as they were in The Rupert City (D. C.) 213 F. 263, and The Henry S. Grove (D. C.) 285 F. 60, and held to include maritime services generally, at least in so far as port charges are concerned, whether such services consist of the furnishing of labor or material. If materials only were furnished, there would be no need to add anything to the words repairs and supplies. Towage was included under the circumstances we have already stated, and we see no reason why other maritime services, such as stevedoring, pilotage, and wharfage should not be, since they all give rise to maritime liens. In King v. Smith, 30 F.(2d) 890, this court rejected a claim of lien for wharfage because the lien claimant’s agent knew that the owner had some interest in the libeled barge, and was therefore put on inquiry as to the extent of that interest, as disclosed by the charter party. The ruling was not much discussed, it is true, but it was made because of section 973, and of the decision in the Carver Case, supra, which we think is controlling here. The decrees are reversed, and the causes remanded for further proceedings not inconsistent with this opinion. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant? A. legislative B. executive/administrative C. bureaucracy providing services D. bureaucracy in charge of regulation E. bureaucracy in charge of general administration F. judicial G. other Answer:
songer_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. Mohan S. GREWAL, Defendant-Appellant. No. 86-5519. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 9, 1987. Decided Aug. 17, 1987. Frank DiSabatino, Van Nuys, Cal., and Mohan Grewal, Boron, Cal., for defendant-appellant. Craig DeRoy and Stephen G. Wolfe, Los Angeles, Cal., for plaintiff-appellee. Before NELSON, HALL and THOMPSON, Circuit Judges. CYNTHIA HOLCOMB HALL, Circuit Judge: Mohan S. Grewal (Grewal) appeals the district court’s denial, without an evidentia-ry hearing, of his 28 U.S.C. § 2255 (section 2255) motion to vacate his sentence. We affirm. I On September 4, 1984, a twelve-count indictment was filed in the United States District Court for the Northern District of Illinois charging Grewal with mail fraud, in violation of 18 U.S.C. § 1341, and transportation of stolen money and securities, in violation of 18 U.S.C. § 2314. Count one of the indictment alleged a scheme by Grewal to defraud potential and existing clients by using false representations. Counts two and seven of the indictment alleged specific instances in which Grewal used the mails to advance his scheme. On October 19, 1984, the United States District Court for the Central District of California filed Grewal’s consent to transfer the case from Illinois for the purpose of plea and sentence. The court held a plea hearing on November 5,1984, during which Grewal, pursuant to a plea bargain, pleaded guilty to counts two and seven of the indictment. The court held a sentencing hearing on December 6, 1984. At this hearing, the court became concerned with the factual basis for the pleas and Grewal’s willingness to proceed with the pleas. The court granted a continuance until the next day for the government to obtain further information from Illinois about the case. The hearing resumed on December 7, 1984. The government furnished further information providing a factual basis for the pleas. In spite of this information, the court offered Grewal the opportunity to withdraw his pleas. Grewal, through his attorney, persisted in the pleas. The court sentenced Grewal to three years imprisonment on count two and ordered him to pay $5,000 restitution pursuant to 18 U.S.C. § 3579. The court sentenced Grewal to five years probation on count seven to run consecutively to the sentence on count two and ordered Grewal to pay $5,500 restitution pursuant to 18 U.S.C. § 3651 as a condition of probation. The court dismissed the remaining counts of the indictment upon the government’s motion. On October 16, 1985, Grewal filed the section 2255 motion that is the basis for this appeal. The district court denied the motion on December 30, 1985. Grewal timely appeals. II In his section 2255 motion, Grewal claims that his guilty pleas were taken in violation of Fed.R.Crim.P. 11 (Rule 11) because the district court did not inform him that he could be ordered to pay restitution. Gre-wal seeks to withdraw his guilty pleas. We review a district court’s denial of a section 2255 motion de novo. United States v. Quan, 789 F.2d 711, 713 (9th Cir.), cert. dismissed, — U.S. -, 107 S.Ct. 16, 92 L.Ed.2d 770 (1986). For a section 2255 movant to successfully challenge a guilty plea based upon a violation of Rule 11, he must establish that the violation amounted to a jurisdictional or constitutional error or that the violation resulted in a complete miscarriage of justice or in a proceeding inconsistent with the demands of fair procedure. United States v. Timmreck, 441 U.S. 780, 783— 84, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979); United States v. Rivera-Ramirez, 715 F.2d 453, 456 (9th Cir.1983), cert. denied, 467 U.S. 1215, 104 S.Ct. 2657, 81 L.Ed.2d 364 (1984). He must also establish that he was prejudiced in that he was unaware of the consequences of his plea, and, if properly advised, would not have pleaded guilty. Timmreck, 441 U.S. at 784, 99 S.Ct. at 2087; Rivera-Ramirez, 715 F.2d at 456. When Grewal entered his plea, Rule 11(c)(1) required the court to inform the defendant of the “maximum possible penalty”, without further specificity. Fed.R. Crim.P. 11(c)(1) (1982). The 1985 amendment to Rule 11(c)(1) explicitly requires the district court to inform the defendant of the possibility of a restitution order. See Fed.R.Crim.P. 11(c)(1) (1986), advisory committee note. On November 5, 1984, when Grewal pleaded guilty, he was not advised of the possibility of restitution. In the related context of federal habeas review of state criminal convictions, we have repeatedly held that there is no constitutional error where a trial court has not informed the defendant on the record of the maximum possible penalty, if the defendant otherwise knows the maximum possible penalty. See, e.g., Carter v. McCarthy, 806 F.2d 1373, 1375-76 (9th Cir.1986), cert. denied, — U.S. —, 108 S.Ct. 198 (1987); Quiroz v. Wawrzaszek, 749 F.2d 1375, 1378 (9th Cir.1984), cert. denied, 471 U.S. 1055, 105 S.Ct. 2119, 85 L.Ed.2d 483 (1985). The record in this case shows that, while Grewal was not informed of the possibility of restitution at his plea hearing, he was aware of it prior to his sentencing, was given the opportunity to withdraw his pleas, and yet persisted in pleading guilty. Grewal received the presentence investigation report (PSI) by December 6, 1984, the first day of his sentencing hearing; the PSI recommended that the court impose restitution as a penalty. Grewal stated on the record that he had read the PSI. Grewal also stated that he had discussed the PSI with his attorney. Later, on December 7, 1984, the second day of the sentencing hearing, the court gave Grewal the opportunity to withdraw his guilty pleas. Grewal, through his attorney, persisted in the pleas, despite the fact that he then knew that restitution was a possible penalty. Moreover, Grewal himself addressed the court before sentence was imposed, stating that “all I can say is that I pray that you will give me an opportunity to make up the losses for the investors.” The record demonstrates not only that Gre-wal was aware of the possibility of restitution when he reaffirmed his guilty pleas but also that he was eager to make restitution. When viewed against the record, Grewal’s claim that he was unaware of the possibility of restitution and would not have pleaded guilty had he known is so patently incredible that summary dismissal without an evidentiary hearing was proper. Marrow v. United States, 772 F.2d 525, 526 (9th Cir.1985). Ill Grewal also attacks his conviction on the ground that he was denied effective assistance of counsel. He contends that his attorney failed to investigate the lack of intent and good faith defenses to mail fraud. This claim fails because Grewal does not allege that he informed his defense attorney or that his defense attorney knew of any facts that would have required a reasonably competent attorney to investigate the lack of intent or good faith defenses. See Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). Moreover, any claim of ineffective assistance of counsel is contradicted by Grewal’s own declarations made under oath and on the record. Grewal stated that he had had sufficient time to discuss the case with his attorney, that he was satisfied that his attorney had fully considered any defenses to the charges, and that he was satisfied with the representation and advice of his attorney. These declarations concerning the performance of Grewal’s counsel were made in open court under oath and thus carry a strong presumption of verity. Chua Han Mow v. United States, 730 F.2d 1308, 1311 (9th Cir.1984), cert. denied, 470 U.S. 1031, 105 S.Ct. 1403, 84 L.Ed.2d 790 (1985); Rivera-Ramirez, 715 F.2d at 458. On the record, there was simply no reason to believe that the lack of intent or good faith defenses might apply. Hence, there was no duty for a reasonably competent defense attorney to explore these defenses. See Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. Grewal also contends that his attorney failed to investigate the strength of the government’s case in order to determine the likelihood of conviction after a trial. We reject this claim as well. In the supplement to his section 2255 motion, Grewal claimed that the main reason he pleaded guilty was that he lacked funds to pay travel and living expenses during a trial in Chicago. This contradicts his allegation that he would not have pleaded guilty had his attorney investigated the strength of the government’s case. See Hill v. Lockhart, 474 U.S. 52, 57-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). Grewal’s claims of ineffective assistance of counsel, when viewed against the record, are so patently incredible that summary dismissal without an evidentiary hearing was proper. Marrow, 772 F.2d at 526. IV Grewal also claims that the district court erred in failing to discuss the appropriate factors for imposing restitution on the record. Our review of the record convinces us that the district court considered all of the factors set forth in 18 U.S.C. § 3580(a). The court is not required to discuss the factors with the defendant on the record. See United States v. Ruffen, 780 F.2d 1493, 1495 (9th Cir.), cert. denied, — U.S. -, 107 S.Ct. 462, 93 L.Ed.2d 407 (1986); United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 93, 88 L.Ed.2d 76 (1985). V Finally, Grewal contends that the amount of restitution imposed as a condition of probation exceeds the actual loss suffered by the victim. We will not consider this issue on appeal because Grewal did not raise it at the district court level. See United States v. Hoelker, 765 F.2d 1422, 1425 (9th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1219, 89 L.Ed.2d 330 (1986); United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984). VI The district court’s summary dismissal, without an evidentiary hearing, of Grewal’s 28 U.S.C. § 2255 motion to vacate his sentence was proper. AFFIRMED'. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Leah BLOOMENTHAL et al., Plaintiffs-Appellants, v. Michael E. LAVELLE et al., Defendants-Appellees. No. 80-1136. United States Court of Appeals, Seventh Circuit. Submitted Feb. 8, 1980. Decided Feb. 11, 1980. Andrew M. Raucci, Michael P. McClelland, Chicago, 111., for plaintiffs-appellants. Barry T. McNamara, William J. Campbell, Jr., Peter Petrakis, Chicago, 111., for defendants-appellees. Before FAIRCHILD, Chief Judge, and PELL and TONE, Circuit Judges. PER CURIAM. This appeal has been briefed on an emergency basis, due to the time constraints faced by the defendants, the Chicago Board of Election Commissioners and its members, in arranging for ballots to be printed for the primary election to be held on March 18, 1980. Under Rule 34 of the Federal Rules of Appellate Procedure, we have decided this appeal without oral argument. Due to the emergency nature of the appeal, we have dispensed with the notice generally provided under Circuit Rule 14(f). I. The plaintiffs are candidates in the primary election to be held March 18, 1980. Their complaint relates to the manner of placement of candidates on the ballot for that election. The layout of the ballot on the voting machines is such that the offices are listed in horizontal fashion across the top of the ballot, with the names of the candidates listed in vertical columns under the appropriate offices. In some cases, where there is insufficient space to list all candidates in one vertical column, more than one column is used for the same office so that for those offices; some of the names will appear in sequence on a horizontal line and others will appear below on lower horizontal lines. The plaintiffs sought injunctive relief which would have required the defendants to list all candidates for each of the offices in question on the same line (i. e. horizontally across the face of the ballot), thus widening the space devoted to each office. The district court denied preliminary injunctive relief, finding insufficient likelihood of success on the merits. An injunction pending appeal was also denied. II. It is settled that on appeal from the denial of a preliminary injunction, the question before us is whether the district court judge abused his discretion. Kolz v. Board of Education, 576 F.2d 747 (7th Cir. 1978). The standards applicable here are the usual standards for determining whether a preliminary injunction should issue, including whether the plaintiffs have shown a probability of ultimate success on the merits. Because we determine that they have not, we conclude that the district court judge did not abuse his discretion in denying a preliminary injunction. III. To expedite this matter in the district court, the parties entered into a stipulation of facts for the purposes of the motion for preliminary injunction. We will summarize the crucial portions of that stipulation, to show the posture of this case when the district court ruled. The parties stipulated that the order of ballot placement is determined by the order in which petitions are filed, with ties being broken by means of impartial lotteries. The defendants determined the number of vertical columns needed to accommodate the candidates for each office. For example, in one Congressional District there are 43 Democratic Candidates for Delegate to the National Convention. Since there are only four horizontal rows available on the Democratic primary ballot, 11 vertical columns were needed to list all candidates. Where multiple vertical columns are involved in the same race, candidates were listed in horizontal rows. Thus, in the above example, the first 11 candidates were listed on the first horizontal line, the second 11 were listed on the second horizontal line, and so on. Where there are four or less candidates running for an office (and therefore only one vertical column is required), the candidates are listed vertically with the first candidate on the top line. Only 60 vertical columns are available on the voting machines. The parties stipulated that when candidates are arranged vertically, the one listed on top has a certain advantage, and that when they are arranged horizontally, the one at the far left has a certain advantage. Cf. Weisberg v. Powell, 417 F.2d 388, 392-93 (7th Cir. 1969). In the absence of other changes, if all candidates for every office were listed horizontally, some contested offices would have to be taken off of the machine and tallied by another means. If only the named plaintiffs and their opponents were to be arranged horizontally, this could be accomplished without removing contested offices from the machine so long as the candidates for other offices continued to be arranged in vertical columns. It was stipulated that removing contested elections from the machine and tallying them by other means would result in substantial monetary costs, and would probably result in voter confusion and less accurate results. Removing only uncontested elections from the machine would result in no significant additional monetary costs. At present, the defendants plan to put 13 uncontested judicial elections on paper ballots for the primary. In order to minimize the use of paper ballots and maximize use of the machines, the placement of candidates in vertical columns is required by the space limitations of the machine. The specific form of relief sought by the plaintiffs is as follows. They would have required the defendants to remove the remaining uncontested races from the machine ballot, which would make available a certain number of vertical columns. The extra columns could then be used to accommodate the plaintiffs and their opponents, so that all candidates in the four races in question would be listed horizontally on the first line. In other words, while candidates in other races would continue to be arranged in vertical columns beneath the listing of the offices, the candidates in the plaintiffs’ four races would be listed horizontally under the designated offices, all on the same horizontal line. IV. In prior ballot placement cases, we have considered special procedures which were set up for early filing of petitions without general public dissemination, Weisberg v. Powell, supra, and the widespread and persistent practice by County Clerks of excluding opposition party members from the top ballot position, Sangmeister v. Woodard, 565 F.2d 460 (7th Cir.), appeal dismissed, 435 U.S. 939, 98 S.Ct. 1516, 55 L.Ed.2d 535 (1977). In the Weisberg case there were two unequal aspects to the system, which gave rise to an equal protection violation. First, special arrangements were made for Sunday mail delivery, with the Sunday petitions considered to be filed first. The public at large was not advised of these facts, so that only those who knew of the special arrangements could take advantage of them. Second, the Secretary of State selected the order of placement of petitions filed at the same time, doing so according to his own persona] preferences. The Sangmeister case involved the question of which of the major parties should be listed first on the ballot. There was found to be a widespread and persistent practice by the County Clerks to always list the Clerk’s own party first. This constituted an intentional deprivation of equal protection. The present case simply does not present a similar situation. It is difficult to imagine how the plaintiffs could demonstrate an equal protection violation, since to do so they must demonstrate intentional or purposeful discrimination by the election authorities to favor one class over another. Baum v. Lunding, 535 F.2d 1016 (7th Cir. 1976). It may be true that the defendants are responsible for the consequences of their actions, as the plaintiffs have argued. It is equally true that the disadvantage inherent in the ballot positions of the plaintiffs results from the fact, demonstrated by social scientists and now recognized by the courts, that the “first” ballot position has a built-in advantage. Given this fact, the defendants have been ordered by Courts in this Circuit to devise neutral ways to allocate positions on the ballot. So far as the stipulation in this case indicates, they have done so. It is difficult to find the “discrimination” or to define the “class” discriminated against. Similarly, it will be difficult for the plaintiffs to establish a due process violation. We recognize that both candidates’ and voters’ rights are implicated, and that the voters’ rights are fundamental. But not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review. Trafelet v. Thompson, 594 F.2d 623 (7th Cir.), cert. denied, — U.S. —, 100 S.Ct. 219, 62 L.Ed.2d 142 (1979); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). Our cases have indeed recognized that first position on a ballot represents an advantage. Weisberg, supra, 417 F.2d at 392-93; Sangmeister, supra, 565 F.2d at 465. Thus, the plaintiffs argue that we should apply a strict scrutiny standard of review. We refuse to do so on this record, for the following reasons. As to plaintiffs Carroll and Brown, the relief requested would simply substitute a horizontal disadvantage for a vertical disadvantage, since one candidate for each race would continue to be listed first. No evidence was presented to prove that one disadvantage is more severe than the other, and the stipulation does not address the relative severity of disadvantage. As to these two plaintiffs nothing in the record supports a conclusion that any burden on the rights of the voters has been imposed other than that which is a natural consequence of the fact that only one candidate can be listed first. Plaintiffs Lorenz and Bloomenthal arguably present a stronger case, in that their positions on the ballot are both lower than some opponents and to the right of others. Thus, these plaintiffs argue that they suffer from a “double disadvantage.” The record is insufficient to support the conclusion that a double disadvantage has any greater impact than either of the single disadvantages. Even if greater impact had been shown, which it was not, it would appear that the primary burden of the alleged harm seems to be the unavoidable result of the fact that only one candidate can be listed first, regardless of what system is used. Cf. Board of Election Commissioners v. Libertarian Party, 591 F.2d 22, 29 (7th Cir.) (Swygert, J., dissenting), cert. denied, 442 U.S. 918, 99 S.Ct. 2840, 61 L.Ed.2d 285 (1979). Under the circumstances, the rational relationship test would appear to be appropriate. And it appears that it would be a rational choice for the defendants to choose to maximize the use of the machine ballots, rather than to adopt the proposal of the plaintiffs at the expense of requiring greater use of paper ballots. Cf. Board of Election Commissioners v. Libertarian Party, supra, 591 F.2d at 26-27. Under the circumstances, we have no greater confidence than did the district court that the plaintiffs will likely succeed on the merits of this case. As a result, the district court judge did not abuse his discretion in denying a preliminary injunction. The Clerk of this Court is directed to enter judgment AFFIRMING the order of the district court. . Of course, by the time this case is heard on its merits in the district court, the primary election will be past history. We note that this fact will not necessarily moot the case, since as to plaintiffs who may be candidates in the future, the issue involved is capable of repetition but evades review. Board of Election Commissioners v. Libertarian Party, 591 F.2d 22, 24 (7th Cir.), cert. denied, 442 U.S. 918, 99 S.Ct. 2840, 61 L.Ed.2d 285 (1979); Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1970). . Although not explicitly stated in the stipulation, it is apparent that this latter result could be achieved only by removing uncontested races from the machine. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_genapel2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. H & R CORPORATION, Appellant, v. DISTRICT OF COLUMBIA, Appellee. NORAIR REALTY COMPANY, Inc., Appellant, v. DISTRICT OF COLUMBIA, Appellee. Olga Ruppert MAY et al., Appellants, v. DISTRICT OF COLUMBIA, Appellee. Nos. 18328, 18329, 18336, 18337. United States Court of Appeals District of Columbia Circuit. Argued Oct. 23, 1964. Decided May 7, 1965. Petition for Rehearing En Banc Denied June 21, 1965. Mr. David Carliner, Washington, D. C., attorney for appellant in Nos. 18,328 and 18,329, and Mr. James D. Newton, Washington, D. C., attorney for appellants in No. 18,337, argued for all appellants. Mr. Jack Wasserman, Washington, D. C., was also on the brief for appellant in Nos. 18,328 and 18,329. Mr. James M. Earnest, Washington, D. C., was also on the brief for appellants in No. 18,337. Messrs. John F. Myers and Kahl K. Spriggs, Washington, D. C., were on the brief for appellant in No. 18,336. Mr. John R. Hess, Asst. Corp. Counsel for the District of Columbia, with whom Messrs. Chester H. Gray, Corp. Counsel, Milton D. Korman, Principal Asst. Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, were on the brief, for appellee. Before Bazelon, Chief Judge, and Washington and Danaher, Circuit Judges. WASHINGTON, Circuit Judge: This is a condemnation case. The District of Columbia took certain properties near Washington Circle, in the Northwest section of Washington, adjoining the central business area of the city, for use as a park and a police station. The owners demanded a jury trial as to the amount of compensation. The measure of compensation is the fair market value of the condemned property just prior to the taking. United States v. Miller, 317 U.S. 369, 373-374, 63 S.Ct. 276, 87 L.Ed. 336 (1943). In an effort to establish the market value of the property at that time, the owners asserted that there was a reasonable possibility that the property would be rezoned for a more profitable use — the construction of large apartment houses— than the existing zoning (for the construction of residences and small apartment houses) would allow. Such rezoning, which they claimed would add about a third to the estimated fair market value of the land, had never in fact been requested, much less ordered. While the owners did not claim that they were entitled to this increased amount, they argued that the possibility of this increase in value should be taken into account in calculating market value at the time of taking. Two expert witnesses, testifying for the appellants, stated their belief that just prior to the time of taking, a knowledgeable buyer would have taken into account the reasonable probability that the land in question would be rezoned. The trial judge apparently rejected this consideration as an element in fair market value. His charge, although it was somewhat confusing, reflected his opinion that the possibility of a zoning change should not be taken into account as affecting market value at the time of taking. He stated: “You are instructed that all of the lots now under consideration in Square 37 were zoned R-5B on the dates of taking. There has been no testimony in this case from the Zoning Commission of the District of Columbia Government showing that on the dates of taking there was a reasonable probability that the zoning of any of the lots at issue would be rezoned to a higher density zoning. “You are, therefore, instructed that you are not permitted to speculate as to what the Zoning Commission of the District of Columbia might have done with regard to rezoning this property, following the dates of taking.” It is true that the charge also contained a correct statement of the test that the jury was to apply: “Fair market value is defined in the law as the price which a willing seller, who is not obliged to sell, would be willing to accept and the price which a willing buyer, who is not obliged to buy, would be willing to pay for the property. This definition of fair market value, of course, assumes that the buyer is knowledgeable and that the seller is knowledgeable. This means that both the buyer and the seller have full knowledge of all of the present or potential elements of value involved in the transaction into which they are willing to enter. ***** “ * * * Fair market value is the criterion and this fair market value is based upon the probabilities as they appear to the willing buyer and the willing seller.” However, the charge is at best ambiguous. And the specific language instructing the jury not to speculate on a zoning change would probably override the general instruction to look to “the probabilities as they appear to the willing buyer and the willing seller.” We think that the net result of the charge was to give the jury the mistaken impression that they could not consider the possibility of rezoning. The judge has a responsibility to prevent the jury from indulging in baseless speculation about future changes in zoning. In our view the judge’s responsibility is to determine whether a jury would be justified in concluding on the evidence that a willing buyer at the time of taking would have taken into account the possibility of rezoning in deciding the fair market value of the condemned property. If it would, the judge should instruct the jury to take into account the possibility of a zoning change. Only if the trial judge is satisfied that a jury could not reasonably conclude that the possibility of a zoning change would affect the fair market value should he instruct the jury to disregard that element of value. In deciding whether there is sufficient evidence for the jury, the trial court should not resolve questions of credibility. But a jury question is not presented by a witness’ bare assertion that zoning change was probable. His opinion must have some foundation in fact. “It is axiomatic that a witness must explain the ‘observational basis’ of his testimony * * * in order to meet even the test of admissibility. 2 Wigmore, Evidence § 562.” Rollerson v. United States, 119 U.S.App.D.C. 400, 406, 334 F.2d 269, 275 (1964). In this case there was a clash of credible testimony, based on a reasonable foundation, regarding the probability of a change in zoning. Under such circumstances, the judge should have submitted the matter to the jury for its decision under proper instructions. Contrary to the trial judge’s charges, Zoning Commission testimony need not be adduced in order to put the issue before the jury. Appellants also protest the trial judge’s decision on the admissibility of evidence. He ruled that a report of the Zoning Advisory Council, rendered to the Zoning Commission, concerning land somewhat similarly situated, was inadmissible in evidence because it was irrelevant. The text of the proffered report is as follows: “The Council invites attention to our report in Case No. 1 heard on December 5, which is incorporated herein by reference. For convenience, the application [sic] portion of this report is quoted: ‘By memorandum of April 12, 1962, all Commission members were reminded by the staff that expansion of the R-5D district [zoned for high rise apartment houses] is essential. This is a conclusion based on the assumption that Commission policy endorsing high rise apartment development peripheral to the Central Business District is sound and that the rate of construction reached during 1960-61 ought to be maintained. This building pace should not be slowed as a result of too few available sites and inflated land costs, a combination which results in high rents and undue investment risk. (R-5-D areas total only three-tenths of one per cent of the City’s zoned area.) “We think here, and in a similar case opposite on the south side of L Street, which is to be heard on December 10th, that the only pertinent issues are minor and solely those of adjustment of boundary lines of that well-established portion of the R-5-D district known as the New Hampshire coridore [sic]. All issues and policies should be considered, however, and we believe the Commission should not loose [sic] sight of basic objectives.” As to two of the appellants the report was properly excluded. The declarations of taking of the property of appellants Norair Realty Company and Olga Rup-pert May, et al., were filed on October 18, 1962. Appellant H & R Corporation had two pieces of property taken, one on October 18, 1962, and one on January 16, 1963. The report of the Zoning Advisory Council was submitted to the Zoning Commission on December 10, 1962. It seems clear that the report had not been written on October 18, 1962, so that it cannot go to establish the value of the land taken on that date. As to H & R’s property taken in January, 1963, assuming that the report had been made public before the day of taking, the admissibility of the report depends on a balance of the probative value of the report and the delay and confusion that its admission would cause. It is true that this report related to different property than that here at issue; that the Advisory Council is not the ultimate policy-making body; that the staff of the Zoning Commission may not have been correctly quoted; and that the jury might have to be instructed to use the report for some purposes and not for others. On the other hand, knowledge of the contents of this report would probably have increased the amount that an informed-buyer would have paid for this property. In deciding whether or not to admit the report, the trial judge should make some inquiry into the significance attached to such reports by the Zoning Commission and the real estate community. The decision of the District Court is Reversed and the cases remanded for further proceedings not inconsistent with this opinion. . Strictly speaking, the issue is not whether there is a reasonable possibility of rezoning at the time of taking; the issue is whether knowledgeable buyers thought that there was a reasonable possibility of rezoning at that time. Henee, a decision by the Zoning Commission that the property would or would not be rezoned, if such decision had not been made public at the time of taking, would not itself be relevant to this inquiry. Cf. Rapid Transit Co. v. United States, 295 F.2d 465, 466 (10th Cir. 1961); United States v. Meadow Brook Club, 259 F.2d 41, 45 (2d Cir.), cert. denied, 358 U.S. 921, 79 S.Ct. 290, 3 L.Ed.2d 239 (1958). These eases seem to focus on the question of the actual probability of a zoning change at the time of taking. While this approach is at odds with the fair market value standard, it would probably make no difference in most cases. Generally, a policy of the Zoning Commission would be well-known and would have an impact on fair market value. . One Government witness testified: “I don’t think the Zoning Commission, to the best of my knowledge, ever adopts any official position except with respect to specific properties.” . The Zoning Advisory Council is a statutory body, established to advise the Zoning Commission concerning proposed amendments to the Commission’s regulations and maps. See D.C.Code § 5-417 (1961). . The Advisory Council report of December 10, 1962, contains statements purporting to characterize Commission policy and a previous staff report. While we think that these statements are inadmissible, except to show what the Advisory Council considered the Commission’s policy to be, it is open to the appellants to try to prove Commission policy by the introduction of competent evidence in a new trial. 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_subevid	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent." 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". Kirk Bradley BELL, Petitioner-Appellant, v. Jack DUCKWORTH, Respondent-Appellee. No. 87-2591. United States Court of Appeals, Seventh Circuit. Submitted Aug. 30, 1988. Decided Nov. 8, 1988. Rehearing and Rehearing En Banc Denied Dec. 21, 1988. Kirk Bradley Bell, Michigan City, Ind., pro se. David A. Nowak, Deputy Atty. Gen., Indianapolis, Ind., for respondent-appellee. Before POSNER, MANION and KANNE, Circuit Judges. POSNER, Circuit Judge. Kirk Bell was convicted of murder in an Indiana state court. After exhausting his state remedies he brought this habeas corpus action. The district court dismissed and he appeals. The appeal has no merit; we write only to make as clear as we can that procedural errors committed in the course of a state criminal trial are not a ground for federal habeas corpus. Smith v. Phillips, 455 U.S. 209, 221 (1982). Only constitutional error is a ground. This fundamental limitation on the habeas corpus jurisdiction may not be got round by the facile equation of state procedural error to due process denial. See Jones v. Thieret, 846 F.2d 457, 459-61 (7th Cir.1988). That is Bell’s tactic. He complains to begin with about the judge’s refusal to order the prosecution witnesses to leave the courtroom during the voir dire of the jury. He claims that the witnesses may have been contaminated by hearing the questions asked of prospective jurors. (In fact the prosecutor had told his witnesses to remain outside the courtroom until called to testify; and there is no evidence that any of those witnesses were in the courtroom during the voir dire. But that is a detail.) A refusal to exclude (“separate”) witnesses until they testify is not a denial of due process. Separation or sequestration of witnesses, on which see Geders v. United States, 425 U.S. 80, 87 (1976); Fed. R.Evid. 615, is a long-established and well-recognized measure designed to increase the likelihood that testimony will be candid. But the due process clause does not incorporate every refinement of legal procedure designed to make trials fairer or more accurate — not even one hallowed by time. See, e.g., Watson v. Camp, 848 F.2d 89 (7th Cir.1988). It forbids only egregious departures (illustrated by Walberg v. Israel, 766 F.2d 1071 (7th Cir.1985)) from accepted standards of legal justice. Hill v. United States, 368 U.S. 424, 428 (1962). Bell’s next complaint is about the denial of a continuance to enable a defense to be prepared against a prosecution witness who first appeared the day the trial began, having been a fugitive till then. In some circumstances such a ruling could be a denial of due process: if the witness was crucial to the prosecution and the defense needed time to develop evidence to counter his testimony. This witness’s testimony was important (he was an eyewitness), but defense counsel had and exercised the opportunity to cross-examine him fully; and to this day there is no suggestion of what defense against his testimony Bell’s counsel might have developed if given a continuance. Cf. United States ex rel. Searcy v. Greer, 768 F.2d 906, 913 (7th Cir.1985). Next Bell argues about limitations that the judge placed on the scope of one of the witnesses’ testimony. Again the argument is misconceived. Errors in the management of a state criminal trial do not deny the defendant due process of law, see, e.g., Willard v. Pearson, 823 F.2d 1141, 1149 (7th Cir.1987), unless they are so harmful to the cause of truth that, singly or cumulatively, they make the defendant’s conviction fundamentally unfair, see, e.g., Dudley v. Duckworth, 854 F.2d 967, 972 (7th Cir.1988). Last, Bell complains about the judge’s granting a four-day Thanksgiving recess to the jury, rather than resuming on the Friday following Thanksgiving Day for closing arguments (they were held on the following Monday, when the case resumed). The jury was given, and so far as appears obeyed, the usual admonition about not discussing the case with anyone during the recess. So Bell cannot show that he was denied a fair trial. See United States ex rel. Jones v. DeRobertis, 766 F.2d 270, 279 (7th Cir.1985). We find it hard to imagine circumstances in which a scheduling decision unrelated to the right to a speedy trial would deny a defendant due process of law. It trivializes the Constitution and the function of federal habeas corpus to argue that the minutiae of trial scheduling furnish grounds for federal intervention in the state criminal process. AFFIRMED. Question: Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_genresp1	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. 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. MOUNTAIN STATES LEGAL FOUNDATION, on behalf of its individually named members, and Charles H. Maher, Jr., an individual resident of the City and County of Denver, Plaintiffs-Appellants, v. CITY AND COUNTY OF DENVER, a municipal corporation, Mile Hi Cablevision Associates, Ltd., a limited partnership composed of Daniels and Associates Partners Limited; American Television and Communications Corporation, a Delaware corporation; and Mile-Hi Cablevision, Inc., a Colorado corporation, Defendants-Appellees. No. 83-2145. United States Court of Appeals, Tenth Circuit. Jan. 15, 1985. Rehearing Denied Feb. 25,1985. Clint Bolick, of Mountain States Legal Foundation, Denver, Colo., for plaintiffs-appellants. Stephen H. Kaplan, City Atty., George J. Cerrone, Jr., Steven J. Coon, and Andrew L. Weber, Asst. City Attys., Denver, Colo., for defendant-appellee City and County of Denver. William C. McClearn, Joseph W. Halpern, and Elizabeth A. Phelan of Holland & Hart, Denver, Colo., for defendants-appellees Mile Hi Cablevision Associates, Ltd. and Mile-Hi Cablevision, Inc. Before BARRETT, SETH and McKAY, Circuit Judges. PER CURIAM. This three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 10(e). The cause is therefore ordered submitted without oral argument. This matter is before the court on plaintiffs’ “Motion to Remand to District Court with Instructions to Dismiss the Complaint as Moot and to Vacate Decision of District Court.” The basis for this motion is plaintiffs’ argument that the governmental actions complained of below have been satisfied by intervening state court pronouncements relating to the subject cable television permit and contract. We are not convinced, however, that the instant appeal has been rendered moot by the state court proceedings. Nevertheless, we do consider plaintiffs’ papers filed in this court as compelling evidence of their lack of willingness to fully contest the issues on appeal. Therefore, we construe their motion to remand as a request for voluntary dismissal of the appeal under Fed.R.App.P. 42(b). As so construed, the motion is hereby granted. DISMISSED. The mandate shall issue forthwith. 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_sentence	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". MALLOY et al. v. NEW YORK LIFE INS. CO. No. 3388. Circuit Court of Appeals, First Circuit. April 11, 1939. Crawford D. Hening, of Berlin, N. H., and Laurence I. Duncan, of Concord, N. H. (Robert W. Upton, of Concord, N. H., on the brief), for appellants. Jonathan Piper, of Concord, N. H. (Demond, Sulloway, Piper & Jones, of Concord, N. H., on the brief), for appellee. Before BINGHAM, and WILSON, Circuit Judges, and FORD, District Judge. FORD, District Judge. This is an appeal from a decree of the District Court of New Hampshire in an equity suit brought by the New York Life Insurance Company, hereinafter called the “Insurance Company” against Edward T. Malloy, hereinafter called the “insured”, and Thomas E. Malloy, of Gorham, New Hampshire (the latter now being deceased and his estate having no interest in these proceedings), seeking to rescind and cancel the double indemnity and disability provisions of four policies of insurance issued March 12, 1929 to Edward T. Malloy, insuring his life and payable in case of death to Thomas E. Malloy, the father of the insured. All the policies are of the same tenor and effect. Rescission is sought on the ground of fraud and misrepresentation by the insured in his applications for the policies. The bill seeks, in addition, injunctive relief against any action by the insured to enforce the aforesaid provisions. Other provisions of the policies have become incontestable because of the lapse of time. Separate premiums were paid for the double indemnity and disability benefits, and policies such as these are regarded as containing distinct contracts effecting different objects though contained in one instrument. Pyramid Life Ins. Co. v. Selkirk, 5 Cir., 80 F.2d 553; Penn Mutual Life Ins. Co. v. Hartle, 165 Md. 120, 166 A. 614, 91 A.L.R. 1466; Kaffanges v. New York Life Ins. Co., 1 Cir., 59 F.2d 475; New York Life Ins. Co. v. Davis et al., D. C., 5 F.Supp. 316, 319. The insured in his answer denies that he had concealed any material facts or that he had made any false or fraudulent statements, upon which the Insurance Company relied in issuing the policies and he further filed a motion to dismiss based upon the ground that the Insurance Company was precluded by the incontestability clause contained in the policies (see infra) from rescinding the double indemnity and disability provisions by reason of the fact that more than two years had elapsed between the date of issuance of the policies and the filing of this bill of complaint. The written application for the policies contained the following questions and answers: “Q. 8. Have you ever consulted a physician or practitioner for or suffered from any ailment or disease of * * * B. The heart, blood vessels, or lungs? A. No. “Q. 10. Have you ever consulted a physician or practitioner for any ailment or disease not included in your above answers? A. No. “Q. 11. What physicians or practitioners, if any, not named above, have you consulted or been examined or treated by within the past five years? * * * A. None.” The application also contained the following provision which was signed by the insured: “On behalf of myself and of every person who shall have or claim any interest in any insurance made hereunder, I declare that I have carefully read each and all of the above answers, that they are each written as made by me, and that each of them is full, complete and true, and agree that the Company believing them to be true shall rely and act upon them.” It appeared from the testimony in the court below that the policies in suit were contracted for and delivered to the insured at Orono, Maine, on March 12, 1929, by an agent of the Insurance Company while the insured was a student at the University of Maine. He was then twenty-six years of age. In the fall of 1920 the insured was a student at St. John’s Preparatory School at Danvers, Massachusetts, and was suffering from a cold which he had contracted on a trip up Mt. Washington, and consulted one Dr. Edward R. McGee, of Berlin, New Hampshire, about September 1, 1920 who informed him that he had bronchial trouble, bronchitis, or “something like that”. He made one visit to this doctor, and in November of the same year he was taken, by his father, to a tuberculosis clinic conducted by a Dr. John M. Wise in Berlin, New Hampshire. The insured, Edward T. Malloy, at that time did not know it was a tuberculosis clinic and understood from his father that Dr. McGee had advised the visit. The records of that clinic disclose that the insured had a “severe cough” occasionally for the past three years; that the present illness began in 1917 and his complaint was of a “cough” and “greenish sputum” and a diagnosis was made of “incipient tuberculosis, arrested”. The date of this examination was November 9, 1920. The record showed another visit on February 22, 1921, the second and last, when the insured’s condition was “improved, no rales”. The nurse’s card showed a visit to the home of the insured on February 10, 1921, and at subsequent visits in April and May, the insured’s condition was improved. In the fall of 1921 the insured attended the high school in Gorham, New Hampshire, and continued there until the summer of 1923 when he graduated. He did not attend during the school year of 1920. During his stay at high school he played on the school football teams in the fall of 1918, 1919, 1921, and 1922. In the fall of 1923 he entered the University of Maine. At this college physical examinations for military training were required and he successfully passed these for the years 1923 to 1928, inclusive. ' In the fall of 1928 following an application to be excused from military training he was referred for examination to a Dr. Allen Woodcock, a physician in Bangor, Maine, not connected with the University, who examined him on September 21, 1927 on the insured’s complaint that he had been kicked in the shin while playing football four years before and this, because of a subsequent injury, was causing him considerable trouble, and he desired a certificate in order that he might be allowed to omit his military training. The certificate was granted, but later revoked because of his athletic activities. The insured was again examined by Dr. Woodcock on September 18, 1928 for the same purpose and again a certificate was granted. No complete physical examination of the insured was made by Dr. Woodcock at this time nor was he treated for anything. The insured testified in the court below that he had not forgotten these visits to Dr. Woodcock in 1927 and 1928 but he did not mention them because he thought they were included in his military examinations which he had disclosed to the agent who wrote the insurance, and he told him that this was of no consequence. The examining physician for the Insurance Company testified that he wrote in the word “no” because this was his custom when he knew the applicants were taking military training and had a regular army examination. On February 11, 1928, Dr. Thomas J. Burrage of Portland, Maine, had an appointment with the father of the insured, Thomas E. Malloy, for the latter’s usual physical examination. The insured met his father in Portland, Maine, for the purpose of talking to him about leaving college. The father and son both went to Dr. Bur-rage’s office at his father’s suggestion, and after the completion of the father’s examination, the latter requested the doctor to make a complete physical examination of his son and the father stated to the physician that the son had or was said to have had pulmonary tuberculosis, which had never been disclosed to the insured, and he asked the doctor to say nothing about it to his son. The examination by Dr. Burrage lasted from 1% to 1% hours, and the only complaint made by the boy was that he was feeling tired after his mid-year examinations. The insured at this time was twenty-five years of age. Dr. Burrage’s records showed that there was in the lungs a “slight dullness with bronchial breathing but no rales, at right apex above clavicle in front