Split (2)

train · 553k rows

task stringclasses 260 values	output stringlengths 2 5	instruction stringlengths 576 44.2k
songer_majvotes	3	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. UNITED STATES of America v. Samuel WILLIAMS, Appellant. Nos. 23093, 23098. United States Court of Appeals, District of Columbia Circuit. Nov. 3, 1970. Mr. J. Gordon Forester, Jr., Washington, D. C. (appointed by this court) was on the brief for appellant. Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry and John R. Dugan, Asst. U. S. Attys., were on the brief for appellee. Before BAZELON, Chief Judge, and MeGOWAN and TAMM, Circuit Judges, in Chambers. PER CURIAM: These appeals are from jury convictions of passing and uttering counterfeited obligations of the United States (18 U.S.C. § 472), and for intimidating a government witness (18 U.S.C. § 1503). The three issues raised by appellant on appeal all relate to matters to which no objection was taken in the trial court. Appellant first argues that the trial judge abused his discretion by failing to exclude prior convictions of witnesses who testified for appellant. See Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). In Davis v. United States, 133 U.S.App.D.C. 167, 409 F.2d 453 (1969), this court held that the Luck doctrine applies to impeachment by prior convictions of all witnesses, not just the accused. However, unless the trial judge’s discretion in this regard is properly invoked in the first instance with respect to an accused testifying in his own defense, it cannot normally be held on appeal to have been abused. See, e. g., Evans v. United States, 130 U.S. App.D.C. 114, 397 F.2d 675 (1968), cert. denied, 394 U.S. 907, 89 S.Ct. 1016, 22 L.Ed.2d 218 (1969); Harley v. United States, 126 U.S.App.D.C. 287, 377 F.2d 172 (1967); Hood v. United States, 125 U.S.App.D.C. 16, 365 F.2d 949 (1966). The same principle is a fortiori applicable to defense witnesses other than the accused. Appellant’s second contention focuses upon the trial judge’s explanatory remarks prefatory to his instruction to the jury with respect to the impeachment of defense witnesses. The trial judge stated that a counsel vouches for the credibility of the witnesses he produces. Appellant charges that these remarks put the credibility of the defense counsel in issue. This appears to be a strained construction of what was said; and we note that trial counsel himself saw no occasion to object. Under the circumstances, we find no basis for reversal in this incident. Finally, appellant contends that he was fatally prejudiced by the allegedly improper cross-examination by the prosecutor of certain character witnesses offered by appellant. Questions were asked as to the witnesses’ knowledge of previous arrests of appellant for robbery, possession of a prohibited weapon, and housebreaking. There is considerable latitude to ask character witnesses about the state of their knowledge of defendant’s background and experience as they bear upon his reputation for honesty and integrity. See Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1958); Cf. United States v. Wooden, 137 U.S.App.D.C. 1, 420 F.2d 251 (1969). Whether the government’s cross-examination in this instance was within the permissible bounds need not be definitely resolved by us since there was no objection to the questions asked. Of this point, as of the others discussed above, it is true in any event that the error, if any, was harmless when considered by reference to the entire record. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Affirmed. . Appellant has also belatedly challenged in this court the constitutionality of 14 D.C.Code § 305. The issue is untimely; and see Bailey v. United States, 138 U.S.App.D.C. 242, 426 F.2d 1236 (1970). Question: What is the number of judges who voted in favor of the disposition favored by the majority? Answer:
sc_casedisposition	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. SMITH v. MURRAY, DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS No. 85-5487. Argued March 4, 1986 Decided June 26, 1986 O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and White, Powell, and Rehnquist, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, ante, p. 516. Stevens, J., filed a dissenting opinion, in which Marshall and Black-mun, JJ., joined, and in Parts II and III of which Brennan, J., joined, post, p. 539. J. Lloyd, Snook III, by appointment of the Court, 474 U. S. 993, argued the cause for petitioner. With him on the briefs was Richard J. Bonnie. James E. Kulp, Senior Assistant Attorney General of Virginia, argued the cause for respondent. With him on the brief were William G. Broaddus, Attorney General, and Frank S. Ferguson, Assistant Attorney General. Briefs of amici curiae urging reversal were filed for the American Psychiatric Association et al. by Joel I. Klein, Joseph N.'Onek, and Peter E. Scheer; for the American Psychological Association by Bruce J. Ennis, Jr., and Donald N. Bersoff; and for the New Jersey Department of the Public Advocate by Linda G. Rosenzweig. Justice O’Connor delivered the opinion of the Court. We granted certiorari to decide whether and, if so, under what circumstances, a prosecutor may elicit testimony from a mental health professional concerning the content of an interview conducted to explore the possibility of presenting psychiatric defenses at trial. We also agreed to review the Court of Appeals’ determination that any error in the admission of the psychiatrist’s evidence in this case was irrelevant under the holding of Zant v. Stephens, 462 U. S. 862 (1983). On examination, however, we conclude that petitioner defaulted his underlying constitutional claim by failing to press it before the Supreme Court of Virginia on direct appeal. Accordingly, we decline to address the merits of petitioner’s claims and affirm the judgment dismissing the petition for a writ of habeas corpus. I Following a jury trial, petitioner was convicted of the May 1977 murder of Audrey Weiler. According to his confession, petitioner encountered Ms. Weiler in a secluded area near his home and raped her at knifepoint. Fearing that her testimony could send him back to prison, he then grabbed her by the neck and choked her until she fell unconscious. When he realized that she was still alive, he dragged her into a nearby river, submerged her head, and repeatedly stabbed her with his knife. A subsequent medical examination indicated that the death was attributable to three clusters of lethal injuries: asphyxia from strangulation, drowning, and multiple stab wounds. Prior to the trial, petitioner’s appointed counsel, David Pugh, had explored the possibility of presenting a number of psychiatric defenses. Towards that end, Mr. Pugh requested that the trial court appoint a private psychiatrist, Dr. Wendell Pile, to conduct an examination of petitioner. Aware that psychiatric reports were routinely forwarded to the court and that such reports were then admissible under Virginia law, Mr. Pugh had advised petitioner not to discuss any prior criminal episodes with anyone. App. 134. See Gibson v. Commonwealth, 216 Va. 412, 219 S. E. 2d 845 (1975). Although that general advice was intended to apply to the forthcoming psychiatric examination, Mr. Pugh later testified that he “did not specifically tell [petitioner] not to say anything to Doctor Pile about the offense or any offenses.” App. 132. During the course of the examination, Dr. Pile did in fact ask petitioner both about the murder and about prior incidents of deviant sexual conduct. Tr. of State Habeas Hearing 19. Although petitioner initially declined to answer, he later stated that he had once torn the clothes off a girl on a school bus before deciding not to carry out his original plan to rape her. App. 44. That information, together with a tentative diagnosis of “Sociopathic Personality; Sexual Deviation (rape),” was forwarded to the trial court, with copies sent both to Mr. Pugh and to the prosecutor who was trying the case for the Commonwealth. Id., at 43-45. At no point prior to or during the interview did Dr. Pile inform petitioner that his statements might later be used against him or that he had the right to remain silent and to have counsel present if he so desired. Id., at 90. Cf. Estelle v. Smith, 451 U. S. 454 (1981). At the sentencing phase of the trial, the Commonwealth called Dr. Pile to the stand. Over the defense’s objection, Dr. Pile described the incident on the school bus. Tr. 934-935. On cross-examination, he repeated his earlier conclusion that petitioner was a “sociopathic personality.” Id., at 936. After examining a second psychiatrist, the Commonwealth introduced petitioner’s criminal record into evidence. It revealed that he had been convicted of rape in 1973 and had been paroled from the penitentiary on that charge less than four months prior to raping and murdering Ms. Weiler. The defense then called 14 character witnesses, who testified that petitioner had been a regular churchgoer, a member of the choir, a conscientious student in high school, and a good soldier in Vietnam. After lengthy deliberation, the jury recommended that petitioner be sentenced to death. Petitioner appealed his conviction and sentence to the Supreme Court of Virginia. In his brief he raised 13 separate claims, including a broad challenge to the constitutionality of Virginia’s death penalty provisions, objections to several of the trial court’s evidentiary rulings, and a challenge to the exclusion of a prospective juror during voir dire. Petitioner did not, however, assign any error concerning the admission of Dr. Pile’s testimony. At a subsequent state postconviction hearing, Mr. Pugh explained that he had consciously decided not to pursue that claim after determining that “Virginia case law would [not] support our position at that particular time.” App. 143. Various objections to the Commonwealth’s use of Dr. Pile’s testimony were raised, however, in a brief filed by amicus curiae Post-Conviction Assistance Project of the University of Virginia Law School. The Supreme Court of Virginia affirmed the conviction and sentence in all respects. Smith v. Commonwealth, 219 Va. 455, 248 S. E. 2d 135 (1978). In a footnote, it noted that, pursuant to a rule of the court, it had considered only those arguments advanced by amicus that concerned errors specifically assigned by the defendant himself. Id., at 460, n. 1, 248 S. E. 2d, at 139, n. 1. Accordingly, it did not address any issues concerning the prosecution’s use of the psychiatric testimony. This Court denied the subsequent petition for certiorari, which, again, did not urge the claim that admission of Dr. Pile’s testimony violated petitioner’s rights under the Federal Constitution. 441 U. S. 967 (1979). In 1979, petitioner sought a writ of habeas corpus in the Circuit Court for the City of Williamsburg and the County of James City. For the first time since the trial, he argued that the admission of Dr. Pile’s testimony violated his privilege against self-incrimination under the Fifth and Fourteenth Amendments to the Federal Constitution. The court ruled, however, that petitioner had forfeited the claim by failing to press it in earlier proceedings. At a subsequent evidentiary hearing, conducted solely on the issue of ineffective assistance of counsel, the court heard testimony concerning the reasons underlying Mr. Pugh’s decision not to pursue the Fifth Amendment claim on appeal. On the basis of that testimony, the court found that Pugh and his assistant had researched the question, but had determined that the claim was unlikely to succeed. Thus, the court found, “counsel exercised reasonable judgment in deciding not to preserve the objection on appeal, and . . . this decision resulted from informed, professional deliberation.” App. to Pet. for Cert. 71. Petitioner appealed the denial of his habeas petition to the Supreme Court of Virginia, contending that the Circuit Court had erred in finding that his objection to the admission of Dr. Pile’s testimony had been defaulted. The Supreme Court declined to accept the appeal, Smith v. Morris, 221 Va. cxliii (1981), and we again denied certiorari. 454 U. S. 1128 (1981). Having exhausted state remedies, petitioner sought a writ of habeas corpus in the United States District Court for the Eastern District of Virginia. In an unpublished order, the court denied the petition, holding that the objection to the admission of Dr. Pile’s testimony was “clearly barred” under this Court’s decision in Wainwright v. Sykes, 433 U. S. 72 (1977). App. 158. In reaching that conclusion, the District Judge noted that “the default resulted not from the trial attorney’s ignorance or inadvertence, but because of a deliberate tactical decision.” Ibid. The Court of Appeals for the Fourth Circuit affirmed, but on different grounds. Smith v. Procunier, 769 F. 2d 170 (1985). Finding it unnecessary to rely on procedural default or to address the merits of the substantive constitutional claim, the court held that admission of Dr. Pile’s testimony, even if erroneous, could not be the basis for invalidating petitioner’s sentence. It noted that the jury had relied on two distinct aggravating factors in its decision to recommend the death penalty. The psychiatric testimony, however, only bore on one of those factors, the likelihood that petitioner would “constitute a continuing serious threat to society.” Va. Code § 19.2-264.2 (1983); Tr. 1102. In that circumstance, the Court of Appeals believed, our decision in Zant v. Stephens, 462 U. S., at 884, required the conclusion that the error, if any, was irrelevant to the overall validity of the sentence. We granted certiorari, Smith v. Sielaff, 474 U. S. 918 (1985), and now affirm on the authority of our decision in Murray v. Carrier, ante, p. 478. I — I HH Under Virginia law, failure to raise a claim on direct appeal from a criminal conviction ordinarily bars consideration of that claim in any subsequent state proceeding. See, e. g., Coppola v. Warden of Virginia State Penitentiary, 222 Va. 369, 282 S. E. 2d 10 (1981); Slayton v. Parrigan, 215 Va. 27, 205 S. E. 2d 680 (1974). In the present case, the Virginia courts have enforced that rule by declining to consider petitioner’s objection to the admission of Dr. Pile’s testimony, a claim concededly not included in his initial appeal from his conviction and sentence. Consistent with our earlier intimations in Reed v. Ross, 468 U. S. 1, 11 (1984), we held in Murray v. Carrier, ante, p. 478, that a federal habeas court must evaluate appellate defaults under the same standards that apply when a defendant fails to preserve a claim at trial. Accordingly, although federal courts at all times retain the power to look beyond state procedural forfeitures, the exercise of that power ordinarily is inappropriate unless the defendant succeeds in showing both “cause” for noncompliance with the state rule and “actual prejudice resulting from the alleged constitutional violation.” Wainwright v. Sykes, supra, at 84; Murray v. Carrier, ante, at 485. As we explained more fully in Carrier, this congruence between the standards for appellate and trial default reflects our judgment that concerns for finality and comity are virtually identical regardless of the timing of the defendant’s failure to comply with legitimate state rules of procedure. We need not determine whether petitioner has carried his burden of showing actual prejudice from the allegedly improper admission of Dr. Pile’s testimony, for we think it self-evident that he has failed to demonstrate cause for his noncompliance with Virginia’s procedures. We have declined in the past to essay a comprehensive catalog of the circumstances that would justify a finding of cause. Reed v. Ross, supra, at 13; see also Wainwright v. Sykes, supra, at 91. Our cases, however, leave no doubt that a deliberate, tactical decision not to pursue a particular claim is the very antithesis of the kind of circumstance that would warrant excusing a defendant’s failure to adhere to a State’s legitimate rules for the fair and orderly disposition of its criminal cases. As the Court explained in Reed: “[DJefense counsel may not make a tactical decision to forgo a procedural opportunity — for instance, to object at trial or to raise an issue on appeal — and then when he discovers that the tactic has been unsuccessful, pursue an alternative strategy in federal court. The encouragement of such conduct by a federal court on habeas corpus review would not only offend generally accepted principles of comity, but would undermine the accuracy and efficiency of the state judicial systems to the detriment of all concerned. Procedural defaults of this nature are, therefore, inexcusable, and cannot qualify as ‘cause’ for purposes of federal habeas corpus review.” 468 U. S., at 14 (internal quotation and citation omitted). Here the record unambiguously reveals that petitioner’s counsel objected to the admission of Dr. Pile’s testimony at trial and then consciously elected not to pursue that claim before the Supreme Court of Virginia. The basis for that decision was counsel’s perception that the claim had little chance of success in the Virginia courts. With the benefit of hindsight, petitioner’s counsel in this Court now contends that this perception proved to be incorrect. Cf. Gibson v. Zahradnick, 581 F. 2d 75 (CA4 1978) (repudiating reasoning of Gibson v. Commonwealth, 216 Va. 412, 219 S. E. 2d 845 (1975)). Even assuming that to be the case, however, a State’s subsequent acceptance of an argument deliberately abandoned on direct appeal is irrelevant to the question whether the default should be excused on federal habeas. Indeed, it is the very prospect that a state court “may decide, upon reflection, that the contention is valid” that undergirds the established rule that “perceived futility alone cannot constitute cause,” Engle v. Isaac, 456 U. S. 107, 130, and n. 36 (1982); for “[ajllowing criminal defendants to deprive the state courts of [the] opportunity” to reconsider previously rejected constitutional claims is fundamentally at odds with the principles of comity that animate Sykes and its progeny. Id., at 130. Notwithstanding the deliberate nature of the decision not to pursue his objection to Dr. Pile’s testimony on appeal — a course of conduct virtually dispositive of any effort to satisfy Syke’s “cause” requirement — petitioner contends that the default should be excused because Mr. Pugh’s decision, though deliberate, was made in ignorance. Had he investigated the claim more fully, petitioner maintains, “it is inconceivable that he would have concluded that the claim was without merit or that he would have failed to raise it.” Reply Brief for Petitioner 3. The argument is squarely foreclosed by our decision in Carrier, which holds that “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” Ante, at 486-487. See also Engle v. Isaac, supra, at 133-134. Nor can it seriously be maintained that the decision not to press the claim on appeal was an error of such magnitude that it rendered counsel’s performance constitutionally deficient under the test of Strickland v. Washington, 466 U. S. 668 (1984). Carrier reaffirmed that “the right to effective assistance of counsel. . . may in a particular case be violated by even an isolated error . . . if that error is sufficiently egregious and prejudicial.” Ante, at 496; see also United States v. Cronic, 466 U. S. 648, 657, n. 20 (1984). But counsel’s deliberate decision not to pursue his objection to the admission of Dr. Pile’s testimony falls far short of meeting that rigorous standard. After conducting a vigorous defense at both the guilt and sentencing phases of the trial, counsel surveyed the extensive transcript, researched a number of claims, and decided that, under the current state of the law, 13 were worth pursuing on direct appeal. This process of “winnowing out weaker arguments on appeal and focusing on” those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy. Jones v. Barnes, 463 U. S. 745, 751-752 (1983). It will often be the case that even the most informed counsel will fail to anticipate a state appellate court’s willingness to reconsider a prior holding or will underestimate the likelihood that a federal habeas court will repudiate an established state rule. But, as Strickland v. Washington made clear, “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” 466 U. S., at 689. Viewed in light of Virginia law at the time Mr. Pugh submitted his opening brief to the Supreme Court of Virginia, the decision not to pursue his objection to the admission of Dr. Pile’s testimony fell well within the “wide range of professionally competent assistance” required under the Sixth Amendment to the Federal Constitution. Id., at 690. Nor can petitioner rely on the novelty of his legal claim as “cause” for noncompliance with Virginia’s rules. See Reed v. Ross, 468 U. S., at 18 (“[W]here a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures”). Petitioner contends that this Court’s decisions in Estelle v. Smith, 451 U. S. 454 (1981), and Ake v. Oklahoma, 470 U. S. 68 (1985), which were decided well after the affirmance of his conviction and sentence on direct appeal, lend support to his position that Dr. Pile’s testimony should have been excluded. But, as a comparison of Reed and Engle makes plain, the question is not whether subsequent legal developments have made counsel’s task easier, but whether at the time of the default the claim was “available” at all. As petitioner has candidly conceded, various forms of the claim he now advances had been percolating in the lower courts for years at the time of his original appeal. Brief for Petitioner 20-21, n. 12; Reply Brief for Petitioner 3. Moreover, in this very case, an amicus before the Supreme Court of Virginia specifically argued that admission of Dr. Pile’s testimony violated petitioner’s rights under the Fifth and Sixth Amendments. Brief for Post-Conviction Assistance Project of the University of Virginia Law School as Amicus Curiae in No. 780293, pp. 53-62. Under these circumstances, it simply is not open to argument that the legal basis of the claim petitioner now presses on federal habeas was unavailable to counsel at the time of the direct appeal. We conclude, therefore, that petitioner has not carried his burden of showing cause for noncompliance with Virginia’s rules of procedure. That determination, however, does not end our inquiry. As we noted in Engle and reaffirmed in Carrier, “ ‘[i]n appropriate cases’ the principles of comity and finality that inform the concepts of cause and prejudice ‘must yield to the imperative of correcting a fundamentally unjust incarceration.’” Murray v. Carrier, ante, at 495, quoting Engle v. Isaac, supra, at 135. Accordingly, “where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Murray v. Carrier, ante, at 496. We acknowledge that the concept of “actual,” as distinct from “legal,” innocence does not translate easily into the context of an alleged error at the sentencing phase of a trial on a capital offense. Nonetheless, we think it clear on this record that application of the cause and prejudice test will not result in a “fundamental miscarriage of justice.” Engle, 456 U. S., at 135. There is no allegation that the testimony about the school bus incident was false or in any way misleading. Nor can it be argued that the prospect that Dr. Pile might later testify against him had the effect of foreclosing meaningful exploration of psychiatric defenses. While that concern is a very real one in the abstract, here the record clearly shows that Dr. Pile did ask petitioner to discuss the crime he stood accused of committing as well as prior incidents of deviant sexual conduct. Although initially reluctant to do so, ultimately petitioner was forthcoming on both subjects. In short, the alleged constitutional error neither precluded the development of true facts nor resulted in the admission of false ones. Thus, even assuming that, as a legal matter, Dr. Pile’s testimony should not have been presented to the jury, its admission did not serve to pervert the jury’s deliberations concerning the ultimate question whether in fact petitioner constituted a continuing threat to society. Under these circumstances, we do not believe that refusal to consider the defaulted claim on federal habeas carries with it the risk of a manifest miscarriage of justice. Nor can we concur in Justice Stevens’ suggestion that we displace established procedural default principles with an amorphous “fundamental fairness” inquiry. Post, at 542-543. Precisely which parts of the Constitution are “fundamental” and which are not is left for future elaboration. But, for Justice Stevens, when a defendant in a capital case raises a “substantial, colorable” constitutional claim, a federal court should entertain it no matter how egregious the violation of state procedural rules, and regardless of the fairness of the opportunity to raise that claim in the course of his trial and appeal. Post, at 546. We reject the suggestion that the principles of Wainwright v. Sykes apply differently depending on the nature of the penalty a State imposes for the violation of its criminal laws. We similarly reject the suggestion that there is anything “fundamentally unfair” about enforcing procedural default rules in cases devoid of any substantial claim that the alleged error undermined the accuracy of the guilt or sentencing determination. In view of the profound societal costs that attend the exercise of ha-beas jurisdiction, such exercise “carries a serious burden of justification.” H. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 146 (1970); see also Engle v. Isaac, supra, at 126-129. When the alleged error is unrelated to innocence, and when the defendant was represented by competent counsel, had a full and fair opportunity to press his claim in the state system, and yet failed to do so in violation of a legitimate rule of procedure, that burden has not been carried. Accordingly, we affirm the judgment of the Court of Appeals upholding the dismissal of petitioner’s application for a writ of habeas corpus. Affirmed. [For dissenting opinion of Justice Brennan, see ante, p. 516.] Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:
songer_usc2	26	What follows is an opinion from a United States Court of Appeals. The most frequently cited title of the U.S. Code in the headnotes to this case is 26. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. UNITED STATES of America, Plaintiff-Appellee, v. Larry Gene MILLER, Defendant-Appellant. No. 71-1334. United States Court of Appeals, Tenth Circuit. Dec. 13, 1971. Rehearing Denied Dec. 7, 1972. Jeff R. Laird, First Asst. U. S. Atty., Oklahoma City, Okl. (William R. Burkett, U. S. Atty., Oklahoma City, Okl., with him on the brief), for plaintiff-appellee. Mac Oyler, Oklahoma City, Okl., for defendant-appellant. Before LEWIS, Chief Judge, and McWILLIAMS and BARRETT, Circuit Judges. BARRETT, Circuit Judge. Larry Gene Miller appeals from his conviction for unlawful possession of a firearm as defined by 26 U.S.C. § 5845(a) not registered to him in the National Firearms Registration and Transfer Record in violation of 26 U.S.C. §§ 5861(d) and 5871. Prior to trial, Miller moved to suppress the evidence against him, i. e., the sawed-off shotgun, on the ground that it had been obtained as a result of an illegal search and seizure. Both this motion and Miller’s motion for judgment of acquittal at trial were denied. On appeal the sole contention is that Miller’s arrest was illegal and that the sawed-off shotgun obtained as a result thereof is not admissible against him. On September 12, 1970, two Oklahoma City police officers received information over the police radio that a white male driving a 1960 Chevrolet without a hood and colored black except for one white door had fired a shot from a firearm at a certain location in the city. The police officers, in their patrol ear, spotted a car meeting the description given about one-half hour later. By means of flashing lights the police stopped the suspect vehicle then operated by Miller. Miller got out of his vehicle and proceeded to walk back toward the police car. Officer Green met Miller. At the same time Officer Robinson, who had walked up to Miller’s vehicle, looked through the windshield and saw the hammer, breech and sawed-off stock of the shotgun lying on the front floorboard. He opened the door, removed the weapon and placed Miller under arrest. Miller was not prosecuted in state or municipal courts. The facts in this ease are almost identical to those before this court in United States v. Alberty, 448 F.2d 706 (10th Cir. 1971). There, however, the trial court granted the motion to suppress. We reversed and remanded for rehearing. In Alberty, supra, as here, the arrests and seizures were challenged under Oklahoma law. In both cases the following applied: (a) When the suspect vehicles were stopped by the state police officers, no misdemeanor had been committed in the presence of the officers; (b) the officers did . not possess arrest warrants; (e) under the law of Oklahoma the actions of the police officers in bringing the suspect vehicles to stops and thus under their control constituted an illegal arrest; and (d) under these circumstances Oklahoma law forbids the admission in evidence of incriminating objects seized incident to an unlawful arrest. Under the facts of these cases the state police officers would have been derelict in their duty to the public if they had not done exactly what they did. Miller argues that United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948) and Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959) control here. These cases stand for the rules that: (a) in the absence of an applicable Federal statute the law of the state where an arrest without warrant takes place determines its validity; and (b) search and seizure cannot be justified on any cause less than that probable cause required of the magistrate who issues arrest or search warrants. As noted in Alberty, supra, we believe that certain decisions, culminating with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), have vitiated these holdings. We shall review these decisions. The Di Re rule was rejected, by implication, in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) . In Elkins the Court stated: “In determining whether there has been an unreasonable search and seizure by state officers (in a federal prosecution), a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed." 364 U.S. at 223-224, 80 S.Ct. at 1447. (Emphasis ours). Since Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the commands of the Fourth Amendment have been made applicable upon state officers under the Fourteenth Amendment. Accordingly, incriminating objects seized in violation of the Fourth Amendment are inadmissible in state criminal prosecutions. Massey v. United States, 358 F.2d 782 (10th Cir. 1966), cert. denied 385 U.S. 878, 87 S.Ct. 159, 17 L.Ed.2d 105 (1966). And this court has held that in federal prosecutions the test of reasonableness in relation to Fourth Amendment protected rights must be determined by Federal law even though the police actions are those of state police officers. United States v. Self, 410 F.2d 984 (10th Cir. 1969); Sablowski v. United States, 403 F.2d 347 (10th Cir. 1968). Di Re applied state law governing arrests in the absence of a controlling federal statute; Elkins held that federal courts must apply federal law, i. e., a combination of federal statutes and federal common law, in federal prosecutions. And in Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960), remand was made to the trial court for a determination of the lawfulness of state officers’ conduct in accordance with basic principles governing the validity of search and seizure by federal officers under the Fourth Amendment. There, in a state prosecution, the evidence had been suppressed. Here, as in Alberty, we are not concerned with the validity of the arrests and seizures measured by Oklahoma law, but rather when the arrests took place by federal standards. By that yardstick the question is: At what point in time was appellant Miller under arrest? This question must be judged and answered, we believe, by the federal law standards applied in Terry v. Ohio, supra. There the Court rejected the argument that the only time a police officer may detain and search is when he has probable cause to arrest. The Court recognized that: “. . . we deal here with an entire rubric of police conduct — necessarily swift action predicated upon the on-the-spot observations of the officer on the beat — which historically has not been, and as a practical matter could not be, subjected to the warrant procedure.” 392 U.S. at 20, 88 S.Ct. at 1879. Thus, the Court said, the test of reasonableness of police action in relation to Fourth Amendment protective interests must be judged by this objective standard: “Would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” 392 U.S. at 21-22, 88 S.Ct. at 1880. In that case appellant Terry argued that the “stop” and “frisk” conducted by Officer McFadden must be strictly circumscribed by the law of arrest and search and that nothing less than the “probable cause” required for arrest or search warrants could satisfy the commands of the Fourth Amendment. In rejecting these contentions, the Court observed that a rigid and unthinking application of the exclusionary rule “may exact a high toll in human injury and frustration of efforts to prevent crime.” 392 U.S. at 15, 88 S.Ct. at 1876. Sanctioning “legitimate and restrained investigative conduct undertaken on the basis of ample factual justification” the Court reasoned that: “. . . a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” 392 U.S. at 22, 88 S.Ct. at 1880. See also United States v. Sanchez, 450 F.2d 525 (10th Cir., 1971); United States v. Harflinger, 436 F.2d 928 (8th Cir. 1970), cert. denied, 402 U.S. 973, 91 S.Ct. 1660, 29 L.Ed.2d 137 (1971). Mr. Justice Douglas dissented in Terry v. Ohio, supra. He cited Henry v. United States, supra, heavily relied upon by appellant Miller here, for the rule that search and seizure cannot be justified for any reason less than “probable cause” which he equated with the “probable cause” requirements to be met by a magistrate before he issues either an arrest warrant or a search warrant. 392 U.S. at 36-37, 88 S.Ct. 1868, 20 L.Ed.2d 889. During oral argument, appellant Miller invoked Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). He claims that this decision effectively overrules Terry v. Ohio, supra. He is mistaken. In Whiteley the entire focus went to probable cause requirements for a valid arrest warrant. The Court held that the actions of the arresting officers, who had relied upon police radio information which was based upon an arrest warrant, necessarily depended upon the probable cause sufficiency of the complaint or other information related to the issuing Justice of the Peace. Failing to find such probable cause from the record before it, the Court held that the arrest was illegal and that the incriminating evidence obtained in the subsequent search of the vehicle was tainted. In comparing Whiteley with Terry, we believe that the language of Mr. Justice Douglas in his Terry dissent explains the difference: “We hold today that the police have greater authority to make a ‘seizure’ and conduct a ‘search’ than a judge has to authorize such action. We have said precisely the opposite over and over again.” 392 U.S. at 36, 88 S.Ct. at 1887. The search conducted in Whiteley disclosed incriminating objects only after the police physically entered the vehicle. The “plain view” doctrine did not apply. Incriminating objects which are visible and accessible, falling in plain view of an officer who has a right to be in a position to have the view, are subject to seizure and may be introduced in evidence. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Chapman v. United States, 443 F.2d 917 (10th Cir. 1971). We affirm. Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 26. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_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". Annie PHILLIP, Administratrix of the Estate of Augustus J. Phillip, Deceased, Appellant, v. UNITED STATES LINES COMPANY, Appellee. No. 15380. United States Court of Appeals Third Circuit. Argued Dec. 13, 1965. Decided Jan. 12, 1966. Wilfred R. Lorry, Philadelphia (Abraham E. Freedman, Wilfred F. Lorry, Freedman, Borowsky & Lorry, Philadelphia, Pa., on the brief), for appellant. Harrison G. Kildare, Rawle & Henderson, Philadelphia, Pa. (Thomas F. Mount, Philadelphia, Pa., on the brief), for ap-pellee. Before McLAUGHLIN, HASTIE and SMITH, Circuit Judges. PER CURIAM. We find no error in the refusal of the trial judge under all the evidence to allow the submission to the jury of plaintiff’s claim for punitive damages. We expressly do not decide whether in a proper case punitive damages are recoverable under the Jones Act, 46 U.S.C. § 688. The judgment of the district court will be affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
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. Leonard J. BJORGO, Executor of the Estate of Edith Bjorgo, Deceased, Plaintiff-Appellant, v. Diet J. WEERDEN, Defendant-Appellee. No. 14707. United States Court of Appeals Seventh Circuit. March 5, 1965. Lowell H. Jacobson, James A. Brand-vik, Chicago, 111., Westbrook, Jacobson & Brandvik, Chicago, 111., of counsel, for plaintiff-appellant. D. Kendall Griffith, John M. Moelmann, Chicago, 111., for defendant-appellee. Before DUFFY, KNOCH and CASTLE, Circuit Judges. DUFFY, Circuit Judge. This suit was brought by plaintiff as the executor of the estate of his deceased wife. The named defendant was a National of The Netherlands who resides in and is a citizen of that country. The suit is an action for damages resulting from an automobile collision which occurred on July 30, 1963, in the State of Nebraska. The complaint was filed in the United States District Court for the Northern District of Illinois, Eastern Division. The summons herein was served on the Secretary of State for the State of Nebraska. The complaint alleged plaintiff was a resident of Park Ridge, Cook County, Illinois, and that he was appointed executor of the estate of Edith Bjorgo by the Probate Court of Cook County, Illinois. Defendant filed a motion asking that the service of summons be quashed, alleging the service of process was insufficient in that it was not made within the territorial limits of the State of Illinois. This motion was argued before the Court on February 20, 1964. Plaintiff’s counsel stated “I will not at this stage contest any further their motion to quash the service of the process at this stage.” The Court entered a minute order stating “By agreement order service of summons quashed.” At the same time, it was ordered that the cause be continued to March 23, 1964 for a report on status. On March 10, 1964, defendant filed “an amended motion to quash.” This motion stated counsel was “appearing specially for the purpose of quashing the service of process and dismissing plaintiff’s complaint,” pursuant to Rule 12(b). The trial court then set a schedule for the filing of briefs. On March 23, 1964, plaintiff filed a reply to defendant’s motion to amend and dismiss, and requested the Court to enter an order that defendant had submitted herself to the jurisdiction of the Court. On March 25, 1964, defendant filed an answer alleging defendant had not submitted to the jurisdiction of the Court and alleged that defendant’s original motion to quash service was unresolved by the Court on the date when the additional motion to quash was filed; that the minute order indicating that service of summons was quashed on February 20, 1964, incorrectly reflected the status of the record; that the docket entry and minute order were not known to the defendant and that what defendant’s counsel attempted to do was to amend the motion to quash which counsel believed to be still pending before the Court. On. April 6, 1964, the amended motion, answer and reply came on for hearing before the District Judge. There was an extended colloquy between the Court and counsel. The Court stated: “The problem, of course, is that you say that by appearing to quash the service, defendant has waived the jurisdictional question. I don’t think that follows at all. But if it does, I will vacate the previous order quashing service and let the defendant appear specially here to challenge the jurisdiction or on my own motion I will dismiss the case for want of jurisdiction * * ” Later, the District Judge said: “Yes. I vacate the previous order quashing, and I grant the motion today to quash and dismiss.” Thereafter, and on April 6, 1964, the following order was entered: “On the Court’s own motion it is “Ordered that the order entered on February 20, 1964, quashing service of summons herein be and it hereby is vacated and set aside. “It Is Further Ordered that the amended motion of the defendant to quash service of summons and to dismiss this suit is granted, and that this cause be and it hereby is dismissed for want of prosecution.” It is apparent there was considerable confusion about the first order entered on February 20, 1964. This order purported to quash the service of the summons and unless there were some other service on defendant which was valid, that would be the end of the case. Yet, the order also provided that the cause be continued to March 23, 1964. When the confused situation came to the attention of the District Judge, he vacated the former order so as to get a fresh start. The amended motion again asked that the service of the summons be quashed and also, that the cause be dismissed. This latter provision was advisable so as to clear the Judge’s docket if the service of process were ordered quashed. In the amended motion, the defendant did not ask the Court to take any affirmative action which was inconsistent with her position that she was not properly served with process. In fact, the motion stated defendant was “appearing specially for the sole purpose * * Although the distinction between a special and a general appearance no longer prevails under Federal Rules, the statement in the amended motion does emphasize that defendant was attempting to avoid submitting herself to- the jurisdiction of the Court. Under the circumstances of this case, we do not think that defendant did submit to the jurisdiction of the District Court for the Northern District of Illinois, Eastern Division. We also are of the view that the trial court properly exercised its discretion by vacating the confusing order of February 20, 1964. Finding no error in the order of the District Court quashing service and dismissing the case, that order is Affirmed. . It is apparent that the Court intended to use the word “jurisdiction” instead of “prosecution.” 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_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. Cathelina ANTOLOK, et al., Appellants v. UNITED STATES of America. No. 87-5324. United States Court of Appeals, District of Columbia Circuit. Argued Nov. 10, 1988. Decided April 28, 1989. Abram Chayes, Cambridge, Mass., with whom E. Cooper Brown, Takoma Park, Md., Kathleen M. Tucker, and Fred Baron, Washington, D.C., were on the brief, for appellants. Gregory C. Sisk, Atty., Dept, of Justice, with whom John R. Bolton, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Robert S. Greenspan, Atty., Dept, of Justice, Washington, D.C., and Howard L. Hills, Atty., Dept, of State, were on the brief, for appel-lee. Before WALD, Chief Judge, and STARR and SENTELLE, Circuit Judges. Opinion for the Court filed by Circuit Judge SENTELLE. Opinion filed by Chief Judge WALD, concurring in judgment only. Circuit Judge SENTELLE announced the judgment of the Court in an opinion as to which Circuit Judge STARR concurs in all except Part IIB. Chief Judge WALD filed a separate opinion concurring in the result. SENTELLE, Circuit Judge: Residents and former residents of the northern atolls of the Marshall Islands appeal from a District Court judgment dismissing tort claims arising out of nuclear testing conducted by the United States on those islands. The District Court dismissed these tort claims for lack of justicia-bility, concluding that the complaint raised nonjusticiable political questions. Since we find that the District Court committed no error in its dismissal, we affirm for the reasons set out more fully below. I. Background A. The United States and the Marshall Islands The relationship between the United States and the Marshall Islands traces to the end of World War II, when the United States liberated the islands from Japan, which had administered them under a League of Nations mandate. From 1944 until July 18, 1947, the United States governed the islands under a temporary military occupation government. On July 18, 1947, the United Nations brought the Marshall Islands and other islands of Micronesia within the U.N. trusteeship system. The United States and the United Nations Security Council approved a trusteeship agreement designating the United States as “administering authority” over a trust territory comprised of the Marshall Islands, the Mariana Islands, and the Caroline Islands, all of which were commonly referred to as Micronesia. Trusteeship Agreement for the Former Japanese Mandated Islands, approved Apr. 2-Jul. 18, 1947, United Nations-United States, 61 Stat. 3301, T.I.A.S. No. 1665. As administering authority, the United States assumed full responsibility for governmental functions of Micronesia, including executive, legislative, and judicial powers, see id., art. 3, and agreed to assist in the development of the Micronesian islanders toward self-government and independence. See id., art. 6; see also United Nations Charter, art. 76(b). Under the Trusteeship Agreement, the United States retained the necessary control and authority over the Marshall Islands to continue nuclear testing begun during the period of military occupation pursuant to the Atomic Energy Act of 1946, Pub.L. No. 79-585, 60 Stat. 755 (1946), as amended by Atomic Energy Act of 1954, Pub.L. No. 83-703, 68 Stat. 919 (1954). Plaintiffs in the present litigation are residents and former residents of the northern Marshall Islands claiming injury to their persons or property by radioactive fallout from the nuclear tests. During the twenty years following the commencement of the trusteeship arrangement, the Secretary of the Interior, by authority of the President and with the advice and consent of the Senate, appointed a High Commissioner to serve as senior administrator of the trust territory. See Department of Interior Secretarial Order No. 2876, 29 Fed.Reg. 1855 (1964), superseded by Secretarial Order No. 2918, 34 Fed.Reg. 157 (1969). The High Commissioner reviewed both domestic and foreign governmental affairs of the trust territories. In the 1960’s, the United States initiated progress toward Micronesian self-government. In 1965 a congress of Micronesia came into being. Elected leaders from throughout the trust territory met to discuss concepts of independence and political unity. After the Micronesian Congress had considered various options, all parties agreed that cultural and geographic factors dictated a division of the trust territory into four independent governmental units, the Federated States of Micronesia, the Republic of Palau, the Commonwealth of the Northern Mariana Islands, and the Republic of the Marshall Islands (“RMI” or “Marshall Islands”), the only government whose citizens are plaintiffs in the present litigation. The RMI ratified a new constitution by referendum of March 1, 1979, and initiated a parliamentary government on May 1 of the same year. By order of April 25, 1979, the Secretary of the Interior, on behalf of the United States, acknowledged the existence of the governments of the Federated States of Micronesia, the Republic of Palau, and the RMI. Secretarial Order No. 3039, 44 Fed.Reg. 28, 116 (1979). This order delegated to the new governments most functions of government pending the termination of the trusteeship agreement but, subject to limitations contained in the order, retained in the United States residual authority for trusteeship obligations, including oversight of budget functions and administrative power to “suspend” legislation, amounting to a veto in the High Commissioner, subject to an appeal to the Secretary. Id. at §§ 3-6, 44 Fed.Reg. 28, 117-18. B. The Compact of Free Association All governments contemplated the evolution of the new entities toward self-governance with a view to the entry of each new government into a Compact of Free Association with the United States. In the case of the RMI, the negotiations leading to the Compact proceeded over the course of the next five years. Much of the negotiation concerned the settlement of nuclear claims giving rise to the present litigation. On June 25, 1983, the two governments executed the final version of the Compact of Free Association, Oct. 1, 1982-Jun. 25, 1983, United States-Micronesia-Marshall Islands, 99 Stat. 1800, T.I.A.S. No. _ (“Compact”), with an accompanying nuclear testing claims settlement, Agreement for the Implementation of Section 177 of the Compact of Free Association, Jun. 25, 1983, United States-Marshall Islands (“settlement agreement” or “Section 177 Agreement”), reprinted in Joint Appendix (“J.A.”) 67, which we will discuss below. The RMI approved the Compact including the settlement agreement in a U.N.-monitored plebiscite in September of 1983 by 58 percent vote of the Marshall Islanders. The President submitted the Compact and settlement agreement to Congress on March 30, 1984. After the 98th Congress failed to complete ratification, the President resubmitted the agreements to the 99th Congress on February 20, 1985. The House of Representatives approved final modified versions on December 11, 1985, and the Senate on December 13, 1985. See Juda v. United States, 13 Cl.Ct. at 673. On February 18, 1986, the Nitijela, the constitutionally established legislative body of the RMI, enacted the Compact of Free Association Resolution of 1986, Res. No. 62 N.D.-2 (1986), declaring “for purposes of... Article V of the Constitution [of the RMI], the Nitijela hereby approves the Compact and its subsidiary agreements, as they relate to the Republic of the Marshall Islands_” Id. § 3. Thereafter the United States presented the Compact to the Trusteeship Council of the United Nations. On May 29, the Council adopted Resolution 2183 recalling the Trusteeship Agreement and Not [ing ] that the peoples of the... Marshall Islands [and the surrounding Micronesian states]... have freely exercised their right to self-determination in plebiscites observed by the visiting missions of the Trusteeship Council and have chosen free association with the United States of America.... [and] Consider [ing ] that the Government of the United States, as the Administering Authority, ha[d] satisfactorily discharged its obligations under the terms of the Trusteeship Agreement and that it [was] appropriate for that Agreement to be terminated with effect [from the effective date of full entry in the Compact].... Examination of the annual report of the Administering Authority for the year ended 30 September 1985: Trust Territory of the Pacific Islands. T.C. Res. 2183, 53 U.N. TCOR (1617th mtg). The Resolution further declared the awareness of the Trusteeship Council that the process “of facilitating the progressive development of the peoples in Micronesia toward self-government or independence... has been successfully completed.” Id. On January 14, 1986, President Reagan signed into law the Compact of Free Association Act of 1985, Pub.L. No. 99-239, 99 Stat. 1770 (1986) (reprinted as amended in 48 U.S.C. § 1681 note at 624-54 (Supp. IV 1986)) (“Compact Act”). On November 3, 1986, the President declared the Compact of Free Association with the Republic of the Marshall Islands in full force and effect retroactive to October 21, 1986. Proclamation No. 5564, § 3(a), 3 C.F.R. 149 (1987), reprinted in 48 U.S.C. § 1681 note at 658 (Supp. IV 1986). The United States and the Republic of the Marshall Islands subsequently exchanged diplomatic notes of formal recognition and established diplomatic missions headed by representatives ranked with other ambassadors. Juda, 13 Cl.Ct. at 677. C. The Present Litigation and the Settlement Agreement On August 22, 1983, while the Compact and settlement were in negotiation, approximately three thousand present and former residents of the northern Marshall Islands and atolls directly downwind from the nuclear test sites filed the present action in the District Court for the District of Columbia, seeking damages for personal inju-ríes and death resulting from their exposure to dangerous levels of radiation. Plaintiffs claimed that the District Court had subject matter jurisdiction over the action pursuant to 28 U.S.C. § 1346 (United States as defendant), claiming liability under the Federal Tort Claims Act, 28 U.S.C. § 2674. The District Court stayed the action at the request of the United States pending the entry of the two governments into the Compact of Free Association. Then, on motion of the United States, the Court dismissed the action for lack of jurisdiction based on Section 103(g)(1) of the Compact Act and Articles X and XII of the Section 177 Agreement. Section 103(g)(1) expresses the intent of Congress that the provisions of the 177 Agreement constitute a full and final settlement of all claims described in the cited articles of the Agreement and that “any such claims be terminated and barred except insofar as provided for in the Section 177 Agreement.” Pub.L. No. 99-239, § 103(g)(1), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629 (Supp. IV 1986)). The District Court held that the RMI’s espousal and settlement of the claims were not reviewable by the courts of the United States and that the Court lacked “jurisdiction over plaintiffs’ claims, pursuant to valid law and in conjunction with non-reviewable foreign relations decisions.” Antolok v. United States, No. 85-2471, slip op. at 8 (D.D.C. Jun. 16, 1987). It is from this order of dismissal that plaintiffs now appeal. II. Analysis The United States urges that we should affirm the District Court’s dismissal of these claims on two distinct theories, both of which arise out of the terms of the Section 177 Agreement and the Compact Act incorporating that Agreement: first, that the Compact (incorporating the Agreement) and the Act of Congress endorsing the Compact withdrew jurisdiction over these claims in express terms; second, that the challenge to settlement terms negotiated as an integral part of diplomatic recognition of a foreign state raises non-reviewable political question. Upon analysis of the Compact, the incorporated 177 Agreement, and the relevant legislation in light of precedent and other applicable law, we find that the District Court was correct in dismissing these claims for lack of jurisdiction. A. The Withdrawal of Jurisdiction In Section 177 of the Compact of Free Association the United States “accepted] the responsibility for compensation owing to citizens of the Marshall Islands... for loss or damage to property and person... resulting from the nuclear testing program which the Government of the United States conducted in the Northern Marshall Islands between June 30, 1946, and August 18, 1958.” Compact, § 177(a), 99 Stat. 1812 (reprinted in 48 U.S.C. § 1681 note at 642 (Supp. IV 1986)), T.I.A.S. No_, at_ This Section provided that the two governments, the United States and the Marshall Islands, would set forth in a separate agreement provisions for “just and adequate settlement” of those claims and that the “separate agreement shall come into effect simultaneously with” the Compact. Id. § 177(b). Section 177(c) provides for a one hundred fifty million dollar grant from the United States to the Marshall Islands for payment and distribution under the separate agreement in satisfaction of those claims. Id. § 177(c). Article X of the resulting Section 177 Agreement headed “Espousal” provides that the Agreement constitutes full settlement of all the nuclear testing claims, including any then pending or later filed in any court or other judicial or administrative forum “including... the courts of the United States and its political subdivisions.” Section 177 Agreement, art. X, § 1. Article XII of the Agreement is entitled “United States Courts.” That Article reads, in full, as follows: All claims described in Articles X and XI of this Agreement shall be terminated. No court of the United States shall have jurisdiction to entertain such claims, and any such claims pending in the courts of the United States shall be dismissed. Id., art. XII. By its plain language, the Agreement contemplated a divestiture of jurisdiction of the District Court over this subject matter. Congress recognized as much and indeed required the same in the Compact Act. Section 103(g) of that Act expressly states “the intention of the Congress of the United States that the provisions of section 177... and the [Section 177] Agreement... constitute a full and final settlement of all claims described in Articles X and XI of the Section 177 Agreement, and that any such claims be terminated and barred except insofar as provided for in the Section 177 Agreement.” Pub.L. No. 99-239, § 103(g)(1), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629 (Supp. IV 1986)). It would appear obvious from the plain language of the 177 Agreement and the statute that Congress intended the District Court, and in turn this Court, to have no jurisdiction over claims, such as the ones asserted here, encompassed within the settlement agreement. It is axiomatic in our federal jurisprudence that inferior courts, including the District Court and this Court, have only that jurisdiction afforded them by Congress. Article III, Section 1 of the Constitution established the judicial power in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. Const, art. Ill, § 1. In 1850, a unanimous Supreme Court held that [t]he Constitution has defined the limits of the judicial power of the United States, but has not prescribed how much of it shall be exercised by the [inferior] Court[s]; consequently, the statute which does prescribe the limits of their jurisdiction, cannot be in conflict with the Constitution, unless it confers powers not enumerated therein. Sheldon v. Sill, 49 U.S. (8 How.) 441, 449, 12 L.Ed. 1147 (1850). The 1850 Court was already able to call upon fifty-one years of precedent for that doctrine. See Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 11, 1 L.Ed. 718 (1799); McIntire v. Wood, 11 U.S. (7 Cranch) 504, 506, 3 L.Ed. 420 (1813); Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 619, 9 L.Ed. 1181 (1838); Cary v. Curtis, 44 U.S. (3 How.) 236, 245, 11 L.Ed. 576 (1845). Otherwise put, every court other than the Supreme Court “created by the general government derives its jurisdiction wholly from the authority of Congress. That body may give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution.” Kline v. Burke Constr. Co., 260 U.S. 226, 234, 43 S.Ct. 79, 82, 67 L.Ed. 226 (1922). See also Christianson v. Colt Indus., — U.S. —, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811 (1988). It is simply too late in the day to assert that Congress lacks the power to deprive the inferior federal courts of subject matter jurisdiction over the present claims. The language of the statute and the Agreement are simply too plain to deny that Congress expressed this very intent in the present case. This power of Congress is particularly plain in the present case, since it involves a matter of sovereign immunity. It is another axiom of our jurisprudence that “the United States may not be sued without its consent.” 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 3654, at 186 (2d ed.1985), and authorities collected at note 2. While plaintiffs are correct that the Federal Tort Claims Act, 28 U.S.C. § 1346(b), initially provided a waiver of immunity for this tort action, Congress withdrew their consent for this type of claim in ratifying the Compact and the Section 177 Agreement, providing that “all claims described in Articles X and XI of the Section 177 Agreement... [are] terminated and barred except insofar as provided in the Section 177 Agreement.” Compact Act, § 103(g)(1), 99 Stat. 1782. As the Claims Court noted in the companion litigation, “[a]n unbroken line of decisions holds that Congress may withdraw its consent to sue the Government at any time.” Juda v. United States, 13 Cl.Ct. at 689. Existing authorities clearly support this holding by the Claims Court. In Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434 (1934), Justice Brandéis, writing for a unanimous Court, stated “consent to sue the United States is a privilege accorded; not the grant of a property right protected by the Fifth Amendment. The consent may be withdrawn, although given after much deliberation and for a pecuniary consideration.” Id. at 581, 54 S.Ct. at 844 (citation omitted). While that statement was technically dicta, since the Court held that Congress had not in that case withdrawn consent, id. at 583, 54 S.Ct. at 845, there is no indication in any later decision that the dicta is other than an accurate statement of the law. Indeed, in Maricopa County v. Valley Nat’l Bank of Phoenix, 318 U.S. 357, 63 S.Ct. 587, 87 L.Ed. 834 (1943), Justice Douglas, again for a unanimous Court, stated, this time as a holding, that [n]o... suit [against the United States] may be maintained without the consent of the United States. Such consent, though previously granted, has now been withdrawn. And the power to withdraw the privilege of suing the United States or its instrumentalities knows no limitations. Id. at 362, 63 S.Ct. at 589 (citing Lynch v. United States, supra). Plaintiffs’ argument against withdrawal of jurisdiction is based on a convoluted interpretation of Section 103(g)(2) of the Compact Act and Article XII of the 177 Agreement. Section 103(g)(2) recites that [i]t is the explicit understanding and intent of Congress that the jurisdictional limitations set forth in Article XII of [the Section 177] Agreement are enacted solely and exclusively to accomplish the objective of Article X of such Agreement and only as a clarification of the effect of Article X, and are not to be construed or implemented separately from Article X. Pub.L. No. 99-239, § 103(g)(2), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629-30 (Supp. IV 1986)). Subsection (g) bears the caption “Espousal Provisions.” Article X of the Section 177 Agreement is likewise headed “Espousal.” In international law the doctrine of “espousal” describes the mechanism whereby one government adopts or “espouses” and settles the claim of its nationals against another government. See generally Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517, 1522-23 (D.C.Cir.1984), cert. denied, 470 U.S. 1051, 105 S.Ct. 1751, 84 L.Ed.2d 815 (1985). Reading together the quoted language from Section 103(g)(2) and the heading lines and language of that statute and the cited article of the Section 177 Agreement, plaintiffs argue that Congress’s withdrawal of jurisdiction over these claims is a conditional one effective only if the espousal by the Marshall Islands of the claims of its nationals is valid. Plaintiffs then argue that we should review the espousal, find it to be invalid, then find the condition for the withdrawal of jurisdiction not to be met, jurisdiction to exist under the Federal Tort Claims Act, and the District Court to have been in error. The short answer to plaintiffs’ argument that this is the meaning of Section 103(g)(2) is: This is not what the statute says. Section 103(g)(1) expresses “the intention of the Congress of the United States that the provisions of [the Compact and the Section 177 Agreement] constitute a full and final settlement of all claims described in Articles X and XI of the... Agreement, and that any such claims be terminated and barred except insofar as provided for in the Section 177 Agreement.” Pub.L. No. 99-239, § 103(g)(1), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629 (Supp. IV 1986)). The Agreement entered by the Executive and approved by Congress expressly states in Article XII “[a]ll claims described in Articles X and XI... shall be terminated. No court of the United States shall have jurisdiction to entertain such claims, and any such claims pending in the courts of the United States shall be dismissed.” Section 177 Agreement, art. XII. Congress could hardly have spoken more explicitly in stripping jurisdiction. Congress has simply deprived the District Court and in turn this Court of jurisdiction to review these claims. As the Claims Court noted in parallel litigation, “[as] enacted,... Section 103(g) makes no reference as to the validity of espousal on the basis of either international or constitutional law.” Juda v. United States, 13 Cl.Ct. at 684. Similarly, as the District Court for the Central District of California noted in other related litigation, if Congress had meant to condition this important international agreement on a review of a fundamental provision therein by the courts, it surely could have included language to that effect. “If Congress wanted to first have the courts test the Compact, it could have said so; instead Congress stripped the court of jurisdiction.” Antolok v. Brookhaven Nat’l Laboratories, Nos. CV 82-2364, CV 82-4978, slip op. at 8 (C.D.Cal. Jan. 6, 1988). Congress has deprived the courts of the United States of jurisdiction over these claims. It did not deprive the courts of jurisdiction over the substance of the claims until after a review of the espousal question; it deprived the courts of jurisdiction. That is the end of the matter. The language of Section 103(g)(2) upon which plaintiffs rely simply makes it plain that the deprivation of jurisdiction applies not to all claims by the Marshall Islanders against the United States, but only those described in Articles X and XI of the Section 177 Agreement. Presumably, any other claim, under the Federal Torts Claims Act or other authority, could proceed. Plaintiffs attempt to bolster their interpretation of Section 103(g)(2) and the incorporated articles of the Agreement and Compact by a single statement of Congressman Seiberling from the legislative history. Seiberling, Chairman of the House Interior Committee’s Subcommittee on Public Lands, inserted into the Congressional Record a statement that the relevant language is intended to make it clear that court-stripping provisions in article XII of the section 177 agreement have no independent force or effect and their sole function is to implement the provisions of article X. Thus, if article X is valid, the espousal stands; and if article X is invalid, claims covered by the espousal provision will remain justiciable in U.S. courts, regardless of article XII. 131 Cong.Rec. H11829 (daily ed. Dec. 11, 1985). Again, the short answer to plaintiffs’ contention is a simple one. As the Supreme Court has repeatedly reminded us, “ ‘[w]hen... the terms of a statute [are] unambiguous, judicial inquiry is complete except “in ‘rare and exceptional circumstances.’ ” ’ ” United States v. James, 478 U.S. 597, 606, 106 S.Ct. 3116, 3122, 92 L.Ed. 2d 483 (1986) (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981) (citations within Rubin omitted)). We cannot find the single statement of even an influential Congressman to overcome the plain language of the statute itself, especially where that statement was not spoken in floor debate but rather inserted into the Congressional Record. Further, if we do go beyond the language of the statute, we find, as the Supreme Court did in James in construing a statute rendering the United States immune from flood damage claims, that the legislative history of the Compact Act taken as a whole reinforces, rather than contradicts, the plain language of the statute. An earlier version of 103(g)(2) drafted by Congressman Seiberling and passed by the House would have provided: (2) If, notwithstanding the enactment into law of this joint resolution, a United States court of competent jurisdiction determines that the provisions of Article X of the [Section 177 Agreement] are invalid as a matter of international law or for any other reason, the provisions of Article XII... shall not, of themselves, prevent any court of the United States otherwise having jurisdiction over claims described in Articles X and XI... from entertaining such claims; and the time between the effective date of the Compact and subsequent final judicial determination of the invalidity of Article X... shall not be included in any calculations regarding applicable statutes of limitation.... H.R.J.Res. 355, 99th Cong., 1st Sess., § 103(g)(2), 131 Cong.Rec. 20,643 (1985). In the Compact Act as adopted, Congress retained the House-passed version of Paragraph 1 of Section 103(g), affirming the “full and final settlement,” but completely rewrote Paragraph 2. See Pub.L. No. 99-239, § 103(g)(2), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629-30 (Supp. IV 1986)). The prior version supportive of plaintiffs’ argument for conditional withdrawal of jurisdiction was deleted in favor of the present language of the statute. Congressman Seiberling’s insertion into the Congressional Record cannot reinstate the provision which Congress refused to enact. The section-by-section analysis of the Compact Act prepared by the Senate managers of the legislation states that Section 103(g) “reiterates the provisions of Section 177 of the Compact which provide that there is full and final settlement of all nuclear effects claims.” 131 Cong. Rec. 36,468 (1985) (emphasis supplied). The Senate analysis further expressed an understanding of subsection (g) that in light of concerns over “protracted litigation” “an explicit endorsement of the resolution was important.” Id. Moreover, at least one other speaker on the House floor contradicted the interpretation of the statute offered in Congressman Sieberling’s insertion. Congressman So-larz expressly stated “the compact settles all nuclear claims resulting from our nuclear weapons testing program in Micronesia.” 131 Cong.Rec. 36,039 (1985). The contradiction between Congressmen Seiberling and Solarz need not dismay us, nor need we seek to resolve it. It may simply remind us once again that an endemic interplay, in Congress, of political and legislative considerations... makes it necessary for judges to exercise extreme caution before concluding that a statement made in floor debate, or at a hearing, or printed in a committee document may be taken as statutory gospel. Otherwise, they run the risk of reading authentic insight into remarks intended to serve quite different purposes. International Bhd. of Elec. Workers, Local Union No. 474 v. NLRB, 814 F.2d 697, 717 (D.C.Cir.1987) (Buckley, J., concurring). While it is only waggishly stated that “where the statutory history is ambiguous we will look to the words of the statute,” our result in this case would be unchanged if that were the proper canon of statutory construction. Congress has stripped the courts of jurisdiction over these claims. We are not surprised, but are bolstered, in our confidence in our interpretation of the statute that the Claims Court in Juda, the Federal Circuit in People of Enewetak and in People of Bikini, and the District Court for the Central District of California in Antolok v. Brookhaven Nat’l Laboratories have all viewed the jurisdictional question consistently with our decision today. See supra note 3. Before closing our analysis of the statutory bar to jurisdiction, we note that plaintiffs have attempted to shore up their interpretation of the statute by arguing that the literal interpretation of the statute adopted by the District Court and by us herein raises a constitutional difficulty avoided by accepting their more convoluted interpretation. This argument, relying on In re Consol. United States Atmospheric Testing Litigation v. United States, 820 F.2d 982 (9th Cir.1987), asserts that the plaintiffs’ claims for relief against the United States are a “ ‘species of property protected by the Fourteenth Amendment’s Due Process Clause.’ ” Id. at 988 (citation omitted). Thus, they argue, while this does not necessarily mean that the claims have the same Fifth Amendment protections accorded real or personal property, nonetheless each plaintiff has the “right to assert a claim for compensation or some other form of judicial relief.” Id. at 989. This argument proves far too much. If we adopted the Ninth Circuit’s language and gave it the interpretation sought by plaintiffs, we would fly in the face of the language quoted above from Lynch and Maricopa County. Indeed, in Lynch, the dicta approving the power of Congress to eliminate claims from the jurisdiction of the courts was pronounced by a Court striking down on Fifth Amendment grounds a statute which, rather than limiting jurisdiction, was, in fact, abrogating obligations of the United States. 292 U.S. at 579-80, 583-85, 54 S.Ct. at 845-46. Had jurisdictional limitation partaken of the same constitutional infirmity, it is hardly likely that the Court would have been at pains to distinguish stripping of jurisdiction from abrogation of claims. In Lynch, the Supreme Court expressly held “[rjights against the United States arising out of a contract with it are protected by the Fifth Amendment.” Id. at 579, 54 S.Ct. at 843 (citations omitted). At the same time it noted in dicta that “consent to sue the United States is a privilege accorded; not the grant of a property right protected by the Fifth Amendment.” Id. at 581, 54 S.Ct. at 844. Plaintiffs’ argument cannot survive in light of this distinction. Likewise, in Maricopa County the Supreme Court reviewed a statute withdrawing, as to preferred shares held by a United States agency, a previously granted statutory right of the several states to collect taxes on the stock of national banks. Plaintiff in that case argued that the retrospective application of the statute violated the Fifth Amendment by destroying the liens of taxes impressed before the effective date of the Act. The Court rejected this argument, citing Lynch for the proposition that “the power to withdraw the privilege of suing the United States or its instrumentalities knows no limitations.” 318 U.S. at 362, 63 S.Ct. at 589. We would further note, that even if the legislation amounted to an actual taking of property (and we do not read plaintiffs’ complaint to so state) then the substitution of another remedy is compensation therefor. This is in fact consistent with the Ninth Circuit’s decision in In re Consol. United States Atmospheric Litigation relied on by plaintiffs. There the Court held that the substitution of Federal Tort Claims Act liability for preexisting common law tort liability of government contractors was no violation of the Fifth Amendment. 820 F.2d at 988-89. While we recognize that plaintiffs’ argument in the present case’ is slightly stronger, since the substituted remedy here is against the fund provided under the settlement agreement rather than in an Article III court, this difference in no way grants us jurisdiction. If there is an uncompensated or inadequately compensated taking, then plaintiffs’ remedy is in the Claims Court under the Tucker Act, 28 U.S.C. § 1491(a)(1), not in District Court under the Federal Torts Claims Act. See Juda v. United States, 13 Cl.Ct. at 686-87. Therefore, the District Court did not err in its dismissal. Since plaintiffs have not alleged a valid constitutional claim over which our Court has jurisdiction, we do not face the difficult question of whether inferior courts may be barred by an act of Congress from review of constitutional challenges to statutes. See Johnson v. Robison, 415 U.S. 361, 366, 94 S.Ct. 1160, 1165, 39 L.Ed.2d 389 (1974) (barring federal courts from deciding constitutionality of statute would “raise serious questions”); but see Webster v. Doe, — U.S. —, 108 S.Ct. 2047, 2057-60, 100 L.Ed.2d 632 (1988) (Scalia, J., dissenting) (Congress has authority to preclude lower court review of constitutional claims). Chief Judge Wald expresses a further constitutional concern as to the validity of an act of Congress restricting access to courts by jurisdictional-stripping statutes based on constitutionally suspect criteria. Wald Op. at 386-388. Certainly a constitutional enactment that limited access to the courts on the basis of some category such as race would immediately raise our constitutional hackles. This is not that statute. Just as Congress has previously left us without jurisdiction over certain intentional torts committed by non-law enforcement federal personnel, inter alia, in 28 U.S.C. § 2680(h), so now Congress deprives us of jurisdiction over claims arising from tor-tious acts by negligence or intent in the conduct of a broad and years-long nuclear testing program. While Chief Judge Wald is concerned by the “narrow 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_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 John E. DEMARINIS, Petitioner, v. Raymond J. DONOVAN, Secretary of Labor, Respondent. No. 83-7489. United States Court of Appeals, Ninth Circuit. Argued Nov. 18, 1983. Submitted March 21, 1984. Decided March 21, 1984. John William Cumming, Eureka, Cal., for petitioner. Dennis A. Paquette, Dept. of Labor, Washington, D.C., for respondent. Before GOODWIN, SCHROEDER and FARRIS, Circuit Judges. GOODWIN, Circuit Judge: John E. Demarinis appeals from the Assistant Secretary of Labor’s decision that he is ineligible for Redwood Employee Protection Program (REPP) benefits under Title II of the Redwood National Park Expansion Act of 1978, Pub.L. No. 95-250, §§ 201-13, 92 Stat. 163, 172-82. Demarinis was employed as a lab technician for over nine years with the Samoa Lumber Mill of the Louisiana-Pacific Corporation. In early November, 1978, the hourly employees went on strike, and Demarinis was temporarily assigned to an eight-hour graveyard shift tending the boiler. During this period he worked overtime to complete his regular duties as a lab technician. On November 8, 1978, he refused to work a twelve-hour graveyard shift tending the boiler, and was discharged from his position as a lab technician. Demarinis testified before the administrative law judge that he did not refuse to work, but rather sought to be reassigned away from the graveyard shift. The California Employment Development Department (EDD) found Demarinis eligible for both State unemployment compensation benefits and REPP benefits. An administrative law judge affirmed on the grounds that the refusal to work constituted a voluntary leaving with “good cause” as defined in Cal.Unemp.Ins.Code § 1256. De-marinis began collecting his benefits. Several months later, the EDD changed its eligibility policy and decided that a voluntary leaving with good cause did not constitute a qualifying layoff as defined in the Redwood Act. Demarinis was issued a notice that because he voluntarily left his employment and therefore was not “laid off”, he was not an eligible employee under the Redwood Act. An ALJ and the Secretary affirmed the EDD’s new determination of ineligibility. This appeal presents a question of statutory interpretation. Title II of the Act, section 213(f), provides that where there is more than one reasonable interpretation of the Act, the Secretary shall adopt the construction which is the most favorable to employees. See Local 3—98, International Woodworkers of America v. Donovan, 713 F.2d 436, 439 (9th Cir.1983). This rule also applies to the interpretation of Redwood Act regulations. David v. Donovan, 698 F.2d 1057 (9th Cir.1983). In this case the Secretary’s own regulations preclude him from reconsidering De-marinis’ eligibility for REPP benefits. 29 C.F.R. § 92.50(c) provides that the EDD may reconsider determinations of eligibility on the same terms and under the same conditions as it may reconsider its own determinations made under California unemployment insurance statutes and regulations. The California Unemployment Insurance Code, § 1332(a), provides that a determination may be reconsidered within twenty days after mailing or service of the notice of determination. The Secretary clearly has not met this time limit. The Secretary claims that California unemployment insurance regulations permit him to reconsider Demarinis’ claim, citing 22 Cal.Adm.Code §§ 1326-1 through 1326-6. Section 1326-1(b)(4), which describes the “usual procedures” followed in handling a claim, see § 1326-l(b), comes closest to supporting the Secretary. This subsection says that the claimant reports periodically to the EDD for an interview concerning his or her efforts to find work, and states that the interview “is designed’ to discover any potential eligibility issue.” This language at most authorizes the Secretary to redetermine a claimant’s eligibility if the factual situation changes, e.g., if he or she finds another job. It does not authorize him to reconsider eligibility when he changes his interpretation of the applicable law, because the interviews are not designed to discover changes in the law. The Secretary is bound by his own regulations. United States v. Nixon, 418 U.S. 683, 696, 94 S.Ct. 3090, 3101, 41 L.Ed.2d 1039 (1974); 2 K. Davis, Administrative Law Treatise § 7:21 (2d ed. 1979). He is not permitted to redetermine whether De-marinis quit or was laid off now that the 20 day period has expired. In a somewhat similar case we held on equitable grounds that the Secretary was not free to redetermine whether an employee had been laid off before or after the effective date of the Act many months after the state agency had found the worker to be eligible. See Egbert v. Donovan, 720 F.2d 1122 (9th Cir.1983). Construing the statutory scheme as a whole, we hold that the Secretary was time barred from redetermining Demarinis’ eligibility and that the petition must be allowed. Judgment for Petitioner. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
sc_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. ARSENAULT v. MASSACHUSETTS. No. 187, Mise. Decided October 14, 1968. F. Lee Bailey for petitioner. Elliot L. Richardson, Attorney General of Massachusetts, Howard M. Miller, Assistant Attorney General, and Richard L. Levine, Deputy Assistant Attorney General, for respondent. Per Curiam. In February 1955 petitioner was arrested in connection with a recent homicide and attempted robbery. The next morning at a probable-cause hearing, but unassisted by counsel, he pleaded guilty to counts of murder and assault with intent to rob. Six days later at his arraignment, and again unaided by counsel, he pleaded not guilty to an indictment charging him with first-degree murder. After being assigned counsel for trial he took the stand in his own defense and again pleaded not guilty to the indictment, asserting instead that he lacked the premeditation necessary for first-degree murder. On cross-examination, the district attorney questioned him about his prior statements at the preliminary hearing and introduced his plea of guilty for the purpose of refreshing his memory. The jury then returned a verdict of guilty and imposed a sentence of death, since commuted to life imprisonment. On direct review by the Massachusetts Supreme Judicial Court, he assigned as error the admission at trial of his prior plea. The court rejected his claim by affirming the conviction. In 1966 petitioner sought post-conviction relief from the Massachusetts Supreme Judicial Court on the ground that our supervening decision in White v. Maryland, 373 U. S. 59, rendered his conviction void. While recognizing a “close similarity” between his case and White, that court nonetheless reaffirmed the judgment below on the ground that White was not retroactive. Petitioner comes here by petition for a writ- of certiorari. The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. In White v. Maryland an accused pleaded guilty when arraigned at a preliminary hearing, and at that time had no counsel to represent him. We held that Hamilton v. Alabama, 368 U. S. 52, was applicable, as only the aid of counsel could have enabled the accused to know all the defenses available to him and to plead intelligently. White v. Maryland is indistinguishable in principle from the present case; and we hold that it is applicable here although it was not decided until after the arraignment and trial in the instant case. The right to counsel at the trial (Gideon v. Wainwright, 372 U. S. 335); on appeal (Douglas v. California, 372 U. S. 353); and at the other “critical” stages of the criminal proceedings (Hamilton v. Alabama, supra) have all been made retroactive, since the “denial of the right must almost invariably deny a fair trial.” See Stovall v. Denno, 388 U. S. 293, 297. Reversed. For the distinction drawn between the right-to-counsel cases and those arising under the Fourth and Fifth Amendments, see also Tehan v. Shott, 382 U. S. 406, 416. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
songer_casetyp1_7-2	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". SOLVAY PROCESS CO. v. NATIONAL LABOR RELATIONS BOARD. No. 9519. Circuit Court of Appeals, Fifth Circuit. Oct. 7, 1941. Edmund M. Preston and T. Justin Moore, both of Richmond, Va., C. V. Porter and Victor A. Sachse, both of Baton Rouge, La., and Monte M. Lemann and J. Blanc Monroe, both of New Orleans, La., for petitioner. Robert B. Watts, Gen. Counsel, National Labor Relations Board, and Lewis M. Gill, Atty., National Labor Relations Board, both of Washington, D. C., for respondent. Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges. FOSTER, Circuit Judge. In the above numbered and entitled cause the National Labor Relations Board, at the request of the National Defense Mediation Board, has petitioned us to clarify and interpret the decree entered herein on March 27, 1941, particularly paragraph 2(b), which is as follows: “2(b) Upon request, bargain collectively with Oil Workers’ International Union, Local No. 424, as the exclusive representative of all the employees at the respondent’s Baton Rouge, Louisiana, plant, exclusive of clerical and supervisory employees, laboratory employees, gatemen, brine-well employees, and mill, water, and wharf employees, in respect to rates of pay, wages, hours of work, and other conditions of employment, provided, however, that the Solvay Process Company or any labor organization at its Baton Rouge, Louisiana, plant other than Solvay Employees Council may petition the Board for a certification of representatives, in which event the Company may abide the decision of the Board and comply with any supplemental order to enforce certification by the Board, in lieu of bargaining collectively with Oil Workers’ International Union, Local No. 424, as herein ordered”; The request, so far as this court is concerned, is without precedent, but in view of the present situation regarding national defense and the peculiar facts of the case, we have decided to entertain the request. However, this action is not to be considered as a precedent for other cases in the future. The pleadings before us show the Solvay Company is engaged in important defense work. A strike of any considerable magnitude would seriously interfere with this work and would adversely affect the welfare of the public and the government of the United States. It also appears from the pleadings that the Chemical Workers’ Union No. 22609, American Federation of Labor, is claiming that the members of that local constitute a majority of the employees of the Solvay Process Co. That union objects to the company entering into an agreement with the Oil Workers’ International Union No. 424 until that question is decided, and had petitioned the National Labor Relations Board to call an election to determine which labor organization should be designated as representing all the employees as the bargaining agent with the Solvay Process Co. That petition was dismissed by the Board. In interpreting the decree we hold that the Solvay Process Co. is obligated to negotiate with the Oil Workers’ International Union No. 424, affiliated with the Committee for Industrial Organization, without waiting for an election, and that the proviso of section 2(b) does not create a condition precedent to the taking effect of that part of said subsection. We consider that patriotism in the emergency should override any factional differences between labor organizations and the Board should act promptly on a petition hereafter filed by a labor union or the Company and fully consider and determine the merits, and call an election within the shortest possible period within which it may be effectively held. 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_appfed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES v. RAKICH. No. 10636. Circuit Court of Appeals, Eighth Circuit. June 8, 1937. Keith L. Seegmiller, of Washington, D. C. (Clinton R. Barry, U. S. Atty., of Fort Smith, Ark., G. W. Hendricks, Sp. Asst, to U. S. Atty., of Little Rock, Ark., John E. Harris and Duke Frederick, Asst. U. S. Attys., both of Fort Smith, Ark., Julius C. Martin, of Washington, D. C., and Wilbur C. Pickett, Sp. Asst, to the Atty. Gen., on the brief), for appellant. V. James Ptak, of Fayetteville, Ark. (John Mayes, of Fayetteville, Ark., on the brief), for appellee. Before STONE, SANBORN, and TLIOMAS, Circuit Judges. SANBORN, Circuit Judge. This action at law was commenced May 24, 1932, to recover on a policy of war risk insurance issued to Tony Rakich, who was in the United States Army from February 22, 1918, to May 17, 1919. The policy lapsed, for nonpayment of premiums, July 1, 1919. In his complaint the insured alleged that before its lapse the policy had matured by reason of his total and permanent disability due to pulmonary tuberculosis. This the government denied. The issues were tried to a jury. At the close of the evidence, the government moved for a directed verdict. Its motion was denied. The jury returned a verdict for the insured, upon which judgment was entered, and this appeal followed. The government insists that the trial court should have directed a verdict in its favor on the ground that there was no substantial evidence to sustain a verdict against it. The burden was upon the insured to prove: (1) That he was totally disabled by July 1, 1919; and (2) that his disability was then permanent, that is, based upon conditions then existing which made it reasonably certain that the disability would continue throughout his life. This burden was enhanced by reason of the fact that the insured’s long and unexplained delay in bringing his action was “strong evidence that he was not totally and permanently disabled before the policy lapsed.” Lumbra v. United States, 290 U.S. 551, 560, 561, 54 S.Ct. 272, 276, 78 L.Ed. 492. Since there is in the record before us no competent medical evidence to warrant a finding that the disease with which the insured is now afflicted had by July 1, 1919, reached the incurable stage, it is obvious that there was no substantial evidence to sustain the finding of the jury that the disability was then permanent. It is therefore unnecessary to discuss other questions. Whether the insured had tuberculosis on July 1, 1919, and whether, if he had it, it had then progressed to the incurable stage, were strictly medical questions. United States v. Clapp (C.C.A.2) 63 F.(2d) 793, 795; Aetna Life Ins. Co. of Hartford v. Kelley (C.C.A.8) 70 F.(2d) 589, 593, 93 A.L.R. 471; Mutual life Ins. Co. of New York v. Still (C.C.A.8) 78 F.(2d) 748, 750; London Guarantee & Accident Co. v. Woelfle (C.C.A.8) 83 F.(2d) 325, 337. The only competent evidence indicating that the insured had pulmonary tuberculosis at all prior to July 1, 1919, is a government report of a physical examination of the insured on September 30, 1919, which contains a diagnosis of chronic pulmonary tuberculosis, and a prognosis of “favorable with treatment.” If the word “chronic” be taken to mean that the disease was of more than three months’ duration, it would justify the inference that the disease existed on July 1, 1919; and we shall assume, without deciding, that that was the meaning of the word. There is no evidence, however, that the disease had by July 1, 1919, progressed beyond its early or incipient stages. Of the three doctors who testified for the plaintiff, none expressed or attempted to express any opinion either as to the existence of the disease prior to July 1, 1919, or as to the pathological conditions upon which the insured’s disability was then based. The nearest approach to an opinion that the insured had tuberculosis on July 1, 1919, which had then reached the incurable stage, was the following testimony given by Dr. McNaughton: “Basing my conclusion upon the examinations I made in 1931 and September of this year [1935], I would say that his condition was permanent July 24, 1919." It seems probable that the doctor meant to say July 1st, instead of July 24th, and we shall so assume. It appears that Dr. McNaughton had examined the insured in August, 1931, and diagnosed the case as active advanced tuberculosis with cavitation; that he had no personal knowledge of the insured’s case prior to 1931; that in his judgment the insured’s tuberculosis “was not curable although it may be arrested”; and that he was of the opinion that “with proper climate, selected diet, rest, proper treatment in every way * * * the plaintiff’s case might have become arrested but not cured.” The opinion of Dr. McNaughton that the insured’s “condition was permanent” by July 1, 1919 — which was without adequate foundation — was not substantial evidence that the insured’s disability .on July 1, 1919, was based upon pathological conditions then existing which rendered it reasonably certain that he would never recover. United States v. Hill (C.C.A.8) 62 F.(2d) 1022, 1025; United States v. Spaulding, 293 U.S. 498, 506, 55 S.Ct. 273, 276, 79 L.Ed. 617; Svenson v. Mutual Life Ins. Co. of New York (C.C.A.8) 87 F.(2d) 441, 445. The insured’s case was not helped by the evidence introduced by the government. This evidence consisted almost entirely'of reports of physical examinations of the insured made by government physicians between September 30, 1919, and March 12, 1935. These reports indicate nothing more than the. existence of the disease between those dates, and that it was sometimes active and sometimes arrested, and that prognoses were sometimes favorable and sometimes unfavorable. The last four.reports — those of November 27, 1931, December 22, 1932, August 23, 1933, and March 12, 1935 — indicate that the insured had at those times an arrested case of tuberculosis. The evidence of the government also shows that the insured left a government hospital, where he was being treated, on June 10, 1920, contrary to the advice of the ward surgeon; and that he voluntarily left a government hospital in 1921 after he had applied for and had been refused a furlough. According to his own testimony, he has had no hospital treatment since 1923. The following language from the case of Eggen v. United States (C.C.A.8) 58 F. (2d) 616, 620, is pertinent: “No one could determine from the evidence whether there were, during the life of the policy, conditions not disclosed which then placed the insured in the class of incipient tuberculars who cannot be cured, or whether, subsequent to lapse, such conditions developed during the natural progress of the disease, or because of the failure of the insured to take treatment, or as the combined result of both the disease and such failure.” The government, under the evidence in this case, was entitled to a directed verdict. Eggen v. United States (C.C.A.8) 58 F.(2d) 616; Proechel v. United States (C.C.A.8) 59 F.(2d) 648; United States v. Peters (C.C.A.8) 62 F.(2d) 977, 980; Grate v. United States (C.C.A.8) 72 F. (2d) 1, certiorari denied 294 U.S. 706, 55 S.Ct. 352, 79 L.Ed. 1241; United States v. Cameron (C.C.A.8) 87 F.(2d) 61; United States v. Clapp (C.C.A.2) 63 F.(2d) 793; Nicolay v. United States (C.C.A.10) 51 F.(2d) 170; Hirt v. United States (C.C.A.10) 56 F.(2d) 80; Roberts v. United States (C.C.A.10) 57 F.(2d) 514; United States v. Rentfrow (C.C.A.10) 60 F.(2d) 488; United States v. McShane (C.C.A.10) 70 F.(2d) 991, certiorari denied 293 U.S. 610, 55 S.Ct. 141, 79 L.Ed. 700; Falbo v. United States (C.C.A.9) 64 F.(2d) 948, affirmed per curiam 291 U.S. 646, 54 S.Ct. 456, 78 L.Ed. 1042; United States v. Hammond (C.C.A.5) 87 F.(2d) 226; Robinson v. United States (C.C.A.2) 87 F.(2d) 343. The judgment is reversed, and the case remanded for further proceedings not inconsistent with this opinion. Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_casetyp1_7-3-1	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - taxes, patents, copyright". TOMLINSON et al. v. COMMISSIONER OF INTERNAL REVENUE. No. 13057. United States Court of Appeals Fifth Circuit. June 23, 1950. John L. Westmoreland, Atlanta, Ga., Stokes, Bramwell & Dassori, Washington, D. C. (Frederic D. Dassori, and John W. Stokes, Washington, D. C., of counsel), for petitioners. Sumner M. Redstone, Ellis N. Slack, Special Assistants to Attorney General, Theron Lamar Caudle, Assistant Attorney General, Charles Oliphant, Chief Counsel, John M. Morawski, Special Attorney, Bureau of Internal Revenue, Washington, D. C., for respondent. Before HUTCHESON, Chief Judge, and McCORD and RUSSELL, Circuit Judges. PER CURIAM. When this case was submitted to, and decided by the Tax Court, the case of Commissioner of Int. Rev. v. Culbertson, 337 U.S. 733, 69 S.Ct. 1210, had not been decided, and the questions arising in this case were decided and the facts determined by the Tax Court without the benefit of that decision. We are of the opinion that before considering the petition for review of the tax Court’s decision in this case, we should have the benefit of its re-examination of the questions and its re-determination of the facts in the light of the opinion in the Culbertson case. We, therefore, order a remand of this cause to the Tax Court for further proceedings -in conformity with the opinion of the Supreme Court in the Culbertson case with the right in either of the parties to offer such further or additional evidence and take such further or additional positions as may be appropriate in the light of that opinion. Question: What is the specific issue in the case within the general category of "economic activity and regulation - taxes, patents, copyright"? A. state or local tax B. federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates) C. federal tax - business income tax (includes corporate and parnership) D. federal tax - excess profits E. federal estate and gift tax F. federal tax - other G. patents H. copyrights I. trademarks J. trade secrets, personal intellectual property Answer:
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. INTEL CORPORATION INVESTMENT POLICY COMMITTEE, et al., Petitioners v. Christopher M. SULYMA No. 18-1116 Supreme Court of the United States. Argued December 4, 2019 Decided February 26, 2020 Matthew W.H. Wessler, Jonathan E. Taylor, Gupta Wessler PLLC, Gregory Y. Porter, Bailey & Glasser LLP, R. Joseph Barton, Block & Leviton LLP, Washington, DC, Joseph A. Creitz, Creitz & Serebin LLP, San Francisco, CA, for Respondent. John J. Buckley, Jr., Daniel F. Katz, Vidya Atre Mirmira, David Kurtzer-Ellenbogen, Juli Ann Lund, Tanya Abrams, Jyoti Jindal, Williams & Connolly LLP, Donald B. Verrilli, Jr., Ginger D. Anders, Munger, Tolles & Olson LLP, Washington, DC, Jordan D. Segall, Munger, Tolles & Olson LLP, Angeles, CA, for Petitioners. Justice ALITO delivered the opinion of the Court. The Employee Retirement Income Security Act of 1974 (ERISA) requires plaintiffs with "actual knowledge" of an alleged fiduciary breach to file suit within three years of gaining that knowledge rather than within the 6-year period that would otherwise apply. § 413(a)(2)(A), 88 Stat. 889, as amended, 29 U.S.C. § 1113. The question here is whether a plaintiff necessarily has "actual knowledge" of the information contained in disclosures that he receives but does not read or cannot recall reading. We hold that he does not and therefore affirm. I A Retirement plans governed by ERISA must have at least one named fiduciary, § 1102(a)(1), who must manage the plan prudently and solely in the interests of participants and their beneficiaries, § 1104(a). Fiduciaries who breach these duties are personally liable to the plan for any resulting losses. § 1109(a). ERISA authorizes participants and their beneficiaries, as well as co-fiduciaries and the Secretary of Labor, to sue for that relief. § 1132(a)(2). Such suits must be filed within one of three time periods, each with different triggering events. The first begins when the breach occurs. Specifically, under § 1113(1), suit must be filed within six years of "the date of the last action which constituted a part of the breach or violation" or, in cases of breach by omission, "the latest date on which the fiduciary could have cured the breach or violation." We have referred to § 1113(1) as a statute of repose, which "effect[s] a legislative judgment that a defendant should be free from liability after the legislatively determined period of time." California Public Employees' Retirement System v. ANZ Securities, Inc. , 582 U.S. ----, ----, 137 S.Ct. 2042, 2049, 198 L.Ed.2d 584 (2017) (internal quotation marks omitted). The second period, which accelerates the filing deadline, begins when the plaintiff gains "actual knowledge" of the breach. Under § 1113(2), suit must be filed within three years of "the earliest date on which the plaintiff had actual knowledge of the breach or violation." Section 1113(2) is a statute of limitations, which "encourage[s] plaintiffs to pursue diligent prosecution of known claims." Id. , at ----, 137 S.Ct., at 2049 (internal quotation marks omitted). The third period, which applies "in the case of fraud or concealment," begins when the plaintiff discovers the alleged breach. § 1113. In such cases, suit must be filed within six years of "the date of discovery." Ibid. B Respondent Sulyma worked at Intel Corporation from 2010 to 2012. He participated in two Intel retirement plans, the Intel Retirement Contribution Plan and the Intel 401(k) Savings Plan. Payments into these plans were in turn invested in two funds managed by the Intel Investment Policy Committee. These funds mostly comprised stocks and bonds. After the stock market decline in 2008, however, the committee increased the funds' shares of alternative assets, such as hedge funds, private equity, and commodities. These assets carried relatively high fees. And as the stock market rebounded, Sulyma's funds lagged behind others such as index funds. Sulyma filed this suit on behalf of a putative class in October 2015, alleging primarily that the committee and other plan administrators (petitioners here) had breached their fiduciary duties by overinvesting in alternative assets. Petitioners countered that the suit was untimely under § 1113(2). Although Sulyma filed it within six years of the alleged breaches, he filed it more than three years after petitioners had disclosed their investment decisions to him. ERISA and its implementing regulations mandate various disclosures to plan participants. See generally 29 U.S.C. §§ 1021 - 1031 ; see also Gobeille v. Liberty Mut. Ins. Co. , 577 U.S. ----, ---- - ----, 136 S.Ct. 936, 944, 194 L.Ed.2d 20 (2016). Sulyma received numerous disclosures while working at Intel, some explaining the extent to which his retirement plans were invested in alternative assets. In November 2011, for example, he received an e-mail informing him that a Qualified Default Investment Alternative (QDIA) notice was available on a website called NetBenefits, where many of his disclosures were hosted. See App. 149-151; see also 29 CFR §§ 2550.404c-5(b) - (d) (2019) (QDIA notices); § 2520.104b-1(c) (regulating electronic disclosure). This notice broke down the percentages at which his 401(k) fund was invested in stocks, bonds, hedge funds, and commodities. See App. 236. In 2012, he received a summary plan description explaining that the funds were invested in stocks and alternative assets, id ., at 227, and referring him to other documents-called fund fact sheets-with the percentages in graphical form. See 29 U.S.C. §§ 1022, 1024(b) (summary plan descriptions); see also App. 307 (June 2012 fact sheet for his 401(k) plan fund); id ., at 338 (June 2012 fact sheet for his retirement contribution plan fund); id ., at 277-340 (other fact sheets provided during his tenure at Intel). Also in 2012, he received e-mails directing him to annual disclosures that petitioners provided for both his plans, which showed the underlying funds' return rates and again directed him to the NetBenefits site for further information. See 29 CFR § 2550.404a-5 ; see also App. 242-243 (retirement contribution plan annual disclosure); id ., at 250-251 (401(k) plan annual disclosure). Petitioners submitted records showing that Sulyma visited the NetBenefits site repeatedly during his employment. Id ., at 258-276. But he testified in his deposition that he did not "remember reviewing" the above disclosures during his tenure. Id ., at 175; see also id ., at 183, 193, 196-197. He also stated in a declaration that he was "unaware" while working at Intel "that the monies that [he] had invested through the Intel retirement plans had been invested in hedge funds or private equity." Id ., at 212. He recalled reviewing only account statements sent to him by mail, which directed him to the NetBenefits site and noted that his plans were invested in "short-term/other" assets but did not specify which. See, e.g. , id ., at 375. The District Court granted summary judgment to petitioners under § 1113(2), reasoning that "[i]t would be improper to allow Sulyma's claims to survive merely because he did not look further into the disclosures made to him." 2017 WL 1217185, 9 (N.D. Cal., Mar. 31, 2017). The Ninth Circuit reversed. As relevant here, the court construed "actual knowledge" to mean "what it says: knowledge that is actual, not merely a possible inference from ambiguous circumstances." 909 F.3d 1069, 1076 (2018) (internal quotation marks omitted). Although Sulyma "had sufficient information available to him to know about the allegedly imprudent investments" more than three years before filing suit, the court held that his testimony created a dispute as to when he actually gained that knowledge. Id. , at 1077. Several Circuits have likewise construed § 1113(2) to require "knowledge that is actual," id. , at 1076, but one has construed it to require only proof of sufficient disclosure. We granted certiorari, 587 U.S. ----, 139 S.Ct. 2692, 204 L.Ed.2d 1089 (2019), to resolve whether the phrase "actual knowledge" does in fact mean "what it says," 909 F.3d at 1076, and hold that it does. II A "We must enforce plain and unambiguous statutory language" in ERISA, as in any statute, "according to its terms." Hardt v. Reliance Standard Life Ins. Co. , 560 U.S. 242, 251, 130 S.Ct. 2149, 176 L.Ed.2d 998 (2010). Although ERISA does not define the phrase "actual knowledge," its meaning is plain. Dictionaries are hardly necessary to confirm the point, but they do. When Congress passed ERISA, the word "actual" meant what it means today: "existing in fact or reality." Webster's Seventh New Collegiate Dictionary 10 (1967); accord, Merriam-Webster's Collegiate Dictionary 13 (11th ed. 2005) (same); see also American Heritage Dictionary 14 (1973) ("In existence; real; factual"); id ., at 18 (5th ed. 2011) ("Existing in reality and not potential, possible, simulated, or false"). So did the word "knowledge," which meant and still means "the fact or condition of being aware of something." Webster's Seventh New Collegiate Dictionary 469 (1967); accord, Merriam-Webster's Collegiate Dictionary 691 (2005) (same); see also American Heritage Dictionary 725 (1973) ("Familiarity, awareness, or understanding gained through experience or study"); id ., at 973 (2011) (same). Thus, to have "actual knowledge" of a piece of information, one must in fact be aware of it. Legal dictionaries give "actual knowledge" the same meaning: "[r]eal knowledge as distinguished from presumed knowledge or knowledge imputed to one." Ballentine's Law Dictionary 24 (3d ed. 1969); accord, Black's Law Dictionary 1043 (11th ed. 2019) (defining "actual knowledge" as "[d]irect and clear knowledge, as distinguished from constructive knowledge"). The qualifier "actual" creates that distinction. In everyday speech, "actual knowledge" might seem redundant; one who claims "knowledge" of a topic likely means to suggest that he actually knows a thing or two about it. But the law will sometimes impute knowledge-often called "constructive" knowledge-to a person who fails to learn something that a reasonably diligent person would have learned. See id ., at 1043. Similarly, we held in Merck & Co. v. Reynolds , 559 U.S. 633, 130 S.Ct. 1784, 176 L.Ed.2d 582 (2010), that the word "discovery," when used in a statute of limitations without qualification, "encompasses not only those facts the plaintiff actually knew, but also those facts a reasonably diligent plaintiff would have known." Id ., at 648, 130 S.Ct. 1784. The addition of "actual" in § 1113(2) signals that the plaintiff 's knowledge must be more than "potential, possible, virtual, conceivable, theoretical, hypothetical, or nominal." Black's Law Dictionary 53 (4th ed. 1951). Indeed, in Merck , we cited § 1113(2) as evidence of the "linguistic distinction" between " 'actual knowledge ' " and the "hypothetical" knowledge that a reasonably diligent plaintiff would have. 559 U.S. at 646-647, 130 S.Ct. 1784 (quoting § 1113(2) ; emphasis in original). Congress has drawn the same distinction elsewhere in ERISA. Multiple provisions contain alternate 6-year and 3-year limitations periods, with the 6-year period beginning at "the date on which the cause of action arose" and the 3-year period starting at "the earliest date on which the plaintiff acquired or should have acquired actual knowledge of the existence of such cause of action." §§ 1303(e)(6), (f)(5) (emphasis added); accord, §§ 1370(f)(1)-(2), 1451(f)(1)-(2). ERISA also requires plaintiffs challenging the suspension of benefits under § 1085 to do so within "one year after the earliest date on which the plaintiff acquired or should have acquired actual knowledge of the existence of such cause of action." § 1085(e)(9)(I)(iv). Thus, Congress has repeatedly drawn a "linguistic distinction" between what an ERISA plaintiff actually knows and what he should actually know. Merck , 559 U.S. at 647, 130 S.Ct. 1784. And when Congress has included both forms of knowledge in a provision limiting ERISA actions, it has done so explicitly. We cannot assume that it meant to do so by implication in § 1113(2). Instead we "generally presum[e] that Congress acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another." BFP v. Resolution Trust Corporation , 511 U.S. 531, 537, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994) (internal quotation marks omitted). Petitioners dispute the characterization of anything less than actual knowledge as constructive knowledge, arguing that the latter term usually refers to information that a plaintiff must seek out rather than information that is sent to him. But if a plaintiff is not aware of a fact, he does not have "actual knowledge" of that fact however close at hand the fact might be. § 1113(2). And Congress has never added to § 1113(2) the language it has used in other ERISA limitations provisions to encompass both what a plaintiff actually knows and what he reasonably could know. As presently written, therefore, § 1113(2) requires more than evidence of disclosure alone. That all relevant information was disclosed to the plaintiff is no doubt relevant in judging whether he gained knowledge of that information. See Part III, infra . To meet § 1113(2)'s "actual knowledge" requirement, however, the plaintiff must in fact have become aware of that information. B Petitioners offer arguments for a broader reading of § 1113(2) based on text, context, purpose, and statutory history. All founder on Congress's choice of the word "actual." As for text, petitioners do not dispute the normal definitions of "actual," "knowledge," or "actual knowledge." They focus instead on the least conspicuous part of the phrase "had actual knowledge": the word "had." § 1113(2). Once a plaintiff receives a disclosure, they argue, he "ha[s]" the knowledge that § 1113(2) requires because he effectively holds it in his hand. Ibid. In other words, he has the requisite knowledge because he could acquire it with reasonable effort. That turns § 1113(2) into what it is plainly not: a constructive-knowledge requirement. Petitioners' contextual argument fails for the same reason. As they point out, ERISA's disclosure regime is meant to "ensur[e] that 'the individual participant knows exactly where he stands with respect to the plan.' " Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 118, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (quoting H.R. Rep. No. 93-533, p. 11 (1973)). This is the reason for ERISA's requirements that disclosures be written for a lay audience. See, e.g. , 29 U.S.C. § 1022(a). Once plan administrators satisfy their obligations to impart knowledge, petitioners say, § 1113(2)'s knowledge requirement is satisfied too. But that is simply not what § 1113(2) says. Unlike other ERISA limitations periods-which also form § 1113(2)'s context- § 1113(2) begins only when a plaintiff actually is aware of the relevant facts, not when he should be. And a given plaintiff will not necessarily be aware of all facts disclosed to him; even a reasonably diligent plaintiff would not know those facts immediately upon receiving the disclosure. Although "the words of a statute must be read in their context," Davis v. Michigan Dept. of Treasury , 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989), petitioners' argument again gives the word "actual" little meaning at all. Petitioners also argue that § 1113(2)'s plain meaning undermines its purpose of protecting plan administrators from suits over bygone investment decisions. If a plan participant can simply deny knowledge, they say, administrators will rarely get the benefit of § 1113(2). But even if this is true, as it may well be, we cannot say that heeding the clear meaning of the word "actual" renders the statute so " '[in]coherent' " that it must be disregarded. Kingdomware Technologies, Inc. v. United States , 579 U.S. ----, ----, 136 S.Ct. 1969, 1976, 195 L.Ed.2d 334 (2016). For one thing, plan participants are not the only potential plaintiffs subject to § 1113. The Secretary of Labor, for example, may also sue imprudent fiduciaries for the benefit of plan participants. See § 1132(a)(2). And the United States represents that the Secretary will have a hard time doing so within § 1113(2)'s timeframe if deemed to have actual knowledge of the facts contained in the many reports that the Department receives from ERISA plans each year. See Brief for United States as Amicus Curiae 27-28. Moreover, the statute's repose period will still protect defendants from suits filed more than six years after the alleged breach. See § 1113(1). Petitioners may well be correct that heeding the plain meaning of § 1113(2) substantially diminishes the protection that it provides for ERISA fiduciaries, but by the same token, petitioners' interpretation would greatly reduce § 1113(1)'s value for beneficiaries, given the disclosure regime that petitioners themselves emphasize. Choosing between these alternatives is a task for Congress, and we must assume that the language of § 1113(2) reflects Congress's choice. If policy considerations suggest that the current scheme should be altered, Congress must be the one to do it. See, e.g. , Azar v. Allina Health Services , 587 U.S. ----, ----, 139 S.Ct. 1804, 1813, 204 L.Ed.2d 139 (2019). Finally, petitioners argue that the plain meaning of "actual knowledge" renders an earlier version of § 1113(2) incoherent. As originally enacted, the § 1113(2) limitations period began either when the plaintiff gained actual knowledge of the alleged breach or when "a report from which [the plaintiff] could reasonably be expected to have obtained knowledge ... was filed with" the Secretary of Labor. 29 U.S.C. § 1113(2) (1976 ed.). That latter, constructive-knowledge clause was later repealed. See Omnibus Budget Reconciliation Act of 1987, § 9342(b), 101 Stat. 1330-371. According to petitioners, if "actual knowledge" means what it says, then the original version of § 1113(2) charged plan participants with learning what was sent to the Secretary but not what was sent to them. The version at issue here, however, is the current one-from which Congress removed any mention of constructive knowledge. "When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect." Intel Corp. v. Advanced Micro Devices, Inc. , 542 U.S. 241, 258-259, 124 S.Ct. 2466, 159 L.Ed.2d 355 (2004) (internal quotation marks omitted). Section 1113(2)'s history thus more readily suggests that the current version does in fact require actual knowledge. III Nothing in this opinion forecloses any of the "usual ways" to prove actual knowledge at any stage in the litigation. Farmer v. Brennan , 511 U.S. 825, 842, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Plaintiffs who recall reading particular disclosures will of course be bound by oath to say so in their depositions. On top of that, actual knowledge can be proved through "inference from circumstantial evidence." Ibid. ; see also Staples v. United States , 511 U.S. 600, 615-616, n. 11, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) ("[K]nowledge can be inferred from circumstantial evidence"). Evidence of disclosure would no doubt be relevant, as would electronic records showing that a plaintiff viewed the relevant disclosures and evidence suggesting that the plaintiff took action in response to the information contained in them. And though, "[a]t the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party," that is true "only if there is a 'genuine' dispute as to those facts." Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoting Fed. Rule Civ. Proc. 56(c) ). If a plaintiff 's denial of knowledge is "blatantly contradicted by the record," "a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." 550 U.S. at 380, 127 S.Ct. 1769. Today's opinion also does not preclude defendants from contending that evidence of "willful blindness" supports a finding of "actual knowledge." Cf. Global-Tech Appliances, Inc. v. SEB S. A. , 563 U.S. 754, 769, 131 S.Ct. 2060, 179 L.Ed.2d 1167 (2011). In the case before us, however, petitioners do not argue that "actual knowledge" is established in any of these ways, only that they need not offer any such proof. And that is incorrect. * * For these reasons, we affirm. It is so ordered. Specifically the Intel Global Diversified Fund, in which his retirement contribution plan was automatically invested, and the Intel Target Date 2045 Fund, which he chose for his 401(k) plan. The court also addressed the separate question of what exactly a plaintiff must actually know about a defendant's conduct and the relevant law in order for § 1113(2) to apply. That question is not before us and we do not address it. Compare Caputo v. Pfizer, Inc. , 267 F.3d 181, 194 (CA2 2001) ; Reich v. Lancaster , 55 F.3d 1034, 1056-1057 (CA5 1995) ; Gluck v. Unisys Corp. , 960 F.2d 1168, 1176 (CA3 1992) ; Radiology Center, S. C., v. Stifel, Nicolaus & Co. , 919 F.2d 1216, 1222 (CA7 1990) ; Brock v. Nellis , 809 F.2d 753, 754-755 (CA11 1987), with Brown v. Owens Corning Investment Review Comm. , 622 F.3d 564, 571 (CA6 2010) ("Actual knowledge does not require proof that the individual Plaintiffs actually saw or read the documents that disclosed the allegedly harmful investments" (internal quotation marks omitted)). Petitioners cite this dictionary's somewhat puzzling second definition of "actual knowledge," which it dubs "implied actual knowledge": "[k]nowledge of information that would lead a reasonable person to inquire further." Black's Law Dictionary 1043 (11th ed. 2019). Not even this entry, however, appears to equate "implied actual knowledge" with "actual knowledge" as normally understood. It instead proceeds to reference the common-law "discovery rule," ibid. , under which a limitations period begins when "the plaintiff discovers (or reasonably should have discovered) the injury giving rise to the claim," id. , at 585 (emphasis added); see also Merck & Co. v. Reynolds , 559 U.S. 633, 646, 130 S.Ct. 1784, 176 L.Ed.2d 582 (2010). As we noted in Merck , that rule is broader than "actual knowledge ." Id., at 647, 130 S.Ct. 1784. 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_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. In re KISSINGER. KISSINGER v. KELI. No. 4901. Circuit Court of Appeals, Seventh Circuit. July 18, 1933. Bernard A. Klatt, of Milwaukee, Wis., for appellant. Edward H. Clemens, of Sheboygan, Wis., for appellee. Before ALSCHULER, EVANS, and SPARKS, Circuit Judges. PER CURIAM. This appeal presents a single issue, namely, whether the District Court erred in affirming the order of the referee in bankruptcy directing the trustee to take possession of certain premises located in Sheboygan, Wis., scheduled by the bankrupt as belonging' to himself, and upon which he claimed exemption by virtue of the Wisconsin Statutes, section 272.20, relating to homestead. The record indicates that there was substantial evidence introduced tending to show that appellant had never adopted the premises in question as his homestead, having resided in Madison, Wis., where he was in business for over a year prior to the purchase of the property, and having lived in the home of his parents in a different town after he bought it. Such evidence would very well warrant the order of the referee denying the claim of homestead, and this court has no power to question the interpretation of the evidence upon which the finding was based. We are warranted in inferring that appellant has reached the same conclusion from the fact that he failed to appear at the argument of the cause. Order 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_casetyp1_7-3-5	E	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits". THOMPSON MEDICAL COMPANY, INC., Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. No. 85-1047. United States Court of Appeals, District of Columbia Circuit. Argued Feb. 6, 1986. Decided May 27, 1986. Patricia Hatry, New York City, with whom Jeffrey C. Katz, New York City, was on the brief, for petitioner. Melvin H. Orlans, Atty., F.T.C., with whom Ernest J. Isenstadt, Asst. Gen. Counsel, F.T.C., Washington, D.C., was on the brief, for respondent. Before ROBINSON, Chief Judge, and MIKVA and GINSBURG, Circuit Judges. Opinion for the Court filed by Circuit Judge MIKVA. MIKVA, Circuit Judge: This case concerns a complaint brought by the Federal Trade Commission (“FTC” or “Commission”) against petitioner Thompson Medical Company under §§ 5 and 12 of the FTC Act. 15 U.S.C. §§ 45 & 52. The complaint alleged and the Commission found that Thompson’s advertising for Aspercreme, a topical analgesic, was false and misleading, and constituted an unfair and deceptive practice. The Commission ordered Thompson to refrain from making unsubstantiated claims that Asper-creme is effective and to disclose in the product’s labeling and advertising that it does not contain aspirin. Thompson challenges the FTC’s order as arbitrary and capricious, contrary to public policy, unsupported by substantial evidence, and discordant with applicable Commission precedent. We find that the Commission’s order and decision are supported by the law and the facts, and therefore affirm the FTC. Background Petitioner sells an over-the-counter (“OTC”) analgesic (pain reliever) known as Aspercreme. Aspercreme is supposed to help arthritis victims and others who seek relief from minor aches and pains. As the name suggests, Aspercreme is a cream meant to be rubbed on the area where an analgesic effect is desired. Despite its name, however, Aspercreme contains no aspirin (acetyl salicylic acid). Rather, Asper-creme’s active ingredient is trolamine sali-cylate (sometimes referred to as TEA/S or TEAS), a chemical relation of aspirin. Even though Aspercreme contains no aspirin, Thompson’s advertising strongly suggested that Aspercreme and aspirin were somehow related. One television advertisement used by Thompson, for example, contained the following monologue: When you suffer from arthritis, imagine putting the strong relief of aspirin right where you hurt. Aspercreme is an odorless rub which concentrates the relief of aspirin. When you take regular aspirin, it goes throughout your body like this. But, in seconds, Aspercreme starts concentrating all the temporary relief of two aspirin directly at the point of minor arthritis pain_ [Voice over:] Asper-creme. The strong relief of aspirin right where you hurt. Complaint counsel’s exhibit B, In re Thompson Medical Co., Inc., 104 F.T.C. 648, 653 (1984). In this and similar ads, the announcer is shown holding aspirin tablets at the beginning of her monologue; as she speaks the aspirin is replaced by a tube of Aspercreme. In February of 1981, the FTC issued an administrative complaint against Thompson. Thompson was charged with having violated sections 5 and 12 of the FTC Act. 15 U.S.C. §§ 45 and 52. These actions prohibit “unfair or deceptive acts or practices in commerce” and “disseminatpng] ... any false advertisement ... for the purpose of inducing ... the purchase ... of ... drugs.” Specifically, Thompson was charged with having made unsupported claims that Aspercreme was effective for the relief of arthritic pain, having falsely represented that this efficacy had been scientifically established, and having falsely represented that Aspercreme contained aspirin. See Initial Decision by Hyun, Administrative Law Judge, In re Thompson Medical Co., Inc., 104 F.T.C. 648, 660, 660-61 (June 24, 1983) (“Thompson Initial Decision”). The FTC complaint was heard before an administrative law judge (AU). After compiling a record in excess of 6500 pages, he issued a 127-page opinion finding Thompson liable. See Thompson Initial Decision. The matter was appealed to the Federal Trade Commission. The FTC engaged in extensive review of the AU’s decision and entered a 56-page opinion of its own, affirming the ALJ’s decision and entering a final order against Thompson. See In re Thompson Medical Co., Inc., 104 F.T.C. 648, 786 (Opinion) 842 (Order) (1984) (“Thompson Opinion” and “Order”). The FTC affirmed the AU’s finding “that Thompson lacked reliable and credible information constituting a reasonable basis for the efficacy claims it made for Aspercreme.” Thompson Opinion at 787-88, 821-28. The Commission found that Thompson had represented that Asper-creme was more effective than aspirin, and that Thompson had represented that Asper-creme’s effectiveness had been scientifically substantiated. The Commission also found that Thompson had falsely represented that Aspercreme contained aspirin. It found that the alleged misrepresentations were material, and that they were likely to mislead consumers. The Commission also determined that Thompson’s false and deceptive advertising had been deliberate. Id. at 791-839. The FTC issued a final order against Thompson that prohibited the company from using the name Aspercreme unless its advertising and packaging made clear that Aspercreme does not contain aspirin. See Order, 104 F.T.C. 842, part I.A. The Commission also prohibited Thompson from representing that Aspercreme “involves a new scientific principle” when it has “been available for purchase in the United States as an [OTC] drug for more than one year,” id,., part I.B., and from misrepresenting either the ingredients of Aspercreme or the results of any tests or studies of Asper-creme. Id., parts I.C. & D. In the part of its order that has engendered the most controversy, the FTC ordered Thompson to refrain from A. Representing that [Aspercreme] is effective for the relief of minor pain and other symptoms of any musculoskeletal disorder.... B. Representing that [Aspercreme] is as fast or faster than, or is as effective as, or more effective than any other drug or device in the relief of minor pain and other symptoms of any musculoskeletal disorder ...; unless at the time of ... such representation, [Thompson] possesses and relies upon a reasonable basis for such representation consisting of competent and reliable scientific or medical evidence. Order, part II. The FTC’s Order went on to provide that “competent and reliable scientific evidence shall include at least two adequate and well-controlled, double-blinded clinical studies....” Id. Discussion Thompson mounts a tripartite attack on the Commission’s decision and order. Thompson first argues that the Commission was not acting in the public interest when it undertook to review Thompson’s advertising. Thompson supports this contention by asserting that the Food and Drug Administration’s ongoing review of OTC drugs preempts the FTC’s jurisdiction here. Thompson next argues that the “reasonable basis” standard imposed by the Commission was improper. Thompson insists that requiring two clinical studies before Aspercreme can be advertised as effective is onerous and unwarranted. Finally, Thompson attacks the Commission’s decision to require the company to make clear to consumers that Aspercreme does not contain aspirin. We take up these challenges in turn. A. The Public Interest Thompson argues that the FTC proceeding here was not in the public interest and was therefore improper under the FTC Act. See 15 U.S.C. § 45(b) (FTC may bring complaint “if it shall appear to the Commission that a proceeding by it in respect thereof would be to the interest of the public”). (Thompson does not make the statutory basis of its argument clear, but we presume that Thompson’s argument turns on the FTC Act rather than generalized principles of fairness or equity.) Thompson claims that the FTC proceeding was not in the public interest because the Food and Drug Administration (FDA) is entrusted by law with authority to evaluate and regulate all over-the-counter medicine, and is currently engaged in a review of such drugs. See Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq.; 21 C.F.R. part 330. Thompson asserts that the FDA should be allowed exclusive regulatory authority over the marketing and labelling of OTC drugs while its review is pending. The argument is without merit. The FDA proceedings referred to by Thompson began in 1962. It strains credulity to argue that even the most blatantly false or deceptive advertising of OTC drugs must be allowed so long as the FDA is evaluating the efficacy of those drugs. We find no evidence in the regulatory scheme that Congress has fashioned for over-the-counter medications that the FTC is indefinitely barred from all regulatory authority over drug advertising while the FDA conducts its comprehensive review of drug safety. Nowhere in the case law or in the FTC’s grant of authority is there even a hint that the FTC’s jurisdiction is so constricted. To the contrary, the cases recognize that ours is an age of overlapping and concurring regulatory jurisdiction. See Federal Trade Commission v. Texaco, Inc., 555 F.2d 862, 881 (D.C.Cir.), cert. denied, 431 U.S. 974, 97 S.Ct. 2940, 53 L.Ed.2d 1072 (1977) (“this is an era of overlapping agency jurisdiction under different statutory mandates”). In an analogous context the Supreme Court held that the FTC’s jurisdiction is concurrent with that of the Attorney General to file an antitrust suit. See Federal Trade Commission v. Cement Institute, 333 U.S. 683, 694-95, 68 S.Ct. 793, 800-01, 92 L.Ed. 1010 (1948). Other agencies and their mandates similarly overlap; not even a faint clue exists that Congress desired otherwise. The FTC has substantial expertise in evaluating claims of drugs’ absolute and comparative efficacy, and in assessing whether advertisements are misleading or deceptive. See, e.g., Warner-Lambert Co. v. Federal Trade Commission, 562 F.2d 749, 753-56 (D.C.Cir.1977), cert. denied, 435 U.S. 950, 98 S.Ct. 1576, 55 L.Ed.2d 800 (1978); American Home Products Corp. v. Federal Trade Commission, 695 F.2d 681, 691-93 (3d Cir.1982). We see no reason why the FTC should not be allowed to exercise that expertise in the circumstances presented here. Thompson asserts that the Second Circuit has acknowledged that the FDA is entrusted with sole responsibility to evaluate drugs’ absolute safety and efficacy. Thompson cites Bristol-Myers Co. v. Federal Trade Commission, 738 F.2d 554, 559-60 (2d Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 960, 83 L.Ed.2d 966 (1985), as support for this proposition. Thompson’s reliance on Bristol-Myers is entirely misplaced. The Bristol-Myers court made it quite clear that “FDA requirements and regulations ... simply d[id] not govern th[at] case. Not only is a different regulatory scheme involved, but generally speaking, the FDA is concerned only with evaluating absolute safety and efficacy, and not with questions of comparative safety and efficacy that arise in OTC drug advertising.” See id. at 559. Thompson’s belief that Bristol-Myers supports its position is wrong. This passage from Bristol-Myers makes clear that Thompson is wrong for another reason: the FDA will never have occasion to consider the full range of issues dealt with by the FTC in its proceeding against Thompson. Here, as noted above, the FTC found that Thompson had made misleading comparative efficacy claims. For instance, Thompson had claimed, without scientific or clinical proof, that Asper-creme was more effective than aspirin. The FDA has no warrant to address this claim. Rather, the FDA’s evaluation of OTC drugs only involves a determination of the safety and efficacy of individual drugs. See 21 C.F.R. part 330. Hence, no conceivable doctrine of deference or expertise would justify awaiting the result of the FDA’s over-the-counter drug evaluation program. If and when the FDA concludes that trolamine salicylate is effective, Thompson will be allowed, by the express terms of the FTC’s decision, to advertise Aspercreme as an effective analgesic. See Thompson Opinion at 826 n. 73. Although such FTC deference to the FDA is by no means required, the fact that the FTC has provided for it in this case means that Thompson is really objecting to any regulation of its advertising pending a determination of Aspercreme’s efficacy. We decline to hold that firms may not be prevented from advertising their products as efficacious until they are proved otherwise. Such a conclusion would turn the statutory scheme on its head. B. Reasonable Basis Thompson contends that the FTC erred in requiring two clinical studies as a prerequisite for any future representation that Aspercreme is an effective analgesic. Thompson correctly acknowledges that in general an advertisement is considered deceptive if the advertiser lacks a “reasonable basis” to support the claims made in it. See In re Pfizer, 81 F.T.C. 23 (1972); Porter & Dietsch, Inc. v. Federal Trade Commission, 605 F.2d 294, 302 (7th Cir.1979). The controversy here concerns what constitutes such a basis. Thompson is unhappy with the Commission’s requirement of two clinical studies. Thompson asserts that neither case law nor scientific wisdom justifies the imposition of this requirement, and that it has never before been imposed. The Commission’s opinion contains a thorough discussion of the framework traditionally used by the FTC in deciding when ads are properly supported by a reasonable basis, Thompson Opinion at 821-29, and why the order issued here contained the term it did. Id. at 829-39. We think the Commission has properly employed the framework established by its precedents in concluding that there was no reasonable basis shown here and in requiring two clinical studies before any representations can be made about Aspercreme’s efficacy. In evaluating the reasonable basis arguments, it is important to distinguish between two types of advertising claims. Some advertisements contain express representations about the level of support for a particular claim. Such advertisements are said to contain establishment claims. See Thompson Opinion at 813. The FTC has traditionally required that if an advertisement contains an establishment claim (e.g., if it states that a product has been found to be superior by scientific tests) “the advertiser must possess the level of proof claimed in the ad.” Bristol-Myers Co. v. Federal Trade Commission, 102 F.T.C. 21, 321, aff'd, 738 F.2d 554 (2d Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 960, 83 L.Ed.2d 966 (1985). If the claim is more general, but nevertheless constitutes an establishment claim, the FTC will specify the nature and extent of substantiation that will support the claim. See, e.g., Sterling Drug, Inc. v. Federal Trade Commission, 741 F.2d 1146, 1152-53 (9th Cir.1984); American Home Products, supra, 695 F.2d at 691-93; Bristol-Myers, supra, 102 F.T.C. at 351-52, 738 F.2d at 558-59. The FTC has usually required two well-controlled clinical tests before such a non-specific establishment claim may be made. (It should be noted that whether a claim of establishment is in fact made is a question of fact the evaluation of which is within the FTC’s peculiar expertise. See Chrysler Corp. v. Federal Trade Commission, 561 F.2d 357, 363 (D.C.Cir.1977).) In the case of a simple claim of efficacy — a “non-establishment” claim — the reasonable basis required has been defined more flexibly. In In re Pfizer Inc., 81 F.T.C. 23 (1972), the Commission established guidelines for the level of substantiation needed to support non-establishment claims. “Pfizer holds that the Commission itself may identify the appropriate level of substantiation for ads that do not expressly or impliedly claim a particular level of substantiation.” Thompson Opinion at 822 n. 59. In particular cases, however, the Commission has not always explained what would constitute “the appropriate level of substantiation” with great specificity. See, e.g., American Home Products Corp., supra, 695 F.2d at 710; Bristol-Myers Co., supra, 738 F.2d at 560-61. In American Home Products, for instance, the FTC merely provided that “competent and reliable scientific evidence” would be needed before any “non-comparative representations concerning the effectiveness ... of [the advertised] OTC drug products” could be made. 695 F.2d at 710. The vagueness that characterized the Commission’s order in American Home Products is not present in this case. Here, the FTC’s requirement of clinical testing before an efficacy claim can be made extends to both establishment and non-establishment claims. See Thompson Opinion at 813-14 (discussing Thompson’s representations that it had a particular level of support for its efficacy claims), 821-22 & n. 58 (discussing reasonable basis requirements for establishment and non-establishment claims). Indeed, the FTC downplays the significance of the distinction between establishment and non-establishment claims. The FTC states that There is no conceptual or practical reason to single out such [establishment] claims for special treatment. They are but one example of an express or implied claim that an advertiser possesses a particular level of substantiation.... [T]he Commission itself may identify the appropriate level of substantiation for ads that do not expressly or impliedly claim a particular level of substantiation.... We do not have to perform such an evaluation where an advertisement itself makes ... substantiation claims. Id. at 822 n. 59. Despite the continuum that various sorts of claims lie along, it does not appear that the FTC has ever before required clinical testing to support a non-establishment claim. This forms the crux of Thompson’s challenge to the FTC’s Order. We think Thompson’s attack is inadequate to overturn the FTC’s decision. Despite the FTC’s departure from its usual result, its reasoning in arriving at the requirement of clinical testing is well-founded in precedent. That is, the Commission carefully reviewed the factors laid out in its precedents before concluding that a two-clinical-test standard was appropriate here. See Thompson Opinion at 821-29; FTC Policy Statement Regarding Advertising Substantiation, Appendix to Thompson Opinion, 104 F.T.C. 839. The controversy thus turns on whether the FTC has properly applied the law to the facts. Thompson rests its argument in large part on In re Pfizer, supra. Thompson argues that the reasonable basis standard for non-establishment claims articulated there and in subsequent FTC cases would have been satisfied here without the imposition of a clinical testing requirement. In essence, Thompson argues that the FTC has unreasonably and without explanation imposed a more severe standard here than it ever has in the past. Thompson’s argument is unconvincing because in this case the Commission did not categorically impose a requirement of clinical testing for non-establishment claims. Rather, the Commission employed the multi-factorial analysis first expounded in Pfizer that Thompson acknowledges is appropriate, exercised its remedial discretion, and determined that the particular facts here warranted the imposition of a clinical testing requirement. The Commission’s catalog and analysis of the factors deemed relevant in fashioning a remedy was extensive and painstaking. See Thompson Opinion at 821-29. The cases cited by Thompson for the proposition that non-establishment claims need not be substantiated by clinical testing do not support that conclusion. Rather, as noted above, they simply constitute instances in which the Commission has not imposed such a requirement or has rejected its categoric imposition. See, e.g., Bristol-Myers Co. v. FTC, supra; Sterling Drug, Inc. v. FTC, supra; American Home Products Corp. v. FTC, supra. In Bristol-Myers, for instance, the Commission merely rejected the proposition that all efficacy claims should be supported by clinical testing. See 738 F.2d at 560-61. Thompson is really arguing that non-establishment claims can never support a clinical testing requirement. Because the FTC did not impose a scientific testing requirement in some previous OTC drug cases, Thompson asserts that clinical testing should never be required in an OTC case. Thompson does not offer convincing support for this rather extreme position. Merely citing cases that are arguably similar to this one and observing that a less stringent standard was applied in them does not amount to proof that the FTC acted contrary to law in imposing a higher standard in this case. It is worth noting that the Commission would be placed in a difficult position should we decide that a clinical testing requirement was inappropriate here. The Commission has had some difficulty with orders governing non-establishment claims that have been attacked on vagueness grounds. In American Home Products Corp., supra, 695 F.2d at 710, the court struck down on vagueness grounds part of an FTC order requiring “competent and reliable scientific evidence” as a reasonable basis for non-establishment claims. The court rested its holding in part on the large range of products covered by the order. In Bristol-Myers Co., supra, 738 F.2d at 560-61, by contrast, the court upheld an FTC order against a vagueness challenge. In Bristol-Myers the order’s language was substantially similar to that in American Home Products, but it did not extend to as wide a range of products. The court distinguished American Home Products by noting that AHP depended not only on the allegedly vague language in the order, but also on the order’s breadth. Despite the court’s ultimate approval of the FTC’s order in Bristol-Myers, however, the FTC had to go through a lengthy and uncertain appellate process before enforcing the order. See also Sterling Drug, Inc. v. FTC, 741 F.2d at 1156-57. Obviously, both courts and the FTC would prefer that the FTC’s orders were unequivocally legal. If we were to conclude that the two-clinical-test standard was unjustified under the Pfizer reasonable basis framework, it would be difficult for the FTC to fashion an acceptable set of requirements for non-establishment claims. The Commission has special expertise in determining what sort of substantiation is necessary to assure that advertising is not deceptive. We decline to interfere with its exercise of that discretion in the circumstances of this case. We pause briefly to respond to Thompson’s repeated expressions of horror at the alleged effect of the FTC’s order. Thompson asserts that the Commission’s decision will destroy its business, and is tantamount to an order to cease selling Aspercreme. Two responses to Thompson’s bleatings are appropriate. First, they are simply not true. The FTC’s Order did not bar the sale of Aspercreme forever and under all circumstances. Indeed, the sale of Aspercreme was not barred at all. Only misleading advertising was prohibited. If Thompson does come up with new clinical studies or if the FDA reclassifies trolamine salicylate Thompson would be free to continue to make efficacy claims in its Aspercreme ads. In the interim, Thompson is free to advertise Aspercreme so long as it does not make false or misleading representations. Second, although the effect of the order on Thompson’s business may well be severe, we see no reason that Thompson should be able to make advertising claims if they are not true. The FTC has a mandate to assure that advertising is not false and misleading. Allowing firms to continue such advertising because to stop would hurt the firm’s economic interests is obviously not part of the calculus of interests Congress intended the FTC to consider. Thompson has no right to stay in business if the only way it can do so is to engage in false and misleading advertising. We also reject Thompson’s argument that the Commission should have found that the available evidence supports the company’s efficacy claims for Aspercreme. Thompson devotes much time and energy to a discussion of the scientific and technical material that was put into evidence in this matter. Thompson argues that the Commission failed to take into account new studies that became available during the proceedings, and that if the FDA had had all the data presented to the FTC it would already have classified Trolamine salicylate as effective. We deplore Thompson’s attempt to retry this matter before us. Appellate courts have neither the expertise nor the resources to evaluate complex scientific claims. Thompson does not argue that the FTC’s decision was unsupported by substantial evidence on the record. See Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Rather, Thompson simply urges us to believe its experts rather than those witnesses apparently given greater credence by the Commission. Our role, however, is not to reweigh the evidence de novo to determine how we would have resolved the matter. See Federal Trade Commission v. Algoma Lumber Co., 291 U.S. 67, 73, 54 S.Ct. 315, 318, 78 L.Ed. 655 (1934); Warner-Lambert Co. v. Federal Trade Commission, supra, 562 F.2d at 753. Our task is only to determine if the Commission’s finding is supported by substantial evidence on the record as a whole. C. Aspirin Content Thompson also challenges the portion of the FTC order requiring it to disclose in all advertising and labelling that Aspercreme does not contain aspirin. This part of Thompson’s argument borders on the frivolous. Thompson argues that no misrepresentation occurred, that it is not material to consumers whether Aspercreme contains aspirin or not, that Aspercreme is merely a trademark and does not convey any information about the product’s content, and that in any event Aspercreme labelling has always indicated that Asper-creme does not contain aspirin. (One wonders why Thompson is upset about being ordered to disclose that its product does not contain aspirin if no one cares and everyone has always known anyway.) The issue of what message was reasonably likely to be conveyed to consumers by Aspercreme’s advertising was extensively addressed by expert testimony. See Thompson Opinion at 788-816. The FTC’s summation of the law in this area is accurate and succinct. Advertising representations will be condemned if they are likely to deceive; actual deception need not be shown. The tendency of a particular advertisement to deceive is determined by the net impression it is likely to make upon the viewing public. Consequently, literally true statements may nonetheless be found deceptive, and advertisements reasonably capable of being interpreted in a misleading way are unlawful even though other, non-misleading interpretations may also be possible. In determining the meaning likely to be conveyed by advertisements, the Commission is engaged in fact-finding, and its findings are to be regarded as conclusive if supported by substantial evidence. Moreover, in interpreting advertisements, the Commission may rely on its own reasoned analysis of the advertisements themselves, without resorting to surveys or consumer testimony. Although the meaning of the statutory phrase “deceptive acts or practices” is ultimately a matter for judicial construction, the Commission’s conclusion that acts or practices are likely to deceive is due special deference owing to the nature of the inquiry and the Commission’s expertise in evaluating deception. Brief for the FTC at 49-50 (footnotes omitted). The factual nature of the FTC’s findings with respect to the aspirin claims and the FTC’s expertise and experience in this area make its opinion very difficult to challenge. Conclusion The FTC adequately considered a large mass of technical evidence and concluded that Thompson had engaged in deceptive advertising with respect to Aspercreme. We cannot find fault in the Commission’s conclusions or in the remedial measures it imposed. Indeed, in all respects, we find the FTC Order and Opinion clear and logical. If and when Thompson comes up with evidence that Aspercreme is effective, it will be free to again make efficacy claims in its advertising. Until that time, it should not say what it cannot prove. The FTC’s requirement of aspirin-content disclaimers also is entirely appropriate; As-percreme does not contain any aspirin, and its makers should not imply that it does. Accordingly, Thompson’s petition for review of the FTC’s order is Denied. Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"? A. social security benefits (including SS disability payments) B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps) C. state or local economic regulation D. federal environmental regulation E. federal consumer protection regulation (includes pure food and drug, false advertising) F. rent control; excessive profits; government price controls G. federal regulation of transportation H. oil, gas, and mineral regulation by federal government I. federal regulation of utilities (includes telephone, radio, TV, power generation) J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government K. civil RICO suits L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above) M. admiralty - seamens wage disputes N. admiralty - maritime contracts, charter contracts O. admiralty other Answer:
songer_r_fed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Phyllis CHAMBERS, Plaintiff-Appellant, v. PARCO FOODS, INCORPORATED, Defendant-Appellee. No. 90-1419. United States Court of Appeals, Seventh Circuit. Argued Dec. 10, 1990. Decided June 20, 1991. Aladean M. DeRose, South Bend, Ind., for plaintiff-appellant. Katharine B. Devoid, Richard L. Marcus, Sonnenschein, Nath & Rosenthal, Chicago, Ill., Donald W. Pagos, Sweeney, Dabagia, Donaghue & Thorne, Michigan City, Ind., for defendant-appellee. Gwendolyn Young Reams, Vella M. Fink, Paul Bogas, Donald R. Livingston, E.E. O.C., Washington, D.C., for E.E.O.C. ami-cus curiae. Before CUDAHY, FLAUM and MANION, Circuit Judges. MANION, Circuit Judge. Phyllis Chambers sued Parco Foods, Inc. for violating Title VII through its collectively bargained promotion and transfer policies. The district court granted summary judgment for Parco, holding that Chambers’ claim was time-barred. We affirm. I. The facts of this case are not in dispute. Parco makes holiday cookies at its plants in Michigan City, Indiana and Blue Island, Illinois. Both plants have six departments: packing, mixing, maintenance, warehouse, traffic and sanitation. As of November 1, 1988, the packing departments of both plants were primarily female, and the mixing departments were primarily male. At all relevant times, the lowest-paying job in the mixing department paid more than the highest-paying job in the packing department. As one might imagine for a company that makes holiday cookies, the work is seasonal, requiring the greatest output and the most workers during the Christmas holiday season from October to January. Partly for that reason, Parco and the union in 1979 bargained for a departmental seniority system where employees in one department are not allowed to bid for jobs in another department. The specific provision is contained in Article VII, Section 3(C): C. Bidding Section 1. Seniority shall be the determining factor in matters affecting promotions, demotions and transfers within classifications, only if other factors of fitness and ability are equal. (a) When an employee’s job is eliminated, such employee shall have the right to exercise his seniority within the employee’s department. Section 2. When a vacancy occurs, or a newly created job, the company will post the job for three (3) days, and will then have one week to fill the new job. Employees within the department desiring to apply for this job will write their names and seniority status on the posted notice. The successful applicant will be chosen by the Employer on the basis of seniority, provided ability and fitness of the senior employee is equal to that of the other applicants. Parco maintains this system of departmental seniority so that an experienced work force is guaranteed in each department, even during periods of fluctuating production demands and dramatic changes in number of employees. Stability appears to be the key. Without this provision, Par-co would find itself with few experienced workers during both the slow season and the time of heavy production during the holiday season. In the off-season, reductions in force might knock out most of the experienced workers within a department, replacing them with workers from other departments who have greater plant-wide seniority. And during the busy season, Parco would have to train new workers to take the place of those who transferred to another department, and would also have to train the transferred employees to do their new jobs, during a time with heavy production demands. Phyllis Chambers, employed by Parco in the packing department since 1977, was a member of the union negotiating team that in 1979 agreed to Article VII, Section 3(C). While Chambers claims to have believed that section meant only that employer discretion would be eliminated in transferring employees within departments, since its enactment in 1979 Pareo and the union have interpreted the provision as disallowing bids for transfers. The bidding provision has been reenacted verbatim in subsequent collective bargaining agreements signed in 1984 and 1988, and the union has never attempted to negotiate a change in its terms. On July 6, 1987, while working in the packing department, Chambers bid for a job in the mixing department. She was told she could not bid on jobs outside her department, and her application was not considered. Charles Glenn Tombs, a male employee with about one year’s experience in the mixing department, but with far less plantwide seniority than Chambers, was hired. On July 31, 1987, Chambers filed a complaint with the Michigan City Human Rights Department alleging sex discrimination because Parco refused to let her bid on the position in the mixing department. The Human Rights Department made an initial finding of probable cause, but Chambers withdrew her complaint. On July 29, 1988, the Equal Employment Opportunity Commission (EEOC) issued a Notice of Right to Sue. Chambers sued in federal district court on September 14, 1988. The district court granted summary judgment for Par-co on January 23, 1990, and Chambers timely appealed. II. Parco made two arguments in support of its motion for summary judgment. First, Parco argued that Chambers’ claim was untimely. Second, on the merits, Parco claimed that its policy is a bona fide seniority system. While Title VII prohibits sex discrimination in the terms and conditions of employment, Congress has created an exception where employment 'action occurs pursuant to a bona fide seniority system. See Title VII, 42 U.S.C. § 2000e-2(h). Even if Parco’s plan is a seniority system, challenges still can be brought if discriminatory intent or purpose is shown. The district court agreed with the preliminary argument that Chambers’ claim was time-barred, and therefore did not reach the merits. The court concluded that Chambers’ claim was untimely under 42 U.S.C. § 2000e-5(e), which allows 180 days to challenge unlawful employment practices relating to seniority systems, or 300 days if administrative proceedings are pursued first. The allegedly discriminatory provision of the collective bargaining agreement went into effect in 1979, so under the 300-day provision Chambers’ 1988 challenge was about eight years late. The court relied on Lorance v. AT & T Technologies, 490 U.S. 900, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989), in which the Supreme Court held that the statutory limitations period begins to run when the allegedly discriminatory seniority system is adopted. The Court specifically rejected the argument that the statute was triggered each time the system was applied in a discriminatory fashion. 109 S.Ct. at 2269. Chambers advances two bases for reversal. Chambers first argues that Par-co’s prohibition of inter-departmental bidding is merely a no-transfer rule, rather than a “seniority system,” and that the statute of limitations therefore does not apply. Parco argues that its bidding policy is an integral part of its seniority system. We agree with the district court that Par-co’s no inter-departmental bidding rule is part of its seniority system. Lorance considered a seniority system legitimate even though seniority was determined by length of time spent in a particular position, instead of length of time with the company. 109 S.Ct. at 2265. The situation in Lorance is analytically no different than at Parco Foods; here, seniority is determined by length of time in one department, instead of length of time with the company. Pareo, and the defendant in Lorance, justify their seniority systems as reasonable attempts to encourage workers to remain in and improve on the jobs they are doing, rather than to transfer within the company and require training for a new job. In this case, Tombs had one year in the mixing department; Chambers had none. To Parco, Tombs was the more qualified applicant with greater relevant seniority. That Chambers does not like the manner in which Parco’s seniority system operates does not mean it is not a seniority system. The EEOC’s argument as amicus curiae suffers from this same defect. The EEOC does not like the fact that Chambers is treated as an entry-level applicant, the same as an outsider applying for a job in the mixing department. But the EEOC’s concerns are properly the subject of future collective bargaining negotiations; they do not show that Parco’s plan is not a seniority system. As the Supreme Court said in California Brewers Association ¶. Bryant, 444 U.S. 598, 606, 100 S.Ct. 814, 819, 63 L.Ed.2d 55 (1980), the “principal feature of any and every ‘seniority plan’ is that preferential treatment is dispensed on the basis of some measure of time served in employment.” The key words, which the EEOC chooses not to emphasize, are “some measure of time.” Parco’s measure of time is based on experience within a particular department, for which Chambers will receive preferential treatment. Par-co’s measure of time is sufficient to show that its no inter-departmental bidding rule is indeed part of a seniority system. Chambers’ second argument for escaping the statutory limitations period presents a question of first impression. She argues that each subsequent reenactment of an allegedly discriminatory seniority system re-triggers the limitations period. Therefore, she argues, the reenactment of Article VII in 1988 was a new discriminatory event that made her 1988 lawsuit timely. The district court rejected this reasoning on the basis of Lorance, but we do not believe Lorance provides us such a clear answer. Several factors support the district court’s analysis. Although Lorance did not involve a collective bargaining agreement that was subsequently reenacted, the Court seemed to focus on the moment when a system changes from nondiscriminatory to discriminatory — a “diminution in employment status” — as the moment triggering the limitations period. In Lorance, the Court described this crucial moment in a manner that discounts the importance of prior or future verbatim reenactments of the same provision: Under the collective bargaining agreements in effect prior to 1979, each petitioner had earned the right to receive a favorable position in the hierarchy of seniority among testers ..., and respondents eliminated those rights for reasons alleged to be discriminatory. Because this diminution in employment status occurred in 1979 ... the Seventh Circuit was correct to find petitioner’s claims time-barred_ Lorance, 109 S.Ct. at 2265. The Court did not refer to the most recent reenactment of the collective bargaining agreement, but noted that previous “agreements” preserved certain rights for the workers. Then the Court focused on the point when those rights were allegedly diminished by a change in the collective bargaining agreement. In our case, there was no “diminution in employment status” during subsequent verbatim reenactments of the allegedly discriminatory Article VII; that “diminution” occurred in 1979 when the agreement’s terms were changed from previous agreements. The district court concluded that allowing each subsequent verbatim reenactment of a collective bargaining agreement to start the limitations clock running again would defeat the workers’ valid reliance interests the Supreme Court sought to protect in Lorance: “[Allowing a facially neutral system to be challenged, and entitlements under it to be altered, many years after its adoption would disrupt those valid reliance interests [that the limitations period] was meant to protect,” and upset the “balance between the interests of those protected against discrimination by Title VII and those who work — perhaps for many years — in reliance upon the validity of a facially lawful seniority system.” 109 S.Ct. at 2269. However, the Lorance Court generally refers to a seniority system’s point of “adoption” as the point at which the statute of limitations begins to run. 109 S.Ct. at 2269. In rejecting the plaintiffs’ argument that the statute should be triggered when the effect of the decision to adopt the seniority provision was felt, the Court explained that “[bjecause the claimed invalidity of the facially nondiscriminatory and neutrally applied ... seniority system is wholly dependent on the alleged illegality of signing the underlying agreement, it is the date of that signing which governs the limitation period.” 109 S.Ct. at 2268 (emphasis added). The Court pointed out that in a facially neutral system “the discriminatory act occurs only at the time of adoption,” 109 S.Ct. at 2269 n. 5 (emphasis in original). So, under Lorance, the time of adoption is the discriminatory act, and the discriminatory act triggers the statute of limitations. Can maintaining an allegedly discriminatory provision be considered a discriminatory act? We believe that it can, provided that the plaintiff can point to evidence of a discriminatory act or discriminatory intent in the provision’s reenactment. Established caselaw interpreting § 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), indicates that maintenance of an allegedly discriminatory seniority system can be considered a discriminatory act. In Pullman-Standard v. Swint, 456 U.S. 273, 281, 102 S.Ct. 1781, 1786, 72 L.Ed.2d 66 (1982) (citations omitted), the Supreme Court inquired whether a seniority system “was negotiated and has been maintained free from any illegal purpose,” and observed that the district court had “carefully considered the detailed record of negotiating sessions and contracts which span a period of some thirty-five years.” The court made this inquiry even though the relevant seniority provision had remained unchanged over the years through many renegotiations. The implication is that if the parties have discriminatory reasons for reenacting seniority provisions, even when they do not change the system, the reenactment can be considered discriminatory for purposes of § 703(h). See also Teamsters v. United States, 431 U.S. 324, 355-56, 97 S.Ct. 1843, 1864-65, 52 L.Ed.2d 396 (1977); Wattleton v. Intl. Brotherhood of Boiler Makers, 686 F.2d 586, 590, 592 (7th Cir.1982). Thus, if a plaintiff can point to evidence of discriminatory motive in the renegotiation or “maintenance” of a seniority system, then that date provides the time at which the statute of limitations begins to run, for it is at that point that the “discriminatory act” took place. All of this is no help to Chambers, however. The record in our case is uncontro-verted that not only was Article VII reenacted verbatim, but the provision was never even a matter of discussion between Parco and the union. The union never sought to renegotiate the terms of the allegedly discriminatory provision, so there is nothing Chambers can possibly point to that would show Parco’s discriminatory intent. Without an act or statement in the renegotiation process that would be probative of discriminatory intent, the renegotiation date cannot be the starting point for the statute of limitations. Therefore, the judgment of the district court dismissing Chambers’ claim as untimely is Affirmed. . As the district court noted, "From the union's position, the system fostered employees’ opportunities to be promoted and rewarded for their work record within their department, notwithstanding bids from more senior employees in other departments. From Parco Foods’ standpoint, the system furthered continuity of the work force by encouraging employees to departmentalize their skills and work up the ladder within one section of the plant." Memorandum and Order, Jan. 23, 1990, at 3, 1990 WL 71511. . Pursuant to General Rule 11 of the Northern District of Indiana, Parco filed in conjunction with its motion for summary judgment a "Statement of Material Facts As To Which There Is No Genuine Issue.” Paragraph 22 stated: “At no time since 1979 has the Union requested a change in the no inter-departmental transfer rule. The collective bargaining agreement was renegotiated and a new collective bargaining agreement was signed on April 1, 1988, without any request by the Union to change the no inter-departmental transfer rule.” Chambers has never attempted to contest this statement, either in her own statement of material facts to the district court, or in her briefs on appeal. Under General Rule 11, the district court was required to "assume that the facts as claimed by the moving party are admitted to exist without controversy....”. . The dissent sidesteps the precedential force of Lorance by suggesting a different resolution is mandated by simple rules of contract. The dissent fails to point out that, even under its approach, Chambers’ claim here is barred. Chambers’ 1987 job bid and subsequent complaint to the Michigan City Human Rights Commission were untimely attacks on the April 1984 agreement then in effect. Her September 1988 lawsuit was not only untimely but also moot because it was a continuing challenge to the 1984 agreement which had been replaced by a new agreement enacted in April of 1988. And her lawsuit could not be construed as an attack on the April 1988 agreement because, first, she never bid on a job under that agreement, and second, she never went before the Human Rights Commission or the EEOC with a discrimination claim based on the April 1988 reenactment. If we are to apply a "simple contract rule that a new agreement gives rise to new cause of action" the old cause of action Chambers still pursues is moot. 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_r_natpr	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Hazel COBB, Appellant, v. Pete GILMER, Appellee. No. 19845. United States Court of Appeals District of Columbia Circuit. Argued March 17, 1966. Decided July 11, 1966. Mr. Dorsey Evans, Washington, D. C., for appellant. Mr. William Reback, Washington, D.C., for appellee. Before Bazelon, Chief Judge, DanAher and Wright, Circuit Judges. BAZELON, Chief Judge: This case involves the title to certain property located in the District of Columbia which was deeded to the original parties in this suit, Naomi Zachary and Pete Gilmer, as tenants by the entirety. In 1962 the parties, who had participated in a marriage ceremony in 1947, discovered that Naomi Zachary had never been legally divorced from her former husband Roy Zachary. Naomi Zachary subsequently instituted the present suit seeking judgment quieting title to the property in her name. Prior to trial she died, and her daughter, who was substituted as plaintiff, thereupon amended the complaint to request partition of the property as alternative relief. At the conclusion of the trial, the court, sitting without a jury, held that the defendant Gilmer had sole title to the property. This appeal followed. Appellant, the substituted plaintiff below, first argues that the trial court misapplied the rule of Coleman v. Jackson, 109 U.S.App.D.C. 242, 286 F.2d 98, 83 A.L.R.2d 1043 (1960), cert. denied, 366 U.S. 933, 81 S.Ct. 1656, 6 L.Ed.2d 391 (1961). In that case we held that where the parties to a deed were disabled from holding property as tenants by the entirety, a joint tenancy is deemed to have been created unless a contrary intent is shown. Here the trial court found that the plaintiff had failed to prove by a preponderance of the evidence the requisite contrary intent. Since this finding was not clearly erroneous, we sustain the trial court’s conclusion that the property was held in joint tenancy and that title passed to defendant Gilmer on the death of the original plaintiff Zachary, L2, 3] Appellant also argues that the original complaint in this suit comprehended a claim for partition. On this basis she challenges the trial court’s conclusion that the partition action abated on the death of the original plaintiff. Assuming, without deciding, that a prayer for judgment quieting title is broad enough implicitly to contain a partition claim, we find no merit in the argument. Although we have been unable to find a case on point in this jurisdiction, the apparently universal rule in this country is that a pending suit for a partition of a joint tenancy does not survive the death of one of the tenants. This rule is compelled by two related concepts: first, the theory of survivor-ship — that at the moment of death title to the property vests exclusively in the surviving joint tenant or tenants ; and second, the doctrine that severance of the joint tenancy does not occur until the suit for partition reaches final judgment. Therefore, unless partition has been decreed before the death of the joint tenant, no interest in the property remains in the representatives of the decedent which can support an action for partition. Appellant contends that the District’s survival statute, D.C.Code § 12-101 (Supp. IV, 1965), has altered this common law rule. This statute speaks in terms of a “right of action [which] has accrued for any cause prior to * * * death * * This phrasing obviously envisages a pre-existing invasion of a legal right or duty. But a suit for partition of a joint tenancy does not depend upon the existence of a prior legal wrong; it may be had as a matter of right at the instance of any joint tenant, subject only to equitable considerations. Partition of a joint tenancy thus is not a “right of action” of the type contemplated by the statute. Moreover, if the ability to demand partition survived the death of a joint tenant, his representatives could always bring an action for partition, thereby destroying the concept of survivorship which is the essence of the tenancy. We therefore hold that the District’s survival statute is inapplicable to suits for partition of joint tenancies Affirmed. . Thus we need not decide whether the amendment to the complaint which specifically requested partition “related back” to the original complaint. . E. g., Sheridan v. Lucey, 395 Pa. 305, 149 A.2d 444 (1959); Minnehan v. Minnehan, 336 Mass. 668, 147 N.E.2d 533 (1958); Teutenberg v. Schiller, 138 Cal.App.2d 18, 291 P.2d 53 (Dist.Ct.App. 1955); Dando v. Dando, 37 Cal.App.2d 371, 99 P.2d 561 (Dist.Ct.App.1940); Shuck v. Shuck, 413 Ill. 390, 108 N.E.2d 905 (1952); Ellison v. Murphy, 128 Misc. 471, 219 N.Y.S. 667 (1927); Arthur v. Arthur, 115 Neb. 781, 215 N.W. 117 (1927); 4 Thompson, Real Property § 1781 (repl. ed. 1961); Annot., 129 A.L.R. 813, 817 (1940); Annot., 64 A.L.R.2d 918, 956 (1959); 48 C.J.S. Joint Tenancy § 4 (1947). See also Child v. Bulmer, [1891] 3 Ch. 59. . See, e. g., Maynard v. Sutherland, 114 U.S.App.D.C. 169, 313 F.2d 560 (1962). . See, e. g., authorities cited in note 2 supra; 4 Thompson, Real Property §§ 1779-1781 (repl. ed. 1961); 2 Tiffany, Real Property §§ 419, 428 (1939). . See, e. g., 4 Thompson, Real Property §§ 1822-1823 (repl. ed. 1961); 2 Tiffany, Real Property §§ 473-475 (1939). . Cf., e. g., Metzger v. O’Donoghue, 53 App.D.C. 107, 288 F. 461 (1923); Dingman v. Henry, 51 App.D.C. 339, 279 Fed. 795 (1922). . See Sheridan v. Lucey, supra note 2. Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_source	D	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. STEVERSON v. CLARK et al. No. 4112. Circuit Court of Appeals. Fourth Circuit. Nov. 17, 1936. S. P. Knotts, Jr., of Columbia, S. C., for appellant. M. E. Zeigler, of Orangeburg, S. G, for appellees. Before PARKER and SOPER, Circuit Judges, and CHESNUT, District Judge. Writ of certiorari denied 57 S. Ct. 508, 81 L. Ed. —. PER CURIAM. This is an appeal from an order refusing to adjudicate appellant a bankrupt under subsection (s) of section 75 of the Bankruptcy Act, as amended by the second Frazier-Lemke Act (Act Aug. 28, 1935, § 6 [11 U.S.C.A. § 203 (s). The judge below approved findings by the Conciliation Commissioner to the effect that an offer of composition and extension had not been made in good faith by the bankrupt; and he accordingly refused an adjudication of bankruptcy and dismissed the proceedings on that ground. For that reason, he found it unnecessary to pass upon the constitutional validity of the second Frazier-Lemke Act, although this was duly challenged in appellees’ motion to dismiss. We find nothing in the record which would justify us in disturbing the order of the District Judge approving the findings of the Conciliation Commissioner, and we agree that these afford sufficient ground for denying the adjudication and dismissing the proceedings. In re Borgelt (C.C.A.7th) 79 F.(2d) 929. In addition to this, we have recently held that the second Frazier-Lemke Act is void because violative of the Fifth Amendment to the Constitution. Robert Page Wright, Bankrupt, v. Vinton Branch of Mountain Trust Bank and five other cases (C.C.A. 4th) 85 F.(2d) 973. In any aspect of the case, therefore, the judge below properly denied the adjudication and dismissed-, the petition. The order appealed from will accordingly be affirmed. Affirmed. Question: What 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_procedur	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. William Wallace FINLATOR; John S. Friedman; Vasudha Gupta; Bruce Jacobs; Slater E. Newman; John Browner, d/b/a Bell, Book & Coffee; Robert H. Sheldon, d/b/a Internationalist Books, Plaintiffs-Appellants, v. Helen A. POWERS, Secretary of Revenue, Defendant-Appellee. No. 89-2767. United States Court of Appeals, Fourth Circuit. Argued March 6, 1990. Decided May 10, 1990. Brian Lloyd Rubin, Sidley & Austin (argued), Washington, D.C. (Ronald S. Flagg, Sidley & Austin, Washington, D.C., Donnell Van Noppen, III, Smith, Patterson, Follin, Curtis, James & Harkavy, Raleigh, N.C., on brief), for plaintiffs-appellants. Donald Wayne Latón, Asst. Atty. Gen., North Carolina Dept, of Justice (argued), Raleigh, N.C. (Lacy H. Thornburg, Atty. Gen., North Carolina Dept, of Justice, Raleigh, N.C., on brief), for defendant-appel-lee. Before ERVIN, Chief Judge, and PHILLIPS and WILKINSON, Circuit Judges. ERVIN, Chief Judge: The appellants brought this action against the Secretary of Revenue (the “Secretary”) of the State of North Carolina (the “State”) to enjoin the enforcement and challenge the constitutionality of N.C.Gen. Stat. § 105-164.13(14) (the “Exemption”), which exempts “Holy Bibles” from the State’s retail sales and use tax. The appellants claim that the Exemption violates the establishment clause of the United States Constitution, and constitutes content-based discrimination in violation of the first amendment and 42 U.S.C. § 1983. The district court granted the Secretary’s motion to dismiss, holding that the appellants lacked the requisite standing to maintain this suit. The appellants now appeal that decision, contending that: (1) they have standing as non-exempt parties; (2) alternatively, they have standing as taxpayers; and (3) if we conclude that they do have standing to pursue this action, we should address the merits of their complaint, hold that the Exemption is unconstitutional, and enjoin its enforcement. For the reasons set forth below, we conclude that the appellants do have standing to bring this suit as non-exempt parties, and that the Exemption is unconstitutional. Accordingly, we reverse the decision of the district court. I. John Friedman, Vasudha Gupta and Bruce Jacobs each have been taxed by the State on their separate purchases of books which they and their respective religions consider sacred. Both William Finlator and Slater Newman have been taxed on their individual purchases of non-sacred books. John Browner and Robert Sheldon are booksellers who have collected the State’s sales tax from these purchasers, and remitted the tax to the Secretary as required under the North Carolina Sales and Use Tax Act, N.C.Gen.Stat. §§ 105-164.1 et seq. (1989) (the “Act”). The sale and purchase of “Holy Bibles” is not subject to taxation under the Act by reason of the Exemption. On January 11, 1989, these five book purchasers and two booksellers (collectively referred to as the “appellants”) brought this action against the Secretary to enjoin the enforcement of the Exemption and challenge its constitutionality. By letter dated May 1, 1989, the parties informed the trial court that they did not intend to conduct any discovery because they believed that the case presented legal issues exclusively. They also requested that the district court rule on the appellants’ motion for summary judgment and the Secretary’s motion to dismiss, which previously had been filed with the court. On July 20, 1989, the court below dismissed this case pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, holding that the appellants lacked standing to bring this action since they did not allege an actual injury. The appellants’ motion for summary judgment was denied as moot, and this appeal followed. II. Courts reviewing dismissals under Rule 12(b)(6) are guided by the long-established rule that “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.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957), quoted in Thompson v. Brotherhood of Sleeping Car Porters, 316 F.2d 191, 199 (4th Cir.1963); see also District 28, United Mine Workers of America, Inc. v. Wellmore Coal Corp., 609 F.2d 1083, 1085 (4th Cir.1979). In considering a motion to dismiss, the complaint must be construed in the light most favorable to the plaintiffs, and its allegations taken as true. Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969). Most importantly, dismissals are reviewed de novo on appeal. Revene v. Charles County Comm’rs, 882 F.2d 870, 872 (4th Cir.1989). III. Article III of the United States Constitution limits the judicial power of the federal courts to resolving actual cases and controversies. Due in large part to this constitutional limitation on the jurisdiction of the federal judiciary, the Supreme Court has developed certain rules regarding the “justiciability” of disputes. See generally Flast v. Cohen, 392 U.S. 83, 94-97, 88 S.Ct. 1942, 1949-51, 20 L.Ed.2d 947 (1968). Foremost among these various rules is the doctrine of standing. Standing asks whether a party has a sufficient personal stake in the outcome of an otherwise justiciable controversy to obtain relief through a judicial resolution of that controversy. Sierra Club v. Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972). In theory, standing differs from all other aspects of justiciability because of its primary focus on the actual party bringing the suit more than the legal issue presented for adjudication. Flast v. Cohen, 392 U.S. at 99, 88 S.Ct. at 1952. Simply stated, the consideration of standing ensures the appropriateness of a particular party to pursue specific litigation. Id. at 100, 88 S.Ct. at 1952. At its fundamental core, therefore, standing subsumes a blend of constitutional requirements and prudential considerations. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975). Generally, a plaintiff has standing to bring a case if the party personally has suffered some actual or threatened injury arising from the putatively illegal conduct of the defendant, the demonstrated injury fairly can be traced to the challenged action, and the injury is likely to be redressed by a favorable decision of the court. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). In the shorthand analysis of standing, these three basic requirements are referred to as injury-in-fact, causation and redressability, and they are central to any discussion of standing. Today, the question of standing arises most often in suits challenging government conduct or involving what some writers have referred to as “public law litigation.” See L. Tribe, American Constitutional Law 107 (2d ed. 1988); Chayes, The Supreme Court, 1981 Term — Foreword: Public Law Litigation and the Burger Court, 96 Harv.L.Rev. 4, 8-10 (1982). This is the very context in which standing is challenged in the case sub judice. In these types of cases, the narrow question of whether the plaintiff has suffered an actual injury is typically disputed. In two recent decisions, the Supreme Court concluded that non-exempt taxpayers have standing to challenge the constitutionality of state tax exemptions. Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989); Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987). In Arkansas Writers’ Project, the Court, per Justice Marshall, stated that to deny standing to such parties “would effectively insulate underinclusive statutes from constitutional challenge.” 