and scapula behind”. Dr. Burrage made a diagnosis of (1) “healed pulmonary tuberculosis right upper lobe”, which was not affecting the general system, (2) poor liver function, and (3) septic tonsils.. There was no talk with Edward about pulmonary tuberculosis and for this no treatment was necessary or prescribed. The physician prescribed the removal of tonsils. Dr. Burrage thought that the insured’s condition was excellent. The insured testified that he did not know at the time of the signing of the application for insurance that he had any disease of the lungs and did not know of Dr. Wise’s diagnosis until the spring of 1935 when he went to visit a Dr. Bolk, in Boston, about his present illness (epilepsy), when his father told him about it; that he was told after the clinic visit that he was in a run-down condition, and he further testified that he saw no nurse at his house and did not recall visiting the clinic in February, 1921. In reference to the visit to Dr. Burrage, he testified that Dr. Burrage had been his father’s doctor for years and he had completely forgotten about this examination when he signed the application. Dr. Edward J. Campbell of New York City, Chief Medical Examiner for the New York Life Insurance Company, testified that acting in accordance with the practice and custom of life insurance companies, if he had known the applicant had been examined at a tuberculosis clinic and incipient pulmonary tuberculosis found, and if he had known Dr. Burrage had found healed symptoms of the disease, septic tonsils and functional liver disorder, the insurance policies in question would not have been issued without further investigation, and if the investigation disclosed the medical history as found, the applications would have been declined. The lower court found this to be a fact. The District Judge found on the above testimony that although the insured was kept in ignorance of the fact that he had had incipient pulmonary tuberculosis, the facts relating to the examination of his chest at the clinic and by Dr. Burrage were such that they must have been within his memory and should have been disclosed. He further found that the insured was not guilty of any fraud or misrepresentation in not disclosing the names of the medical examiners for military training in connection with the college course, as he relied on Dr. Bayard, the examiner for the Insurance Company, to make the proper answers to question No. 11 in reference to these examinations; that the failure of the applicant to disclose the examination by Dr. Woodcock was entirely inconsequential The court further found and ruled that the insured’s failure to mention in his application that he had been examined by Dr. Burrage was intentional and a concealment of a material fact; that the failure to disclose his state of health' at the time of this examination materially increased the risk in that it was information that the Insurance Company was entitled to have in determining whether or not to accept the risk, and further there was design on the part of the insured to defraud the Insurance Company and that for this the provisions of the total and permanent disability benefits of the policies were voidable at the option of the Insurance Company. The insured’s motion to dismiss was denied and a decree was issued cancelling and declaring null and void the double indemnity and disability provisions and conditions of the policies and enjoining the insured from asserting any claim thereunder. The policies in question having been negotiated and delivered in the State of Maine, we have recourse to the laws of that State in determining the respective rights of the parties in the controversy here involved. Rosenthal v. New York Life Ins. Co., 304 U.S. 263, 264, 58 S.Ct. 874, 82 L.Ed. 1330; Ruhlin et al. v. New York Life Ins. Co., 304 U.S. 202, 58 S.Ct. 860, 82 L.Ed. 1290; Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487; Mutual Life Ins. Co. of New York v. Johnson, Adm’r, 293 U.S. 335, 55 S.Ct. 154, 79 L.Ed. 398. The insured relies upon two main assignments of error, the second of which we shall take up first. In this assignment the insured maintains that the findings and rulings that the insured falsely and fraudulently concealed and misrepresented material facts in his application for the policies were clearly wrong. While it is true that on an appeal in equity a case is to be examined on both the law and the facts, and that the reviewing court is not bound by the trial judge’s findings of fact, it is equally true that the appellate court ought not to disturb such findings, -especially where the evidence is conflicting and the credibility of witnesses is involved, unless it appears that the trial judge was clearly wrong. Hughes Federal Practice, Sections 5639, 5425; La Abra Silver Mining Co. v. United States, 175 U.S. 423, 20 S.Ct. 168, 44 L.Ed. 223; Rosenthal et al. v. New York Life Ins. Co., 8 Cir., 99 F.2d 578, 582; Colby v. Riggs Nat. Bank, 67 App.D.C. 259, 92 F.2d 183, 199, 114 A.L.R. 1065; Illinois Watch Case Co. et al. v. Hingeco Mfg. Co., Inc., et al., 1 Cir., 81 F.2d 41; New York Life Ins. Co. v. Simons et al., 1 Cir., 60 F.2d 30; American Rotary Valve Co. v. Moorhead, 7 Cir., 226 F. 202; Cf. Rule 52(a) New Federal Rules of Civil Procedure for the District Courts, 28 U.S.C.A. following section 723c. And where the credibility of witnesses is a determinative factor in arriving at findings of fact, as was the case here, the reviewing court will not usually upset those findings made by the judge who has had the opportunity of seeing and hearing the witnesses testify. Moore v. Ford Motor Co., 2 Cir., 43 F.2d 685; Fuller et al. v. Reed et al., 1 Cir., 249 F. 158. In the instant case, after a complete review of the evidence, we cannot find any warrant for reaching a conclusion that the lower court was wrong in its findings of fact. Nor was the court in error in its conclusions of law that the policies were voidable at the option of the Insurance Company, in view of its findings of facts, unless that question is concluded by the two-year incontestible clause. The principles laid down in the case of Sakallaris v. New York Life Insurance Company, 134 Me. 91, 181 A. 669, appear to be decisive of the questions here involved. In that case an action was brought to recover on a life insurance policy issued by an insurance company which defended on the ground that the policy was 'voided by misrepresentations of the insured in his application. The form of application was practically similar to the one in the instant case ■ and contained an agreement signed by the insured that the company if it believed the answers to be true “shall rely and act upon them”. The insured’s answer was “none” to the question as to what physicians or practitioners he had consulted or been examined or treated by during the past five years, where as a matter of fact the evidence showed within a very short time prior to the date of the application he had been treated by a physician, for heart trouble and that the doctor had found him in bed s'pitting blood with a low blood pressure and that a diagnosis was made by the physician of “coronary occlusion”. The court said, (134 Me. pages 94, 95, 181 A. page 670): “When the applicant for this policy denied that he had ‘raised or spat blood]’ had ‘consulted a physician or practitioner for or suffered from any ailment or disease of the heart,’ that within the past five years had ‘consulted with or been treated by a physician,’ he stated facts material to the risk which were false and untrue and by so doing made recovery * * * impossible as a matter of law.” The court further found in this case that not only were the denials “false and untrue” but “he knew them so to be”. And it said, “Our finding on' this issue of falct as to his understanding of the questions makes it unnecessary to decide the issue of law raised by the plaintiff’s counsel as to whether or not plaintiff could recover if, not understanding the questions, he made untrue statements of fact material to the risk. As yet, that has not been passed upon in this state.” Hughes Admr’s v. Metropolitan Life Ins. Co., 117 Me. 244, 103 A. 465; Berman v. Fraternities Health & Accident Association, 107 Me. 368, 78 A. 462; Jeffrey, Ex’r., v. United Order of the Golden Cross, 97 Me. 176, 53 A. 1102. In the instant case, the lower court made similar findings, viz., that the omission to inform the Insurance Company of Dr. Burrage was intentional; that it constituted concealment of a material fact; and that it was done with an intention to deceive. In view of the latter finding it is unnecessary to consider the contention of the Insurance Company that proof of actual fraud is unnecessary to warrant void-ability if the representations that are made are false, untrue, and material to the risk. The Sakallaris case, supra, is in agreement with the general law that questions and answers in the application for insurance as to prior medical treatment are material and affect the risk. The court in New York Life Insurance Company v. Simons, supra, said [60 F.2d 34]: “A representation in an application is material in the determination by an insurance company of the desirability of a risk, if in the course of the general experience of insurance companies it may affect the risk, * * .” Stipcich v. Metropolitan Life Ins. Co., 277 U.S. 311, 48 S.Ct. 512, 72 L.Ed. 895; Mutual Life Ins. Co. of New York v. Hilton-Green, 241 U.S. 613, 36 S.Ct. 676, 60 L.Ed. 1202; Jeffries, Adm’r v. Economical Mutual Life Ins. Co., 22 Wall. 47, 22 L.Ed. 833; Ginsburg v. Pacific Mutual Life Ins. Co., 2 Cir., 89 F.2d 158, 159; Dudgeon v. Mutual Benefit Health & Accident Ass’n, 4 Cir., 70 F.2d 49, 51; Nonatum Inv. Co. v. Maryland Casualty Co., 1 Cir., 56 F.2d 329, 335; Mutual Life Ins. Co. of New York v. Hurni Packing Co., 8 Cir., 260 F. 641, 645. And further if the representations are false and made with an intention to deceive, the provisions of the policy concerning double indemnity and disability benefits are voidable at the option of the insurer. New York Life Ins. Co. v. Simons, supra; New York Life Ins. Co. v. Webber et al., 1 Cir., 60 F.2d 22; Kaffanges v. New York Life Ins. Co., supra; Nonatum Inv. Co. v. Maryland Casualty Co., supra. The fact that there was no causal connection between the facts fraudulently misrepresented and the present illness (epilepsy) of the insured upon which the claim for disability benefits was based is of no consequence. Ginsburg v. Pacific Mut. Life Ins. Co. of California, supra; Jefferson Standard Life Ins. Co. v. Clemmer, 4 Cir., 79 F.2d 724, 103 A.L.R. 171; New York Life Ins. Co. v. Webber, supra; Hurt et al. v. New York Life Ins. Co., D. C., 41 F.2d 392, 394. The other main assignment of error upon which the insured relies in his appeal is that the ruling upon his motion to dismiss, that the double indemnity and disability provisions of the policies are contestable for misrepresentation and fraud in the procurement of the policies, is clearly wrong. Each of the policies in suit contained the following clause: “Incontestability. — This Policy shall be incontestable after two years from its date of issue except for non-payment of premium and except as to provisions and conditions relating to Disability and Double Indemnity Benefits.” Chapter 60, Section 147 of the Revised Statutes of Maine provides as follows: “Life insurance policies incontestable after two years; exceptions. 1923, c. 164. The policy of life insurance together with the application and the medical examination therefor, a copy or photograph of which application without the medical examination shall be endorsed upon or attached to the policy and made a part thereof, shall constitute the entire contract between the parties and shall be incontestable after it shall have been in force during the lifetime of the insured for two years from its date, except for non-payment of premiums * * and at the option of the company provisions relative to benefits in the event of total and permanent disability and provisions which grant additional insurance specifically against death by accident may also be excepted.” It is the contention of the insured that, under the authority granted by this statute to except from the incontestability clause provisions of the policy relating to double indemnity and disability benefits, the Insurance Company has not clearly and plainly done so, and we think the insured is correct in his contention. The Supreme Court of the State of Maine has not as yet passed directly upon this question and this court will exercise an independent judgment in determining the law with respect to the issues here presented, based upon whatever principles of state law are applicable. Rosenthal v. New York Life Ins. Co., supra; New York Life Ins. Co. v. Jackson, 304 U.S. 261, 262, 58 S.Ct. 871, 82 L.Ed. 1329; Burns Mortgage Co. v. Fried, 292 U.S. 487, 496, 54 S. Ct. 813, 78 L.Ed. 1380; Burgess v. Seligman, 107 U.S. 20, 2 S.Ct. 10, 27 L.Ed. 359; New York Life Ins. Co. v. Jackson et al., 7 Cir., 98 F.2d 950. It is the law of Maine, as it is generally, that if the language of an insurance policy is ambiguous, or susceptible of interpretations different in import, construction should be most strongly against the insurer, on whom the obligation of contract rests, and who is supposed to have chosen the wording. “No rule * * * is more fully established, or more imperative and controlling * * Barnes v. Dirigo Mutual Fire Ins. Co., 122 Me. 486, 120 A. 675, 676; Dunning v. Massachusetts Mut. Acc. Ass’n, 99 Me. 390, 59 A. 535; Young v. Travelers’ Ins. Co., 80 Me. 244, 13 A. 896; Abbott v. Hampden Ins. Co., 30 Me. 414. As the court said in Mutual Life Insurance Company of New York v. Hurni Packing Company, 263 U.S. 167, 174, 44 S. Ct. 90, 91, 68 L.Ed. 235, 31 A.L.R. 102: “The rule is settled that in case of ambiguity that construction of the policy will be adopted which is most favorable to the insured. The language employed is that of the company and it is consistent with both reason and justice that any fair doubt as to the meaning of its own words should be resolved against it.” Stroehmann et al. v. Mutual Life Insurance Company of New York, 300 U.S. 435, 57 S.Ct. 607, 81 L.Ed. 732. Webster’s New International Dictionary defines “ambiguity” as “doubtfulness or uncertainty, especially in the meaning of language arising from its admitting of more than one meaning.” (Ltalics supplied.) Ballentine Law Dictionary (p. 73). Was the incontestability clause in these policies, in accordance with these principles, fairly and reasonably susceptible of interpretations different in import, or of more than one meaning? It is well settled that these beneficent clauses are included in the policies to affect their saleability and the test to be applied by the court in construing them is, what would the reasonably prudent person applying for insurance of this type understand the clause to mean, not what they would mean to a lexicographer or a grammarian? Nor is the test what the insurance company intended the words to mean. As was quoted by Judge Woodbury from the case of Watson v. Firemen’s Insurance Company, 83 N. H. 200, 140 A. 169, speaking for the court in the case of Duhaime v. Prudential Insurance Company of America, 86 N.H. 307, 308, 167 A. 269: “ ‘The test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would have understood them to mean.’ ” McGinley v. John Hancock Mut. Life Ins. Co., 88 N.H. 108, 109, 184 A. 593. It is to be observed that the clause of the policies here in question does not, in accordance with the terms of the Maine statute, merely except “provisions” relative to the benefits described, but excepts “as to provisions and conditions relating to disability and double indemnity benefits”, thereby constricting its scope. Also, the policy on its face provides for the' payment of double the face of the policy “if such death resulted from accident as defined under ‘double indemnity’ and subject to the provisions therein set forth”. (Italics supplied.) This is a direct reference to the. provisions contained in the section of the policy entitled “Double Indemnity” and set off by itself on page 2. There is a further reference on page 1 of the policy to the “benefits and provisions * * * on the following pages”. And on turning to the double indemnity and disability sections of the policy on page 2, there appear therein provisions and conditions relating to these benefits. Also both of these benefits are referred to in each of these sections as “this provision”. There is no reference to the application in the reservation as to contestability, nor do the double indemnity and disability provisions contain anything'relative to fraud in obtaining the policy or the effect of false statements in the application. Stroehmann. v. Mutual Life Insurance Company of New York, supra, 300 U.S. page 438, 57 S.Ct. 607, 81 L.Ed. 732. The average person would be justified in inferring that the words “provisions and conditions” in the clause are used synonymously, and it would not be an unnatural inference for him to suppose that the incontestability clause excepted the right to contest the liability in accordance with the provisions and conditions which are specified under the headings “Double Indemnity and Total and Permanent Disability” where all the “conditions” are contained. Inasmuch as the Insurance Company has confined itself to this detailed use of language, it must be bound by a reasonable interpretation of it. In the case of Ness v. Mutual Life Insurance Company of New York, 4 Cir., 70 F.2d 59, the court in construing the following incontestable clause in a policy of insurance: “Except for non-payment of premiums and except for the restrictions and provisions applying to the Double Indemnity and Disability Benefits as provided in Sections 1 and 3 respectively, this Policy shall be incontestable * * * ” (Section 1 referring to the circumstances and conditions under which Double Indemnity should become payable and Section 3 to Disability benefits), decided that the effect of the excepting phrase was not effective to render the incontestable clause inapplicable to disability benefits, but was merely to preserve the rights of the company under the restrictions and provisions specifically set forth in Sections 1 and 3. That there was no ambiguity in the language used. And the court further stated (page 60): “The purpose of the second exception in the incontestability clause was to make clear that, notwithstanding the provisions of that clause, the company reserved the right to rely upon the restrictions and provisions contained in sections 1 and 3. Thus the right was reserved to contest, under section 1, liability for double indemnity in case of suicide or death resulting from military or naval service or from engaging in felony. And the right was reserved to contest, under section 3, claims for disability where due proofs had not been furnished, or where upon request of the company proofs of the continuance of the disability had been refused, or where the disability resulted from self-inflicted injury or from military or naval service beyond the continental limits of the United States and Canada. * * * It was evidently to guard against a construction of the policy holding that the defenses reserved in sections 1 and 3 were precluded by the incontestability clause, that the second exception in that clause was inserted. “If it had been the intention of the company that the right to contest liability for double indemnity or disability benefits should not be affected by the incontestability clause, it would have been easy enough to use language making that intention clear, as by simply wording the second exception.to the incontestability clause to read: ‘Except as to liability for double indemnity or disability benefits.’ If there were any ambiguity in the language used, it is well settled that it should be resolved in favor of the insured. * * * It is to be noted that the exception is, not as to the double indemnity and disability benefits, but as to ‘restrictions and provisions applying to the double indemnity and disability benefits.’ ” The Insurance Company relies to support its contention that the clause involved no ambiguity and should be sustained to allow the Insurance Company to contest the validity of its double indemnity and total disability provisions for fraud at the inception of the contract upon the case of Equitable Life Assurance Soc. of U. S. v. Deem, 4 Cir., 91 F.2d 569, 571, which arose in the same circuit as the Ness case, supra. However, the language of the policy involved in that case and of the incontestability clause therein was very different from the language of the clause in this case. The incontestability clause in that case was as follows: “This policy, except as to the provisions relating to Disability and Double Indemnity, shall be (a) Incontestable * * * » q'jjg Qgmrt jn this case easily justified its position in the Ness case, supra, in the following language (pages 57.3, 574):. “The wording of the exception [Ness case] was however quite different from that in the instant case. * * * On comparison the differences are obvious. In the Ness Case the word ‘provisions’ by the context was at least susceptible of a meaning synonymous with ‘restrictions’ or ‘conditions’; the exception was grammatically applicable to the word incontestable (rather than to the ‘policy’), and the scope of the phrase was further limited specifically to certain portions of the policy, and not made applicable to the whole. And Judge Parker, for the Court, clearly points out the distinction in the opinion. ‘It is to be noted that the exception is, not as -to the double indemnity and disability benefits, but as to “restrictions and provisions applying to the double indemnity and disability benefits.” ’ ” This language and reasoning is applicable to the wording of the incontestability clause in the present suit, and in accord with the conclusion reached here. Judge Denman in construing the precise incontestability clause contained in the policies in suit in a well-reasoned opinion in the case of New York Life Insurance Company v. Kaufman et al., 9 Cir., 78 F.2d 398, reached the same result arrived at by us in the instant case. Speaking for the court which held the clause ambiguous, he stated (page 403): “One does not draw a provision to contest such conditions in a contract by a fraud defeating the whole instrument. It is more rational to suppose that the con-testability which the excepting phrase saves is as to the satisfaction of the conditional requirements, even if prior decisions of the courts had held such precaution unnecessary. “It thus appears ambiguous whether the unnecessarily plural particularizing exception as to provisions and conditions relating to the disability benefits refers to the blocked off group of provisions and conditions or to the insurance as a whole. This ambiguity must be resolved against the company and the contests reserved by the excepting phrase held to be confined to this enclosed group.” ' A similar conclusion to this was reached in the cases of New York Life Insurance Company v. Truesdale, 4 Cir., 79 F.2d 481; New York Life Insurance Company v. Yerys et al., 4 Cir., 80 F.2d 264, where the court saw no material difference in the incontestability clause in the policies in suit from that contained in the policy considered in Ness v. Mutual Life Insurance Company of New York, supra; Horwitz et ux. v. New York Life Insurance Company, 9 Cir., 80 F.2d 295; Thompson v. New York Life Insurance Company, D. C., 9 F.Supp. 248. Judge Branch in the case of Penn Mutual Life Insurance Company v. Kelley, 88 N.H. 351, 355, 189 A. 345, 346, in. determining the meaning of an “except” clause which read, “ * * * Except as to any provision relating to disability benefits” construed it to read, “Except as to any provisions relating to disability benefits which furnish grounds for defense.” And further stated: “All other defenses not based upon ‘any provisions relating to disability benefits’ are barred by the incontestability clause of the policy * * * Cf. Pyramid Life Ins. Co. v. Selkirk, 5 Cir., 80 F.2d 553, contra. Kaffanges v. New York Life Insurance Company, supra, decided in this circuit and cited by counsel for the Insurance Company in his brief, is no authority for the position the Insurance Company takes in this case, inasmuch as the question in issue here was not raised therein. Mr. Justice McReynolds in Stroehmann v. Mutual Life Insurance Company of New York, supra (300 U.S. pages 439, 440, 57 S. Ct. page 609, 81 L.Ed. 732), where the court was construing an incontestability clause similar to that in the Ness case, supra, stated that: “Examination of the words relied upon to show an exception to the incontestability clause of the policy discloses ample cause for doubt concerning their meaning. The arguments of counsel have emphasized the uncertainly sjc * * » He further stated: “Without difficulty respondent could have expressed in plain words the exception for which it now contends. It has failed, we think, so to do. And applying the settled rule, the insured is entitled to the benefit of the resulting doubt.” This language is apposite here. There is no dearth of words in the English language which interdicts clarification in these incontestability clauses. In fact many of the cases have suggested a clear and plain wording to accomplish this purpose. If, on the other hand, the Insurance Company prefers 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:
sc_issuearea	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. JAMES v. UNITED STATES No. 05-9264. Argued November 7, 2006 Decided April 18, 2007 Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, and Breyer, JJ., joined. Scaua, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined, post, p. 214. Thomas, J., filed a dissenting opinion, post, p. 231. Craig L. Crawford argued the cause for petitioner. With him on the briefs were R. Fletcher Peacock and Jeffrey T Green. Jonathan L. Marcus argued the cause for the United States. With him on the brief were Solicitor General Clement, Assistant Attorney General Fisher, Deputy Solicitor General Dreeben, and Daniel S. Goodman. Justice Alito delivered the opinion of the Court. The Armed Career Criminal Act (ACCA), 18 U. S. C. § 924(e)(1) (2000 ed., Supp. IV), provides that a defendant convicted of possession of a firearm by a convicted felon, in violation of § 922(g), is subject to a mandatory sentence of 15 years of imprisonment if the defendant has three prior convictions “for a violent felony or a serious drug offense.” The question before us is whether attempted burglary, as defined by Florida law, is a “violent felony” under ACCA. We hold that it is, and we therefore affirm the judgment of the Court of Appeals. I Petitioner Alphonso James pleaded guilty in federal court to one count of possessing a firearm after being convicted of a felony, in violation of § 922(g)(1). In his guilty plea, James admitted to the three prior felony convictions listed in his federal indictment. These included a conviction in Florida state court for attempted burglary of a dwelling, in violation of Fla. Stat. §§810.02 and 777.04 (1993). At sentencing, the Government argued that James was subject to ACCA’s 15-year mandatory minimum term because of his three prior convictions. James objected, arguing that his attempted burglary conviction did not qualify as a “violent felony” under 18 U. S. C. § 924(e). The District Court held that attempted burglary is a violent felony, and the Court of Appeals for the Eleventh Circuit affirmed that holding, 430 F. 3d 1150, 1157 (2005). We granted certiorari, 547 U. S. 1191 (2006). II A ACCA’s 15-year mandatory minimum applies “[i]n the case of a person who violates section 922(g) of this title [the felon in possession of a firearm provision] and has three previous convictions... for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” § 924(e)(1) (2000 ed., Supp. IV). ACCA defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year... that— “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or “(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B). Florida defined the crime of burglary at the time of James’ conviction as follows: “ ‘Burglary’ means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” Fla. Stat. §810.02(1). Florida’s criminal attempt statute provided: “A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt.” § 777.04(1). The attempted burglary conviction at issue here was punishable by imprisonment for a term exceeding one year. The parties agree that attempted burglary does not qualify as a “violent felony” under clause (i) of ACCA’s definition because it does not have “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U. S. C. § 924(e)(2)(B)(i). Nor does it qualify as one of the specific crimes enumerated in clause (ii). Attempted burglary is not arson or extortion. It does not involve the use of explosives. And it is not “burglary” because it does not meet the definition of burglary under ACCA that this Court set forth in Taylor v. United States, 495 U. S. 575, 598 (1990): “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” See Fla. Stat. § 777.04(1) (crime of attempt under Florida law requires as an element that the defendant “fai[l] in the perpetration or [be] intercepted or prevented in the execution” of the underlying offense). The question before the Court, then, is whether attempted burglary, as defined by Florida law, falls within ACCA’s residual provision for crimes that “otherwise involv[e] conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. § 924(e)(2)(B)(ii). B Before determining whether the elements of attempted burglary under Florida law qualify under ACCA’s residual provision, we first consider James’ argument that the statute’s text and structure categorically exclude attempt offenses from the scope of the residual provision. We conclude that nothing in the plain language of clause (ii), when read together with the rest of the statute, prohibits attempt offenses from qualifying as ACCA predicates when they involve conduct that presents a serious potential risk of physical injury to another. James first argues that the residual provision of clause (ii) must be read in conjunction with clause (i), which expressly includes in its definition of “violent felony” offenses that have “as an element the... attempted use... of physical force against the person of another.” § 924(e)(2)(B)(i) (emphasis added). James thus concludes that Congress’ express inclusion of attempt offenses in clause (i), combined with its failure to mention attempts in clause (ii), demonstrates an intent to categorically exclude attempt offenses from the latter provision. We are not persuaded. James’ reading would unduly narrow clause (ii)’s residual provision, the language of which does not suggest any intent to exclude attempt offenses that otherwise meet the statutory criteria. Clause (i), in contrast, lacks a broad residual provision, thus making it necessary to specify exactly what types of offenses — including attempt offenses — are covered by its language. In short, “the expansive phrasing of” clause (ii) “points directly away from the sort of exclusive specification” that James would read into it. Chevron U S. A. Inc. v. Echazabal, 536 U. S. 73, 80 (2002); see also United States v. Davis, 16 F. 3d 212, 217 (CA7) (rejecting argument that “had Congress wished to include attempted burglary as a § 924(e) predicate offense, it would have done so expressly” as “untenable in light of the very existence of the ‘otherwise’ clause, which Congress plainly included to serve as a catch-all provision”), cert, denied, 513 U. S. 945 (1994). James next invokes the canon of ejusdem generis — that when a general phrase follows a list of specifies, it should be read to include only things of the same type as those specifically enumerated. He argues that the “common attribute” of the offenses specifically enumerated in clause (ii) — burglary, arson, extortion, and crimes involving the use of explosives — is that they are all completed offenses. The residual provision, he contends, should similarly be read to extend only to completed offenses. This argument is unavailing. As an initial matter, the premise on which it depends — that clause (ii)’s specifically enumerated crimes are limited to completed offenses — is false. An unsuccessful attempt to blow up a government building, for example, would qualify as a specifically enumerated predicate offense because it would “involv[e] [the] use of explosives.” See, e.g., § 844(f)(1) (2000 ed., Supp. IV) (making it a crime to “maliciously damag[e] or destro[y], or attempft] to damage or destroy, by means of fire or an explosive,” certain property used in or affecting interstate commerce (emphasis added)). In any event, the most relevant common attribute of the enumerated offenses of burglary, arson, extortion, and explosives use is not “completion.” Rather, it is that all of these offenses, while not technically crimes against the person, nevertheless create significant risks of bodily injury or confrontation that might result in bodily injury. As we noted in Taylor: “Congress thought that certain general categories of property crimes — namely burglary, arson, extortion, and the use of explosives — so often presented a risk of injury to persons, or were so often committed by career criminals, that they should be included in the enhancement statute even though, considered solely in terms of their statutory elements, they do not necessarily involve the use or threat of force against a person.” 495 U. S., at 597. See also id., at 588 (noting that Congress singled out burglary because it “often creates the possibility of a violent confrontation”); United States v. Adams, 51 Fed. Appx. 507, 508 (CA6 2002) (arson presents “a serious potential risk of physical injury to another” because “[n]ot only might the targeted building be occupied,” but also “the fire could harm firefighters and onlookers and could spread to occupied structures”); H. R. Rep. No. 99-849, p. 3 (1986) (purpose of clause (ii) was to “add State and Federal crimes against property such as burglary, arson, extortion, use of explosives and similar crimes as predicate offenses where the conduct involved presents a serious risk of injury to a person”). Congress’ inclusion of a broad residual provision in clause (ii) indicates that it did not intend the preceding enumerated offenses to be an exhaustive list of the types of crimes that might present a serious risk of injury to others and therefore merit status as a § 924(e) predicate offense. Nothing in the statutory language supports the view that Congress intended to limit this category solely to completed offenses. C James also relies on ACCA’s legislative history to buttress his argument that clause (ii) categorically excludes attempt offenses. In the deliberations leading up to ACCA’s adoption in 1984, the House rejected a version of the statute that would have provided enhanced penalties for use of a firearm by persons with two prior convictions for “any robbery or burglary offense, or a conspiracy or attempt to commit such an offense.” S. 52, 98th Cong., 2d Sess., § 2 (1984) (emphasis added). The bill that ultimately became law omitted any reference to attempts, and simply defined “violent felony” to include “robbery or burglary, or both.” Armed Career Criminal Act of 1984, § 1802, 98 Stat. 2185, repealed in 1986 by Pub. L. 99-308, § 104(b), 100 Stat. 459. James argues that Congress’ rejection of this explicit “attempt” language in 1984 evidenced an intent to exclude attempted burglary as a predicate offense. Whatever weight this legislative history might ordinarily have, we do not find it probative here, because the 1984 enactment on which James relies was not Congress’ last word on the subject. In 1986, Congress amended ACCA for the purpose of “‘expanding’ the range of predicate offenses.” Taylor, supra, at 584. The 1986 amendments added the more expansive language that is at issue in this case — including clause (ii)’s language defining as violent felonies offenses that are “burglary, arson, or extortion, involv[e] use of explosives, or otherwise involv[e] conduct that presents a serious potential risk of physical injury to another.” Career Criminals Amendment Act of 1986, § 1402(b), 100 Stat. 3207-40, codified at 18 U.S.C. § 924(e)(2)(B)(ii). This language is substantially broader than the 1984 provision that it amended. Because both the Government and the Court of Appeals relied on the broader language of the 1986 amendments — specifically, the residual provision — as the textual basis for including attempted burglary within the law’s scope, Congress’ rejection of express language including attempt offenses in the 1984 provision is not dispositive. Congress did not consider, much less reject, any such language when it enacted the 1986 amendments. What it did consider, and ultimately adopted, was a broadly worded residual clause that does not by its terms exclude attempt offenses, and whose reach is broad enough to encompass at least some such offenses. Ill Having concluded that neither the statutory text nor the legislative history discloses any congressional intent to categorically exclude attempt offenses from the scope of § 924(e)(2)(B)(ii)’s residual provision, we next ask whether attempted burglary, as defined by Florida law, is an offense that “involves conduct that presents a serious potential risk of physical injury to another.” In answering this question, we employ the “ ‘categorical approach’ ” that this Court has taken with respect to other offenses under ACCA. Under this approach, we “Took only to the fact of conviction and the statutory definition of the prior offense,’” and do not generally consider the “particular facts disclosed by the record of conviction.” Shepard v. United States, 544 U. S. 13, 17 (2005) (quoting Taylor, 495 U. S., at 602). That is, we consider whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender. A We begin by examining what constitutes attempted burglary under Florida law. On its face, Florida’s attempt statute requires only that a defendant take “any act toward the commission” of burglary. Fla. Stat. § 777.04(1). James contends that this broad statutory language sweeps in merely preparatory activity that poses no real danger of harm to others — for example, acquiring burglars’ tools or casing a structure while planning a burglary. But while the statutory language is broad, the Florida Supreme Court has considerably narrowed its application in the context of attempted burglary, requiring an “overt act directed toward entering or remaining in a structure or conveyance.” Jones v. State, 608 So. 2d 797, 799 (1992). Mere preparation is not enough. See ibid. Florida’s lower courts appear to have consistently applied this heightened standard. See, e. g., Richardson v. State, 922 So. 2d 331, 334 (App. 2006); Davis v. State, 741 So. 2d 1213, 1214 (App. 1999). The pivotal question, then, is whether overt conduct directed toward unlawfully entering or remaining in a dwelling, with the intent to commit a felony therein, is “conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. § 924(e)(2)(B)(ii). B In answering this question, we look to the statutory language for guidance. The specific offenses enumerated in clause (ii) provide one baseline from which to measure whether other similar conduct “otherwise... presents a serious potential risk of physical injury.” In this case, we can ask whether the risk posed by attempted burglary is comparable to that posed by its closest analog among the enumerated offenses — here, completed burglary. See Taylor, supra, at 600, n. 9 (“The Government remains free to argue that any offense — including offenses similar to generic burglary — should count towards enhancement as one that ‘otherwise involves conduct that presents a serious potential risk of physical injury to another’ under § 924(e)(2)(B)(ii)”). The main risk of burglary arises not from the simple physical act of wrongfully entering onto another’s property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party — whether an occupant, a police officer, or a bystander — who comes to investigate. That is, the risk arises not from the completion of the burglary, but from the possibility that an innocent person might appear while the crime is in progress. Attempted burglary poses the same kind of risk. Interrupting an intruder at the doorstep while the would-be burglar is attempting a break-in creates a risk of violent confrontation comparable to that posed by finding him inside the structure itself. As one court has explained: “In all of these cases the risk of injury arises, not from the completion of the break-in, but rather from the possibility that some innocent party may appear on the scene while the break-in is occurring. This is just as likely to happen before the defendant succeeds in breaking in as after. Indeed, the possibility may be at its peak while the defendant is still outside trying to break in, as that is when he is likely to be making noise and exposed to the public view.... [T]here is a serious risk of confrontation while a perpetrator is attempting to enter the building.” United States v. Payne, 966 F. 2d 4, 8 (CA1 1992). Indeed, the risk posed by an attempted burglary that can serve as the basis for an ACCA enhancement may be even greater than that posed by a typical completed burglary. All burglaries begin as attempted burglaries. But ACCA only concerns that subset of attempted burglaries where the offender has been apprehended, prosecuted, and convicted. This will typically occur when the attempt is thwarted by some outside intervenor — be it a property owner or law enforcement officer. Many completed burglaries do not involve such confrontations. But attempted burglaries often do; indeed, it is often just such outside intervention that prevents the attempt from ripening into completion. Concluding that attempted burglary presents a risk that is comparable to the risk posed by the completed offense, every Court of Appeals that has construed an attempted burglary law similar in scope to Florida’s has held that the offense qualifies as a “violent felony” under clause (ii)’s residual provision. The only cases holding to the contrary involved attempt laws that could be satisfied by preparatory conduct that does not pose the same risk of violent confrontation and physical harm posed by an attempt to enter a structure illegally. Given that Florida law, as interpreted by that State’s highest court, requires an overt act directed toward the entry of a structure, we need not consider whether the more attenuated conduct encompassed by such laws presents a potential risk of serious injury under ACCA. The United States Sentencing Commission has come to a similar conclusion with regard to the Sentencing Guidelines’ career offender enhancement, whose definition of a predicate “crime of violence” closely tracks ACCA’s definition of “violent felony.” See United States Sentencing Commission, Guidelines Manual §4B1.2(a)(2) (Nov. 2006) (USSG). The Commission has determined that “crime[s] of violence” for the purpose of the Guidelines enhancement “include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” §4B1.2, comment., n. 1. This judgment was based on the Commission’s review of empirical sentencing data and presumably reflects an assessment that attempt crimes often pose a similar risk of injury as completed offenses. As then-Chief Judge Breyer explained, “[t]he Commission, which collects detailed sentencing data on virtually every federal criminal case, is better able than any individual court to make an informed judgment about the relation between” a particular offense and “the likelihood of accompanying violence.” United States v. Doe, 960 F. 2d 221, 225 (CA1 1992); see also USSG §1A3 (Nov. 1987), reprinted in § 1 A1.1 comment. (Nov. 2006) (describing empirical basis of Commission’s formulation of Guidelines); United States v. Chambers, 478 F. 3d 724 (CA7 2007) (noting the usefulness of empirical analysis from the Commission in determining whether an unenumerated crime poses a risk of violence). While we are not bound by the Sentencing Commission’s conclusion, we view it as further evidence that a crime like attempted burglary poses a risk of violence similar to that presented by the completed offense. C James responds that it is not enough that attempted burglary “ ‘generally’ ” or in “ ‘most cases’ ” will create a risk of physical injury to others. Brief for Petitioner 32. Citing the categorical approach we employed in Taylor, he argues that we cannot treat attempted burglary as an ACCA predicate offense unless all cases present such a risk. James’ approach is supported by neither the statute’s text nor this Court’s holding in Taylor. One could, of course, imagine a situation in which attempted burglary might not pose a realistic risk of confrontation or injury to anyone — for example, a break-in of an unoccupied structure located far off the beaten path and away from any potential intervenors. But ACCA does not require metaphysical certainty. Rather, § 924(e)(2)(B)(ii)’s residual provision speaks in terms of a “potential risk.” These are inherently probabilistic concepts. Indeed, the combination of the two terms suggests that Congress intended to encompass possibilities even more contingent or remote than a simpie “risk,” much less a certainty. While there may be some attempted burglaries that do not present a serious potential risk of physical injury to another, the same is true of completed burglaries — which are explicitly covered by the statutory language and provide a baseline against which to measure the degree of risk that a nonenumerated offense must “otherwise” present in order to qualify. James’ argument also misapprehends Taylor's categorical approach. We do not view that approach as requiring that every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony. Cf. Gonzales v. Duenas-Alvarez, 549 U. S. 183, 193 (2007) (“[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime”). Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another. One can always hypothesize unusual cases in which even a prototypically violent crime might not present a genuine risk of injury — for example, an attempted murder where the gun, unbeknownst to the shooter, had no bullets, see United States v. Thomas, 361 F. 3d 653, 659 (CADC 2004). Or, to take an example from the offenses specifically enumerated in § 924(e)(2)(B)(ii), one could imagine an extortion scheme where an anonymous blackmailer threatens to release embarrassing personal information about the victim unless he is mailed regular payments. In both cases, the risk of physical injury to another approaches zero. But that does not mean that the offenses of attempted murder or extortion are categorically nonviolent. As long as an offense is of a type that, by its nature, presents a serious potential risk of injury to another, it satisfies the requirements of § 924(e)(2)(B)(ii)’s residual provision. Attempted burglary under Florida law — as construed in Jones to require an overt act directed toward entry of a structure — satisfies this test. D Justice Scalia’s dissent criticizes our approach on the ground that it does not provide sufficient guidance for lower courts required to decide whether unenumerated offenses other than attempted burglary qualify as violent felonies under ACCA. But the dissent’s alternative approach has more serious disadvantages. Among other things, that approach unnecessarily decides an important question that the parties have not briefed (the meaning of the term “extortion” in § 924(e)(2)(B)(ii)), decides that question in a way that is hardly free from doubt, and fails to provide an interpretation of the residual provision that furnishes clear guidance for future cases. The dissent interprets the residual provision to require at least as much risk as the least dangerous enumerated offense. But the ordinary meaning of the language of the residual clause does not impose such a requirement. What the clause demands is “a serious potential risk of physical injury to another.” While it may be reasonable to infer that the risks presented by the enumerated offenses involve a risk of this magnitude, it does not follow that an offense that presents a lesser risk necessarily fails to qualify.. Nothing in the language of § 924(e)(2)(B)(ii) rules out the possibility that an offense may present “a serious risk of physical injury to another” without presenting as great a risk as any of the enumerated offenses. Moreover, even if an unenumerated offense could not qualify without presenting at least as much risk as the least risky of the enumerated offenses, it would not be necessary to identify the least risky of those offenses in order to decide this case. Rather, it would be sufficient to establish simply that the unenumerated offense presented at least as much risk as one of the enumerated offenses. Thus, Justice Scalia’s interpretation of the meaning of the term “extortion” is unnecessary — and inadvisable. The parties have not briefed this issue, and the proposed interpretation is hardly beyond question. Instead of interpreting the meaning of the term “extortion” in accordance with its meaning at common law or in modern federal and state statutes, see Taylor, 495 U. S., at 598, it is suggested that we adopt an interpretation that seems to be entirely novel and that greatly reduces the reach of ACCA. The stated reason for tackling this question is to provide guidance for the lower courts in future cases — surely a worthy objective. But in practical terms, the proposed interpretation of the residual clause would not make it much easier for the lower courts to decide whether other unenumerated offenses qualify. Without hard statistics— and no such statistics have been called to our attention— how is a lower court to determine whether the risk posed by generic burglary is greater or less than the risk posed by an entirely unrelated unenumerated offense — say, escape from prison? In the end, Justice Scalia’s analysis of this case turns on the same question as ours — i. e., the comparative risks presented by burglary and attempted burglary. The risk of physical injury in both cases occurs when there is a confrontation between the criminal and another person, whether an occupant of the structure, a law enforcement officer or security guard, or someone else. It is argued that when such an encounter occurs during a consummated burglary (i. e., after entry), the risk is greater than it is when the encounter occurs during an attempted burglary (i. e., before entry is effected), and that may be true. But this argument fails to come to grips with the fact that such encounters may occur much more frequently during attempted burglaries because it is precisely due to such encounters that many planned burglaries do not progress beyond the attempt stage. Justice Scalia dismisses the danger involved when encounters occur during attempted burglaries, stating that such encounters are “likely to consist of nothing more than the occupant’s yelling Who’s there?’ from his window, and the burglar’s running away.” Post, at 226. But there are many other possible scenarios. An armed would-be burglar may be spotted by a police officer, a private security guard, or a participant in a neighborhood watch program. Or a homeowner angered by the sort of conduct recited in James’ presentence report — throwing a hammer through a window — may give chase, and a violent encounter may ensue. For these reasons and the reasons discussed above, we are convinced that the offense of attempted burglary, as defined by Florida law, qualifies under ACCA’s residual clause. IV Although the question on which this Court granted certiorari focused on the attempt prong of Florida’s attempted burglary law, James also argues that the scope of the State’s underlying burglary statute itself precludes treating attempted burglary as a violent felony for ACCA purposes. Specifically, he argues that Florida’s burglary statute differs from “generic” burglary as defined in Taylor, supra, at 598, because it defines a “‘[djwelling’” to include not only the structure itself, but also the “curtilage thereof,” Fla. Stat. §810.011(2). We agree that the inclusion of curtilage takes Florida’s underlying offense of burglary outside the definition of “generic burglary” set forth in Taylor, which requires an unlawful entry into, or remaining in, “a building or other structure” 495 U. S., at 598 (emphasis added). But that conclusion is not dispositive, because the Government does not argue that James’ conviction for attempted burglary constitutes “burglary” under § 924(e)(2)(B)(ii). Rather, it relies on the residual provision of that clause, which — as the Court has recognized — can cover conduct that is outside the strict definition of, but nevertheless similar to, generic burglary. Id., at 600, n. 9. Is the risk posed by an attempted entry of the curtilage comparable to that posed by the attempted entry of a structure (which, as we concluded above, is sufficient to qualify under the residual provision)? We must again turn to state law in order to answer this question. The Florida Supreme Court has construed curtilage narrowly, requiring “some form of an enclosure in order for the area surrounding a residence to be considered part of the ‘curtilage’ as referred to in the burglary statute.” State v. Hamilton, 660 So. 2d 1038, 1044 (1995) (holding that a yard surrounded by trees was not “curtilage”); see also United States v. Matthews, 466 F. 3d 1271, 1274 (CA11 2006) (“Florida case law construes curtilage narrowly, to include only an enclosed area surrounding a structure”). Given this narrow definition, we do not believe that the inclusion of curtilage so mitigates the risk presented by attempted burglary as to take the offense outside the scope of clause (ii)’s residual provision. A typical reason for enclosing the curtilage adjacent to a structure is to keep out unwanted visitors — especially those with criminal motives. And a burglar who illegally attempts to enter the enclosed area surrounding a dwelling creates much the same risk of physical confrontation with a property owner, law enforcement official, or other third party as does one who attempts to enter the structure itself. In light of Florida’s narrow definition of curtilage, attempted burglary of the curtilage requires both physical proximity to the structure and an overt act directed toward breaching the enclosure. Such an attempt “presents a serious potential risk that violence will ensue and someone will be injured.” Id., at 1275 (holding that burglary of the curtilage is a violent felony under ACCA’s residual provision). V Finally, James argues that construing attempted burglary as a violent felony raises Sixth Amendment issues under Apprendi v. New Jersey, 530 U. S. 466 (2000), and its progeny because it is based on “judicial fact finding” about the risk presented by “the acts that underlie ‘most’ convictions for attempted burglary.” Brief for Petitioner 34, 35. This argument is without merit. In determining whether attempted burglary under Florida law qualifies as a violent felony under § 924(e)(2)(B)(ii), the Court is engaging in statutory interpretation, not judicial factfinding. Indeed, by applying Taylor’s categorical approach, we have avoided any inquiry into the underlying facts of James’ particular offense, and have looked solely to the elements of attempted burglary as defined by Florida law. Such analysis raises no Sixth Amendment issue. * * * For these reasons, the judgment of the Court of Appeals for the Eleventh Circuit is affirmed. It is so ordered. James’ two other prior convictions — for possession of cocaine and trafficking in cocaine — were determined to be "serious drug offense[s]” under ACCA, see 18 U. S. C. § 924(e)(1) (2000 ed., Supp. IV), and are not at issue here. The Jones court distinguished its earlier holding in Thomas v. State, 531 So. 2d 708 (1988). There, the State Supreme Court upheld a conviction under a state statute criminalizing the possession of burglary tools, Fla. Stat. §810.06, where the defendant had been arrested after jumping a fence and trying to run away from police while carrying a screwdriver. Jones held that “the overt act necessary to convict of the burglary tool crime is not the same as the overt act required to prove attempted burglary,” and noted that the conduct charged in Thomas would not be sufficient to prove attempted burglary because the defendant in that case committed no overt act directed toward entering or remaining in a building. 608 So. 2d, at 799. See United States v. Lane, 909 F. 2d 895, 903 (CA6 1990) (construing Ohio attempted burglary law: “ ‘The fact that an offender enters a building to commit a crime often creates the possibility, of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate.’... The fact that [the defendant] did not complete the burglary offense does not diminish the serious potential risk of injury to another arising from an attempted burglary”); United States v. Fish, 928 F. 2d 185, 188 (CA6 1991) (Michigan attempted burglary law); United States v. Payne, 966 F. 2d 4, 8 (CA1 1992) (Massachusetts attempted-breaking-and-entering law); United States v. O’Brien, 972 F. 2d 47, 52 (CA3 1992) (Massachusetts attempted-breaking-and-entering law: “[T]he possibility of a violent confrontation with an innocent party is always present when a perpetrator attempts to enter a building illegally, even when the crime is not actually completed”); United States v. Solomon, 998 F. 2d 587, 590 (CA8 1993) (Minnesota attempted burglary law); United States v. Custis, 988 F. 2d 1355, 1364 (CA4 1993) (Maryland attempted-breaking-and-entering law: “In most cases, attempted breaking and entering will be charged when a defendant has been interrupted in the course of illegally entering a home. Interrupting an intruder while breaking into a home involves a risk of confrontation nearly as great as finding him inside the house”); United States v. Thomas, 2 F. 3d 79, 80 (CA4 1993) (New Jersey attempted burglary law); United States v. Andrello, 9 F. 3d 247, 249-250 (CA2 1993) (per curiam) (New York attempted burglary law); United States v. Davis, 16 F. 3d 212, 218 (CA7 1994) (Illinois attempted burglary law); United States v. Bureau, 52 F. 3d 584, 593 (CA6 1995) (Tennessee attempted burglary law: “[T]he propensity for a violent confrontation and the serious potential risk of injury inherent in burglary Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
songer_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. CALCASIEU CHEMICAL CORPORATION, a corporation, and Sears, Roebuck & Company, a corporation, Plaintiffs-Appellants, v. CANAL BARGE COMPANY, Inc., a corporation, the BARGE NBC 924, its tackle, apparel, etc., and the M/V REBAJANE, her engines, tackle, apparel, etc., Defendants-Appellees. No. 16899. United States Court of Appeals Seventh Circuit. Jan. 3, 1969. Rehearing Denied Jan. 23, 1969. William K. Johnson, Warren C. Ingersoll, John E. Corkery, Chicago, Ill., for plaintiffs-appellants; Lord, Bissell & Brook, Chicago, Ill., of counsel. Harvey Wienke, Robert D. Barnes, Chicago, Ill., for defendants-appellees; McBride, Baker, Wienke & Schlosser, Chicago, Ill., of counsel. Before CASTLE, Chief Judge, and SWYGERT and CUMMINGS, Circuit Judges. CASTLE, Chief Judge. On July 6, 1966, plaintiff, Sears, Roebuck and Company (Sears), entered into a charter party or contract of affreightment with defendant, Canal Barge Company, Inc., (Canal), for the transportation by barge of a quantity of ethylene glycol (antifreeze) from Lake Charles, Louisiana, to Berwyn, Illinois. Canal picked up the cargo from plaintiff, Cal-casieu Chemical Corporation, which had sold it to Sears, and transported it to the prescribed destination. Upon arrival at Berwyn, the portion of the cargo carried in one compartment of the barge was found to have been contaminated by 16% water, allegedly due to a negligently leaky cement patch in the barge’s hull. Plaintiffs brought this admiralty action to recover damages arising out of the cargo’s contamination. After answering, Canal moved for and was granted summary judgment on the ground that the charter had been breached by Sears, in that the latter had failed to obtain insurance for the joint account of itself and Canal on the cargo, as the charter required. In plaintiffs’ words, “This appeal is taken to reverse the court’s order granting that judgment on the ground, inter alia, that a genuine issue of material fact remain to be tried.” One of the printed clauses in the charter provided: “Neither the tug, tow, master nor owner shall be liable for any loss of, or damage to, or delay in the delivery thereof, however, arising or resulting, even if caused by negligence or unseaworthiness. Deviation by the owner shall not be a breach of this contract. Insurance against all risks shall be carried by the Charterer on the cargo, and on any craft of Charterer, for the Owner’s and Charterer’s joint account. No underwriter on cargo or on Charterer’s craft shall have any claim, by subrogation, loan receipt or otherwise, against the tug, tow, master or Owner, for any loss paid, regardless of the nature or circumstances thereof, and Charterer’s policies on cargo and on Charterer’s craft shall be claused accordingly.” A further, typewritten clause appearing in the charter provides: “Special Conditions “Barge is to be tendered suitable to load ethylene glycol. Any cleaning at Owner’s expense. All inspection fees for account of the Charterer.” Plaintiffs’ main contention is that the above clause constitutes an express warranty of seaworthiness, a condition precedent, which was not met. At least, plaintiffs claim, the meaning of the clause is ambiguous and requires for its interpretation a finding of the parties’ intent. Therefore, plaintiffs argue, a question of material fact is presented —namely, the intent of the parties — and summary judgment was improper. Defendants, on the other hand, contend that the special condition was clearly intended by the parties to have the limited application of obligating Canal to tender barges whose tanks were sufficiently clean to be suitable to load the cargo, and to pay for all cleaning expenses. Moreover, defendants argue that regardless of the meaning of this provision, the clause requiring Sears to acquire insurance for the joint account of Sears and Canal was unquestionably breached by Sears’ obtaining insurance solely for its own account, and therefore as a matter of law, plaintiffs are precluded from recovery. We believe the District Court properly granted defendants’ motion for summary judgment on the basis of Sears’ breach of the insurance clause. Since there is no doubt as to the intention of the parties in agreeing to that clause, there was no issue of material fact presented, the resolution of which could have changed the outcome of the litigation. Regarding the “Special Conditions” clause relied upon by plaintiffs, we fail to see how the breach of that clause by Canal, if in fact such a breach occurred, would affect the holding rendered below. Even if there is an ambiguity which raised a question of fact, and even if that question could be resolved in favor of plaintiffs — i. e., that Canal breached an obligation to tender a seaworthy craft — plaintiffs are still precluded from recovery as a matter of law since it was Sears’ obligation to insure both itself and Canal against all loss and Sears failed to meet that obligation. As the lower court concluded, “It is clear that had Sears obtained insurance on behalf of itself and Canal covering any Cargo damage, as required by the Charter Party, none of the parties to the instant controversy would have borne the loss of the damaged cargo.” Thus, it was Sears’ own breach of the charter which occasioned its loss, and it is therefore precluded from recovering that loss from defendant. To hold defendants responsible would be manifestly unfair since Canal “might [itself] have insured against the loss, even though occasioned by [its] own negligence.” Luckenbach v. W. J. McCahan Sugar Co., 248 U.S. 189, 146, 39 S.Ct. 53, 54, 63 L.Ed. 170 (1918). The case of T.N. No. 73, 1939 A.M.C. 673 (S.D.N.Y.1939), cited by defendants, is factually quite similar to the instant case. The shipper in that case also breached a contract requirement to insure the cargo for the account of the carrier, but contended that since the contract contained an express warranty of seaworthiness, the insurance clause was not intended to cover losses due to unseaworthiness. In holding that the carrier was not liable to the shipper for the value of the cargo, allegedly lost due to the unseaworthiness of the carrier’s craft, Judge Leibell issued a thorough, well-reasoned opinion. The following language of that opinion, of which we approve, is particularly appropriate to the instant case: “In the case at bar * * * the claimant [shipper] was under an obligation to the petitioner [carrier] to take out insurance on the cargo. This was not a mere ‘benefit of insurance’ clause. Claimant was contractually obligated to effect insurance for the account of the petitioner. This was part of the consideration moving from the claimant and, in all likelihood, it had an effect on the freight rate. ****** “ * * * The contract provision as to insurance in this case is stronger and affords greater protection to the barge owner than the ordinary benefit of insurance clause. “Claimant argues that the result of this interpretation of the insurance clause would be to nullify the express warranty of seaworthiness contained in the same contract of carriage. I do not see it that way. If the charterer, the claimant herein, had lived up to its obligations under the insurance clause, it would not thereby lose the benefit of the personal warranty of seaworthiness. That warranty would still be in effect and in the event of a loss to the cargo, resulting from the unseaworthiness of the barge, claimant could hold both the petitioner and the barge. See [Luckenbach v. (W. J.) McCahan Sugar Refining Co., 248 U.S. 139 (39 S.Ct. 53) (1918); Pendleton v. Benner Line, 246 U.S. 353 (38 S.Ct. 330, 62 L.Ed. 770) (1918)]. **** “There is another aspect to this issue that should not be over-looked. To add by implication to the broad and general language of the insurance clause, an exception of losses resulting from the unseaworthiness of the barge, would leave the barge owner without insurance that he otherwise might have obtained, a result that would be manifestly unfair. The barge owner had the right to assume that the insurance clause in the contract of carriage meant just what it said, without any implied exceptions. The cargo owner (claimant) has only itself to blame if it failed in its obligation to effect insurance for the account of the barge owner (petitioner). **** “As we have seen, the [carrier] could have taken out insurance on its own account which would cover cargo losses due to unseaworthiness. In fact, •having warranted the seaworthiness of the barges to the claimant, it would seem that insurance covering such a contingency would be the kind most desired by the petitioner. I am of the opinion the aforementioned insurance clause of the contract of carriage was intended to cover any losses the carrier (petitioner) could have insured against, including cargo losses due to unseaworthiness. Since claimant (or its predecessor) contracted to obtain such insurance and did not do so, I am of the opinion that petitioner should be granted exoneration from liability.” 1939 A.M.C. at 689-691. While we are aware that a 1939 District Court decision from another circuit is not binding upon this Court, we believe the above holdings are a correct view of the law as applied to an almost identical factual situation as the instant case. Moreover, plaintiffs have cited no cases differing with T.N. No. 73, nor can we discover any. Since the foregoing discussion disposes of the case, we find plaintiffs’ other contentions to be irrelevant. We therefore deem it unnecessary in this opinion to discuss the same. In addition, since the validity of the insurance clause was not challenged in the District Court, we will not consider this issue for the first time on appeal. Minneapolis, St. P. & S.S.M.R. Co. v. City of Fond Du Lac, 297 F.2d 583, 587, 93 A.L.R.2d 1378 (7th Cir. 1961); United States v. County of Iowa, 295 F.2d 257, 259 (7th Cir. 1961). The judgment below is, therefore, affirmed. Affirmed. . T.N. No. 73 was affirmed on different grounds — burden of proof — by the Court of Appeals, sub nom., Commercial Molasses Corp. v. New York Tank Barge Corp., 114 F.2d 248 (2nd Cir. 1940), and by the Supreme Court, 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. 89 (1941). Neither reviewing court found it necessary to discuss the insurance clause and its effects. The District Court opinion in T.N. No. 73 was cited with approval in Hercules Powder Co. v. Commercial Transport Corp., 270 F.Supp. 676, 681 (N.D.Ill., E.D.1967). Question: What is the total number of appellants in the case? Answer with a number. Answer:
songer_genresp1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. 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. GARDEN CITY CO. et al. v. BURDEN. No. 4106. United States Court of Appeals Tenth Circuit. Jan. 2, 1951. J. E. DuMars, Topeka, Kan. (Clayton M. Davis and Mark L. Bennet, Topeka, Kan., on the brief), for appellants. Paul R. Kitch, Wichita, Kan. (Howard T. Fleeson, Homer V. Gooing, Wayne Coulson, Dale M. Stuckey and Donald R. Newkirk, all of Wichita, Kan., on the brief), for appellee. Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges. HUXMAN, Circuit Judge. This action was filed in the United States District Court for the District of Kansas, against the Garden City Company, herein referred to as Garden City, and United ■ States Irrigating Company, herein called the Irrigation Company, for damages to plaintiff’s alfalfa land caused by the negligence of the defendants in the operation of the Great Eastern Canal an irrigation canal crossing plaintiff’s land. The Irrigation Company is the owner of the irrigation ditch in question. Garden City is a Colorado corporation and the Irrigation Company is a Wyoming corporation. In brief, the complaint as finally constituted, alleged that the Irrigation Company is a wholly owned subsidiary of Garden City; that Garden City owns all the shares of stock in the Irrigation Company; that the two companies have common management and interlocking directorates and offices; that the Irrigation Company was organized and is maintained and operated for the sole purpose of carrying out the aims and purposes and promoting the affairs of the parent, Garden City, and is' a mere instrumentality and adjunct thereof, being completely dominated and controlled by it, and that by reason thereof, the acts of the Irrigation Company in the operation and maintenance of the Great Eastern Canal were in truth and fact the acts of Garden City and that it was liable for the wrongs complained of. For cause of action, plaintiff alleged his ownership of some 280 acres of agricultural land being farmed under irrigation with water from an irrigation ditch known as the Amazon. The complaint alleged that defendants owned and operated an irrigation ditch known as the Great Eastern Canal; that said canal passed across plaintiff’s farm and extended for approximately half a mile across the westerly and northerly sides thereof. The following acts of negligence were alleged: The defendants had failed to maintain the ditch in proper repair, had failed to repair various spillways, had failed to keep the bottom of the ditch free from sand, and had failed to replace worn out wooden openings in the ditch and had permitted the banks, particularly at plaintiff’s farm, to be in an unsafe condition. The complaint further alleged that beginning with 1947, defendants had caused a large quantity of water to be transported through the defective canal and that by reason thereof 30 acres of his alfalfa land was inundated through seepage of water to his damage in the sum of $6,000.00. That on June 4, 1949, a flood occurred, caused by heavy rains; that by reason of the defective condition of the canal it was unable to safely carry the great volume of water injected into it; That as a result the banks gave way, flooding and ruining about 100 acres of plaintiff’s land, causing a total loss of crops valued at $4,000.00, and permanently injuring the land to the extent of $21,000.00. The Garden City Company denied that it was the owner of the ditch or that it had any part in its operation, control, or maintenance. The Irrigation Company denied any negligence on its part in the operation of the ditch and alleged that any loss suffered by plaintiff was the result of rains of such unprecedented proportions as to amount to an act of God. Trial was had to a jury resulting in a verdict against defendants for $8,500.00, on which judgment was entered and this appeal followed. The first assignment of error is that there was a misjoinder of parties defendant. This is predicated on the contention that the record clearly establishes that the two corporations are separate entities and that Garden City had no part in the management, control or operation of the irrigation ditch. The court, under appropriate instruction, submitted this question to the jury and instructed it that in the event it found that Garden City in fact operated and controlled the Irrigation Company for its own purposes, then Garden City would be liable for any acts of negligence on the part of the Irrigation Company. The jury evidently concluded that the Irrigation Company was the alter ego of Garden City, because it returned a verdict against it. We agree with the jury’s findings in this respect. There is no conflict in the authorities as to the legal principles controlling a determination whether the separate legal entity of two corporations must be disregarded and they be treated as one. As stated by Judge Phillips in Taylor v. Standard Gas & Electric Co., 10 Cir., 96 F.2d 693, the fact that one •corporation owns all of the stock of another and thereby selects from its own directors and officers a majority or all of the directors of the other, or that a parent finances a subsidiary is, without more, not sufficient to warrant disregarding the separate legal entity and treating them as one. But it is also stated in the same opinion that where the relationship between the parent and its