481 U.S. at 227, 107 S.Ct. at 1726 (citing Orr v. Orr, 440 U.S. 268, 272, 99 S.Ct. 1102, 1108, 59 L.Ed.2d 306 (1979)). In addition, the Court noted that its decision was consistent with the “numerous decisions of this Court in which we have considered claims that others similarly situated were exempt from the operation of a state law adversely affecting the claimant.” Id. (citations omitted). The Secretary argues that an implicit requirement of Arkansas Writers’ Project and Texas Monthly is that non-exempt parties must take certain minimal steps to ensure their standing, such as contesting the tax prior to its payment, refusing to pay the tax, paying the tax under protest or a reservation of rights, paying the tax and seeking a refund, or taking some other action to permit the state to preclude or redress their injuries ab initio. See Arkansas Writers’ Project, 481 U.S. at 225, 107 S.Ct. at 1725 (the plaintiff initially contested the tax assessment); Texas Monthly, 109 S.Ct. at 895 (the plaintiff sought a refund of the tax paid under protest). The Secretary insists that this prerequisite for standing is simply a reflection of the general requirement that the plaintiff must show that he sustained an injury that was caused by the supposedly illegal conduct of the defendant. See Valley Forge, 454 U.S. at 472-73, 102 S.Ct. at 758-59; Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979). If we were to apply this implicit requirement to the instant case, there is no doubt that the appellants have failed to take those steps which the Secretary contends are necessary to ensure standing. For example, none of the appellants applied for a tax refund under N.C.Gen.Stat. § 105-266.1, or protested the payment of taxes as set forth in N.C.Gen.Stat. § 105-267. It should also be noted that the North Carolina Department of Justice expressly informed the North Carolina Civil Liberties Union Legal Foundation, the sponsor of this litigation, that the appellants would be entitled to the Exemption. See Joint Appendix at 15. The unavoidable conclusion is that the appellants must or should have known that they would have been entitled to a refund of all sales taxes that had been assessed and paid on sacred literature. Presumably, the Secretary also would have refused to refund any taxes paid on non-sacred texts, and the appellants then indisputably would have had standing to bring this suit. However, these events never occurred. While there is some justification for the Secretary's interpretation of Arkansas Writers’ Project and Texas Monthly, we decline to read such an implicit requirement into these decisions absent a clear statement by the Supreme Court to that effect. Realistically, if this court were to deny standing in this case, the appellants would simply protest the payment and collection of the State’s sales tax, and refile their suit. We do not believe that this additional requirement would improve the vigorousness or quality of the parties’ advocacy, would enhance the posture of this case, would clarify the legal issues presented for review, would strengthen the justiciability of the appellants’ claims, or would contribute in any way to our ability to decide a question presented and contested by parties having a demonstrated interest and stake in its resolution. Moreover, we conclude that the appellants did suffer actual injury in this case as a result of the discriminatory treatment dispensed by the Secretary-purchasers of “Holy Bibles” need not protest the State’s sales tax in order to claim the Exemption, while purchasers of other texts, both sacred and non-sacred, must protest the sales tax in order to claim the Exemption. Simply stated, an injury is created by the very fact that the Secretary imposes additional burdens on the appellants not placed on purchasers of “Holy Bibles.” Finally, we believe that it would be an untenable waste of judicial resources to deny the appellants standing in this case given the patent unconstitutionality of the Exemption. As noted above, standing is an amalgam of prudential as well as constitutional concerns, but none of the prudential concerns of standing doctrine compels the denial of standing in this case. The Secretary advances the additional argument that under no condition could the book purchasers have standing to challenge the Exemption because only the economic and not the legal incidence of the tax was upon them. In other words, the Secretary claims that the book purchasers were not legally obligated to pay or remit the sales tax to the State, and consequently, that they had no grounds upon which to challenge the Exemption. This argument is specious. The Act specifically states that “[i]t is the purpose and intent of this Article that the tax herein levied and imposed shall be added to the sales price of tangible personal property when sold at retail and thereby be borne and passed on to the customer, instead of being borne by the retailer.” N.C.Gen.Stat. § 105-164.7. This is a sufficient statement of legislative intent to infer that the purchaser bears the full brunt of the tax, including the implied legal obligation to tender payment of the tax at the time .of sale. It is quite true that under the statutory framework of the Act, the merchant collects the tax as the “trustee for and on account of the State.” However, the mere fact that a retailer has an independent legal obligation to collect and remit the sales tax does not in any way diminish a purchaser’s patent obligation to pay the tax in the first instance. Because the appellants do have standing to pursue their claims as non-exempt parties, this court need not address the issue of taxpayer standing. IV. Turning to the merits of this case, we conclude that the Exemption contravenes the establishment clause of the United States Constitution. In Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989), the Supreme Court held that a Texas sales and use tax exemption which applied to religious literature, but not to other types of literature, violated the establishment clause of the first amendment to the Constitution. We agree with the appellants that this case presents a more untenable violation of the establishment clause because the Exemption specifically applies to “Holy Bibles,” a religious text sacred only to members of Christian faiths. The Exemption also violates the free press clause of the Constitution. In Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987), the Supreme Court concluded that an Arkansas sales tax scheme, which exempted from taxation some but not all classes of magazines, violated the first amendment’s guarantee of freedom of the press because of its content-based discrimination. The Court noted that “even where, as here, there is no evidence of an improper censorial motive ... selective taxation of the press — either singling out the press as a whole or targeting individual members of the press — poses a particular danger of abuse by the State.” Id. at 228, 107 S.Ct. at 1727. The Court concluded that “the Arkansas sales tax cannot be characterized as nondiscriminatory, because it is not evenly applied to all magazines,” and that “the basis on which Arkansas differentiates between magazines is particularly repugnant to first amendment principles: a magazine’s tax status depends entirely on its content.” Id. at 229, 107 S.Ct. at 1727 (emphasis in original). In the instant case, the Exemption differentiates between a Christian sacred text and other publications, both sacred and non-sacred and Christian and non-Christian. This distinction forces the State to discriminate on the basis of the contents of a book, text or other published work, which is intolerable under the first amendment. The Secretary argues that, despite its plain wording, she has attempted to apply the Exemption in a constitutional manner by interpreting it so that any sacred scriptures of any religion can qualify for the exemption upon proper review and consideration. However, it is precisely this type of “official scrutiny of the content of publications as the basis for imposing a tax” that is so repugnant to the free press clause of the Constitution. Id. at 230, 107 S.Ct. at 1728 (citing Regan v. Time, Inc., 468 U.S. 641, 648, 104 S.Ct. 3262, 3266, 82 L.Ed.2d 487 (1984)). Thus, the Exemption is unconstitutional because it contravenes the establishment clause under the reasoning of Texas Monthly, and violates the free press clause under the rationale of Arkansas Writers’ Project. VI. Based on the foregoing discussion, we believe that the appellants have sufficient standing to maintain this action as non-exempt parties, and conclude that the Exemption must be invalidated as unconstitutional. Accordingly, we reverse the decision of the district court, and permanently enjoin the State’s enforcement of the Exemption. SO ORDERED. . Friedman, a Rabbi, bought a copy of Tanakh, the Jewish Bible. Gupta, a member of the Hindu faith, purchased a copy of Bhagavad Gita, a sacred Hindu text. Jacobs, a member of the Hare Krishna faith, procured a copy of The Upanishads, a compilation of Hindu spiritual treatises. Friedman, Gupta and Jacobs were also taxed on purchases of unspecified non-sacred books. . The amended complaint does not specify what types of books the Reverend Finlator and Newman acquired. . Doing business as Bell, Book & Coffee. . Doing business as Internationalist Books. . The tax was remitted to the Secretary pursuant to N.C.Gen.Stat. § 105-164.7, which provides that the tax “shall be paid by the purchaser to the retailer as trustee for and on account of the State and the retailer shall be liable for the collection thereof and for its payment to the Secretary and the retailer’s failure to charge to or collect said tax from the purchaser shall not affect such liability. It is the purpose and intent of this Article that the tax herein levied and imposed shall be added to the sales price of tangible personal property when sold at retail and thereby be borne and passed on to the customer, instead of being borne by the retailer.” The tax rate is five percent of the retail sales price. N.C.Gen.Stat. §§ 105-164.4, 105-467, 105-481 & 105-496. .The Exemption provides: "The sale at retail, the use, storage or consumption in this State of the following tangible personal property is specifically exempted from the tax imposed by the Article: * * * (14) Holy Bibles * * *. N.C.Gen. Stat. § 105-164.13(14). . The decision in Arkansas Writers' Project was followed by this court in Forest Hills Early Learning Ctr., Inc. v. Grace Baptist Church, 846 F.2d 260, 262 (4th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 837, 102 L.Ed.2d 969 (1989), a case in which this court recognized the standing of a non-exempt secular child care center to challenge the exemption of religiously affiliated child care centers from Virginia’s licensing requirements. . This provision states, in relevant part: “Any taxpayer may apply to the Secretary of Revenue for refund of tax or additional tax paid by him.... The Secretary shall grant a hearing thereon, and if upon such hearing he shall determine that the tax is excessive or incorrect, he shall resettle the same according to the law and the facts, and adjust the computation of tax accordingly.” .This provision states, in relevant part: "Whenever a person shall have a valid defense to the enforcement of the collection of a tax assessed or charged against him or his property, such person shall pay such tax to the proper officer, and such payment shall be without prejudice to any defense of rights he may have in the premises. At any time within 30 days after payment, the taxpayer may demand a refund of the tax paid in writing from the Secretary of Revenue and if the same shall not be refunded within 90 days thereafter, may sue the Secretary of Revenue in the courts of the State for the amount so demanded.... If upon the trial it shall be determined that such a tax or any part thereof was levied or assessed for an illegal or unauthorized purpose, or was for any reason invalid or excessive, judgment shall be rendered therefor....” . Justices Brennan, Marshall and Stevens expressed their view that Texas’ sales tax exemption for religious publications violated the establishment clause, that the exemption was not compelled by the free exercise clause, and that the Court need not determine whether the exemption contravened the free press clause as well. Justices Blackmun and O’Connor agreed that the exemption violated the establishment clause, but believed that it was unnecessary to decide whether the exemption was required by the free exercise clause. Justice White concurred in the judgment, opining that the exemption, because of its content-based discrimination, violated the free press clause. Justice Sca-lia, joined by Chief Justice Rehnquist and Justice Kennedy, dissented, expressing the opinion that the exemption violated neither the establishment clause nor the free press clause, and that the court’s decision effectively overruled prior Supreme Court cases based on an accommodation of religion. The tax exemption at issue in Texas Monthly applied to: "Periodicals that are published or distributed by a religious faith and that consist wholly of writings promulgating the teaching of the faith and books that consist wholly of writings sacred to a religious faith." Tex.Tax Code Ann. § 151.312 (1982). . The magazine exemption covered “religious, professional, trade and sports journals and/or publications printed and published within this State ... when sold through regular subscriptions.” Ark.Stat.Ann. § 84-1904Q (1980) (since recodified as amended at Ark.Stat.Ann. § 26-52-401(14) (1987)). . It appears from the record in this case that the Secretary will not extend the Exemption to other sacred literature “without first reviewing said publication." See Joint Appendix at 16. 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. Guy T. HELVERING, as Commissioner of Internal Revenue, Petitioner, v. Simon HARRIS, Respondent. No. 7274. Circuit Court of Appeals, Ninth Circuit. June 15, 1934. PER CURIAM. On the authority of Helvering, Commissioner v. Ackerman (C. C. A.) 71 F.(2d) 586, this day decided, the order appealed from is affirmed. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_appel2_4_2	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant. Henry Z. SPELL, Appellee, v. Charles D. McDANIEL, Individually and as Patrolman, City of Fayetteville Police Department, and John P. Smith, City Manager, City of Fayetteville, Defendants, and William P. Dalton, Command Sergeant, City of Fayetteville Police Department; Roger T. Holman, Command Sergeant, City of Fayetteville Police Department; William C. Johnson, Director of Internal Affairs Division, City of Fayetteville Police Department; Daniel K. Dixon, Chief, City of Fayetteville Police Department; and the City of Fayetteville, N.C., a municipal corporation organized under and pursuant to the laws of the State of N.C., Appellants (Three Cases). Henry Z. SPELL, Appellee, v. Charles D. McDANIEL, Individually and as Patrolman, City of Fayetteville Police Department, Appellant, and William P. Dalton, Command Sergeant, City of Fayetteville Police Department; Roger T. Holman, Command Sergeant, City of Fayetteville Police Department; William C. Johnson, Director of Internal Affairs Division, City of Fayetteville Police Department; Daniel K. Dixon, Chief, City of Fayetteville Police Department; John P. Smith, City Manager, City of Fayetteville and the City of Fayetteville, N.C., a municipal corporation organized under and pursuant to the laws of the State of N.C., Defendants. Henry Z. SPELL, Appellee, v. Charles D. McDANIEL, Individually, Appellant, and Charles D. McDaniel, Patrolman, City of Fayetteville Police Department; William P. Dalton, Command Sergeant, City of Fayetteville Police Department; Roger T. Holman, Command Sergeant, City of Fayetteville Police Department; William C. Johnson, Director of Internal Affairs Division, City of Fayetteville Police Department; Daniel K. Dixon, Chief, City of Fayetteville Police Department; John P. Smith, City Manager, City of Fayetteville and the City of Fayetteville, N.C., a municipal corporation organized under and pursuant to the laws of the State of N.C., Defendants. Nos. 85-1524, 85-1523, 85-1691, 85-1714 and 85-1757. United States Court of Appeals, Fourth Circuit. Argued June 4, 1986. Decided July 24, 1987. John N. Fountain and Gary S. Parsons (Gary K. Joyner, Raleigh, N.C., Carolin D. Bakewell, Richmond, Va., Bailey, Dixon, Wooten, McDonald, Fountain & Walker, Raleigh, N.C., Bobby G. Deaver; Brown, Fox & Deaver, Fayetteville, N.C., George Colvin Cochran, Law Center, University of Mississippi, on brief), for appellants. Alfred S. Bryant (Bruce M. Marshall; Carter H. Tucker; Obenshain, Hinnant, El-lyson, Runkle & Bryant, Richmond, Va., on brief) and H. Gerald Beaver (William Richardson; Beaver, Thompson, Holt & Richardson, P.A., Fayetteville, N.C., on brief), for appellee. Before PHILLIPS, CHAPMAN and WILKINSON, Circuit Judges. JAMES DICKSON PHILLIPS, Circuit Judge: This is a 42 U.S.C. § 1983 action in which after two trials Henry Spell was awarded substantial damages against the City of Fayetteville, North Carolina (the City), and Charles McDaniel, a City police officer, as a result of physical injury inflicted on Spell by McDaniel while Spell was in McDaniel’s custody following Spell’s arrest. McDaniel and the City have appealed, assigning various trial rulings as error and challenging as unreasonable the amount of attorney fees awarded to Spell as prevailing party. We find no reversible error in the trials and therefore affirm the judgment on the merits against McDaniel and the City. Except for its inclusion of a “contingency multiplier,” we also affirm the district court’s award of attorney fees. I Spell, admittedly inebriated on alcohol and quaaludes, was stopped by Officer McDaniel while driving an automobile in the City of Fayetteville. After talking with Spell and finding a quantity of quaaludes in his automobile, McDaniel arrested him along with a passenger in Spell’s automobile, handcuffed the two of them and took them in a patrol car to the police station. There Spell was subjected to various sobriety tests, including a breathalyzer test, and was formally charged with driving while impaired and with the possession of quaa-ludes. Just after Spell completed the breathalyzer test and was returned, still handcuffed and inebriated, to McDaniel's direct custody, McDaniel, possibly angered by Spell’s failure to respond to his questioning, and in any event without any physical provocation, brutally assaulted Spell. When Spell warded off a blow toward his head by raising his arms, McDaniel seized his handcuffed arms, pulled them down and violently kneed Spell in the groin. The blow to Spell’s groin ruptured one of his testicles, necessitating its surgical removal. This resulted in irreversible sterility and of course in considerable associated pain and suffering. Spell then brought this § 1983 action naming as defendants McDaniel, the City of Fayetteville, the City Manager, the City Chief of Police, the Director of the police department’s Internal Affairs Division and two police department command sergeants. He structured the action as one against McDaniel in his individual and official capacities; against the City Manager, Smith, the Police Chief, Dixon, the Internal Affairs Division Director, Johnson, and the two command sergeants, Dalton and Holman, in their several official capacities; and against the City as a suable municipal corporation. His pleaded theory of recovery against McDaniel individually was that McDaniel, acting under color of state law, had deprived him of rights secured by the fourth, fifth and fourteenth amendments by using excessive physical force against him in a custodial situation, thereby inflicting serious personal injuries. For this conduct he sought recovery of money damages against McDaniel in his individual capacity. His pleaded theory of recovery against the City of Fayetteville was that the City was liable for damages under the doctrine of Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for the constitutional deprivation with consequent physical injuries directly inflicted by its employee McDaniel, because McDaniel’s conduct was pursuant to a municipal “policy or custom.’’ Id. at 694, 98 S.Ct. at 2037. McDaniel denied inflicting any injury on Spell as a defense to the individual-capacity claim against him. The City also denied (for lack of sufficient knowledge or information) that McDaniel had inflicted injury on Spell, and alternatively denied that there was any basis for imposing municipal liability upon it under Monell. The case then went to trial before a jury on the issues whether, as a matter of fact, McDaniel had assaulted Spell and was therefore liable individually, and if so, whether there existed a basis in law and fact for also imposing joint liability upon the City for the resulting constitutional deprivation. After an 18-day trial, the jury returned verdicts finding McDaniel, in his individual capacity, and the City in its municipal capacity, jointly and severally liable. It awarded $1,000 in compensatory damages, and declined to award the punitive damages sought against McDaniel. Spell then moved to set aside the $1,000 compensatory award as inadequate and for a new trial on the compensatory damages issue alone. The district court granted this motion, denying, inter alia, the defendants’ counter-motion for new trial on all the issues if the verdict was to be set aside for inadequacy of the damage award. On the re-trial of the damages issue, the jury returned a verdict for $900,000 compensatory damages. After denying defendants’ renewed post-verdict motions for judgment n.o.v. or, alternatively, a new trial, the district court awarded Spell attorney fees and costs totalling $335,942.57. 616 F.Supp. 1069. Joint and several judgments against McDaniel and the City were then entered on the damage and fee awards. This appeal followed. Before us, the defendants join in contending that the district court erred in ordering a new trial on damages alone after setting aside as inadequate the first jury verdict; in making various evidentiary rulings; and in awarding unreasonably excessive attorney fees to Spell as prevailing party under 42 U.S.C. § 1988. The City alone contends that the evidence did not warrant submission of the municipal liability issue to the jury and, in the alternative, that the court’s jury instructions on that issue were prejudicially erroneous. Because they are the most serious and difficult, we consider first the municipal liability issues, then the others in order. II The City’s challenge to the submission of the municipal liability issue and the jury instructions upon it are interrelated. Both essentially question the district court’s understanding, hence application, of the law of municipal liability under § 1983, as it relates to incidents of police brutality such as that charged here. We therefore begin by discussing that body of law as it applies to this case. A The Basic Principle Municipalities are not liable under respondeat superior principles for all constitutional violations of their employees simply because of the employment relationship. Monell, 436 U.S. at 692-94, 98 S.Ct. at 2036-37. Instead, municipal liability results only “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Id. at 694, 98 S.Ct. at 2037-38. Municipal “Policy” and “Policymaking” While municipal “policy” is found most obviously in municipal ordinances, regulations and the like which directly command or authorize constitutional violations, see, e.g., Monell, id., at 661, 694, 98 S.Ct. at 2020, 2037 (official pregnancy leave policy) it may also be found in formal or informal ad hoc “policy” choices or decisions of municipal officials authorized to make and implement municipal policy, see Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 1301, 89 L.Ed.2d 452 (1986) (single “policy” decision by county prosecutor). “Policy” in this context implies most obviously and narrowly a “course of action consciously chosen from among various alternatives” respecting basic governmental functions, as opposed to episodic exercises of discretion in the operational details of government. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985); see also Pembaur, 106 S.Ct. at 1299 & n. 9. Correspondingly, “policymaking authority” implies authority to set and implement general goals and programs of municipal government, as opposed to discretionary authority in purely operational aspects of government. See Pembaur, 106 S.Ct. at 1299-1300 & n. 12; Bennett v. Slidell, 728 F.2d 762, 769 (5th Cir.1984) (en banc) (“policymaking authority is more than discretion... more than the final say-so, as a matter of practice, on what water main will be replaced today”). While “finality” is a necessary attribute of “policymaking authority,” the possession of “final authority” does not alone constitute a municipal official a “policymaker.” The most critical factor is not the practical finality of an official’s “acts and edicts,” but their “policy” nature. See Pembaur, 106 S.Ct. at 1299-1300 (responsibility for establishing policy the key); Bennett, 728 F.2d at 769 (“policymakers... decide the goals for a particular city function and devise the means for achieving those goals”). On the other hand, a municipal agency or official may have final authority to make and implement policy despite a municipality’s retention of powers of ultimate control over both policy and policymaker. The question is one of authority-in-fact. A municipal governing body may not avoid attribution of policy to itself simply by officially retaining unexer-cised ultimate authority to countermand a policy or to discipline or discharge the policymaker. See Bowen v. Watkins, 669 F.2d 979, 989-90 (5th Cir.1982); see also Bennett, 728 F.2d at 769 (policymaking authority exists despite retention by governing body of “prerogative of the purse and final legal control [to] limit or revoke the authority”). Municipal “Custom” and its Creation “Official policy” in the relatively narrow sense of discrete, consciously chosen courses of action by “policymakers” is not the only basis for imposing municipal liability. “Custom, or usage,” in the exact language of § 1983, may also serve. Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36. And the existence of such a “custom or usage” may be found in “persistent and widespread... practices of [municipal] officials [which] [although not authorized by written law, [are] so permanent and well-settled as to [have] the force of law.” Id. at 691, 98 S.Ct. at 2036 (citing and quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 1613-14, 26 L.Ed.2d 142 (1970)). Attribution and Causation as Essentials of Municipal Fault Because municipal liability results only when the municipality itself can be directly charged with fault for a constitutional violation, it results only when policy or custom as above defined is (1) fairly attributable to the municipality as its “own,” Monell, 436 U.S. at 683, 98 S.Ct. at 2032, and is (2) the “moving force” behind the particular constitutional violation. Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981). Attribution of “Policy” Policy, in the narrow sense of discrete, consciously adopted courses of governmental action may be fairly attributed to a municipality either because (1) it is directly “made by its lawmakers,” i.e., its governing body, Monell, 436 U.S. at 694, 98 S.Ct. at 2037, or (2) it is made by a municipal agency, see, e.g., id. at 661 & n. 2, 98 S.Ct. at 2020 & n. 2 (policy of city board of education and department of social services) or official, see Pembaur, 106 S.Ct. at 1300-01 (policy decision of county prosecutor), having final authority to establish and implement the relevant policy. A municipal agency or official may have final policy-making authority by direct delegation from the municipal lawmaking body, see, e.g., Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir.1983) (delegation of law enforcement policymaking authority to police chief assumed) or by conferral from higher authority, see, e.g., Pembaur, 106 S.Ct. at 1301 (county prosecutor’s authority to act for county conferred by state law). Delegation may be express, as by a formal job-description, see Bennett, 728 F.2d at 769, or implied from a continued course of knowing acquiescence by the governing body in the exercise of policymaking authority by an agency or official, see id. (delegation “by conduct or practice [which] encourage[s] or acknowledge^] the agent in a policymaking role”). Attribution of “Custom” “Custom and usage,” in the sense of “persistent and widespread... practices” by municipal agents and employees, may be attributed to a municipality when the duration and frequency of the practices warrants a finding of either actual or constructive knowledge by the municipal governing body that the practices have become customary among its employees. See id. at 768. Actual knowledge may be evidenced by recorded reports to or discussions by a municipal governing body. Constructive knowledge may be evidenced by the fact that the practices have been so widespread or flagrant that in the proper exercise of its official responsibilities the governing body should have known of them. See id. Similarly, where a municipal policymaker has actual or constructive knowledge of such a course of customary practices among employees subject to the policymaker’s delegated responsibility for oversight and supervision, the “custom or usage” may fairly be attributed to the municipality as its own. See id at 769 (“custom” may be attributed to municipality through policymaker who has acceded to it). Causation When a municipal “policy or custom” is itself unconstitutional, i.e., when it directly commands or authorizes constitutional violations, see, e.g., Monell, 436 U.S. at 661, 694-95, 98 S.Ct. at 2020, 2037-38 (pregnancy leave policy), the causal connection between policy and violation is manifest and does not require independent proof. See Tuttle, 471 U.S. at 822, 105 S.Ct. at 2435 (“no evidence... needed [in such a case] other than a statement of the policy”). But a policy or custom that is not itself unconstitutional in this strict sense must be independently proven to have caused the violation. Proof merely that such a policy or custom was “likely” to cause a particular violation is not sufficient; there must be proven at least an “affirmative link” between policy or custom and violation; in tort principle terms, the causal connection must be “proximate,” not merely “but-for” causation-in-fact. Id. at 823, 105 S.Ct. at 2436; id. at 833 n. 9, 105 S. Ct. at 2441 n. 9 (Brennan, J., dissenting); see also Wellington, 717 F.2d at 936 (policy must be shown to have given at least “tacit authorization" to unconstitutional employee conduct). Neither the existence of such a policy or custom nor the necessary causal connection can be established by proof alone of the single violation charged. Tuttle, 471 U.S. at 823, 824, 105 S.Ct. at 2436, 2437; Wellington, 717 F.2d at 937. The Principles as Applied to Constitutional Violations by Police Application of these general principles to claims of municipal liability for specific incidents of unconstitutional conduct by law enforcement officials has raised special conceptual problems for the courts. This undoubtedly reflects conflicting, fundamental policy concerns about the exposure of municipalities to monetary liability for this most fundamental of “constitutional torts” at the local government level. On one hand, there is concern that actual municipal culpability in these matters should not be masked and final responsibility avoided by overly rigid interpretations and applications of the concepts of policy or custom, policymaking authority, and causation. See, e.g., Tuttle, 471 U.S. at 833 n. 8, 105 S.Ct. at 2441 n. 8 (Brennan, J., concurring) (rejecting “metaphysical distinction between policies that are themselves unconstitutional and those that cause constitutional violations”). On the other hand, there is concern that a back-door vicarious liability principle should not be developed by overly tolerant interpretations and applications of those same key concepts. See, e.g., id. at 821, 105 S.Ct. at 2435 (plurality opinion) (overly tolerant concepts of policy and causation would impose municipal liability “simply because the municipality hired one ‘bad apple’ ”). Municipal policymakers, including governing bodies, may of course in theory directly authorize unconstitutional police conduct just as any other form. In practice, however, such authorizations — “policies unconstitutional in themselves” — are understandably rare, or at least rarely surface in litigation in this realm. “Official” statements of law enforcement policy almost inevitably will specifically condemn rather than condone uses of excessive force or other unconstitutional conduct by police. And where there is no official statement respecting specific police conduct, it will be difficult if not impossible to imply an official municipal policy directly authorizing conduct at odds with federal and state constitutions and laws. Cf. Pembaur, 106 S.Ct. at 1301 (White, J., concurring) (“Local law enforcement officers are expected to obey the law_”). Typically, therefore, claims of municipal liability for specific constitutional violations by police have had to seek municipal fault in other sources than direct authorizations by policymakers and the necessary causation between fault and violation in more attenuated connections than direct commands. Two basic theories have emerged for imposing municipal liability in the more typical situation where fault and causation cannot be laid to a municipal policy “itself unconstitutional.” The principal theory locates fault in deficient programs of police training and supervision which are claimed to have resulted in constitutional violations by untrained or mis-trained police officers. A second theory, sometimes imprecisely subsumed within the first, locates fault in irresponsible failure by municipal policymakers to put a stop to or correct a widespread pattern of unconstitutional conduct by police officers of which the specific violation is simply an example. Although we have implicitly recognized the general viability of these theories in the course of rejecting particular claims of municipal liability, we have not been required earlier to elaborate their full details; nor has the Supreme Court yet done so. This case requires that we now do so, guided primarily by those Supreme Court decisions that have most directly suggested the theories’ bounds. At the outset, we accept that in appropriate circumstances either or both of these theories may appropriately be invoked to impose municipal liability under the basic Monell principles above summarized. But we also accept that the most relevant Supreme Court decisions now require that each of the theories be carefully controlled at critical points to avoid imposing by indirection a form of vicarious municipal liability flatly rejected by Monell. Those critical points are (1) identifying the specific “policy” or “custom”; (2) fairly attributing the policy and fault for its creation to the municipality; and (3) finding the necessary “affirmative link” between identified policy or custom and specific violation. See Tuttle, 471 U.S. at 822-24, 105 S.Ct. at 2435-37 (plurality opinion); id. at 827-33, 105 S.Ct. at 2438-41 (Brennan, J., concurring); see also, Kibbe, — U.S. at -, 107 S.Ct. at 1120-22 (O’Connor, J., dissenting from dismissal of writ). On this basis, we conclude as follows respecting the two theories. Deficient training as culpable municipal “policy” The way in which a municipal police force is trained, including the design and implementation of training programs and the follow-up supervision of trainees, is necessarily a matter of “policy” within the meaning of Monell. To the extent a particular training policy is fairly attributable to a municipality, it is “official municipal policy.” To the extent such an official municipal policy has deficiencies resulting from municipal fault that then cause specific constitutional violations by deficiently trained police officers, the municipality is liable under 42 U.S.C. § 1983. Such a training policy is fairly attributed to a municipality when it is designed, implemented, and its trainees supervised by municipal officials to whom the municipal governing body has effectively delegated final authority so to act. Delegation to such policymakers may be by formal directive, such as a job description, or by informal acquiescence in a known, continued exercise of authority, or by both in combination. Policymaking authority with respect to police training, as generally, is final if it is effectively final; the mere fact that the governing body or some other official retains ultimate but unexercised authority over both police training policy and policymakers does not allow a municipality to disclaim the policy as its own. Only those deficiencies in police training policies that result from policymaker fault of at least the degree of deliberate indifference to or reckless disregard for the constitutional rights of persons within police force jurisdiction can give rise to municipal liability; mere negligence on the part of policymakers is not sufficient. Subject to this fault requirement, training policy deficiencies for which municipal liability may be imposed include not only express authorizations of specific unconstitutional conduct, but tacit authorizations, and failures adequately to prohibit or discourage readily foreseeable conduct in light of known exigencies of police duty. Finally, a sufficiently close causal link must be shown between potentially inculpating training deficiency or deficiencies and specific violation. This requires first that a specific deficiency rather than general laxness or ineffectiveness in training be shown. It then requires that the deficiency or deficiencies be such, given the manifest exigencies of police work, as to make occurrence of the specific violation a reasonable probability rather than a mere possibility. In common parlance, the specific deficiency or deficiencies must be such as to make the specific violation “almost bound to happen, sooner or later,” rather than merely “likely to happen in the long run.” See Patzner, 779 F.2d at 1367 (training so deficient that “police misconduct inevitably occurs”). Unconstitutional police practices as municipal “custom or usage” by condonation Without having been directly authorized, or tacitly encouraged, or inadequately trained in specific ways by responsible municipal policymakers, police officers, like other public employees, may fall into patterns of unconstitutional conduct in their encounters with suspects, arrestees, persons in custody and others involved in law enforcement situations. This may result from a variety of factors not sufficiently traceable in origin to any fault of municipal policymakers to warrant treating the conduct as a reflection of “municipal policy” in the Monell sense. If these unconstitutional practices become sufficiently widespread, however, they may assume the quality of “custom or usage” which, per § 1983, has the force of state “law” for purposes of invoking the remedies provided by § 1983. Adickes, 398 U.S. at 167-68, 90 S.Ct. at 1613-14. Such a developed “custom or usage” may then become the basis of municipal liability, but only if its continued existence can be laid to the fault of municipal policymakers, and a sufficient causal connection between the “municipal custom and usage” and the specific violation can then be established. Municipal fault for allowing such a developed “custom or usage” to continue requires (1) actual or constructive knowledge of its existence by responsible policymakers, and (2) their failure, as a matter of specific intent or deliberate indifference, thereafter to correct or stop the practices. Constructive knowledge may be inferred from the widespread extent of the practices, general knowledge of their existence, manifest opportunities and official duty of responsible policymakers to be informed, or combinations of these. The inculpating knowledge, whether actual or constructive, may be either that of the municipal governing body itself, or of municipal officials having final policymaking authority in municipal law enforcement matters. A sufficiently close causal link between such a known but uncorrected custom or usage and a specific violation is established if occurrence of the specific violation was made reasonably probable by permitted continuation of the custom. Again, as in the case of deficient training policy, failure to correct the known practices must be such as to make the specific violation “almost bound to happen, sooner or later,” rather than merely “likely to happen in the long run.” Deficient training “policy” and condoned “custom and usage” as alternative theories for establishing municipal liability Because the “deficient training policy” and “condoned custom” theories are simply alternative ways of establishing municipal fault, hence potential Monell liability, for specific constitutional violations by police officers, they may be asserted as alternative theories in particular litigation. Fed.R.Civ.P. 8(e)(2). If sufficiently supported by proof, they may then be submitted to a jury as alternative bases for liability, and noncumulative liability may be found on the basis of either or both. This simply reflects the fact that in particular cases the question whether the “moving force” behind a specific violation was a policy that originated with municipal policymakers, or a custom that policymakers did not originate but effectively condoned, or both, may be determinable only by litigation. The most critical substantive difference between the two theories is that municipal fault may be ascribed for the first specific violation that results from proven policy, Tuttle, 471 U.S. at 822, 105 S.Ct. at 2435; Pembaur, 106 S.Ct. at 1297 n. 6, while fault for a violation resulting from condoned custom can only be ascribed when a pattern of comparable practices has become actually or constructively known to responsible policymakers, Wellington, 717 F.2d at 936 (“knowledge [may] be imputed to the supervisory personnel” only on basis of “history of widespread abuse”). Closely related is the principle that just as proof of a single violation will not support the inference that the violation resulted from a municipal “policy” of deficient training, see Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791, so it obviously cannot support an inference that the violation resulted from a municipally condoned custom of comparable practices, see Wellington, 717 F.2d at 936. B As above outlined, the substantive requirements for establishing municipal liability for police misconduct are stringent indeed. The critical Supreme Court decisions have imposed this stringency in a deliberate effort to avoid the indirect or inadvertent imposition of forms of vicarious liability rejected in Monell. The City here contends that the evidence was insufficient to meet those stern substantive requirements, and that the district court therefore erred in denying its motions for directed verdict and judgment n.o.v. We disagree. We conclude instead that the evidence was sufficient to support the jury verdict imposing municipal liability on either deficient training policy or condoned custom or usage theories. A good framework for assessing the sufficiency of the evidence is the claimant’s core allegations of municipal liability, for his proof followed his allegations with considerable faithfulness and in great factual detail. Specifically, Spell pleaded that at the time of McDaniel’s assault upon him the various city officials named as defendants, “jointly and severally,” had the legal “duty... for [sic] establishing, enforcing, directing, supervising and controlling policies, customs, practices, usages, and procedures to be used by police officials” of the City, so that their “edicts and/or acts” might “fairly be said to represent the official policy” of the City; that acting within that “duty” these named officials had by various acts of omission and commission “foster[ed] and encourage[d] an atmosphere of lawlessness, anarchy, repression and a repetitive policy, custom and practice of aggressive, abusive, and assaultive behavior and procedures toward individual detainees and arrestees which [on the date of McDaniel’s assault on Spell] represented the policy, practice, custom, usage and procedure” of the City, and that McDaniel’s assault upon Spell was “in furtherance of... the practice, custom and procedure” of the City. In greater detail, the complaint alleged, inter alia, that these defendant officials, with knowledge of repeated allegations of abusive and assaultive behavior toward... detainees and arrestees by [City] police officers... repeatedly... fail[ed] to enforce established procedures to insure the safety of individual arres-tees and detainees;... established] and enforce[d] quota systems for arrests and citations...;... fail[ed] to discipline... police officers... who had been found to have committed abusive and assaultive behavior toward... detainees and arrestees; fail[ed] and refuse[d] to competently investigate allegations of abuse and assault... by... police officers...; reprimanded]... intimidate[d], demote[d], and fire[d] police officers and officials who reported acts of abuse of authority by other[s]...; covered] up acts of misconduct and abuse of authority by individual police officers and officials;... rewarded] and commend[ed]... police officers who displayed aggressive, abusive and assaultive behavior towards... detainees and arrestees; repeatedly... fail[ed] to adequately train and educate police officers in the use of reasonable force and proper use of authority; repeatedly fail[ed] to adequately supervise the actions of police officers and officials under their control and supervision. As indicated, plaintiff’s evidence substantially tracked these essential allegations. Though that evidence was of course disputed in many details by the defendants’ countering evidence, much of it was undisputed and that which was disputed was not made manifestly incredible or implausible by anything in the record. Under the settled standard for assessing the sufficiency of evidence to survive a motion for directed verdict or judgment n.o.v., see, e.g., Lovelace v. Sherwin-Williams, 681 F.2d 230 (4th Cir.1982), plaintiff’s evidence clearly sufficed to establish the essential elements of both theories of municipal liability above summarized. Assuming the credibility of the most critical oral testimony adduced by plaintiff and assessing the total evidence in its most favorable light, there emerged a picture of a police department whose members were either positively encouraged by training and deliberate cover-up to engage in uses of excessive force of the very type charged to McDaniel; or were tacitly encouraged to continue self-developed practices of this type by the deliberate failure of responsible municipal officials to exercise discipline or corrective supervision to halt the widespread, known practices; or were encouraged or authorized by both in combination. To establish the existence of such a municipal policy or custom as the effective cause of Spell’s injury, plaintiff relied principally upon the testimony of seven lay citizens of the City, eight present or former officers of the City police department, an assistant state district attorney, the former legal advisor to the police department and upon internal records of the City police department. This evidence was essentially concentrated upon a time period of three years preceding McDaniel’s assault on Spell. The lay witnesses testified to a number of observed or directly experienced acts of brutality by city police officers of the type charged to McDaniel. They further testified that in each instance they filed complaints with the police department which resulted in no corrective or punitive action. Even more critical was the testimony of former and still serving members of the police department. Officer Livingston testified to various incidents involving excessive uses of force by City police officers which were not punished because of an effective “code of silence” within the department; that City police officers were specifically trained in the technique of kneeing or grabbing testicles in order to subdue arrestees or persons in custody; that he had been concerned about the prevalence of physical violence within the department and had never heard of anyone being disciplined for such violence. Officer Luskis testified to an observed pattern and specific incidents of brutality and excessive uses of force by members of the department; that he had seen new officers being trained in the technique of kneeing persons in the groin and that McDaniel’s kneeing of Spell was consistent with the training that he had received in the department; that there was little reason to report observed acts of brutality because his supervisor had told him that there was nothing that could be done about it. Former officer Gardner testified that uses of excessive, unwarranted force were condoned by her supervisors, and that when she complained she was forbidden by her superior to interrupt or complain again about such incidents. Officer Pirro, a twenty-five year veteran of the department, testified that defendant Dixon’s philosophy as chief of police was to “kick ass and take names”; that Dixon wanted “supercops” tougher than the soldiers at nearby Ft. Bragg; and that to further this goal, Dixon set up his own police academy to screen out women and nonaggressive male candidates. Officer Fischer testified that Chief Dixon and defendant Holman attempted to project “tough guy” images in their training of recruits; that in his opinion they condoned the use of excessive force on arrestees; and he corroborated Officer Livingston’s testimony that there was an effective “code of silence” within the department which covered up such incidents. Former Officer Matthews identified two former police officers rehired by Chief Dixon who Dixon knew to be overly aggressive, characterizing one as “one of the most brutal men I have ever seen.” Douglas Canders, the former legal advis- or to the police department, testified that disciplinary procedures within the department had broken down to the point of being disregarded, in many instances by direction of Chief Dixon; that Chief Dixon advocated the use of excessive force by police officers in dealing with arrestees, and believed that corrective action should not be taken to punish or prevent its continuation; that he, Canders, left the department because of Chief Dixon’s attitude favoring the use of excessive force in police encounters. James Ammons testified that while serving as an assistant state district Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant? A. legislative B. executive/administrative C. bureaucracy providing services D. bureaucracy in charge of regulation E. bureaucracy in charge of general administration F. judicial G. other Answer:
songer_counsel1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Ray Jackie MILLER, Appellant, v. Donald BORDENKIRCHER, Warden, West Virginia State Penitentiary and Attorney General of West Virginia, Ap-pellees. No. 84-6077. United States Court of Appeals, Fourth Circuit. Argued Feb. 8, 1985. Decided June 17, 1985. Wendel B. Turner, Third Year Law Student, College of Law, West Virginia University, Daniel K. Poling, Third Year Law Student, College of Law, West Virginia University (James A. McLaughlin, Charleston, W.Va., on brief), for appellant. Silas B. Taylor, Asst. Atty. Gen., Charleston, W.Va. (Chauncey H. Browning, Atty. Gen., John Ernest Shank, Asst. Atty. Gen., Charleston, W.Va., on brief), for ap-pellees. Before PHILLIPS and WILKINSON, Circuit Judges, and WILLIAMS, United States District Judge for the Eastern District of Virginia, sitting by designation. WILKINSON, Circuit Judge: Petitioner Ray Jackie Miller, a state prisoner serving a sentence of life imprisonment in the West Virginia Penitentiary at Moundsville, seeks a writ of habeas corpus from the federal courts for the third time, pursuant to 28 U.S.C. § 2254 (1982). The district court denied the petition, finding that Miller’s claims either had been previously raised or constituted an abuse of the writ. Petitioner appeals. We affirm, holding that Habeas Corpus Rule 9(b) was properly invoked to deny the petition. I Miller pled guilty to the first degree murder of a West Virginia state policeman, Hugh D. Swartz, on March 23, 1971. He was sentenced to life imprisonment with mercy. Before entering his plea, Miller underwent a psychiatric evaluation at Spencer State Hospital. He was diagnosed as having an antisocial personality, but determined not to be mentally ill. No hearing took place on Miller’s competency to enter a plea, but before accepting the plea, the state court questioned Miller personally to ensure that the plea was voluntary and that Miller understood his rights. Since his imprisonment commenced, Miller has filed three federal habeas petitions. The first two were dismissed, and the third is presently before us on appeal from dismissal. Each petition has challenged, in some form, the voluntariness of Miller’s plea, the effectiveness of his appointed counsel, or both. As the claims advanced in the prior petitions are crucial to a determination of whether Rule 9(b) bars the claims now asserted, we consider each petition in turn. Miller filed his first pro se habeas petition in the Northern District of West Virginia on February 18, 1972 (the 1972 petition). In this petition, and an attached 1971 state habeas petition, Miller alleged several constitutional violations, including: denial of the right to counsel when he made incriminating statements during the psychiatric examination; violation of the privilege against self-incrimination because statements elicited by “use or influence of drugs” were used to coerce his guilty plea; and failure of counsel to consult with him, take any other steps on his behalf, or “even prepare a defense.” Following a plenary hearing, at which Miller was represented by appointed counsel, the district court dismissed the petition on January 8, 1973, ruling that Miller had “failed to carry the burden of proof or to establish any constitutional deprivation on the grounds presented.” The Fourth Circuit, on May 9, 1973, affirmed the dismissal. In holding the appeal without merit, the court specifically noted that Miller had claimed both involuntariness of his plea and ineffective assistance of counsel. Miller returned to the federal courts on July 8, 1975, when he filed his second pro se petition in the Northern District of West Virginia (the 1975 petition). In this petition, Miller once again challenged the vol-untariness of his guilty plea, contending that there was no evidentiary basis for his first degree murder conviction and that the state court had failed to inform him of the nature of the offense and the prosecution’s obligation to present evidence. The district court dismissed this petition on October 28, 1977, without a hearing. Examining each of Miller’s claims in detail, the court found that the state judge, before accepting Miller’s plea, had “ascertained that he understood the nature of the charge against him, the pleading alternatives, the maximum sentence he could receive and that no threats or promises had been made to induce his plea.” Based upon the transcript of the state plea hearing, the district court concluded that the plea had been voluntary and intelligent. Notwithstanding his two prior failures, Miller filed a third pro se habeas petition on June 3, 1981, this time in the Southern District of West Virginia. His latest claims, as analyzed by the district court, may be thus summarized: 1) Petitioner was denied effective assistance of counsel because his court-appointed attorneys: a) failed to conduct any factual investigation; b) failed to prepare any defense; and c) knew that he was incompetent to plead guilty because he was under the influence of the drug “Thorazine” at the time. 2) Petitioner was denied his right against self-incrimination because he had not been warned by the court that he did not have to be a witness against himself. 3) Petitioner’s guilty plea was involuntary because he was heavily drugged with “Thorazine” at the time he entered his plea. The district court, in an October 27, 1981 order, dismissed grounds 1(a) and 1(b), relating to ineffective assistance of counsel, and ground 2, relating to voluntariness of the plea, as successive because they had been raised and decided on the merits in the prior 1972 and 1975 petitions. Petitioner was permitted to explain by affidavit why his failure to assert grounds 1(c) and 3 in prior petitions should not constitute an abuse of the writ. Miller asserted that he had not deliberately withheld or abandoned those grounds, was unaware of the claims, and was illiterate, retarded and dependent upon inmate writ-writers who were not lawyers to prepare his petitions. The district court then referred the remaining ineffective assistance claim, 1(c), and the drug related involuntariness claim, 3, to a magistrate. After consideration of petitioner’s affidavit, the magistrate found the petition to be an abuse of the writ, ruling Miller’s ignorance an insufficient reason not to dismiss. “The facts supporting the grounds he now alleges were known to him at the time of the trial and at the time of the filing of his prior petitions,” the magistrate found, and the ends of justice would not be served by yet another determination on voluntariness of the plea or ineffective assistance of counsel. On August 25,1983, the district court approved the magistrate’s recommendation and ordered final denial of the petition. II This case is governed by Habeas Corpus Rule 9(b), 28 U.S.C. foil. § 2254 (1982), which deals with successive habeas petitions. Rule 9(b) provides: A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ. Rule 9 is “intended to minimize abuse of the writ of habeas corpus by limiting the right to assert stale claims and to file multiple petitions.” Advisory Committee Note, 28 U.S.C. foil. § 2254, Rule 9 at 357. The bar established by Rule 9(b) encourages petitioners to present their claims simultaneously for resolution, rather than fragmenting grounds for collateral relief or advancing endless permutations of the same themes. The Supreme Court has recognized that “[njothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay.” Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963). The Advisory Committee in turn has condemned successive petitions “submitted in the hope of getting before a different judge in multijudge courts” and claims withheld “in the hope that delay will result in witnesses and records being lost.” Advisory Committee Note, supra, at 358. Nor can Rule 9 be divorced from the context of the caseload in federal courts today. There may be some systems where judicial resources are limitless and where the remotest possibility of injustice receives the infinite care and patience that ideally it deserves. In our system, those in pre-trial detention await the chance to claim their innocence; civil litigants seek to ascertain their rights and obligations; those convicted await the resolution of their first petition for collateral review. In this crowded courtscape, federal judges cannot be all things to all people. Rule 9 commands that successive petitions must, of necessity, accommodate the needs of first-time litigants lest the search for justice for all become satisfactory justice for too few. The district courts must ensure that the multitude of baseless and repetitive petitions do not drown out solitary claims of merit. In the performance of that difficult and often exasperating function, the discretion of the district judge warrants a full measure of appellate respect. Whether a Rule 9(b) dismissal rests on a ground’s having been previously decided, or on abuse of the writ, our deference to the district court remains the same: The principles governing both justifications for denial of a hearing on a successive application are addressed to the sound discretion of the federal trial judges. Theirs is the major responsibility for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits. Sanders, 378 U.S. at 18, 83 S.Ct. at 1078. See Hutchins v. Woodard, 730 F.2d 953, 962 (4th Cir.1984) (Phillips, J., specially concurring). Not only was there no abuse of discretion in this Rule 9 dismissal; the judgment of the district court was soundly and properly exercised. For the third time petitioner seeks collaterally to overturn his guilty plea, relying on the same broad themes of ineffectiveness of counsel and involuntariness of the plea. Whether the wine be new or old, the bottles are overly familiar. Furthermore, Miller has not acted entirely pro se, for he was represented by counsel at the hearing on his 1972 petition. Fourteen years have passed since entry of his plea. To entertain this petition on the merits would be to compromise the “presumption of finality and legality” that, even on an initial habeas application, “attaches to the conviction and sentence” imposed by state courts. Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 3391, 77 L.Ed.2d 1090 (1983). To speak thus firmly on the matter is not to speak harshly. At some point, the system must declare that justice has been done insofar as human capacity exists to dispense it, and attempt to focus the attention of those it has incarcerated upon rehabilitation rather than relitigation. Ill We now turn to claims 1(a), 1(b) and 2 of the present petition, which the district court found to have been previously raised and decided on the merits, and thus barred under Rule 9(b). We conclude that dismissal of these claims was fully within the district court’s discretion in light of Miller’s prior 1972 and 1975 petitions. Sanders establishes that controlling weight may be given a denial of a prior habeas application if: (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. 373 U.S. at 15, 83 S.Ct. at 1077. This test is essentially the same as that now codified in Rule 9(b). See Advisory Committee Note, supra, at 358; 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4267 at 691 (1978). See also Johnson v. Copinger, 420 F.2d 395, 398 (4th Cir.1969). There is no doubt that the ineffective assistance of counsel claims, 1(a) and 1(b), referring respectively to failure to investigate and failure to prepare a defense, were properly dismissed as successive. Those claims surfaced in Miller’s first habeas petition in virtually identical language, and this circuit’s opinion affirming the dismissal recognized that the ineffectiveness contention was pressed. During the hearing on the first habeas petition, the district court observed that Miller’s attorneys had advised him that a guilty plea was a good choice and indicated approval of this advice, further remarking that counsel were competent men with a good reputation. Thus, the court addressed the ineffectiveness issue on the merits, even though the final written decision did not refer individually to each of Miller’s numerous claims. A cursory opinion is nonetheless a decision on the merits. It may not evidence the court’s superficial treatment of claims so much as the superficial nature of the claims themselves. Finally, petitioner bears the burden of showing that the ends of justice would be served by relitigation because a prior hearing was not “full and fair.” Sanders, 373 U.S. at 16-17, 83 S.Ct. at 1077-1078. The district court here properly concluded that this burden was not met. Unlike the ineffectiveness claims, claim 2 — that Miller was not advised of his right against self-incrimination by the state court — was not specifically addressed in either of the prior petitions. Thus, the question arises whether this assertion is sufficiently similar to the other voluntariness claims to be regarded as the same “ground” for Rule 9(b) purposes. Sanders defines “ground” as “a sufficient legal basis for granting the relief sought by the applicant,” using the following illustration: For example, the contention that an involuntary confession was admitted in evidence against [the applicant] is a distinct ground for federal collateral relief. But a claim of involuntary confession predicated on alleged psychological coercion does not raise a different “ground” than does one predicated on alleged physical coercion. 373 U.S. at 16, 83 S.Ct. at 1077. The Court emphasized that identical grounds might often be proved by different factual allegations, supported by different legal arguments, be couched in different language, or vary in immaterial respects. Id. The concept of a “ground” for relief under Rule 9(b) will often be nebulous at the margins. Claims can be dissected with infinite particularity, but the Sanders Court has rejected such hair-splitting. Both the 1972 and 1975 petitions challenged the voluntariness of Miller’s plea, and the 1972 petition framed the issue in self-incrimination terms as well. Varying formulations of an involuntary plea claim have been treated as the same “ground” by this circuit and others. See, e.g. Sinclair v. State of Louisiana, 679 F.2d 513, 514 (5th Cir.1982); Brown v. Peyton, 435 F.2d 1352, 1354 (4th Cir.1970), cert. denied, 406 U.S. 931, 92 S.Ct. 1785, 32 L.Ed.2d 133 (1972). Voluntariness of the plea, indeed, was the focus of the hearing on the 1972 petition, at which petitioner was represented by counsel. Any assertion that Miller was not advised of his right to silence is necessarily intertwined with both voluntariness and self-incrimination, the merits of which were decided adversely to Miller. While the district court may not have been required to regard claim 2 as the same “ground” as those previously raised and decided, surely there was no abuse of discretion in doing so. We find that the district court acted well within the limits of its discretion under Sanders in dismissing claim 2 as successive. IV We next consider claims 1(c) and 3 of the present petition, which were not treated by the district court as successive because previously raised, although they also relate to voluntariness of the plea and ineffectiveness of counsel. Instead, they were dismissed, pursuant to the magistrate’s report, as an abuse of the writ under Rule 9(b). Therefore, we also address these claims as an abuse of the writ, and hold that abuse of the writ was properly found under the facts presented. Abuse of the writ under Rule 9(b) may occur where a new and different ground has been withheld from prior petitions due to deliberateness, Sanders, 373 U.S. at 18, 83 S.Ct. at 1078, or inexcusable neglect, Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963). As indicated in the Advisory Committee Note, supra, at 358 (citing Sanders), the abuse standard developed by the Court forms the basis for the statutory concept, and the judicial formulation of Sanders continues to govern application of Rule 9(b) in recent case law. See, e.g. Rose v. Lundy, 455 U.S. 509, 521, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (O’Connor, J., plurality opinion in Section III C), 533 (Brennan, J. and Marshall, J., concurring and dissenting in part) (1982); Jones v. Estelle, 722 F.2d 159, 163 (5th Cir.1983) (en banc), cert. denied, — U.S. -, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984); Robinson v. Fairman, 704 F.2d 368, 370 (7th Cir.1983). The proof required for abuse of the writ is higher than under Rule 9(a), for when the state has been prejudiced by delay, only a failure to exercise “reasonable diligence” need be shown to bar the petition. In Johnson v. Coping-er, we ruled that the “deliberately withheld” standard “implies more than simply a failure to present a ground existing at the time of the previous petition,” 420 F.2d at 399: As a minimum, the newly asserted ground must have been known to the petitioner at the time of his earlier petition. He cannot be charged with having abused the writ of habeas corpus if, at the time of his earlier petition, he was unaware of the facts on which the newly asserted claim is based, or was unaware that those facts could constitute a basis for federal habeas corpus relief. Id. This is not a case where any new evidence was uncovered subsequent to the earlier petitions, or a retroactive change occurred in the law, situations where abuse would not be found. See Advisory Committee Note, supra, at 358. Rather, petitioner was aware, as the magistrate found, of the relevant facts at the time of his earlier petitions, namely, whether he was under the influence of Thorazine at the time of his plea and the extent of counsel’s knowledge of his condition. Evidently he was also aware that drug use might affect the legal voluntariness of his actions, for his 1972 petition contended that drugs could render his incriminating statements coerced. Likewise, petitioner knew that counsel could be deemed ineffective for failure to prepare a defense, and that involuntariness would represent a barrier to the validity of his guilty plea. Petitioner cannot rebut these propositions, which are manifest from examination of his own prior petitions. Instead, he contends that his failure to raise claims 1(c) and 3 cannot constitute a deliberate withholding, in light of his illiteracy, subnormal intelligence, and reliance on prison writ-writers. We may assume that Miller's representations regarding the existence of these disabilities are accurate, for our analysis remains unchanged. Such factors as ignorance and unfamiliarity with the law may be relevant to deliberateness, as we recognized in Johnson v. Copinger, 420 F.2d at 399, for abuse of the writ doctrine does not impose an “automatic and inflexible forfeiture.” Id. See also Vance v. Bordenkircher, 505 F.Supp. 135, 136 (N.D. W.Va.1981), aff'd, 692 F.2d 978 (4th Cir. 1982), cert. denied, — U.S.-, 104 S.Ct. 114, 78 L.Ed.2d 114 (1983). Still, such conditions do not inevitably insulate a prisoner from a finding of writ abuse. A large segment of the prison population suffers disabilities similar to Miller’s. Congress, in adopting Rule 9(b), expressed no intent to exclude wholesale from the rule’s operation nonlawyers or the ill-educated. Lack of particular knowledge of the United States Reports does not preclude a determination that one knew the essentials of a legal claim, and the district court could legitimately find that Miller deliberately withheld his drug-related grounds for collateral relief. Prisoners drafting pro se petitions have the benefit of liberal pleading requirements in bringing all their claims before the courts, see Price v. Johnston, 334 U.S. at 292, 68 S.Ct. at 1063, and thus there is no reason why the district courts should be compelled to tolerate delay in cases such as this, which present on the merits no new questions of fact or law. Furthermore, it is highly relevant that petitioner was represented by counsel at his first habeas hearing, whose competence he does not challenge in his present petition. The Fifth Circuit’s recent en banc decision in Jones v. Estelle, 722 F.2d 159, 167, holds that a petitioner’s allegation of personal ignorance cannot justify omission of claims from an earlier petition when awareness of those claims is chargeable to competent counsel in the prior proceeding. See also Woodard v. Hutchins, 464 U.S. 377, 104 S.Ct. 752, 753 n. 3, 78 L.Ed.2d 541 (1984) (affirmative evidence of deliberateness unnecessary when petitioner represented by counsel). It is not necessary that counsel have been unusually vigorous or involved for the agency role recognized in Jones v. Estelle to be invoked and deliberateness presumed, only that competence not reasonably be questioned, and that the case present no new evidence or changes in the law. 722 F.2d at 169. We perceive no significant difference between Jones v. Estelle and the facts before us here. Petitioner’s drug-related involuntariness claim and the accompanying assertion of ineffective assistance of counsel at the time of the guilty plea may be fairly characterized as routine in the world of habeas petitions; indeed, a similar attack on a guilty plea as involuntary due to drug use was the underlying claim on the merits in the seminal Sanders decision. Accordingly, we may fairly charge petitioner through his counsel with knowledge of these matters, and we adopt the Fifth Circuit’s holding in Jones v. Estelle as an alternative ground for finding writ abuse here. V We reiterate that there are few justifications for failure to include all one’s claims in the first habeas petition. No such justifications have been offered here. The judgment of the district court dismissing all petitioner’s claims under Rule 9(b) is hereby affirmed. AFFIRMED. . Had Miller gone to trial and been convicted of the first-degree murder, he faced a potential sentence of life imprisonment with no possibility of parole. The sentence of life imprisonment with mercy gave Miller eligibility for parole after ten years. . Both the explanation of the self-incrimination claim as drug-related and the ineffectiveness of counsel claim appear in the state petition, from which the quoted material is taken. . Rule 9(a) covers delayed petitions, permitting dismissal where the state has been prejudiced in its ability to respond by the filing delay, unless the petitioner shows he could not have had knowledge of the grounds by "exercise of reasonable diligence.” That subsection of Rule 9 is not in issue in this case, as the district court made no finding on any prejudice. . In Brown v. Peyton, the prisoner had alleged in an earlier petition that his plea had been coerced by his court-appointed attorney. We held that this was the same ground as his subsequent allegation that the plea had been coerced by the trial judge, 435 F.2d at 1354, but found that the earlier petition had not been resolved on the merits. Id. at 1354-55. . Even if the district court had elected to find that claim 2 presented a different "ground," it might still have dismissed the claim as an abuse of the writ. First, however, petitioner would have been entitled to explain his reasons for withholding the claim from earlier petitions, under Price v. Johnston, 334 U.S. 266, 291, 68 S.Ct. 1049, 1062, 92 L.Ed. 1356 (1948), and Johnson v. Copinger, 420 F.2d 395, 399-400, which the Advisory Committee recognized as the proper approach also under Rule 9(b). Advisory Committee Note, supra, at 358-59. . Petitioner’s ineffective assistance of counsel claim addressed representation at the time of his guilty plea, not at the time of his first habeas hearing. “Counsel competence in habeas proceedings is not a constitutional inquiry, since a state has no constitutional duty to provide counsel in collateral proceedings.” Jones v. Estelle, 722 F.2d at 167. . In Jones v. Estelle, the attorney appointed on habeas only communicated once with the prisoner by letter, never met with the prisoner until just before the habeas hearing, and raised and argued only one of the prisoner’s several claims. 722 F.2d at 170 (Williams, J., dissenting). Because a competent attorney's role in a case may often be minimal where habeas claims are insubstantial on the merits, we will not preclude representation by counsel from being accorded its usual effect simply because, as in Jones, counsel did little. Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
sc_decisiontype	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. FEDERAL POWER COMMISSION v. HUNT et al. No. 273. Argued March 2, 1964. Decided March 30, 1964. Richard A. Solomon argued the cause for petitioner. With him on the brief were Solicitor General Cox, Ralph S. Spritzer, Howard E. Wahrenbrock and Peter H. Schiff. Richard F. Generelly argued the cause for respondents. With him on the brief were Robert W. Henderson, Thomas G. Crouch and Robert E. May. Mr. Justice Clark delivered the opinion of the Court. The issue in this case is whether the Federal Power Commission, when granting an application for a temporary certificate authorizing the sale of natural gas in interstate commerce, can impose a condition that the applicant shall not increase its certificated price pending a hearing on the applicant’s petition for permanent authority. Each of the seven applications involved here requested temporary operating authority to sell natural gas in interstate commerce on emergency grounds, as provided by §§ 7 (c) and (e) of the Natural Gas Act. In each case the Federal Power Commission conditioned the temporary grant of authority upon, inter alia, the producer’s maintaining the initial price, without increase, during the period of the temporary authorization. On appeal, the Court of Appeals set aside this condition, holding that it was beyond the power of the Commission and conflicted with the right of a producer to initiate a higher contract rate under § 4 of the Act. 306 F. 2d 334. We granted certiorari because of the importance of the question to the enforcement of the Natural Gas Act. 375 U. S. 810. We conclude that the Commission can impose such a condition in granting temporary authorizations under § 7 and therefore reverse the judgments. I. While this case involves applications for seven different temporary authorizations, the essential facts as to each, save the dates and gas fields, are the same. Since the parties and the Court of Appeals have treated the sale by the Hassie Hunt Trust as typical, we shall do likewise. The Hunts are producers of natural gas in the Alta Loma area in Galveston County in Texas Railroad District No. 3. In July 1960, the Commission issued a permanent certificate authorizing sales of natural gas from the Alta Loma and other areas to the Peoples Gulf Coast Natural Gas Pipeline Co. 24 F. P. C. 1. The authorization was conditioned upon the producer's filing an amended contract providing for an initial price of 200 per Mcf., with an escalation of 30 after 10 years. The original contract had allowed four 20 escalations at four-year intervals. The order was found defective, however, because the Public Service Commission of New York, which sought a lower initial price, had been refused intervention before the Commission. See Public Service Comm’n v. Federal Power Comm’n, 111 U. S. App. D. C. 153, 295 F. 2d 140, cert. denied, sub nom. Shell Oil Co. v. Public Service Comm’n, 368 U. S. 948. Thereafter the Commission vacated its issuance of the certificate and ordered a new hearing on the question of initial price. 26 F. P. C. 689. In the meantime, after the issuance, but prior to the vacating, of the July 1960 certificate, the Commission issued General Policy No. 61-1,18 CFR § 2.56, 24 F. P. C. 818, which fixed the guideline for initial prices for Texas Railroad District No. 3 at 18¢ per Mcf., 2¢ below the initial price allowed in the July 1960 certificate. Thereafter, on February 27, 1961, the Hassie Hunt Trust applied for a permanent certificate of public convenience and necessity allowing sales from a new well in this same area to Natural Gas Pipeline Company of America, the successor to Peoples Gulf Coast. It also applied for temporary authorization to begin service immediately under the emergency provisions of the Commission’s Regulations issued under § 7 (c) of the Act. 18 CFR § 157.28. The emergency was alleged to result from the “necessity of paying shut-in royalties and the incurrence of drainage through sales by others to pipeline companies other than Natural.” The new sale was covered by a 20-year contract, dated December 15, 1960, with provisions identical to those of the earlier contract, i. e., an initial price of 200 per Mcf. with 20 escalations at four-year intervals. The Commission on April 7, 1961, granted the temporary authorization subject to three conditions: (1) that the total initial price not exceed 180 per Mcf. and thus be in keeping with the guideline rate set for Texas Railroad District No. 3, (2) that within 20 days supplements to the contracts be filed consistent with this price, and (3) that the temporary authorization be accepted in writing within 20 days. Deliveries were commenced by the producer on April 19 before these conditions were met. On May 5 a conditional acceptance was filed reserving the right to seek removal of the conditions imposed and tendering an amended contract providing for an 180 initial price for 30 days with 200 per Mcf. thereafter. The Commission rejected this conditional acceptance and subsequently, in order to make clear its position, specifically provided that the initial rate was to be 180 and that there was to be no change therein pending the hearing on permanent authorization. The proposed 200 rate was rejected and thereafter this review followed. The Court of Appeals sustained the 180 initial price but held that the Commission had no power to condition temporary authorizations so as to preclude the filing and collection of increased rates pursuant to § 4 of the Act. II. Once again we are confronted with a question solely of the proper interpretation of the Natural Gas Act. This time we must determine the interplay of §§ 4 and 7. These sections are the avenues through which the natural gas producer may, by contract or otherwise, initially propose the dedication of his natural gas supply to interstate movement (§7) and, once so dedicated by order of the Federal Power Commission, thereafter initiate changes in existing rates (§4). We will proceed with separate analyses of these two sections. Section 7 (c) came into the Natural Gas Act in 1942 and provides the method by which gas may be dedicated and certificated into interstate commerce. It prohibits a natural gas producer from engaging in the transportation or sale of natural gas “unless there is in force with respect to such natural-gas company a certificate of public convenience and necessity issued by the Commission authorizing such acts or operations.” In order to secure such certificates, applications are filed with the Commission and in due course the applicants are afforded a hearing. Sections 7 (c) and (e) of the Act command that a certificate shall be issued if the Commission finds it “required by the present or future public convenience and necessity” and if the applicant meets certain tests of reliability, such as ability and willingness to perform. In issuing such certificates, the Commission has “the power to attach to the issuance of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require.” §7(e). Hearings under § 7 (e) for permanent certification are time consuming. The Congress, realizing this, provided in § 7 (c) that “the Commission may issue a temporary certificate in cases of emergency, to assure maintenance of adequate service or to serve particular customers, without notice or hearing, pending the determination of an application for a certificate, and may by regulation exempt from the requirements of this section temporary acts or operations for which the issuance of a certificate will not be required in the public interest.” Pursuant to this authorization the Commission adopted a regulation which sets out standards for emergency authorizations and requires the applicant to file “a statement of intention to invoke this section.” 18 CFR § 157.28 (c). The Commission grants the temporary certificate, where it deems necessary,' without notice or hearing. Under the terms of the regulation, this authorization continues until final Commission action under §§ 4 and 7, “without prejudice to such rate or other condition as may be attached to the issuance of the certificate.” 18 CFR § 157.28. It must be noted, however, that § 7 does not stipulate that the Commission must find the initial rate to be just and reasonable but simply that the service proposed is required by the present and future public convenience and necessity. Nor does § 7 grant the Commission power to suspend the rate authorized in permanent or temporary certificates issued under that section. Once a permanent certificate is granted the Commission can correct an improper rate only under § 5 of the Act, 52 Stat. 823, 15 U. S. C. § 717d, which likewise has no suspension provision. In the light of this'inability to suspend the initial rate granted under a § 7 certificate, the Commission attaches conditions to the certificate of authority which it deems necessary to afford consumers the “complete, permanent and effective bond of protection from excessive rates and charges” for which we found the Act was framed in Atlantic Refining Co. v. Public Service Comm’n, 360 U. S. 378, 388 (1959). “The heart of the Act,” we said there, was in those provisions of § 7 (e) “requiring initially that any ‘proposed service, sale, operation, construction, extension, or acquisition . . . will be required by the present or future public convenience and necessity’ . . . and that all rates and charges ‘made, demanded, or received’ shall be ‘just and reasonable,’ § 4, 15 U. S. C. § 717c.” In this case, the Commission concluded that when granting temporary certificates it must look even more carefully to the present and future public convenience and necessity and interpose such conditions precedent as would, in its view, fully protect consumers from excessive rates and charges. Section 4 was included in the original Act of 1938. 52 Stat. 822,15 U. S. C. § 717c. It provides in part that “no change shall be made by any natural-gas company in any . . . rate . . . except after thirty days’ notice to the Commission and to the public.” §4(d). Whenever such new rate is filed, the Commission may, after notice, hold hearings to determine whether the rate is lawful and may suspend its operation, but only for a period of five months. §4(e). If the proceeding is not concluded within those five months, the proposed rate becomes effective and collectible, subject to subsequent refund by the natural gas company to the extent the rate is not just and reasonable. As we said in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U. S. 332, 341 (1956), the power granted to the Commission “is simply the power to review rates and contracts made in the first instance by natural gas companies and, if they are determined to be unlawful, to remedy them.” And we specifically pointed out that all § 4 (e) does “is to add to this basic power, in the case of a newly changed rate . . . the further powers (1) to preserve the status quo pending review of the new rate by suspending its operation for a limited period, and (2) thereafter to make its order retroactive, by means of the refund procedure, to the date the change became effective.” Ibid. The power granted to the Commission in § 4 does not come into play until after the initial certification of the natural gas into interstate commerce has been granted under § 7. In the instant case no permanent certificates authorizing sales in interstate commerce have yet been issued. Temporary certificates have been allowed and each is conditioned upon the maintenance of the initial price. Thus, if respondents’ position is correct, then the conditions precedent to the issuance of the temporary certificates required by the Commission can be nullified by subsequent independent action of the respondents in filing a new contract under § 4. We do not believe that the Congress intended any such incongruous result. III. We find no conflict in the directives of the two sections. Indeed, they supplement one another and thereby work together in efficient conjunction to carry out the purposes of the Act. When the independent producer knocks on the door of the Commission for permission to enter his gas in interstate commerce he must submit to the requirements of § 7. His natural gas must be certificated before it can move into interstate commerce. If he wishes to avoid the delay incident to a hearing for a permanent certificate he may apply for temporary authorization, which may be granted upon ex parte application. In view of this, the Commission must have the authority to condition a temporary certificate so as to avoid irreparable injury to affected parties. This condition, once imposed, continues only during the pendency of the producer’s application for a permanent certificate. In view of the ex parte nature of the proceeding, it appears only fair to all concerned that the condition upon which the rate was temporarily certified be continued unchanged until the permanent certificate is issued. Under the procedures of the Act, it is at the point of permanent or unconditional temporary certification that the provisions of § 4 become applicable. The gas has been permanently certificated into interstate commerce and the independent producer is then free to pursue the rate-filing procedure of that section. This Court previously discussed the use of the temporary certificate procedure in Atlantic Refining Co. v. Public Service Comm’n, supra. There we indicated that the Commission might avail itself of its power to condition the initial certification of natural gas into interstate commerce in order to prevent a triggering of general price rises. The language is unmistakably clear as to the claim made here that the vitality of § 4 of the Act is being impaired and we therefore repeat and reaffirm it: “This is not an encroachment upon the initial rate-making privileges allowed natural gas companies under the Act, United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, but merely the exercise of that duty imposed on the Commission to protect the public interest in determining whether the issuance of the certificate is required by the public convenience and necessity, which is the Act’s standard in § 7 applications. In granting such conditional certificates, the Commission does not determine initial prices nor does it overturn those agreed upon by the parties. Rather, it so conditions the certificate that the consuming public may be protected while the justness and reasonableness of the price fixed by the parties is being determined under other sections of the Act. Section 7 procedures in such situations thus act to hold the line awaiting adjudication of a just and reasonable rate.” At 391-392. Nor is it any answer to say that the suspension power under § 4 (e) will afford protection to the public. The experience since our opinion in Atlantic Refining Co., supra, indicates that a triggering of price rises often results from the out-of-line initial pricing of certificated gas. These effects become irreversible and splash over into intrastate sales, thus generating reciprocal pressures that directly affect jurisdictional rates. As we said in Federal Power Comm’n v. Tennessee Gas Transmission Co., 371 U. S. 145, 154, 155 (1962), the possibility of refund does not afford sufficient protection: “True, the exaction would have been subject to refund, but experience has shown this to be somewhat illusory .... It is, therefore, the duty of the Commission to look at The backdrop of the practical consequences [resulting] . . . and the purposes of the Act,’ Sunray Mid-Continent Oil Co. v. Federal Power Comm’n, 364 U. S. 137, 147 (1960), in exercising its discretion under § 16 to issue interim orders . . . .” IV. Our interpretation of the power of the Commission under §§ 7 (c) and (e) is buttressed by the legislative history. They were added to the Act in 1942, four years after its original passage. Prior to their adoption the only rate-making regulatory tools the Commission possessed were §§ 4 and 5, and they came into operation only after the natural gas was already moving in interstate commerce. Sections 7 (c) and (e) were designed to control the certification of gas destined for interstate movement. The purpose of the amendments was to give “the Commission an opportunity to scrutinize the financial set-up, the adequacy of the gas reserves, the feasibility and adequacy of the proposed services, and the characteristics of the rate structure ... at a time when such vital matters can readily be modified as the public interest may demand. . . .” House Committee on Interstate and Foreign Commerce, H. R. Rep. No. 1290, 77th Cong., 1st Sess., 2-3. Its- counterpart in the Senate likewise reported: “Provisions of the Natural Gas Act empower the Commission to prevent uneconomic extensions and waste, but it can so regulate such powers only when the extension is to ‘a market in which natural gas is already being served by another natural-gas -company.’ Thus the possibilities of waste, uneconomic and uncontrolled extensions are multiple and tremendous. The present bill would correct this glaring inadequacy of the act. It would also authorize the Commission to examine costs, finances, necessity, feasibility, and adequacy of proposed services. The characteristics of their rate structure could be studied.” Senate Committee on Interstate Commerce, S. Rep. No. 948, 77th Cong., 2d Sess., 1-2. Clearly, the Commission was given the power to lay down conditions precedent to the entry of the natural gas into interstate commerce. Moreover, the Commission has long recognized this obligation and has required modification of many tariff and contract provisions as a condition to the granting of a certificate. The existence of broad discretionary power in the Commission to condition temporary certificates appears to us to be vital to its ability to hold the line in pricing. The extent of that power in permanent certification is not before us now, since each of these applications is for temporary certification. It is said that the condition of the Commission’s docket transposes, for all practical matters, temporary certificates into permanent ones. This claim arises due to the delays incident to the issuance of a permanent certificate. We spoke of the “nigh interminable” delay in § 5 proceedings in Atlantic Refining Co. v. Public Service Comm’n, supra, at 389. There delay operated against the consumer. Here it operates against the producer. The Commission has been making efforts in this regard, through the establishment of guidelines for determining initial prices and other administrative devices. 43 F. P. C. Ann. Rep. 13, 119-120 (1963). However, we again call to its attention the dangers inherent in the accumulation of a large backlog of cases with its accompanying irreparable injury to the parties. Moreover, consumers may become directly affected thereby through the reluctance of producers to enter interstate markets because of the long delay incident to permanent certification. Procedures must be worked out, not only to clear up this docket congestion, but also, to maintain a reasonably clear current docket so that hearings may be had without inordinate delay. In this connection the techniques of the National Labor Relations Board might be studied with a view to determining whether its exemption practices, see Guss v. Utah Labor Relations Board, 353 U. S. 1, 3-4 (1957), might be helpful in the solution of the Commission’s problems. Reversed. Section 7 (c), 52 Stat. 824, as amended, 56 Stat. 83, 15 U. S. C. §717f (c), provides: “(c) No natural-gas company or person which will be a natural-gas company upon completion of any proposed construction or extension shall engage in the transportation or sale of natural gas, subject to the jurisdiction of the Commission, or undertake the construction or extension of any facilities therefor, or acquire or operate any such facilities or extensions thereof, unless there is in force with respect to such natural-gas company a certificate of public convenience and necessity issued by the Commission authorizing such acts or operations: Provided, however, That if any such natural-gas company or predecessor in interest was bona fide engaged in transportation or sale of natural gas, subject to the jurisdiction of the Commission, on . . . [February 7, 1942], over the route or routes or within the area for which application is made and has so operated since that time, the Commission shall issue such certificate without requiring further proof that public convenience and necessity will be served by such operation, and .without further proceedings, if application for such certificate'is made to the Commission within ninety days after . . . [February 7, 1942]. Pending the determination of any such application, the continuance of such operation shall be lawful. “In all other cases the Commission shall set the matter for hearing and shall give such reasonable notice of the hearing thereon to all interested persons as in its judgment may be necessary under rules and regulations to be prescribed by the Commission; and the application shall be decided in accordance with the procedure provided in subsection (e) of this section and such certificate shall be issued or denied accordingly: Provided, however, That the Commission may issue a temporary certificate in cases of emergency, to assure maintenance of adequate service or to serve particular customers, without notice or hearing, pending the determination of an application for a certificate, and may by regulation exempt from the requirements of this section temporary acts or operations for which the issuance of a certificate will not be required in the public interest.” Section 7 (e), 52 Stat. 824, as amended, 56 Stat. 84, 15 U. S. C. § 717f (e), provides: “(e) Except in the cases governed by the provisos contained in subsection (c) of this section, a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operation, sale, service, construction, extension, or acquisition covered by the application, if it is found that the applicant is able and willing properly to do the acts and to perform the service proposed and to conform to the provisions of the Act and the requirements, rules, and regulations of the Commission thereunder, and that the proposed service, sale, operation, construction, extension, or acquisition, to the extent authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied. The Commission shall have the power to attach to the issuance of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require.” The Commission did have authority with reference to the entry of a natural gas company into a competitive market but not into new and unserviced markets. See, e. g., Florida Economic Advisory Council v. Federal Power Comm’n, 102 U. S. App. D. C. 152, 251 F. 2d 643, cert. denied, 356 U. S. 959; Northern Natural Gas Co., 22 F. P. C. 164, 174-175, 180, aff’d sub nom. Minneapolis Gas Co. v. Federal Power Comm’n, 108 U. S. App. D. C. 36, 278 F. 2d 870, cert. denied, 364 U. S. 891 (certificate conditioned upon removal of clauses permitting cancellation depending on price relationship of gas and competitive fuels in gas purchase contracts upon which feasibility of pipeline project depended); Transwestern Pipeline Co., 22 F. P. C. 391, 394-395, modified on rehearing, 22 F. P. C. 542 (minimum bill provisions of proposed tariff required to be modified); Panhandle Eastern Pipe Line Co., 10 F. P. C. 185 (conditions requiring inclusion of interruptible rate schedules in tariffs); Trans-Continental Gas Pipe Line Co., 7 F. P. C. 24, 38-40 (commencement of service conditioned upon filing of new tariff satisfactory to Commission because of disapproval of certain terms of service); Alabama-Tennessee Natural Gas Co., 7 F. P. C. 257 (commencement of service conditioned upon filing of tariff satisfactory to Commission). Question: What type of decision did the court make? A. opinion of the court (orally argued) B. per curiam (no oral argument) C. decrees D. equally divided vote E. per curiam (orally argued) F. judgment of the Court (orally argued) G. seriatim Answer:
songer_genresp2	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 second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. GULF STATES UTILITIES COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Union Carbide Corporation, Intervenor. No. 88-1071. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 27, 1988. Decided April 14, 1989. Daniel L. Koffsky, with whom Wm. War-field Ross and Jane Seigler, Washington, D.C., were on the brief, for petitioner. Joseph S. Davies, Atty., FERC, with whom Catherine C. Cook, Gen. Counsel, and Jerome M. Feit, Sol., FERC, Washington, D.C., were on the brief, for respondent. Philip A. Fleming, Washington, D.C., was on the brief for intervenor. Before STARR, BUCKLEY and D.H. GINSBURG, Circuit Judges. Opinion for the court filed by Circuit Judge BUCKLEY. BUCKLEY, Circuit Judge: Cogeneration facilities are designed to meet the thermal and electrical energy needs of particular commercial and industrial consumers. Congress requires electrical utilities to provide qualifying cogeneration facilities with standby “back-up” power. Gulf States Utilities Company challenges a Federal Energy Regulatory Commission finding that a Union Carbide Corporation plant is entitled to receive back-up power even though the electricity it receives must be transmitted 1.7 miles from a cogeneration facility that Union Carbide owns jointly with another company. At issue in this case is the Commission’s characterization of the Union Carbide plant as the consuming component of a qualifying cogeneration facility although it neither uses the steam generated by the facility nor is located adjacent to it. Because we conclude that the Commission failed to provide an adequate explanation of its ruling, we remand the case for further consideration. I. Background A. Applicable Statute and Regulations “ ‘Cogeneration’ involves the joint production of electricity and useful heat or steam, in circumstances where some or all of the heat would otherwise be dissipated into the environment.” Puerto Rico Elec. Power Auth. v. FERC (“PREPA”), 848 F.2d 243, 244 (D.C.Cir.1988). In response to the energy crisis of the 1970’s, Congress sought to encourage the use of cogeneration as an energy conservation measure. Among the impediments to such use identified by Congress were the reluctance of electric utilities to purchase surplus electricity produced by cogeneration facilities and to provide them with a supplementary source of power. PREPA at 244-45. As a result, when Congress enacted the Public Utility Regulatory Policies Act of 1978 (“Act”), it included a provision directing the Federal Energy Regulatory Commission (“FERC”) to prescribe rules under which electric utilities would be required to provide back-up power to, and purchase surplus power from, “qualifying cogeneration facilities” (“QFs”). 16 U.S.C. § 824a-3(a) (1982). The Act defines a “cogeneration facility” as one that produces (i) electrical energy, and (ii) steam or forms of useful energy (such as heat) which are used for industrial, commercial, heating or cooling purposes. Id. § 796(18)(A). A “qualifying cogeneration facility” is one that (i) the Commission determines, by rule, meets such requirements (including requirements respecting minimum size, fuel use, and fuel efficiency) as the Commission may, by rule, prescribe; and (ii) is owned by a person not primarily engaged in the generation or sale of electric power (other than electric power solely from cogeneration facilities or small power production facilities). Id. § 796(18)(B). The Commission’s regulations specify two prerequisites for certification as a QF. First, the facility must meet certain operating and efficiency standards. 18 C.F.R. § 292.205(a) and (b) (1988). Second, no more than a fifty percent interest in a facility may be owned by an electric utility, a group of electric utilities, or an electric utility holding company. Id. § 292.206. The regulations also require that electric utilities both purchase excess energy from QFs and provide them with back-up power. Id. §§ 292.303 and 292.305(b)(1). B. The Facts Union Carbide Corporation and Fina Oil and Chemical Company (“Fina”) agreed to form a partnership, to be called “Fin-Lin,” that would establish and operate a cogener-ation facility at a site adjacent to the Fina plant in Port Arthur, Texas. In 1987, pursuant to procedures established by it (see id. § 292.207), the partners filed a joint application with FERC asking that the proposed Fin-Lin plant be certified as a QF. The application stated that the facility would provide Fina with electrical power and steam and would transmit electrical power, but not steam, to the Union Carbide plant located 1.7 miles away in Groves, Texas. The partners stated that Fin-Lin would construct the proposed facility but, for tax and other reasons, might sell it to a third party that would then lease it back to Fin-Lin. Fin-Lin would oversee the facility’s management, but Fina would run its day-to-day operations on behalf of Fin-Lin. Over Gulf States’ objection, the Commission concluded that the Fin-Lin facility, the Fina oil plant in Port Arthur, and the Union Carbide plant in Groves were all components of a QF, that transfers of power among the owners of a facility did not disqualify it from receiving QF status, and that the Fin-Lin facility was entitled to the benefits of that status. Accordingly, in September 1987, FERC issued an order granting Union Carbide’s and Fina’s application for certification as a QF, Union Carbide Corp. and Fina Oil and Chem. Co., 40 F.E.R.C. ¶ 61,337 (1987) (“Certification Order”). Subsequently, in denying Gulf States’ request for rehearing, FERC asserted that “the consuming entities here are entitled to back-up power” and that it “refuse[s] to draw an artificial distinction between the consumption and production of cogeneration energy where the two are a unitary and reciprocal process, and are formally given separate corporate status only for financial and tax purposes.” Order Denying Rehearing, 41 F.E.R.C. ¶ 61,348 at 61,924 (1987). Gulf States petitioned for review of the two orders. Shortly before its petition was scheduled to be heard, FERC moved for summary affirmance on the ground that our recent decision in PREP A was disposi-tive of Gulf States’ claim. II. Discussion In PREPA, which issued after FERC’s decision in this case, this court considered the propriety of the grant of QF status in a situation where, because of tax and other considerations, the plant that consumed co-generated energy and the adjacent facility that produced it were separately owned. In that case, O’Brien Energy Products, Inc. owned and operated the cogeneration facility that supplied electricity and thermal energy to a pharmaceutical manufacturing plant owned by Alcon, Inc. O’Brien and Alcon were “separate corporations, evidently not affiliated.” 848 F.2d at 245. O’Brien had leased the site of the energy producing plant from Alcon. Under the terms of the lease, O’Brien had sole responsibility for constructing, operating, and maintaining the plant. At the end of the five-year lease, Alcon had the option of renewing the lease, purchasing the facility for its residual value, or requiring O’Brien to remove the facility from the property. Id. The Puerto Rico Electric Power Authority argued that its duty to provide back-up power extended only to the O’Brien-owned cogeneration facility. The Commission determined, however, that Alcon was entitled to back-up power because the back-up provision of section 210 of the Act “covers both the production and consumption functions, irrespective of whether they have the same ownership.” Alcon (Puerto Rico), Inc., 38 F.E.R.C. ¶ 61,042 at 61,120 (1987). In PREPA, we agreed that the divided ownership did not disqualify Alcon because its arrangement with O’Brien represented the kind of integrated operation that Congress intended to encourage: O’Brien’s generating equipment will be built on Alcon’s land directly adjacent to the pharmaceutical plant; it will supply only Alcon’s plant; it will generate both electricity and useful thermal energy; and Alcon is given the option to purchase the generating equipment from O’Brien at the expiration of the five-year lease. Given the “close nexus,” it was altogether reasonable for the Commission to view the QF concept as encompassing both the producing and the consuming components of such a project. 848 F.2d at 248. The Commission contends that our decision in PREPA controls this case although it acknowledges two distinctions in the underlying facts. First, unlike the case in PREPA, the consumers of the energy produced by the Fin-Lin facility own and operate the plant. In its brief and at oral argument, FERC emphasized that Union Carbide’s co-ownership of the cogeneration component made the case for certification all the more compelling. Second, one of the consumers, Union Carbide, is located 1.7 miles away from, rather than adjacent to, the energy producing component. FERC dismisses this fact as inconsequential: the statute does not specifically require that a QF’s energy producing and consuming components be located cheek to jowl, and an insistence on such proximity would undermine the Act’s objective of encouraging cogeneration. By contrast, Gulf States finds these two differences to be decisive. It argues that Union Carbide cannot be considered an energy consuming component of the Fin-Lin project because the “close nexus” to which we refer in PREPA, id,., does not exist here: the electricity Union Carbide consumes is produced not next door, but at a site almost two miles away; furthermore, Union Carbide consumes only the electricity produced by the Fin-Lin facility, and not the thermal energy that is an essential component of cogeneration. Thus, Gulf States maintains, Union Carbide’s relationship to the facility is essentially that of a retail purchaser of surplus electricity rather than that of a “consuming component” of a cogeneration project. Accordingly, Gulf States concludes it may not be required to provide Union Carbide with backup power because the latter lacks the “close nexus” between energy producing and consuming components on which we based our decision in PREPA. Id. Both parties treat the passage from which the phrase “close nexus” is taken with excessive reverence. That passage, which is quoted at page 490 above, applied specifically to the facts in PREPA and should not be regarded as a checklist for determining whether other arrangements will qualify for certification as QFs. It is not for us to establish authoritative criteria for determining whether a particular set of facts will qualify a cogeneration project for certification. That responsibility rests with the Commission. Unfortunately, in this case, we are unable to find in the Commission’s orders, or in its brief, a coherent explanation for its determination that the Union Carbide plant is so integral a part of the Fin-Lin facility as to entitle it to back-up power from Gulf States. The Commission alluded, in its Certification Order, to the fact that multiple ownership of a facility poses no obstacle to certification. 40 F.E.R.C. ¶ 61,337 at 62,031. It also noted, in its Order Denying Rehearing, that it would not draw an “artificial distinction between the consumption and production of cogeneration energy where the two are a unitary and reciprocal process.” 41 F.E.R.C. ¶ 61,348 at 61,934. The Commission fails to indicate, however, why it would have been artificial to distinguish the Union Carbide plant from that of its Fina partner, which is adjacent to, and a prospective consumer of both forms of energy to be produced by, the Fin-Lin facility. We express no opinion on the matter but merely point out that it is not enough, in support of a conclusion, to cite another conclusion. III. Conclusion Because the Commission has failed to explain the basis for its decision, we deny FERC’s motion for summary affirmance, grant Gulf States’ petition for review, and remand the case to the Commission for further consideration. We urge the Commission to take the occasion to discuss the criteria it will be applying with sufficient specificity to provide guidance for the future. We do not suggest what lines might be drawn, or where. That is the Commission’s responsibility. So ordered. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_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. Arlene M. DAMON, Respondent, Appellant, v. Cecil J. DAMON, Petitioner, Appellee. No. 5714. United States Court of Appeals First Circuit. Heard Oct. 4, 1960. Decided Oct. 28, 1960. William H. Niehoff, Waterville, Me., with whom Niehoff & Niehoff, Water-ville, Me., was on brief, for appellant. No appearance for appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. HARTIGAN, Circuit Judge. The main question raised in this appeal is whether the lower court erred in finding as a matter of law that an order for the payment of counsel fees decreed by the Superior Court of Maine to a wife in a divorce action is a debt discharge-able in bankruptcy and granting the discharge of the petitioner on his petition for a writ of habeas corpus. Cecil J. Damon, petitioner-appellee, commenced an action for divorce against his wife, Arlene M. Damon, respondent-appellant, on January 21, 1960 in the Superior Court in and for the County of Kennebec and State of Maine. The respondent instituted a cross-action for divorce and engaged an attorney to prosecute the cross-action and defend her against the petitioner’s action. On February 8, 1960 the Superior Court ordered petitioner to pay to respondent’s attorney of record $150 as counsel fees. Execution was not to issue until the action for divorce had been heard. On May 4, 1960 respondent dismissed her cross-action. A hearing was held on petitioner’s action which was contested by respondent. After a hearing the Superior Court dismissed petitioner’s action. On the same date an oral motion was made by respondent for counsel fees. On May 7, 1960 judgment was entered by the Superior Court in the amount of $250 in favor of Arlene M. Damon for counsel fees payable to William H. Niehoff, her attorney of record. A capias execution was issued on this judgment on May 9, 1960 and petitioner was taken into custody on May 11 where he remained until discharged on May 26, 1960 by the district court after hearing on his petition for writ of habeas corpus. On May 7, 1960 petitioner filed a voluntary petition in bankruptcy and was duly adjudged a bankrupt. The petitioner listed in his schedule Arlene M. Damon and William H. Niehoff as unsecured creditors for the amount of the counsel fees. Petitioner applied for a writ of habeas corpus in the lower court seeking discharge from imprisonment under the capias execution on the judgment for counsel fees. The district court after a hearing ordered petitioner’s discharge pursuant to General Order in Bankruptcy 30, 11 U.S.C.A. following section 53. The district court’s first ground for ordering the discharge of petitioner was that General Order in Bankruptcy 30 clearly provided for such discharge, since the claim was provable under § 63 of the Bankruptcy Act, 11 U.S.C.A. § 103. However, the General Orders are enacted pursuant to the Bankruptcy Act and must yield to the terms of the Act. 11 U.S.C.A. § 53; In re Baker, D.Kan.1899, 96 F. 954. The protection from imprisonment given to a bankrupt by the Bankruptcy Act is clearly in terms of a dischargeable debt or claim. 11 U.S.C.A. § 27. Therefore, if the debt for the collection of which petitioner was imprisoned is a non-dis-chargeable debt under 11 U.S.C.A. § 35, the order discharging petitioner was error. See also In re Thomashefsky, 2 Cir., 1931, 51 F.2d 1040; 1 Collier, Bankruptcy, [f 9:03, p. 1086 (14th ed. 1956). Section 17 of the Bankruptcy Act, 11 U.S.C.A. § 35 provides: “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 alimony due or to become due, or for maintenance or support of wife or child * * * » Various eases have construed this exception to include counsel fees ordered by a court. See e. g., Merriman v. Hawbaker, D.C.E.D.Ill.1934, 5 F.Supp. 432. The lower court referred to these cases, but concluded that since the Maine statute, Me.Rev.Stat. Chap. 166, § 64 as amended, clearly differentiated in terms between alimony, payments for support and payments for counsel fees, these cases were not apposite. We believe that the determinative question, however, is whether or not the claim for counsel fees is in the nature of support or alimony. The distinction in terms within a state statute does not seem controlling on this question. Cf. Ross v. Keith, 1st Dep’t. 1933, 238 App. Div. 640, 265 N.Y.S. 246. More important is the entire statutory provision made for the support of a wife. If under the provisions for the wife pending and growing out of marital actions, counsel fees are allowed to the wife, and it is discernible that this allowance is made on the same basis as alimony, or other forms of support owed by a husband to his wife, then the claim for counsel fees is not dischargeable in bankruptcy. See In re Hollister, D.C.S.D.N.Y.1942, 47 F.Supp. 154, affirmed 2 Cir., 1943, 132 F.2d 861. In regard to the Maine statute, we believe that the provision for counsel fees is based on the same foundation of a husband’s duty as other forms of support and is, under Maine law, a form of support owed by a husband to his wife. See Meaher v. Mitchell, 1914, 112 Me. 416, 92 A. 492, L.R.A.1915C, 467. The provision for the same type of execution as for alimony and support payments, as well as the inclusion of the provision for counsel fees with those for various forms of support also indicates the correctness of this conclusion. Under Section 9 of the Bankruptcy Act, 11 U.S.C.A. § 27, petitioner is entitled to release from imprisonment in order to perform duties imposed on him by the Bankruptcy Act. Such ground was not the basis of the order of the district court, however, so it is unnecessary for us to consider it. Any application for such a temporary release may be presented to the district court. Application for other relief must be made to the Superior Court. Judgment will be entered vacating the order of the district court and remanding the ease for further proceedings not inconsistent with this opinion. . “Order SO. Imprisoned Debtor “ * * * If the bankrupt or debtor, during the pendency of said proceedings, be arrested or imprisoned upon process in any civil action, the judge, upon his application, may issue a writ of habeas corpus to bring him before the judge to ascertain whether such process has been issued for the collection of any claim provable under the Act, and if so provable he shall be discharged; if not, he shall be remanded to the custody in which he may lawfully be. * * * ” . The pertinent part of that section reads: “§ 27. Protection of bankrupts. “A bankrupt shall be exempt from arrest upon civil process except in the following eases: * * * (2) when issued from a State court having jurisdiction, and when served within such State, upon a debt or claim from which his discharge in bankruptcy would not be a release, and in such case he shall be exempt from such arrest when in attendance upon a court of bankruptcy or engaged in the performance of a duty imposed by this title. * * *” . “Seo. 64. Payment of alimony; attorney’s fees; support of minor children; capias execution. — Pending a petition to enforce a decree of alimony, or a decree for payment of money instead thereof, or for the support of minor children, or a decree for support pending the divorce action or for payment of counsel fees, or for the alteration of an existing decree for the custody or support of minor children, the court may order the husband or father to pay to the wife or mother, or to counsel for the wife or mother, sufficient money for the prosecution or defense thereof, upon default of which order execution may issue as in actions of tort. Execution for attorney’s fees shall not issue until the action for divorce has been heard. Petition for such execution may be signed by the person seeking same or his attorney of record in such divorce action. At the time of making a final decree in any divorce action, the court may order that execution and such reasonable attorney’s fee as the court shaE order shaE issue against the body of any party to the action charged with the payment of support of minor children or payments of ahmony or a specific sum in lieu thereof, upon default of any payment, and the court shall order that the clerk of said court shall issue such execution. When the husband or father is committed to jail on execution issued upon decree of alimony, or for payment of money instead thereof, or for the support of his minor children, or for support pending the divorce action or for payment of counsel fees, the county having jurisdiction of the process shaE bear the expense of his support and commitment and he may be discharged 'from imprisonment by payment of the execution and all costs and expenses of his commitment and support, and he shall not be entitled to rehef therefrom under chapter 120. He may petition the court issuing such execution for relief, whereupon a judge of such court after due notice to the wife or mother, and hearing thereon, may order his discharge from imprisonment on such terms and conditions as justice may require.” 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:
sc_authoritydecision	D	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. TAMPA ELECTRIC CO. v. NASHVILLE COAL CO. et al. No. 87. Argued December 15, 1960. Decided February 27, 1961. William, C. Chanler argued the cause and filed a brief for petitioner. Abe Fortas argued the cause for respondents. With him on the brief was Norman Diamond. MR. Justice Clark delivered the opinion of the Court. We granted certiorari to review a declaratory judgment holding illegal under § 3 of the Clayton Act a requirements contract between the parties providing for the purchase by petitioner of all the coal it would require as boiler fuel at its Gannon Station in Tampa, Florida, over a 20-year period. 363 U. S. 836. Both the District Court, 168 F. Supp. 456, and the Court of Appeals, 276 F. 2d 766, Judge Weick dissenting, agreed with respondents that the contract fell within the proscription of § 3 and therefore was illegal and unenforceable. We cannot agree that the contract suffers the claimed antitrust illegality and, therefore, do not find it necessary to consider respondents’ additional argument that such illegality is a defense to the action and a bar to enforceability. The Facts. Petitioner Tampa Electric Company is a public utility located in Tampa, Florida. It produces and sells electric energy to a service area, including the city, extending from Tampa Bay eastward 60 miles to the center of the State, and some 30 miles in width. As of 1954 petitioner operated two electrical generating plants comprising a total of 11 individual generating units, all of which consumed oil in their burners. In 1955 Tampa Electric decided to expand its facilities by the construction of an additional generating plant to be comprised ultimately of six generating units, and to be known as the “Francis J. Gannon Station.” Although every electrical generating plant in peninsular Florida burned oil at that time, Tampa Electric decided to try coal as boiler fuel in the first two units constructed at the Gannon Station. Accordingly, it contracted with the respondents to furnish the expected coal requirements for the units. The agreement, dated May 23, 1955, embraced Tampa Electric’s “total requirements of fuel ... for the operation of its first two units to be installed at the Gannon Station . . . not less than 225,000 tons of coal per unit per year,” for a period of 20 years. The contract further provided that “if during the first 10 years of the term . . . the Buyer constructs additional units [at Gannon] in which coal is used as the fuel, it shall give the Seller notice thereof two years prior to the completion of such unit or units and upon completion of same the fuel requirements thereof shall be added to this contract.” It was understood and agreed, however, that “the Buyer has the option to be exercised two years prior to completion of said unit or units of determining whether coal or some other fuel shall be used in same.” Tampa Electric had the further option of reducing, up to 15%, the amount of its coal purchases covered by the contract after giving six months’ notice of an intention to use as fuel a by-product of any of its local customers. The minimum price was set at $6.40 per ton delivered, subject to an escalation clause based on labor cost and other factors. Deliveries were originally expected to begin in March 1957, for the first unit, and for the second unit at the completion of its construction. In April 1957, soon before the first coal was actually to be delivered and after Tampa Electric, in order to equip its first two Gannon units for the use of coal, had expended some $3,000,000 more than the cost of constructing oil-burning units, and after respondents had expended approximately $7,500,000 readying themselves to perform the contract, the latter advised petitioner that the contract was illegal under the antitrust laws, would therefore not be performed, and no coal would be delivered. This turn of events required Tampa Electric to look elsewhere for its coal requirements. The first unit at Gannon began operating August 1,1957, using coal purchased on a temporary basis, but on December 23, 1957, a purchase, order contract for the total coal requirements of the Gannon Station was made with Love and Amos Coal Company. It was for an indefinite period cancellable on 12 months’ notice by either party, or immediately upon tender of performance by respondents under the contract sued upon here. The maximum price was $8.80 per ton, depending upon the freight rate. In its purchase order to the Love and Amos Company, Tampa estimated that its requirements at the Gannon Station would be 350,000 tons in 1958; 700,000 tons in 1959 and 1960; 1,000,000 tons in 1961; and would increase thereafter, as required, to “about 2,250,000 tons per year.” The second unit at Gannon Station commenced operation 14 months after the first, i. e., October 1958. Construction of a third unit, the coal for which was to have been provided under the original contract, was also begun. The record indicates that the total consumption of coal in peninsular Florida, as of 1958, aside from Gannon Station, was approximately 700,000 tons annually. It further shows that there were some 700 coal suppliers in the producing area where respondents operated, and that Tampa Electric’s anticipated maximum requirements at Gannon Station, i. e., 2,250,000 tons annually, would approximate 1% of the total coal of the same type produced and marketed from respondents’ producing area. Petitioner brought this suit in the District Court pursuant to 28 U. S. C. § 2201, for a declaration that its contract with respondents was valid, and for enforcement according to its terms. In addition to its Clayton Act defense, respondents contended that the contract violated both §§ 1 and 2 of the Sherman Act which, it claimed, likewise precluded its enforcement. The District Court, however, granted respondents’ motion for summary judgment on the sole ground that the undisputed facts, recited above, showed the contract to be a violation of § 3 of the Clayton Act. The Court of Appeals agreed. Neither court found it necessary to consider the applicability of the Sherman Act. Decisions of District Court and Court of Appeals. Both courts admitted that the contract “does not expressly contain the 'condition’ ” that Tampa Electric would not use or deal in the coal of respondents’ competitors. Nonetheless, they reasoned, the “total requirements” provision had the same practical effect, for it prevented Tampa Electric for a period of 20 years from buying coal from any other source for use at that station. Each court cast aside as “irrelevant” arguments citing the use of oil as boiler fuel by Tampa Electric at its other stations, and by other utilities in peninsular Florida, because oil was not in fact used at Gannon Station, and the possibility of exercise by Tampa Electric of the option reserved to it to build oil-burning units at Gannon was too remote. Found to be equally remote was the possibility of Tampa’s conversion of existing oil-burning units at its other stations to the use of coal which would not be covered by the contract with respondents. It followed, both courts found, that the “line of commerce” on which the restraint was to be tested was coal— not boiler fuels. Both courts compared the estimated coal tonnage as to which the contract pre-empted competition for 20 years, namely, 1,000,000 tons a year by 1961, with the previous annual consumption of peninsular Florida, 700,000 tons. Emphasizing that fact as well as the contract value of the coal covered by the 20-year term, i. e., $128,000,000, they held that such volume was not “insignificant or insubstantial” and that the effect of the contract would “be to substantially lessen competition,” in violation of the Act. Both courts were of the opinion that in view of the executory nature of the contract, judicial enforcement of any portion of it could not be granted without directing a violation of the Act itself, and enforcement was, therefore, denied. Application of % 3 of the Clayton Act. In the almost half century sinee Congress adopted the Clayton Act, this Court has been called upon 10 times, including the present, to pass upon questions arising under § 3. Standard Fashion Co. v. Magrane-Houston Co., 258 U. S. 346 (1922), the first of the cases, held that the Act “sought to reach the agreements embraced within its sphere in their incipiency, and in the section under consideration to determine their legality by specific tests of its own. . . .” At p. 356. In sum, it was declared, § 3 condemned sales or agreements “where the effect of such sale or contract . . . would under the circumstances disclosed probably lessen competition, or create an actual tendency to monopoly.” At pp. 356-357. This was not to say, the Court emphasized, that the Act was intended to reach every “remote lessening” of competition — only those which were substantial — but the Court did not draw the line where “remote” ended and “substantial” began. There in evidence, however, was the fact that the activities of two-fifths of the Nation’s 52,000 pattern agencies were affected by the challenged device. Then, one week later, followed United Shoe Machinery Corp. v. United States, 258 U. S. 451 (1922), which held that even though a contract does “not contain specific agreements not to use the [goods] of a competitor,” if “the practical effect ... is to prevent such use,” it comes within the condition of the section as to exclusivity. At p. 457. The Court also held, as it had in Standard Fashion, supra, that a finding of domination of the relevant market by the lessor or seller was sufficient to support the inference that competition had or would be substantially lessened by the contracts involved there. As of that time it seemed clear that if “the practical effect” of the contract was to prevent a lessee or buyer from using the products of a competitor of the lessor or seller and the contract would thereby probably substantially lessen competition in a line of commerce, it was proscribed. A quarter of a century later, in International Salt Co. v. United States, 332 U. S. 392 (1947), the Court held, at least in tying cases, that the necessity of direct proof of the economic impact of such a contract was not necessary where it was established that “the volume of business affected” was not “insignificant or insubstantial” and that the effect was “to foreclose competitors from any substantial market.” At p. 396. It was only two years later, in Standard Oil Co. v. United States, 337 U. S. 293 (1949), that the Court again considered § 3 and its application to exclusive supply or, as they are commonly known, requirements contracts. It held that such contracts are proscribed by § 3 if their practical effect is to prevent lessees or purchasers from using or dealing in the goods, etc., of a competitor or competitors of the lessor or seller and thereby “competition has been foreclosed in a substantial share of the line of commerce affected.” At p. 314. In practical application, even though a contract is found to be an exclusive-dealing arrangement, it does not violate the section unless the court believes it probable that performance of the contract will foreclose competition in a substantial share of the line of commerce affected. Following the guidelines of earlier decisions, certain considerations must be taken. First, the line of commerce, i. e., the type of goods, wares, or merchandise, etc., involved must be determined, where it is in controversy, on the basis of the facts peculiar to the case. Second, the area of effective competition in the known fine of commerce must be charted by careful selection of the market area in which the seller operates, and to which the purchaser can practicably turn for supplies. In short, the threatened foreclosure of competition must be in relation to the market affected. As was said in Standard Oil Co. v. United States, supra: “It is clear, of course, that the ‘line of commerce’ affected need not be nationwide, at least where the purchasers cannot, as a practical matter, turn to suppliers outside their own area. Although the effect on competition will be quantitatively the same if a given volume of the industry’s business is assumed to be covered, whether or not the affected sources of supply are those of the industry as a whole or only those of a particular region, a purely quantitative measure of this effect is inadequate because the narrower the area of competition, the greater the comparative effect on the area’s competitors. Since it is the preservation of competition which is at stake, the significant proportion of coverage is that within the area of effective competition.” At p. 299, note 5. In the Standard Oil case, the area of effective competition — the relevant market — was found to be where the seller and some 75 of its competitors sold petroleum products. Conveniently identified as the Western Area, it included Arizona, California, Idaho, Nevada, Oregon, Utah and Washington. Similarly, in United States v. Columbia Steel Co., 334 U. S. 495 (1948), a § 1 Sherman Act case, this Court decided the relevant market to be the competitive area in which Consolidated marketed its products, i. e., 11 Western States. The Court found Consolidated’s share of the nationwide market for the relevant line of commerce, rolled steel products, to be less than % of 1%, an “insignificant fraction of the total market,” at p. 508; and its share of the more narrow but only relevant market, 3%, was described as “a small part,” at p. 511, not sufficient to injure any competitor of United States Steel in that area or elsewhere. Third, and last, the competition foreclosed by the contract must be found to constitute a substantial share of the relevant market. That is to say, the opportunities for other traders to enter into or remain in that market must be significantly limited as was pointed out in Standard Oil Co. v. United States, supra. There the impact of the requirements contracts was studied in the setting of the large number of gasoline stations — 5,937 or 16% of the retail outlets in the relevant market — and the large number of contracts, over 8,000, together with the great volume of products involved. This combination dictated a finding that “Standard’s use of the contracts [created] just such a potential clog on competition as it was the purpose of § 3 to remove” where, as there, the affected proportion of retail sales was substantial. At p. 314. As we noted above, in United States v. Columbia Steel Co., supra, substantiality was judged on a comparative basis, i. e., Consolidated’s use of rolled steel was “a small part” when weighed against the total volume of that product in the relevant market. To determine substantiality in a given case, it is necessary to weigh the probable effect of the contract on the relevant area of effective competition, taking into account the relative strength of the parties, the proportionate volume of commerce involved in relation to the total volume of commerce in the relevant market area, and the probable immediate and future effects which pre-emption of that share of the market might have on effective competition therein. It follows that a mere showing that the contract itself involves a substantial number of dollars is ordinarily of little consequence. The Application of § 3 Here. In applying these considerations to the facts of the case before us, it appears clear that both the Court of Appeals and the District Court have not given the required effect to a controlling factor in the case — the relevant competitive market area. This omission, by itself, requires reversal, for, as we have pointed out, the relevant market is the prime factor in relation to which the ultimate question, whether the contract forecloses competition in a substantial share of the line of commerce involved, must be decided. For the purposes of this case, therefore, we need not decide two threshold questions pressed by Tampa Electric. They are whether the contract in fact satisfies the initial requirement of § 3, i. e., whether it is truly an exclusive-dealing one, and, secondly, whether the line of commerce is boiler fuels, including coal, oil and gas, rather than coal alone. We, therefore, for the purposes of this case, assume, but do not decide, that the contract is gn-exclusive-dealing arrangement within the compass of § 3, and that the line of commerce is bituminous coal. Relevant Market of Effective Competition. Neither the Court of Appeals nor the District Court considered in detail the question of the relevant .market. They do seem, however, to have been satisfied with inquiring only as to competition within “Peninsular Florida.” It was noted that the total consumption of peninsular Florida was 700,000 tons of coal per year, about equal to the estimated 1959 requirements of Tampa Electric. It was also pointed out that coal accounted for less than 6% of the fuel consumed in the entire State. The District Court concluded that though the respondents were only one of 700 coal producers who could serve the same market, peninsular Florida, the contract for a period of 20 years excluded competitors from a substantial amount of trade. Respondents contend that the coal tonnage covered by the contract must be weighed against either the total consumption of coal in peninsular Florida, or all of Florida, or the Bituminous Coal Act area comprising peninsular Florida and the Georgia “finger,” or, at most, all of Florida and Georgia. If the latter area were considered the relevant market, Tampa Electric’s proposed requirements would be 18% of the tonnage sold therein. Tampa Electric says that both courts and respondents are in error, because the “700 coal producers who could serve” it, as recognized by the trial court and admitted by respondents, operated in the Appalachian coal area and that its contract requirements were less than 1% of the total marketed production of these producers; that the relevant effective area of competition was the area in which these producers operated, and in which they were willing to compete for the consumer potential. We are persuaded that on the record in this case, neither peninsular Florida, nor the entire State of Florida, nor Florida and Georgia combined constituted the relevant market of effective competition. We do not believe that the pie will slice so thinly. By far the bulk of the overwhelming tonnage marketed from the same producing area as serves Tampa is sold outside of Georgia and Florida, and the producers were “eager” to sell more coal in those States. While the relevant competitive market is not ordinarily susceptible to a “metes and bounds” definition, cf. Times-Picayune Pub. Co. v. United States, 345 U. S. 594, 611, it is of course the area in which respondents and the other 700 producers effectively compete. Standard Oil Co. v. United States, supra. The record shows that, like the respondents, they sold bituminous coal “suitable for [Tampa’s] requirements,” mined in parts of Pennsylvania, Virginia, West Virginia, Kentucky, Tennessee, Alabama, Ohio and Illinois. We take notice of the fact that the approximate total bituminous coal (and lignite) product in the year 1954 from the districts in which these 700 producers are located was 359,289,000 tons, of which some 290,567,000 tons were sold on the open market. Of the latter amount some 78,716,000 tons were sold to electric utilities. We also note that in 1954 Florida and Georgia combined consumed at least 2,304,000 tons, 1,100,000 of which were used by electric utilities, and the sources of which were mines located in no less than seven States. We take further notice that the production and marketing of bituminous coal (and lignite) from the same districts, and assumedly equally available to Tampa on a commercially feasible basis, is currently on a par with prior years. In point of statistical fact, coal consumption in the combined Florida-Georgia area has increased significantly since 1954. In 1959 more than 3,775,000 tons were there consumed, 2,913,000 being used by electric utilities including, presumably, the coal used by the petitioner. The coal continued to come from at least seven States. From these statistics it clearly appears that the proportionate volume of the total relevant coal product as to which the challenged contract pre-empted competition, less than 1%, is, conservatively speaking, quite insubstantial. A more accurate figure, even assuming pre-emption to the extent of the maximum anticipated total requirements, 2,250,000 tons a year, would be .77%. Effect on Competition in the Relevant Market. It may well be that in the context of antitrust legislation protracted requirements contracts are suspect, but they have not been declared illegal per se. Even though a single contrict between single traders may fall within the initial broad proscription of the section, it must also suffer the qualifying disability, tendency to work a substantial — not remote — lessening of competition in the relevant competitive market. It is urged that the present contract pre-empts competition to the extent of purchases worth perhaps $128,000,000, and that this “is, of course, not insignificant or insubstantial.” While $128,000,000 is a considerable sum of money, even in these days, the dollar volume, by itself, is not the test, as we have already pointed out. The remaining determination, therefore, is whether the pre-emption of competition to the extent of the tonnage involved tends to substantially foreclose competition in the relevant coal market. We think not. That market sees an annual trade in excess of 250,000,000 tons of coal and over a billion dollars — multiplied by 20 years it runs into astronomical figures. There is here neither a seller with a dominant position in the market as in Standard Fashions, supra; nor myriad outlets with substantial sales volume, coupled with an industry-wide practice of relying upon exclusive contracts, as in Standard Oil, supra; nor a plainly restrictive tying arrangement as in International Salt, supra. On the contrary, we seem to have only that type of contract which “may well be of economic advantage to buyers as well as to sellers.” Standard Oil Co. v. United States, supra, at p. 306. In the case of the buyer it “may assure supply,” while on the part of the seller it “may make possible the substantial reduction of selling expenses, give protection against price fluctuations, and . . . offer the possibility of a predictable market.” Id., at 306-307. The 20-year period of the contract is singled out as the principal vice, but at least in the case of public utilities the assurance of a steady and ample supply of fuel is necessary in the public interest. Otherwise consumers are left unprotected against service failures owing to shutdowns; and increasingly unjustified costs might result in more burdensome rate structures eventually to be reflected in the consumer’s bill. The compelling validity of such considerations has been recognized fully in the natural gas public utility field. This is not to say that utilities are immunized from Clayton Act proscriptions, but merely that, in judging the term of a requirements contract in relation to the substan-tiality of the foreclosure of competition, particularized considerations of the parties’ operations are not irrelevant. In weighing the various factors, we have decided that in the competitive bituminous coal marketing area involved here the contract sued upon does not tend to foreclose a substantial volume of competition. We need not discuss the respondents’ further contention that the contract also violates § 1 and § 2 of the Sherman Act, for if it does not fall within the broader proscription of § 3 of the Clayton Act it follows that it is not forbidden by those of the former. Times-Picayune Pub. Co. v. United States, supra, at pp. 608-609. The judgment is reversed and the case remanded to the District Court for further proceedings not inconsistent with this opinion. It is so ordered. Mr. Justice Black and Mr. Justice Douglas are of the opinion that the District Court and the Court of Appeals correctly decided this case and would therefore affirm their judgments. “It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale or contract for sale of goods ... for use, consumption, or resale within the United States ... on the condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the goods ... of a competitor or competitors of the . . . seller, where the effect of such lease, sale, or contract for sale or such condition, agreement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce.” 15 U. S. C. § 14. In addition to their claim under § 3 of the Clayton Act, respondents argue the contract is illegal under the Sherman Act, 15 U. S. C. §§ 1-2. The original contract was with Potter Towing Company, and by subsequent agreements with Tampa Electric responsibility thereunder was assumed by respondent West Kentucky Coal Company. Cf. Kelly v. Kosuga, 358 U. S. 516. For discussion of previous cases, see Standard Oil Co. v. United States, 337 U. S. 293, 300-305. See International Boxing Club v. United States, 358 U. S. 242. In support of these contentions petitioner urges us to consider that it remains free to convert existing oil-burning units at its other plants to coal-burning units, the fuel for which it would be free to purchase from any seller in the market; also that just as it is permitted to use oil at its other plants, so, too, it may construct all future Gannon units as oil burners; and that in any event it is free to draw a maximum of 15% of its Gannon fuel requirements from by-products of local customers. Petitioner further argues that its novel reliance upon coal in fact created new fuel competition in an area that theretofore relied almost exclusively upon oil and, to a lesser extent, upon natural gas. Oil and, to a lesser extent, natural gas are the primary fuels consumed in Florida. Peabody Coal Company offered to supply petitioner with coal from its mines in western Kentucky, for use in the units at another of its Florida stations, and that offer prompted a renegotiation of the price petitioner was paying for the oil then being consumed at that station. U. S. Bureau of the Census. I U. S. Census of Mineral Industries: 1954, Series: MI-12B, p. 4 (1957). Id., at 12B-6. 1,569,000 tons from counties in West Virginia, Virginia, Kentucky, Tennessee and North Carolina; 412,000 tons from counties in Alabama, Georgia and Tennessee; the balance was produced in other counties in West Virginia, Virginia and western Kentucky. Id., at 12B-10. United States Dept, of Interior, Bureau of Mines, II Minerals Yearbook (Fuels), 1959. United States Dept, of Interior, Bureau of Mines, Mineral Market Report, M. M. S. No. 3035, p. 23 (1960). These statistics were taken from sources cited by respondents. 1,787,000 tons from certain counties in West Virginia, Virginia, Kentucky, Tennessee and North Carolina; 1,321,000 tons from counties in Alabama, Georgia and elsewhere in Tennessee; 665,000 tons from the western Kentucky fields; 2,000 tons from other counties in West Virginia and Virginia. Ibid. In this connection we note incidentally that in Appalachian Coals, Inc., v. United States, 288 U. S. 344, 369 (1933), cited by respondents, Chief Justice Hughes quoted testimony showing that in 1932 it was nothing those days “for one interest or one concern to buy several million tons of coal.” At n. 7. The findings of the District Court showed that one utility consumed 2,485,000 tons of coal a year. Other concerns had requirements running from 30,000 to 250,000 tons annually, while a textile manufacturer used 600,000 tons. At p. 370, n. 8. The Chief Justice also stated in his opinion that, within 24 counties in Kentucky, Tennessee (in both of which respondents operate) and their competitive States of Virginia and West Virginia, “there are over 1,620,000 acres of coal bearing land, containing approximately 9,000,000,000 net tons of recoverable coal . . . .” At p. 369. 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_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". INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO-CLC, an unincorporated association, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, Local 449, an unincorporated association, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, Local 627, an unincorporated association, H. J. Adams, Genevieve Arnett, Josephine Baker, Marge Dinnan Brophy, Henrietta Brown, Dorothy M. Burton, Minnie Chatman, Mary E. Cobb, A. Contento, Melvina Cooper, Jean Corbin, Norma Doyle, Eleanor Dye, Tanya Fourshee, D. Fowler, Dorothy Gaines, Martha Gant, Madeline Giese, L. M. Harris, Dorothy Hayes, Eleanor Hunker, Pauline Lee, J. Lindenthal, Ollie Little, Madeline Martino, D. P. Massi, Rena McLeod, S. McNeil, Patti Mitchell, Roberta Moore, Mabel Morrell, Mildred Ociki, Helen O’Loughlin, Mary Pfister, Ann Raho, R. Rainear, P. Rutowski, Loretta Ryan, J. L. Sheldon, V. Vaughn, Helen Walsh, and Shirley Watkins, on behalf of themselves and on behalf of all persons similarly situated, v. WESTINGHOUSE ELECTRIC CORPORATION, a corporation, International Union of Electrical, Radio and Machine Workers, AFL-CIO, CLC (“IUE”) and Locals 449 and 627, Appellants in 79-1893, Marge Brophy, Henrietta Brown, Melvina Cooper, Ann Raho Frazier and Helen Walsh, on behalf of themselves and the class they represent, Appellants in 79-1894. Nos. 79-1893, 79-1894. United States Court of Appeals, Third Circuit. Argued March 20, 1980. Decided Aug. 1, 1980. Michael H. Gottesman, Frank Petramalo, Jr., Jeremiah A. Collins, Bredhoff, Gottes-man, Cohen & Weinberg, Washington, D. C., Sidney L. Reitman, Jesse H. Strauss, Kapeljohn, Lerner, Reitman & Maisel, Newark, N. J., for individual appellants. Virginia Fenton, Carpenter, Bennett & Morrissey, Newark, N. J., Stuart I. Salt-man, Westinghouse Electric Corp., Pittsburgh, Pa., Walter P. DeForest (argued), Peter D. Post, Martha Hartle Munsch, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for appellee Westinghouse Electric Corp. Robert E. Williams, Douglass McDowell, McGuiness & Williams, Washington, D. C., for amicus curiae Equal Employment Advisory Council. Norman Redlich, Co-Chairman, New York City, Norman J. Chachkin, Richard T. Seymour, Staff Attys., Lawyers’ Committee for Civil Rights Under Law, Washington, D. C., for amici curiae Lawyers’ Committee for Civil Rights Under Law, et al. Winn Newman, Carole W. Wilson, Washington, D. C., Richard B. Sobol (argued), Ann H. Franke, Sobol & Trister, Washington, D. C., for Union appellants. Leroy D. Clark, Gen. Counsel (argued), Joseph T. Eddins, Associate Gen. Counsel, Beatrice Rosenberg, Asst. Gen. Counsel, Vincent J. Blackwood, Atty., Equal Employment Opportunity Commission, Washington, D. C., Drew S. Days, III, Asst. Atty. Gen., David L. Rose, Sandra L. Hughes, Attys., Dept, of Justice, Washington, D. C., for amici curiae Equal Employment Opportunity Commission and the United States. Before SEITZ, Chief Judge, and VAN DUSEN and HIGGINBOTHAM, Circuit Judges. OPINION OF THE COURT A. LEON HIGGINBOTHAM, Jr., Circuit Judge. The plaintiffs in this case brought suit alleging, inter alia, that the Westinghouse Electric Corporation (Westinghouse or the company) had set the wage rates lower for those job classifications which were predominantly filled by females than the wage rates for those job classifications which were predominantly filled by males. Plaintiffs claimed that this disparity was attributable to the fact that the company deliberately paid lower wages for those types of work which would be done predominantly by women. They claimed this disparity is in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2-2000h-6. The district court held that Title VII did not prevent sex discrimination in setting wage rates for different categories of jobs unless it could be shown that the jobs, regardless of the reason for their classification, involved equal or substantially equal work. Because the plaintiffs had stated that they did not intend to prove that the jobs predominantly filled by women were the same as the'jobs predominantly held by men, the court granted Westinghouse’s motion for partial summary judgment. The plaintiffs appealed. The instant case pushes us to the edge of subtle concepts of statutory construction. It involves sophisticated aspects of personnel policies and job classifications and it rests on a legislative history which is not totally free of ambiguity. Thus, at the outset it is essential that we make clear what is not involved in this case. Westinghouse is not being charged with the type of discrimination where different wages have been paid to men and women who are in the same classification and who perform the same work. For any classification which was predominantly filled by women, Westinghouse paid the same wage to any male who might work within that same classification. The problem here is that Westinghouse allegedly used a system which set the wage rates lower for any classification if the group covered within that category was predominantly female. Under the applicable law it is clear that Westinghouse could not create job classifications whereby different wages were paid to one group solely because of considerations of religion, race or national origin. The statutory issue here is whether Congress intended to permit Westinghouse to willfully discriminate against women in a way in which it could not discriminate against blacks or whites, Jews or Gentiles, Protestants or Catholics, Italians or Irish, or any other group protected by the Act. Because we hold that this alleged intentional discrimination in formulating classifications of jobs violates Title VII, we will reverse. I. Westinghouse’s present wage structure, according to the plaintiffs, is derived from a wage structure Westinghouse established in the late 1930’s which was described in Westinghouse’s Industrial Relations Manual Wage Administration, Part 3, section 3 (1939), reprinted in Appendix at 110. At that time all of the job classifications at Westinghouse’s Trenton, New Jersey plant were allegedly segregated by sex. The “female” jobs included assembly line jobs, sub-assembly jobs and quality control jobs. The “male” jobs included janitor, forklift operator, warehouseman, various material handling jobs, and craft jobs. For simplicity we will refer to those job classifications which are predominantly filled by women as “female” jobs and those filled predominantly by men as “male” jobs. The 1939 manual explains that the company first “point-rated” all of its jobs taking into account the knowledge and training required, and the specific demands and responsibilities of the job. It then assigned each job a numerical value, based on an evaluation of these three factors. Next each job was assigned a “grade” based on its point rating and “keysheets” were developed which set forth the hourly wage for jobs at each labor grade. The plaintiffs contend that the wage rates for female jobs were set lower than the rates for male jobs which had received the same point rating. Indeed, Westinghouse’s manual stated, “The rate or range for Labor Grades [for women] do not coincide with the values on the men’s scale. Basically then, we have another wage curve or Key Sheet for women below and not parallel with the men’s curve.” Id. at 158a (emphasis added). In 1965 the company established a unitary key sheet in which the grades had no explicit sexual designation. The plaintiffs contend that the new wage scale, which is still in use, embodies the deliberately discriminatory policy of the prior plan. In support of their view, they contend that Westinghouse expanded the number of labor grades from nine to thirteen and generally accorded female jobs labor grades in the new scale below those of male jobs even though these jobs had been at corresponding labor grades before the merger. They also point to the fact that the vast majority of the women at the Trenton plant are still employed in the female jobs. Their records show employee assignments at the Trenton plant as of November 30, 1975 as follows: Westinghouse - Trenton Plant Male Female LG1 0 6 LG2 0 33 LG3 1 125 3. On a motion for summary judgment all factual disputes are resolved against the moving party. We have therefore adopted the plaintiffs’ version of the facts in our resolution of this appeal. See Adickes v. S. H. Kress and Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970). Westinghouse-Trenton Plant Male Female LG4 0 18 LG5 21 16 LG6 4 14 LG7 3 0 LG8 2 0 LG9 3 1 LG10 4 0 LG11 0 0 LG12 19 0 LG13 19 __0 76 213 Brief for Appellants at 10-11. This table shows that with a single exception the 183 employees working at Labor Grades 1 through 4 were women, the grades into which the female jobs were placed in 1965. Thus, eighty five percent of the women working in the plant in 1975 were assigned to these jobs. Although the plaintiffs acknowledge that “there have been some changes in job content over the years, and some rate adjustments,” in their view “the changes have not eradicated the wage inequities established by the [1930] system.” Id. at 10. The district court held that Title VII had not been violated even if the wage scale had been set in the manner described by the plaintiffs. It reasoned that because of the Bennett Amendment, which is included in section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), sex-based discrimination in compensation violates Title VII only if it also violates the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (Equal Pay Act). The court held that the Equal Pay Act proscribes discriminatory compensation only when it is shown that the plaintiff performs the same work or substantially the same work of other employees. Since the plaintiffs in this case agreed that their suit did not involve classifications involving the same work or substantially the same work, the district court ruled that the plaintiffs did not have a cause of action under Title VII. International Union of Electrical Workers v. Westinghouse Electric Corp., 19 FEP Cases 450 (D.N.J.1979) [hereinafter IUE I]. The late Judge Barlow, one of our most distinguished trial judges, summarized his holding by stating, “In conclusion, therefore, we have ruled that allegations and proof of unequal pay for unequal, but comparable, work does not state a claim upon which relief can be granted....” Id. at 457. In response to a motion by the plaintiffs, the district court entered final judgment on this claim and certified an order so that it could be appealed pursuant to Rule 54(b), Fed.R.Civ.Proc. International Union of Electrical Workers v. Westinghouse Electric Corp., 19 FEP Cases 1028 (D.N.J.1979) [hereinafter IUE II]. II. Because it affects our jurisdiction we asked the parties to brief the question of whether the district court properly certified the judgment pursuant to Rule 54(b). We conclude that the district court did not abuse its discretion when it entered the final order. See Curtiss-Wright Corp. v. General Electric Corp., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980). The district court noted that as a result of the earlier decision, IUE I, the claim of sex-based wage discrimination was terminated and the issue would not be raised a second time after a trial on the remaining claims. Noting that the claim was one of statutory construction and did “not deal with the factual issues at the heart of the unadjudi-cated claims,” the court felt the issue was “sufficiently distinct to permit certification.” IUE II, 19 FEP Cases at 1029-30. The court also took into consideration the fact that the EEOC had argued that the claim involved a “ ‘novel issue’ which is likely to recur.” Id. at 1029. We agree that these factors weigh in favor of certification and will therefore affirm the entry of the final order. III. A. At the heart of this appeal lies an amendment to Title VII which was introduced by Senator Bennett of Utah in the final days of the passage of the Civil Rights Act of 1964. The Bennett Amendment (the Amendment), which was adopted as introduced by Senator Bennett and included in section 703(h) of Title VII, provides: It shall not be an unlawful employment practice under this subchapter for an employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206(d) of Title 29. 42 U.S.C. § 2000e-2(h). Section 206(d) of Title 29, the Equal Pay Act of 1963, proscribes sex-based discrimination in compensation for the same or substantially the same work except when the differential is the result of “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” The dispute hére is about what is meant by the phrase in the Amendment “if such differentiation is authorized by”. This phrase could mean that except for the four limitations of section 206(d), Title VII has as broad a coverage on sex discrimination changes as it does in any other case. Thus, other than the four exceptions of the Equal Pay Act, there is no dilution of sex discrimination coverage in Title VII cases. This argument could be called the “broad coverage position,” and is asserted by the plaintiffs and the EEOC. On the other hand, the language in the Amendment could be construed to deny sex discrimination cases the “broader coverage” and to limit the prohibition against sex-based discrimination in wages to situations where the employees are performing the same or substantially the same work, in the manner that the Equal Pay Act is limited. This later view is urged by Westinghouse. We have not found the resolution of this dispute to be a simple one. Our research has not revealed any single document or statement which unambiguously gives the Amendment meaning. Yet, each document we have found pushes us slowly yet firmly to the conclusion that the Bennett Amendment merely incorporates into Title VII the four exceptions outlined in the Equal Pay Act, the “broader coverage position”. B. At the outset we note that the construction urged by Westinghouse would result in a substantial limitation on the scope of Title VII’s power to address the problems of sex-based discrimination in employment. Westinghouse’s position would permit employers to discriminate against women even though they could not pursue similar discriminatory practices against others on account of race, religion or national origin. As an example, it is clear that Title VII prohibits an employer from paying more per hour to welders than plumbers if the reason for the employer paying higher wages to the welder is that the majority of the welders are Protestants and that the majority of the plumbers are Catholics. In such a case an employer would be “classifying] his employees... in [a] way which would deprive any individual of employment opportunities [high wages]. because of such individual’s... religion.” 42 U.S.C. § 2000e-2(a). While Westinghouse presumably would not challenge the illegality of the scheme outlined above, it asserts that the scheme would be permissible if the reason for the wage disparity is that the majority of welders are men and the majority of plumbers women. The Supreme Court has never ruled on the statutory issue raised in this case, but in dicta in Title VII cases, the Court tends to refer to discrimination on the basis of race, religion, sex, or national origin as they are equally nefarious and equally prohibited. For in Franks v. Bowman Transportation Co., 424 U.S. 747, 763, 96 S.Ct. 1251, 1263, 47 L.Ed.2d 444 (1976) (emphasis added) (citations omitted), the Supreme Court stated: We begin by repeating the observation of earlier decisions that in enacting Title VII of the Civil Rights Act of 1964, Congress intended to prohibit all practices in whatever form which create inequality in employment opportunity due to discrimination on the basis of race, religion, sex, or national origin,.. and ordained that its policy of outlawing such discrimination should have the “highest priority”. In the absence of explicit statutory language or Supreme Court holdings to the contrary, we are hesitant to conclude that Title VII would allow discriminatory behavior on the basis of sex, when the same behavior would be prohibited if made on the basis of race, religion or national origin. C. We start our inquiry, as all inquiries involving statutory construction should, with the language of the statute. Lewis v. United States, 445 U.S. 55, 60, 100 S.Ct. 915, 918, 63 L.Ed.2d 198 (1980). The Bennett Amendment states that differentiations “authorized by” the Equal Pay Act are not unlawful. Normally the term “authorized” is used to describe something that is endorsed or expressly permitted and not, as Westinghouse suggests, something which is merely not prohibited. Thus, the plain language of the Amendment lead us to the conclusion that the Amendment dilutes Title VII only to the extent that it incorporates the four wage differentials expressly endorsed or permitted by the Equal Pay Act. Westinghouse asserts that other language in section 703(h), of which the Bennett Amendment is a part, suggests a contrary interpretation, for this language already provides for three of the four exceptions to the Equal Pay Act. Westinghouse argues that most of the Bennett Amendment would be superfluous if it were limited to the four exceptions, and thus it contends the language of the Act supports its position. We do not agree. We find it more reasonable to conclude that the repetition of the exceptions in the Amendment ensured that the two statutes would be interpreted in the same manner. With the Bennett Amendment the Equal Pay Act exceptions became “applicable to Title VII as well.” General Electric v. Gilbert, 429 U.S. 125, 144, 97 S.Ct. 401, 412, 50 L.Ed.2d 343 (1970) (Equal Pay Act provisions on pregnancy benefits are controlling). By making the acts coterminous Congress eliminated the possibility that an employer would be subject to conflicting regulations. Thus, the language is not surplusage. Westinghouse argues that we should apply the in pari materia canon of statutory construction. Under this canon, “a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum. ‘Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.’ ” Radzanower v. Touche, Ross & Co., 426 U.S. 148, 153, 96 S.Ct. 1989, 1992, 18 L.Ed.2d 540 (1976), quoting, Morton v. Mancari, 417 U.S. 535, 550-51, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974). We decline to apply this canon, for it is inconsistent with the Supreme Court’s caution that remedies for employment discrimination “supplement” each other and should not be construed so as to ignore the differences among them. Alexander v. Gardner-Denver Co., 415 U.S. 36, 48-49 & n. 9, 94 S.Ct. 1011, 1019-1020 & n. 9, 39 L.Ed.2d 147 (1974). Further it conflicts with another rule of statutory construction namely, “where a statute with respect to one subject contains a specific provision, the omission of such provision from a similar statute is significant to show a different intention existed.” Richerson v. Jones, 551 F.2d 918, 928 (3d Cir. 1977), quoting, General Electric Co. v. Southern Construction Co., 383 F.2d 135, 138 & n. 4 (5th Cir. 1967); Tooahnippah v. Hickel, 397 U.S. 598, 606-07, 90 S.Ct. 1316, 1321-22, 25 L.Ed.2d 600 (1970). Thus, we conclude that the plain language of the statute suggests that only the four exceptions of the Equal Pay Act were incorporated as limitations on Title VII. D. The legislative materials on the Bennett Amendment are remarkable only for their equivocacy and turbidity. As has oft been noted, sex was added as a protected classification late in the debate on the Civil Rights Act as the result of an amendment proposed by Representative Smith of Virginia. Probably because sex discrimination was not contemplated as part of the original bill, the “legislative history of Title VII’s prohibition of sex discrimination is notable primarily for its brevity.” General Electric v. Gilbert, 429 U.S. at 143, 97 S.Ct. at 411. The Bennett Amendment was not part of the Civil Rights Act when it had first passed the House and was sent to the Senate, although the Act at that time included the prohibition against sex discrimination. The Amendment was included later on the floor of the House, after cloture was adopted, following a very brief colloquy. Only a few legislative materials are available. Some are ambiguous and, as the parties before us have demonstrated, an ingenious and intelligent mind may find support in all of them for either interpretation. After our review, however, we conclude that on balance they show that Congress intended the more limited scope urged by the plaintiffs. The first discussion of the issue of discrimination in compensation based on sex is presented by Senator Clark, one of the bill’s floor managers. In April 1964 he introduced into the Congressional Record a memorandum which included his answers to questions raised by Senator Dirksen about the Civil Rights Act. There he stated: “The standards in the Equal Pay Act for determining discrimination as to wages, of course, are applicable to the comparable situation under Title VIL” 11 Cong.Rec. 7217 (1964). This passage is ambiguous as it can be interpreted to mean that Title VII is only as broad as the Equal Pay Act. It is, however, equally possible that Senator Clark simply meant that when equal work challenges were made, the Equal Pay Act was controlling and that he was not addressing the problem of discrimination of the sort alleged here. The memorandum is not helpful as a guide to interpret the Bennett Amendment, however, for the comment was made on April 4th, and the Bennett Amendment was not introduced until two months later, June 12, 1964. The passage is therefore only helpful to the extent that it suggests that there was some interest in Congress in the interrelationship of the two acts. The second passage records the colloquy which occurred when Senator Bennett introduced his amendment to the Senate and it was subsequently approved. Introducing the bill, Senator Bennett explained, “The purpose of my amendment is to provide that in the event of conflicts, the provisions of the Equal Pay Act shall not be nullified.” Senator Dirksen stated in response, “The Fair Labor Standards Act [Equal Pay Act] carries out certain exceptions. All that the pending amendment does is recognize those exceptions, that are carried in the basic act.” Id. at 13647. The import of these comments is that the Amendment was merely intended to carry forward the exceptions of the Equal Pay Act. In our analysis we give this passage special significance, as this is the only explanation provided to the body which voted on the Amendment. The third item is Representative Celler’s July 2nd explanation to the House of the changes the Senate made in the House bill, including the Bennett Amendment. There he stated, “Second. [The Senate amendment] [p]rovides that compliance with the Fair Labor Standards Act as amended satisfies the requirement of the title barring discrimination because of sex-section 703(b).” Id. at 15896. The district court suggested that this showed that Title VII was meant to be no" broader than the Equal Pay Act. IUE 1,19 FEP Cases at 454. An equally plausible construction is that compliance with the “equal work” requirements of the Equal Pay Act met Title VIPs requirement on that issue only. We are persuaded that Representative Celler must have intended the later interpretation since Title VII proscribes a broad range of gender-based discrimination which is not barred by the Equal Pay Act, such as discriminatory promotions, transfers and firing. Finally, there are two items written after the Civil Rights Act was passed. We view them cautiously as we are mindful of the Supreme Court’s warning in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 354, n. 39, 97 S.Ct. 1843, 1864, n. 39, 52 L.Ed.2d 396 (1977), that “[t]he views of the members of a later Congress, concerning different sections of Title VII, enacted after this litigation was commenced, are entitled to little if any weight.” The first is a memorandum introduced into the Congressional record by Senator Bennett, in June 1965. The final words of the memorandum state explicitly, “Simply stated, the amendment means that discrimination in compensation on account of sex does not violate Title VII unless it also violates the Equal Pay Act.” Ill Cong.Rec. 13359 (1965). The plaintiffs have pointed us to a sentence earlier in the memorandum which states that the Amendment merely refers to the exemption of certain employees from Equal Pay Act coverage and to the four exceptions of the Equal Pay Act. They argue that this shows Senator Bennett felt the Amendment referred only to the exceptions. We cannot agree. The final statement is quite explicit and it does support Westinghouse’s view. Nevertheless, we are not persuaded that this passage represents the intent of Congress at the time it passed the Amendment. We note that it differs from Senator Bennett’s earlier explanation, which was the explanation relied on by the Congressmen who approved the Amendment. Further, there was very little discussion of this ex post facto history at the time it was introduced and it was not voted upon. We agree with the Ninth Circuit’s interpretation of the significance of. this passage. In Gunther v. County of Washington, 22 FEP 1650, 1652, 623 F.2d 1303, 1317-18 (9th Cir. 1980), aff’ing upon petition for rehearing, 602 F.2d 882 (1979), that court stated: As the amendment’s sponsor, Senator Bennett’s understanding of the amendment might have been entitled to some weight if it had been expressed contemporaneously with the passage of the legislation. See Galvan v. Press, 347 U.S. 522, 526-27, 74 S.Ct. 737, 740, 98 L.Ed. 911 (1954). Coming one year after the Bennett Amendment was enacted, however, the statement at best reflects what was on Senator Bennett’s mind when he introduced the amendment and is entitled to no weight. See Manhart v. Los Angeles Department of Power and Water, 553 F.2d 581, 589 (9th Cir. 1976), aff’d in part and rev’d in part on other grounds, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed. 2d 657 (1978) (discussion occurring “hours” after passage of Bennett Amendment is not part of amendment’s legislative history). Either from a legal standpoint or as a practical matter, Senator Bennett’s statement cannot express what was on Congress’ collective mind when it acted a year earlier. If Señator Bennett’s “clarifying” statement has any significance it must be as evidence that the amendment was ambiguous on its face and that its contemporaneous legislative history was not enlightening. The second item written after the Act was passed is contained in a 1977 Senate Report on amendments to Title VII. The Senate Committee states, “It is the committee’s opinion that [an] application of the Bennett Amendment which assumes that the provision insulates from Title VII all compensation and fringe benefit programs which do not also violate the Equal Pay Act is not correct”. S. Rep. No. 95-311, 95th Cong., 1st Sess. at 7 (1977). We note the report was written in response to a Supreme Court decision interpreting section 703(h) in a manner which the Senate committee thought was contrary to the view of Congress. The earlier legislative history is consistent with the committee’s later statement and supports the plaintiffs’ position. We, however, have the same difficulty with this passage that we have with Senator Bennett’s memorandum. It is ex post fac-to, and it was neither voted upon nor approved by the Congress as a whole. Thus, we do not rely on it. About the time of the passage of the Bennett Amendment, June 12,1964, a number of other amendments which would have limited the scope of Title VII, and which would have had a much smaller potential impact on the scope of Title VII’s coverage, were rejected by the Senate. Between June 4 and June 17, when the Civil Rights Act was approved by the Senate, twenty-three amendments were rejected. Among them was an amendment to permanently restrict Title VII’s coverage to establishments with 100 or more employees (No. 606), 110 Cong.Rec. 13093 (1964); Senator Tower’s original testing amendment (No. 605), id. at 13505; an amendment requiring that Equal Employment Opportunity Commission (EEOC) employees identify themselves when serving as investigators (No. 963); id. at 13650; an amendment expressly permitting EEOC employees to give congressional testimony (No. 922), id. at 14193, 14196; an amendment prohibiting the EEOC from withholding any evidence testimony or records from any court or congressional committee (No. 550), id. at 13910; and an amendment allowing the EEOC to elect its own chairman and vice chairman,rather than providing for their appointment by the President (No. 846), id. at 13945-46. We think that the congressional opposition to these minor amendments suggests that the Bennett Amendment was not intended to limit Title VII’s coverage as Westinghouse urges for the Amendment probably would have been more widely disputed and discussed if that was the intent. Again, this evidence is not decisive to our decision, but it supports the plaintiff’s interpretation. In summary we conclude that the legislative history shows that the Bennett Amendment merely incorporated the four exceptions of the Equal Pay Act into Title VII without otherwise limiting Title VII’s coverage. E. The third group of materials we have used to unravel the meaning of the Bennett Amendment are the regulations and rulings of the EEOC, the regulatory body charged with enforcing the Civil Rights Act. The EEOC’s regulations, issued in 1972, make it quite explicit that “the prohibitions against discrimination based on sex contained in Title VII is coextensive with that of the other prohibitions contained in Title VII and is not limited by Section 703(h) to those employees covered by the Fair Labor Standards Act”. 29 C.F.R. § 1604.8 (1978). The district court discounted these regulations because it felt that the regulations were inconsistent with earlier EEOC regulations issued in 1965. It was the district court’s view that the 1965 regulations stated that the discriminatory wage scales were impermissible only if the wage scales were also in violation of the Equal Pay Act. 19 FEP Cases 454-56. The court held that earlier regulations were controlling, relying on General Electric v. Gilbert. In Gilbert the Supreme Court found that the EEOC’s newer regulations covering pregnancy benefits “flatly contradict[ed] the position which the agency had enunciated at an earlier date, closer to the enactment of the governing statute.” 429 U.S. at 142, 97 S.Ct. at 411. It held that the newer regulations were therefore not entitled to the deference normally afforded EEOC regulations. See Griggs v. Duke Power Co., 401 U.S. 424, 433-34, 91 S.Ct. 849, 855, 28 L.Ed.2d 158 (1971). (“interpretation of the Act by the [EEOC] is entitled to great deference.”) The rule set forth in General Electric v. Gilbert is not applicable to these regulations. The 1965 regulations stated that “with respect to situations to which both statutes are applicable.. the standards of the ‘equal pay for equal work’ set forth in the Equal Pay Act” are applicable to Title VII. 30 Fed.Reg. 14928 (1965). They do not state that Title VII’s scope is no broader than the Equal Pay Act. Indeed, the regulation specifically provides that “discrimination in compensation because of sex is co-extensive with that of the other prohibition in section 703, and is not limited by section 703(h) to those employees covered by the Fair Labor Standards Act.” Id. Second, and most important, the EEOC, in a number of cases decided before the 1972 guidelines were issued, found Title VII applicable to situations where the wage rates for jobs held predominately by women were set lower than the wage rates for jobs held predominantly by men. In these cases the wage rates were lower because the jobs were held predominantly by women and not because of the job requirements. See, e. g., Decision No. 70-112, 1973 EEOC Decisions (CCH) ¶6108 (Sept. 5, 1969); Decision No. 70-695, 1973 EEOC Decisions (CCH) ¶6148 (April 13,. 1970). The EEOC’s position has been generally consistent and thus the traditional deference which courts give to agency regulations is to be given in this case. See United States v. National Association of Securities Dealers, Inc., 422 U.S. 694, 719, 95 S.Ct. 2427, 2442, 45 L.Ed.2d 486 (1975) (courts will give “considerable weight” to a “consistent and longstanding interpretation by the agency charged with administration of” that statute). Thus, we find that the EEOC regulations also support the plaintiffs construction. F. The caselaw, for the most part, adds little to our inquiry. The Supreme Court’s references to the Equal Pay Act in the context of Title VII are inconclusive and only one decision by a Court of Appeals has squarely faced the issue raised in this appeal. In that case, Gunther v. County of Washington, the Ninth Circuit held that Title VII was violated when wages for females were intentionally set, on the basis of sex, lower than wages for men who held different jobs. We find the Gunther decision to be persuasive and note that that court’s interpretation of the Bennett Amendment’s legislative history is consistent with out own. The Tenth Circuit in a different factual setting held in Lemons v. Denver, 620 F.2d 228 (10th Cir. 1980), that Title VII did not prevent sex discrimination in wages for comparable jobs. We note that Lemons is distinguishable because the lower court found that the city had not set the wages for women lower than the wages for men on account of their sex. “ ‘The City draws no distinction between male and female employees.’ ” 620 F.2d at 229 (quoting the district court’s findings). The other cases in both the Courts of Appeals, including this circuit, and the district courts are not helpful because the issue raised by this case was not decided and thus only address this issue in dicta. IV. With the Civil Rights Act of 1964, Congress released a strong and forceful weapon against employment discrimination. To paraphrase the Supreme Court’s words: “It would be ironic indeed if [the Equal Pay Act,] a law triggered by a Nation’s concern over centuries of [sexual discrimination] and intended to improve the lot of those who had ‘been excluded from the American dream for so long’ ” were to lead to the contraction of their rights under Title VII. United Steelworkers of America v. Weber, 443 U.S. 193, 204, 99 S.Ct. 2721, 2728, 61 L.Ed.2d 480 (1979), quoting Senator Humphrey, 110 Cong.Rec. 6552 (1964). Nothing we have found suggests that this act was to be weakened so as to “authorize” the explicit discrimination in compensation the plaintiffs assert that Westinghouse has practiced. Moreover, we believe that the evidence suggests otherwise. Accordingly, we will reverse the judgment of the district court and will remand for further proceedings. . This action 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_geniss	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". INMATES OF ORIENT CORRECTIONAL INSTITUTE, Plaintiffs-Appellants, v. OHIO STATE ADULT PAROLE AUTHORITY, et al., Defendants-Appellees. No. 90-3543. United States Court of Appeals, Sixth Circuit. Argued Feb. 12, 1991. Decided March 26, 1991. Lawrence J. Greger (argued), Marlena L. Pankowski, Greger & Ovington, Dayton, Ohio, for plaintiffs-appellants. Allen P. Adler (argued), and Frederick C. Schoch, Asst. Attys. Gen., Steven W. Ritz, Office of the Atty. Gen. of Ohio, Columbus, Ohio, for defendants-appellees. Before NELSON and SUHRHEINRICH, Circuit Judges, and HACKETT, District Judge. The Honorable Barbara K. Hackett, United States District Judge for the Eastern District of Michigan, sitting by designation. DAVID A. NELSON, Circuit Judge. This is an appeal from the denial of a preliminary injunction in a federal civil rights action brought under 42 U.S.C. § 1983 by a group of parole-eligible Ohio prison inmates. Each of the plaintiff inmates received a hearing before a board of the Ohio Adult Parole Authority. In each instance the hearing resulted in a decision to grant parole “on” or at some indeterminate time “after” a specified date (commonly called the “on or after date”), subject to approval of an acceptable out-of-prison placement plan by the Authority’s Parole Supervision Section. Primarily because of a shortage of space in the limited number of halfway houses that accept sex offenders, it proved difficult to find acceptable placements for the plaintiffs in this case. Each of the plaintiffs who testified at the injunction hearing appears to fall in the “hard to place” category, and each of them testified either that his on or after date had been rescinded or that rescission was threatened. Rescission of an on or after date is not preceded by a formal hearing, under Ohio’s practice, although it is the policy of the parole board to hold a hearing soon after rescission has occurred. The hearing gives the inmate an opportunity to present documents and to discuss his placement problem directly with the board; the inmate is not entitled to call witnesses, however, or to be represented by counsel. Alleging that rescission of on or after dates without prior notice and opportunity for an evidentiary hearing violates due process rights guaranteed by the federal constitution, the plaintiffs sought an interlocutory injunction to bar rescission pending determination of the merits of their lawsuit. The district court declined to grant such an injunction, holding that the plaintiffs had failed to sustain their “initial burden” (see N.A.A.C.P. v. City of Mansfield, 866 F.2d 162, 167 (6th Cir.1989)) of showing a substantial likelihood of success on the merits. For reasons well stated in the comprehensive opinion filed by the district court, the court concluded, among other things, that Ohio law gives a prison inmate no constitutionally protected liberty interest in being released at a time related to his on or after date. We agree. We shall affirm the denial of the injunction on this ground, without reaching the question whether, as the district court also concluded, the plaintiffs had no likelihood of succeeding in a § 1983 action because their sole federal remedy lies in habeas corpus. I The Due Process Clause of the Fourteenth Amendment, which imposes the same restraints on the states that the corresponding clause of the Fifth Amendment imposes on the national government, prohibits “any State [from] depriving] any person of life, liberty, or property, without due process of law....” No right to due process arises, under this language, except where a state undertakes to deprive a person of one or more of the three interests specified: life, liberty, or property. It is “liberty,” of course, with which we are concerned in the case at bar. Although incarceration itself represents a quintessential deprivation of liberty, lawful incarceration does not extinguish all of a prisoner’s constitutionally protected liberty. Prison inmates retain what the Supreme Court has characterized as “a residuum of liberty,” Olim v. Wakinekona, 461 U.S. 238, 245, 103 S.Ct. 1741, 1745, 75 L.Ed.2d 813 (1983) (citing Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974-75, 41 L.Ed.2d 935 (1974)), despite the fact that inmates are not at liberty in the normal sense. If state law entitles an inmate to release on parole, moreover, that entitlement is a liberty interest which is not to be taken away without due process. See Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), where the Supreme Court so held in the context of a statute providing that the Nebraska parole board “shall” release parole-eligible inmates unless one of several factors specified in the statute should be found to exist. The Supreme Court has made it clear that a mere unilateral hope or expectation of release on parole is not enough to constitute a protected liberty interest; the prisoner “must, instead, have a legitimate claim of entitlement to it.” Id. at 7, 99 S.Ct. at 2104 (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)) (emphasis supplied). And only state law can create this “legitimate claim of entitlement;” the federal constitution protects such claims, but does not create them. “There is no constitutional or inherent right of a convicted person to be conditionally released [i.e., released on parole] before the expiration of a valid sentence.” Greenholtz, 442 U.S. at 7, 99 S.Ct. at 2104. II The law of Ohio gives a convicted person no legitimate claim of “entitlement” to parole before the expiration of a valid sentence of imprisonment. This remains true even after the Ohio Adult Parole Authority has approved the prisoner’s release on parole on or after a specified date. Thus in Jago v. Van Curen, 454 U.S. 14, 102 S.Ct. 31, 70 L.Ed.2d 13 (1981), a post- Greenholtz case, the Supreme Court of the United States squarely held that the Ohio Adult Parole Authority’s rescission of a decision to grant parole on or after a specified date did not constitute a deprivation of “liberty” within the meaning of that term as used in the Due Process Clause. There has been no relevant change in Ohio’s law since the decision in Jago. That case, unlike this one, happened to involve “shock” parole, but nothing turns on the distinction. This court has recognized ever since Greenholtz that Ohio Rev.Code § 2967.03 — the statute under which the plaintiffs in the instant case hope to be released — “is purely discretionary.” Wagner v. Gilligan, 609 F.2d 866, 867 (6th Cir.1979). The statute says that the Ohio Adult Parole Authority “may ... grant a parole to any prisoner, if in its judgment there is reasonable ground to believe that, if ... the prisoner is paroled, such action would further the interests of justice and be consistent with the welfare and security of society.” Ohio Rev.Code § 2967.03 (emphasis supplied). The grant of discretion contained in this statute is, obviously, very broad indeed. The operative verb is permissive, not mandatory; to say that the Adult Parole Authority “may grant” parole is not to say that it must grant parole. There are regulations, as we shall see, that prescribe certain limitations on the affirmative power to grant parole, but those limitations in no way detract from the fact that under Ohio’s system, as in the situation considered by the Supreme Court in Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983), the decisionmaker “can deny the requested relief for any constitutionally permissible reason or for no reason at all.” Id. (quoting Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 467, 101 S.Ct. 2460, 2466, 69 L.Ed.2d 158 (1981) (Brennan, J., concurring)) (emphasis supplied). Where the power of denial is this broad, “the State has not created a constitutionally protected liberty interest.” Olim, 461 U.S. at 249, 103 S.Ct. at 1747. The Sixth Circuit decision that was before the Supreme Court for review in Jago — a decision reported at 641 F.2d 411 (1981)—acknowledged, as the Supreme Court noted (454 U.S. at 16, 102 S.Ct. at 33), that “[pjarole for Ohio prisoners lies wholly within the discretion of the [Ohio Adult Parole Authority],” and that “[t]he statutes which provide for parole do not create a protected liberty interest for due process purposes.” 641 F.2d at 414. Although a majority of the Sixth Circuit panel nonetheless concluded that a constitutionally protected liberty interest could arise from “mutually explicit understandings,” id. at 416, this conclusion was rejected by the Supreme Court: “We hold that the Court of Appeals erred in finding a constitutionally protected liberty interest by reliance upon ... ‘mutually explicit understandings’_” Jago, 454 U.S. at 17, 102 S.Ct. at 34. We do not doubt that in the case at bar it was understood by all concerned that the plaintiffs would be released around the time of their on or after dates, assuming out-of-prison placements acceptable to the Parole Supervision Section could be found. The record does not disclose what understanding, if any, the parole authorities may have had as to the likelihood that acceptable placements could be found. The plaintiffs themselves, however, may well have understood that they were likely to be released — and we can appreciate their disappointment that the hopes and expectations attendant upon the setting of on or after dates should have been frustrated. But as the Supreme Court explicitly told us in Jago, it would be wrong to find that understandings based on the setting of on or after dates can create any constitutionally protected liberty interest. Although the power to deny parole is purely discretionary as far as Ohio’s statutes are concerned, the state’s administrative regulations must also be considered. If Ohio’s regulations created an explicit presumption of entitlement to release on parole — as Tennessee’s regulations formerly did, see Mayes v. Trammell, 751 F.2d 175,178 (6th Cir.1984)—or if the Ohio regulations otherwise used “ ‘mandatory language’ in connection with ‘specific substantive predicates’ ” for release on parole, see Beard v. Livesay, 798 F.2d 874, 877 (6th Cir.1986) (quoting Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983)), the regulations alone could create a protected liberty interest. But absent “specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow,” the regulations could not create a liberty interest. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 463, 109 S.Ct. 1904, 1910, 104 L.Ed.2d 506 (1989). “[Wjithin the context of the instant case,” as the district court said in the decision now before us for review, “Thompson would require language in the Ohio scheme expressly mandating that once an inmate is granted parole and given an ‘on or after’ date, he must be released absent a showing of specific factors (or, alternatively, that an inmate's 'on or after’ parole status will not be rescinded absent the finding of such factors). There is no such language in the Ohio parole scheme.” (Emphasis in original.) We can find no such language in the Ohio scheme either. Ohio Admin.Code § 5120:1-1-07 (a section captioned “Procedure for release on parole, furlough, and shock parole”) provides that “[a]n inmate may be released on or about the date of his eligibility for release” unless one or more circumstances specified in the regulation is found to exist. (Emphasis supplied.) “May,” to repeat, is permissive, not mandatory; a regulation saying that an inmate “may” be released in the absence of specified factors simply does not say that the inmate must be released if none of the specified factors is present. It is true, as the plaintiffs point out, that the chapter of the Ohio Administrative Code containing § 5120:1-1-07 also contains a “Statement of policy” that concludes with this language: “Decision making involves the exercise of discretion. Unlimited discretion is to be eliminated. Necessary discretion is to be structured. Whenever feasible, persons directly affected by the decision making process shall be given notice and an opportunity to be heard prior to the decision becoming final. Fairness and equity shall be the standards by which inmates, releasees, staff and the public are treated.” Ohio Admin.Code § 5120:1-1-02(G). We are not persuaded that the substantive provisions of Ohio Admin.Code § 5120:1-1-07 should be read as meaning something other than what they say simply because a policy section of the administrative code says that “unlimited” discretion is to be eliminated and necessary discretion is to be “structured.” Discretion to grant parole certainly has been limited by § 5120:1-1-07, even though discretion to deny parole is limited only by constitutional considerations (the Fourteenth Amendment’s prohibition against denying any person the equal protection of the laws, e.g.)— and the parole board’s necessary discretion is certainly “structured” in the sense that its exercise involves the hearing process mentioned at the outset of this opinion. The district court concluded that rescission hearings of the sort described in the testimony of the Chief of the Adult Parole Authority provided “an opportunity to be heard prior to the decision [on rescission] becoming final,” as required by Ohio Admin.Code § 5120:1-1-02(G), because “inmates are given a hearing before the Parole Board prior to the journalization (in its minutes) of its decision to rescind.” The testimony on which this conclusion was based is not a model of clarity, and we are not certain that the district court interpreted the testimony correctly. Even if journalization were to occur prior to the rescission hearing, however, it would make no difference from a constitutional standpoint. It is clear that “procedural requirements alone cannot establish a liberty interest,” Beard v. Livesay, 798 F.2d 874, 877 (6th Cir.1986), and a violation of state regulations requiring a particular kind of hearing cannot violate the Due Process Clause absent some independent basis for finding a “liberty interest” that has been taken away. Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). The last of the regulatory provisions on which the plaintiffs rely in support of their claim to a liberty interest is Ohio Admin. Code § 5120:1-1-02(D). That section reads as follows: “The release procedures in these Administrative Regulations provide for orienting the inmate toward release, the preparation for the Parole Board of all data pertinent to the case, a release hearing based upon careful study of such data under procedures which insure fairness and rational decision making, formulation and investigation of a satisfactory release plan, release under professional supervision, and return to confinement for those who violate the terms and conditions of their release and are unwilling or unable to readjust satisfactorily under supervision.” Nothing in this language suggests to us that efforts to formulate a satisfactory release plan must inevitably be successful, or that the investigation of whatever release plan might be proposed by the inmate must inevitably lead to a finding that the proposed plan is “satisfactory.” The plaintiffs stress the fact that in “orienting” them toward release, the state transferred them to a minimum security prison, Pickaway Correctional Institute, where they were assigned to a pre-release dormitory. (One of the plaintiffs testified that he had less freedom there than at the “closed security” institution from which he had been transferred, but other witnesses, including the chief of the parole authority, testified that conditions were less restrictive at the pre-release dormitory than at the institutions from which the plaintiffs had come. The district court, not surprisingly, accepted the latter testimony as true.) Transfer to a pre-release center may buttress an inmate’s subjective expectation that he will be released on parole, but such a transfer obviously cannot create a legitimate claim of entitlement to release. Neither can the transfer create any liberty interest in remaining at the pre-release center following rescission of the on or after date. See Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976); Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). Ill It became clear in the oral argument of this appeal that the plaintiffs’ fundamental complaint is not, in fact, a complaint with the “process” followed by the state; the plaintiffs’ real complaint is with the state’s failure to provide enough halfway houses (or similar facilities) to insure a satisfactory out-of-prison placement for every inmate the parole board would be willing to release if a satisfactory placement could be found for him. Plaintiffs’ counsel even went so far as to suggest that a federal court could require the state to build and staff more halfway houses, if the court should decide that more halfway houses would be desirable. The United States Constitution vests no such power in the federal courts, of course. More halfway houses can be provided directly by the people, through voluntary action, or by the people’s elected representatives, through the appropriation of public funds, but they cannot be provided by judicial fiat. Poets, to borrow Shelley’s phrase, may be “the unacknowledged legislators of the world,” but federal judges are not. Although the Eighth and Fourteenth Amendments empower the judicial branch of the federal government to order a stop to infliction of cruel and unusual punishments, there is no claim of any such punishments having been inflicted here. And even if there were such a claim, there would still be nothing in the Constitution authorizing us to require the State of Ohio to maintain the kind of facilities for parole that the plaintiffs would like to see. We have no power, indeed, to require the State of Ohio to maintain any parole system at all. See Greenholtz, 442 U.S. at 7, 99 S.Ct. at 2103 (“A state may ... establish a parole system, but it has no duty to do so”). As a matter of legislative policy, an expanded system of parole may well have much to commend it. None of us can be comfortable with the fact that our country imprisons a higher percentage of its citizens — and keeps them in prison longer— than virtually any other civilized nation. The district court, in dicta that formed a sort of coda to its opinion, spoke to this general subject with some passion: "If the state of Ohio and its citizens do not soon realize that the problems of crime can only be dealt with by dealing with the causes of same, the poverty, the ignorance, the drug addiction, the alcoholism, the educational and psychological deprivation and the like, our crime problem cannot and will not decrease. Indeed, unless all of us realize that the problems of crime cannot be solved simply by building more and more prisons and by locking up people therein and literally ‘throwing the key away,’ none of us should be surprised that inmates from our prison system, once released, will once again violate the criminal laws to an alarming degree.” The discussion that preceded this passage in the district court’s opinion also provides food for thought — and may, for some people, tend to confirm the wisdom of the Founders in leaving legislative questions to the legislature. After noting that the plaintiffs have committed crimes that are particularly reprehensible, the district court said that because the plaintiffs “have served the minimum sentence prescribed by law ... [t]hey have paid their debt to society.” That debt having been paid, the court went on to observe, it is both sad and paradoxical that “these prison inmates can find no safe harbor — no one to take them in, no halfway house facility willing to accept them and no facility in the outside world, in society, that can adequately treat those very conditions which caused them to offend against society in the first instance.” No compassionate person could disagree, surely, with the thought that the plight of these plaintiffs is a sad one. But so was the plight of their victims — the women they raped, the children they molested, the people they kidnapped. The plaintiffs’ debt to their victims can be forgiven, no doubt, but one wonders whether such a debt can ever truly be “paid.” And it is not solely for punishment, of course, that society imprisons people who commit crimes of violence; society imprisons them to protect itself against further violence at their hands. If, as the district court suggested, long prison terms mean that “inmates from our prison system, once released, will once again violate the criminal laws to an alarming degree,” at least it would seem indisputable that society will have little to fear from them for as long as they remain in prison. Halfway houses that choose not to accept people with records like the plaintiffs’ are not necessarily acting irrationally. There is an obvious risk that, given the opportunity, a man who has molested a child once will do it again — and it is a “fact,” according to the United States Supreme Court, “that anticipations and hopes for rehabilitation programs have fallen far short of expectations of a generation ago_” Greenholtz, 442 U.S. at 13, 99 S.Ct. at 2107. Society has a right of self-protection, and the degree of risk that society is willing to tolerate is ultimately a question for society itself. We judges may not always be happy with society’s choices, but unless the Constitution itself be violated, we must accept them. There is probably room for debate, finally, over the extent to which the State of Ohio and its citizens are capable of identifying, much less correcting, the “conditions” that “caused” the plaintiffs to commit the crimes for which they were imprisoned. It is apparent that crime often flourishes, in our society, where there is poverty and ignorance. Most people who suffer from poverty and ignorance do not commit sex crimes, however — and some people who do commit such crimes are neither poor nor ignorant. The dividing line between good and evil, as Solzhenitsyn reminds us in one of his novels, cuts through every human heart. One would like to believe that no human being would ever act on an evil impulse if we could somehow find a universal cure for poverty, ignorance, and the like, but it may not be true — and such a cure remains elusive in any event. Ohio and its citizens are likely to find themselves struggling for a long time to come to terms with the types of policy questions to which the district court alluded. For the reasons stated, the denial of the preliminary injunction sought by the plaintiffs is AFFIRMED. . Of the five inmates who testified, the first had been convicted of aggravated assault and rape, the second had been convicted on one count of rape and two of sexual battery, the third had been convicted of attempted rape, the fourth (the only one never found guilty of a sex crime) had been convicted of aggravated robbery and kidnapping, and the fifth had been convicted of corruption of a minor. The chief of Ohio's Adult Parole Authority testified that “many kinds of sex offenders are extremely recidivistic,” and he answered "yes” when asked if “the hard-to-place issue arises most often in the placement of sex offender inmates.” Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_r_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. Edwin Dean VEST, Plaintiff-Appellant, v. Sterling BOSSARD, Hans Chamberlain, Ira Schoppmann, James Nelson and John Does One to One Hundred, Defendants-Appellees. No. 81-2148. United States Court of Appeals, Tenth Circuit. Feb. 18, 1983. John Walsh, Salt Lake City, Utah, for plaintiff-appellant. Allan L. Larson of Snow, Christensen & Martineau, Salt Lake City, Utah, for all defendants-appellees. Nelson L. Hayes of Richards, Brandt, Miller & Nelson, Salt Lake City, Utah, for defendants-appellees Chamberlain and Schoppmann (P. Keith Nelson and Donald J. Purser, Richards, Brandt, Miller & Nelson, Salt Lake City, Utah, for defendantsappellees Chamberlain & Schoppmann, and David L. Wilkinson, Atty. Gen., and Franklyn B. Matheson, Asst. Atty. Gen., Salt Lake City, Utah, for defendants-appellees Sterling Bossard and James Nelson, on the briefs). Before DOYLE, McKAY and LOGAN, Circuit Judges. WILLIAM E. DOYLE, Circuit Judge. The problem here is, as we know, one in which the tolling or non-tolling of the statute of limitations is involved. Plaintiff was falsely charged with a heinous offense, sodomy. Vest, of course, knew that he had suffered an injury. He did not know that there had been a conspiracy and, of course, was unaware of the identity of the conspirators. Meanwhile the statute of limitations had run as of the time that the boy admitted the truth to plaintiff. But the conspiracy also included what might be called a cover-up in order to utilize the statute of limitations as a defense. The Utah cases which are here presented all recognize that where the party in question is unaware of the identity of the perpetrators or of the incident, the statute is tolled and an evidentiary hearing is in order for the purpose of ascertaining the true facts. The applicable statute is the Utah one § 78-12-1 which provides that “civil actions can be commenced only within the period prescribed in this chapter, after the cause of action shall have accrued, except where in special cases a different limitation is prescribed by statute.” § 78-12-25(2) provides “an action for relief not otherwise provided for by law must be commenced within four years.” The particular offense involving Vest is not covered expressly by any statute but the four year statute is regarded as a catch-all provision. One of the Utah cases deals with concealment of the accrual of the cause of action by the defendant. This is Myers v. McDonald, 635 P.2d 84. The issue in that case was whether the statute tolled in a wrongful death action in which the two year statute of limitations applied. In that case the plaintiffs were unaware of the facts and circumstances of the decedent’s death until after the statutory period. As in this case, the district court dismissed the complaint as barred by the statute of limitations. However, the Utah Supreme Court reversed that judgment, calling attention to the particular facts. The plaintiffs, husband and wife, were guardians of fourteen year old Bobbie Menzies, the wife’s brother. Bobbie failed to return home after meeting with some friends. Plaintiffs reported his disappearance to the police. Because he was a minor the police department listed him as a runaway rather than as a missing person. The latter status would have resulted in an automatic check of the local morgue. The plaintiffs made several contacts during the ensuing year with the police in order to determine the boy’s whereabouts. They also read newspaper articles concerning a November 26th, 1976 automobile accident in Salt Lake County in which a car collided with a large tree that resulted in the death of a mysterious passenger and identified by the driver of the vehicle only as Joey. This victim was described as being five feet eight inches tall, with brown hair and in his early twenties. Bobbie, however, was six feet two inches tall, blond and fourteen years of age. Plaintiffs did not identify Bobbie,as the victim at that time. Sometime after the disappearance of the boy the police detectives contacted the plaintiffs as part of a follow-up. In response to plaintiffs’ inquiries he told them that the mysterious accident victim had not yet been identified. Plaintiffs went to the morgue after that and identified the accident victim as their ward Bobbie. On October 29, 1979, almost three years after the fatal accident, but only three months after the identification of the body of their ward, plaintiffs brought the wrongful death action against the defendant driver of the accident vehicle alleging intoxication and/or wilful misconduct. The statute of limitations was interposed. The plaintiffs maintained that the cause of action should not accrue until discovery of the death inasmuch as they had been misled by the report that the decedent’s name was Joey; that they were thus discouraged from making any inquiry. The Utah Supreme Court outlined the policy of the statute as follows: The governing policy in this area, as declared by the United States Supreme Court, is that statutes of limitations “are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded and witnesses have disappeared.” In furtherance of that policy, the general rule is that a cause of action accrues upon the happening of the last event necessary to complete the cause of action. Under that rule, mere ignorance of the existence of a cause of action does not prevent running of the statute of limitations. 635 P.2d at 86. [citation omitted] [footnotes omitted] The court went on to say that: There are a number of exceptions to this general rule. In some enumerated areas of the law, our Legislature has adopted the discovery rule by statute so that the limitations period does not begin to run until the discovery of facts forming the basis of the cause of action. In other circumstances, where the statute of limitations would normally apply, this Court has held that proof of concealment or misleading by the defendant precludes the defendant from relying on the statute of limitations. Id. [footnotes omitted] The court said that this was the plaintiffs’ second theory in the case and further said that courts of some states have adopted this so-called discovery rule by judicial action in exceptional circumstances where the application of the general rule would be irrational or unjust. The court concluded “Those precedents point the way toward what we deem to be the appropriate decision in this case.” Id. The case was remanded and regarding remand the court said: If plaintiffs are unable to prove their allegations of due diligence at trial, this action would still be barred by the statute of limitations unless plaintiffs can prevail by proof of their alternate theory of concealment or misleading by defendant. All we hold here is that it was improper for the trial court to dismiss plaintiffs’ action on the pleadings on the basis of the statute of limitations. Id., at 87. The Myers v. McDonald case is very similar but not as extreme as the case at bar. Here the defendants are charged with entering into a conspiracy to hide the commission of the wrong against the plaintiff. That gives rise to a much more aggravated problem. In the Myers case the Utah Supreme Court very readily declared the law of that state as being that the statute is tolled where the plaintiffs, as guardians, alleged that they did not know of their ward’s death due to defendants’ erroneously reporting their ward’s name to the authorities. In the event that the plaintiffs would be able to prove due diligence, the policy against stale claims was said by the court to be outweighed by the unique circumstances of plaintiffs’ hardship inasmuch as plaintiffs could not file an action for damages or even initiate investigative efforts to determine the cause of the death of which they had no knowledge. In such circumstances, the court said, “the law would be in the untenable position of having created a remedy for plaintiffs and then barring them from exercising it before they had any practical opportunity to do so.” Id. Similarly in the Vest case the reasoning there would be that the factual question should be resolved in his favor due to his inability to determine whether he had any practical opportunity to bring an action or to vindicate his position in view of the express effort to hide what had happened until the statute had run so that the participants could utilize it inequitably and to their advantage. The Myers court cites the case of Vincent v. Salt Lake County, Utah, 583 P.2d 105 (Utah 1978) in support of its ruling that defendants cannot conceal material facts then find shelter behind a statute of limitations. In Vincent plaintiff knew that his garage was damaged by underground water but did not know what the water’s source was. The county had installed a drainage pipe before plaintiff owned the property. There was no easement record for that pipe and plaintiff did not discover it when he built his house. Both county employees and a superior who knew the pipe was there and had reason to know that its joints were unsealed told plaintiff that no county pipe could be causing the damage. That concealment caused the Utah Supreme Court to reverse the trial court’s ruling that the statute of limitations barred plaintiff’s action. Also cited in Myers is Rice v. Granite School District, 23 Utah 2d 22, 456 P.2d 159 (1969). There insurance adjusters led plaintiff to believe that she need not file a claim because defendant admitted liability and only damages needed to be settled. The Utah Supreme Court reversed the trial court’s summary judgment that plaintiff’s action was barred by the statute of limitations. It held that defendants cannot induce plaintiffs to delay filing claims and then assert the statute of limitations. During oral arguments in the Vest case, this court, by way of analogy, considered medical malpractice actions. It must be kept in mind that there is a distinct statute, § 78-14-4 U.C.A.1953, to which Utah courts refer in determining when a malpractice suit is barred. In a recent case, Howe v. McMaster, 621 P.2d 694 (Utah 1980), the Utah Supreme Court upheld the trial court’s ruling that § 78-14-4 barred plaintiff’s action. The court ruled that the statute of limitations was tolled where to the untutored understanding of the layman there was no apparent connection between treatment received and injuries that the treatment illegally caused. But in Howe, the statute ran from the time of treatment (a dental injection) because plaintiff, who was a nurse familiar with the effects of improperly administered injections, was capable of knowing about a connection. Her training prevented her from claiming that she could not know that her mouth injuries were caused by the dental injection until it was too late to file a case. But had she not been skilled and knowledgeable in this area the court would have held that the statute was tolled. The statute was held to have tolled in the case of Foil v. Ballinger, 601 P.2d 144 (Utah 1979). There the plaintiff, Foil, had no special training and consequently the court held that the social policy favoring protecting untutored patients outweighed the statute of limitation’s goal of preventing unfounded, late medical claims that impose costs on health care providers. The Foil court also ruled that the statute’s provision that it begins to run as soon as he has reason to know that he has been injured means that the plaintiff must know that he was injured and “that the injury was caused by negligent action.” 601 P.2d at 148, citing Christiansen v. Rees, 20 Utah 2d 199, 436 P.2d 435 (1968). The court said: Because of the nature of malpractice actions, and based on prior Utah law, we hold that the statute begins to run when an injured person knows or should know that he has suffered a legal injury. We base this holding on several grounds. In the health care field it is typically the case that there often is a great disparity in the knowledge of those who provide health care services and those who receive the services with respect to expected and unexpected side effects of given procedure, as well as the nature, degree, and extent of expected after effects. While the recipient may be aware of a disability or a dysfunction, there may be, to the untutored understanding of the average layman, no apparent connection between the treatment provided by a physician and the injury suffered. Even if there is, it may be passed off as an unavoidable side effect or a side effect that will pass with time. 601 P.2d at 147. The court also made a statement which is quite relevant here: Furthermore, to adopt a construction of § 78-14-4 that encourages a person who experiences an injury, dysfunction or ailment, and has no knowledge of its cause, to file a lawsuit against a health care provider to prevent a statute of limitations from running is not consistent with the unarguably sound proposition that unfounded claims should be strongly discouraged. One of the chief purposes of the Utah Health Care Malpractice Act was to prevent the filing of unjustified lawsuits against health care providers, with all the attendant costs, economic and otherwise, that such suits entail, (emphasis supplied) The court went on to say: It would also be imprudent to adopt a rule that might tempt some health care providers to fail to advise patients of mistakes that have been made and even to make efforts to suppress knowledge of such mistakes in the hope that the running of the statute of limitations would make a valid cause of action nonactionable. A rule that provides that the limitations period shall run from the date of the act or omission tends to foster that result. The law should foster a fulfillment of the duty to disclose so that proper remedial measures can be taken and damage ameliorated. It is true that the malpractice problem is a special one in Utah. The court condemns the tolling of the statute and expresses the policy reason that people who have inflicted an injury should not be permitted to cover up the injury so as to avoid a lawsuit. That, of course, is a situation which we find in the case at bar. In the present case it cannot be argued that the plaintiff was aware of the identity of the persons who perpetrated the injury upon him. Must his action accrue at the time that he suffers the injury under those circumstances, where there has been a very carefully plotted and planned injury inflicted and there has been a conspiracy to cover it up? True, he knew that he had been injured but he had no reason to know that he had a cause of action against the defendants. Unlike the nurse in Howe he had no experience that would cause him to connect his injury to defendants’ actions and he did not have any source of that injury. For him to file a lawsuit that he could not prove up as the trial court suggested would have been folly and certainly the law should not encourage that kind of activity, as the court in Foil noted. In conclusion the expedients suggested by the trial court, namely that the defendant file a lawsuit against the boy and then go on a fishing expedition, must be put to one side. The Utah cases and particularly Foil demand that there be a full and complete factual hearing and just and equitable decision. Surely this is the view which the Utah court would take in this case. It would hold that the plaintiff’s burdens, plus the fraud of the perpetrators, produced justification for tolling the statute. The evidence in the present record which suggests that Vest had knowledge of the conspiracy is at best thin and legally inadequate. Until the boy revealed the conspiracy explaining that he had been forced to maintain secrecy until the statute of limitations had run Vest did not have full knowledge. To be sure he had some suspicions but suspicions or existence of possibilities of defendant having factual knowledge is not enough to have the statute run in favor of the defendants. Judge Logan has quoted on page 1 of his opinion the statement that Vest made in his deposition. This reads as follows: Up to this time, I had 'suspicions of why they placed charges upon me in Cedar City. One was my running argument with Mayor Weckon concerning the loss of Glen Canyon power. I am a specialist in the area of ecology and energy sources, and I constantly was stating that the mayor should not be in the position he was in with the conflict between Cal Pac and the Glen Canyon Power. I had suspicions that that might be the reason. I was told that Judge Burns was his close friend, and I was also told that a very close friend of Judge Burns stated that only the Supreme Court could ever stop them from nailing me. This supports my suggestion that the information that Vest had at the early stages of this incident was inadequate to raise more than the suspicion that he mentions regarding the Mayor and Judge Burns being a friend of the Mayor. This falls short of being enough evidence to justify the running of the Limitations Statute. Finally, we call attention to the all important words of the Utah Constitution, Art. I, Sec. 11: “All courts shall be open, and every person, for an injury done to him in his person ... shall have remedy by due course of law, which shall be administered without denial ...” To dispose of the case in a summary manner is a plain violation of Mr. Vest’s rights. Judge McKay suggests that the trial court may once again grant summary judgment. With all respect, Judge McKay speaks of a pure question of fact. Whether the defendants concealed the facts cannot be determined in a summary judgment proceeding. The judgment is reversed and the cause is remanded for further proceedings. 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_r_natpr	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Robert H. CALHOUN, Plaintiff, Appellee, v. ACME CLEVELAND CORPORATION and the Cleveland Twist Drill Company, Defendants, Appellants. No. 85-1952. United States Court of Appeals, First Circuit. Aug. 20, 1986. William P. Robinson, III with whom John A. Houlihan, Judith C. Savage, and Edwards & Angelí, Providence, R.I., were on brief, for defendants, appellants. Orlando F. de Abreu with whom Kevin J. McAllister, Taunton, Mass., was on brief, for plaintiff, appellee. Before BOWNES, Circuit Judge, BROWN, Senior Circuit Judge, and BREYER, Circuit Judge. Of the Fifth Circuit, sitting by designation. BOWNES, Circuit Judge. Appellants, Acme Cleveland Corporation and its subsidiary The Cleveland Twist Drill Company, appeal from a judgment for their former employee, Robert Calhoun, under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1982). Calhoun had contended that, after working for appellants and their predecessors for forty-two years, appellants entered into a course of action designed to force him into early retirement at age sixty-two. It was appellants’ contention that they merely asked Calhoun whether he wished to take early retirement and that Calhoun voluntarily decided that he would retire. Since appellants did not actually fire Calhoun, a key legal and factual issue in the case was whether appellants’ actions could be considered to amount to a constructive discharge. Appellants contend that, as a matter of law, the facts alleged and proven by-Calhoun did not amount to a constructive discharge and that the district court erred when it failed to grant appellants’ motion for summary judgment, directed verdict or judgment n.o.v. Appellants also claim that they were denied a fair trial because the district court failed to give a requested “anticorporate bias” jury instruction requested by appellants. We consider first the constructive discharge issue. The basic rules governing constructive discharge in this circuit were laid down in Alicea Rosado v. Garcia Santiago, 562 F.2d 114 (1st Cir.1977): “the trier of fact must be satisfied that the new working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Id. at 119. This is an “objective standard,” Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985), cert. denied, — U.S.—, 106 S.Ct. 1461, 89 L.Ed.2d 718 (1986), in which the focus is upon the “reasonable state of mind of the putative discriminatee.” Vaughn v. Pool Offshore Co., 683 F.2d 922, 926 (5th Cir.1982). In making the determination, it must be kept in mind that “[a]n employee may not be unreasonably sensitive to his [or her] working environment.” Johnson [v. Bunny Bread Co.], 646 F.2d [1250] at 1256 [(8th Cir.1981)]. Thus the law does not permit an employee’s subjective perceptions to govern a claim of constructive discharge.... An employee is protected from a calculated effort to pressure him [or her] into resignation through the imposition of unreasonably harsh conditions, in excess of those faced by his [or her] coworkers. He [or she] is not, however, guaranteed a working environment free from stress. Bristow, 770 F.2d at 1255. The question we must consider, then, is whether, given the factual allegations and evidence presented by Calhoun, there was no constructive discharge as a matter of law. This requires a recitation of the facts. Aside from three years in the Navy during World War II, Calhoun worked continuously for The Cleveland Twist Drill Company or its predecessor from 1940 until his resignation in 1982. By 1964, he had worked his way up to the position of Manager of the Product Design and Application Department. In every year prior to 1982, Calhoun had received good reviews of his work and yearly raises in pay. By 1982, The Cleveland Twist Drill Company was having financial problems, particularly because it was not delivering orders on time and was not selling reliable merchandise. As a result, a new plant manager, Clifford Preuss, was hired in February of 1982. On February 17, 1982, Preuss asked all employees eligible for early retirement, including Calhoun who was sixty-two at that time, whether they had any intention of taking early retirement so as to minimize layoffs of junior personnel. Calhoun told Preuss that he wished to continue working until he was sixty-five. On March 10, 1982, without warning or criticism of Calhoun’s past performance, a younger man, Ronald Sabatos, was made Manager of the Product Design and Application Department. Although no cut in his pay was made, Calhoun was demoted to Supervisor of the Department. Thereafter, Calhoun was not invited to participate in a training seminar to which both his immediate superior and junior were invited. Next, Calhoun was told that it was “grounds for dismissal” for him to have brought a portable television into work on Patriot’s Day, a day that was a holiday for all nonsupervisory personnel, and watched the start and finish of the Boston Marathon, although similar conduct had occurred in the past without comment. On May 20, 1982, Calhoun had a second meeting with Preuss concerning his retirement plans, as did all other employees eligible for early retirement. Once again, Calhoun stated that he intended to keep on working. Calhoun had a third meeting with Preuss on August 30, 1982, as did all other retirement-eligible employees. The details of this meeting are in dispute as are other relevant facts. Calhoun claims that Preuss told him at this meeting that the company was “ready to give him his severance pay and terminate him,” albeit with full retirement benefits. The alternative offered by Preuss was that Calhoun would have to be prepared to work a twelve- to fourteen-hour day and Saturdays, as compared to the nine- and nine and one-half-hour day he had been working. Calhoun testified that no one at his level of management had worked such long hours. He also testified that in 1983, after his termination, he had a conversation with his former assistant who told Calhoun that he was not working any longer hours than Calhoun had worked. Preuss testified that Sabatos, the newly hired Product Design Manager, had been working twelve to fourteen hours a day. Preuss also testified that during this August conversation all he did was tell Calhoun about a “new” retirement package that the company had authorized allowing severance for early retirees. Company documents offered by Calhoun, however, indicated that the severance pay provision had been in effect since August of 1981, prior to Calhoun’s first meeting with Preuss. Preuss testified that he was unaware of the policy prior to the August 1982 meeting. He also testified that he did not mention any specific number of hours that Calhoun would have to work, but said only that if Calhoun did not choose to retire he would be expected to work the same number of hours as those working under him and possibly some Saturdays. Both Preuss and Calhoun agreed that Calhoun asked Preuss at this meeting whether he could collect unemployment benefits while he was receiving severance pay. The day after the August 30 meeting, Calhoun told Preuss that he would take early retirement. After leaving The Cleveland Twist Drill Company, where he had been making $34,000 a year with generous benefits, Calhoun sought similar work, but was unable to find it. He worked as a construction worker for $6 to $8 an hour and his income dropped to around $18,000 a year. Summary Judgment In his affidavit in opposition to the motion for summary judgment, Calhoun alleged that Preuss had asked him about his retirement plans three times in seven months, that he had been demoted and a younger man promoted to his position, that he had been threatened with a twelve- to fourteen-hour work day and Saturday work if he did not resign, and that he had been informed that no employee had been forced to work these hours after his termination. Appellants claim first that the district court should have struck those paragraphs of Calhoun’s affidavit in which he claimed that after his resignation other employees had not worked the long hours he was threatened with because this information was not within Calhoun’s personal knowledge. Without this assertion, appellants claim that the events alleged by Calhoun, even if shown to be true, were not sufficient as a matter of law to satisfy the plaintiff’s summary judgment burden of proving constructive discharge. Appellants rely on cases in which one of these factors standing alone was held an insufficient basis for a finding of constructive discharge: Alicea Rosado v. Garcia Santiago, 562 F.2d 114 (1st Cir.1977) (loss of prestige from job transfer insufficient); Pena v. Brattleboro Retreat, 702 F.2d 322 (2d Cir.1983) (loss of prestige because of particularly precipitious replacement by trainee insufficient); Vaughn v. Pool Offshore Co., 683 F.2d 922 (5th Cir.1982) (pranks, tricks, heavy-handed humor, and being required to work two consecutive hitches not sufficient). Appellants’ theory is that since each isolated incident cannot as a matter of law suffice for a constructive discharge, all of them together must also fail to do so. The fallacy in this “divide and conquer” approach is that these events must be viewed as part of a single behavior pattern by appellants. Even were we to omit the allegations concerning the hours worked by others after Calhoun was terminated, the other events taken together compare favorably enough with fact patterns in successful age discrimination cases so as to make a grant of summary judgment improper. See Cockrell v. Boise Cascade Corp., 781 F.2d 173 (10th Cir.1986) (choice of transfer to lower paying job or resignation sufficient); Williams v. Caterpillar Tractor Co., 770 F.2d 47 (6th Cir.1985) (demotion without warning or reprimand enough); Buckley v. Hospital Corporation of America, Inc., 758 F.2d 1525 (11th Cir. 1985) (several inquiries about retirement plans along with humiliating demotion, even with same pay and benefits, sufficient). In this case, there were repeated inquiries about resignation, demotion of the plaintiff, promotion of a younger person and the threat of onerous working hours if no resignation. We cannot say as a matter of law that these events viewed as a whole could not be sufficient to constitute constructive discharge. Directed Verdict When deciding whether to grant a directed verdict motion, the trial court must look at the facts in a light most favorable to the nonmoving party and, if any set of facts could result in that party’s victory, the court must deny the motion. “In doing so, we must recognize that it is for jurors, not judges, to weigh the evidence and determine the credibility of witnesses.” Insurance Co. of North America v. Musa, 785 F.2d 370, 372 (1st Cir. 1986) . The facts viewed in the light most favorable to Calhoun are: 1. Calhoun always received good work ratings and high pay raises until Preuss arrived; 2. Cleveland Twist Drill wanted to reduce its work force, preferably by retiring older employees; 3. Calhoun was asked three times in seven months whether he wished to retire, despite having made it clear the first time that he would not retire until he was sixty-five; 4. In an effort to remove Calhoun after he refused to retire, he was demoted, reprimanded for doing something he had done before without sanction, excluded from training sessions, and threatened with a drastic increase in working hours; 5. Calhoun was demoted from being in charge of the department he had run for fourteen years and was put under two people he had trained; 6. No specific criticism of Calhoun’s work was ever made; and 7. After his termination, Calhoun was told by a former assistant who had taken over Calhoun’s duties that he was not working any more hours than he ever had. This set of facts was clearly sufficient for a jury to find that a reasonable person in Calhoun’s shoes would have felt that his services were no longer desired. Judgment N.O.V. We have stated that [t]he standard for granting judgment n.o.v. in this circuit is well settled. Such a motion should only be granted upon a determination that the evidence could lead reasonable [persons] ... to but one conclusion, a determination made without evaluating the credibility of witnesses or the weight of the evidence at trial. Hubbard v. Faros Fisheries, Inc., 626 F.2d 196, 199 (1st Cir.1980). The testimony of Sabatos was to the effect that he had more formal engineering education than Calhoun, that he had some special expertise in a new product line being produced at the plant and that he generally worked a twelve- to fourteen-hour day. Cross-examination brought out that Sabatos’ expertise was in a product that accounted for no more than 10-20% of the factory’s output. Calhoun’s expertise, on the other hand, related to the product that accounted for 80-90% of the factory’s output. Sabatos also testified that Combis, the man who told Calhoun he was working the same hours as before, had essentially taken over Calhoun’s duties. Preuss’ testimony focused upon the difficult financial position of the factory and his attempts to improve it. He testified that the company had less work than the staffing level could justify and that his first move was to reduce the staff. He also testified that the plant was having problems producing a quality product on time and that he thought Sabatos was simply a better man for the job. Cross-examination brought out that manufacturing deadlines did not fall within Calhoun’s department, but within the responsibility of the Production Department. Preuss also testified that he did not want Calhoun to leave, but was simply trying to find out if he had any retirement plans before laying off a more junior employee. While appellants’ explanation of their action is credible, a reasonable jury could have found that the facts amounted to a constructive discharge. Appellants offered very little evidence to justify Calhoun’s demotion as the result of inadequate performance and the repeated retirement inquiries could be interpreted as harassment or at least a broad hint that Calhoun should retire, especially since he had expressed a clear intention not to retire at earlier meetings. Finally, the threat of an increased work day could be seen as a clear message that the company was prepared to make Calhoun’s life more and more miserable as he continued to refuse to retire, especially when there was no evidence offered to show that Calhoun had to work long hours to get his job done. The district court did not err in denying appellants' motion for a judgment n.o.v. Appellants’ final claim of error is the district court’s failure to give an “anti-corporate bias” jury instruction. Appellants submitted such an instruction to the court prior to the charge and properly objected to the court’s failure to so instruct. Appellants argue that such an instruction was made necessary by the anticorporate language used by plaintiff’s counsel during the closing: “they squeeze the corporate claws around his neck until he has no choice but to say, ‘Well, I will retire,’ ” and “[sjlowly, Bob Calhoun could feel the claw of the company clutching at his neck.” The district court instructed the jury that “[b]ias, prejudice, preconceived notions have no place in a jury’s deliberations” and “[y]ou are to perform your duty without any bias or prejudice as to either party.” “The purpose of jury instructions is to advise the jury on the proper legal standards to be applied in determining issues of fact as to the case before them.” Harrington v. United States, 504 F.2d 1306, 1317 (1st Cir.1974). Beyond that, the district court’s choice of jury instructions is a matter of discretion. We see no abuse of discretion in the district court’s decision not to give the requested instruction. The court admonished the jury twice to avoid bias or prejudice and we believe that was sufficient under the circumstances. Plaintiff’s metaphorical-alliterative reference to “corporate claws” seems to us to be within the normal bounds of creative advocacy. It did not approach the appeal to bias found in Foster v. Crawford Shipping Co., 496 F.2d 788 (3d Cir.1974), where plaintiff’s counsel emphasized that the corporation was foreign, it had substantial assets and the plaintiff would be a ward of the state if no award was made. Affirmed. . Patriot’s Day is an indigenous Massachusetts holiday; the Boston Marathon is traditionally run on Patriot’s Day. . The instruction requested by the appellants was as follows: You should not attach any significance to the fact that Mr. Calhoun is an individual while Acme Cleveland and Cleveland Twist Drill are corporations. This case should be considered and decided by you as a case between persons of equal standing in the community. Corporations such as Acme Cleveland and Cleveland Twist Drill are entitled to the same fair trial at your hands as a private individual such as Mr. Calhoun. You should not give any preference to Mr. Calhoun because he is an individual, nor does the mere fact that Mr. Calhoun is an individual make his testimony any more credible than the testimony presented by Acme Cleveland and Cleveland Twist Drill. All persons, including corporations, stand equal before the law and are to be treated as equals in a court of justice. Question: What is the total number of respondents in the case that fall into the category "natural persons"? 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. EL PASO NATURAL GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. No. 81-4295. United States Court of Appeals, Fifth Circuit. May 24, 1982. Andrea Wolfman, Atty., F. E. R. C., Washington, D. C., for respondent Federal Energy Regulatory Commission. Donald J. Maclver, Jr., Scott D. Fobes, El Paso, Tex., Richard C. Green, C. Frank Reifsnyder, Washington, D. C., for petitioner El Paso Natural Gas Co. Before CLARK, Chief Judge, GARZA and SAM D. JOHNSON, Circuit Judges. CLARK, Chief Judge: The El Paso Natural Gas Company appeals from a Federal Energy Regulatory Commission order, and clarification of that order, disallowing the computation by El, Paso of accrued but unpaid gas purchases in its purchased gas adjustment (PGA) account 191. For the reasons set forth below, we reverse the Commission’s order in part. Prior to 1972 a natural gas company was required to provide the Commission with information detailing all aspects of the company’s operating costs in order to seek a rate increase under § 4(d) of the Natural Gas Act. However, the Commission became aware that gas purchases alone represented an increasingly significant proportion of a pipeline’s total costs, and that the cost of gas purchases fluctuated with great frequency. Therefore, the Commission adopted in 1972 a regulatory mechanism whereby pipelines would be allowed to file for bi-annual rate adjustments based on increases in the cost of gas purchases without having to provide other cost information required in a regular rate increase filing. 18 C.F.R. § 154.38(d)(4). This mechanism, which is called a purchased gas adjustment (PGA) filing, was intended to achieve a fairer rate by reducing the interval between a company’s outlay for increased gas cost and the recoupment of that expense from rate-payers. Companies were given the option of using this purchased gas adjustment method by adding a clause to their regularly filed tariff. However, the Commission required a company electing to use the PGA method to continue using it for three years prior to reverting to the traditional method of seeking rate increases. The bi-annual PGA calculation has two basic components. The first involves an estimate by the company of what its gas costs will be for the next six months. If the current estimate of the cost of gas purchases for the next six months is greater than the originally anticipated cost of gas in the company’s filed tariff, the company may increase its rates accordingly and thereby collect increased revenues from its customers concurrently with its outlays for gas. This first component of the PGA calculation is modified by a second component, in which the company accounts for actual results of the previous six month period. If the amount actually paid for gas during the previous six months was greater than the amount estimated for this six month component in the prior PGA filing, the company adds that excess as a surcharge to the amount calculated in the first PGA component. On the other hand, if the company actually paid less than it anticipated it would six months ago, the amount is subtracted from the component. In either event, interest is computed on the amount of the adjustment. The premise is that if the company has paid out more for gas than it has collected from its ratepayers for such purposes, it should be compensated for not having the use of that money for the time period in question. Conversely, if the company has paid less for gas than it collected from its ratepayers, the ratepayers have been deprived of the use of the amounts they overpaid. In sum then, under the PGA mechanism the company’s rate adjustments reflect a current estimate of the cost of gas modified by a surcharge for previous under or overcollections plus or minus an interest factor. Companies using the PGA procedure continually record under or overcollections and interest calculations in an account designated account 191. This case centers around El Paso’s entry in account 191 of amounts attributable to accrued but unpaid gas purchases because El Paso uses an accrual basis of accounting. These transactions reflect the cost of gas transferred by a seller to El Paso at a determined price, which has not been actually paid to the seller by El Paso. The Commission ordered El Paso to strike all such unpaid accruals from account no. 191 except for those which would be paid within a normal 30-60 day billing cycle after transfer. El Paso’s appeal asserts that the Commission’s order misinterprets and misapplies its own regulations which permit accrual basis accounting; that the order is arbitrary on its face by defining cost to exclude some, but not all, accruals; and that the order violates the traditional “matching” policy of ratemaking which requires that present ratepayers bear the costs of presently received benefits. We need not examine these contentions in the present proceeding. The Commission asserts two justifications for the order. The first, termed the most significant by the Commission, is that permitting El Paso to collect interest for accrued but unpaid gas costs would give El Paso a windfall since the company would be compensated for the loss of the use of money which in actuality it has not paid out. The second, relates to the overall scheme of the PGA procedure which the Commission asserts was designed to allow companies to recoup increased gas costs on a current, or at most, slightly delayed basis. The Commission argues that allowing inclusion of unpaid accruals in account 191 would have the effect of permitting precollection of increased costs. The Commission’s first justification is conceded. El Paso has agreed to forego collection of interest on unpaid accruals. The second justification is improper. The record before us simply does not demonstrate whether any precollections, as defined by the Commission, have occurred— only that they might occur. While deference is ordinarily due to the Commission’s accounting rules, Transcontinental Gas Pipe Line Corp. v. Federal Power Commission, 518 F.2d 459, 465 (D.C.Cir.1975), this deference presupposes that the proper findings have been made to support their promulgation. See id., quoting Federal Power Commission v. Natural Gas Pipeline Co., 315 U.S. 575, 586, 62 S.Ct. 736, 743, 86 L.Ed. 1037 (1942). That is not possible here. Accordingly, we reverse the order disallowing inclusion of unpaid accruals in account 191 as it pertains to the PGA filing by El Paso in question. The proceeding is remanded to the Commission for modification of its order to reflect that El Paso may not charge interest on the unpaid accruals in this filing which are collectable outside the normal 30-60 day billing cycle from date of purchase. We are advised that there are numerous other PGA filings pending before the Commission in which these same issues are sure to arise. Because our ruling here is based on El Paso’s interest concession and on the lack of evidence as to the precollection issue, it is, of course, not binding as to any future disputes concerning the inclusion of unpaid accruals of PGA clauses in which these same factors are not present. REVERSED IN PART AND REMANDED. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_usc2	26	What follows is an opinion from a United States Court of Appeals. The most frequently cited title of the U.S. Code in the headnotes to this case is 26. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. In re ROGERS’ ESTATE. STICKNEY et al. v. COMMISSIONER OF INTERNAL REVENUE. No. 261. Circuit Court of Appeals, Second Circuit. July 6, 1944. John W. Drye, Jr., and Theodore Pearson, both of New York City (William H. Harrar, of New York City, of counsel), for petitioner. Samuel O. Clark, Jr., Sewall Key, and Morton K. Rothschild, all of Washington, D. C., for respondent. Before AUGUSTUS N. HAND, CHASE, and FRANK, Circuit Judges. FRANK, Circuit Judge. 1. The Tax Court held, and the taxpayers and the Commissioner now agree, that the sale was an installment sale within the meaning of § 44(b) of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev. Code, § 44(b). We think that the Tax Court correctly held that the subsequent transfers by the executors of the installment obligations to various trusts of which the executors were themselves trustees and to an escrow agent for a residuary legatee, were within the provisions of § 44(d), “distributed, transmitted, sold, or otherwise disposed of.” Maguire v. Commissioner, 313 U.S. 1, 61 S.Ct. 789, 85 L.Ed. 1149; and Helvering v. Gambrill, 313 U.S. 11, 61 S.Ct. 795, 85 L.Ed. 1155, are most persuasive here, although in those cases the tax arose under § 113(a)-5 of the 1928 Revenue Act, 26 U.S.C.A. Int.Rev.Acts, page 380. Taxpayers’ contention that these transfers were transactions without real substance, because the installment obligations vested in the beneficiaries from the moment the obligations were acquired by the estate, is substantially the position taken by this court in its opinion in Commissioner v. Gambrill, 2 Cir., 112 F.2d 530, which was reversed by the Supreme Court in Helvering v. Gambrill, supra. In Brewster v. Gage, 280 U. S. 327, 50 S.Ct. 115, 74 L.Ed. 457, the question here before us was not considered; it is to be noted, too, that Brewster v. Gage was relied upon in this court in reaching its reversed decision in the Gambrill case. 2. We also agree with the Tax Court that the capital gain resulting from the sale of decedent’s property by the executors was not income of the estate “paid or credited” to beneficiaries within the meaning of § 162(c), 26 U.S.C.A. Int.Rev. Code, § 162(c). Decedent’s will expressly forbade such a result since it provided that “all realized appreciation in the value of stock * * , resulting from the sale * * thereof, shall be considered principal and not income * * Likewise, under the New York decisions, such a gain is regarded as an addition to the corpus of the estate; Bank of Richmondville v. Graves, 259 App.Div. 4, 18 N.Y.S.2d 133, affirmed 284 N.Y. 671, 30 N.E.2d 720. In the accounts filed by the executors with the Surrogates they showed these gains as part of the “principal.” In Weber v. Commissioner, 2 Cir., 111 F.2d 766, the terms of the will were such that the gains upon the making of the sale became at once a profit of the legatees; obviously it therefore immediately became income so far as they were concerned; that casé is therefore not in point, and any language in that opinion possibly indicating a conclusion different from that we have reached here should be regarded as dictum. We think that Helvering v. Butterworth, 290 U.S. 365, 54 S. Ct. 221, 78 L.Ed. 365, is not at variance with the Tax Court’s decision here; the Supreme Court there dealt not with the distribution of any portion of the estate but with an annuity, which it held not to be deductible as income distributed to a beneficiary. 3. Before the railway stock was sold by the executors, they had held it for about a year and a half. ' After the sale, the executors held the installment notes for a period of about ten months! If those ten months be properly added to the year and a half, then for the purpose of computing income under § 117(a), 26 U.S.C.A. Int. Rev.Acts, page 873, there was a holding for more than two years and less than five, with the consequence that 60% of the gain should be taken into account in computing income. § 44(d), relating to gain or loss upon the disposition of installment obligations, provides that “any gain * * * resulting shall be considered as resulting from the sale * * * of the property in respect of which the installment obligation was received.” The purpose of that provision is shown by the Congressional Committee Reports which read in part as fol- lows: “This amendment to the House bill makes it clear that where the profit on the sale or exchange of property is returned on the installment basis by spreading the profit over the period during which the installment obligations are satisfied or disposed of, such profit shall be taken into account under the brackets set forth in section 117 of the bill according to the period for which the original property sold was held rather than according to the period for which the installment obligations were held.” In the light of that statement, we agree with the Tax Court that the perio'd of holding here was for less than two years, and that, accordingly, 80% of the gain must be taken into account in computing income under § 117(a). Affirmed. Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 26. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_casetyp1_7-2	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". In the Matter of The KURTZ ROOFING COMPANY, d/b/a Kurtz Supply Company, Bankrupt. UNITED STATES of America, Appellant, v. Ray F. SPEERS, Trustee in Bankruptcy, Appellee. No. 15405. United States Court of Appeals Sixth Circuit. Aug. 4, 1964. Karl Schmeidler, Dept, of Justice, Washington, D. C., for appellant, Louis F. Oberdorfer, Asst. Atty. Gen., Meyer Rothwacks, I. Henry Kutz, Attys., Dept, of Justice, Washington, D. C., on the brief, Merle M. McCurdy, U. S. Atty., Harland M. Britz, Asst. U. 8. Atty., Toledo, Ohio, of counsel. Robert B. Gosline, Toledo, Ohio, for appellee, Shumaker, Loop & Kendrick, Toledo, Ohio, Frank Buckingham, Buckingham, Holzapfel & Buckingham, San-dusky, Ohio, on the brief. Before CECIL and O’SULLIVAN, Circuit Judges, and McALLISTER, Senior Circuit Judge. O’SULLIVAN, Circuit Judge. Section 6323(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 6323(a), protects a “judgment creditor” against unfiled federal tax liens. This appeal requires us to decide whether Section 70, sub. c of the Bankruptcy Act, 11 U.S.C. § 110, sub. c, confers upon a trustee in bankruptcy the right of a judgment creditor to resist imposition on the bankrupt’s assets of a federal tax lien not filed prior to bankruptcy. The referee in bankruptcy and the District Judge held that the trustee had such right, and treated the government on a par with other priority claimants, as provided in Section 64, sub. a of the Bankruptcy Act, 11 U.S.C. § 104, sub. a. We agree with this ruling. Under it, the government will receive 53.48% of $14,149.08, the amount for which it asserts a lien. The government taxes here involved were assessed against Kurtz Supply Company on June 3, 1960. That company was adjudicated a bankrupt on June 20, 1960. Under Sections 6321 and 6322 of Int.Rev.Code of 1954, 26 U.S.C. §§ 6321, 6322, the asserted federal tax lien was perfected as of the date of assessment and demand, June 3, 1960. Section 6323 (a) of the Code, however, provides that: “ * * * the lien imposed by section 6321 shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed by the Secretary or his delegate * * (Emphasis supplied.) No such notice was filed in this case prior to bankruptcy. Section 70, sub. c of the Bankruptcy Act, 11 U.S.C. § 110, sub. c, provides in pertinent part: “The trustee, as to all property, whether or not coming into possession or control of the court, upon which a creditor of the bankrupt could have obtained a lien by legal or equitable proceedings at the date of bankruptcy, shall be deemed vested as of such date with all the rights, remedies, and powers of a creditor then holding a lien thereon by such proceedings, whether or not such a creditor actually exists.” The question before us, then, is whether the words “a creditor then holding a lien” upon the bankrupt’s assets “by legal * * * proceedings” describe, among others, a judgment creditor. If so, the bankruptcy trustee, under § 70, sub. c, has all the rights of such judgment creditor. A judgment creditor becomes such by legal proceedings and obtains a lien on his debtor’s assets by the levy of an execution. He then, indeed, is “a creditor * * * holding a lien thereon.” We believe that in using the broad language now contained in § 70, sub. c, Congress deliberately avoided precise definition of the various types of lienholders whose status it conferred on the trustee in bankruptcy. Prior to 1950 and 1952 amendments to Section 70, sub. c, a distinction was drawn between property of the bankrupt which came into the possession of the bankruptcy court and that which did not. As to the former, the trustee was deemed vested “with all the rights, remedies, and powers of a creditor then holding a lien thereon by legal or equitable proceedings” just as he is under the present wording without regard to possession. As to property not coming into possession of the court, however, he was deemed vested “with all the rights, remedies, and powers of a judgment creditor then holding an execution duly returned unsatisfied * * To be sure, Congress in these amendments dropped explicit mention of judgment creditors and eliminated, for purposes of the trustee’s rights, the distinction between property coming into his possession and that which does not. But “[t]he legislative history indicates that it was the intention of Congress by the 1950 and 1952 amendments to expand the rights of a trustee in bankruptcy * * In re Fidelity Tube Corp., 278 F.2d 776, 781 (3rd Cir. 1960). (Emphasis supplied.) We are persuaded that Congress intended to strengthen, not weaken, the trustee’s rights against all forms of secret liens and retained the broader language, once used only as to property within the court’s possession, so as to include all forms of lienholders, whether by judgment, levy of execution, or otherwise. A trustee in bankruptcy obviously is not in fact a judgment creditor, but by Congressional Act he is “deemed vested * * * with all the rights, remedies, and powers” of a judgment creditor. One of the “rights, remedies, and powers” of a judgment creditor is the right to resist a government lien for taxes where notice thereof is not filed as required by Section 6323(a). The Bankruptcy Act does not say that the special rights conferred by Section 70, sub. c shall be effective against all liens except those for taxes imposed under Section 6321 of the Revenue Code. We do not understand the government to deny the general propriety of this reading. Instead, it asserts that although “Section 70e may give a trustee in bankruptcy some of the rights of a judgment creditor,” and accords him “the status of a hypothetical judgment creditor,” he does not have a judgment creditor’s right to resist the lien here involved. (Emphasis supplied.) No convincing reasons of policy are advanced for such an interpretation, which departs from the clear language of the statutes involved. Section 70, sub. c of the Bankruptcy Act and § 6323(a) of the Internal Revenue Code of 1954, indeed, are both successors to statutes adopted to prevent the evils of secret liens, whether asserted by the United States or other creditors of a bankrupt. United States v. Gilbert Associates, Inc., 345 U.S. 361, 363-364, 73 S.Ct. 701, 97 L.Ed. 1071, 1075 (1953) ; Sampsell v. Straub, 194 F.2d 228, 231 (9th Cir. 1951), cert. denied, 343 U.S. 927, 72 S.Ct. 761, 96 L.Ed. 1338 (1952). Accordingly, we are unable to agree that unrationalized concern for federal revenues should lead us to judicially amend a statute which expressly confers on the trustee not some, but all of the rights of a creditor holding a lien arising from legal proceedings. Our view is at odds with majority opinions of the Second, Third and Ninth Circuits which have held for the government on the point here involved. Brust v. Sturr, 237 F.2d 135 (2nd Cir. 1956); In re Fidelity Tube Corp., 278 F.2d 776 (3rd Cir. 1960), cert. denied sub nom. Borough of East Newark v. United States, 364 U.S. 828, 81 S.Ct. 66, 5 L.Ed. 2d 56 (1960) ; United States v. England, 226 F.2d 205 (9th Cir. 1955); Simonson v. Granquist, 287 F.2d 489 (9th Cir. 1961), reversed on other grounds, 369 U.S. 38, 82 S.Ct. 537, 7 L.Ed.2d 557, (1962). Notwithstanding our respect for the learned judges of the majority in these cases, we find more persuasive the views expressed by the dissenters in Fidelity Tube, 278 F.2d 782-787, and by Judge Hamley in Simonson v. Granquist, 287 F.2d 490-491. We must con-' cede too that our holding here appears to put us also in disagreement with dictum used in our own decision of In re Taylorcraft Aviation Corp., 168 F.2d 808, 810 (6th Cir. 1948). The dictum in that case was really in the nature of an aside observation because Section 70, sub. c of the Bankruptcy Act was not involved at all. Judge Allen, in dealing with the priority in bankruptcy of a mechanic’s lien over a federal tax lien, notice of which had been filed, took occasion to say, “The trustee was not a judgment creditor * * * and hence § 3672, Title 26, U.S.C., 26 U.S.C.A.Int. Rev.Code, § 3672, (predecessor to § 6323 I.R.C., 1951), has no application.” (Emphasis supplied.) Our present decision does not conflict with Judge Allen’s observation that a trustee in bankruptcy is not a judgment creditor since we rule only that Section 70, sub. c, not considered by Judge Allen, gives him the rights of a judgment creditor. The above decisions, with which we disagree, appear to hold that language employed by the United States Supreme Court in United States v. Gilbert Associates, Inc., 345 U.S. 361, 364, 73 S.Ct. 701, 703, 97 L.Ed. 1071, 1075 (1953), requires that we hold for the government. The Gilbert ease did not deal with the Section 70, sub. c rights of a trustee in bankruptcy. The opposing claims there involved were based on a federal tax lien and a tax lien assessed by the Town of Walpole, New Hampshire. The Supreme Court of New Hampshire had given priority to the town tax because of its holding that the assessment of a municipal tax “is ‘in the nature of a judgment.’ ” The United States Supreme Court declined as a matter of federal law to accord the municipal or state taxing authority the status of a judgment creditor within the meaning of the lien statute. In so ruling, the Court said “ * * * we think Congress used the words ‘judgment creditor’ in § 3672 in the usual, conventional sense of a judgment of a court of record, since all states have such courts.” We do not feel that this language compelled the holdings of the cases with which we disagree and upon which the government here relies. It is our view that Gilbert’s holding that a municipal tax creditor is not a “judgment creditor” for purposes of Section 6323(a), regardless of its status under state law, is inapposite to the question now before us. Such view, we believe, is supported by the reasons expounded in Judge Kalodner’s dissenting opinion in In re Fidelity Tube Corp., 278 F.2d 785-786. We agree, too, with the statement of Judge Hamley in Simonson v. Granquist, 287 F.2d 491: “But the Supreme Court did not say, and had no reason to say, that Congress could not make available to trustees in bankruptcy a defense which it originally made available only to judgment creditors. The defense having been created by Act of Congress, the same legislative body was free to extend its benefits however it pleased.” We think that Judge Hamley spoke correctly in stating, “In my view this statute (§ 70, sub. c) states as clearly as words can speak that a trustee is to be treated as if he were a judgment creditor, although obviously he is not one.” Ibid. An alternative position taken by the government in its brief to this Court is that even though the notice required by Section 6323(a) was not filed prior to bankruptcy, its lien gained priority over the trustee’s title to the bankrupt’s assets in February, 1961, at which time, it is claimed, a notice thereof was filed with the proper state authority. Reliance is placed on Section 67, sub. b of the Bankruptcy Act, 11 U.S.C. § 107, sub. b. This contention is first made in the government’s brief to this court and was not presented to or considered in the bankruptcy proceedings or on review by the District Judge. The referee’s certificate on review recited that “no notice of federal tax liens for internal revenue taxes was at any time filed in the office of the Recorder of Erie County, Ohio, nor the office of the Clerk of Court for this Judicial District.” This was not challenged in the District Court. In his brief here, government counsel states “we have examined the record in this case and have found that notice of lien was filed with Carl A. Speir, Recorder, Erie County, Ohio, * * * on February 9, 1961. * * * ” (Emphasis supplied.) From our own examination of the record in this case, we fail to find that such information constituted any part of the record. It is supplied by attaching to the government’s brief a certified copy of a notice, obtained from the Recorder of Erie County on July 15, 1963. This date is after the filing of Notice of Appeal on April 17, 1963, and the filing of the record on appeal in this court on May 23, 1963. Aside from our surface impression that there is no merit to this position of appellant, we will not consider a matter that was not before the District Court. In re Frank Fehr Brewing Co., 268 F.2d 170, 183 (6th Cir. 1959), cert. denied, Kremer v. Clarke, 362 U.S. 963, 80 S.Ct. 880, 4 L.Ed.2d 878 (1960). Judgment affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
songer_respond1_4_3	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "other". Your task is to determine which specific substate government agency best describes this litigant. Keith MOE and Joanne Moe, individually and on behalf of their minor children, Billie, Brian, and Roberta Moe, Appellants, v. BROOKINGS COUNTY, SOUTH DAKOTA, Appellee. No. 80-2111. United States Court of Appeals, Eighth Circuit. Submitted June 16, 1981. Decided Oct. 2, 1981. John D. Wagner, argued, East River Legal Services, Brookings, S.D., for appellants. Mark V. Meierhenry, Atty. Gen., LeAnn Larson Finke, Mark W. Barnett, argued, Asst. Attys. Gen., Pierre, S.D., Clyde R. Calhoon, Brookings County State’s Atty., Brookings, S.D., for appellee. Before McMILLIAN and ARNOLD, Circuit Judges, and HANSON, Senior District Judge. The Honorable William C. Hanson, Senior United States District Judge for the Northern and Southern Districts of Iowa, sitting by designation. ARNOLD, Circuit Judge. The Moe family brought this action under 42 U.S.C. § 1983, alleging a violation of the Due Process Clause of the Fourteenth Amendment by reason of the failure of Brookings County, South Dakota, to administer the County Poor Relief program, S.D. C.L. §§ 28-13-1 et seq. (1976 & Supp.1980), in accordance with written, objective, and ascertainable standards. Plaintiffs sought declaratory, injunctive, and compensatory relief. Seven days after the action was commenced and prior to any response or appearance by defendant, Brookings County, the District Court entered the following order: It appears to the Court that Plaintiffs basically allege a violation of their fourteenth amendment rights to due process. Plaintiffs claim that the County of Brookings has failed to provide them with due process in that the county has no written, objective, or ascertainable standards for the administration of county poor relief funds. It further appears to this Court that abstention by this Court in this case is proper so as to avoid needless conflict with the administration by the State of South Dakota of its own affairs. Therefore, it is ORDERED that this Court shall abstain from further action in this case. Keith Moe v. Brookings County, South Dakota, No. 80-4188 (D.S.D. Nov. 20, 1980). Plaintiffs now appeal, claiming that no sufficient ground exists for the federal courts to abstain from the exercise of the jurisdiction that Congress has conferred upon them, 28 U.S.C. § 1343. We agree and reverse. I. The complaint (which is virtually all we have before us) alleges that Keith and Joanne Moe are husband and wife and have three children, ages five, three, and two. They have been residents of Brookings County, South Dakota, since August of 1977, and presently live in the City of Brookings. Except for a part-time janitorial job that lasted one month, Mr. Moe has been unemployed since April of 1980. The assets of the Moe family consist of a 1974 Chevrolet, a 1971 Ford which is inoperable, and miscellaneous personal property valued at approximately $500.00. South Dakota requires counties to relieve and support poor residents under what is referred to as the County Poor Relief program. The county commissioners of each county have the primary responsibility of administering the program, pursuant to S.D.C.L. § 28-13-16 (Supp.1980), which provides: County commissioners to have oversight and care of poor persons. The county commissioners in each county shall have the oversight and care of all poor persons in the county so long as those persons remain a county charge, and shall see that those persons are properly relieved and taken care of in the manner provided by law, and shall perform all the duties with reference to such poor persons that may be prescribed by law. The commissioners may designate a county official to - assist in the coordination of poor relief information with other counties. The complaint further alleges the following facts: Plaintiffs have applied to the county commissioners for relief on several occasions. By letter to the Board of Commissioners of May 15, 1980, Mrs. Moe requested assistance for herself and her children. She received no response. Next a staff attorney of the East River Legal Services Corporation wrote a letter on behalf of the Moes to the Brookings County State Attorney, with copies to all county commissioners and to the county auditor, requesting assistance as well as guidelines pertaining to eligibility. Again there was no response. After another request from the same staff attorney that was met with no response, Mr. Moe on August 28, 1980, requested an appearance before the Board of Commissioners. He was granted an appearance before the Board on September 4, at which time he outlined his financial condition. Mr. Moe was admonished for what the Board regarded as his wife’s mismanagement of their food budget, and was told he would receive no relief if the Board learned that he had been in any of the town’s bars. At this meeting the Moes were awarded $100, which was later paid directly to their landlord. In October 1980, Mr. Moe again appeared before the commissioners. They agreed to pay the Moes’ landlord another $100 for one month’s rent. Mr. Moe was also advised that this was the last time he could expect assistance. When he again spoke with the county auditor’s office on November 7, 1980, he was told that no relief request could be tendered until the November 20 meeting of the Commission. Soon after the Moes filed this lawsuit. II. Within a week of the commencement of this action, the District Court abstained sua sponte, citing a need to “avoid needless conflict with the administration by the State of South Dakota of its own affairs.” The county makes two principal arguments in support of the District Court’s action. For the reasons set forth below, we agree with neither. “Abstention from the exercise of federal jurisdiction is the exception, not the rule.” Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). The first basis for abstention advanced by the defendant county in support of the court’s order has its origins in the case of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Pullman requires a federal court to refrain from exercising jurisdiction when the case involves a potentially controlling issue of state law that is unclear, and the decision of this issue by the state courts could avoid or materially alter the need for a decision on federal constitutional grounds. The present case does not fall within this category of abstention. The state law in question is not unclear, nor is it fairly susceptible of an interpretation that would avoid the need for a decision on constitutional grounds. It is plain from a reading of the statutory scheme that the availability of assistance under the program is completely within the discretion of the county commissioners. This lack of standards is precisely the circumstance that plaintiffs claim entitles them to relief. See White v. Roughton, 530 F.2d 750 (7th Cir. 1976); Baker-Chaput v. Cammett, 406 F.Supp. 1134 (D.N.H.1976). Resolution of this suit may adversely affect the “administration by the State of South Dakota of its own affairs,” but this by itself has never been a sufficient basis for application of the Pullman doctrine. “Where there is no ambiguity in the state statute, the federal court should not abstain but should proceed to decide the federal constitutional claim.” Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S.Ct. 507, 511, 27 L.Ed.2d 515 (1971). The county next argues that abstention of the type ordered in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), is applicable here. In Burford the Supreme Court ordered abstention because review by the federal courts would be disruptive of a complex state regulatory scheme that provided for an elaborate review system through specialized agencies and specialized state courts. Such is not the case here. Although S.D.C.L. § 28-13-40 provides for an appeal to the State Circuit Court of any decision of the Board of County Commissioners, this remedy does not involve a complex regulatory scheme or system of review like that in Burford. Abstention is not appropriate “merely because a State court could entertain [the suit].” Alabama Public Service Commission v. Southern R. Co., 341 U.S. 341, 361, 71 S.Ct. 762, 774, 95 L.Ed. 1002 (1951) (Frankfurter, J., concurring). III. Accordingly, we reverse and remand for further proceedings not inconsistent with this opinion. We of course intimate no view on the merits of plaintiffs’ Fourteenth Amendment claim. . S.D.C.L. § 28-13-1 (Supp.1980), under which plaintiffs made their application, provides as follows: County duty to relieve poor persons — Taxation — Determination of eligibility. Every county shall relieve and support all poor and indigent persons who have established residency therein, as that term is defined in §§ 28-13-2 to 28-13-16.2, inclusive, and who have made application to the county, whenever they shall stand in need. Each board of county commissioners may raise money by taxation for the support and employment of the poor. If a person is receiving benefits from the department of social services, the board of county commissioners may determine if he is eligible for county relief. . In George v. Parratt, 602 F.2d 818, 820-22 (8th Cir. 1979), we listed five factors to be considered when deciding whether to apply the Pullman abstention doctrine. The five are as follows: (1) what effect abstention will have on the rights to be protected, (2) whether there are available state remedies, (3) whether the challenged state law is unclear, (4) whether the challenged state law is fairly susceptible of an interpretation that would avoid the federal constitutional question, and (5) whether abstention will avoid unnecessary federal interference in state operations. . E. g., S.D.C.L. § 28-13-16 provides that the county commissioners “shall have the oversight and care of all poor persons ....” Section 28-13-16.1 is entitled “Waiting period imposed at board’s discretion while residency investigated.” Section 28-13-23, which provides for annual payments to “competent poor persons,” reads in part [t]he board of county commissioners may in its discretion allow and pay to poor persons who may become county charges .... Section 28-13-38 provides for temporary re- lief to nonresidents. It reads: Whenever any person entitled to temporary relief as a poor person shall be in any county in which he has not established residency, the commissioners thereof may, if the same is deemed advisable, grant such relief .... . In Zablocki v. Redhail, 434 U.S. 374, 380 n. 5, 98 S.Ct. 673, 677 n. 5, 54 L.Ed.2d 618 (1978), the Supreme Court said that “there is, of course, no doctrine requiring abstention merely because resolution of a federal question may result in the overturning of a state policy.” 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)", specifically "other". Which specific substate government agency best describes this litigant? A. City of, county of, etc. - in corporate capacity - criminal case B. city of, county of, etc. - in corporate capacity - civil case C. Other sub-state activity D. not ascertained Answer:
songer_r_bus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Anthanasios G. DALLIS, Petitioner-Appellant, v. Tommy MARTIN, Respondent-Appellee. No. 90-6331. United States Court of Appeals, Tenth Circuit. April 8, 1991. Anthanasios G. Dallis, Big Spring, Tex., pro se. Timothy D. Leonard, U.S. Atty. and Debra A. Woods, Asst. U.S. Atty., Oklahoma City, Okl., for respondent-appellee. Before ANDERSON, TACHA, and BRORBY, Circuit Judges. STEPHEN H. ANDERSON, Circuit Judge. Petitioner, A.G. Dallis, a federal prisoner, filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2241, challenging a United States Parole Commission decision. The district court dismissed the petition. We affirm. On August 17, 1987, Dallis was sentenced to a five-year suspended sentence for conspiracy to bomb, and two ten-year consecutive terms of imprisonment for malicious destruction of a building and unlawfully making a firearm. The Parole Commission assigned an offense behavior category of seven which resulted in a parole guideline range of 52 to 80 months. It also “aggregated [Dallis’s] two ten-year sentences and determined that he would not be eligible for parole until he had served 80 months or one-third of his aggregate sentence.” Memorandum Opinion at 2 (September 27, 1990) (“Opinion”). Thereafter, Dallis received a notice of action dated April 12, 1988, that he was continued to a presumptive parole after serving 80 months. Dallis challenged this agency action in district court. He raised two grounds in his action for habeas corpus relief. First, he argued that the Parole Commission should have calculated his offense behavior as category five which would have resulted in a guideline range of 24 to 36 months. Second, he argued that he is eligible for parole consideration after the service of 40 months because “the penalty provision for his [C]ount 3 conviction [made] him immediately eligible for parole consideration as to that [C]ount.” Opinion at 2-3. The district court determined that: (1) under the Count 3 penalty provision, Dallis must serve one-third of his sentence before parole consideration; and, (2) the Parole Commission properly aggregated Dallis’s two ten-year sentences. Consequently, it decided that the Parole Commission correctly computed Dallis’s parole eligibility date and it dismissed Dallis’s petition. Because a lower offense severity would not change this result, the district court did not address the merits of Dallis’s first ground. On appeal, Dallis raises both grounds again. First, we address the question of Dallis’s parole eligibility date. Appellant and Appellee agree that pursuant to 18 U.S.C. § 4205(a) and (b) (1988), because the sentencing court “did not exercise its power to set a parole eligibility date, 18 U.S.C. § 4205(a) applies.” Appel-lee’s Brief at 4. Pursuant to 18 U.S.C. § 4205(a) (1988), “a prisoner shall be eligible for release on parole after serving one-third of [his] term ..., except to the extent otherwise provided by law.” Prior to an amendment enacted on October 12, 1984, the penalty statute under which Dallis received his Count 3 sentence, 26 U.S.C. § 5871 (1988), provided such an exception. The amendment to 26 U.S.C. § 5871 deleted language that allowed the Parole Commission to consider parole at its discretion so that it now reads: Any person who violates or fails to comply with any provision of this chapter shall, upon conviction, ... be imprisoned not more that ten years.... 26 U.S.C. § 5871 (1988). Prior to passage of that amendment, however, the statute continued, “and shall become eligible for parole as the Board of Parole shall determine.” Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 227, 98 Stat.1937, 2030 (“Sec. 227 amendment”). Dallis asserts that the amended statute became effective on November 1, 1987, after he was sentenced and well after he committed his offenses. Therefore, he argues the prior statute applies to his Count 3 sentence and the Parole Commission had the discretion to immediately consider him for parole as to that Count. The district court decided that the Sec. 227 amendment was effective on October 12, 1984, prior to when Dallis committed his offenses, and so applied to his Count 3 sentence. I. Ordinarily, “ ‘judicial review’ of [a] Parole Commission action is ... whether the decision of the Commission is arbitrary or capricious, or an abuse of discretion.” Resnick v. United States Parole Comm’n, 835 F.2d 1297, 1301 (10th Cir. 1987). In this case, however, Dallis’s parole eligibility date depends on a question of law: What was the effective date of the particular Sentencing Reform Act section that amended the Count 3 penalty statute? We review this question de novo. The Sentencing Reform Act of 1984 (“SRA”) was passed as Chapter II of the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, 98 Stat. 1837 (“CCCA”). In Romano v. Luther, 816 F.2d 832, 834 (2d Cir.1987), the Second Circuit explained that the CCCA “is an amalgamation of various bills originally drafted in the expectation of being enacted independently of other bills_ [which] contains 23 chapters, each making changes in a different area of federal criminal law.” The Sentencing Reform Act “creates the new system of determinate sentences to be imposed under sentencing guidelines ... and abolishes parole.” Id. Sentencing Reform Act, Sec. 235 “establishes a uniform effective date for most provisions of ... the [SRA,] provides for certain exceptions to the uniform effective date, and contains special provisions related to the transition from the current system of sentencing to the new system.” Id. at 835. Subsection 235(a)(1) provided that the Sentencing Reform Act, with some exceptions, “shall take effect on the first day of the first calendar month beginning twenty-four months after the date of enactment.” Subsequently, Congress changed this period to thirty-six months. Sentencing Reform Amendments Act of 1985, Pub.L. No. 99-217, § 4, 99 Stat. 1728, 1728. Therefore, most of the Sentencing Reform Act took effect on November 1, 1987. To effect a smooth transition between the parole system and the new determinate sentencing system, however, certain parts of the Sentencing Reform Act necessarily became effective upon enactment of the CCCA on October 12, 1984. When the CCCA was enacted on October 12, 1984, Sec. 235(a)(l)(B)(ii)(IV) stated: “the provisions of sectio[n] 227 ... [which amended 26 U.S.C. § 5871 by deleting the discretionary provision,] shall take effect on the date of enactment.” Even though in 1986 this section was amended to replace part IV with language specifying when the SRA Sec. 212(a)(2) would take effect, we agree with the district court that the later amendment to Sec. 285 which deleted reference to Sec. 227 did not repeal Sec. 227. The district court explained: [T]he legislative history of the amendments to Public Law 98-473 does not indicate any express intention to repeal § 227, [and] ... this Court will not interpret § 227 to be repealed by implication. Further, the amendment to 26 U.S.C. § 5871 had already been in effect for two years prior to the 1986 amendment, and therefore, there was no reason to mention § 227 in the subsequent amendments, unless Congress intended to change it. Opinion at 8 (citing United States v. Batchelder, 442 U.S. 114, 122, 99 S.Ct. 2198, 2203, 60 L.Ed.2d 755 (1979)); see also United States v. Barrett, 837 F.2d 933, 934 (10th Cir.1988) ("Courts are reluctant to find repeal by implication even when a later statute is not entirely harmonious with an earlier one_unless the text of legislative history of the later statute shows that Congress intended to repeal the earlier and simply failed to do so expressly.”) (citing Watt v. Alaska, 451 U.S. 259, 266-67, 101 S.Ct. 1673, 1677-78, 68 L.Ed.2d 80 (1981)). The 1986 amendment to Sec. 235(a)(l)(B)(ii)(IV) merely “add[ed] a fourth event that must precede the effectiveness of the sentencing guidelines — section 212(a)(2) of the Crime Control Act taking effect.” Romano v. Luther, 816 F.2d at 836 n. 4. It did not change the effective date of the Sec. 227 amendment to 26 U.S.C. § 5871 which expressly became effective upon enactment two years earlier. The district court correctly determined that the Sec. 227 amendment was effective on October 12, 1984. The district court also noted that although the 1985 version of 28 C.F.R. § 2.2(d) was in conflict with the then recently amended 26 U.S.C. § 5871 (1988), in 1988 the regulation was amended to be consistent with the statute. As amended it also deletes the discretionary release of inmates who commit offenses on or after October 12, 1984, and requires completion of one-third of a sentence term before the Parole Commission may consider parole. 28 C.F.R. § 2.2(d) (1990). Because we also agree that the Parole commission properly aggregated Dallis’s two ten-year sentences to determine an 80-month parole eligibility from a twenty-year base, we hold that the Parole Commission correctly computed Dallis’s parole eligibility. We need not address Dallis’s other issue on appeal that the Parole Commission miscalculated his offense behavior rating. It is a well-settled general rule that “a federal appellate court does not consider an issue not passed upon below.” Pell v. Azar Nut Co., 711 F.2d 949, 950 (10th Cir.1983) (quoting Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976)). Although a court might bend this rule in the interest of fairness to avoid injustice or if “the proper resolution is beyond any doubt,” id. (quoting Singleton v. Wulff, 428 U.S. at 121, 96 S.Ct. at 2877), the Parole Commission correctly computed Dal-lis’s parole eligibility date. Therefore, it is not unfair for us to refuse to review his offense severity rating because: even if the Commission were to rate his offense in a lower category, with corresponding lower guideline, he still would not be eligible for release until he had served 80-months_ [Assigning him a lower offense severity would not change his release date. Appellee’s Brief at 10. In sum, the amended penalty statute applies to Dallis’s Count 3 sentence. Pursuant to this statute, the Parole Commission correctly computed Dallis’s parole eligibility date. The district court, therefore, properly dismissed Dallis’s petition for habeas corpus relief. We AFFIRM. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument. . 18 U.S.C. §§ 4201-4218 (1988), repealed by Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 218(a)(5), 98 Stat.1937, 2027, apply for five years after November 1, 1987, to individuals who committed offenses prior to November 1, 1987. 18 U.S.C. §§ 4201-4218 (1988). . As a whole, the CCCA had no effective date provision and so it became effective upon enactment, "except to the extent that specific provisions of the CCCA otherwise provide." Romano v. Luther, 816 F.2d at 837. . See, e.g., Norwood v. Brennan, 891 F.2d 179, 181-82 (7th Cir.1989) ("SRA transition provisions [including] § 235 were effective immediately”); Romano v. Luther, 816 F.2d at 839 (CCCA Ch. II, § 235(b)(3), the “winding up" provision, takes effect on October 12, 1984). Other parts of the CCCA such as the Bail Reform Act of 1984, Pub.L. No. 98-473, §§ 202, 203, 98 Stat.1976, 1976 (codified as amended at 18 U.S.C. §§ 3141-3150 (1988)), also became effective on October 12, 1984. United States v. Affleck, 765 F.2d 944, 948 (10th Cir.1985); see also United States v. Shaffer, 789 F.2d 682, 686-87 (9th Cir.1986) (CCCA amendments to 18 U.S.C. § 3731 (1988) became effective October 12, 1984). . Criminal Law and Procedures Technical Amendments Act of 1986, Pub.L. No. 99-646, § 35, 100 Stat. 3592, 3599. The Sentencing Reform Act, Sec. 212(a), repeals certain United States Code Title 18 sections and substitutes new chapters to effect the new Sentencing Reform Act, codified as amended at 18 U.S.C. §§ 3551-3559 (1988). . Naturally, a regulation may be out of step with a statute it is intended to enforce for a period after the statute is amended and before the corresponding regulation is likewise amended. Even if the regulations which were temporarily out-of-step with the statute applied, as Appellee notes "offenders have fair warning that the guidelines governing parole determinations are subject to change and a prisoner does not have any expectation of a particular parole system.” Appellee’s Brief at 9-10; see Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979); Yamamoto v. United States Parole Comm’n, 794 F.2d 1295, 1299-1300 (8th Cir.1986); Inglese v. United States Parole Comm’n, 768 F.2d 932, 940 (7th Cir.1985); Solomon v. Elsea, 676 F.2d 282, 284 (7th Cir.1982). .Goode v. Markley, 603 F.2d 973, 976-77 (D.C.Cir.1979) cert. denied, 444 U.S. 1083, 100 S.Ct. 1039, 62 L.Ed.2d 768 (1980); Walker v. J.C. Taylor, 338 F.2d 945, 945-46 (10th Cir.1964). 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_typeiss	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. JOHNSON & JOHNSON, Plaintiff-Appellee, v. The KENDALL COMPANY, Defendant-Appellant. No. 14227. United States Court of Appeals Seventh Circuit. Jan. 22, 1964. Rehearing Denied Feb. 28, 1964. William E. Anderson, Chicago, 111., Charles H. Walker, New York City, Anderson, Luedeka, Fitch, Even & Tabin, Chicago, 111. (Harry R. Pugh, Jr., Fish, Richardson & Neave, New York City, Rowland V. Patrick, H. L. Kirkpatrick, Fish, Richardson & Neave, Boston, Mass., Thomas W. Underhill, Thacher H. Fisk, Boston, Mass., of counsel), for defendant-appellant. Sidney Neuman, Chicago, 111., Harold Haidt of Johnson & Johnson, New Brunswick, N. J., Thorley von Holst, J ames R. Dowdall, Robert L. Austin, Chicago, 111., for plaintiff-appellee. Before DUFFY, SCHNACKENBERG and SWYGERT, Circuit Judges. DUFFY, Circuit Judge. This is a suit charging infringement of Gross Patent No. 2,703,083, relating to an “Adhesive Bandage.” It was issued to plaintiff on March 1, 1955 as a continuation-in-part of earlier abandoned applications of Shelley and Gross filed respectively on June 25, 1953 and September 25, 1953. The complaint charging defendant with infringement was filed the same day the patent was issued. Plaintiff, Johnson & Johnson, is a major producer of adhesive products including adhesive tape and adhesive bandages. The trademark of plaintiff’s adhesive bandage is “Band-Aid.” Defendant’s Bauer & Black division, manufactures similar products, and its adhesive bandages are sold under its trademark “Cu-rad.” At the time of submission to the-District Court, each side submitted proposed findings of fact and conclusions of law. At a later period, the District Court filed its opinion, holding product claims 1, 2, 4, 5, 8, 9, 11 and 12 of the patent in suit were valid and infringed by defendant’s adhesive bandages. The Court directed plaintiff to prepare and submit findings of fact, conclusions of law and judgment order consistent with the opinion. Plaintiff re-submitted the same proposed findings and conclusions as it had theretofore submitted with the exception that the findings last submitted had the references and headings deleted. The Court adopted these findings as submitted. Adhesive bandages have been familiar household articles for thirty or more years. They consist of a piece of pressure-sensitive adhesive tape, to the central portion of which a small pad of gauze has been affixed. The adhesive consists of a backing or backing strip coated with an adhesive substance, which substance is usually referred to as the mass. The surface of t-he gauze pad is protected prior to use by overlapping facing strips which are attached to the exposed adhesive-covered portions of the backing. Thése protective facing strips, which are removed prior to the use of the bandage, protect not only the gauze pad, but the adhesive surface as well. The bandages are enclosed in individual envelopes in which they are sealed and sterilized. In spite of the fact that the patent in suit is entitled “Adhesive Bandage,” it is not concerned with the material of which the backing is made, nor with the formulation of the adhesive mass. It is concerned with the nature of the facing strips which are used to protect the adhesive surfaces and the gauze pad. Prior to 1950, the backing strip of adhesive bandages was usually a white woven cloth which was substantially inextensible, the same as the backing strip of the surgical tape of that day. About 1951, both plaintiff and defendant began using extensible plastic strips instead of woven fabric. The bandages made from this plastic material conformed more readily to the irregularly shaped portions of the human body. Thereafter, extensible plastic backings became conventional. Prior to about 1953, the protective removable facing strips were usually made of a loosely woven fabric called crinoline, which is a starched gauze. However, crinoline has been replaced on the commercial products of both parties to this suit by thin, smooth strips of synthetic plastic material, either in the form of thin, unsupported films, or thin films laminated to paper. The patent in suit is concerned with that substitute of materials for facings and with the benefits which result from the use of such facings. Certain basic requirements for a material to be used for facing strips flow from the function to be performed. One self-evident requirement is that the facing material should be readily removable from the adhesive surface when the user wishes to apply the bandage. Another such requirement is that the material b® inert in the sense that it should not adversely affect the adhesive mass and other portions of the bandage with which it is in contact, especially when subjected to high heat in the process of sterilization. As a facing material, crinoline possessed these qualities. It was chemically inert, was readily removable from the adhesive and was not expensive. There was a drawback to crinoline, however, because its rough and open-meshed texture became embedded to some extent in the adhesive surfaces to which it was applied, with the result that the adhesive surfaces, upon removal of the crinoline, were somewhat rough. Because of this roughness, the initial contact of the adhesive mass with a portion of the body to which it was applied, involved only the high spots of the adhesive surface, and it was usually necessary to apply pressure in order to bring the full potential of the adhesive mass into play. Also, some of the crinoline’s starch content sometimes transferred to the adhesive and masked portions of the adhesive surface resulting in reduction of adhesive ability of the bandage. Both parties to this suit endeavored from time to time to find a more suitable facing material, and both looked for a material with continuous smooth surfaces: The parties to this suit had been aware for years that the tackiness of an adhesive mass on initial contact was greatly enhanced by the use of a facing material having a surface which was smoother than crinoline. The structural elements of an adhesive bandage are a) the backing, b) the adhesive layer covering the backing, c) the gauze pad or compress, and d) the facing which overlies the pad and adhesive to protect them until the bandage is used. Plaintiff claims the contribution made by Gross was to provide a bandage characterized by new and critical relationships between these structural elements. The District Court found in the Gross bandage 1) the facing members have a smooth surface; 2) the facing members are in such intimate contact with the adhesive mass that they exclude air and impart to the adhesive the smooth surface characteristics of the facing members, and notwithstanding the intimacy of such contact and the conditions used to sterilize the bandage, the facing members are 3) inert with respect to the mass, and 4) releasable, that is, easily and cleanly removable from the adhesive without separating the adhesive from the backing and without impairing the smooth surface characteristics imparted to the adhesive by the facing. These relationships are described in the Gross patent as the four basic requirements or principles of the invention. As an illustration that both parties knew that a smoother adhesive surface which resulted from the use of a smooth-surfaced facing material, would give greater adhesiveness upon initial contact, defendant points to an industrial tape known as 281 which defendant had sold commercially beginning in 1949. This was a double surfaced tape where both sides were coated with adhesive. It was sold in roll form, a continuous smooth-surfaced strip of polyethylene film was interposed between each convolution of the tape so that when rolled under tension each of the two adhesive surfaces of the tape were firmly pressed against the interposed polyethylene facing sheet. On the unrolling of the tape and the removal of the facing sheet, the resulting smooth adhesive surfaces were possessed of superior adhesiveness on initial contact. In the testimony this was sometimes referred to as “quick-stick.” However, there is an important difference in the requirements of a facing material to be sold in roll form and adhesive tape to be incorporated into adhesive bandages. Tape sold in the form of adhesive bandages is required by law to be sterilized. The polyethylene which defendant used in the interleaved facing sheet in its 281 tape could not be used in adhesive bandages which were destined to be steam-sterilized. This material could not withstand the high temperature at which a steam-sterilization must be conducted. Thus, synthetic plastic materials which were available prior to 1951 were not satisfactory for adhesive bandages. In 1951, du Pont developed a new synthetic plastic, technically a polyester of terephthalic acid and a dihydric alcohol such as ethylene glycol, which in fiber form became well known as Dacron. The same material in film form was sold under the du Pont trademark Mylar. This material could withstand the high temperature involved in steam-sterilization. In September 1952, after much experimentation, plaintiff confirmed that Mylar promised the desired capabilities of surviving steam sterilization and with its lustrous film commended it for use in place of crinoline as a facing material. In October 1952, someone in plaintiff’s organization found that when he lightly laid one of the ends of an adhesive bandage which had been faced with Mylar paper laminate on a can in which adhesive bandages are usually sold, it would adhere so strongly that the can could be lifted. In the spring of 1952, defendant found a Munising vinyl-coated facing survived steam-sterilization better than any previous material it had encountered. Using this material, it made a market test in the Chicago area in early March 1953. This was prior in time to the filing of the application for the patent in suit. Plaintiff learned of defendant’s market test. In May 1953, plaintiff came on the market with Mylar laminate facing bandages and with the knowledge that a material then available known as Koda-pak IV, newly developed by Eastman Kodak Company, could also be used instead of Mylar, the latter being then in short supply. Mylar and Kodapak had in common that they were newly developed, and were capable of withstanding the high temperature involved in steam-sterilization. In May 1953, when plaintiff first marketed its Mylar-faced bandage, defendant had not then decided to replace crinoline with a smoother facing material. At that time, plaintiff’s sales of Band-Aids were about four times that of defendant’s Cukads, and defendant was somewhat reluctant to abandon its product which had been well-advertised and much used in the past. Thus, both parties to this suit acquired the capability of making satisfactory adhesive bandages with quick-stick capability on a commercial basis. Plaintiff did so by obtaining access to Mylar and Kodapak IV, new materials developed by others to which plaintiff made no contribution. Defendant did so first by locating the Munising vinyl-coated paper and later, by acquiring equipment permitting low temperature gas sterilization. However, each of the parties to this suit were confronted with the practical question of whether they should adopt these new methods or to let well enough alone. The new materials were more expensive. Plaintiff’s ultimate decision was greatly influenced by learning of defendant’s test-marketing in Chicago. As the president of plaintiff put it, defendant's marketing “put the burr under our tails and caused us to move more rapidly than we might have otherwise.” Plaintiff’s advertisements and demonstrations made wide and effective use of the can-lifting capabilities of the new Band-Aid bandages. Defendant deemed it necessary to offer to the public a product having similar can-lifting capability. In the summer of 1953, defendant followed plaintiff on the market with its steam-sterilized CURAD bandage faced with vinyl-coated paper. Plaintiff claims that all of the defendant’s accused adhesive bandages infringed claims 1, 2, 11 and 12 of the Gross Patent; that defendant’s vinyl-faced adhesive bandage also infringed claims 4 and 9, and that defendant’s polyethylene-faced bandages also infringed claims 5 and 8. The District Court found that Gross Patent claims 1, 2, 4, 5, 8, 9, 11 and 12 were infringed by defendant’s adhesive bandages. The District Court placed much reliance on the district court decision in Johnson & Johnson v. C. B. Stenvall, Inc. (S.D.N.Y.), 193 F.Supp. 128. Claims of the Gross patent in suit were in issue in that case. The Court there held that claims 1, 2, 3, 9, 11 and 12 of Gross Patent No. 2,703,083 were valid and infringed. Defendant points out that the trial of the Stenvall case took less than two days, and claims that much of the pertinent prior art relied on in the instant case, which consumed nineteen trial days, was not before Judge Solomon who tried the Stenvall case. An appeal was taken in the Stenvall case, but a settlement was effected. Stenvall took out a license and the appeal was dismissed. We think the District Court was in error in finding that defendant copied the plaintiff’s patent. The patent in suit did not issue until March 1, 1955. This was nearly two years after defendant’s product had been test-marketed. Plaintiff’s first smooth-faced bandages with facings of Mylar laminated to paper were marketed in May 1953. This was after some of plaintiff’s officers had seen a bandage which defendant had test-marketed in the Chicago area, and in which the paper facings were impregnated with a vinyl plastic which produced a smooth surface. Although the Mylar and Kodapak IV laminates used by plaintiff could be steam-sterilized, defendant’s vinyl-coated paper was only marginal in this respect. Later, defendant replaced its vinyl-treated paper facings with an unsupported film of polyethylene which it had long used as a facing sheet in connection with its industrial adhesive tape 281. It could do this because it had installed equipment by which bandages could be sterilized by the carboxide gas process which operated at a lower temperature than sterilization by steam. Neither plaintiff nor defendant was the first to utilize gas sterilization for adhesive bandages in the United States. Neither was first to introduce adhesive bandages having smooth continuous facings. In 1950, Cress bandages appeared on the market. These bandages had facing sheets of metal foil laminated to paper similar to wrappers for chewing gum and cigarette packages. The smooth surface of the metal foil facings smoothed the surface of the adhesive portions of the bandage. Government records show shipments of Cress bandages into this country from Canada in February 1952. The testimony showed that plaintiff received some disquieting reports from their field men with reference to competition from the Cress bandages. Bandages employing metal facings have all the attributes of the product of the Gross patent except that the Gross patent has the artificial limitation that the facing shall be of organic material. The Cress bandages were sterilized by the use of carboxide gas. Defendant strongly urges lack of patentable invention on the basis of obviousness under Section 103. We, of course, have the right to determine whether the District Court applied the proper standard of invention. This is-a matter of law reviewable by this Court. New Products Corp. v. Outboard Marine & Mfg. Co., 7 Cir., 263 F.2d 521, 525; Armour & Co. v. Wilson & Co., 7 Cir., 274 F.2d 143, 151-157. The record clearly shows that the adoption of smooth-facings in adhesive bandages awaited the development of materials such as Mylar and Kodapak IV which could withstand the high temperatures of steam sterilization, and also the development of equipment and techniques using gases such as carboxide which made possible the sterilization of facing materials such as polyethylene at a lower temperature. Certain it is that Gross contributed nothing to either of these developments. We think the achievement of “Instantaneous adhesion” by the use of smooth facings was well known in the art and had been put to practical use by each of the parties to this suit in various of their commercial products. There was nothing unobvious, unexpected or surprising in Gross’ teachings, after the logjam had been broken by others. As was said in Ruben Condenser Co. v. Aerovox Corp., 2 Cir., 77 F.2d 266, 268, cert. den. 296 U.S. 623, 56 S.Ct. 145, 80 L.Ed. 443, “ * * * [i]f the machine or composition appears shortly after some obstacle to its creation, technical or economic, has been removed, we should scrutinize its success jealously; * * *” In Weston Electrical Instrument Corp. v. Dejur-Amsco Corp., 2 Cir., 133 F.2d 778, 781, the Court considered that a portable exposure meter had been held up until the art had developed a self-generating “photo-electric cell” with enough power to move the indicating mechanism. The Court pointed out that, two persons, in an interval of two or three years, thought of the expedient that was involved in that case. The Court held the patent invalid. The case of Glikin v. Smith, 5 Cir., 269 F.2d 641, is pertinent to the case at bar. In-Glikin, the patent was on eye-glasses-in which a hearing aid was incorporated in one of the side bows of the frame. The Court held the patent invalid, pointing out the development of transistors and other miniature components and not Smith’s invention were responsible for the acceptance and commercial success of hearing-aid glasses. The Court said, 269 F.2d at 654: “In this proceeding we see Smith as attempting to assert a patent monopoly over efficient and commercially successful hearing aid eyeglasses which owe their efficiency and success to scientific advances with which Smith had nothing to do.” It is our view that plaintiff’s attempt to assert a patent monopoly over adhesive bandages which owe their efficiency, as far as “quick-stick” is concerned, to scientific advances in new facing materials and sterilizing methods with which Gross had nothing to do, is analogous to the effort of the patentee in Glikin v. Smith. We hold that the claims of the patent in suit are invalid because of lack of patentable invention. Defendant strongly urges that the patent in suit is invalid because it attempts to differentiate the facings with which it is concerned from those of the prior art in terms of their ability to perform their intended function, rather than by reference to the physical structure or chemical characteristics which enable them to do so. Defendant argues that several of the “basic requirements” of the alleged invention are defined in the claims in the terms of their ability to achieve the desired result rather than in terms of the physical or chemical structure by which that result is achieved. It is well established that claim elements may not be functional at the point of alleged novelty. General Electric Co. v. Wabash Appliance Corp., 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402. We consider this question raised by the defendant to be a close one. However, we rest our decision that the patent in suit is invalid on the reasons hereinbefore stated. Defendant has also insisted that the patent, properly construed, is not infringed by its adhesive bandage. It insists that by the application of the final facing material, the surface of the mass is slightly roughened rather than smoothed by the application of the facing. Defendant argues that a smooth surface is not imparted to the adhesive surface by the application of the final facing, as is called for by each of the claims in suit. In view of our holding of invalidity, we do not reach the question of infringement. The complaint must be dismissed. Reversed. . Published in 215 F.Supp. 124. 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_appel2_1_3	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. MUTUAL SERVICE CASUALTY INSURANCE COMPANY, Plaintiff-Appellee, v. COUNTRY LIFE INSURANCE COMPANY, Country Mutual Insurance Company and Country Casualty Insurance Company, Defendants-Appellants. No. 88-1115. United States Court of Appeals, Seventh Circuit. Argued May 31, 1988. Decided Oct. 12, 1988. Joseph P. Della Maria, Jr., Rothschild Barry & Myers, Chicago, Ill., for defendants-appellants. David L. Antognoli, Bernard & Davidson, Granite City, Ill., for plaintiff-appellee. Before BAUER, Chief Judge, and CUMMINGS and CUDAHY, Circuit Judges. CUMMINGS, Circuit Judge. Country Life Insurance Company, Country Mutual Insurance Company, and Country Casualty Insurance Company (“Country Companies”) appeal the district court’s entry of partial summary judgment in favor of plaintiff Mutual Service Casualty Insur-anee Company (“MSI”), which sought declaratory relief concerning its obligations under both a general liability and an umbrella insurance policy it issued to Country Companies. The court below concluded that because MSI’s policies did not cover the intentional torts alleged in the underlying lawsuit, MSI need not defend nor indemnify Country Companies against the class action seeking damages in excess of $20 million. We affirm for the reasons that follow. Joseph Slimack, as well as certain other former agents of Country Companies, filed a two-count complaint on October 21, 1981, in state court, alleging that Country Companies “knowingly” engaged in a “scheme or plan” to deprive them of compensation due under agency contracts as well as firing them or forcing their resignation if they objected to the foregoing conduct. Count I claimed that when various insurance policyholders failed to pay their premiums, Country Companies then withheld the agents’ commissions and applied them to pay the delinquent premiums. Count II further alleged that the insurance accounts procured by the former agents were subsequently transferred to the new agents who replaced them. The claimant agents also asserted that they suffered emotional distress emanating from Country Companies’ actions. The complaint sought unquantified compensatory damages as well as $20 million dollars in punitive damages on each count. MSI insured Country Companies under two policies, a general liability and an umbrella policy. The general liability policy covered property damage and bodily injury, while the umbrella policy insured against loss in excess of the general policy’s limits of coverage. In each policy, the insuring clause restricted liability coverage to loss caused by an “occurrence,” defined as “an accident ... which results in bodily injury or property damage neither expected or intended from the standpoint of the insured.” One month after the filing of the Sli-mack suit, through a letter of F.J. Hagen, its Business Insurance Claims Manager, MSI accepted the defense of Country Companies, but explicitly reserved the right to disclaim its coverage and “to bring a declaratory judgment action sometime in the future to litigate these coverage issues” (Def.App. 115). After reserving its rights, MSI then allowed Country Companies to retain independent legal counsel to defend the action, and MSI paid the litigation costs until 1986. Payment was pursuant to a December 3, 1981, letter of Hagen, stating that MSI was “willing to defend those companies subject to the right to bring a declaratory judgment action at an appropriate time and a right to withdraw from the defense” (Def.App. 117). MSI later brought this declaratory judgment action in federal district court in April 1985. Country Companies responded, and in a memorandum opinion entered on June 19, 1985, Chief Judge Foreman ruled: “Here the Plaintiff [MSI] asks this court to declare that the agents have failed to allege facts in their complaint sufficient to sustain a cause of action for mental anguish or emotional distress, apparently on the contention that absent these two theories of recovery the agents’ complaint would not fall within the insurance policy. It is important to note that the plaintiff is not asking this court to declare that the facts as alleged in the state court complaint do not fall within the confines of the insurance policy. Clearly, this court would have the authority to so declare. Rather, the plaintiff is apparently asking this court to declare that, although the facts alleged fall within the policy, they are insufficient to sustain a cause of action for emotional distress or mental anguish. However, by so declaring, this court would be deciding an ultimate issue in the underlying suit, namely whether the agents’ complaint fails to state a valid claim for relief. This issue must be decided by the state court.” (Def.App. 96). After filing an amended complaint on November 19, 1986, MSI moved for partial summary judgment on March 20, 1987, seeking an order that it had no duty to defend the Slimack action. On December 14, 1987, the district court held that the underlying litigation did not allege the requisite “occurrence” because it predicated Country Companies’ liability solely on an intentional tort theory. The court further decided that MSI’s letter agreeing to pay Country Companies’ defense costs did not estop it from reserving its right to withdraw. This appeal followed the grant of partial summary judgment. This Court has jurisdiction because the court below entered a final judgment as to MSI’s claim under Rule 54(b) of the Federal Rules of Civil Procedure. Country Companies first contends that diversity jurisdiction does not exist because nothing in the record shows that MSI is a Minnesota corporation. MSI’s amended complaint omitted essential jurisdictional allegations, but did assert that its principal place of business was in Minnesota and that the suit was brought under 28 U.S.C. § 1332, the diversity provision of the Judicial Code. Although neither the parties nor the district judge noticed the defect until after the judge had rendered his decision on the merits, it was not too late for Country Companies to question the court’s jurisdiction in its appellate brief. See Fed. R.Civ.P. 12(h)(3); Casio, Inc. v. S.M. & R. Co., 755 F.2d 528, 530 (7th Cir.1985); cf. Honneus v. Donovan, 691 F.2d 1, 2 (1st Cir.1982) (per curiam). MSI relies on its Proposed Findings of Fact and Conclusions of Law which proposed that the district court find MSI to be a citizen of Minnesota. We need not decide whether such a proposal is sufficient to establish diversity jurisdiction, since MSI has also requested leave to allege that it is a mutual insurance company incorporated under Minnesota law, conceding “inartful pleading” of its complaint. As we recently noted, 28 U.S.C. § 1653 authorizes the amendment of “defective allegations of jurisdiction.” Newman-Green, Inc. v. Alejandro Alfonzo-Larrain R., 854 F.2d 916, 919 (7th Cir.1988) (en banc). Furthermore, the Federal Rules of Civil Procedure’s liberal amendment rule permits a party who has not proved or even alleged that diversity exists to amend his pleadings even as late as on appeal, and if nothing appears to the appellate court that would bar jurisdiction, jurisdiction is deemed proper, despite the plaintiff’s usual burden of alleging and proving jurisdiction. Buethe v. Britt Airlines, Inc., 787 F.2d 1194 (7th Cir.1986). Such defective allegations of jurisdiction may be amended even after judgment has been entered and an appeal taken. 28 U.S.C. § 1653; Strain v. Harrelson Rubber Co., 742 F.2d 888 (5th Cir.1984). We therefore grant MSI’s request to supplement its complaint by asserting that it is a Minnesota corporation. That does not end our inquiry, however. Country Companies, relying on the Second Circuit’s opinion in Baer v. United Services Automobile Ass’n, 503 F.2d 393 (2d Cir.1974), argues that MSI is an unincorporated association having the citizenship of each of its members, at least one of whom must be an Illinois citizen, thereby destroying diversity jurisdiction. In Baer, the defendant claimed that it was a “reciprocal insurance association,” a type of unincorporated association. Whether it should be considered a corporation for diversity purposes depended on state law. Baer, 503 F.2d at 395 (citing United Steelworkers v. R.H. Bouligny, Inc., 382 U.S. 145, 86 S.Ct. 272, 15 L.Ed.2d 217); see also Cote v. Wadel, 796 F.2d 981, 983 (7th Cir.1986). The court concluded, after examining the relevant Texas statutes, that the defendant was an unincorporated association, in part because though Texas law “subjects both [reciprocal insurance associations and insurance corporations] to the same supervision of state insurance officials,” id. at 394, it does not “intrude upon the traditional distinction drawn between [the two],” id. at 394-395. Country Companies points to similarities between the Minnesota statutory scheme and that of Texas. But Country Companies overlooks the provisions of Minnesota law which provide that mutual insurance companies are incorporated under Minnesota law. Minn.Stat.Ann. § 66A.03. Thus, unlike the defendant in Baer, MSI is a corporation subject to Minnesota’s corporation laws. Minn.Stat.Ann. § 66A.02. See Cote, 796 F.2d at 983 (“a corporation, is a corporation, is a corporation”). Accordingly, subject matter jurisdiction based on diversity of citizenship exists. Having concluded that diversity jurisdiction does exist, we must examine the substantive issue in this case, namely, whether MSI had a duty to defend the underlying Slimack litigation against Country Companies. This case was decided below on a motion for partial summary judgment, in which MSI had the burden of establishing the lack of a genuine issue of material fact. LaSalle Nat’l Bank v. General Mills Restaurant Group, 854 F.2d 1050, 1052-53 (7th Cir.1988). In analyzing the relevant law applied below, significant deference must be given to the district judge’s interpretation of the law of the state in which he sat. Hartford Casualty Ins. Co. v. Argonaut-Midwest Ins. Co., 854 F.2d 279, 282 (7th Cir.1988). The parties here agree that the law of Illinois governs this dispute; therefore we need not address that issue further. Bandag, Inc. v. Nat’l Acceptance Co. of America, 855 F.2d 491, 493 n. 1 (7th Cir.1988). On appeal, Country Companies asserts that as a matter of law, MSI has a duty to defend the Slimack litigation. Our main concern, however, is whether any genuine issues of material fact remain as to MSI’s reservation of the right to bring a declaratory action. We need also address whether this reservation was superseded by either a subsequent agreement or by MSI’s conduct in paying Country Companies’ defense costs. Under Illinois law, it is generally held that an insurer may be estopped from asserting a defense of noncoverage when the insurer undertakes to defend an action against the insured. However, it is also the general rule that this undertaking must result in some prejudice to the insured. See Maryland Casualty Co. v. Peppers, 64 Ill.2d 187, 196, 355 N.E.2d 24, 29 (1976). In Gibraltar Ins. Co. v. Varkalis, 46 Ill.2d 481, 263 N.E.2d 823 (1970), the insurer filed an appearance on behalf of its insured in a wrongful death action. Fourteen months later, during which time the insurer had continued the exclusive representation of the insured, the insurer advised the insured that it was representing him under a reservation of rights. Significantly, the Illinois Supreme Court concluded that “[djuring the interim [the insurer] acted on behalf of [the insured] as though no questions of policy coverage were involved, thus clearly causing him to wholly rely for his defense on the efforts of [the insurer].” 46 Ill.2d at 488, 263 N.E.2d at 827. Interpreting this language, this Court in Northwestern Nat’l Ins. Co. v. Corley, 503 F.2d 224, 229 (7th Cir.1974), decided that the quoted language implicitly required a showing of prejudice to the insured before estoppel is established. The Appellate Court of Illinois similarly construed Gibraltar in Greater Chicago Auction, Inc. v. Abram, 25 Ill.App.3d 667, 323 N.E.2d 818 (1st Dist.1975). Such a demonstration of prejudice, however, is not necessary here due to MSI’s prior reservation of rights. The Illinois Appellate Court in Tapp v. Wrightsman-Musso Ins. Agency, 109 Ill.App.3d 928, 930, 65 Ill.Dec. 353, 355, 441 N.E.2d 145, 147 (4th Dist.1982), held that there would be no estoppel where an insurer, such as MSI, expressly reserved its rights and later sought a declaratory judgment. The record here fails to show that any subsequent agreement between the parties superseded MSI’s reservation of right to withdraw from the defense of the Slimack litigation, and accordingly MSI is not es-topped from seeking declaratory relief. The use of a declaratory judgment action in cases such as this has long been supported by Illinois courts, see, e.g., Thornton v. Paul, 74 I11.2d 132,159, 23 Ill.Dec. 541, 551, 384 N.E.2d 335, 345 (1978); Sims v. Illinois Nat’l Casualty Co., 43 Ill.App.2d 184, 193 N.E.2d 123 (3d Dist.1963); Note, Use of the Declaratory Judgment to Determine a Liability Insurer’s Duty to Defend, 41 Ind.L.J. 87 (1965), and we see no reason to prohibit it in the instant scenario. MSI’s payment of some of Country Companies’ defense costs does not estop it from pursuing this declaratory relief. Insurance companies do not breach their requisite duties to defend when they bring suits for declaratory judgment even after first defending under a reservation of rights. Pekin Ins. Co. v. Home Ins. Co., 134 Ill.App.3d 31, 34, 89 Ill.Dec. 72, 479 N.E.2d 1078 (1st Dist.1985). Having disposed of the estoppel claim, it is essential to examine the allegations set forth in the Slimack complaint, which determine the scope of MSI’s duty to defend Country Companies. Illinois Farmers Ins. Co. v. Preston, 153 Ill.App.3d 644, 106 Ill.Dec. 552, 554, 505 N.E.2d 1343, 1345 (2d Dist.1987); Maryland Casualty Co. v. Peppers, 64 Ill.2d 187, 355 N.E.2d 24 (1976); Grinnell Mutual Reinsurance Co. v. Frierdich, 79 Ill.App.3d 1146, 35 Ill.Dec. 418, 399 N.E.2d 252 (5th Dist.1979). An insurer’s duty to defend under a liability policy arises only if facts are set forth in the complaint that are within the coverage provided. Conway v. Country Casualty Ins. Co., 92 Ill.2d 388, 65 Ill.Dec. 934, 442 N.E.2d 245 (1982); Hawkeye Security Ins. Co. v. Hodorowicz, 84 Ill.App.3d 948, 40 Ill.Dec. 445, 406 N.E.2d 146 (1st Dist.1980). Since an insurer need not defend a claim that falls outside of the policy coverage or is excluded, Van Vleck v. Barbee, 115 Ill.App.3d 936, 71 Ill.Dec. 537, 451 N.E.2d 25 (3d Dist.1983), we must look at whether the allegations of Slimack’s complaint fall within the policy’s coverage or within an exclusion from coverage. Both insurance policies solely covered liability which arises out of an “occurrence,” defined as “an accident ... which results in bodily injury or property damage ... neither expected nor intended from the standpoint of the insured.” Similar policy language in other insurance cases has been construed so that intentional torts are deemed outside the scope of such an “occurrence.” For example, an assault was interpreted not to be an occurrence in the recent decision of Bay State Ins. Co. v. Wilson, 96 Ill.2d 487, 493-494, 71 Ill.Dec. 726, 728, 451 N.E.2d 880, 882 (1983). Slimack’s complaint claimed that Country Companies “knowingly” engaged in a scheme or “plan” to deprive the agents of their deserved compensation. When these agents objected, they were either fired or forced to resign. The complaint further alleged that the accounts procured by the agents were reassigned to their replacements. These actions by Country Companies supposedly were “knowingly wrongful, unlawful, and oppressive” in breaching the agency contract. The allegations set forth in Slimack’s complaint plainly predicate liability on a theory of intentional misconduct. In Preston, such a tortious breach of contract committed under a “plan or design” was held to be an intentional tort, one which the insurer had no duty to defend against absent any alternative claims of negligence. 153 Ill.App.3d at 651, 106 Ill.Dec. at 556, 505 N.E.2d at 1347. Similarly, the underlying action in this case falls outside the parameters of both the general liability and umbrella policies covering only unintentional torts. After liberally construing the complaint in the underlying action, the district court refused to allow recovery under a theory of recklessness. This was based on the limiting word “expected” in MSI’s policy. This reasoning was correct, for “[ejven where the damages are not accomplished by design or plan (not intended), they may be of such a nature that they should have been reasonably anticipated (expected) by the insured.” Aetna Casualty & Surety Co. v. Freyer, 89 Ill.App.3d 617, 620, 44 Ill.Dec. 791, 793, 411 N.E.2d 1157, 1159 (1st Dist.1980). This Court recently recognized that an exclusion for “intended” or “expected” damages would be significantly broader than an exclusion for damages caused “intentionally by or at the direction of the insured.” Country Mutual Ins. Co. v. Duncan, 794 F.2d 1211, 1215-1216 (7th Cir.1986). Country Companies should certainly have reasonably anticipated any accompanying financial loss and emotional distress caused by its actions to its agents. The same rationale defeats Country Companies’ argument that the former agents’ complaint “is sufficiently broad to allow them to introduce evidence at trial which would establish negligent infliction of emotional distress” (Def.Br. 20-21). Slimack, et al., however, did not amend the complaint to include a negligence claim. Consequently, they are confined to an intentional tort theory at trial. Stirs, Inc. v. Chicago, 24 Ill.App.3d 118, 125, 320 N.E.2d 216, 220-221 (1st Dist.1974). Had Slimack and his fellow agents alternatively alleged intentional acts and negligence, MSI would have had to defend even though its “occurrence” policy prohibited coverage under intentional torts. See State Security Ins. Co. v. Globe Auto Recycle Corp., 141 Ill.App.3d 133, 136-137, 95 Ill.Dec. 539, 541, 490 N.E.2d 12,14 (1st Dist.1986). Yet as in Preston, MSI should be entitled to a declaratory judgment declaring no duty to defend when Slimack’s complaint alleged non-covered intentional torts and contained no alternative negligence count, regardless of the potential for subsequent amendment. 153 Ill.App.3d at 649, 106 Ill.Dec. at 557, 505 N.E.2d at 1348. Country Companies’ final dispute regarding an alleged “conflict of interest” between it and MSI did not preclude the district court from declaring the respective rights of the parties. The purpose of MSI’s suit was to establish whether the Slimack complaint alleged a covered loss. Unlike the authorities relied on by Country Companies, declaring the rights between insurer and insured here does not preempt decision of any factual issue in the underlying lawsuit. Accordingly, the district court’s grant of partial summary judgment is affirmed. . These other parties, defendants below, include Glen Merwin, Larry Brighton, Dennis Speck-man, Carl Kunz, Leroy Hamman, Leonard Brockmeyer, James Lyons, Donald Koenig, Noel Roberts, David Baggett, Merrell Litherland and Larry Taylor. . In its answer, Country Companies admitted that MSI "was an insurance company with its principal place of buisness in St. Paul, Minnesota” and "that MSI claims the jurisdiction is based on 28 U.S.C. § 1332” (Df.App. 76, 77). Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
sc_issuearea	B	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. HAMM v. CITY OF ROCK HILL. No. 2. Argued October 12, 1964. Decided December 14, 1964. Jack Greenberg argued the cause for petitioner in No. 2. Constance Baker Motley argued the cause for petitioners in No. 5. With them on the brief were James M. Nabrit III, Charles L. Black, Jr., Matthew J. Perry, Lincoln C. Jenkins, Donald James Sampson, Willie T. Smith,- Jr., Harold B. Anderson, Wiley A. Branton, William T. Coleman, Jr., and Marvin E. Frankel. Daniel R. McLeod, Attorney General of South Carolina, argued the cause for respondent in No. 2. With him on the brief was Everett N. Brandon, Assistant Attorney General of South Carolina. Jack L. Lessehberry, Chief Assistant Attorney General of Arkansas, argued the cause for respondent in No. 5. With him on the brief was Bruce Bennett, Attorney . General of Arkansas. Together with No. 5, Lupper et al. v. Arkansas, on certiorari- to the Supreme Court of Arkansas. Mr. Justice Clark delivered the opinion of the Court. These are “sit-in” cases that came here from the highest courts of South Carolina and Arkansas, respectively. Each of those courts affirmed convictions based upon state' trespass statutes against petitioners, who are Negroes, for participating in “sit-in” démonstrations in the luncheon facilities of retail stores in their respective States^ We granted certiorari in each of the cases, 377 U. S. 988, 989, and consolidated them for argument. The petitioners asserted both in the state courts and here the denial of rights, privileges, and immunities secured by the Fourteenth Amendment; in addition, they claim here that the Civil Rights Act of 1964, 78 Stat. 241, passed subsequent to their convictions and the affirmances thereof in the state courts, abated these actions. 1. The Facts. In No. 2, Hamm v. Rock Hill, the petitioner, and a companion who is now deceased, entered McCrory’s variety store at Rock Hill, South Carolina. After making purchases in other parts of the store, they proceeded to the lunch counter and sought service. It was refused. The manager asked the petitioner and his associate to leave and when they refused he called the police. They were prosecuted and convicted under § 16-388 of the S. C. Code of Laws, making it an offense for anyone to enter a place of business after having been warned not to do so or to refuse to leave immediately after having entered therein. Petitioner’s companion died subsequently. The conviction of petitioner was affirmed by both the Court of General Sessions and the Supreme' Court of South Carolina, 24Í S. C. 420, 128 S. E. 2d 907 (1962). Lupper v. Arkansas, No. 5, involves a group of Negroes who entered the department store of Gus Blass Company in Little Rock. The group went to the mezzanine tearoom of the store at the busy luncheon hour, seated themselves and requested service which was refused. Within a few minutes the group, including petitioners, was advised that Blass reserved the right to refuse service to anyone and was not prepared to serve them at that time. Upon being requested to leave, the petitioners refused. The police officers who were summoned located petitioners on the first floor of the store and arrested them. The officers’ testimony that petitioners admitted the whole affair was denied. The prosecutions in the Little Rock Municipal Court resulted in convictions -of petitioners based upon § 41-1433, Ark. Stat. Ann. (1964 Repl. Yol.), which prohibits a person from remaining on the premises of a business establishment after having been requested to leave by the owner or manager thereof. On appeal to the Pulaski Circuit Court, a trial de novo resulted in verdicts of guilty and the Arkansas Supreme Court affirmed, 236 Ark. 596, 367 S. W. 2d 750 (1963), sub nom. Briggs v. State. We hold that the convictions must be vacated and the prosecutions dismissed. The Civil Rights Act of 1964 forbids discrimination in places of public accommodation and removes peaceful attempts to be served on an equal basis from the category of punishable activities. Although the conduct, in the present cases occurréd prior to enactment of the Act, the still-pending convictions are abated by its passage. 2. Application of Title II of the Civil Rights Act of 1964 to the Facts Here. We treat these cases as involving' places of public accommodation covered by the Civil Rights Act of 1964. Under that statute, a place of public- accommodation is defined to include one which serves or offers to serve interstate travelers. Applying the rules of §§ 201 (b) (2), (c) we find that each of them offers to serve interstate travelers. In Hamm it is not denied that the lunch counter was in a McCrory’s 5-and-10-cent store, a large variety store at Rock Hill belonging to a national chain, which offers to • sell thousands of items to the public; that it invites all members of the public into its premises to do business and offers to serve all persons, except at its lunch counter which is restricted to white persons only. There is no contention here that it does not come within the Act. Likewise in Lupper the lunch counter area, called a tearoom, is located within and operated by the Gus Blass Company’s department store at Little Rock. It is a large department store dealing extensively in interstate commerce. It appears from the record that it also offered to serve all persons coming into its store but limited its lunch counter service to white persons. On argument it was frankly admitted that the lunch counter operation “probably would” come under the Act. Finally, neither respondent asks for a remand to determine the facts as to coverage of the respective lunch counters. In the light of such a record and the legislative history indicating that Congress intended to cover retail store lunch counters, See 110 Cong. Rec. 1519-1520, we hold that the Act covers both the McCrory and the Blass lunch counter operations. 3. The Provisions of the Act. Under the Civil Rights Act, petitioners’ conduct could not be the subject of trespass prosecutions, federal or state, if it had occürred after the enactment of the statuté. Title II includes several sections, some of which are relevant here, that create federal statutory rights. The first is § 201 (a) declaring that “[a]ll persons shall be entitled to the full and equal enjoymént of the goods, services, fácilities, privileges, advantages, and accommodations of any place of public accommodation,” which, as we have found includes the establishments here involved. Next, § 203 provides: “No person shall (a) withhold, deny, or attempt to. withhold or deny, or deprive or attempt to deprive, any person of any right or privilege secured by section 201 or 202, or (b) intimidate, threaten, or coerce, or attempt to intimidate,, threaten, or coerce any person with the purpose of interfering with any right or privilege secured by section 201 or 202, or (c) punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured by section 201 or 202.” (Emphasis supplied.) On its face, this language prohibits prosecution of any person for seeking service in a covered establishment, because of his race or color. It has been argued, however, that victims of discrimination must make use of the exclusive statutory mechanisms for the redress of grievances, and not resort to extralegal means. Although we agree that the law generally condemns self-help, the language of § 203 (c) supports a conclusion that nonforcible attempts to gain admittance to or remain in establishments covered by the Act, are immunized from prosecution, for the statute speaks of exercising or attempting to exercise a “right or privilege” secured by its earlier provisions. The availability of the Act as a defense against punishment is not limited solely to those who pursue the statutory remedies. The legislative history specifically notes that the Act would be a defense to criminal trespáss, breach of the peace and similar prosecutions. Senator Humphrey, floor manager of the bill in the Senate, said in explaining the bill: “This plainly means that a defendant in a criminal trespass, breach of the peace, or other similar case can assert the rights created by 201 and 202 and that State courts must entertain defenses grounded upon these provisions. . . .” 110 Cong. Rec. 9767. In effect the Act prohibits the application of state laws in a way that would deprive any person of the rights granted under the Act. The Supremacy Clause, Art. VI, cl. 2, requires this result where “there is a.clear collision” between state and federal law, Kesler v. Department of Safety, 369 U. S. 153, 172 (1962), or a conflict between. federal law and the application of an otherwise valid state enactment, Hill v. Florida, 325 U. S. 538 (1945). There can be no question that this was the intended result here in light of §203 (c). The present convictions and the command of the Civil Rights Act of 1964 are clearly in direct conflict. The only remaining question is the effect, of the Act on judgments rendered, but not finalized, before its passage. 4. Effect of the Act upon the Prosecutions. Last Term, in Bell v. Maryland, 378 U. S. 226, we noted the existence of a body of federal and state law to the effect that convictions on direct review at the time the conduct in question is rendered no longer unlawful by statute, must abate. We consider first the effect the Civil Rights Act would have on petitioners’ convictions if they had been federal convictions, and then,the import of the fact that these are state and not federal convictions. We think it is clear that the convictions, if federal, would abate. The doctrine found its earliest expression in Chief Justice Marshall’s opinion in United States v. Schooner Peggy, 1 Cranch 103, 110 (1801): “But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional ... I know of no. court which' can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, , affect the rights of parties, but in great national concerns . . . [the law] ought always to receive a construction conforming to its manifest import .... In such a case the court must* decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside." Although the decision in that case arguably rested on the premise that appeals in admiralty were trials de novo, and that prize litigation applied the law of the time of trial, see Yeaton v. United States, 5 Cranch 281, 283 (1809); Maryland v. Baltimore & O. R. Co., 3 How. 534, 552 (1845); United States v. Tynen, 11 Wall. 88, 95 (1871); United States v. Reisinger, 128 U. S. 398, 401 (1888); United States v. Chambers, 291 U. S. 217, 222-223 (1934); Massey v. United States, 291 U. S. 608 (1934), the later cases applied the rule in quite different contexts, see United States v. Tynen, supra; United States v. Reisinger, supra. The reason for the rule was stated by Chief Justice Hughes, in United States v. Chambers: “Prosecution for crimes is but an application or enforcement of the law, and if the prosecution continues the law must continue to vivify it.” 291 U. S. 217, at 226. Although Chambers specifically left open the question of the effect of its rule on cases where final judgment was rendered prior to ratification of the Twenty-first Amendment, and petition for certiorari sought thereafter, such an extension of the rule was taken for granted in the per curiam decision in Massey v. United States, supra, handed down shortly after Chambers. It is apparent that the rule exemplified by Chambers does not depend on the imputation of a specific intention to Congress in any particular statute. None of the cases cited drew on any reference to the problem in the legislative history or the language of the statute. Rather, the principle takes the more general form of imputing to Congress an intention to avoid inflicting punishment at a time when it can no longer further any legislative purpose, and would be unnecessarily vindictive. This general principle, expressed in the rule, is to be read wherever applicable as part of the background against which Congress acts. Thus, we deem it irrelevant that Congress made no allusion to the problem in enacting the Civil Rights Aclt. Nor do we believe that the provisions of the federal saving statute, 61 Stat. 635, 1 U. S. C. § 109 (1958 ed.), would nullify abatement of a federal conviction. In Chambers, a case where the cause for punishment was removed by a repeal of the constitutional basis for the punitive statute, the Court was quite certain as to this. See 291 Ü. S., at 224 and n. 2, involving.the identical statute. The federal saving statute was originally enacted in 1871, 16 Stat. 432. It was meant to obviate mere technical abatement, such as that illustrated by the application of the rule in Tynen decided in 1871. There a substitution of a new statute with a greater schedule of penalties was held to abate the previous prosecution. In contrast, the Civil Rights Act works no such technical abatement. It substitutes a right for a crime. So drastic a change is well beyond the narrow language of amendment and repeal. It is clear, therefore, that if the convictions were under a federal statute they would be' abated. We believe the fact that the convictions were under state statutes is in these cases a distinction without a difference. We cannot believe the Congress, in enacting-such a far-reaching and comprehensive scheme, intended the Act to operate less effectively than the run-of-the-mill repealer. Since the provisions of the Act would abate all federal prosecutions it follows that the same rule must prevail under the Supremacy Clause which requires that a contrary state practice or state statute must give way. Here the Act intervened before either of the judgments under attack was finalized. Just as in federal cases abatement must follow in these state prosecutions. Rather than a retroactive intrusion into state criminal law this is but the application of a long-standing federal rule,.namely, that since the Civil Rights Act substitutes a right for a crime any state statute, or its application, to the contrary must by virtue of the Supremacy Clause give way under the normal abatement rule covering pending convictions arising out of a pre-enactment activity. The great purpose of the civil rights legislation was to obliter- . ate the effect of a distressing chapter of our history. This demands no less than the application of a normal rule, of statutory construction to strike down pending convictions inconsistent with the purposes of the Act. Far from finding a bar to the application of the rule where a state statute is. involved, we find that our construction of the effect of the Civil Rights Act is more than statutory. It is required by the Supremacy Clause of the Constitution. See Kesler v. Department of Safety, 369 U. S. 153, 172 (1962); Hill v. Florida, 325 U. S. 538 (1945). Future state prosecutions under the Act being unconstitutional and there being no saving clause in the Act itself, convictions for pre-enactment violations would be equally unconstitutional and abatement necessarily follows. Nor do we find persuasive reasons for. imputing to the Congress an intent to insulate such prosecutions. As we have said, Congress, as well as the two Presidents who recommended the legislation, clearly intended to eradicate an unhappy chapter in our history. The peaceful conduct for which petitioners were prosecuted was on.behalf of a principle since embodied in the law of the land. The convictions were based on the theory that the rights of a property owner had been violated. However, the supposed right to discriminate on the basis of race, at least in covered establishments, was nullified by the statute. Under such circumstances the actionable nature of the acts in question must be viewed in the light of the statute .and its legislative purpose. We find yet another reason for applying the Chambers rule of construction. In our view Congress clearly had the power to extend immunity to pending prosecutions. Some might say that to permit these convictions to stand would have no effect on interstate commerce which we have held justified the adoption of the Act. But even if this be true, the principle of abatement is so firmly imbedded in our jurisprudence as to be a necessary and proper part of every statute working a repealer of criminal legislation. Where Congress sets out to regulate a situation within its power, the Constitution 'affords it a wide choice of remedies. This being true, the only question remaining is whether Congress exercised its power in the Act' to abate the prosecutions here. If we held that it did not we would then have to pass on the constitutional question of whether the Fourteenth Amendment, without the benefit of the Civil Rights Act, operates of its own force to bar criminal trespass convictions, where, as here, they are used to enforce a pattern of racial discrimination. As we have noted, some of the Justices joining this opinion believe that the Fourteenth Amendment does so operate; others are of the contrary opinion. Since this point is not free from, doubt, and since as we have found ■ Congress has ample power to extend the statute to pending convictions we avoid that question by favoring an interpretation of the statute which renders a constitutional decision unnecessary. In short, now that Congress has exercised its constitutional power in enacting the Civil Rights Act of 1964 and declared that the public policy of our country is to prohibit discrimination in public accommodations as therein defined, there is no public interest to be served in the further prosecution of the petitioners. And in accordance with the long-established rule of our cases they must be abated and the judgment in each is therefore vacated and the charges are ordered dismissed. It is so ordered. Section 201: “(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce . . . “(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally ’ engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment . . . “(c) The operations of an establishment affect commerce within the meaning of this title if ... it serves or offers to serve interstate travelers . . . .” In Lupper the State’s brief says, “a remand of these cases would not reap any . . . benefits.” At 13. Some of us believe that the substantive rights granted by the Act here, i: e., freedom from discrimination in places of public accommodation are also included in the guarantees of the Fourteenth Amendment, see concurring opinions in Bell v. Maryland, 378 U. S. 226; others take the position that the Amendment creates no such substantive rights, see dissenting opinion in Bell v. Maryland, supra. No such question, is involved here, and we do not pass upon it in any manner. We deal only with the statutory rights created in the Act. In Bell v. Maryland, supra, we dealt with the problem arising when a state enactment intervened prior to the finalizing of. státe criminal trespass convictions. Because we were dealing with the effect of a state statute on a state conviction prior to the Act’s passage we felt that the state courts should be allowed to pass on the question. Here, we have an intervening federal statute and in attempting to judge its effect on a state conviction we are faced with a federal not a state question. Because of this distinction we do not feel that remand is esquired or desirable. 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_genapel1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. UNITED STATES of America, Plaintiff-Appellee, v. Humberto RIVERA, Defendant-Appellant. No. 87-5681. United States Court of Appeals, Fourth Circuit. Argued July 11, 1988. Decided Oct. 24, 1988. Trevor Washington Swett, III (Geoffrey Judd Vitt, Caplin & Drysdale, Chartered, Washington, D.C., on brief), for defendant-appellant. Paul G. Cassell, Sp. Asst. U.S. Atty. (Henry E. Hudson, U.S. Atty., Alexandria, Va., Keith A. Logan, Sp. Asst. U.S. Atty., William G. Otis, Asst. U.S. Atty., Alexandria, Va., on brief), for plaintiff-appellee. Before CHAPMAN, WILKINSON and WILKINS, Circuit Judges. CHAPMAN, Circuit Judge: Humberto Rivera was convicted of nine counts of transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(B). The appellant claims error by the trial court in the admission of the deposition testimony of certain alien witnesses, who had been deported prior to trial; in failing to charge the jury that there must be proof of a direct and substantial relationship between the defendant’s conduct and the alien’s violation of the law; and in excluding evidence and forbidding argument relating to the eligibility of the aliens for amnesty. Finding no merit in these exceptions, we affirm. I Appellant was indicted following an investigation by the U.S. Immigration and Naturalization Service into the transportation of illegal aliens into the northern part of Virginia from other states. At a work site, a number of illegal aliens were arrested, and shortly thereafter appellant and three others were charged with illegal transportation of illegal aliens. Following the arrest of Rivera and the aliens, Rivera posted bond and was released from custody. The illegal aliens could not arrange the posting of a bond and they were retained in custody for a period of approximately three weeks. An attorney was appointed for these aliens, and shortly thereafter he made a motion to have their testimony taken by deposition pursuant to the Material Witness Statute, 18 U.S.C. § 3144 and Federal Rule of Criminal Procedure 15. This motion also asked that the illegal aliens be released from custody and allowed to leave the country. At the hearing on the motion the United States Attorney supported the taking of the depositions and the attorney for the appellant opposed. The trial judge, in granting the motion, made the following finding: Exceptional circumstances have been shown in that the witnesses are being incarcerated awaiting a trial. And humanitarian considerations alone demand that something be done to release them from incarceration, when their only purpose for being incarcerated is to be witnesses. And whether they voluntarily flee after their depositions have been taken or whether the INS deports them back to their countries of origin is beside the point. Pursuant to the court’s order, the depositions were taken and the appellant and his attorney were present at each deposition and participated therein, not only by cross-examining the witnesses, but by the attorney making certain comments into the record as to the demeanor and condition of the witness, i.e., “Let the record reflect that the witness is having a great deal of difficulty right now. He is very ill.” “Also let the record reflect that the witness has been disturbed and is very shaky, he is crying.” After the depositions were taken the deposed aliens elected to voluntarily leave the country, rather than face normal deportation proceedings, and they were returned to Mexico. At trial one of these depositions was read in its entirety, and since the other deposition testimony was quite similar, only selected portions of the direct and cross-examination of two other depositions were read. The evidence showed that Rivera leased a small apartment and that seven aliens lived with him in the apartment. Appellant took the witness stand and admitted that he had transported a number of aliens to work in Virginia and that he had also transported them from Ohio to Virginia. Initially, he denied that he knew that any of them were illegal aliens, but he finally admitted that he was aware, at the time of his arrest, that Nicolas Guerrero-Avila was an illegal alien. He also admitted that he had cashed checks for the aliens because they had no personal identification. Upon conviction Rivera was sentenced to three years imprisonment on each count, with the sentences to run concurrently. However the sentences were suspended upon service of the short period of time that Rivera had been incarcerated, and he was placed on probation. II Appellant claims that the use of the depositions violated his Sixth Amendment right to be confronted by the witnesses against him. The thrust of this claim is that the depositions cannot be used until the trial court finds that the witnesses are “unavailable to testify”. He relies on Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). Barber and Woods were jointly charged with armed robbery and at a preliminary hearing, Woods waived his privilege against self-incrimination and gave testimony incriminating Barber. Barber’s attorney did not cross-examine Woods. Seven months later Barber was tried on the robbery charge in Oklahoma. At this time Woods was in a federal prison in Texas, and the State of Oklahoma made no effort to obtain Woods’ presence at trial, but over petitioner’s objection, introduced the transcript of Woods’ preliminary hearing testimony, and claimed that Woods was unavailable to testify. Speaking through Justice Marshall, the Court noted that the State had made no effort to obtain the presence of Woods and it had assumed that the mere absence of the witness from the jurisdiction of the court was sufficient to show impossibility to compel his attendance. The court rejected this assumption of unavailability and concluded “... a witness is not “unavailable” for purposes of the foregoing exception to the confrontation requirement unless the pros-ecutorial authorities have made a good-faith effort to obtain his presence at trial.” 390 U.S. at 724-25, 88 S.Ct. at 1321-22. Barber was discussed and distinguished by the court in Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972). In Mancusi a Tennessee prosecutor introduced a transcript of direct and cross-examination of the witness who had left the United States and taken permanent residence in Sweden. Prior to trial the prosecutor had attempted to subpoena the witness at his last known address. The Court found that the witness was unavailable because the State of Tennessee was powerless to compel his attendance and the court pointed out that in Barber the state had not met its obligation to make a good-faith effort to obtain the presence of a witness and had merely shown that he was beyond the boundaries of the prosecuting state, but in Mancusi the witness was out of the country and beyond the compulsory processes of the court. The appellant argues that the deported witnesses are not “unavailable,” because the United States by its own efforts made them unavailable by deporting them to Mexico. Actually, the witnesses left this country voluntarily after they were deposed and released from custody. The depositions resulted from a motion of the attorney representing the incarcerated alien witnesses. The appellant was heard on the motion and the judge made the necessary findings under Federal Rule of Criminal Procedure 15 and 18 U.S.C. § 3144. At the time the depositions were taken the witnesses could not make bail. If they were released from custody, they had no place to stay, and there was no way to ensure that they would be present at trial two months later. The appellant and his attorney were present at the taking of the depositions, the attorney cross-examined the witnesses, and he was allowed to make his personal observations of the witnesses a part of the record. If the court had denied the motion for depositions, these alien material witnesses would have been incarcerated for more than three months, even though they were neither indicted nor convicted of a crime. The appellant was both indicted and convicted on nine counts, and he spent less time incarcerated than did these witnesses, who were deposed and deported. We find that the trial court followed both the letter and spirit of 18 U.S.C. § 3144 and Rule 15, and its finding of Exceptional Circumstances was not clearly erroneous. On the present facts the illegal alien witnesses, who had been deposed and had left the country rather than await deportation, were unavailable within the meaning of Federal Rule of Criminal Procedure 15(e). The introduction of these depositions at appellant’s trial did not deny him the right of confrontation. The United States Attorney had a dual responsibility in this case. It was his duty to consider the rights of the witnesses, as well as the rights of the appellant, and to also comply with his duty of deporting the illegal aliens without undue delay. This problem was recognized by the Court in United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), in which the defendant was charged with transporting an illegal alien in violation of 8 U.S.C. § 1324(a)(2). Valenzuela-Bernal had been arrested shortly after he crossed the Mexican-United States border with five illegal aliens lying down in the back of his automobile. After arrest the defendant and the passengers were interviewed. Three of the passengers admitted they were illegally in the country and identified the defendant as the driver of the car. The United States Attorney concluded that the three passengers possessed no evidence material to the prosecution or the defense and two of the passengers were deported to Mexico. Following conviction Valenzuela-Bernal contended that he was denied his Fifth Amendment right to due process and Sixth Amendment right of compulsory process for obtaining favorable witnesses by the deportation of the two witnesses. The Court pointed out that the Executive Branch is charged with the responsibility of faithfully executing laws and stated: ... [t]he Government is charged with a dual responsibility when confronted with incidents such as that which resulted in the apprehension of respondent. One or more of the persons in the car may have violated the criminal laws enacted by Congress; but some or all of the persons in the car may also be subject to deportation as provided by Congress. The Government may, therefore, find itself confronted with the obligation of prosecuting persons in the position of respondent on criminal charges, and at the same time obligated to deport other persons involved in the event in order to carry out the immigration policies that Congress has enacted. The power to regulate immigration— an attribute of sovereignty essential to the preservation of any nation — has been entrusted by the Constitution to the political branches of the Federal Government. See Mathews v. Diaz, 426 U.S. 67, 81 [96 S.Ct. 1883, 1892, 48 L.Ed.2d 478] (1976). “The Court without exception has sustained Congress’ ‘plenary power to make rules for the admission of aliens.’ ” Kleindienst v. Mandel, 408 U.S. 753, 766 [92 S.Ct. 2576, 2583, 33 L.Ed.2d 683] (1972) (quoting Boutilier v. INS, 387 U.S. 118, 123 [87 S.Ct. 1563, 1566, 18 L.Ed.2d 661] (1967)). In executing this power, Congress has adopted a policy of apprehending illegal aliens at or near the border and deporting them promptly. Border Patrol agents are authorized by statute to make warrantless arrests of aliens suspected of ‘attempting to enter the United States in violation of ... law,’ 8 U.S.C. § 1357(a)(2), and are directed to examine them without ‘unnecessary delay' to determine ‘there is prima facie evidence establishing’ their attempted illegal entry. 8 C.F.R. § 287.3 (1982). Aliens against whom such evidence exist may be granted immediate voluntary departure from the country. See 8 U.S.C. § 1252(b); 8 C.F.R. § 242.5(a)(2)(i) (1982). Thus, Congress has determined that prompt deportation, such as occurred in this case, constitutes most effective effort for curbing the enormous flow of illegal aliens across our southern border. Id. at 864, 102 S.Ct. at 3444-45. The court also recognized the substantial financial and physical burdens upon the government resulting from any effort to detain alien witnesses and that it was impossible to prosecute many cases involving transportation and harboring of illegal aliens because of the witness problem. In Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), it was held that to establish a Sixth Amendment violation of the right to compulsory process required more than the mere absence of testimony, and that the criminal defendant must show that he was denied compulsory process for obtaining witnesses in his favor. In the present case Rivera has made no showing that he has been denied testimony favorable to him, nor has he shown that the deposition testimony was any different from what the live testimony of the witnesses would have been. In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), it was determined that “the lengths to which the prosecution must go to produce a witness ... is a question of reasonableness.” Id. at 74, 100 S.Ct. at 2543. We agree with the district judge that the actions of the United States Attorney in this case were reasonable. The motion to depose was made by the attorney for the witnesses and the U.S. Attorney supported the motion as being proper under the statute and the Federal Rules of Criminal Procedure as exceptional circumstances. Proper notice was given to appellant and his attorney was heard in opposition to the witnesses’ motion to have their depositions taken. Appellant and his attorney were present and participated fully in the taking of the depositions. The requirements and procedures of 18 U.S.C. § 3144 and Federal Rule of Criminal Procedure 15 were duly met and followed. The witnesses were entitled to release and their testimony could be and was adequately secured by deposition. The appellant was not prejudiced by the use of the depositions and the absence of the three illegal aliens. The suggestions made by the appellant as to how the presence of the illegal aliens could have been assured at trial are all unrealistic and totally lacking in merit. Other circuits have faced the problem of deposing illegal aliens and using deposition testimony in criminal trials. In United States v. Terrazas-Montano, 747 F.2d 467 (8th Cir.1984), the court found, on facts very similar to those now before us, that exceptional circumstances did exist to justify the use of the depositions of illegal aliens, who were deported prior to trial. The court found that they were “unavailable”, and to require the government to show that it was unable to procure their attendance at trial would be a useless act. The court also determined that “the trial-type setting of the depositions produced sufficient ‘indicia of reliability’ to satisfy the Sixth Amendment.” Id. at 469. In United States v. Seijo, 595 F.2d 116 (2d Cir.1979), the court observed that when Federal Rule of Criminal Procedure 15 was originally adopted it only allowed criminal defendants to take depositions, but that the rule was amended in 1975 to permit the government to take depositions for use in criminal cases and conditioned admissibility of the deposition upon “unavailability” as defined in Rule 804(a) of the Federal Rules of Evidence. The court further found that Congress intended to expand the potential for the use of depositions by the government in criminal cases. The appellant cites United States v. Provencio, 554 F.2d 361 (9th Cir.1977), which is not relevant because the aliens had not been released and were still available to testify. United States v. Vasquez-Ramirez, 629 F.2d 1295 (9th Cir.1980), is not applicable because the Federal Rules of Criminal Procedure were not followed in taking the deposition. Also, United States v. Guadian-Salazar, 824 F.2d 344 (5th Cir.1987), is distinguishable because it involved a standing order issued by the judges of the Western District of Texas which required all alien material witnesses to be deposed and released within sixty days of their detention. The government confessed error primarily because the district court’s order did not address the issue of “exceptional circumstances” and that the district judges under the order exercised no discretion. The circuit court .reversed, but found that many of the issues raised by the standing order had not been properly briefed or addressed. We find no prece-dential value to this opinion. III We find no merit to the appellant’s claim that the judge erred in his instruction under 8 U.S.C. § 1324(a)(1)(B). Appellant contends that the judge did not give the charge that he had requested on the “substantial relationship between the transportation of the alien and the furtherance of the alien’s unlawful presence in the United States.” Although the trial judge did not use the exact language requested, he clearly and completely covered this element in his instructions and this exception is but a matter of semantics and not substance. IV The final exception is also without merit. Appellant claims that he was prevented from eliciting evidence and making arguments relating to the amnesty program for undocumented aliens. He asserts that he should have been able to argue that the aliens were eligible for amnesty and therefore they were not in the United States illegally. The amnesty program was created under the Immigration Reform and Control Act on November 6, 1986. Pub.L. 99-603, 100 Stat. 3359. The trial judge was correct in finding that it was irrelevant to the present case. The present prosecution is for violation of 8 U.S.C. § 1324(a)(1)(B) and it is necessary to show that the alien, who is transported by the defendant, “has come to, entered, or remains in the United States in violation of the law.... ” Amnesty is irrelevant until it is granted. The record reflects that the various aliens, who were transported by defendant, had come to and entered this country illegally. There was no evidence or proffer that any of them had applied for amnesty. If at some later time they may have been eligible to apply for amnesty, this does not change their illegal status at the time of entry and at the time of the illegal transportation. In his testimony Rivera did not testify that he thought any of the aliens were entitled to amnesty. The trial judge was correct in preventing the non-issue of amnesty from coming in and adding confusion to the case. AFFIRMED. . 8 U.S.C. § 1324(a)(1)(B) Bringing in and harboring certain aliens. (a) Criminal Penalties. (1) Any person who— (B) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or move or attempts to transport or moves such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law; shall be fined in accordance with Title 18, imprisoned not more than five years, or both, for each alien in respect to whom any violation of this subsection occurs. . Title 18, § 3144 Release or Detention of a material witness. If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of § 3142 of this Title. No material witness may be detained because of inability to comply with any conditions of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure. .Rule 15 of Federal Rules of Criminal Procedure. Depositions. (a) When Taken. Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition and that any designated book, paper, document, record, recording or other material not privileged, be produced at the same time and place. If a witness is detained pursuant to § 3144 of title 18, United States Code, the court on written notice of the witness and upon notice to the parties may direct that the witness’ deposition be taken. After the deposition has been subscribed the court may discharge the witness. Rule 15(e): (e) Use. At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the witness is unavailable as unavailability is defined in Rule 804(a) of the Federal Rules of Evidence, or the witness gives testimony at the trial or hearing inconsistent with that witness’ deposition. Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require the offering of all of it which is relevant to the part offered and any party may offer other parts. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_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. RED STAR YEAST & PRODUCTS CO. v. LA BUDDE. No. 5654. Circuit Court of Appeals, Seventh Circuit. April 13, 1936. Benjamin Poss and Joseph P. Brazy, both of Milwaukee, Wis., for appellant. Frank J. Wideman, Asst. Atty. Gen., Sewall Key and Frederic G. Rita, Sp. Assts. to Atty. Gen., and B. J. Rusting, U. S. Atty., and L. Hugo Keller, Asst. U. S. Atty., both of Milwaukee, Wis., for appellee. Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge. EVANS, Circuit Judge. Appellant brought this suit to enjoin appellee, the Collector of Internal Revenue, from attempting to assess and collect excise taxes on yeast by it manufactured and sold, or from imposing a lien for said tax upon its property, ft also asked the court to find and enter a declaratory decree that yeast by it sold was not subject to the tax imposed by section 603 of the Revenue Act of 1932 (26 U.S.C.A. § 1420 et seq. note), which imposes an excise tax upon cosmetics, etc. . Appellant asserts its belief to be that, unless restrained, appellee will assess the tax and resort to remedies provided by law to enforce its payment, and the amount will he so large that payment can only be made through a liquidation ol its assets. The court issued a temporary restraining order. Thereafter, it vacated this order and denied an application for a temporary injunction. The present appeal is from the refusal to grant the temporary injunction. Appellee’s answer raised the defense presented by section 3224 (26 U.S.C.A. § 1543), which prohibits the bringing of s suit to restrain the assessment or collection of any tax. It also asserted that the Commissioner had ruled that some yeast sold by appellant was subject to a tax under section 603, but no tax had as yet been assessed. It further answered that the purpose for which the yeast, upon which the tax, if assessed, would be levied, was manufactured' and sold by appellant, as declared in the public radio advertisement, was for-cosmetic use. It denied that the tax would be so large as to interfere with the conduct of appellant’s business. Affidavits were filed in support of the pleadings which dealt with the subject of advertising and the use of yeast for facials. Appellánt argued that many articles, such as lemons, milk, flax, oatmeal, eggs, vinegar, honey, olive oil, etc., were extensively advertised and used to a certain extent, as cosmetics. On the other hand there were copies of advertisements showing that appellant’s yeast was extensively sold for facials. In addition there appears in the record numerous articles extolling the benefits of yeast facials, not marked as advertisements, which were taken from newspapers. The ruling of the District Court must be sustained on any of several grounds. (a) In order to justify the issuance of a temporary injunction, there must be a showing of a threatened injury. The injury must be real, not imaginary. 14 R.C.L. page 354. Ordinarily, it must be of irreparable character, for which a money award would be inadequate. In the instant case, the Government has not yet assessed any tax against the taxpayer. Should such a tax be assessed and an attempted enforcement greatly prejudice the appellant in the conduct of its business, pendente lite, the court may again be appealed to. It will always be open to hear any application which may be addressed to it. Temporary injunctions differ in their finality from the final or permanent injunctions. Denial of an application for a temporary injunction does not prevent another application by the same party in the same suit, if new facts warrant it. In a suit for either injunction, however, the party seeking the relief must make a fact showing that the threatened injury is imminent. It is unnecessary to consider the effect of the statute which permits a court to grant declaratory decrees, because the section, which authorizes suits for a declaratory decree (28 U.S.C.A. § 400), expressly excepts suits involving Federal taxes. (b) Appellant has not brought its case within the rule set forth in Miller v. Standard Nut Margarine Company, 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422; Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453, 66 L.Ed. 822, so as to avoid the consequences of section 3224, Revised Statutes (26 U.S.C.A. § 1543). In the Miller Case, the court was dealing with a tax on oleomargarine. There the court said: “This is not a case in which the injunction is sought upon the mere ground of illegality because of error in the amount of the tax. The article is not covered by the act. A valid oleomargarine tax could by no legal possibility have been assessed against respondent, and therefore the reasons underlying § 3224 apply, if at all, with little force. * * * Respondent commenced business after the product it proposed to make had repeatedly been determined by the Commissioner and adjudged in courts not to be oleomargarine or taxable under the act, and upon the assurance from the Bureau that its product would not be taxed. * • * It is clear that, by reason of the special and extraordinary facts and circumstances, section 3224 does not apply. The lower courts rightly held respondent entitled to the injunction.” In view of the plain language of section 3224, which prohibits such suits as the instant one, we are not justified in extending the rule announced in the Miller Case. A third objection to the granting of the temporary injunction may be found in the fact showing which is insufficient to justify a ruling on the nontaxability of appellant’s product as a cosmetic. The fact controversy, in other words, is not closed. If we eliminate the fact knowledge of which the court may take judicial notice, we still could not hold, in the face of the other evidence, that the appellant’s product is not a cosmetic. The advertisements so describe it. The District Court could hardly be expected to find that the product was not what appellant said' it was in its advertisements. Appellant argues that the court must take judicial notice of the fact that compressed yeast cakes are used primarily in bread making and beer production. True, we will take judicial notice of the use of yeast in these two industries. It by no means follows, however, that appellant’s product was made for either or both of said purposes. Likewise, the statute imposing the tax, also the rules and regulations of the Department, call for information as to the percentage of appellant’s yeast production ^used'for facials. Such figures and other information are necessary to the determina- tion of the vital question in the case — the taxability of any of appellant’s product as a cosmetic. The order is Affirmed. “Tax on Toilet Preparations, etc. There is hereby imposed upon the following articles, sold by the manufacturer, producer, or importer, a tax equivalent to 10 per centum of the price for which so sold: Perfumes, essences, extracts, toilet waters, cosmetics, petroleum jellies, hair oils, pomades, hair dressings, hair restoratives, hair dyes, tooth and mouth washes (except that the rate shall be 5 per centum), dentifrices (except that the rate , shall be 5 per centum), toothpastes (except that the rate shall be 5 per centum), aromatic cachous, toilet soaps (except that the rate shall be 5 per centum), toilet powders, and any similar substance, article, or preparation, by whatsoever name known or distinguished; any oí the above which are used or applied or intended to be used or applied for toilet purposes.” “No suit ior the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