subsidiary is so intimate, the parent’s control over the subsidiary is so dominating and the business and assets of the two so commingled, that recognition of distinct, entity would result in injustice to third persons, courts should look through the legal fiction of separate entity and treat them as justice requires. While this was held in a bankruptcy proceeding involving the parent and its subsidiary, the legal principles apply generally in all cases. The Irrigation Company was a non profit corporation and as such had no capital. All of its stock was owned by the Garden City Company. Eighty-six per cent of all of its water rights was owned by Garden 'City. It depended upon Garden City for its financing. No interest was charged by Garden City for money advanced to the Irrigation Company. Two regular employees of the Irrigation Company were paid by Garden City and at the end of the year their salary was charged against the account of the Irrigation Company with Garden City. All of the directors, and officers of the Irrigation Company were directors, officers or employees of Garden City. They received all their pay from Garden City and none from the Irrigation Company. W. E. Leavitt was the Treasurer and General Manager of Garden City, and was President and General Manager of the Irrigation Company. He testified that while there were no contractual relations between the two companies, yet, if the Board of Directors of Garden City should give him instructions as to what to do relative to the Irrigation Company’s ditch, he would follow such instructions. Garden City has paid the Irrigation Company’s current water right assessments but has not paid back assessments in the sum of $91,000.00, less the current assessments. The testimony was that these back assessments constituted a bookkeeping transaction between the two companies. Charles F. Edwards, the Secretary-Treasurer of the Irrigation 'Company is paid by Garden City and receives no pay from the Irrigation Company. He testified that the $91,000.00 indebtedness of Irrigation Company was incurred in rebuilding the Hartland dam. The Irrigation Company maintains no offices other than those incident to the offices occupied by. employees or officers in their position with Garden City. The name Irrigation Company appears nowhere on any of the offices occupied by its officers and it has no telephone listing. Garden City as the owner of all the stock of the Irrigation Company is the only voter at Irrigation Company’s elections. It is difficult to envision a mor-; complete oneness than exists between these two companies. Garden City Company owns, controls and directs all operations of the Irrigation Company. There is also evidence that when the ditch was repaired and cleaned out it was done with equipment belonging to Garden City and bearing its name on the equipment. Irrigation Company had no assets, it owns no property other than the easement in the ditch. Under these circumstances, it would be inequitable to permit Garden City to escape liability, if such there is, because of negligent operation of the ditch under the pretext of the separate identity of the two corporations. It is further contended that there is no evidence of negligence supporting the verdict and judgment and that any damage suffered 'by Burden was the result of an act of God. On June 3, 4, and 5, 1949, 7.58 inches of rain fell in the Lakin area where this ditch is located. The fall on June 3 was .93 inches, on June 4, 1.35 inches, and on June 5, 5.30 inches. The heaviest rainfall recorded in a twenty-four hour period prior thereto was 4.55 inches in August, 1926. The record does not reveal whether rain fell on that occasion on other days close to the day on which 4.55 inches fell, but even if we consider the fall of 4.55 inches as against the total three days’ fall of 1949 of 7.58 inches, we do not think the disparity is so great as to require a finding, as a matter of law, that such a rain was an act of God. But even if we assume that this rainfall constituted an act of God, it does not require a reversal of the judgment. The court, in effect, instructed the jury that if the rainfall constituted an act of God, and was the sole cause of the damage, Burden could not recover. The jury’s verdict means that either it did not consider that this rainfall amounted to an act of God or that if it did, it was not the proximate or sole cause of the injury. The court properly instructed the jury that defendant would not be relieved from liability even though the rainfall was beyond that which could have been anticipated if negligent acts on their part concurred therewith to produce plaintiff’s injury. This brings us to the main contention that there is no evidence of negligence on defendants’ part in the maintenance and operation of the ditch to support the verdict and judgment entered thereon. At the outset, we may say that there is evidence, which, taken alone, makes a case of non negligence on appellants’ part. But since our scope of review is limited to an inquiry whether there is other evidence of probative value which would support a contrary conclusion, we limit our discussion thereto. In 1925, a wooden irrigation box used to release water from the ditch for irrigation had been placed in the bottom of the ditch adjoining Burden’s farm. In 1927, the ditch broke at two places, one being at the place where this box was and a larger box was installed. The box filled up with dirt but the man then farming the place dug it out in 1930. That was the last year it was used for irrigation. The box remained in the dam and washed out in the 1949 flood. In 1947, Burden noticed water in his alfalfa field. The water seemed to come from the base of the ditch at a point where the irrigation box was. He notified Leavitt who came out at a time when no water was running in the ditch. Some damage occurred to the alfalfa in 1947. By the fall of 1948, there was additional damage to the alfalfa. In the summer of 1948, Burden observed that the ditch was leaking at this point. After additional complaints, someone came to the ditch with equipment bearing the name Garden City Company and effected some repairs. In May, 1949, Burden inspected the ditch at this point and saw that it was again leaking. As stated, shortly thereafter this box washed out. There is also evidence that the flood water did not go over the top of the dam, at least not at Burden’s farm. If this is so, the break must have first occurred around the irrigation box. The manner in which the irrigation box was sealed off when it was discontinued is in dispute. Appellants produced evidence showing that it was sealed off on the inside by placing 8 feet of dirt against the bank. There was, however, other evidence showing that the wooden box was flush with the inside of the bank of the irrigation ditch. Leavitt, President of the Irrigation Company, admitted that it was not good practice to leave an old wooden box in the bank of an irrigation ditch. R. J. Tipton, an engineer produced by appellants, admitted that it would be poor practice to leave an old wooden 'box in the operating bank of an irrigation ditch. Dan C. Moehring, an engineer, testified for Burden that the proper method of repairing a ditch when such a box was, discontinued was to remove it and fill the aperture with dirt, first treating the banks so as to provide a good seal between the existing earth of the dyke and the material used to make the repair. In response to a hypothetical question, he testified that in his opinion the cause of the break was the weakened condition of the bank caused by the improper filling of the old wooden box. The objections lodged to the hypothetical question propounded to him are without substantial merit. There is other evidence which would support a finding of negligence in the operation and maintenance of the dam. We do not recount it because the evidence outlined above, if believed, as it no doubt was, is sufficient to support the conclusion that the 'break occurred around this old wooden box and that appellants were guilty of negligence in the manner in which they treated it after its use was discontinued and that this was the proximate cause of the injury suffered. It is urged the trial court erred in its instructions numbered 7, 8, 14, 15, 17, and 18. After the court 'had instructed the jury, the following proceedings were had before the court and out of hearing of the jury. “By the Court: Do any of you have any further objections or suggestions relative to the instructions of the Court? “Mr. Davis: I would like to enter objections to a few of them for the purpose of the record. “The Court: Very well. “Mr. Davis: Comes now the defendants and objects to the instruction of the court No. 7, 8, 14, 15, 17, 18, for the reason that such instructions incorrectly state the law applicable to the issues in the case. “The Court: Overruled.” Rule 51 of the Rules of Civil Procedure, 28 U.S.C.A., provides that: “* * * No party may assign as error the giving or the failure to' give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to- which he objects and the grounds of his objections. * * * ” It will be seen that appellants failed to comply with the rule and may therefore not predicate reversible error on the instructions as given. We have, however, examined the instructions and find no reversible error therein when considered in their entirety. Neither do we find any merit in the contention that the amount of the verdict and judgment are excessive. Affirmed. . Reversed on other grounds in 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669. . Henry v. Dolley, 10 Cir., 99 F.2d 94; Feucht v. Real Silk Hosiery Mills, 105. Ind.App. 405, 12 N.E.2d 1019; Mueller v. Seaboard Commercial Corp., 5 N.J. 28, 73 A.2d 905. . Riddle v. Chicago R. I. & P. Ry. Co., 88 Kan. 248, 128 P. 195; Law v. Gulf States Steel Co., 229 Ala. 305, 156 So. 835; Zollman v. Baltimore & O. S. W. R. Co., 70 Ind.App. 395, 121 N.E. 135. . Stillwell v. Hertz Drivurself Stations, 3 Cir., 174 F.2d 714; Hower v. Roberts, 8 Cir., 153 F.2d 726; Palmer v. Miller, 8 Cir., 145 F.2d 926. Question: 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:
sc_issuearea	I	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. BOSTIC v. UNITED STATES No. 5250. Argued April 21, 1971 Decided May 24, 1971 Thomas C. Binkley argued the cause for petitioner. With him on the brief was Philip M. Carden. Beatrice Rosenberg argued the cause for the United States. With her on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, and Jerome M. Feit. Per Curiam. We granted the writ of certiorari in this case to consider whether the Court of Appeals for the Sixth Circuit had erred in holding that the petitioner had properly been convicted of conspiracy to commit murder in order to avoid apprehension for the robbery of a federally insured bank. The Court of Appeals purported to uphold a conviction for this offense, though there was no evidence that the petitioner knew of the plan to commit murder, and he had been confined in prison for several months prior to the date the murder was committed. The memorandum for the United States in opposition to the granting of the writ urged that the petitioner was “responsible for the actions of his co-conspirators in killing one member of the group/’ and as to this issue, relied on the opinion of the Court of Appeals. It now appears that these statements in the opinion of the Court of Appeals and in the memorandum of the United States were erroneous, and that the facts are not as we believed them to be at the time we granted the writ. The record shows that the petitioner was neither charged with nor convicted of the offense of conspiracy to commit murder. The conspiracy count on which the petitioner was convicted did not include any charge of conspiracy to murder. Indeed, in his closing argument to the jury the prosecutor stated that the petitioner had left the conspiracy prior to the murder, when he was returned to the penitentiary. Inasmuch as our grant of the writ of certiorari in this case was predicated on the mistaken representation that the petitioner had been convicted of the offense of conspiracy to commit murder, we now dismiss the writ as improvidently granted. It is so ordered. 400 U. S. 991. 424 F. 2d 951. The opinion recites that the conspiracy count on which the petitioner was convicted “alleged a conspiracy to rob federally insured banks with dangerous weapons and to commit murder to avoid apprehension for same.” 424 F. 2d, at 953. The court went on to say, “As to Bostic, although he had been returned to the penitentiary sometime before Ferguson’s murder, there is no evidence that he had renounced or withdrawn from the conspiracy.” 424 F. 2d, at 964. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
songer_r_fed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Irving KAZANOFF, Individually and as Executor of the Estate of Shelley Kazanoff, Plaintiff-Appellant, v. UNITED STATES of America; Just Management Corporation; Daniel Rodriguez; William Deliu; Preferred 100-10 67th Road Condominium Corporation; 100-10 67th Road Condominium Corporation, Defendants-Appellees. No. 1437, Docket 91-6021. United States Court of Appeals, Second Circuit. Argued May 2, 1991. Decided Sept. 10, 1991. Jesse I. Levine, Garden City, N.Y. (Levine, Weinberg, Kaley & Pergament, of counsel), for plaintiff-appellant. Paul Weinstein, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. E.D.N.Y., Robert L. Begleiter, Robin L. Greenwald, M. Lawrence Noyer, Jr., Asst. U.S. Attys., of counsel), for defendant-appellant U.S. Stephen A. Weinstein, New York City, for defendants-appellees 100-10 67th Road Condominium Ass’n and Just Management Corp. Linda Gimble, New York City (Harold M. Foster, of counsel), for defendant-appellee Preferred 100-10 67th Road Condominium Corp. Before OAKES, Chief Judge, WINTER, Circuit Judge, and CONBOY, District Judge. The Honorable Kenneth Conboy of the District Court for the Southern District of New York, sitting by designation. CONBOY, District Judge: Irving Kazanoff, individually and as executor of the estate of Shelley Kazanoff, his deceased wife, appeals from an order of the District Court for the Eastern District of New York (Sifton, Judge), dated December 13, 1990, 753 F.Supp. 1056, granting summary judgment to defendants-appellees the United States of America (“the Government”), Just Management Corporation (“JMC”), 100-10 67th Road Condominium Association (“the Association”), and Preferred 100-10 67th Road Condominium Corporation (“Preferred”). For the reasons set forth below, the order of the district court is affirmed. BACKGROUND Plaintiff Irving Kazanoff and his wife, Shelley Kazanoff, rented apartment 2J in the building at 100-10 67th Road, Forest Hills, New York. The building was converted to a condominium in 1984. The Association is the owner of the building. Preferred is the owner of several apartments in the building, including the apartment rented by Irving and Shelley Kazanoff. JMC is the managing agent of the building at 100-10 67th Road, pursuant to a written contract with the Association. On July 21, 1987, Shelley Kazanoff was brutally and tragically assaulted and murdered in her apartment by William Deliu and Daniel Rodriguez, the son of her longtime acquaintance, Elsie Rodriguez. Rodriguez and Deliu had arrived at the building at approximately 9:30 a.m. and passed through the street door, which has no lock, into the building’s vestibule. They rang the intercom to the Kazanoffs’ apartment, but received no answer. Rodriguez then tried unsuccessfully to “jimmy” the door open using a plastic credit card. Rodriguez and Deliu stayed in the vestibule for approximately one hour, until they were able to enter through the locked lobby door as Charles Anderson, a United States Postal Service mail carrier, exited the building. Anderson has been a letter carrier for the United States Postal Service since approximately 1950. As part of his Postal Service training Anderson received instruction on motor safety and on the necessity of being courteous to the public. Anderson was not instructed by the Postal Service to screen persons entering buildings, nor was Anderson told to question persons while on his postal route to make sure that their presence in any particular place was lawful. The building at 100-10 67th Road was part of Anderson’s mail delivery route, and had been since approximately 1985. Anderson had a key to eight of the ten apartment buildings on his route, including the building at 100-10 67th Road. When Anderson took over his route in 1985, the key to the building was left on the key chain for the route by the letter carrier formerly servicing the building. The superintendent of the building later changed the building’s locks, and gave Anderson a new key. According to the superintendent, when he gave Anderson the new key, he told Anderson to be careful with the key and not to allow unauthorized persons to gain entry into the building. Anderson does not recall this conversation. On an average day, Anderson would arrive at the building at approximately 10:10 a.m. and leave at 10:25 a.m. Upon entering the building, he would first open the set of unlocked doors which lead into the vestibule. He would then use his key to unlock a second set of locked doors, leading into the lobby, where the mail boxes for the building’s tenants are located. It is not necessary to use a key to leave the building. Thus, upon leaving, Anderson would simply open and push his wagon through the inner doors, and then repeat the process to exit onto the street. On July 21, 1987, Anderson entered the building using his key and delivered the mail as usual. Upon leaving the building, he noticed in the vestibule what he believed to be a boy 15 or 16 years old and a man he believed to be 30 or 35. As Anderson was exiting through the locked doors, these two people, who turned out to be Deliu and Rodriguez, entered the lobby. Anderson thought that Rodriguez and Deliu may have been tenants of the building, or possibly construction workers. After entering, Rodriguez and Deliu walked up the stairs to the second floor and rang the bell at the Kazanoffs' apartment. Rodriguez identified himself as Elsie Rodriguez’s son (Shelley Kazanoff had known Elsie Rodriguez for at least twenty years) and told Mrs. Kazanoff that he needed to talk to her because his mother had died. Mrs. Kazanoff, dressed in her night gown, opened the door slightly, leaving the door lock chain secured, then locked the door and made two phone calls, one to Mrs. Rodriguez. Deliu and Rodriguez waited outside the Kazanoffs’ apartment in the hallway for at least ten minutes. It is not clear from the record whether they were out of sight of the peephole. Mrs. Kazanoff left the apartment dressed to go outside, perhaps unaware that Deliu and Rodriguez were waiting in the hallway. As she left the apartment and turned to lock the door, she was attacked by Rodriguez, who held her arms while Deliu grabbed the keys and unlocked the door. Rodriguez and Deliu then dragged Mrs. Kazanoff into her apartment, where Rodriguez brutally murdered her while Deliu ransacked and looted the apartment. At approximately 1:00 p.m., Irving Kaza-noff returned to the building, using his key to open the locked doors to enter the lobby. Both the lock on the interior set of doors leading into the lobby and the buzzer intercom system were functioning properly on that day. Kazanoff found his wife in the living room and called for an ambulance. Mrs. Kazanoff was declared dead at the scene by the New York City Medical Examiner. Kazanoff was appointed executor of his wife’s estate by the Surrogate of Queens County on March 21, 1988. Daniel Rodriguez was convicted, after a jury trial, of the murder of Shelley Kazanoff and the burglary of the Kazanoff’s apartment and is presently incarcerated. In a separate trial, William Deliu, who had earlier confessed to participating in the murder of Shelley Kazanoff and burglarizing the Ka-zanoffs’ apartment, was acquitted on all counts of the indictment. The only security devices at the building to prevent access by unauthorized persons were the single set of locked lobby doors and an intercom system. The entrance to the building consists of two metal frame entrance doors with glass panels which lead into a vestibule area. These exterior doors are kept unlocked. Beyond the exterior doors are two metal frame, self-closing, buzzer-activated glass doors which open into the lobby. These locked interior doors can be opened manually with a key or electronically through a lock and buzzer intercom system, located on the wall of the vestibule. Through this system, the interi- or door can be unlocked by someone in a tenant’s apartment using the electronic buzzer system. The building superintendent testified in a deposition that he had heard of several burglaries in the building, although he was not sure exactly when they occurred. From his testimony, it appears that only one of the burglaries, if any, occurred before July 21, 1987, the day Shelley Kaza-noff was murdered. Only one of the incidents was reported directly to the superintendent; he informed JMC of each incident. The superintendent also saw a homeless man in the basement of the building on several occasions in the weeks immediately preceding Mrs. Kazanoff’s murder. Anderson did not know of any criminal activity of any kind in the building prior to the murder of Mrs. Kazanoff. Moreover, except for this case, Mr. Kazanoff did not know of any assaults in the building during the twenty-six years he had lived there. In fact, there is no specific, first hand, or documentary evidence in the record of a single crime, except that in the present case, ever occurring at the building. Kazanoff charged the Government with negligently causing the death of his wife because Anderson, a Postal Service employee, permitted Rodriguez and Deliu to enter the building as he was leaving. Kazanoff also charged that defendants JMC, Preferred, and the Association were negligent in failing to provide necessary security for the tenants of the building. Judge Sifton granted these defendants’ motions for summary judgment, concluding that (1) no duty of care existed on the part of the Government to keep strangers from entering a lobby when its employee was leaving the building, and (2) that Kazanoff had failed to adduce facts from which a rational trier of fact could conclude that JMC, Preferred, or the Association acted unreasonably or failed to satisfy any duty owned to Kaza-noff or his decedent. Kazanoff appeals. DISCUSSION “ ‘Summary judgment is appropriate when, after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party.’” Maysonet v. KFC, Nat’l Management Co., 906 F.2d 929, 930 (2d Cir.1990) (quoting Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 109 S.Ct. 391, 102 L.Ed.2d 380 (1988)). Under the law of the State of New York, to establish a cause of action in negligence, a plaintiff must show (1) the existence of a duty on defendant’s part as to the plaintiff; (2) a breach of that duty; and (3) injury suffered by the plaintiff as a result of that breach. Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333, 424 N.E.2d 531, 535, 441 N.Y.S.2d 644, 648 (1981). We affirm because, as the district court held, the Government did not owe a duty to Mrs. Kazanoff, and the Association, Preferred, and JMC did not breach their duty to Mrs. Kazanoff. A. The Government The Government argues that its employee, Charles Anderson, the postal carrier, had no duty to prevent Rodriguez and Deliu from entering the building at 100-10 67th Road. “An action to recover for negligence does not lie unless there exists a duty on the part of the defendant and a corresponding right in the plaintiff.” Do-nohue v. Copiague Union Free School Dist., 64 A.D.2d 29, 32-33, 407 N.Y.S.2d 874, 877 (2d Dep’t 1978) (citing Palsgrafv. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928)). “Duty is essentially a legal term by which we express our conclusion that there can be liability.... It tells us whether the risk to which one person exposes another is within the protection of the law.” De Angelis v. Lutheran Medical Ctr., 58 N.Y.2d 1053, 1055, 449 N.E.2d 406, 407, 462 N.Y.S.2d 626, 627 (1983). “The question of whether a member or group of society owes a duty of care to reasonably avoid injury to another is of course a question of law for the courts.” Purdy v. Public Adm’r, 72 N.Y.2d 1, 8, 526 N.E.2d 4, 7, 530 N.Y.S.2d 513, 516 (1988) (citations omitted). “A defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control.” D’Amico v. Christie, 71 N.Y.2d 76, 88, 518 N.E.2d 896, 901, 524 N.Y.S.2d 1, 6 (1987). New York courts have, however, imposed a duty to control the conduct of others where there is a special relationship; a relationship between defendant and a third person whose actions expose plaintiff to harm such as would require the defendant to attempt to control the third person’s conduct; or a relationship between the defendant and plaintiff requiring defendant to protect the plaintiff from the conduct of others.... Under the appropriate circumstances, the traditional master-servant relationship, the relationship between a parent and child, or the relationship between a common carrier and its passenger are examples of such relationships.... Purdy, 72 N.Y.2d at 8, 526 N.E.2d at 7, 530 N.Y.S.2d at 516; see also Pulka v. Edelman, 40 N.Y.2d 781, 783, 358 N.E.2d 1019, 1021, 390 N.Y.S.2d 393, 395 (1976). The relationship between Anderson, the mail carrier, and Mrs. Kazanoff, a tenant in the building, bears no resemblance to the special relationships traditionally recognized by New York courts. Nevertheless, Kazanoff urges this Court to recognize the existence of a duty of care on the part of Anderson, who had been given a key to the building, to afford Mrs. Kazanoff protection from the unauthorized entry of strangers into the building. In attempting to define the limits which circumscribe a legal duty, “not only logic and science, but policy play an important role.” De Angelis, 58 N.Y.2d at 1055, 449 N.E.2d at 407, 462 N.Y.S.2d at 627. Thus, [¿Judicial recognition of the existence of a duty of care is dependent upon principles of sound public policy and involves the consideration of numerous relevant factors which include, inter alia: moral considerations arising from the view of society towards the relationship of the parties...; preventative considerations, which involve the ability of the defendant to adopt practical means of preventing injury,... the degree of certainty that the alleged injuries were proximately caused by the defendant and the foreseeability of harm to the plaintiff; economic considerations, which include the ability of the defendant to respond in damages; and administrative considerations, which concern the ability of the courts to cope with a flood of new litigation. Donohue v. Copiague Union Free School District, 64 A.D.2d at 33, 407 N.Y.S.2d at 877 (citation omitted). “While moral and logical judgments are significant components of the analysis, we are also bound to consider the larger social consequences of our decisions and to tailor our notion of duty so that ‘the legal consequences of wrongs [are limited] to a controllable degree.’ ” Waters v. New York City Housing Auth., 69 N.Y.2d 225, 229, 505 N.E.2d 922, 923-24, 513 N.Y.S.2d 356, 358 (1987) (quoting Tobin v. Grossman, 24 N.Y.2d 609, 619, 249 N.E.2d 419, 425, 301 N.Y.S.2d 554, 561 (1969)). “A line must be drawn between the competing policy considerations of providing a remedy to everyone who is injured and of extending exposure to tort liability almost without limit.” De Angelis, 58 N.Y.2d at 1055, 449 N.E.2d at 407, 462 N.Y.S.2d at 627. The district court correctly concluded that these considerations counsel against recognition of a duty of care on the part of the Postal Service to prevent unauthorized entries. First, “moral considerations” argue against the recognition of a special relationship here. The postal carrier is in no different position from any other person whose regular coming and going may justify giving him or her a key to avoid the necessity of having a tenant open the door each time they appear. Indeed, creating a duty on the part of the postal carrier to prevent entry into the building would expose every tenant and every other service person who accepts a key to liability for allowing unauthorized entries into the building, resulting in a “crushing exposure to liability.” Strauss v. Belle Realty Co., 65 N.Y.2d 399, 403, 482 N.E.2d 34, 36, 492 N.Y.S.2d 555, 557 (1985). The broad ramifications that would emanate from the implementation of a new duty in this case is an important factor “appropriately take[n] into account in fixing the orbit of duty that will necessarily control other cases as well as this one.” D’Amico v. Christie, 71 N.Y.2d at 89, 518 N.E.2d at 902, 524 N.Y.S.2d at 7. Second, the difficulty of defining the scope of a duty to prevent unauthorized entry also weighs against recognition of such a duty. People do not generally shut doors in others’ faces, and, in some instances, such behavior puts the person required to shut the door in another’s face at risk of injury. To what lengths must a postal carrier go to prevent unauthorized entry? If a polite “I am sorry, you cannot enter here” does not deter intruders, must the postal carrier use physical force to prevent unauthorized entry? Is he or she required to put himself or herself in physical danger to safeguard the premises? Would the carrier be required to screen out all entrants, or only persons who obviously look threatening? As to “preventative considerations”, the violent crime which took place here was, from the postman’s perspective at least, an unforeseeable, intervening act which broke the chain of causation between the postman’s actions and Mrs. Kazanoff’s injury. Moreover, it is by no means certain that having postal carriers block entry into buildings would, as Kazanoff suggests, deter would-be assailants or robbers from entering buildings. Training letter carriers to screen entrants to buildings — a daunting administrative task — addresses only one of the many ways in which law breakers enter buildings to do injury. When the orbit of the potential liability is recognized and considered together with the reality that little or no public safety increase can be expected from such a rule, there is no policy basis upon which to ground a change in the common law. We conclude that no duty exists on the part of the Postal Service to keep strangers from entering a building while a postal carrier leaves it. B. Owners and Manager of the Building Kazanoff charges JMC, the Association, and Preferred, the manager and owners of the building, with negligently failing to provide adequate security for the tenants in the building. We agree with Judge Sifton that Kazanoff failed as a matter of law to establish negligence on the part of these defendants, as no rational trier of fact could conclude that any of these defendants acted unreasonably or failed to satisfy any duty owed to the plaintiff’s decedent. The common-law duty of a landlord is to maintain his property “in a reasonably safe condition in view of all of the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk.” Basso v. Miller, 40 N.Y.2d 233, 241, 352 N.E.2d 868, 872, 386 N.Y.S.2d 564, 568 (1976) (citing Smith v. Arbaugh’s Restaurant, 469 F.2d 97 (D.C.Cir.1972)), cert. denied, 412 U.S. 939, 93 S.Ct. 2774, 37 L.Ed.2d 399 (1973). “The law does not require the defendants to provide the optimal or most advanced security system available, but only reasonable security measures_ To hold otherwise would cast the defendants in the role of insurers of the safety of the premises.” Tarter v. Schildkraut, 151 A.D.2d 414, 415, 542 N.Y.S.2d 626, 627 (1st Dep’t 1989) (citation omitted). Defendants argue that they fulfilled their duty of care by complying with N.Y. Multiple Dwelling Law § 50-a (McKinney 1974), which requires a landlord or owner to provide a locked door and an intercom system to prevent unauthorized public access to a multiple dwelling. It is not disputed that defendants complied with these requirements, and that the locks on the doors leading into the lobby and the intercom system were working on the day Mrs. Kazanoff was murdered. Indeed, the locked door prevented Rodriguez and Deliu from gaining access to the building, even when Rodriguez tried to “jimmy” the door open with a credit card. These defendants were only able to gain access to the building when the postal carrier opened the door to leave the building. Nevertheless, Kazanoff contends that mere compliance with the statutory minimum in Section 50-a was not adequate in light of alleged recent criminal activity in the building — criminal activity which as-sertedly made the unauthorized entry by Rodriguez and Deliu and the murder of Shelley Kazanoff foreseeable to defendants Preferred, the Association, and JMC. “Under New York law a [landlord] is not liable for the intervening criminal acts of another unless such acts were reasonably foreseeable.” Maysonet v. KFC, Nat’l Management Co., 906 F.2d 929, 930-31 (2d Cir.1990) (citing Danielenko v. Kinney Rent A Car, Inc., 57 N.Y.2d 198, 204, 441 N.E.2d 1073, 1075, 455 N.Y.S.2d 555, 557 (1982); Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 519, 407 N.E.2d 451, 457, 429 N.Y.S.2d 606, 613 (1980)). “No duty of care arises ‘unless it is shown that [defendant] either knows or has reason to know from past experience “that there is a likelihood of conduct on the part of third persons... which is likely to endanger the safety” ’ ” of those on the property. Maysonet, 906 F.2d at 931 (quoting Nallan, 50 N.Y.2d at 519, 407 N.E.2d at 457, 429 N.Y.S.2d at 613 (quoting Restatement (Second) of Torts § 344 comment f)). Thus, “a history of criminal activities in a building can give rise to a duty on the part of the building’s owner to take reasonable steps to minimize the danger to persons visiting it." Maysonet, 906 F.2d at 931 (citing Nallan, 50 N.Y.2d at 519, 407 N.E.2d at 458, 429 N.Y.S.2d at 613). For example, in Nallan, the plaintiff was shot by an unknown assailant as he was signing a guest register in the unattended lobby of the building. Apparently the attendant had not locked the doors of defendants’ Manhattan office building when he left the lobby to attend to cleaning chores. There were 107 reported crimes in the building in the 21-month period immediately preceding the shooting, including at least 10 crimes against persons. Id. at 519-20, 407 N.E.2d at 458, 429 N.Y.S.2d at 613-14. The court held that the plaintiff had stated a prima facie case in negligence. Id. Similarly, in Miller v. New York, 62 N.Y.2d 506, 467 N.E.2d 493, 478 N.Y.S.2d 829 (1984), liability was imposed upon the State in its proprietary capacity as a landlord for failing to maintain locked doors in a state-operated college dormitory in which a resident student had been raped. There had been previous reports of nonresidents loitering in the dormitory, as well as reports from other campus dormitories of an armed robbery, burglaries, trespass and another rape. “In sharp contrast [to these examples], the record in the case at bar contains little evidence of criminal activity prior to the date of the [assault].” Iannelli v. Powers, 114 A.D.2d 157, 162, 498 N.Y.S.2d 377, 381 (2d Dep’t 1986). Citing the testimony of the superintendent, Kazanoff asserts that there were three burglaries in the building before the time of the murder. As we have indicated, however, the superintendent was not certain when the burglaries occurred. In fact, it appears from his testimony that only one of the burglaries, if any, occurred before July 1987, when Mrs. Kazanoff was killed. Moreover, Fed.R.Civ.P. 56(e) requires affidavits based on personal knowledge. Here, the superintendent had no firsthand knowledge of any of the incidents. Thus, Judge Sifton correctly concluded that Kazanoff had not made an adequate showing of prior criminal activity in the building that would have made the attack on Mrs. Kazanoff foreseeable to Preferred, the Association, and JMC and alerted them to a duty to adopt greater security measures. “The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relations; it is risk to another or to others within the range of apprehension” that delimits the duty’s scope. Palsgraf, 248 N.Y. at 344, 162 N.E. at 100. Because Kazanoff did not establish that defendants had specific warning that an incident such as the assault on Mrs. Kazanoff would occur, the murder of Mrs. Kazanoff was not a reasonably foreseeable act. Thus, the “intervening criminal act” of Rodriguez and Deliu constitutes a superseding cause of the injury to Mrs. Kazanoff. See Maysonet, 906 F.2d at 930. We recognize that what constitutes reasonable care under the circumstances is ordinarily a question for the jury. This is not to say, however, that in every case involving a landowner’s liability in negligence the question whether reasonable care was exercised must be determined by the jury.... Only in those cases where there arises a real question as to the landowner’s negligence should the jury be permitted to proceed. In all others, where proof of any essential element falls short, the case should go no further. Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 332, 424 N.E.2d 531, 534, 441 N.Y.S.2d 644, 647 (1981) (citations omitted). “In light of the absence of prior criminal incidents or assaults on the premises of the [building] in this case, the district court properly concluded that the history of the premises could not give rise to a duty of care to protect [tenants] from criminal attacks,” Maysonet, 906 F.2d at 931 (citations omitted), by implementing greater security measures. CONCLUSION The order of the district court granting summary judgment to the defendants and dismissing the complaint is affirmed in all respects. . The 100-10 67th Road Condominium Association was sued incorrectly as the “100-10 67th Road Condominium Corporation”. . Defendants William Deliu and Daniel Rodriguez did not move for summary judgment. In his December 13, 1990 order, Judge Sifton directed Kazanoff to inform the Court within twenty days of the date of the order whether he intended to proceed against Deliu and Rodriguez. Kazanoff did not respond, and the district court accordingly entered judgment in favor of all defendants on January 15, 1991. Ka-zanoff has not appealed from the judgment in favor of Deliu and Rodriguez. . New York law applies to the claim against the Government, which is brought pursuant to the Federal Tort Claims Act, see 28 U.S.C. §§ 1346(b), 2674 (1988), and to the common law claims against JMC, Association and Preferred, which are based on diversity jurisdiction. . Kazanoff argues that the district court’s entry of summary judgment was particularly inappropriate in light of Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 (1948), under which a wrongful death plaintiff in New York “is not held to the high degree of proof required in a case where the injured person may take the stand and give his version of the happening of the accident.” Id. at 80, 80 N.E.2d at 745. We note at the outset that, although this court has recognized the Noseworthy rule in negligence actions governed by New York law, see Shatkin v. McDonnell Douglas Corp., 727 F.2d 202, 208 (2d Cir.1984); Jones v. United States, 399 F.2d 936, 940 (2d Cir.1968), it is not clear whether a state rule on the sufficiency of the evidence such as the Noseworthy doctrine governs in a federal action. See Mehra v. Bentz, 529 F.2d 1137, 1139 n. 2a (2d Cir.1975) (assuming, without deciding the issue, that New York law governs the question of sufficiency of evidence); Eldred v. Town of Barton, 505 F.2d 186, 187 n. 2 (2d Cir.1974) (whether a federal rule rather than the state rule on sufficiency of evidence governs is "debatable and apparently undecided in this Circuit") (citing Park v. Village of Waverly, 457 F.2d 1139, 1140 n. 1 (2d Cir.1972); Simblest v. Maynard, 427 F.2d 1, 4-7 (2d Cir.1970); Evans v. S.J. Groves & Sons Co., 315 F.2d 335, 342 n. 2 (2d Cir.1963)). In any event, Noseworthy is inapplicable to this case. The purpose of the Noseworthy rule "is to circumvent the situation where a tort-feasor who inflicts personal injury [would] be insulated from liability simply because the injuries produced are fatal... and the decedent, who would have been in the best position to describe the event from plaintiffs point of view, [is] unavailable to do so.” Holiday v. Huntington Hosp., 164 A.D.2d 424, 427, 563 N.Y.S.2d 444, 446 (2d Dep't 1990) (citations and internal quotations omitted). Here, several eyewitnesses to the tragic events leading up to Shelley Kaza-noffs death, including Deliu, Rodriguez, and Anderson, have been deposed and are available to testify. More important, the issues here— relating to the actions of the postman and the security system in the building—are not ones as to which Mrs. Kazanoff was a witness. Thus, the rationale for the Noseworthy rule is absent. Nor would application of Noseworthy "actually effect a diminution of the standard or quantum of proof as such.” Holiday, 563 N.Y.S.2d at 446. Rather, “[t]he standard of proof of continues to be proof by a preponderance of the credible evidence. The doctrine's sphere of operation is in the weight to be assigned to circumstantial evidence concerning disputed facts because the more direct and proper source of this evidence no longer exists.” Id. Thus, contrary to Kazanoffs assertions, application of Noseworthy would not diminish his burden of proof. . Because of our conclusion that defendants were not negligent, we need not address defendants’ argument that no derivative action can be brought on behalf of a surviving spouse for loss of consortium, maintenance, contribution, care, society, services and companionship due to 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_genresp1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. SALEM MFG. CO. v. FIRST AMERICAN FIRE INS. CO. OF NEW YORK. No. 9372. Circuit Court of Appeals, Ninth Circuit. May 9, 1940. Stephen W. Matthieu, of Portland, Or., and Rhoten & Rhoten, of Salem, Or., for appellant. H. A. Thornton and Evans M. Taylor,.both of San Francisco, Cal., and A. L. Veazie and J. C. Veazie, both of Portland, Or., for appellee. Before GARRECHT, HANEY, and HEALY, Circuit Judges. GARRECHT, Circuit Judge. This action was instituted to recover the sum of $20,000 and interest under the terms of what is commonly known as a riot and civil commotion insurance policy. During all the time herein referred to, the appellant was a corporation, organized and existing under and by virtue of the laws of the State of Oregon. Prior to February 26, 1938, the name of said corporation was Salem Box & Manufacturing Company, Inc., but on said day the name was changed to Salem Manufacturing Company, and it may hereinafter be referred' to as the box company. The appellee, First American Fire Insurance Company, is a corporation, organized and existing under the laws of the State of New York, and by virtue of the laws of the State of Oregon is authorized to do an insurance business in that state. This action was instituted in the Circuit Court of the State of Oregon for Polk County and upon petition of appellee was thereafter removed to the United States District Court for the District of Oregon. The complaint alleged that on July 27, 1937, in consideration of a premium paid, the insurance company executed and delivered to the 'box company a policy of insurance which insured it “Against All Direct Loss or Damage Caused by Any of the Following: “(1) Riot; (2) Riot Attending a Strike; * * * ” Other pertinent provisions of the policy were: “If loss occur the insured shall give immediate notice in writing to this Company * * * ; and within sixty days after the loss, unless such time is extended in writing by this Company shall render a statement to this Company, signed and sworn to by said insured, * * . [Here follow the details to be furnished, which, we believe, do not require consideration.] “No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, nor unless commenced within twelve months next after the loss ; * » It was further alleged that on or before November 20, 1937 (while the policy was in effect), a riot participated in by the persons named in the complaint and others, occurred at or near the box factory and that as a part of said riot and as a result thereof the insured property was completely destroyed by fire; that the property so destroyed was of a value in excess of the insurance, and that by reason of the riot appellant sustained loss totaling $20,000. Appellant alleged in an amended complaint its full compliance with the terms of the policy (this having been denied by the answer). Appellee’s answer pleaded certain provisions of the insurance policy, one of which was that appellant was required to furnish proof of loss within sixty days after the fire occurred, and the answer averred that although the fire occurred on November 20, 1937, appellant furnished no proof of loss until August 11, 1938. In its amended complaint appellant admits that it did not present proof of loss until about said date but avers that it did not discover that the fire was the direct and proximate cause of the riot until during the month of July, 1938. This allegation was controverted by appellee. The answer also denied there was any riot which was the proximate cause of the fire or any riot at all. Other affirmative defenses were pleaded in the answer to the effect that after the destruction of the property, the policy was surrendered and canceled; that appellant had collected other insurance for the loss; that there was no opportunity given appellee for appraisal of the loss; that it had been deprived of its right to ■subrogation; that there had been an election of remedies; and, finally, there was a plea of estoppel. Affirmative matters alleged in the answer are not pertinent on this appeal as the appellee was awarded a directed verdict at the conclusion of appellant’s evidence. The following is a summary of the facts of the case based upon the evidence presented by appellant. During the year 1937 appellant had become involved in a controversy with a labor union which was attempting to unionize the box factory at Salem, Oregon. Beginning about July 23, 1937, a picket was placed near the box factory plant. About the second day some of appellant’s employees went out and ordered the pickets to leave, which they did for that day. The next day they returned with a bodyguard of about twenty men, who stationed themselves across the road from the plant. Soon after their arrival the employees and bodyguard began throwing at one another, the employees using rotten eggs, the bodyguard using rocks, some of which hit the box factory building. On the first day the pickets stopped a Japanese gardener and interfered with his effort to back his truck into the plant; other customers were stopped and warned against coming into the box factory. After the first encounter only a few of the bodyguard accompanied the picket. He usually arrived at eight o’clock, when work started, and quit at five, when the factory closed for the evening. About July 31, 1937, the appellant procured a court injunction, and there was no picketing through August and until September 10, when the court dissolved the injunction. On that day the picket returned, but he had no bodyguard until after about October 1, when the employees of appellant went out and tore his banner off of him; on the next day he returned with his bodyguard. The picket at no time disturbed or interfered with appellant’s customers, but the bodyguard “would holler at the customers and tell them to stay out.” They would stop the trucks when they were backing in, and warn against going into the plant. Off and on there was throwing between the plant employees and the picket guard. Concerning the strike situation appellant’s president and manager, among other things, testified that on different occasions there was some trouble between his employees and the picket guards. He said, “I didn’t pay so much attention to it, but the boys somehow didn’t like the picket there.” “Q. Well, did the picket have some help at different times? A. Oh, he had help pretty near all the time. “Q. And what do you mean by help? A. I think he had protection. * * “A. When the pickets were first placed there were two pickets there, one for the Salem Box Company and one for the Beut-ler-Quistad Lumber Company. The one for the Salem Box Company was outside of the city limits and the one for the Beutler-Quistad was in the city limits. There was an ordinance against carrying a banner without a permit and this picket was arrested, * * * After the picket was arrested about half a dozen of the bodyguard came over that afternoon. “Q. And then what happened? “A. And there was a lot of milling around, and some of our boys, some of the boys in the shop, got in arms and quite a number of them got clubs ready and I discovered it and I told them to lay off of the clubs, We don’t want any trouble over here.’ Later on we had trouble anyway, you just couldn’t stop it, because the men were never approached by the organizer. * * * “Q. All right. You say there was clubs; did you see those clubs? A. Yes, I saw those clubs. “Q. Were you present at the time there was any throwing of rocks back and forth? A. Well, I didn’t see it at first and then somebody called my attention to it and I looked out and they were throwing rotten eggs from our side, from the factory side, and rocks from the other side, and I went and stopped it. I told the boys to lay off of it because we didn’t want to get anybody hurt.” Another witness for appellant, testifying concerning the trouble between the representatives of the labor union and the employees of appellant, said, “Well, the picket had been mobbed and his banner torn off and he came back to the Labor Temple and reported * * * ” A. N. Banks was the business agent of the Teamsters’ Union in Salem. Rosser was secretary of the Joint Council of the State of Oregon and Southwestern Washington, and the superior officer of the council in the district. Banks at numerous times reported the activities going on about the box factory and the trouble there about the picket being' mobbed and his banner torn off. Thereupon Rosser decided that the method to be used for taking care of the trouble was to burn the box factory. The events leading up to and attending the setting of the fire were testified to by appellant’s witnesses, Banks, C arson, and Newland. At the time of the trial all of these men were prisoners in the Oregon State penitentiary, serving sentences for arson for having been implicated in setting fire to appellant’s factory. On November 19, 1937, the day preceding the fire, the picket and the bodyguard were at their accustomed places near the plant. The bodyguard left early in the day, and the picket left about two-thirty or three o’clock in the afternoon. About noon that day Newland and Carson, accompanied by one Moore, who had just arrived from California, came to Banks’ office. After having had breakfast they all got into Newland’s automobile and drove past the box factory. They were shown a building in the back of the factory where chips were kept. It was agreed that Moore, Carson, and Newland were to come back that night, about midnight, and burn the factory. Newland testified that while discussing the arrangements for the burning, there was some talk as to the possibility of a watchman being on duty at the plant; that Moore said “if there was a watchman there; why, just knock him out and leave him lay.” However, Banks told them that there was no watchman at the plant after about ten or eleven o’clock at night, but in case that he was there, they were to forget the job, and if it did not look right, for them to let it go. The remarks of Moore regarding possible violence to the watchman is referred to at several places in the testimony and is emphasized in appellant’s brief as basis for the contention that the burning of the box factory was the culminating disaster of the alleged riot. Concerning the conversation appellant’s witness testified: “Q. Now Cecil Moore said that he was willing to go in and touch that off himself, didn’t he? A. Yes. “Q. And you went with him to prevent any violence in case you encountéred anybody; isn’t that right? A. Yes, sir. “The Court: Was one reason for that because Banks said he didn’t want any violence? A. I don’t remember if there was any discussion about that with Banks. “The Court: Your recollection is that was just your idea and Carson’s idea? A. Yes, sir. “The Court: That you two didn’t want any violence? A. That is right; yes, sir. “Q. And during the time that you were in or around that factory you saw nobody that night, did you? A. No, sir. “Q. That is, except Moore and Carson? A. Yes, sir. “Q. And that is true, taking the time a little before you reached the factory until after you left there, you saw nobody except the other two mfen; is that, right? A, Yes, sir.” The testimony shows that the burning of the factory was to be effected by Moore, Newland, and Carson. Moore had volunteered to set fire to it himself, but on account of the remark made by him relative to knocking out any watchman that might appear on the scene, Newland and Carson were anxious to avoid the possibility of any violence being done the watchman, if he should be about the premises. So instead of letting Moore do the job alone, it was agreed between Carson and Newland that the latter was to be with Moore and that the fire would not be set until about one o’clock in the morning. About that time Carson drove the car to a point in the roadway in front of the plant; Moore and Newland got out, took with them a gallon of gasoline and a book of matches. Neither had any weapons. They sprinkled the gasoline on some trash and old lumber at the rear of the box factory, lighted it, and then ran back and got into the car, which was driven away as fast as possible. As to Proof of Loss. It is admitted that the loss occurred on November 20, 1937, and that the proofs of loss were not made until August 11; 1938. Appellant pleads as an excuse for the delay that “The fact that said destruction was the direct and proximate result of a riot was not discovered by or known to plaintiff until during the month of July, 1938.” Appellant is charged with the knowledge of its manager and agents. The manager, Mr. Friesen, and Mr. Crabb, the bookkeeper, testified at length on conditions existing in and about the plant during the time the strike was on up to the day of the fire. Thereafter they kept informed on events pertaining to the fire. Mr. Crabb knew of the picketing of the mill; the rocks and rotten egg encounter; the truck stopping episodes and other difficulties narrated above. He knew that Newland, Carson, and Moore on January-31, 1938, were arrested for burning the factory, that they all three pleaded guilty. He knew that Banks was arrested February 8, 1938, pleaded guilty February 16, 1938, and was sentenced April 24, 1938. Mr. Friesen, the manager, knew of the conflict between the boys in the shop and the picket and his bodyguard, the throwing of eggs from the factory side and rocks from the other side; that a number of the shop boys got clubs ready to beat up the opposition and that he made them lay off because he did not want anybody hurt. He was advised of the fire immediately after it started to burn. Proof of loss was presented to other insurance companies, in which was set forth the following statement: “A fire loss occurred on the 20th day of November, 1937, about the hour of 1:30 o’clock A. M., which upon the best knowledge and belief of assured originated incendiary — person or persons unknown.” The instrument was signed by Mr. Friesen and sworn to on the 23d day of November, 1937. On his examination he said he did not know his statement was in the proof. However, he admitted that he did know during the first part of the month of February, 1938, that the fire had been set and that he had read The Oregon Statesman, of February 9, 1938, which contained pictures of.Banks, Carson, Newland, and Moore, and the news item that these men had been arrested charged with burning appellant’s box factory. This item, among other matters, reported that Mr. Friesen had said “he had been convinced at all times that it was incendiary.” Friesen admitted that about February 9th or 10th, 1938, he had talked to Banks at the Polk County Court House relative to the fire, that Banks broke down and cried and told him he was sorry about the fire. C. M. Lindberg, a witness for appellant, testified that in the latter part of April, 1938, he was employed by appellant to make an appraisal of the property that had been destroyed by the fire, to be used in a suit the appellant contemplated bringing against the unions on account of the destruction of the plant. Mr. Friesen employed him. At the conclusion of plaintiff’s evidence defendant moved for a directed vedict on the following grounds: “First, the plaintiff has failed to prove that the loss and damage caused by the fire alleged in the complaint was caused by or arose out of a riot. “Second, the plaintiff has failed to prove that the loss and damage alleged in the complaint was covered by the policy of insurance issued by the defendant. “Third, the plaintiff has failed to comply with policy conditions relative to filing proofs of loss. “Fourth, the plaintiff has failed to prove compliance with the policy conditions as alleged in plaintiff’s complaint. “Fifth, that it affirmatively appears that the loss and damage alleged in said complaint was covered by policies of fire insurance, whereas in and by the policy of insurance issued by the defendant it was and is provided that this company shall not be liable for loss or damage covered under any fire or other kind of insurance contracts.” After hearing the argument upon the motion the court directed the jury to return a verdict for the defendant. A verdict, as directed was received and entered, and thereupon judgment was rendered for appellee from which appellant appeals to this court. In passing on the motion for directed verdict the court below stated to the jury: “This case involves a question as to whether a riot occurred under the Oregon statute, which requires the use of force or violence by three or more persons acting together. In my opinion there has been no substantial credible evidence offered indicating that force or violence was used, and, therefore, it is my duty to request and direct you to return a verdict for the defendant * * * ” The appellant assigns this action of the trial court as the sole error presented on this appeal. “It is the contention of the appellant that ‘force and violence’ within the meaning of the Oregon statute abundantly appear by the evidence.” In opening its argument appellant says in its brief: “As stated by the trial court in directing the verdict, this question evolves around the Oregon statute which defines the term ‘riot.’ It has been assumed by all of the parties and the trial 'court as well, and we think properly so, that the Oregon statutory definition of riot should be read in connection with terms of the policy. The policy of insurance insures against all direct loss or damage caused by riot, but no attempt is made in the policy to define the term ‘riot.’ ” Section 14-601, Chapter VI, Title 14, Oregon Annotated Code, undertakes to define riot and unlawful assembly in the same section — the first sentence applies to riot; the second sentence, immediately following, refers to unlawful assembly. For purposes of clarity we here separate the two sentences, but in the original text both are parts of the same paragraph: “Definition of riot and unlawful assembly. — [1st sentence] Any usé of force or violence, * * * if accompanied by immediate power of execution, by three or more persons acting together, and without authority of law, is riot. [Emphasis supplied.] “[2d sentence] Whenever three or more persons assemble with intent, or with means and preparation to do an unlawful act, which would be riot if actually committed, but do not act towards the commission thereof, or whenever such persons assemble without authority of law, and in such manner as is adapted to disturb the public peace or excite public alarm, or disguised in a manner adapted to prevent them from being identified, such assembly is an unlawful assembly.” It conclusively appears that the plan to burn the box factory of appellant was to be accomplished with great secrecy and without causing any disturbance. The hour of one o’clock in the morning was selected because it was known that the watchman, who usually stayed on duty until ten or eleven o’clock at night, would have gone home. It was understood that if a watchman was found on the premises, or some other interruption occurred, that the purpose to burn the buildings would be deferred to a more favorable time. Neither Newland or Moore, who set the fire, was armed in any way. They accomplished their purpose quietly, without any disturbance whatever. They saw or heard no one, and there is no evidence that they were seen or heard by anyone. It is worthy of note that appellant pleads that it did not discover that a riot had occurred until about a year after the event. The circumstances attending the setting of this fire did not constitute a riot according to the common understanding of the word or according to the definition of the common law. “ * * * In the common-law authorities there is no substantial disagreement concerning the definition of a riot. In 4 Blackstone (Chitty’s Ed.) p. 147, we find the following: ‘ “A riot” is where three or more actually do an unlawful act of violence, either with or without a common cause or quarrel, as, if they beat a man, or hunt and kill game in another’s park, chase, warren, or liberty, or do any other unlawful act with force and violence, or even do a lawful act, as removing a nuisance, in a violent and tumultuous manner.’ In 1 Russell on Crimes, p. 265, an old English work of high repute, the author states: ‘A “riot” is described to be a tumultuous disturbance of the peace by three persons or more, assembling together of their own authority, with an intent mutually to assist one another against any who shall oppose them in the execution of some enterprise of a private nature, and after-wards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful. * * * It seems to be agreed that the injury or grievance complained of and intended to be revenged or.remedied by a riotous assembly must relate to some private quarrel only, * * * or such like matters relating to the interests or dispute of particular persons in no way concerning the public. It seems to be clearly agreed that in every riot there must be some such circumstance, either of actual force or violence, or at least of an apparent tendency thereto, as are naturally apt to strike a terror into the people. * * * But it is not necessary, in order to constitute this crime, that personal violence should have been committed. * * * But the violence and tumult must be in some way premeditated; for if a number of persons being met together at a fair, market, or any other lawful or innocent occasion happen on a sudden quarrel to fall together by the ears, it seems to be agreed that they are not guilty of a riot, but only of a sudden affray. * * * But, if there be any predetermined purpose of acting with violence and tumult, the conduct of the parties may be deemed riotous.’ This definition is also found in 1 Hawkins, Pleas of the Crown, p. 513. Webster defines a riot to be ‘the tumultuous disturbance of the public peace by an unlawful assembly of three or more persons in the execution of some private object.’ And Bouvier in his Law Dictionary as ‘a tumultuous disturbance of the peace by three persons or more, assembling together of their own authority, with an intent mutually to assist each other against any who shall oppose them in the execution of some enterprise of a private nature, and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful.’ The common-law definition of a riot is generally approved by modern text-writers on the subject of criminal law. Thus Bishop in his work on Criminal Law (volume 2, §§ 1143, 1149), although he makes slight criticism of the definition laid down by Russell on Crimes, says: A ‘riot is such disorderly conduct in three or more assembled persons, actually accomplishing an object, as is calculated to terrify others. * * * The act of the rioters need not be such as it would be unlawful for one to perform. Whether iir this sense lawful or unlawful, if it is done by three or more in a turbulent manner, calculated to excite terror, it is a riot.’ Wharton in his work on Criminal Law (volume 2, §§ 1537 [1539], 1544), defines a riot as ‘a tumultuous disturbance of the public peace by an unlawful assembly of three or more persons in the execution of some private object. * * * It must be also shown in riot that the assembling was accompanied with some such circumstances, either of actual force or violence, or at least having an apparent tendency thereto, as were calculated to inspire people with terror; such as being armed, making threatening speeches, turbulent gestures, or the like. * * * To constitute a riot it is not necessary that there should be actual fright to the public generally. It is enough if the action of the parties implicated be so violent and tumultuous as to be likely to cause fright, and if individuals are frightened.’ These general definitions are approved in Aron v. Wausau, 98 Wis. 592, 74 N.W. 354, 40 L.R.A. 733; State v. Stalcup, 23 N.C. 30 [1 Ired.Law 30], 35 Am.Dec. 732; Lycoming F. Ins. Co. v. Schwenk, 95 Pa. 89, 40 Am.Rep. 629; Dupin v. Mutual Ins. Co., 5 La.Ann. 482; Com. v. Gibney, 2 Allen (Mass.) 150; State v. Snow, 18 Me. 346; State v. Hughes, 72 N.C. [25], 27. It will thus be seen that the modern definition of a riot is in harmony with and follows the common-law definition, and that the legal meaning of the word corresponds with the meaning given to it in ordinary usage. It has no technical import as distinguished from its signification when used in the everyday affairs of life. If we look to either Blackstone or Webster, we have the same result.” The above quotations are taken from the opinion in Spring Garden Ins. Co. v. Imperial Tobacco Co., 132 Ky. 7, 116 S.W. 234, 235, 20 L.R.A.,N.S., 277, 279, 280, 136 Am.St.Rep. 164, cited in appellant’s brief. To sustain its claim that the burning of the factory in the case at bar was the culmination of a riot and within the definition of the Oregon statute appellant cites and comments on a number of criminal cases decided by Oregon courts: State v. Mizis, 48 Or. 165, 85 P. 611, 86 P. 361; State v. Seeley, 51 Or. 131, 94 P. 37; and State v. Allen, 152 Or. 422, 53 P.2d 1054. It would require too much space to discuss these cases at length; it is sufficient to point out that in each of them the facts comported with the common understanding of a riot as expressed in the citations of authority heretofore quoted. The conduct of the participants in each case was boisterous and disorderly. They all involved disturbances connected with force and violence and the use of firearms, always resulted in someone being hurt, and in every case, with a single exception, one or more persons were killed. Appellant also cites as supporting its contention a number of insurance cases, which required the determination of what constituted a riot within the terms of the policy of insurance: Lycoming Fire Insurance Co. v. Schwenk, 40 Am.Rep. 629, 95 Pa. 89; Spring Garden Insurance Co. v. Imperial Tobacco Company, 132 Ky. 7, 116 S.W. 234, 20 L.R.A.,N.S., 277, 136 Am.St.Rep. 164; Luckett-Wake Tobacco Co. v. Globe & Rutgers Fire Insurance Co., C.C., 171 F. 147; Brous v. Imperial Assurance Co., 130 Misc. 450, 224 N.Y.S. 136; Insurance Co. of North America v. Rosenberg, 2 Cir., 25 F.2d 635. In these cases the courts held that the facts showed that the fire was the work of rioters. But, just as in the criminal cases heretofore noted, in each case there was putting in fear by threats to do bodily harm or the exhibition of weapons or actual discharge of firearms; in fact there was such display of force that people were terrified. Of course such unlawful acts constituted riot. Appellant contends that the commission of the crime of arson, the effort required to carry gasoline to the box factory, pouring it upon the inflammable debris, and striking and applying the match constituted such acts of force and violence as to render the action of the trial court erroneous. Such a construction would make practically every crime committed by three or more persons a riot. If three unarmed men acting together at night entered a field through a gate and without noise or disturbance carry away three sacks of.grain, could it be said that they had been engaged in a riot? The words used in phrasing the statute preclude any such construction. It says: “Any use of force or violence, or any threat to use force or violence, if accompanied by immediate power of execution, by three or more persons acting together, * * .” This cannot mean the force used to light a match. In Walter v. Northern Ins. Co., 370 Ill. 283, 18 N.E.2d 906, 121 A.L.R. 244, damage was done to an unoccupied house by persons who entered it by stealth, without disturbing anyone; it was held not to be within the coverage of an insurance policy against damage by riot, and it was further held that a statute defining criminal “riot” and penalizing those engaging therein would not be construed as changing the common law beyond what is expressed by the words of the statute. In that connection the court said (370 Ill. 283, 18 N.E.2d 908, 121 A.L.R. 248) : “The question comes, then, on the construction of the terms ‘force’ or ‘violence.’ Do they mean merely the manual force necessary to accomplish the act, or do they mean something more? There is no doubt that under the common law ‘force or violence’ meant a concerted intent of the perpetrators to mutually assist one another against all who should oppose them in the doing of an unlawful act. 3 Greenleaf on Evidence, 16th ed., sec. 216. Thus the definition of riot, under the common law, meant more than the mere force necessary to do the act; it meant a defiance of constituted authority or of the rights of the person injured, or his effort to protect such rights. The terms ‘force’ and ‘violence,’ as applied to offenses of this character, are, according to such standard lexicographers as Webster and Bouvier, synonymous.” The force contemplated by the act is the united force of three or more individuals acting in concert with the increased capacity to overcome resistance, and significantly the statute makes the threat to use force or violence equally punishable. Clearly, then, the force and violence forbidden was not merely muscular exertion, but of a kind with which a person could be threatened. The threat contemplated by the law was not one made against some inanimate object, but against an individual. In this sense there can be no threat without a person to be threatened. “Threat” is defined in Funk & Wagnall’s New Standard Dictionary as: “1. A declaration of an intention to inflict pain, injury, or punishment; a menace. “2. Law. Any menace of bodily hurt through fear of which a man’s business is interrupted; any menace of destruction or injury to life, reputation, or property, with a view to restrain a person’s freedom of action. [Emphasis supplied] The Supreme Court of Oregon has held that words used in statutory definitions are to be construed in accordance with common understanding. “In construing penal statutes, the legislative intent is in most cases to be found by giving to the words the meaning in which they are used in ordinary speech.” Kirk v. Farmers’ Union Grain Agency, 103 Or. 43, 202 P. 731, 732. The case of International Wire Works v. Hanover Fire Ins. Co., 230 Wis. 72, 283 N.W. 292, was an action to recover on a riot insurance policy. Plaintiff owned a manufacturing plant. On the night in question the janitor locked the plant and went home. On his return in the morning he found that someone had entered during the night and had done very extensive damage to the machinery and to cases of wire cloth which were ready for shipment. The guilty persons apparently used a pickaxe, or some such instrument, and an electric drill. While the wording of the statute against riot was not exactly like the Oregon statute, it was generally similar. In sustaining the action of the trial court in dismissing the action the Supreme Court said (230 Wis. 72, 283 N.W. 293): “The generally understood meaning of the word ‘riot’ is an assembly of individuals who commit a lawful or unlawful act in a violent or tumultuous manner, to the terror or disturbance of others. * * “The trial court correctly ruled that there was no material distinction between the common meaning of the word ‘riot’ and the definition contained in the statutes. The court was also correct when it said, ‘The essence of the offense is violence and tumult. There has been a total absence of any proof which would establish riotous destruction of property, and the court must therefore hold for the defendant.’ “Taken together, the definition of riot in sec. 347.02 and the imposition of liability in sec. 66.07 leave no room for doubt that the generally accepted definition of riot obtains in this state and that an element which must be included is the terror or disturbance of persons who are not participating in the violent or tumultuous acts. The parties to the insurance contracts upon which the present action is brought contemplated something more than violent acts done by three or more persons in stealth without the knowledge of others who might resist their acts or summon the armed force of the city. Even though there is terror or disturbance at the time that the damage is discovered, a crime committed secretly away from the public view is not a riot. No riot exists in the absence of publicity at the time of the vio--lent or tumultuous acts.” In Kirshenbaum v. Massachussets Bonding & Ins. Co., 107 Neb. 368, 372, 186 N.W. 325, 326, it is said: “The words ‘riot or civil commotion’ as used in the policy in suit will be given their popular or usual meaning, and be held to imply the wild or irregular action or tumultuous conduct on the part of three or more persons assembled 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:

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