sc_caseorigin	008	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. UNITED STATES v. CLINTWOOD ELKHORN MINING CO. et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No. 07-308. Argued March 24, 2008 Decided April 15, 2008 William M. Jay argued the cause for the United States. With him on the briefs were Solicitor General Clement, Acting Assistant Attorney General Morrison, Deputy Solicitor General Hungar, Acting Deputy Assistant Attorney General Rothenberg, Kenneth L. Greene, and Steven W. Parks. Patricia A. Millett argued the cause for respondents. With her on the brief were Thomas C. Goldstein, Steven H. Becker, Paul A. Horowitz, and Suzanne I. Offerman Anthony T. Caso, Karen R. Horned, and Elizabeth Milito filed a brief for the National Federation of Independent Business Legal Foundation as amicus curiae urging affirmance. Clifton S. Elgarten filed a brief for Alliance Coal, LLC, as amicus curiae. Chief Justice Roberts delivered the opinion of the Court. The Internal Revenue Code provides that taxpayers seeking a refund of taxes unlawfully assessed must comply with tax refund procedures set forth in the Code. Under those procedures, a taxpayer must file an administrative claim with the Internal Revenue Service before filing suit against the Government. Such a claim must be filed within three years of the filing of a return or two years of payment of the tax, whichever is later. The Tucker Act, in contrast, is more forgiving, allowing claims to be brought against the United States within six years of the challenged conduct. The question in this case is whether a taxpayer suing for a refund of taxes collected in violation of the Export Clause of the Constitution may proceed under the Tucker Act, when his suit does not meet the time limits for refund actions in the Internal Revenue Code. The answer is no. I A taxpayer seeking a refund of taxes erroneously or unlawfully assessed or collected may bring an action against the Government either in United States district court or in the United States Court of Federal Claims. 28 U. S. C. § 1346(a)(1); EC Term of Years Trust v. United States, 550 U. S. 429, 431, and n. 2 (2007). The Internal Revenue Code specifies that before doing so, the taxpayer must comply with the tax refund scheme established in the Code. United States v. Dalm, 494 U. S. 596, 609-610 (1990). That scheme provides that a claim for a refund must be filed with the Internal Revenue Service (IRS) before suit can be brought, and establishes strict timeframes for filing such a claim. In particular, 26 U. S. C. § 7422(a) specifies: “No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the [IRS].” The Code further establishes a time limit for filing such a refund claim with the IRS: To receive a “refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return,” a refund claim must be filed no later than “3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later.” § 6511(a). And § 6511(b)(1) mandates that “[n]o credit or refund shall be allowed or made” if a claim is not filed within the time limits set forth in § 6511(a). “Read together, the import of these sections is clear: unless a claim for refund of a tax has been filed within the time limits imposed by § 6511(a), a suit for refund . . . may'not be maintained in any court.” Dalm, supra, at 602. In 1978, Congress levied a tax “on coal from mines located in the United States sold by the producer,” 26 U. S. C. § 4121(a)(1), and specifically applied this tax to coal exports, see § 4221(a) (1994 ed.) (excepting from the general ban on taxing exports those taxes imposed under, inter alia, § 4121). In 1998, a group of companies challenged the tax in the District Court for the Eastern District of Virginia, contending that it violated the Export Clause of the Constitution. That Clause provides that “No Tax or Duty shall be laid on Articles exported from any State.” Art. I, §9, cl. 5. The District Court agreed and held the tax unconstitutional. Ranger Fuel Corp. v. United States, 33 F. Supp. 2d 466, 469 (1998). The Government did not appeal, and the IRS acquiesced in the District Court’s holding. See IRS Notice 2000-28, 2000-1 Cum. Bull. 1116, 1116-1117 (IRS Notice). The respondents here, three coal companies, had all paid taxes on coal exports under § 4121(a) “[s]ince as early as 1978.” App. to Pet. for Cert. 36a. After § 4121(a) was held unconstitutional as applied to coal exports, the companies filed timely administrative claims in accordance with the refund scheme outlined above, seeking a refund of coal taxes they had paid in 1997, 1998, and 1999. The IRS refunded those taxes, with interest. The companies also filed suit in the Court of Federal Claims seeking a refund of $1,065,936 in taxes paid between 1994 and 1996. They did not file any claim for those taxes with the IRS; any such claim would of course have been denied, given the limits set forth in §6511. See IRS Notice, at 1117 (“Claims [for a refund of taxes paid under §4121] must be filed within the period prescribed by § 6511”). Notwithstanding the failure of the companies to file timely administrative refund claims, the Court of Federal Claims allowed the companies to pursue their suit directly under the Export Clause. Jurisdiction rested on the Tucker Act, 28 U. S. C. § 1491(a)(1), and the companies limited their claim to taxes paid within that statute’s 6-year limitations period, §2501 (2000 ed. and Supp. V). In allowing the companies to proceed outside the confines of the Internal Revenue Code refund procedures, the court relied on the decision of the Court of Appeals for the Federal Circuit in Cyprus Amax Coal Co. v. United States, 205 F. 3d 1369 (2000). Andalex Resources, Inc. v. United States, 54 Fed. Cl. 563, 564 (2002). The Court of Federal Claims did not, however, allow the companies to recover interest on the taxes paid under 28 U. S. C. §2411. That provision requires the Government to pay interest “for any overpayment in respect of any internal-revenue tax,” but the court held that the statute applied only to refund claims brought under the Code, not to claims brought directly under the Export Clause. 54 Fed. Cl., at 566. The Court of Appeals affirmed in part and reversed in part. It first refused to revisit its holding in Cyprus Amax, and therefore upheld the ruling that the companies could pursue their claim under the Export Clause, despite having failed to file timely administrative refund claims. 478 F. 3d 1373, 1374-1375 (CA Fed. 2007). The Court of Appeals reversed the Court of Federal Claims interest holding, however, finding that the Government was required to pay the companies interest on the 1994-1996 amounts under §2411. Id., at 1376. We granted certiorari, 552 U. S. 1061 (2007), and now reverse. II A The outcome here is clear given the language of the pertinent statutory provisions. Title 26 U. S. C. § 7422(a) states that “[n]o suit... shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund . . . has been duly filed with” the IRS. (Emphasis added.) Here the companies did not file a refund claim with the IRS for the 1994-1996 taxes, and therefore may bring “[n]o suit” in “any court” to recover “any internal revenue tax” or “any sum” alleged to have been wrongfully collected “in any manner.” Five “any’s” in one sentence and it begins to seem that Congress meant the statute to have expansive reach. Moreover, the time limits for filing administrative refund claims in § 6511 — set forth in an “unusually emphatic form,” United States v. Brockamp, 519 U. S. 347, 350 (1997) — apply to “any tax imposed by this title,” 26 U. S. C. § 6511(a) (emphasis added). The statute further provides that “[n]o credit or refund shall be allowed or made after the expiration of the period of limitation prescribed in subsection (a) . . . unless a claim for credit or refund is filed by the taxpayer within such period.” § 6511(b)(1). Again, this language on its face plainly covers the companies’ claim for a “refund” of “tax[es] imposed by” Title 26, specifically 26 U. S. C. §4121. The companies argue that these statutory provisions are ambiguous, Brief for Respondents 43-45, but we cannot imagine what language could more clearly state that taxpayers seeking refunds of unlawfully assessed taxes must comply with the Code’s refund scheme before bringing suit, including the requirement to file a timely administrative claim. Indeed, we all but decided the question presented over six decades ago in United States v. A. S. Kreider Co., 313 U. S. 443 (1941). Section 1113(a) of the Revenue Act of 1926, like the refund claim provision in § 7422(a) of the current Code, prescribed that “[n]o suit or proceeding shall be maintained in any court for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected until a claim for refund or credit has been duly filed with the Commissioner of Internal Revenue,” and established a time limit for bringing suit once the claim-filing requirement had been met. 44 Stat. 116. Like the companies here, A. S. Kreider had failed to file a tax refund action within that limitations period. See 313 U. S., at 446. And, like the companies here, A. S. Kreider argued that it was instead subject only to the longer 6-year statute of limitations under the Tucker Act. Id., at 447. We rejected the claim, holding that the Tucker Act limitations period “was intended merely to place an outside limit on the period within which all suits might be initiated” under that Act, and that “Congress left it open to provide less liberally for particular actions which, because of special considerations, required different treatment.” Ibid. We held that the limitations period in § 1113(a) was “precisely that type of provision,” finding that Congress created a shorter statute of limitations for tax claims because “suits against the United States for the recovery of taxes impeded effective administration of the revenue laws.” Ibid. If such suits were allowed to be brought subject only to the 6-year limitations period in the Tucker Act, we explained, § 1113(a) would have “no meaning whatever.” Id., at 448. So too here. The refund scheme in the current Code would have “no meaning whatever” if taxpayers failing to comply with it were nonetheless allowed to bring suit subject only to the Tucker Act’s longer time bar. B The companies gamely argue for a different result here because the coal tax at issue was assessed in violation of the Export Clause of the Constitution. They spend much of their brief arguing that the Export Clause itself creates a cause of action against the Government, which can be brought directly under the Tucker Act. See Brief for Respondents 8-25. We need not decide this question here, because it does not matter. If the companies’ claims are subject to the Code provisions, those claims are barred whatever the source of the cause of action. We therefore turn to the companies’ assertion that their claims are somehow exempt from the broad sweep of the Code provisions. The companies do not argue for such an exemption simply because their claims are based on a constitutional violation. As they acknowledge, id., at 34, a “constitutional claim can become time-barred just as any other claim can,” Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U. S. 273, 292 (1983). Further, Congress has the authority to require administrative exhaustion before allowing a suit against the Government, even for a constitutional violation. See, e. g., Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1018 (1984); Christian v. New York State Dept. of Labor, 414 U. S. 614, 622 (1974); Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U. S. 752, 766-767 (1947). These principles are fully applicable to claims of unconstitutional taxation, a point highlighted by what we have said in other cases about the Anti-Injunction Act. That statute commands that (absent certain exceptions) “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” 26 U. S. C. § 7421(a). The “decisions of this Court make it unmistakably clear that the constitutional nature of a taxpayer’s claim ... is of no consequence” to whether the prohibition against tax injunctions applies. Alexander v. “Americans United” Inc., 416 U. S. 752, 759 (1974). This is so even though the Anti-Injunction Act’s prohibitions impose upon the wronged taxpayer requirements at least as onerous as those mandated by the refund scheme — the taxpayer must succumb to an unconstitutional tax, and seek recourse only after it has been unlawfully exacted. We see no reason why compliance with straightforward administrative requirements and reasonable time limits to seek a refund once a tax has been paid should lead to a different result. The companies assert that Export Clause claims in particular must be treated differently from constitutional claims in general. This is so, they argue, because the Clause is not simply a limitation on the taxing authority but a prohibition that “carves one particular economic activity completely out of Congress’s power.” Brief for Respondents 11. That distinction is without substance and totally manipulate: If the pertinent authority is regarded as the power to tax exports, the Clause is indeed a complete prohibition on congressional power. But if the pertinent authority is instead viewed as the “Power To lay and collect Taxes,” U. S. Const., Art. I, § 8, cl. 1, then the Clause is properly regarded as a limitation on that power. We do not question the importance of the Export Clause to the success of the enterprise in Philadelphia in 1787, see Brief for Respondents 11-13, but we see no basis for treating taxes collected in violation of its terms differently from taxes challenged on other grounds. Indeed, the companies more or less give up the game when they acknowledge that their claims are subject to the Tucker Act’s statute of limitations. See id., at 34. The question is thus not whether the companies’ refund claim under the Export Clause can be limited, but rather which limitation applies. The companies are therefore left to argue that, despite the explicit and expansive statutory language described above, the refund scheme in Title 26 does not apply to their case as a matter of statutory interpretation. We find this ambitious argument unavailing. The companies seek to support it by characterizing the refund scheme set out in the Code as “pro-government and revenue-protective,” and therefore “constitutionally dubious” as applied to Export Clause cases. Id., at 28-29. Given this potential constitutional infirmity, the companies argue, Congress could not have intended the refund scheme to apply to taxes assessed in violation of the Export Clause. See Ashwander v. TVA, 297 U. S. 288, 341 (1936) (Brandeis, J., concurring). We disagree. To begin with, any argument that Congress did not mean to require those in the companies’ position to comply with the tax refund scheme runs into a powerful impediment, for “[t]he ‘strong presumption’ that the plain language of the statute expresses congressional intent is rebutted only in ‘rare and exceptional circumstances.’” Ardestani v. INS, 502 U. S. 129,135 (1991) (quoting Rubin v. United States, 449 U. S. 424,430 (1981)). As we have already explained, the language of the relevant statutes emphatically covers the facts of this case. In any event, we see no constitutional problem at all. Congress has indeed established a detailed refund scheme that subjects complaining taxpayers to various requirements before they can bring suit. This scheme is designed “to advise the appropriate officials of the demands or claims intended to be asserted, so as to insure an orderly administration of the revenue,” United States v. Felt & Tarrant Mfg. Co., 283 U. S. 269, 272 (1931), to provide that refund claims are made promptly, and to allow the IRS to avoid unnecessary litigation by correcting conceded errors. Even when the constitutionality of a tax is challenged, taxing authorities do in fact have an “exceedingly strong interest in financial stability,” McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18, 37 (1990), an interest they may pursue through provisions of the sort at issue here. We do not see why invocation of the Export Clause would deprive Congress of the power to protect this “exceedingly strong interest.” Congress may not impose a tax in violation of the Export Clause (or any other constitutional provision, for that matter). But it is certainly within Congress’s authority to ensure that allegations of taxes unlawfully assessed — whether the asserted illegality is based upon the Export Clause or any other provision of law — are processed in an orderly and timely manner, and that costly litigation is avoided when possible. The companies’ claim that the Code procedures are themselves excessively burdensome is belied by the companies’ own invocation of those procedures for taxes paid within the Code’s limitations period, which resulted in full refunds with interest. C As a fallback argument, the companies maintain that even if the refund scheme applies to Export Clause cases generally, it does not “apply to taxes that are, on their face, unconstitutional.” Brief for Respondents 39. They rely for this proposition on Enochs v. Williams Packing & Nav. Co., 370 U. S. 1 (1962), a case dealing with the Anti-Injunction Act, 26 U. S. C. § 7421(a). Despite that Act’s broad and mandatory language, we explained that “if it is clear that under no circumstances could the Government ultimately prevail,... the attempted collection may be enjoined if equity jurisdiction otherwise exists. In such a situation the exaction is merely in ‘the guise of a tax.’ ” 370 U. S., at 7 (quoting Miller v. Standard Nut Margarine Co. of Fla., 284 U. S. 498, 509 (1932)). See also Bob Jones Univ. v. Simon, 416 U. S. 725, 745-746 (1974) (reaffirming the “under no circumstances” rule of Williams Packing). On the force of Williams Packing, the companies argue that the refund scheme should similarly be read as inapplicable to situations in which there are “no circumstances” under which the tax imposed could be held valid under the Export Clause. The trouble with this is that §7422, the primary statute governing the refund process, is written much more broadly than § 7421(a), the statute at issue in Williams Packing. Section 7422(a) states that “[n]o suit... shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected ... until a claim for refund or credit has been duly filed with the” IRS. (Emphasis added.) This language generally tracks that of the Anti-Injunction Act, which also applies to suits “restraining the assessment or collection of any tax.” § 7421(a) (emphasis added). But § 7422(a) goes on to apply its prohibition against suit absent a proper refund claim to “any sum alleged to have been excessive or in any manner wrongfully collected.” (Emphasis added.) Even if we agreed that a facially unconstitutional tax for purposes of the tax refund scheme is “merely in The guise of a tax,’ ” Williams Packing, supra, at 7 (quoting Standard Nut Margarine, supra, at 509), and therefore not a “tax alleged to have been erroneously or illegally assessed or collected,” § 7422(a), it would nevertheless clearly fall into the broader category of “any sum ... in any manner wrongfully collected,” ibid. Moreover, even if we were to accept the companies’ argument that the “under no circumstances” limitation on the Anti-Injunction Act applies to the refund scheme, they still would not prevail. We made clear in Williams Packing that “the question of whether the Government has a chance of ultimately prevailing is to be determined on the basis of the information available to it at the time of suit. Only if it is then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained.” 370 U. S., at 7. A tax injunction suit, of course, is brought at the time the Government attempts to assess a tax on the taxpayer. Thus, if we applied the Williams Packing “under no circumstances” rule to the refund scheme, we would judge the Government’s chances of success as of the time the tax was assessed. In this case, the companies seek refunds for taxes paid between 1994 and 1996. At that time, the scope of the Export Clause was sufficiently debatable that we granted certiorari in 1995, see United States v. International Business Machines Corp., 516 U. S. 1021, and again in 1997, see United States v. United States Shoe Corp., 522 U. S. 944, to clear it up. What is more, the District Court that struck down the application of § 4121(a) to coal exports partially relied on these cases in arriving at its decision, Ranger Fuel Corp., 33 F. Supp. 2d, at 469, and the IRS cited, inter alia, International Business Machines, supra, in its acquiescence notice, see IRS Notice, at 1116. Indeed, we would think that if the unconstitutionality of the coal export tax were so obvious that the Government had no chance of prevailing, someone paying the tax — such as these companies — would have successfully challenged it earlier than 20 years after its enactment. We therefore hold that the plain language of 26 U. S. C. §§ 7422(a) and 6511 requires a taxpayer seeking a refund for a tax assessed in violation of the Export Clause, just as for any other unlawfully assessed tax, to file a timely administrative refund claim before bringing suit against the Government. Because we find that the Court of Appeals erred in allowing the companies to bring suit seeking a refund for the 1994-1996 taxes, we do not reach the question whether the Court of Appeals also erred in awarding the companies interest on those amounts under 28 U. S. C. §2411. The judgment of the Court of Appeals is reversed. It is so ordered. Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. 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songer_summary	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Mitchell T. HELLER and M & M Investment Company, Plaintiffs-Appellees, v. David I. NAMER and National Financial Management, Inc., both d/b/a Financial Management Services, Defendants-Appellants. NATIONAL FINANCIAL MANAGEMENT SERVICES, INC., d/b/a Financial Management Services, Plaintiffs-Appellants, v. Mitchell T. HELLER, II, Mitchell T. Heller, III, Golden West Corporation, Inn Crowd and Kent White, Defendants-Appellees. FIDELITY FINANCIAL OF FLORIDA, INC., Plaintiff-Appellant, v. Mitchell T. HELLER, II, Mitchell T. Heller, III, Golden West Corporation, Inn Crowd and Kent White, Defendants-Appellees. No. 79-2579. United States Court of Appeals, Fifth Circuit. Unit A Feb. 1, 1982. Terry A. Bell, Gretna, La., for defendants-appellants. Stone, Pigman, Walther, Wittmann & Hutchinson, Stephen H. Kupperman, Campbell C. Hutchinson, New Orleans, La., for defendants-appellees. Before BROWN and POLITZ, Circuit Judges. Former Fifth Circuit case, Section 9(1) of Public Law 96-452 — October 14, 1980. Due to his death on May 15, 1981, Judge Gewin did not participate in this decision. The case is being decided by a quorum. 28 U.S.C. § 46(d). JOHN R. BROWN, Circuit Judge: This diversity action arises from the alleged breach of a contract to secure from a savings and loan association a commitment to finance the acquisition of a hotel. As part of the contract, for processing the application fee, the finance company received two checks — the first of which was dishonored by the bank for payment and the second, a replacement for the dishonored check. Subsequently, the first check was re-presented by the payee and paid by the drawee bank. The finance company retained the funds from both checks presumably as partial payment of its fee for securing the loan. The District Court granted summary judgment to the borrower for the amount of both checks and dismissed the counterclaim of the finance company. Finding that no genuine issue of material fact exists since as a matter of law no commitment to finance was issued, we affirm the granting of summary judgment as to the refund of both checks. We find, however, that due to a missing transcript we are unable to review the lower court determination of personal liability and therefore remand for a determination of this limited issue. The Inn Crowd In 1977, Mitchell T. Heller (Heller) was seeking a standby loan commitment to help finance the acquisition of a hotel in Odessa, Texas, the Inn of the Golden West. If financing were secured, the hotel was to be acquired by Inn Crowd, a partnership to be formed by Heller, his father, M. T. Heller, II, and Kent White. Frederick Wohlfeld, a loan broker employed by Fidelity Financial of Florida (Fidelity), suggested that Heller contact David Namer to assist in procuring the loan. Namer was president of National Financial Management, Inc. d/b/a Financial Management Services (Financial) in New Orleans. Apparently, Namer and Heller had prior dealings within the previous year, but that transaction aborted prior to securing a loan. Heller came to New Orleans to meet with Namer on September 12, 1977, at which time Heller executed an application form for the loan and delivered to Namer: (1) a check for $25,000, drawn on Heller’s father’s account in the Arizona Bank maintained under the name “M & M Investment Company,” a nonexistent entity, and (2) a transmittal letter. The check was a good faith deposit required to accompany the submission of the application for a loan. At this meeting, the name of the payee of the check was changed from Management Service Consultants to Financial Management Services and the notation on the bottom was also modified. The transmittal letter, signed by Heller’s father, was also corrected by the addition of two paragraphs, one correcting the name of the addressee to indicate that “Name of the corporation is Financial Management Services, and not Management Services Consultants,” and one amending the provisions concerning the handling of the deposit. The application form provided for Financial to receive $104,000 in fees if an acceptable (i.e., substantially in accordance with the application conditions) commitment was “granted and/or offered”, less the application deposit of $25,000. The terms of liquidated damages for failure to accept the commitment and return of the application fee if the commitment was not acceptable were also covered by the form. Fidelity, for its assistance in securing the loan, was also to receive llh% fee “payable l/z% on acceptance of the Namer commitment and 1% on funding.” On or about September 23, 1977, Heller was informed that his bank had refused to pay the $25,000 check because of the change in the name of the payee and had returned the check to Namer.- After notifying Nam-er of this wrinkle and negotiating with him, Heller agreed to send Namer a replacement check, but this time for $26,000. This $1000 increase in the amount of the second check reflected the change ih the amount of the loan being requested. Although Heller was supposed to deposit 1% of the total loan sought, he had anticipated only a $2.5 million loan in early September and Namer had agreed to accept the smaller deposit. Apparently, the first check was subsequently re-presented for payment and cleared sometime prior to October 14, 1977. Thus through a fortuitous series of events, at least from Mr. Namer’s standpoint, Financial came to hold $51,000 (the amount of the first check and the replacement check), rather than a $25,000 deposit. Standing By On October 11, 1977, Heller and Namer spoke by telephone, during which conversation Namer informed Heller that a commitment would be issued and that Heller should be in New Orleans not later than October 21 to accept the commitment and pay, by cashier’s check, the balance of the fee. Heller apparently was not particularly receptive to paying the fees without first receiving a copy of the commitment to review, but Namer agreed to send Heller sample language which arrived in Heller’s Arizona office on October 13, 1977. On or about October 14, Heller discovered that the first check for $25,000, previously dishonored, had been paid by his bank and requested Namer to return the excess funds. On October 19,1977, Heller received a telegram stating that a commitment had been issued and requesting that the remaining $53,000 balance of the fees ($104,000 minus deposits of $26,000 and $25,000), now due, be forwarded by October 21 and informing Heller that the commitment would expire if not accepted prior to October 28, 1977. This telegram was also confirmed by a letter dated October 19,1977. Heller responded to the telegram and letter with another demand for return of the $25,000, informing Namer that the retention of these funds constituted a breach of contract. According to Namer’s brief, he never agreed with Heller to return the excess funds because he believed they were already earned and because of the problems he had had in prior dealings with Heller. Counsel for Namer admitted that his client decided unilaterally to retain the full $51,000. Namer responded on October 21, 1977 to Heller’s letter, clarifying that the contract was with Financial Management Services as a corporate entity, not David Namer, and stating that Financial had “granted and offered” a commitment substantially in accordance with the terms of the application, both verbally and in writing on October 12,1977 and on October 19, 1977. Namer’s Show and Tell On October 27, 1977, Heller, his attorney, and a secretary met in Namer’s office with Namer, Wohlfeld of Fidelity, and Namer’s attorney. At that time Heller demanded return of the $25,000 which Namer refused, declaring that a commitment had been issued and that all fees were then due. According to Namer, a commitment was tendered and refused. Namer declined to show Heller the commitment or tell who the purported lender would be until Heller either (1) proved that funds sufficient to pay all fees were present in New Orleans or (2) paid all fees. At this meeting, which carried over to October 28, Heller and his attorney were eventually provided with a copy of the “commitment”, but with the name of the lender and all signatures whited out. Considerable discussion occurred about the substantive aspects of the commitment, including whether any problems existed in complying with state usury laws and whether Heller would be able to obtain an interim lender based on the commitment. Heller and his attorney were not convinced that the commitment was substantially in accordance with the application and were not willing to pay any fees without first knowing the name of the issuer to verify the stability of that institution. Namer asserts that Heller had no intention of complying with his obligations under the application or of accepting the commitment. Concerning the issue of the anonymity of the proposed lender, Namer points to Wohlfeld’s statement that he (Wohlfeld), knowing the name of the lender, believed the commitment was proper, that he could obtain an interim lender on the basis of the commitment, and that he had verified its financial integrity. The meeting of October 28, 1977 ended after Heller demanded a return of his money and Namer refused to return the funds. Apparently on the same day as the first meeting, October 27, 1977, Heller filed an action in federal court to sequester $25,000 (the amount'of the dishonored first check subsequently re-presented and paid) in the bank account of Financial. A writ of sequestration did issue on November. 1, 1977, but no funds were present in the account sequestered. Heller’s amended complaint demanding a return of $51,000 named Financial as an additional defendant. The defendants counterclaimed for damages in the amount of $250,000 caused by the allegedly wrongful sequestration and for additional damages caused by the plaintiff’s initiating of allegedly improper criminal complaints with state and local governmental authorities. Financial instituted a separate action in federal court against Heller, his father, Golden West Corporation, Inn Crowd and Kent White to obtain the remainder of the fees ($53,000) allegedly due under the application for the loan commitment. Fidelity also filed suit in federal court against both Hellers, Golden West, Inn Crowd, and Kent White, the same defendants as Financial had, seeking to obtain a commission of $39,000 for the procurement of the loan commitment allegedly obtained by Financial. These cases were subsequently consolidated after which the plaintiffs filed a motion for summary judgment on all issues, including the claims by Financial and Fidelity. Following oral argument, on March 14, 1979, the District Court orally assigned reasons for judgment, granting summary judgment (entered April 11, 1979) against Financial and Namer for $51,000 and dismissing all other actions. A motion for reconsideration was denied on June 6, 1979. In this appeal, Namer, Financial, and Fidelity assert that summary judgment was improper because issues of fact remained. In addition, they assert that the District Court undertook to make credibility choices in the competing affidavits and drew inferences of fact against the party opposing the summary judgment. Hide and Seek — The Missing Record [1] During oral argument before this Court it was revealed that the record was incomplete, lacking (1) the transcript of the hearing for summary judgment, during which the District Court judge orally assigned his reasons for granting the motion, and (2) the transcript of the hearing on the motion for reconsideration. At that time we indicated that the parties were to insure that the transcripts were filed promptly. Presently, we have a full transcript of the June 6, 1979 hearing on the motion for reconsideration but only a partial transcript of the March 14,1979 hearing on the motion for summary judgment. The court reporter not only delayed transcribing the March 14 hearing but also managed to lose a portion of his notes. We mention the lost transcript to emphasize our dismay with the court reporter’s carelessness. Fortunately, the hole created in the record can be rewoven but the reconstructing of it requires needless judicial time and effort. We do not find it necessary either to reverse the decision of the District Court on the basis of the lost transcript or to refer the issue back to the District Court for resolution pursuant to F.R.A.P. 10(e). Although nothing in F.R.Civ.P. 56, governing summary judgment, technically requires a statement of reasons by a trial judge for granting a motion for summary judgment, we have many times emphasized the importance of a detailed discussion by the trial judge. Here the parties were informed by the District Court of the basic reason for which the summary judgment was granted. Although we are missing a portion of the transcript of the March 14 hearing, the judge reiterated sufficient reasons for his having granted the motion at the later hearing on the motion for reconsideration on June 6, the transcript of which we have available at this time. As we will discuss in more detail below, Judge Gordon specifically stated that as a matter of law no commitment had been issued. No Issue of Fact — No Commitment Issued [2,3] Summary judgment is proper under F.R.Civ.P. 56 when no genuine issue of material facts exists and the moving party is entitled to judgment as a matter of law. From the transcript of the hearing on the motion for reconsideration on June 6, 1979; the District Court’s granting of summary judgment was based on the judge’s conclusion that as a matter of law no commitment had been offered. From the pleadings, affidavits, documents, answers to interrogatories, depositions, and arguments and memoranda of counsel, it is undisputed that two checks from Heller, one for $25,000 and one for $26,000, were negotiated at some time prior to October 14, 1979, the date on which Heller discovered that the first check had been re-presented and paid. There also is no dispute that on October 19, 1979, Namer telegraphed Heller that a commitment “has been issued” even though the commitment itself, eventually submitted with the defendants’ motion opposing summary judgment, is dated October 21, 1977. Nor is there any disagreement as to the undisputed fact that at the meeting on October 27, 1977, a copy of the commitment, with the name of the lender and the signatures whited out, was provided to Heller and his attorney. The record contains the loan application which provided that the fee of $104,000 would be earned “should a commitment and/or loan be granted and/or offered substantially in accordance with the conditions” of the application. We agree with the District Court that there was a total failure to prove that a commitment “substantially in compliance” was offered or granted. Heller was not given the name of the lender and could not verify the stability of the proposed lender, or indeed whether a commitment actually existed. Certainly, the lack of the name of the lender made it impossible to determine if the commitment conformed even minimally with the application requirements. Even viewing the evidence in the light most favorable to the party opposed to the motion for summary judgment, the defendants on the evidence asserted by them wholly failed to prove performance of the contract, that is, the granting of a commitment. This determination was not one of the credibility of witnesses or disputed facts, but rather a determination that as a matter of law the presentation of the commitment with the whited out name of the lender and signatures does not constitute proof of the offering or granting of a commitment. Defendant Financial attempts to cloud the water by raising several issues of fact which are peripheral to Heller’s establishment of the right to judgment as a matter of law. First, Financial’s primary contention is that at the time the first check for $25,000 was re-presented and paid, a commitment had been “issued.” Whether the commitment was “issued” or merely “forthcoming”, it is undisputed that Heller did not see even a whited out copy of the commitment prior to October 27, almost two weeks after Namer was notified that the second check had been paid. Thus, at the time Financial retained the additional funds, as a matter of law no commitment had been “offered” to Heller. Namer also argues that there is a factual dispute concerning whether he intended to require Heller to pay the fees or only demonstrate the ability to pay the fees prior to being allowed to review the commitment. We find that this issue is irrelevant to Heller’s right to recover since it is undisputed that there was no requirement that Heller either pay or prove his ability to pay the fees prior to viewing the commitment. Nor did any evidence from any party raise the possibility of an inference of any such precondition. Since it is clear as a matter of law that Financial could not establish a defense based on performance of the contract, even when viewing the facts in the light most favorable to Financial, we find that the granting of summary judgment for the return of $51,000, the amount of both checks, was proper. No commitment as a matter of law had been offered and therefore no fees had been earned. Financial was not entitled to retain the amount of the deposit since under the application all funds were to be returned if a commitment not substantially in compliance was not accepted. And the retention of the additional funds ($25,000) is equally unsupported since we have determined that no commitment was issued and therefore no fees of $104,000 were due. This also disposes of the separate claim by Namer and Financial for the remainder of the fees. Based on the uncontradicted fact that all Namer showed Heller was a commitment with the name of the lender whited out, there was no performance of the contract. Heller simply does not owe Financial a dime. What’s In a Name? While the determination that summary judgment was proper leads us to affirm the judgment as to Financial and Fidelity, we must remand the case for further consideration of the issue of Namer’s personal liability. The District Court held Namer personally liable, as well as Financial, for the judgment. Unfortunately, the end of the court reporter’s transcript of the March 14, 1979 hearing roughly corresponds with the beginning of the argument on personal liability and thus we have no indication of the District Court’s reasoning for finding Namer personally liable. Namer raised a factual dispute whether due to the prior course of dealings between the parties Heller was aware of the corporate status of Financial Management Services. Also Namer asserts that the modification to the September 9, 1977 letter, stating that “Name of the corporation is Financial Management Services, and not Management Services Consultants”, along with the verbal discussion, called Heller’s attention to the corporate status of Financial Management Services. Heller, both in his motion for summary judgment and in his brief, argued that Namer had a duty affirmatively to bring his agency relationship to Heller’s attention and failed to do so. Relying on Louisiana Civil Code, Article 2324, Heller also asserts that the officer, director or shareholder of a corporation who participates, aids or abets the corporation in the commission of a tort or unconscionable act is solidarily liable with the corporation for all loss or damage sustained by a third party. Bluefields S. S. Co. v. Lala Ferreras Cangelosi S. S. Co., 133 La. 424, 63 So. 96 (1913). Heller contends that since the deposit funds were to be held “in tact” and Namer’s personal representations induced' Heller to send the second check, Namer, as the president, aided in wrongful and tortious conversion. From the abbreviated state of the March 14, 1979 transcript, we cannot determine whether the District Court improperly resolved the factual dispute of Heller’s awareness of corporate status or whether, as a matter of law, the District Court concluded that Namer was personally liable. We therefore remand to the District Court the issue of Namer’s liability personally both as to the $26,000 application fee and the $25,-000 check re-presented and paid. We believe that at the minimum there is no question that Financial was not entitled to retain at any time the $25,000 over and above the amount of the $26,000 required deposit. We do not here decide whether or not Louisiana law views this action, as well as the later refusal to return the deposit of $26,-000, as one unlawful under art. 2324, whether Namer actually assisted in an unlawful act, or whether Namer failed to meet any duty to disclose an agency relationship. We leave for the District Court to determine upon remand Namer’s personal liability, if any, for tortious conversion or breach of fiduciary duties. While we regret the duplication of judicial effort, we cannot, due to the inexplicable and inexcusable loss of the portion of the court reporter’s notes for the March 14, 1979 hearing, here determine whether the District Court acted properly in assessing individual liability. A Noncommittal Closing Having disposed of Heller’s claim, we briefly touch on the issues raised in the other lawsuits consolidated with this one. We hold that the District Court correctly granted summary judgment in favor of Heller and against Fidelity. The agreement between Heller and Fidelity provided for the payment of fees “on acceptance of Namer commitment” and “on funding.” It is undisputed that Heller never accepted the commitment since we found that it was not offered for him to accept, and it is clear that the commitment was never funded. Thus, Fidelity is entitled to no fees. Fidelity’s argument that Heller’s actions were solely responsible for the failure to fulfill the terms of the application is clearly incorrect based on our holding that Namer did not perform his part of the bargain. Since we found that Namer did not perform his contract, it is clear that he has no basis to recover the remainder of the fees. As to the counterclaim in the original suit, that for malicious prosecution, defamation, and abuse of process, we find these claims frivolous. Before an action for malicious prosecution or defamation stemming from allegations in a lawsuit can be asserted, Louisiana law generally requires that the suit must have terminated. Brown & Root, Inc. v. Big Rock Corp., 383 F.2d 662 (5th Cir. 1967); Marionneaux v. King, 331 So.2d 180 (La.App. 1st Cir. 1976); Calvert v. Simon, 311 So.2d 13 (La.App. 2d Cir. 1975). Not only was the lawsuit not terminated, but in view of the District Court’s primary holding and our decision there is no basis in this record for the contention, much less the conclusion, that Heller lacked probable cause for initiating his litigation, especially when Namer re-presented the first check without notice to Heller. Since there was no improper use of process, the abuse of process claim is also without merit. AFFIRMED IN PART, REVERSED IN PART. . According to Namer, Heller first approached Financial in October 1976 after contacting Eleven West Mortgage and Investment, Inc., requesting a permanent mortgage loan. Namer contacted Heller directly to inform him that while a permanent loan was not available, a standby loan for acquisition and renovation was feasible. Heller had RLS Real Estate Services Corp. submit a proposal which was forwarded to Financial in November 1976. Subsequently Heller contacted Financial, and according to Namer, set up and cancelled three separate appointments before advising Financial that he was no longer interested in financing. The prior dealings are also substantiated by a letter of August 16, 1977, from Mitchell T. Heller to Wohlfeld of Fidelity, which states in part: We’ve got two other potentials working at the moment .. . both qualified institutions that have expressed an interest despite the location, age, etc. Should have a yes or no within the next 14 days. In the meantime, have Mr. Namer do what we’ve been doing for well over a year .. . cool his heels a little. As you know, we’ll not be rushed or bullied into taking on an extremely expensive standby. While I realize that a bird in the hand ... I want to let nature take over ’til Labor Day. Then, we’ll either accept the standby or the permanent, whichever is in hand. . Dear Mr. Namer: Attached is a check for $25,000 which is to be held as good faith deposit pending issuance of a commitment in connection with the purchase of the Inn of the Golden West in Odessa, Texas. It is understood these funds wall be held in tact until such time as commitment is issued. It is further our understanding that should the transaction not materialize, for any reason whatsoever, this check will be returned forthwith. Very truly yours, M. T. Heller, II . To the original notation on the check of “Good faith deposit as per ltr of 9/9/77” was added “and application of 9/12/77”. . Check No. 1258, received along with this letter, is accepted with the following modifications 1. Name of the corporation is Financial Management Services, and not Management Services Consultants. 2. Paragraph 2 of this letter is hereby amended to read that in accordance with the application for loan commitment dated September 12, 1977, that should the loan commitment not be forthcoming as per the terms and conditions outlined therein, then the funds will be returned in full. . 5. A. Should a commitment and/or loan be granted and/or offered substantially in accordance -with the conditions and authorizations of this Application, FMS and/or its nominee, will have earned a permanent and non-refundable fee of $104,000.00 and said fee is due and payable, less the Application deposit amount, without demand. B. Application Deposit: A cash deposit of $26,000.00, representing one (1)% of the Loan Amount is enclosed herewith. Should this loan application be accepted and should a commitment substantially in accordance with the terms and conditions contained in this Application be offered and/or granted, then the cash deposit referenced above will be earned and retained by FMS and/or its nominee. C. If applicant does not accept the loan and/or commitment, then the entire Loan Application Deposit will be retained as liquidated damages. D. Should this Application not be accepted or should a commitment and/or loan be offered and/or granted substantially different from the above terms and conditions, and not acceptable to applicant, said deposit will be returned to the borrower, in full. Should we, the undersigned applicant, elect not to accept the commitment requested within the time provided for herein, or fail to fulfill the terms and conditions of this authorization and Application, or fail to furnish all information, exhibits, and instruments required to obtain the requested commitment, close the requested loan, and/or fulfill the Application, then the deposit of $26,000.00 shall be retained by FMS, or its nominee, as liquidated damages. . Wohlfeld, in a letter of September 26, 1977, told Heller that he would accept “a l‘/2% fee payable */2% on acceptance of Namer commitment and 1% on funding.” Heller confirmed this arrangement, stating that he agreed to “1.5%, payable 'A% on acceptance by us and our bank, the balance on funding.” . At the hearing before Judge Gordon, on March 14, 1979, to consider Heller’s motion for summary judgment, the following exchange occurred: COUNSEL FOR NAMER: We are now into the question of two checks. The factual issue here is whether or not Defendants at this time were entitled to their full $104,000 fee. The issue there turns on whether or not a commitment, in fact, be issued, or was forthcoming at the time and whether or not Plaintiffs had a right under the factual issues as they then stood, to retain funds. Now— THE COURT: Aren’t you saying that Mr. Nam-er decided on his own, unilaterally that he had done that without giving the Plaintiff an opportunity to see whether there had been a commitment? COUNSEL FOR NAMER: He wrote them a letter saying that he was retaining the funds at this time to be in his office in order to accept the commitment. At that time they would be given an opportunity to review the commitment and decide whether or not it was in substantial accordance and whether or not the fees were actually earned. THE COURT: But, did you have anything to indicate that they acquiesced in the procedure to be suggested in that letter? COUNSEL FOR NAMER: There is no indication that they ever acquiesced to that. THE COURT: So, he unilaterally decided to keep the second amount? COUNSEL FOR NAMER: Well, he decided to keep it. THE COURT: Without regard to reason, for convenience or whatnot, you do concede that he unilaterally decided to keep it? COUNSEL FOR NAMER: I cannot state differently at this point. THE COURT: I am just talking about it before me, I am trying to get straight in my mind, I am not arguing with you. COUNSEL FOR NAMER: At this point, he unilaterally decided to keep it, pending their arrival in New Orleans to review the commitment. . In this letter of October 21, 1977 Namer stated: Let us now place our objectives in priority, and understand that, if you want the commitment as applied for in your Application of September 12, 1977, you have but to come to New Orleans and accept same and pay the remaining fees due. . Heller states that Namer refused to provide the commitment until all fees were paid. In contrast, Namer asserts that he only wanted proof that sufficient funds were available in New Orleans to pay the fees. We find it unnecessary to determine which of these factual characterizations of the situation is correct since the application for the loan commitment neither required Heller to prove that sufficient funds were available nor to pay such fees prior to receiving the commitment. . Namer attached to his Memorandum in Opposition to the Motion for Summary Judgment a transcription of the meeting on October 27, which he apparently taped. Namer, in response to the request by Heller’s attorney to know who was offering the commitment so as to determine the financial strength of the institution, stated: “You’re not going to know who the bank is until I’ve been shown that you are prepared to accept this commitment and pay the balance of points. If it means that Mr. Heller you should wire those funds to your own name into an account here in New Orleans, and issue a certified check or cashier’s check based on that account, and then we reconvene in the morning at 9:00 or 9:30 we could do that.” Subsequently, the following exchange took place: Counsel for Heller: I’d like to see a commitment tendered. Namer: Show me your money and you’ll see it. . The complaint named the defendant as David Namer, doing business as Financial Management Services. . The writ authorized sequestration of $25,000 in the account of Financial Management Services “or in the absence of such account”, in the account of Namer. . F.R.Civ.P. 52 specifically states that “[flmdings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 . .. . ” See Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 213 n.5 (5th Cir. 1976); Jot-Em-Down Store (JEDS), Inc. v. Cotter and Co., 651 F.2d 245, 247 (5th Cir. 1981); Erco Industries Ltd. v. Seaboard Coast Line Railroad Co., 644 F.2d 424, 434 (5th Cir. 1981); Farbwerke Hoeschst A.G. v. M/V “DON NICKY”, 589 F.2d 795, 798 (5th Cir. 1979); Mosley v. Ogden Marine, Inc., 480 F.2d 1226, 1226 (5th Cir. 1973). . Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458, 460 (1962). In deciding a motion for summary judgment, the District Court must view the evidence in the light most favorable to the party resisting the motion. Cubbage v. Averett, 626 F.2d 1307, 1308 (5th Cir. 1980); Joplin v. Bias, 631 F.2d 1235, 1237 (5th Cir. 1980); Northwest Power Products, Inc. v. Omark Industries, 576 F.2d 83, 85 (5th Cir. 1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1021, 59 L.Ed.2d 75 (1979); BAW Manufacturing Co. v. Slaks Fifth Avenue Ltd., 547 F.2d 928, 930 (5th Cir. 1977). The burden to establish the absence of a genuine issue as to material facts is thus on the party moving for the summary judgment and all doubts must be resolved against the movant. Erco Industries Ltd. v. Seaboard Coast Line Railroad Co., 644 F.2d 424, 428 (5th Cir. 1981). The court, on a motion for summary judgment, may not resolve material factual disputes. Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. 1981); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980). Nor may it assess the probative value of evidence presented. United States v. An Article of Food Consisting of 345/50-Pound Bags, 622 F.2d 768, 773 (5th Cir. 1980). In essence, summary judgment is reserved for the situation where the moving party has established his right to judgment with such clarity that the non-moving party cannot recover under any discernible circumstance. Joplin v. Bias, 631 F.2d at 1237; Everhart v. Drake Management, Inc., 627 F.2d 686, 690 (5th Cir. 1980). . THE COURT; If I concluded that there was no material issue of fact surrounding the point that a commitment was never offered, does all this make any difference? Didn’t I conclude that under the circumstances of this case that the failure of your clients to offer or disclose all facts pertaining to this alleged commitment, amounted to failure to provide a commitment, among other things, deprived the Plaintiffs of opportunity to examine the credit, integrity of the alleged party whose name you had whited out. I concluded that there was no material issue of fact, it was a matter of law. No offer had been made. If that’s so, does this make any difference? COUNSEL FOR NAMER: Well, our interpretation, or our search, it is a contract or commitment was, in fact, granted and offered at the meetings between the parties. THE COURT: I know that you interpreted it that way, but I reached a contrary conclusion as a matter of law. COUNSEL FOR NAMER: Well, I think the documents which have been provided and attached make it clear that there was a commitment granted and had been issued. THE COURT: Well, there may have been, but it was a secret, and at that time, there was no way for those people to know that. , Nowhere in the record is it indicated on what date the first check, the one for $25,000, was negotiated, a fact we do not understand since the check should have been clearly stamped with the date of acceptance. . See note 5 supra. . He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act. Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_subevid	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in 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". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. A-1 EXCELSIOR VAN & STORAGE COMPANY, Inc., Respondent. No. 19210. United States Court of Appeals Eighth Circuit. Dec. 3, 1968. Leonard M. Wagman, Atty., N. L. B. B., Washington, D. C., for petitioner; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Allen J. Berk, Atty., N. L. R. B., on the brief. Stanley V. Shanedling, of Shanedling, Phillips, Gross & Aaron, Minneapolis, Minn., for respondent. Before MATTHES, MEHAFFY and HEANEY, Circuit Judges. MATTHES, Circuit Judge. The National Labor Relations Board has petitioned this Court, pursuant to § 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), to enforce its order issued against A-1 Excelsior Van & Storage Company, Inc. (Respondent) reported at 165 N.L.R.B. No. 45. The salient facts are incorporated in the trial examiner’s decision and need not be reiterated in detail here. Respondent, a Minnesota corporation, incorporated January 1, 1966, was at all pertinent times engaged in long distance and local moving. The complaint, issued on August 31, 1966, was based upon a charge filed by Local 544, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Union). The complaint alleged that Respondent violated § 8(a) (1), (3) and (5) of the Act, as amended. In general, the complaint charged that Respondent had improperly interrogated employees, had threatened to subcontract the employee’s work because of their affiliation with Union; had reduced the employees’ hours of work and subsequently discharged them because of their Union adherence, and had failed to bargain with the Union. After a full hearing in October, 1966, the trial examiner in his decision concluded that Respondent had not engaged in the alleged unfair labor practices. The examiner recommended that the Board enter an order dismissing the complaint in its entirety. The Board rejected the examiner’s recommendation and found that Respondent had engaged in conduct violative of § 8(a) (1), (3) and (5) of the Act. It entered a cease and desist order and affirmatively directed Respondent to reopen its local warehouse and moving department and offer to reinstate and make whole the three employees who had been affected by Respondent’s discontinuance of its local moving. Respondent was also directed to bargain with the Union. Once again, the question for determination is whether the Board’s findings are supported by substantial evidence on the whole record. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). In Universal Camera, the Supreme Court stated, inter alia, that Congress has imposed upon reviewing courts the responsibility for assuring that the Board keeps within reasonable grounds; that although the Board’s findings are entitled to respect, they nevertheless must be set aside when the record clearly precludes the Board’s decision from being justified by a fair estimate of the testimony of witnesses or its informed judgment on matters within its special competence or both. The Court also made it clear that an examiner’s report is as much a part of the record as the complaint or the testimony. “It is therefore difficult to escape the conclusion that the plain language of the statutes directs a reviewing court to determine the substantiality of evidence on the record including the examiner’s report.” Id. at 493, 71 S.Ct. at 467. ****** “We do not require that the examiner’s findings be given more weight than in reason and in the light of judicial experience they deserve. * * We intend only to recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board’s than when he has reached the same conclusion. The findings of the examiner are to be considered along with the consistency and inherent probability of testimony.” Id. at 496, 71 S.Ct. at 469. The probative force that should be given an examiner’s decision reaches its highest significance when, as here, the issues involved turn upon credibility. Acme Products, Inc. v. N. L. R. B., 389 F.2d 104, 106 (8th Cir. 1968), and cases, there cited; Saginaw Furniture Shops, Inc. v. N. L. R. B., 343 F.2d 515 (7th Cir. 1965); Rocky Mountain Natural Gas Co. v. N. L. R. B., 326 F.2d 949 (10th Cir. 1964). The crucial question for resolution by the Board was whether Respondent’s decision to subcontract its local hauling and terminate three employees was motivated solely by valid economic considerations, as found by the trial examiner, or by Union animus as found by the Board. Briefly, the evidence relevant to this question reveals the following. Respondent was a small, privately owned corporation. Although no stock was issued, it was shown and the examiner found that William Don Larson, Fred Proctor and Harlan Johnson were equally interested in the trucking operation. Employees Bernard H. Becker and David C. Ellwanger were employed in February, 1966. Harry Jenkins was hired in April. They were to work on local moving and in the warehouse. These employees became dissatisfied with low wages, long hours and lack of pay for holidays. During the middle of May, 1966, Becker informed Proctor that unless the employees received a salary increase they would go to the Union. According to Becker’s testimony, Proctor requested him not to take that course of action, stating that: “ [Y] ou know we would rather close our doors than have the Union in there.” The examiner observed that the statement attributed to Proctor in middle May “appears to be beyond the averments of the complaint and is in any event an isolated remark not warranting a finding of violation and insufficient for a remedial order * On June 3 Becker, Jenkins and Ellwanger contacted Union and signed cards authorizing it to represent them for bargaining purposes. On June 6 they paid initiation fees to the Union. The afternoon of that day the Union sent a letter to Respondent demanding recognition. Photostatic copies of the three authorization cards were enclosed with the letter. On the evening of June 7, Proctor met with employees Becker and Jenkins at a local restaurant. During that meeting Proctor informed Becker and Jenkins that Respondent was losing money on the local moving operation and that it was going to discontinue that phase of its business. On that occasion Becker stated Proctor knew that Excelsior had received notice from the Union. Becker recalled that Proctor did not reply to this suggestion. Jenkins offered a different version. According to Jenkins' equivocal testimony, Becker informed Proctor the men were going to the Union, that Proctor replied he knew about it. The examiner discredited Jenkins’ testimony stating: “Jenkins was led by General Counsel during most of his testimony, including that pertaining to this incident. Moreover, Jenkins’ version of Proctor’s remarks on June 7 does not appear responsive to the occasion but seems instead to corroborate Becker’s account of the mid-May breakfast conversation. Accordingly, I do not find that on June 7 Proctor acknowledged that Excelsior had by then received the Union’s demand for recognition.” Additionally, the uncontradicted testimony of Johnson shows that the Union’s demand for recognition (mailed June 6) was not received until June 8 or June 9, and not opened by Larson, the addressee, until June 10. The record also reveals and the examiner found that Johnson and Larson credibly testified that early in May they had received their auditor’s profit and loss statement covering the four-month period of January through April. This statement showed that Respondent’s local operation was a losing financial venture; that 75 per cent of each dollar derived from local moving was being paid out for labor as against an industry expectation of 45 per cent. Although the auditor’s report was not introduced into evidence the examiner credited the unrebutted testimony of Larson and Johson relating to the local operations. The examiner concluded that the § 8 (a) (1), (3) and (5) violations turned, on whether the contracting out of the local hauling work was impelled by the employees’ Union adherence and Union’s demand for recognition. The examiner stated: “To find that Excelsior was so motivated I must discredit the uncontradicted evidence that Respondent was faced with a losing operation in its local hauling business. In addition, to reach this result I must discredit the equally unrebutted evidence that the arrangement for Warren Austin to take over the unit work was settled on May 30, days before the employees first contacted the Union. In this connection I note that General Counsel had during his investigation of this case taken an affidavit from Austin but failed to call Austin to testify to rebut Respondent’s recital of the circumstances of the contract to subcontract.” Further discussion of the examiner’s findings is not required. In our view he carefully and logically analyzed all aspects of the evidence. His decision succinctly demontrates that resolution of the overall question depended in large measure upon the weight and value to be given the testimony of witnesses. He concluded that the General Counsel had failed to sustain the burden of proving the alleged unfair labor practices. We have accorded due consideration to the Board’s decision. We, of course, are mindful that it is our function to review the Board’s findings and determine whether on the record as a whole its findings, and not those of the trial examiner, are supported by substantial evidence. Obviously, the Board indulged in every favorable inference necessary to sustain its decision and order. Certainly it is within the competence of the Board to draw reasonable inferences. But a fair estimate of the record leaves us with the firm impression that the Board completely failed to accord any consideration to undisputed evidence favorable to Respondent. As an example, the examiner, with propriety, credited the' unrebutted testimony of Johnson and Larson that was directed to the crucial question of whether Respondent discontinued its local operation solely for economical reasons. The Board was “not persuaded by Respondent’s self-serving testimony as to the contents of the auditor’s report.” On the other hand, the Board attached significance to the self-serving testimony of employee Becker that Respondent had advertised in Minnesota newspapers for employees. We recognize, of course, that the auditor’s report was the best evidence but so were the newspaper ads. Neither was introduced. In any event, the examiner saw fit to believe Johnson and Larson, who testified without objection to the pertinent portions of the auditor’s report. This demonstrates that the Board accorded slight, if any, regard for the examiner’s findings based upon his evaluation of the witnesses and the weight given their testimony. After responsibly considering the record in its entirety we are satisfied that the Board’s findings are not supported by substantial evidence. Enforcement of the Board’s order is denied. . Proctor liad severed all connections with Respondent prior to the hearing before the examiner. He was not present at the hearing and counsel for Respondent informed the examiner that he had made an unsuccessful effort to locate Proctor. . The examiner, in discussing the question whether the contracting out of the local hauling was impelled by the employee’s Union adherence or was motivated by economic considerations stated that in order to find for the General Counsel on this issue ho would be required to pile inference on inference. More precisely, the examiner stated: “First it would be necessary to infer that Excelsior received the Union’s demand for recognition on June 7. While the Union’s office girl credibly testified she had placed the envelope with the demand in the mail at about 2 p.m. on Juno 0, no evidence was offered as to when, in the normal course of events, the Union’s letter would have been received by the Respondent in Excelsior, Minnesota. It would then be necessary to infer, based on an inference that the letter was received on June 7, that Ex-. celsior then contacted Warren Austin and made the agreement to subcontract to him the unit’s work, all in time to announce this to the employees that very evening and to implement the arrangement the following day. Having found nothing in the record or the demeanor of the witnesses to discredit the unrebutted evidence that the decision to subcontract the local hauling work and terminate the employees was motivated solely by valid economic considerations and undertaken prior to the advent of the Union, I shall recommend dismissal of the allegations that Excelsior violated Section 8(a) (3) and (5) of the Act.” 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_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". TWINBORO CORPORATION v. COMMISSIONER OF INTERNAL REVENUE. No. 45. Circuit Court of Appeals, Second Circuit. May 7, 1945. George G. Tyler and Cravath, Swaine & 'Moore, all of New York City (Wm. Dwight Whitney, Roswell Magill, and William R. White, all of New York City, of counsel), for petitioner. Hilbert P. Zarky, of Washington, D. C., Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Robert N. Anderson, Sp. Assts. to Atty. Gen., for respondent. Before L. HAND, SWAN, and CHASE, Circuit Judges. L. HAND, Circuit Judge. This case presents only one point in addition to those which we discussed in Winter Realty & Construction Co. v. Commissioner of Internal Revenue, 2 Cir., 149 F.2d 567, handed down herewith. It is this : Whether an owner whose property has been condemned may buy “similar property” in anticipatory replacement of the award, pay for it out of his own funds, recoup himself later out of the award when he gets it, and treat any “gain” as exempt under § 112(f), 26 U.S.C.A. Int.Rev.Code, § 112(f). The taxpayer seeks to distinguish this situation from that which was before us in Bandes v. Commissioner, 2 Cir., 69 F.2d 812, because here the property condemned was a garage, and the “similar property” was also a “garage,” bought “in anticipatory replacement” of the first. In Washington Railway & Electric Co. v. Commissioner of Internal Revenue, 40 B.T.A. 1249, the Board of Tax Appeals, upon a review by the full Board, disagreed with our interpretation; but sought to distinguish the facts so as to sustain our decision. We may of course have been wrong and the Board right, but the attempted distinction is untenable. In Bandes v. Commissioner, supra, the taxpayers had bought one parcel of land on which they meant to put up an apartment; but before they could do so, it was condemned. They looked about for a substitute, and found two parcels on which they then proceeded to build apartments. The attempted distinction is apparently that, as they had not yet built the apartment when the first parcel was condemned, and, as they might change their minds, the new purchases could not have been made “in anticipatory • replacement” of the old. On what basis this can be supported we do not understand; but, be that as it may, we had not the slightest intention of depending upon anything of the sort; we assumed that the two parcels were bought “in anticipatory replacement” of the first, and to rest our decision upon our understanding that that would not serve. We adhere to that interpretation, though, as before, we reserve decision in case an owner borrows money to pay for “similar property,” and later uses the award to pay the debt. Possibly that may be an instance where the award is “expended in the acquisition of other property similar * * * to the property so converted.” That was not this case, for here the taxpayer bought and paid for the property out of its own funds. It is quite true that the doctrine will at times put an owner in the trying dilemma of choosing between allowing his business to be stopped, and being obliged to pay a large tax upon a “gain” “realized” against his will. There will be no method by which he can procure any substitute property in season to supply his needs, and yet to avail himself of the privilege which would concededly be his if he were not pressed to act at once. It can therefore be plausibly argued that the situation is a casus omissus; and if we felt sure enough that that were true, we might not stick at its defective expression. But we are not sure whether Congress really meant to provide the full measure of relief which a complete fulfillment of its apparent purpose demanded. The law has now been on the books since 1921, and the regulations, at least since 1934 (Article 112(f)-l, Regulations 86), have provided that “the taxpayer must trace the proceeds of the award into the payments for the property so purchased,” although the proceeds need not be “earmarked” — whatever that may mean. After every allowance which can properly be made for failure to cover obviously overlooked occasions, we remain in too much doubt to force the language so far from its literal meaning. Moreover, it should not be forgotten that we are dealing with an exemption. Order affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_appbus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. P. R. MALLORY & CO., Inc. and International Union of Electrical, Radio and Machine Workers, CIO, Local 1001, Respondents. No. 11671. United States Court of Appeals Seventh Circuit. Oct. 11, 1956. David P. Findling, Associate Gen.: Counsel, Owsley Vose, Atty., N. L. R. B., Theophil C. Kammholz, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Myron S. Waks, Atty., N. L. R. B., Washington, D. C., for petitioner. Frederic D. Anderson, Earl C. Townsend, Jr., George J. Zazas, Barnes, Hick-am, Pantzer & Boyd, Indianapolis, Ind., for respondent, P. R., Mallory & Co., Inc. Before MAJOR, FINNEGAN and LINDLEY, Circuit Judges. MAJOR, Circuit Judge. This matter is here upon petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act as amended, Title 29 U.S.C.A. § 151 et seq., for enforcement of its order issued against respondents, International Union of Electrical, Radio and Machine Workers, CIO, Local 1001 (hereinafter referred to as: IUE), and P. R. Mallory & Co., Inc. (hereinafter referred to as the Company). The Board’s decision and order are reported in 111 N.L.R.B. 38, Both respondents request that the order be set aside. The Board found that IUE by engaging in work stoppages in support of its demand that the Company discharge Mayme Dietz, a non-member, in order to prevent her from displacing a junior IUE member in her department, violated Section 8(b) (2) and (1) (A) of the Act, and that the Company by acquiescing in IUE’s demand, with knowledge of IUE’s unlawful purpose, violated Section 8(a) (3) and (1) of the Act. The unfair labor practices are predicated upon incidents which occurred on September 15 and 22, 1953, with the subsequent discharge of Dietz. The issue, most strongly pressed here by both respondents is the lack of substantial evidence to support the Board’s findings upon which its order rests. At this point,, a brief statement of the factual situation will suffice. Prior to November 1949, Local 1001,. the collective bargaining representative for the Company’s employees at Indianapolis, Indiana, was affiliated with the United Electrical, Radio and Machine Workers of America (hereinafter referred to as UE). At that time, members of the Local, numbering about 2,000 employees, voted to disaffiliate from UE and to affiliate with IUE, which was substituted for UE as the bargaining representative and continued as such to and including the events in controversy. A small group of employees, some eighteen in number, including Dietz, were opposed to the change of affiliation and. were not offered membership in IUE. Dietz joined UE in January 1944, and in: 1947 or 1948 served as a union steward for three or four months. This constituted her only activity in connection with UE. Dietz continued her employment with the Company until the time of her discharge in 1953. She made no effort to join IUE, except on one occasion when she visited the union office and inquired of Sullivan, president of IUE, as. to why she had not been offered a membership application card. At that time she was informed by Sullivan that it was because of her association with one Jackson whom Sullivan considered a Communist, and that the members had disaffiliated with ÜÉ because it-was con-trolled by Communists. At the same time Sullivan assured her that she would be protected as a non-member under the Taft-Hartley Act. The Company, unaware of her non-membership, continued for a while to deduct IUE dues from her pay. Upon advice from IUE that she was not a member, the Company, in August 1950, returned to her money which it had collected since November 1949. For some two years following the change in affiliation by Local 1001, Dietz continued undisturbed in her employment with the Company and became a senior employee in her department. In October 1951, the Company announced that it was necessary to lay off a number of employees, and the next day the employees in her department engaged in a work stoppage apparently for the reason that they were opposed to Dietz and other non-union members working while union members were being laid off. Union president Sullivan came to the plant, advised the employees that the work stoppage was unauthorized, in violation of their collective bargaining agreement, and that future recurrences would be their own responsibility. He succeeded in persuading the employees to return to work. Dietz was permitted to resume her work while forty other employees, both member and non-member, were laid off. Again Dietz continued in her employment for another period of almost two years or until September 15, 1953, when the first of the incidents in controversy took place. During the period after the affiliation with IUE, almost four years, there is no proof that Dietz was active either for or against the union and there is no proof of any hostility or favoritism by the Company toward IUE or any other union or any of its employees. On September 15, 1953, Dietz, after having been absent for several months on account of illness, returned to work, when some controversy arose in her department relative to her seniority rights. Apparently, however, this was adjusted and she commenced work. After the lunch hour, however, a mass demonstration took place, participated in by more than two hundred employees, including a number of union stewards. Bert Whisler, superintendent of the division in which Dietz worked, attempted in vain to ascertain the reason for the trouble. He ordered the employees to return to work and threatened to stop their pay. The employees gave no heed to Whisler’s warnings and the uprising continued. Dietz informed Whisler that she was afraid, and she was escorted by Company officials to Whisler’s office for protection. The employees crowded about the outside of Whisler’s office, banged on the door, stamped their feet and yelled, “Let’s go get her and throw her out.” Several telephone calls for help were made, without success, to the president and vice president of the Local. Thereupon, Alex Kertis, the Company’s personnel manager, instructed Whisler to have Dietz removed from the area for her own safety. Dietz expressed fear of returning to the floor to get her coat and hat, and they were obtained by Homer Stull, her immediate supervisor. At that time Dietz was promised by Kertis that an investigation would be made and she would be notified when to return to work. Kertis and other Company officials made an investigation, saw no reason why she should not return and she was requested to return to work on September 22, 1953. At that time Dietz reported she had received telephone messages indicating another demonstration would occur. Dietz returned as requested and Kertis for safety reasons assigned A1 Huber, supervisor of plant security and safety, together with two of his guards, to protect her. Shortly after she returned, however, another demonstration, which could more appropriately be described as mob action, similar to that of the previous week took place. Again Dietz was removed from the area and advised by Company officials to go home, with the promise that she would be notified when to return. Subsequently, Dietz made frequent calls to the personnel office and was advised by Kertis on one occasion that he could not recall her, that the same thing would probably again occur and that her safety would be in jeopardy. Following the September 22 incident, Kertis conducted further investigations as to the work stoppages, with no conclusion as to the motivating cause, but never felt the time was appropriate when he could safely advise Dietz to return to work. Dietz obtained employment with the Naval Ordnance Plant, Indianapolis, about November 4, 1953. This fact was called to the attention of Kertis and he decided to treat her as “quit with notice” as of that date for record purposes. On the following December 24, Dietz was paid her interest in a profit sharing and retirement plan and shortly thereafter was requested to return her identification badge. The Board in its complaint with reference to the respondent union charged: “ * * * on or about September 15, 1953 and on or about September 22, 1953, by its officers and other agents, including Esther L. Davis, L. Dearing, Charles Doyle, Basil Fox, Robert J. Freeman, Cordelia Mutchler, Grace Simmons, Charles L. Snodgrass and John M. Sullivan, restrained and coerced * * * Dietz, in the exercise of the rights guaranteed to her in Section 7 of the Act, by inducing and encouraging more than two hundred members of the Respondent Union, employed in the Vibrator Department in Plant No. 2 * * * to quit their work * * , and to yell demands and threats that they would refuse to return to work unless the Respondent Company ejected Dietz and terminated her employment; all because of the former membership of Dietz in UE, her former adherence to and activity in behalf of UE, and the announced policy of the Respondent Union to require the Respondent Company to terminate the employment of Dietz and other former adherents of UE, and in order to discourage adherence to, ■ membership and activity on behalf of UE, and in or- ■ der to encourage membérship- in the Respondent Union.” Further, the Board charged: “Since on or about September 15, 1953, and September 22, 1953, and at all times thereaftér; the Respondent Union, by its officers and agents, attempted to cause, caused, and is now causing the Respondent Company to discriminate against Dietz, as heretofore set forth in paragraph 5 above, in violation of Section 8(a) (3) of the Act.” The complaint as it relates to the Company charged that the “Company terminated the employment of Dietz, and since September 22, 1953, has failed and refused and does now fail and refuse to employ and reinstate Dietz because of the demands of the Respondent Union made on the Respondent Company * , and for the purpose of discouraging adherence to, membership in, and activity on behalf of UE, and for the purpose of encouraging membership in the Respondent Union,” and that by reason of such acts “the Respondent Company has engaged in and is now engaging in unfair labor practices within the meaning of Section 8(a) (1) and 8(a) (3) of the Act.” We shall first consider the order as it relates to the respondent union. The intermediate report of the trial examiner comes close, in our view, to demolishing the Board’s theory as embodied in its complaint. Particularly is this so on the charge that Dietz was discharged because of her former membership in UE or because of the announced policy of the respondent union to terminate the employment of Dietz and other former adherents of UE. In this respect the examiner found: “At this point it is appropriate to point out that Dietz admitted she ceased being a member of UE in November of 1949, and did not thereafter engage in any activities on its behalf. Further there is no evidence of any activity at the plant on behalf of the UE during the time in question. Again the record is totally inadequate to support the allegation of the complaint that the IUE caused or demanded the discharge of Dietz in accordance with its announced policy to require the Company to discharge former adherents of the UE in order to discourage membership therein and to encourage membership in the IUE. The undersigned so concludes and finds.” Evidently the trial examiner recognized that the charge could not be sustained as alleged in the complaint, as is shown by his report wherein he poised the issue thus: “Did the IUE, through its agents, induce and encourage a large number of employees to engage in work stoppages the object thereof being to force the Company to discharge Dietz because of her nonmembership in the IUE in order to encourage membership in that organization?” The examiner found: “The undenied evidence adduced by the General Counsel clearly established that the work stoppages were instigated and directed by the department stewards, which stoppages were in violation of the existing agreement and for an unlawful purpose.” The Board before this Court, consistent with its decision, also urges responsibility of the union solely upon the premise that certain stewards who actively participated in the mass demonstrations of September 15 and 22 were doing so as agents of the union and were acting within the general scope of their authority. With this contention we do not agree. In its brief the Board states: “Under the Act the general law of agency is applicable and a union is liable for acts of its agents whether or not expressly authorized or ratified so long as the union actually empowered the agent to represent it in the area in which the agent acted.” Assuming this to be a correct statement of a general principle of law, we think it is of no benefit to the Board in the instant situation. Assuming at present that a few of the stewards in the division where Dietz was employed were leaders in the mass movements which we have related and that their purpose was to obtain her discharge because of non-membership in the union, the decisive question is whether they in such capacity were agents of the union, that is, acting for and on its behalf. The record not only fails to support such a result; it refutes it. Dietz, as previously noted, was informed by Sullivan, the president of the union, at the time she was denied membership that the TaftHartley Act would protect her in her employment. Also as previously noted, Sullivan at the time of the work stoppage in October 1951, informed the employees that such stoppage was unlawful and that any further occurrences would be on their own responsibility. Also as noted, the trial, examiner found that there was no proof in support of the contention that the union had an announced policy to terminate the employment of Dietz and other non-union members. For some four years there had been no union activity in or about the plant, and during that period there had been no demand or request of any kind by an official of the union that any person be discharged because of non-membership. More important, of course, is the precise status- which the stewards occupied in relation to the union. At the time of the incidents in controversy there were more than two hundred stewards in the plant. The manner in which they were selected was provided in the union constitution as, follows: “Chief Stewards or Stewards shall be elected by his or her line, group or department, for a term of one (1) year.” The same document provided the manner for their removal as follows: “For. the removal of a Chief Steward or Steward, any member in good standing may appear, before the Execu-. tive Board of Local 1001 with a petition signed by 51% or more of members in good standing within a line, group or department at that time must show good reason for removal of such steward or chief steward, this decision to be passed upon by the Executive Board.” Thus, the record plainly discloses that the stewards in the, division in which Dietz was employed, as in all other divisions, were elected by the employees of each division. Any authority which they possessed with reference to employees was limited to those of the division in which they were- elected. Their tenure was dependent upon the wishes of the employees of the division inasmuch as' a movement for their removal required the support of 51% of the employees thereof. These stewards were neither elected nor appointed by the union or its members generally and any voice which the union or the members generally had in their removal was limited to a situation where a request was made by a majority of the employees of a particular division. Stewards received from the union no compensation for their services. With no obligation on the part of the union to compensate, with no right to appoint or discharge and with very limited authority or control, we discern no basis for a ruling under the general law of agency that the stewards were agents of the union. Cases cited by the Board in support of this union-agency theory are clearly distinguishable. In United Mine Workers of America v. Patton, 4 Cir., 211 F.2d 742, 746, in an action against a union for damages caused by a strike, it was held that a Field Representative was the agent of the union. Presumably, although the opinion does not so disclose, he was appointed and compensated by the union, with the right in it to discharge. In National Labor Relations Board v. International Longshoremen’s and Warehousemen’s Union, 9 Cir., 210 F.2d 581, it was held that an international' union was responsible for the acts of a local union where the latter acted within its delegated authority. In National Labor Relations Board v. United Brotherhood, etc., 10 Cir., 205 F.2d 515, the court in a Per Curiam opinion held, without relating the facts, that it was sufficiently shown that the union was responsible for the acts of the steward there involved. Reference, however, to the decision of the Board in that case, 100 N.L.R.B. 753, and particularly the report of the trial examiner, pages 761 and 762, completely dissipates any support which the Board' professes to find in the opinion of the court. It is there shown that the peréon held to be ah agent of the union was a “job steward” and that he was acting in pursuance of a “settled union policy.” In the instant case, as shown, the trial' examiner found that there was no proof that the stewards acted pursuant to an announced union policy; in fact, as-shown, they acted contrary to a known union policy. Other cases cited by the Board are equally barren of support. Furthermore, we do not agree with the Board that the stewards in conducting the work stoppages were acting within the scope of their authority.- By agreement with the Company, the union was precluded from authorizing a strike of any kind, “including a work stoppage.” It is not discernible on what basis the stewards could have been acting within the scope of their authority so as to make the union responsible when the union itself was under obligation to forego such conduct. Moreovér, as previously shown, the stewards had been admonished by Sullivan that the work stoppages were unlawful and that those who participated would be personally responsible. It follows from what we have said that the Board’s order as it relates to the respondent IUE should be.set aside and its enforcement denied. . The trial examiner in his report stated the issue relátive to the Company as follows: “Did the Company, being aware of the purpose of the stoppages, yield to the demands of the IUE and unlawfully discharge Dietz?” It is not discernible how we could answer this question in the affirmative in view of our holding that IUE made no demand for the discharge of Dietz and was not responsible for the acts and conduct of the employees in causing the work stoppages of September 15 and 22. The Board, however, in its decision stated: “ * * we conclude and fin'd, in agreement with the Trial Examiner, that the illegal motivation behind the employees’ determination to exclude Dietz from the plant was known to the Employer, and by acquiescing therein the Employer laid off and in effect discharged' her in violation of Section 8(a) (3) and (1).” Even so, the Board’s brief is permeated with the thesis that the Company is responsible because it acquiesced in the illegal demand made by IUE. For instance, in the concluding portion of its argument it stated: “Under all the circumstances of the case the Board could reasonably conclude that the Company had knowledge of the illegal motivation behind the IUE’s exclusion of Dietz from the plant.” And again: “It follows that the Company, by acquiescing in the IUE’s illegal demand, thereby violated Section 8(a) (3) and (1) of the Act, as the Board found.” True, the Board advances the theory, specifically urged in oral argument, that there is no reason to deny enforcement of the order against the Company even though it should be denied as to IUE. In other words, the validity of the order against the Company is not dependent upon the validity of the order against IUE. This argument, as we understand, is bottomed on the premise that the demonstrations against Dietz were unlawful and discriminatory, known by the Company to be such, and that her discharge under such circumstances constituted an unfair labor practice. We assume this is a sound premise for the purpose of the discussion to follow. The issue is whether the Company had knowledge that the employee demonstrations were to cause the discriminatory discharge of Dietz and if so, whether it acquiesced in the employees’ demands for the purpose of discouraging or encouraging membership in a labor organization. It was incumbent upon the Board to prove the affirmative of this issue. The Board in its decision stated: “We also find, in agreement with the Trial Examiner, that the facts of this case preponderate in favor of finding that the Employer was well aware of the reason for the employees’ objection to Dietz. Although there is no direct evidence of such knowledge by the Employer, we believe that the following circumstances compel an inference of Employer awareness of the motive behind the stoppages * * /> (Then follows an enumeration of the circumstances relied upon by the Board, subsequently to be stated and discussed.) The Board might have added that each Company official who testified at the hearing clearly and positively stated that he had no knowledge concerning the purpose of the work stoppages or that Dietz was a non-member of the union. Kertis, the Company’s manager and the person solely responsible for all decisions made and all actions taken by the Company in respect to Mayme Dietz, in addition to denying any knowledge on his part testified that he knew of no Company official who had such knowledge. The Board does not rely upon any inconsistencies or discrepancies in the testimony of Company officials of a lack of knowledge but upon circumstances which it contends give rise to an inference to the contrary. We have experienced much difficulty in reaching a conclusion as to whether the Board’s finding on this issue of knowledge should be accepted. On the one hand, we recognize the rule that the Board is entitled to draw inferences from the facts which, if reasonable, are not to be set aside by a reviewing court. On the other hand, we are charged with the responsibility of determining if a finding is substantially supported when viewed in the light of the entire testimony, including that opposed to the Board’s view. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456. We think a superficial consideration only of the relevant circumstances might lead to the conclusion reached by the Board However, a careful study of the record, which we have made, leads to the belief that the Company’s contention of lack of knowledge is, under the circumstances, both reasonable and logical. In evaluating its contention, the circumstances leading up to and surrounding the activities in controversy as well as the environment in which the parties acted are highly important. There is no contention and not a scintilla of proof of any friction between the Company and IUE or any other union, or any proof of hostility or favoritism by the Company toward any union or any employee because of membership or non-membership in the union. In fact, the proof clearly demonstrates a relation'between the Company and IUE that was amiable and: cooperative. There was some showing of friction between IUE and non-member employees but at the same time, as we have heretofore shown, IUE time and'again recognized the right of non-union members to remain as employees. As we have previously pointed out, the examiner recognized in his findings that there was no proof of any policy of IUE to discriminate against non-union members and that there was no union activity in or about the Company’s plant. Dietz was a valuable employee and, unlike the common discharge situation, there is no proof that the Company had any purpose-or desire to terminate her employment. No independent discriminatory motive on the part of the Company was claimed or found; in fact, so far as this record discloses, the Company had a well Hear perfect record in according to IUE as well as to its individual employees every right guaranteed by the Labor Act. We can go no further in evaluating the circumstances in proof’ than to hazard a guess that the Company’ possessed the alleged knowledge, and we doubt if the Board could do more. But a finding cannot rest merely upon guess, suspicion or speculation predicated upon inferences arising from widely separated and inconsequential incidents. Particularly is this so when inferences are utilized to overcome direct and positive testimony. See Indiana Metal Products Corp. v. N. L. R. B., 7 Cir., 202 F.2d 613; A. E. Staley Mfg. Co. v. N. L. R. B., 7 Cir., 117 F.2d 868, and Martel Mills Corp. v. N. L. R. B., 4 Cir., 114 F.2d 624. In the last cited case the Court refused enforcement of the Board’s order against the Company for an alleged discriminatory discharge of an employee. The motivating cause was in issue as it is here. The Board had found an improper motive based upon circumstantial proof. In rejecting the finding as- not Substantially supported, the court stated, quite appropriate-to the instant situation; as follows at page 631: “We do not lose sight of the fact that our inquiry is centered upon the motivating cause of the employer’s action. The task is a difficult one. It involves an inquiry into the state of mind of the employer. Such inquiry is laden with uncertainties and false paths. Obviously our chief guide is the words of the witness under oath who undertook to.disclose the workings of his mind. If his explanation is a reasonable one, the onus is upon the Board to establish the falsity of this explanation and the truth of its own interpretation. * * Isolated statements which alone carry incriminating import often lose their ominous significance when surrounded by all the facts of a given case.” The meager circumstances relied upon by the Board as giving rise to an inference of knowledge so as to overcome direct proof to the contrary demonstrate the weakness of the Board’s position. Those circumstances, as stated in its decision, are as follows: “(1) the Employer knew that Dietz had been a member of the UE, and that after the schism in 1949 she was not a member of the IUE; (2) in 1951, the employees had strenuously objected to her retention while IUE members were being laid off; (3) responsible company officials were on the production floor in September 1953 when the employees crowded around Dietz and taunted her for her nonmembership in the IUE; (4) the plant superintendent told the employees gathered there that he had a 'damned good idea’ what it was all about; and (5) the Employer, in its socalled investigation of the stoppages, failed to call on Dietz’s immediate supervisor, IUE officials, or any of the participating employees.” Without detailed discussion, we comment upon these five circumstances in the order in which they have been stated. (1) The only proof of Company knowledge that Dietz was not a member- of IUE is a letter written by the Company, ■ dated August 22, 1950, addressed to Dietz, in which was enclosed a check for $16, representing dues withheld from her wages for a period prior to June 1950, with the information that the Company had been advised by the union that she was not a member during that period. This letter was signed by Nicholas Mase, the Company’s assistant personnel director. There is no proof that this knowledge on the part of Mase was conveyed to any other Company official. Moreover, Mase died February 27, 1951. How this incident which occurred more than three years prior to those in controversy has any relevancy is not understandable. Following this incident other non-member employees were accepted by the union as members and obviously the same thing could have happened to Dietz. (2) It is true that in 1951 there was a demonstration by the employees against Dietz but there is no proof that the Company had knowledge of its purpose. In fact, as heretofore shown, president Sullivan of the local union induced the employees to return to their work. Dietz continued in her employment undisturbed for almost two years after that incident and for aught that is shown the Company might well have thought that whatever grievance the employees had against her in 1951 had been amicably adjusted. (3) The evidence does show, of course, that the employees crowded around Dietz at the time of the work stoppages in controversy but there is no proof that any taunting- remarks made to Dietz relative to her non-membership in the union were made in the presence or. hearing of any Company official. In fact, the evidence shows that certain Company officials on the floor at that time were not in hearing distance. (4) Dietz testified that Whisler, superintendent of the department in which she worked, made the statement attributed to him by the Board when he addressed the employees shortly after the September 15 demonstration began. Whisler was a witness for the Board but no inquiry was made of him as to whether he made the “damned good idea” statement or, if so, what he meant by it. Any meaning to be attached to the statement, if made, is a matter of conjecture but, in any event, indulging in the dubious inference that it referred to knowledge, the same was not communicated to Kertis who was the Company official solely responsible for the situation which developed between the Company and Dietz subsequent to the demonstrations. (5) Much is said concerning the failure of the Company to properly investigate the purpose of the employees engaged in the work stoppages in controversy. The fact is that an investigation was made but evidently not sufficient to satisfy the Board’s idea of what management should have done under the circumstances. Witnesses who' were interviewed either refused to talk or answered that they did not know the purpose of the demonstrations against Dietz. In any event, even though it be assumed that the Company did not investigate the situation as thoroughly as i.t might, it is not discernible how any failure in that respect can now be utilized as proof of knowledge. In this connection it may also be noted that while the Board is critical of the Company’s failure to investigate and ascertain the purpose of the demonstrating employees, it evidently has failed in the same respect. This may be assumed, we think,- from the Board’s failure to call as witnesses, employees who could have given direct testimony as to the purpose. Instead it relied upon tidbits of evidence picked from here and there which have little if any probative value. The Board in its brief states the following principle of law: “An employer has an affirmative duty to resist the demands of a union or group of employees, when to yield to those demands results.in the denial of a statutory right conferred on another- employee.” It cites in support of this, principle N. L. R. B. v. McCatron, etc., 9 Cir., 216 F.2d 212, 214-215; N. L. R..B. v. Newton, 5 Cir., 214 F.2d 472, 475; N. L. R. B. v. John P. Weissman Co., 6 Cir., 170 F.2d 952, 954, and N. L. R. B. v. General Motors Corp., 7 Cir., 116., F.2d 306, 309-311. Of course,- the application of this principle is dependent upon knowledge by the employer that the activities of the union or employees have a discriminatory objective. Thus, in the cited cases as in the instant case, knowledge on the part of the company becomes the critical issue, with the burden on the Board to establish it by substantial evidence. A reading -of cases relied upon by the Board discloses factual situations which are a far -cry from those shown here. Generally the employer was found guilty, of independent unfair, labor practices, a hostile union attitude or active participation by the employer in the discriminatory acts charged to the defending union or employees. For instance, in the General Motors Corp. case, this court stated at page 310: “Respondent seeks to justify this policy on the ground that to interfere with the men would have been to cause further excesses and more violence. This, however, fails to explain away the fact that the record also shows that foremen, assistant foremen, and others occupying a supervisory capacity, sometimes directly participated in the evictions.” In the Weissman ease the court stated 170 F.2d at page 954: “It is clear enough that the attitude of the anti-Union group of respondents’ employees was encouraged, and tacitly, if not openly, approved by respondent Weissman * * The same or similar conduct was attributed to the employer in the other cases. Under such circumstances knowledge on the part of the Company was readily inferable. In the instant case, however, none of these factors exist. As already shown, respondent Company had no motive or desire to- discharge Dietz and it, like the union, gave no assistance either directly or indirectly to the group of employees who for some reason ■or other were hostile toward her. The predicament of Dietz was caused solely by the acts and conduct of an irresponsible group of employees and it is unfortunate that they cannot be held responsible. What action, if any, the Company should have taken in order to escape the accusing finger of the Labor Board we do not know. The Company thought, and so did 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_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). PARKS v. UNITED STATES. No. 7666. Circuit Court of Appeals, Fifth Circuit. April 17, 1935. W. O. Cooper, Jr., of Macon, Ga., for appellant. T. Hoyt Davis, U. S. Atty., and A. Edward Smith, Asst. U. S. Atty., both of Macon, Ga. Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges. Rehearing denied May 31, 1935.f HUTCHESON, Circuit Judge. Appellant was convicted upon four counts of an indictment charging: (1) The unlawful sale of distilled spirits in an unstamped container; (2) the concealment of tax unpaid liquor, with intent to defraud the United States; (3) carrying on the business of a retail liquor dealer without having paid the special tax; (4) possession of distilled spirits, the immediate container of which was not stamped. He was sentenced not separately upon each count, but generally, to a term of two years in the penitentiary. He appeals, making only one claim of error, that his motion for the suppression and exclusion of evidence obtained by a search of his premises] was wrongfully overruled. It is contended on the motion that having entered appellant’s premises by authority not of a search warrant, but of a warrant of arrest, the officers thereafter by an unreasonable exploratory search and seizure obtained the evidences of guilt on which he • was convicted. The government offered abundant and uncontradicted evidence establishing appellant’s guilt ón each count. Appellant offered no evidence. He relied entirely on his motion to suppress and exclude. It is a complete answer to appellant’s claim that the judgment should be reversed to point out that his sentence was no greater than could have been imposed on him on the first count, and that on this count conviction was obtained upon uncontradicted evidence, including that of the purchaser obtained wholly independent of the actions complained of in the motion to suppress. Shelton v. U. S. (C. C. A.) 69 F.(2d) 223. A further answer to the claim of prejudicial error is to be found in the uncontradicted evidence of the officers, that before they entered the house to arrest appellant they had seen him and his codefendant making trips from the house, carrying illicit whisky into the woods, and that they found a large quantity of this whisky they testified' to finding in an open field and not on his inclosed premises. Hester v. U. S., 265 U. S. 57, 44 S. Ct. 445, 68 L. Ed. 898. But the overruling of the motion was not error. The situation existing at and before the arrest, the illicit sale which the officers knew of, the carrying of the liquor out of the house and into the thicket in their presence, the arrest of the defendant, his breaking away and running into the house for concealment, the fact _that the officers - had to search through the house to find him hidden there, and the further fact that when they went into the yard the smell of liquor was heavy on the air, entitled them to follow the evidences of their senses, and uncover the whisky appellant had hidden in his yard. McBride v. U. S. (C. C. A.) 284 F. 416; Marron v. U. S., 275 U. S. 192, 48 S. Ct. 74, 72 L. Ed. 231; Agnello v. U. S., 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Benton v. U. S. (C. C. A.) 28 F.(2d) 695. The cases relied on by appellant, Taylor v. U. S., 286 U. S. 1, 52 S. Ct. 466, 76 L. Ed. 951; Byars v. U. S., 273 U. S. 28, 47 S. Ct. 248, 71 L. Ed. 520; Go-Bart Imp. Co. v. U. S., 282 U. S. 344, 356, 51 S. Ct. 153, 75 L. Ed. 374; U. S. v. Lefkowitz, 285 U. S. 452, 52 S. Ct. 420, 76 L. Ed. 877, 82 A. L. R. 775, are not in point. In the Taylor Case the officers entered a dwelling house with no warrant except that they smelled whisky there; they had neither search warrant nor warrant of arrest, searches in connection with a lawful arrest were expressly distinguished. In Byars’ Case as in Taylor’s, the entry was illegal, in Taylor’s because they had no warrant, in Byars’’ because the warrant was invalid. -In the Go-Bart and Lefkowitz Cases what was seized was not contraband or instruments of crime, but papers. Papers, as it was pointed out in the Lefkowitz Case, which could not have been seized even under a valid search warrant. All of these cases, as well as those on which the government relies, make it clear that no general rule to which all cases must conform has been or may be laid down as to what is the unreasonable search forbidden by the Constitution (Amend. 4). Each case must be determined in accordance with general principles, upon its own facts. It is sufficient to say of this case, that it is quite clear that no unreasonable search such as the Constitution forbids, went on. The judgment is affirmed. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_circuit	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. BURNET, Com’r of Internal Revenue, v. MOORE COTTON MILLS CO. No. 3052. Circuit Court of Appeals, Fourth Circuit. April 13, 1931. William Cutler Thompson, Sp. Asst, to Atty. Gen. (G. A. Youngquist, Asst. Atty. Gen., Sewall Key and J. P. Jackson, Sp. Assts. to Atty. Gen., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Dean P. Kimball, both of Washington, D. C., on the brief), for petitioner. James Craig Peacock, of Washington, D. C. (John W. Townsend, of Washington, D. C., on the brief), for respondent. Before NORTHCOTT, Circuit Judge, and MeCLINTIC and COLEMAN, District Judges. WILLIAM C. COLEMAN, District Judge. The question here presented, which arises upon a petition to review the action of the Board of Tax Appeals, is whether, under the Revenue Act of 1921, § 204 (b), (42 Stat. 227, 231), in determining the net income of a tax payer for the second succeeding year following a net loss, for the purpose of applying the $2,000 credit provision of section 236 (b) of the same act, the unapplied balance of the net loss is to be treated as a deduction in computing such net income, or whether it is available only as a credit to be applied against such net income. The sections of the Revenue Act of 1921 above referred to are the following: “See. 204. * * * (b) If for any taxable year beginning after December 31, 1920, it appears upon the production of evidence satisfactory to the Commissioner that any taxpayer has sustained a net loss, the amount thereof shall be deducted from the net ineome of the taxpayer for the succeeding taxable year; and if such net loss is in excess of the net income for such succeeding taxable year, the amount of such excess shall be allowed as a deduction in computing the net ineome for the next succeeding taxable year; the deduction in all cases to be made under regulations prescribed by the Commissioner with the approval of the Secretary.” “Sec. 236. That for the purpose only of the tax imposed-by section 230 [the tax on corporate ineome] there shall be allowed the following credits: * * * “(b) In the case of a domestic corporation the net ineome of which is $25,000 or less, a specific credit of $2,000; but if the net income is more than $25,0.00 the tax imposed by section 230 shall not exceed the tax which would be payable if the $2,000 credit were allowed, plus the amount of the net ineome in excess of $25,000. * * * ” The Board of Tax Appeals found the following facts, concerning which there is no dispute: The taxpayer is a corporation with principal offices at Lenoir, 1ST. C. The taxpayer suffered a net loss of $21,321.08 in 1921. In 1922 it had a taxable net income of $2,368.45, which was offset by an equal amount of its net loss in 1921. In 1923, its taxable net ineome (as corrected by the Commissioner of Internal Revenue) was determined to be $28,522.25, against which .the commissioner treated the unapplied remainder of the net loss for 1921, that is $18,952.63, merely as a credit. The taxpayer, however, contended that in computing its taxable ineome for 1923 this item must be deducted from its gross ineome before its net income could be determined in accordance with the provisions of the law; that the net ineome so determined was $9,569.62, and since that amount was less -than $25,000-, it was entitled to the specific credit of $2,000, as provided in section 236 (b) of the Revenue Act of 1921. The Commissioner of Internal Revenue having denied the taxpayer the benefit of such deduction, a deficiency of $243.59' resulted. Upon petition for redetermination, the Board of Tax Appeals reversed the commissioner, and entered ' judgment for the taxpayer, holding that there was an overpayment for the year 1923 in the amount of $6.41. From this decision the commissioner petitioned for review. A distinct difference is to be noted in the language employed in section 204' (b) in applying the net loss to the net-ineome for “the succeeding taxable year,” and in applying it to the net ineome for “the next succeeding taxable year.” That is to say, for the second year, the law provides that such loss “shall be deducted from the net income of the taxpayer,” whereas, for the third year the law provides that any excess of the loss remaining after it has been applied against the net ineome of the second year “shall be allowed as a deduction in computing the net income for the next succeeding [the third] taxable year.” The Commissioner of Internal Revenue has interpreted this language to mean that with relation to both the second and third year’s net ineome, merely a credit of the prior net loss is to be allowed, and not a deduction, with the result that in the present ease respondent is thereby denied the benefit of the specific credit provision of section- 236 (c). See Treasury Department Regulations 62, article 1602, although it appears that under a similar provision of the Revenue Act of 1918 (40 Stat. 1061), the regulation was to the contrary (Treasury Dept. Regulations 45, article 1603). The Board of Tax Appeals has consistently followed the position now taken by the commissioner with respect to the second tax-, able year’s ineome, Chicago Nat. C. v. Commissioner, 5 B. T. A. 614; Appeal of S. W. Bridges & Co., 4 B. T. A. 750; Oak Grove & Georgetown R. R. Co. v. Commissioner, 6 B. T. A. 661; Alderman, Fairchild Co. et al. v. Commissioner, 17 B. T. A. 390; and this the taxpayer does not dispute. But with the commissioner’s interpretation with respect to the third taxable year’s income,' the Board of Tax Appeals refused to agree,, saying: “We find no ambiguity in either the first part or in any part of section 204 (b) of the Act of 1921. On the contrary, its provisions seem to us to be as clearly specific and unmistakable as it is possible to express them. Without doubt the Commissioner is endowed with the power to "make and enforce regulations that shall carry out the clear intent of the words of this section, but equally the power given in the section does not imply that he has any authority to make or enforce any regulation that alters, or even modifies, that clear intent, and it would be without effect even though that were the implication. The power of Federal legislation lies solely in Congress, and in our opinion that part of the regulation of the Commissioner which we have italicized and which provides that the excess of the net loss over the net income of the second year ‘shall be carried over and credited against the net income for the next succeeding (third) taxable year’ where Congress has clearly provided that ‘the amount of such excess shall be allowed as a> deduction in computing the net income for the next succeeding taxable year/ is an erroneous construction of that Act and goes beyond the power delegated to the Commissioner. We do not know whether it was the intent of Congress to provide that the deductions permitted, under certain circumstances, for the second and third years should be similarly applied; but we do know that such is not the effect of the language used in section 204 (b) of the Revenue Act of 1921; and that it is not within the power of the Commissioner so to construe and apply the widely differing provisions therein contained. The- rule has been so well settled that it seems unnecessary further to discuss it or to cite authorities. “In what we have said above, we are not unmindful that the conclusion we reach differs from our decision in Eastern Building Corporation v. Commissioner of Internal Revenue, 16 B. T. A. 138. There was no appearance for the petitioner in that case. The distinction now made in the language of the Act was not then pointed out. The decision in the Eastern Building Corporation Case, supra, is overruled. “We find in the instant case that the petitioner’s net income for 1923 was less than $25,000, and that it is therefore entitled to the specific credit of $2,000'under the provisions of section 236 (b) of the Revenue Act of 1921.” We believe the above conclusion of the board, and the reasoning upon which it is based, to be sound, and feel that little need be added to what the board has said. We are not unmindful of the firmly established principle of statutory construction that, in the event of a literal construction of an act of Congress leading to a result grossly absurd, such construction shall yield to the reasonable intent. Crooks v. Harrelson, 282 U. S. 55, 51 S. Ct. 49, 75 L. Ed.-. But we do not concede that there is in fact any real ambiguity, much less that the result here produced is absurd, albeit there may be no sound reason for saying that while net loss shall not be an item in the computation of net income for the first succeeding year, it shall be in the computation of net income for the second succeeding year. Whatever the undisclosed reason, the statute does make the distinction by the very language employed. It thus seems to us that there is scarcely more justification for torturing the language of one clause in the statute than for doing the same thing with respect to the other clause. That is to say, it would appear to be about as logical to contend that uniformity should be produced by construing the statute so as to allow deductions with respect to both years, as by construing it so as to allow merely credits for both years. We are also not unmindful of the well-established doctrine that regulations made by the Commissioner of Internal Revenue, in respect to the assessment and collection of taxes, have the force and effect of statutes, if made with the approval of the Secretary of the Treasury, and pursuant to statutory authority. Maryland Casualty Co. v. United States, 251 U. S. 342, 40 S. Ct. 155, 64 ,L. Ed. 297; Brewster v. Gage, 280 U. S. 327, 50 S. Ct. 115, 74 L. Ed. 457. But in the present instance, we believe that the commissioner exceeded his authority under the statute^ Also, should we assume ambiguity to exist in the phraseology, in construing a tax statute of this kind, any such ambiguity should be resolved in favor of the taxpayer. Gould v. Gould, 245 U. S. 151, 38 S. Ct. 53, 62 L. Ed. 211; U. S. v. Merriam, 263 U. S. 179, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547; Reineeke v. Trust Co., 278 U. S. 339, 49 S. Ct. 123, 73 L. Ed. 410, 66 A. L. R. 397. Lastly, if further support were needed for the conclusion here adopted, it is to be found in the form in which section 204 (b) of the Act of 1921 was redrafted in the Act of 1924 (section 206 (b), and carried into each subsequent act. That redraft is as follows: “If, for any taxable year, it appears upon the production of evidence satisfactory to the commissioner that any taxpayer has sustained a net loss, the amount thereof shall be allowed as a deduction in computing the net income of the taxpayer for the succeeding taxable year (hereinafter in this section called ‘second year1) and if such net loss is in excess of such net income (computed without such deduction), the amount of such excess shall be allowed as a deduction in computing the net income for the next succeeding taxable year (hereinafter in this section called 'third year’) ; the deduction in all eases to he made under regulations prescribed by the commissioner with the approval of the Secretary.” (43 Stat. 260 and 44 Stat. 17 [26 USCA § 937 (b)]; section 117 (b), 45 Stat. 825 [26 USCA § 2117 (b)]). As a result of this redrafting, the Treasury Department has redrafted its Regulations and has ever since construed section 204 (b), as thus amended, to allow the net loss to be treated as a deduction, in computing the net income for both the second and third years. See Regulations 65, article 1622; Regulad tions 69, article 1622; Regulations 74, article 652. Since the amendment incorporated, with respect to the application of the net loss to both the second and third years, the same language that was used in the 1921 act with respect to the application of the net loss to the third year, and since thereafter the Treasury Department has applied exclusively the rule here contended for by the taxpayer, the commissioner’s present position is at least inconsistent and without persuasive force. . For the aforegoing reasons, we find no error in the decision of the Board of Tax Appeals, and the same is accordingly affirmed. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_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". UNITED STATES of America, Plaintiff-Appellee, v. PREMISES KNOWN AS 526 LISCUM DRIVE, DAYTON, MONTGOMERY COUNTY, OHIO, a parcel of real property, and all appurtenances thereto, and Theresa A. Booker, Defendants-Appellants. No. 87-3699. United States Court of Appeals, Sixth Circuit. Submitted July 19, 1988. Decided Jan. 25, 1989. Robert E. Renshaw, Dayton, Ohio, for defendants-appellants. Dale Ann Goldberg Asst. U.S. Atty. Dayton, Ohio, for plaintiff-appellee. Before MARTIN and WELLFORD, Circuit Judges, and GIBBONS, District Judge. The Honorable Julia Gibbons, Judge, United States District Court for the Western District of Tennessee, sitting by designation. GIBBONS, District Judge. This appeal presents the issue of whether appellant Theresa A. Booker, who holds title to the premises at 526 Liscum Drive in Dayton, Montgomery County, Ohio, has produced sufficient evidence of her standing to contest the forfeiture of that property pursuant to the forfeiture provision of the Controlled Substances Act, 21 U.S.C. § 881. The district court granted the government’s motion for summary judgment, concluding that Theresa A. Booker had failed to submit sufficient evidence demonstrating her standing to challenge the forfeiture. We affirm. This case arises out of a search at the Liscum Drive address. On February 10, 1986, a Dayton municipal court issued a search warrant for premises located at 526 Liscum Drive. The affidavits in support of the search warrant indicated that the occupants were Gene and Jimmie Booker, a married couple known to have been previously involved in drug trafficking. The search revealed four and one-half ounces of heroin, various drug paraphernalia and over $19,000 in currency, $1,000 of which was identified as currency used to make undercover drug purchases by state law enforcement officials. Following the search, special agents of the Federal Bureau of Investigation began to interview certain individuals regarding the ownership status of the Liscum premises. Following this investigation, the government instituted the instant forfeiture proceeding. Theresa A. Booker filed a claim for the property, asserting that she was its sole owner. The government supported its motion for summary judgment with affidavits of Dayton Police Department Detective Roger D. Rockwell and F.B.I. Special Agent W. Philip Sandidge. Rockwell’s affidavit details the information known to law enforcement officials prior to the search, including information from a confidential informant about heroin sales from the Liscum Drive residence by Gene and Jimmie Booker and Rockwell’s personal observation of the informant’s entry into the residence to purchase heroin and his exit from the residence with the drug. Rockwell reports that the Liscum Drive property is titled in the name of Theresa A. Booker. He also relates his interview with Charles Hall, an individual who had previously purchased cocaine at 526 Liscum. Charles Hall stated that Gene Booker told Hall that he (Gene Booker) had purchased the Liscum premises for $40,000 and had put the property in someone else’s name. Sandidge’s affidavit reports a number of interviews concerning the Liscum premises. Richard L. Booker, Gene Booker’s brother, told Sandidge that Gene Booker bought 526 Liscum in January 1986 and that Gene Booker lives at that address. Richard Booker confirmed that his brother had been selling drugs for a long time. Richard Booker identified Theresa Booker as the youngest of Gene Booker’s four daughters and gave the following additional information about her. She has lived in California since her graduation from college in 1981 or 1982. She visited her father during Christmas 1985, but returned to California before January 1, 1986. Theresa Booker has worked out of a secretarial pool since being laid off from her job in 1985. Sandidge’s affidavit also includes information from the former owner of the house. The former owner indicated that he showed the house to Gene and Jimmie Booker and that the Bookers were present at the closing, while Theresa Booker was not present. The former owner stated that Jimmie Booker kept saying that her daughter was going to buy the house, but that he thought the Bookers just wanted to put the house in someone else’s name. The former owner never met Theresa Booker, but had one phone conversation with her about the payment of the remainder of the purchase money. The former owner first met the Bookers through a man named Evans, who described Gene Booker as his nephew. Evans’ wife told Sandidge that Gene Booker bought the house with his own money and placed it in his daughter’s name. Theresa A. Booker responded to the government’s motion for summary judgment with her own affidavit. This affidavit states that the affiant is owner of the Liscum Drive property and that any drug offenses committed there were without her knowledge or consent. The district court found that the government had sustained its burden of showing probable cause for the seizure. 19 U.S.C. § 1615; 21 U.S.C. § 881. Accordingly, the district court then placed the burden on the claimant to submit evidence creating a genuine issue of material fact as to whether she was the true owner of the property. Relying on United States v. A Single Family Residence, 803 F.2d 625 (11th Cir.1986), the district court found that evidence of bare legal title, in the absence of dominion, control or some other indicia of ownership, is insufficient to establish standing to challenge the seizure. Because claimant presented no evidence other than that title to the property was in her name, the district court correctly found that she had failed to satisfy her burden to establish standing to challenge the forfeiture. Under 19 U.S.C. § 1615, which is incorporated into the Controlled Substances Act by 21 U.S.C. § 881(d), the United States must establish probable cause to believe that a substantial connection exists between the property to be forfeited and the illegal exchange of a controlled substance. United States v. One 1966 Beechcraft Baron, 788 F.2d 384, 387 (6th Cir.1986) (forfeiture action under the Anti-Smuggling Act, 19 U.S.C. § 1703); United States v. A Single Family Residence, 803 F.2d 625, 628 (11th Cir.1986); United States v. $4,255,625.39, 762 F.2d 895, 903 (11th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 772 (1986); United States v. $22,287.00, 709 F.2d 442, 446 (6th Cir.1983). Probable cause means “reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion.” $22,287.00, 709 F.2d at 446-47 (quoting United States v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir.1980) (emphasis added)). Pursuant to 19 U.S.C. § 1615, once the government has met its burden of showing probable cause to institute the forfeiture action, the burden then shifts to the claimant to show by a preponderance of the evidence that the property is not subject to forfeiture. One 1966 Beechcraft Baron, 788 F.2d at 387; A Single Family Residence, 803 F.2d at 629; $22,287.00, 709 F.2d at 446. As an element of this burden, claimant has the burden of proving an interest in the property sufficient to establish her standing under the statute to contest the seizure and resulting forfeiture. United States v. $38,000.00, 816 F.2d 1538, 1544 (11th Cir.1987); United States v. One Eighteenth Century Colombian Monstrance, 802 F.2d 837, 838 (5th Cir.1986), cert. denied, 481 U.S. 1014, 107 S.Ct. 1889, 95 L.Ed.2d 496 (1987); $4,255,625.39, 762 F.2d at 907; United States v. $364,960.00, 661 F.2d 319, 326 (5th Cir.1981). Two other United States Courts of Appeals have found that possession of bare legal title by one who does not exercise dominion or control over property may be insufficient to establish standing to challenge a forfeiture. A Single Family Residence, 803 F.2d at 630; United States v. One 1945 Douglas C-54 (DC-4) Aircraft, 604 F.2d 27, 28 (8th Cir.1979), cert. denied, 454 U.S. 1143, 102 S.Ct. 1002, 71 L.Ed.2d 294 (1982); see also United States v. One 1977 36-Foot Cigarette Ocean Racer, 624 F.Supp. 290, 294 (S.D.Fla.1985). The intent of the forfeiture provision of the Controlled Substances Act is to deprive criminals of the tools by which they conduct their illegal activities. H.R.Rep. No. 1444, 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong, and Admin.News 4566, 4623-24. A failure to look beyond bare legal title would foster manipulation of nominal ownership to frustrate this intent. See A Single Family Residence, 803 F.2d at 630; Douglas C-54 (DC-4) Aircraft, 604 F.2d at 28-29; Cigarette Ocean Racer, 624 F.Supp. at 294-95. The United States has established probable cause for the seizure of the property at 526 Liscum drive as a matter of law. The information from the confidential informant, the observed drug purchases and the fruits of the search plainly support a probable cause finding. In addition, the government has established probable cause to believe that Theresa A. Booker is merely the holder of legal title to the Liscum drive property and not the true owner. Claimant therefore has the burden of establishing her standing to contest the forfeiture and, if standing is established, claimant has the further burden of demonstrating that the property is not subject to forfeiture. 19 U.S.C. § 1615. Claimant has failed to come forth with evidence sufficient to create a genuine issue of material fact as to her standing to contest the forfeiture. Her affidavit simply states that she holds legal title to the property; it contains no information indicating that she has dominion or control over the property or that she is anything other than a nominal or straw owner. We hold that when the government establishes probable cause to believe that a claimant is merely a nominal or straw owner, as it has done here, a claimant cannot meet its burden of establishing standing to challenge a forfeiture by presenting proof of legal title alone. The claimant must also present evidence of dominion and control or other indicia of true ownership. Since the government has established probable cause to believe that Booker is not the true owner, we do not decide the issue of whether a claimant is required to show more than legal title in the absence of such a probable cause showing of lack of true ownership. To defeat a motion for summary judgment, the non-moving party must, at a minimum, “make a showing sufficient to establish the existence of an element essential to that party’s case, ... on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Claimant, by failing to present any evidence that she was anything more than the nominal holder of legal title of the Liscum Drive property, did not satisfy this burden and thus, summary judgment was properly entered against her. Claimant makes several other arguments not raised in the district court. This court will not consider on appeal these issues not presented to the trial court. See, e.g., Chandler v. Jones, 813 F.2d 773, 777 (6th Cir.1987); Russ’ Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 217 (6th Cir.1985). Although claimant seeks to characterize an issue of whether the Liscum Drive property was within the territorial jurisdiction of the municipal court that issued the search warrant as an issue of subject matter jurisdiction that may be raised at any time, that issue does not relate in any way to the subject matter jurisdiction of the federal court. The judgment of the district court is affirmed. . The averments with respect to lack of knowledge and consent represent an apparent effort to establish that Theresa Booker was an innocent owner of the property. The statute provides that property is not subject to forfeiture "to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner." 21 U.S.C. § 881(a)(7). The issue of innocent ownership is distinct from the issue of standing raised in this appeal. . Certain courts have characterized standing as a "threshold” issue which precedes consideration of the existence of probable cause for the seizure. United States v. $38,000.00, 816 F.2d 1538, 1544 (11th Cir.1987); United States v. One Eighteenth Century Colombian Monstrance, 802 F.2d 837, 838 (5th Cir.1986), cert. denied, 481 U.S. 1014, 107 S.Ct. 1889, 95 L.Ed.2d 496 (1987). Since the government has submitted evidence establishing probable cause for the seizure, we are not presented with the question of whether or not standing is a "threshold” issue. . The affidavits that establish probable cause contain much hearsay evidence. The hearsay statements are properly considered to establish probable cause in a forfeiture proceeding. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. One 56-Foot Yacht Named Tahuna, 702 F.2d 1276 (9th Cir.1983); see also United States v. One 1975 Mercedes 280S, 590 F.2d 196 (6th Cir.1978). . In any event, claimant’s contention as to the location of the property is unsupported by any competent evidence in this record. The only item in this record suggesting that the property was outside the city of Dayton is a survey map inserted in the joint appendix. Apparently, this map was not a part of the record before the trial court. The map is not accompanied by an affidavit or any evidence that identifies or authenticates it. The names “Liscum Dr." and "Jefferson Township" have been handwritten on the printed map. The map also contains a handwritten note that attempts to indicate the boundary line between the City of Dayton and Jefferson Township. There is no indication of the source of the handwritten notations. In short, the court is left with nothing to consider on this issue other than counsel’s unsupported statements in claimant’s brief. 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_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". MILLS ALLOYS, Inc., et al. v. STOODY CO. No. 8313. Circuit Court of Appeals, Ninth Circuit. Jan. 24, 1938. John Flam and Phillip Grey Smith, both of Los Angeles, Cal., for appellants. Fred H. Miller and Charles C. Montgomery, both of Los Angeles, Cal., for appellee. Before WILBUR, MATHEWS, and HANEY, Circuit Judges. WILBUR, Circuit Judge. This is a patent infringement suit brought by the owner of letters patent 1,-803,875 to enjoin the use of the process therein described for surfacing the face of an oil well drill. The matter was referred to a special master over the objections of the appellants. The master found the patent claims involved to be valid and infringed. Exceptions were taken to the master’s report, and overruled. The master’s findings were sustained and adopted by the court, and an interlocutory injunction granted and an accounting ordered. From this interlocutory decree this appeal is taken. The appellants attack the findings of validity and of infringement by appropriate assignments o-f error. The scope and character of the review of the findings of the special master is defined by the new Equity Rule 61%, 28 U.S.C.A. following section 723, promulgated May 31, 1932, before the master’s report herein. The finding of fact and law are to be treated as presumptively correct, but subject to review by the trial court and by this court on appeal. Wilson-Western Sporting Goods Co. v. Barnhart, 9 Cir., 81 F.2d 108; Anraku v. General Electric Co., 9 Cir., 80 F.2d 958; Stewart-Warner Corp. v. Jiffy Lubricator Co., 8 Cir., 81 F.2d 786; Reinharts, Inc., v. Caterpillar Tractor Co., 9 Cir., 85 F.2d 628; Antonsen v. Hedrick, 9 Cir., 89 F.2d 149. We proceed to a consideration of the findings and interlocutory decree. The first question to be considered is that of res judicata. The patentee procured this process patent May 5, 1931, and upon an application pending at the patent office at the same time secured a product patent for a welding rod by letters patent No. 1,757,601. The latter patent (No. 1,757,601) was before this court in Stoody Co. v. Mills Alloys, Inc., 9 Cir., 67 F.2d 807. We there held that its claims were void for lack of invention. The patent covered a welding rod which was to be used for the surfacing of a drill in accordance with the teaching of the patent, and, therefore, covered the use of the welding rod for the purpose for which it was designed. This use, as disclosed by the patent, was to deposit and fasten the hard particles inclosed therein upon the face of the drill by melting the tube upon the face of the drill to which it adhered with the inclosed particles by reason of the welding of the molten metal of the tube to the heated surface of the drill. In describing the invention in the welding rod patent it is shown that the purpose of the invention was to furnish a tube .filled with particles of hard material, preferably tungsten carbide, to be melted upon the' face of the drill by the use of an acetylene' torch. We there approved the finding of the master that a tube designed for such purpose did not constitute invention in view of the state of the prior art. The master’s finding on that subject, which we quoted in part in our former opinion (page 815) is set out in the margin. The same master, in considering the patent for the process of applying the welding rod and its contents to the surface of the drill, sustained the patent and upon that finding the court enjoined the defendants from manufacturing or selling the welding tube covered by the void patent (No. 1,757,601) because it was held that the manufacture and sale of the welding rod was a contributory infringement of the process covered by patent No. 1,803,875. It also enjoined the sale of a welding rod in which the tungsten carbide particles had been embedded in the metal of the rod instead of being inclosed loosely in a welding tube. The appeal is from this decree. If this decree is affirmed by us and if, also, we adhere to our former opinion as to the invalidity of the product patent, it would follow that the product (the welding rod) patent which we held invalid would be made effective through the process patent. The appellants rely strongly upon the doctrine of res judicata to support the conclusiveness of the facts found in the former case to establish the invalidity of the patent in suit. One of the issues in the former case was the factual one of invention. It was there held that no invention was involved in producing a welding rod to be used according to the teaching of the patent. The court declined to enjoin the manufacture, sale, or use of the welding rod described in the patent. The finding that there was no invention in the welding rod not only implied a finding that there was no invention in the only use for which the rod was designed, but also there were express findings that the method of applying face hardening material such as tungsten carbide to a well drill by inclosing or incorporating them in a welding tube or rod and melting the rod on the face to be hardened was not new and did not call for the exercise of inventive genius. The question as to whether the proposed use of the welding rod was new or old was inherent in the question of invention in the welding rod itself. The proposed use of the welding rod could not be ignored in litigation over the question of whether or not the inventive faculty was exercised in its manufacture. It is true that the two patents are different and that the invalidity of one would not necessarily invalidate the other, but where the litigation in each case turns upon the question of the novelty of the manner of use, the adjudication of invalidity of the process (or manner of use) patent follows as an inevitable conclusion from the finding of lack of novelty in the product patent. As to general principle, see Freeman on Judgments, 5t.h Ed., vol. 2, p. 1469, § 695 et seq. This conclusion, we think accords with the view expressed by the Second Circuit Court of Appeals in Vapor Car Heating Co. v. Gold Car Heating & Lighting Co., 7 F.2d 284, 287. The master should have held the claims of the process patent here involved invalid for lack of invention because that lack was conclusively established by the prior finding and decree. Furthermore, if we now adhere to the views expressed in the previous opinion, the same result follows because the evidence upon which that finding is based in the former case has been introduced in the main case, hence, it would follow that whether we rely upon the evidence herein of the prior art, or upon the doctrine of res judicata, our holding would he the saihe; namely, that the state of the prior art embraced the application on face hardening material to the surface of a well drill by incorporating or inclosing the hard material in a welding tube to be melted on the face of the drill by the use of an acetylene torch, or otherwise. There is one notable exception between the prior art shown in this case and that shown in the former case. In the prior case the master concluded that the “hot rod method” of applying the tungsten carbide anticipated the product patent. In the present litigation he finds that the “hot rod method” was used a year later than he held in the former case, and that its use was by the patentee only, and shortly before, or immediately after, the present invention. Thus, in considering the evidence of the prior art, we must either ignore this particular alleged prior use or reverse the decision of the master on that subject reached by him after hearing the conflicting testimony of the witnesses who appeared before him, as to a date, where documentary evidence pointed toward the conclusion reached by the master. We should not do this except upon the principle of res judicata. Consequently, we will in our present inquiry ignore the hot rod method and consider the other prior art only. We will now consider that evidence. In arriving at the conclusion that the process patent was valid, the master was strongly impressed by the fact that tungsten carbide was a recent metallurgical product whose reactions to the application of the intense heat were not entirely understood and that the patentees having discovered that the carbide particles could be applied to the face of the tools by the. welding process retaining their hardness without impairment were entitled to the award of the patent for their inventive genius. Evidence was offered to show the various experiments conducted by the patentees with a view of determining the best method of applying this newly produced product to the face of the drilling tool. It appears that other methods were tried, including grinding the tungsten carbide to uniform sizes and shapes and embedding them in holes countersunk in the face of the drill by soldering with molten brass or other soft material. It .was known while these experiments were being conducted that tungsten carbide is almost as hard as diamond (98 per cent, to 99 per cent., or, 9.8 to 9.9). It was also known that tungsten carbide has an extremely high melting point as compared to iron, or mild steel. The relative melting point of mild steel and tungsten carbide is as 2,600° F. is to 5,400° F. It was known that it did not soften or fuse at any lower temperature, and that it had the tenacity or strength of high speed steel. It was also known from German patent No. 427,074 issued to Siemens and Halslce March 22, 1926, that tungsten carbide in the form of grains could be mixed with molten metal and become imbedded therein without forming an alloy. From these known characteristics of tungsten carbide it was evident that the iron of a welding rod or tube could be melted without melting the tungsten carbide inclosed in the tube. However, the acetylene torch has a very high temperature at the apex of the cone of the flame. This temperature is about 6,000° F. It is thus apparent that if the hottest part of the acetylene flame is played upon the tungsten carbide for too long a time it might cause melting. It was feared also that the flame might crack the tungsten carbide particles. It is only necessary, however, to make the obvious experiment to determine the fact that the tungsten carbide particles were not melted and were not cracked and were secured to the face of the tool by the steel as it cooled. Here it should be stated that the process patent under consideration discloses none of the difficulties apprehended in the use of carbon tungsten and taught no method of avoiding these difficulties. Moreover, the patent process did not relate to the application of tungsten carbide alone, but expressly included all other hardening alloys or metals whose melting point was higher than that of mild steel. All were to be applied in the same way. Some of these materials would no doubt form an alloy with the molten mild steel of the tube and with the visced face of the drill, others, like tungsten carbide, would remain embedded in the metal in hard particles. In considering the claims of the pat-, entees the master was evidently impressed by the contention which he had not fully considered in the other case that in the former . art the hard material which had been applied to the face of the drill by the use of a welding tube or rod, was incorporated therein as an homogeneous alloy so that the hardness of the face of the drill after the operation resulted from the incorporation into the steel face of the drill as an alloy of steel of the metal or alloy which had been contained in the tube or welding rod, whereas, in the case of tungsten carbide, the material deposited did not enter into combination with the metal of the drill or the molten metal from the tube to form an alloy, but remained deposited upon the surface- of the tool although embedded in the steel as an independent hard heterogeneous mass inclosed in a matrix of mild steel so that as the mild steel was worn away by the operation of the drill the tungsten carbide became exposed to form the cutting surface of the drill. (See note 3) The question is whether or not the application of a process old in the art to the new product constitutes invention. It is clear that the most that can be said of the efforts of the patentees to successfully apply the newly produced hard alloy (tungsten and carbon) to the face of the tool was that they discovered that it could be applied in the usual manner; that is to say, they discovered that the characteristics of the tungsten carbide supplied to them by the manufacturers, or .produced by them, were such that by the use of an old process it could be applied to the surface of the drilling tool. The bare bones of the process of the patent consist in the application to the surface of the drill of face hardening material by inclosing the hardening material in molten steel which adheres to the face of the drill by welding action. While it is true, as the master held, that this face hardened drill constituted a different result from that produced by the process of applying a substance which would form an alloy with the face of the tool, no invention was involved over the prior art because the process of application was exactly the same as disclosed by the prior art for applying face hardening materials. The beneficial result was brought about by using a new product and not by the use of a new process. This does not ordinarily constitute invention. David E. Kennedy, Inc., v. Beaver Tile & Specialty Co., D.C., 232 F. 477; see, also, Paramount Hosiery, etc., Co. v. Moorhead Knitting Co., D.C., 251 F. 897; Id., 3 Cir., 260 F. 841. We have so far assumed that the method of applying face hardening material to the surface of a drill by incorporating or inclosing it in a mild steel welding rod, the material to be added by melting the rod against the face of the drill to be hardened, was old, as we held in the former case. Stoody Co. v. Mills Alloys, Inc., 9 Cir., 67 F.2d 807. However, as we are now dealing with the facts upon the assumption that the prior decision was not conclusive on that subject, we now point out some of the facts of prior use in proof herein which would cause us to adhere to our former ruling even if we were not bound to do so by the principle of res judicata. The Mills patent, No. 1,650,905 applied for December 21, 1925, issued November 29, 1927, taught the use of a welding rod to apply materials inclosed therein, referred to as a composition. The patent states: “The composition can be such as to provide a wearing layer of high grade alloy steel when welded on worn cutting tools, such as on well drill bits. * * * Of course my invention is not limited to the precise form of container for the composition; in fact, in some instances the container itself enters materially into the ultimate composition of the matter welded. * * * The composition can be such as to alloy with the bar 13 when welded to form a high grade steel alloy, such as tungsten steel, nickel chromium steel, or vanadium steel.” The patent to Jones, No. 1,387,157, applied for September 18, 1918, issued August 9, 1921, taught the method of applying metal alloys for hardening tools by inclosing the alloy in a welding rod and melting it upon the surface of the metal to be treated, by the use of an oxyacetylene or other blow • pipe. The patent states: “Again; all the materials necessary for the depositing of what is known as ‘high speed steel’ may be combined in a welding - rod; for example, a channel section mild steel welding rod with a carbon of cast iron content, and .a suitable proportion of vanadium, -cobalt, tungsten, molybdenum, chromium, aluminum, or the like may be' employed for depositing metal on the cutting parts of tools, dies and the like.” The German patent, No. 427,074, issued to Siemens & Halske, describes the method of producing objects of great hardness from tungsten carbide by placing fine particles or grains thereof in a molten metal or alloy or soft metal or alloys, like iron, nickel, cobalt. The patent discloses that with a. cobalt chomium alloy the tungsten carbide completely dissolves forming a completely homogeneous mass, “while with some other metals we find merely an imbedding.” In an article published in a German publication, Gluckauf, the use of tungsten carbide (“Thoran”) to the surfacing of drilling tools is extensively discussed and the properties of the new alloy (tungsten carbide) ,are particularly described, and its use indicated for the cutting surface of rock drills, the method of its application to such surfaces is by setting and soldering 'into the surface “with brass or.hard solder.” Patent No. 1,698,936, applied for in 1924 and issued June 15, 1929, teaches the embedding of hard crystals of tungsten carbide, and other hard carbides, in a metal .(such as iron) matrix. The patent states: “In addition to Heat resistance, the alloy must also possess abrasive hardness and for this purpose should contain embedded in the metallic matrix hard crystals, usually metallic carbides.” In view of the foregoing there was no invention in the patent method, and the finding of invention cannot be sustained. In view of our conclusion it is unnecessary to discuss other points covered by the briefs. We conclude, first, that the question of invention is not open because the decree in the former case determines that there was no invention; second, that the prior art shown in evidence in this case, even without the aid of the former decree, requires a finding by us of lack of invention, and we do so find; third, that the claims of the patent in suit (Nos. 5, 6, 7, 10, 11, 12, 13, 14, 15, and 17) are invalid. The interlocutory decree is reversed. “ * * * The tube 1 is filled with broken pieces or particles 2 of an alloy, carbide or element such as black diamonds of great hardness and toughness; but we prefer to use an alloy set forth in our eopending application for an alloy, containing tungsten and carbon, serial No. 250,699, filed January 30, 1928. The ends of the tube 1 are preferably pinched together as at 3 so as to confine the particles within the tube. “In the use of the welding rod the tools are faced with a layer or skin of mild steel or metal of which the tube 1 is composed, in which layer the particles or pieces 2 are embedded. We prefer to use an acetylene torch in melting the welding rod. The particles 2 of the alloy or element having a considerable higher melting point than the mild steel of which tube 1 is composed, will not be affected by the acetylene torch. The metal of the tube 1 serves as a binder holding the particles 2 to the face of the tool. The skin or layer of metal in which the particles 2 are embedded is then provided with a surface layer of a hard tool steel, though the second layer of metal may be omitted. The method and resulting product of such facing of tools is described and claimed in our copending application, filed January 30, 1928, serial No. 250,698. The second layer of hard tool steel may be omitted, and the particles 2 embedded in the metal of the welding rod deposited on the face of the tool, may be Used without the second layer of metal, and will produce good results.” “Summing up the prior art it is found that at the time of the appearance of the welding rod of the patent * * * “(1) It was common practice to combine in rod form various steel substances intended for deposit in a weld and to use a steel tube filled with alloying substances for the purpose. “(2) It was known that tungsten carbide could be used advantageously in hard surfacing cutting tools. “(3) It was known that tungsten carbide was not materially affected by a temperature of the degree of the acetylene torch and that it formed a bond with mild steel or other matrix metals. * * * “It is true that the use of the tube of the patent results in a more facile and economical application of the material in a weld. However, in view of the state of the art the step taken did not involve the necessary element of inventive thought, but was an improvement logically coming from workers in the art, who applied their skill and knowledge to a given problem. * * * “The device of the patent is simple, consisting of a tube of mild steel, or other substance having a comparatively low melting point, filled with small particles of tungsten carbide or other substance of a high melting point. It is intended for use in applying a hard facing to cutting tools. In the preferred method of use, the flame of an acetylene torch is applied to bring the surface of the tool to be faced to a welding temperature. After this is done the rod is heated until a portion of the tube is fused and falls down on the prepared surface, carrying with it the particles from the interior. These particles are not materially affected by the heat of the torch. They become embedded in the layer of steel from the tube that is formed on the surface of the tool. In use the hard particles embedded in a matrix of steel form abrasive cutting surfaces which resist wear in the manner of black diamonds. * * * “The prior art * * * “After it was discovered that tungsten carbide was not affected to any appreciable extent by the heat of the acetylene torch, it became customary to secure it in place by flowing mild steel or a hard surfacing alloy around it. A satisfactory bond resulted. * * * “The hot rod method first came in use in 1926. It was. useful in applying small particles of tungsten carbide to tools. The operator would heat a rod of steel to a welding temperature and then touch the hot end of the rod to the small particles of tungsten carbide. The particles would adhere to the rod. The operator would then melt off the end of the rod causing the steel and the tungsten carbide particles to fall on the part to be surfaced. The particles of tungsten carbide were not materially affected by the heat of the torch. * * * “Validity * * * “Hard materials of high melting point, such as tungsten carbide had been previously used for hard surfacing. Hard surfacing materials had been extensively applied by a welding process. Mills, Jones and others had previously used or described tubes filled with materials to be deposited by welding. Tungsten carbide was a comparatively new hard surfacing material, and as soon as it was commercially available in small particles it was an obvious step to place it in a tube of mild steel for convenient use. The character of the weld produced was not new. The previous use of tungsten carbide by imbedding it in steel or by the hot rod had produced the same type of weld, i. e., tungsten carbide embedded in steel. “This result is due to an inherent characteristic of tungsten carbide in that it is not materially affected by ordinary welding temperatures. This incident of the use of tungsten carbide cannot be relied upon to give validity to broad structural claims of the character here in issue * * * The plaintiff’s theory of invention is based upon the differences in melting point as effecting the type of weld produced. * * * ” “Other rods of composite materials were designed for the same use with the exception that the materials formed an alloy when fused during deposition. The Mills Oxite rod is an example. * * * “It was intended that the rod be used with an acetylene torch to produce a homogeneous alloy in the resulting weld. At times the weld produced was rough in appearance due to the failure of all the material to fuse under the heat of the torch. The materials forming the unfused portions of the weld have not been identified. No embedding of hard particles was either intended or appreciably accomplished. The use of the Oxite rod did not anticipate the method of the patent. * * * “In view of the state of the art at the time of the disclosure of the method of the patent it was not known that tungsten carbide and mild steel could be combined together and simultaneously deposited in a weld by the heat of an acetylene torch to produce a weld in which the tungsten carbide particles would be held embedded in a matrix formed by the steel.” “Iron Age,” issue July 16, 1925, article entitled “German Alloy of Diamond Hardness.” See last paragraph note 3. 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:
sc_petitioner	102	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. JONES et al. v. HARRIS ASSOCIATES L. P. No. 08-586. Argued November 2, 2009 Decided March 30, 2010 Auto, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion, post, p. 353. David C. Frederick argued the cause for petitioners. With him on the briefs were Brendan J. Crimmins, Daniel G. Bird, Ernest A. Young, Michael J. Brickman, James C. Bradley, Nina H. Fields, Guy M. Burns, and John M. Greabe. Curtis E. Gannon argued the cause for the United States as amicus curiae supporting petitioners. With him on the brief were Solicitor General Kagan, Deputy Solicitor General Stewart, David M. Becker, Mark D. Cohn, Jacob H. Stillman, and Mark Pennington. John D. Donovan, Jr., argued the cause for respondent. With him on the brief were Robert A. Skinner, Benjamin S. Halasz, Brian R. Blais, Jeffrey A. Lamken, and Aaron M. Streett. Briefs of amici curiae urging reversal were filed for AARP et al. by Jay E. Sushelsky and Michael Schuster; for Law Professors by William A Birdthistle, pro se; for the National Association of Shareholder and Consumer Attorneys by Jerome M. Congress, Anna C. Dover, and Kevin P. Roddy; for the North American Securities Administrators Association, Inc., by Alfred E. T. Rusch; for John C. Bogle by James A. Feldman, Michael Woerner, and Lynn Lincoln Sarko; and for Deborah A. DeMott et al. by Ms. DeMott, pro se, and Jerome A Broadhurst. Briefs of amici curiae urging affirmance were filed for the Cato Institute by Ilya Shapiro and Timothy Sandefur; for the Chamber of Commerce of the United States of America by Richard D. Bernstein, Barry P. Barbash, Mary Eaton, Robin S. Conrad, and Amar D. Sarwal; for Fidelity Management & Research Co. by Stephen M. Shapiro, Andrew J. Pincus, Timothy S. Bishop, James N. Benedict, and Sean M. Murphy; for the Independent Directors Council by Theodore B. Olson and Mark A Perry; for the Investment Company Institute by Seth P. Waxman, Paul R. Q. Wolfson, Rebecca G. Deutsch, Lori A Martin, Paul Schott Stevens, and Karrie McMillan; for Law and Finance Professors and Scholars by Fran ces S. Cohen, W. Hardy Callcott, T. Peter R. Pound, and Jennifer L. Holden; for the Mutual Fund Directors Forum by G. Eric Brunstad, Jr., Ruth S. Epstein, and Susan Ferris Wyderko; and for the Securities Industry and Financial Markets Association by Carter G. Phillips, Jonathan F. Cohn, Robert Pietrzak, and Kevin M. Carroll. Stephen M. Tillery filed a brief for Robert Litan et al. as amici curiae. Justice Alito delivered the opinion of the Court. We consider in this case what a mutual fund shareholder must prove in order to show that a mutual fond investment adviser breached the “fiduciary duty with respect to the receipt of compensation for services” that is imposed by § 36(b) of the Investment Company Act of 1940, 15 U. S. C. § 80a-35(b) (hereinafter § 36(b)). I A The Investment Company Act of 1940, 54 Stat. 789, 15 U. S. C. §80a-l et seq., regulates investment companies, including mutual funds. “A mutual fond is a pool of assets, consisting primarily of [a] portfolio [of] securities, and belonging to the individual investors holding shares in the fund.” Burks v. Lasker, 441 U. S. 471, 480 (1979). The following arrangements are typical. A separate entity called an investment adviser creates the mutual fond, which may have no employees of its own. See Kamen v. Kemper Financial Services, Inc., 500 U. S. 90, 93 (1991); Daily Income Fund, Inc. v. Fox, 464 U. S. 523, 536 (1984); Burks, 441 U. S., at 480-481. The adviser selects the fond’s directors, manages the fund’s investments, and provides other services. See id., at 481. Because of the relationship between a mutual fund and its investment adviser, the fund often “ ‘cannot, as a practical matter sever its relationship with the adviser. Therefore, the forces of arm’s-length bargaining do not work in the mutual fond industry in the same manner as they do in other sectors of the American economy.’” Ibid, (quoting S. Rep. No. 91-184, p. 5 (1969) (hereinafter S. Rep.)). “Congress adopted the [Investment Company Act of 1940] because of its concern with the potential for abuse inherent in the structure of investment companies.” Daily Income Fund, 464 U. S., at 536 (internal quotation marks omitted). Recognizing that the relationship between a fund and its investment adviser was “fraught with potential conflicts of interest,” the Act created protections for mutual fund shareholders. Id., at 536-538 (internal quotation marks omitted); Burks, supra, at 482-483. Among other things, the Act required that no more than 60 percent of a fund’s directors could be affiliated with the adviser and that fees for investment advisers be approved by the directors and the shareholders of the fund. See §§ 10, 15(c), 54 Stat. 806, 813. The growth of mutual funds in the 1950’s and 1960’s prompted studies of the 1940 Act’s effectiveness in protecting investors. See Daily Income Fund, 464 U. S., at 537-538. Studies commissioned or authored by the Securities and Exchange Commission (SEC or Commission) identified problems relating to the independence of investment company boards and the compensation received by investment advisers. See ibid. In response to such concerns, Congress amended the Act in 1970 and bolstered shareholder protection in two primary ways. First, the amendments strengthened the “cornerstone” of the Act’s efforts to check conflicts of interest, the independence of mutual fund boards of directors, which negotiate and scrutinize adviser compensation. Burks, supra, at 482. The amendments required that no more than 60 percent of a fund’s directors be “persons who are interested persons,” e. g., that they have no interest in or affiliation with the investment adviser. 15 U. S. C. §80a-10(a); §80a-2(a)(19); see also Daily Income Fund, supra, at 538. These board members are given “a host of special responsibilities.” Burks, 441 U. S., at 482-483. In particular, they must “review and approve the contracts of the investment adviser” annually, id., at 483, and a majority of these directors must approve an adviser’s compensation, 15 U. S. C. §80a-15(c). Second, § 36(b), 84 Stat. 1429, of the Act imposed upon investment advisers a “fiduciary duty” with respect to compensation received from a mutual fund, 15 U. S. C. §80a-35(b), and granted individual investors a private right of action for breach of that duty, ibid. The “fiduciary duty” standard contained in § 36(b) represented a delicate compromise. Prior to the adoption of the 1970 amendments, shareholders challenging investment adviser fees under state law were required to meet “common-law standards of corporate waste, under which an unreasonable or unfair fee might be approved unless the court deemed it ‘unconscionable’ or ‘shocking,’ ” and “security holders challenging adviser fees under the [Investment Company Act] itself had been required to prove gross abuse of trust.” Daily Income Fund, 464 U. S., at 540, n. 12. Aiming to give shareholders a stronger remedy, the SEC proposed a provision that would have empowered the Commission to bring actions to challenge a fee that was not “reasonable” and to intervene in any similar action brought by or on behalf of an investment company. Id., at 538. This approach was included in a bill that passed the House. H. R. 9510, 90th Cong., 1st Sess., § 8(d) (1967); see also S. 1659, 90th Cong., 1st Sess., § 8(d) (as introduced May 1,1967). Industry representatives, however, objected to this proposal, fearing that it “might in essence provide the Commission with ratemaking authority.” Daily Income Fund, 464 U. S., at 538. The provision that was ultimately enacted adopted “a different method of testing management compensation,” id., at 539 (quoting S. Rep., at 5; internal quotation marks omitted), that was more favorable to shareholders than the previously available remedies but that did not permit a compensation agreement to be reviewed in court for “reasonableness.” This is the fiduciary duty standard in § 36(b). B Petitioners are shareholders in three different mutual funds managed by respondent Harris Associates L. P., an investment adviser. Petitioners filed this action in the Northern District of Illinois pursuant to § 36(b) seeking damages, an injunction, and rescission of advisory agreements between Harris Associates and the mutual funds. The complaint alleged that Harris Associates had violated § 36(b) by charging fees that were “disproportionate to the services rendered” and “not within the range of what would have been negotiated at arm’s length in light of all the surrounding circumstances.” App. 52. The District Court granted summary judgment for Harris Associates. Applying the standard adopted in Gartenberg v. Merrill Lynch Asset Management, Inc., 694 F. 2d 923 (CA2 1982), the court concluded that petitioners had failed to raise a triable issue of fact as to “whether the fees charged... were so disproportionately large that they could not have been the result of arm’s-length bargaining.” App. to Pet. for Cert. 29a. The District Court assumed that it was relevant to compare the challenged' fees with those that Harris Associates charged its other clients. Id., at 30a. But in light of those comparisons as well as comparisons with fees charged by other investment advisers to similar mutual funds, the court held that it could not reasonably be found that the challenged fees were outside the range that could have been the product of arm’s-length bargaining. Id., at 29a-32a. A panel of the Seventh Circuit affirmed based on different reasoning, explicitly “disapprov[ing] the Gartenberg approach.” 527 F. 3d 627, 632 (2008). Looking to trust law, the panel noted that, while a trustee “owes an obligation of candor in negotiation,” a trustee, at the time of the creation of a trust, “may negotiate in his own interest and accept what the settlor or governance institution agrees to pay.” Ibid, (citing Restatement (Second) of Trusts §242, and Comment /). The panel thus reasoned that “[a] fiduciary duty differs from rate regulation. A fiduciary must make foil disclosure and play no tricks but is not subject to a cap on compensation.” 527 F. 3d, at 632. In the panel’s view, the amount of an adviser’s compensation would be relevant only if the compensation were “so unusual” as to give rise to an inference “that deceit must have occurred, or that the persons responsible for decision have abdicated.” Ibid. The panel argued that this understanding of § 36(b) is consistent with the forces operating in the contemporary mutual fond market. Noting that “[tjoday thousands of mutual funds compete,” the panel concluded that “sophisticated investors” shop for the funds that produce the best overall results, “mov[e] their money elsewhere” when fees are “excessive in relation to the results,” and thus “create a competitive pressure” that generally keeps fees low. Id., at 633-634. The panel faulted Gartenberg on the ground that it “relies too little on markets.” 527 F. 3d, at 632. And the panel firmly rejected a comparison between the fees that Harris Associates charged to the funds and the fees that Harris Associates charged other types of clients, observing that “[djifferent clients call for different commitments of time” and that costs, such as research, that may benefit several categories of clients “make it hard to draw inferences from fee levels.” Id., at 634. The Seventh Circuit denied rehearing en banc by an equally divided vote. 537 F. 3d 728 (2008) (per curiam). The dissent from the denial of rehearing argued that the panel’s rejection of Gartenberg was based “mainly on an economic analysis that is ripe for reexamination.” 537 F. 3d, at 730 (opinion of Posner, J.). Among other things, the dissent expressed concern that Harris Associates charged “its captive funds more than twice what it charges independent funds,” and the dissent questioned whether high adviser fees actually drive investors away. Id., at 731. We granted certiorari to resolve a split among the Courts of Appeals over the proper standard under § 36(b). 556 U. S. 1104 (2009). II A Since Congress amended the Investment Company Act in 1970, the mutual fund industry has experienced exponential growth. Assets under management increased from $38.2 billion in 1966 to over $9.6 trillion in 2008. The number of mutual fund investors grew from 3.5 million in 1965 to 92 million in 2008, and there are now more than 9,000 open- and closed-end funds. During this time, the standard for an investment adviser’s fiduciary duty has remained an open question in our Court, but, until the Seventh Circuit’s decision below, something of a consensus had developed regarding the standard set forth over 25 years ago in Gartenberg, 694 F. 2d 923. The Gartenberg standard has been adopted by other federal courts, and “[t]he SEC’s regulations have recognized, and formalized, GartenbergASke factors.” Brief for United States as Amicus Curiae 23. See 17 CFR §240.14a-101, Sched. 14A, Item 22, par. (c)(ll)(i) (2009); 69 Fed. Reg. 39801, n. 31, 39807-39809 (2004), In the present case, both petitioners and respondent generally endorse the Gartenberg approach, although they disagree in some respects about its meaning. In Gartenberg, the Second Circuit noted that Congress had not defined what it meant by a “fiduciary duty” with respect to compensation but concluded that “the test is essentially whether the fee schedule represents a charge within the range of what would have been negotiated at arm's-length in the light of all of the surrounding circumstances.” 694 F. 2d, at 928. The Second Circuit elaborated that, “[t]o be guilty of a violation of § 36(b),... the adviser-manager must charge a fee that is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm's-length bargaining” Ibid. “To make this determination,” the court stated, “all pertinent facts must be weighed,” id., at 929, and the court specifically mentioned “the adviser-manager's cost in providing the service,... the extent to which the adviser-manager realizes economies of scale as the fund grows larger, and the volume of orders which must be processed by the manager,” id., at 930. Observing that competition among advisers for the business of managing a fund may be “virtually nonexistent,” the court rejected the suggestion that “the principal factor to be considered in evaluating a fee's fairness is the price charged by other similar advisers to funds managed by them,” although the court did not suggest that this factor could not be “taken into account.” Id., at 929. The court likewise rejected the “argument that the lower fees charged by investment advisers to large pension funds should be used as a criterion for determining fair advisory fees for money market funds,” since a “pension fund does not faee the myriad of daily purchases and redemptions throughout the nation which must be handled by [a money market fund].” Id., at 930, n. 3. B The meaning of § 36(b)'s reference to “a fiduciary duty with respect to the receipt of compensation for services” is hardly pellucid, but based on the terms of that provision and the role that a shareholder action for breach of that duty plays in the overall structure of the Act, we conclude that Gartenberg was correct in its basic formulation of what § 36(b) requires: To face liability under § 36(b), an investment adviser must charge a fee that is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm’s-length bargaining. 1 We begin with the language of § 36(b). As noted, the Seventh Circuit panel thought that the phrase “fiduciary duty” incorporates a standard taken from the law of trusts. Petitioners agree but maintain that the panel identified the wrong trust-law standard. Instead of the standard that applies when a trustee and a settlor negotiate the trustee’s fee at the time of the creation of a trust, petitioners invoke the standard that applies when a trustee seeks compensation after the trust is created. Brief for Petitioners 20-23, 35-37. A compensation agreement reached at that time, they point out, “‘will not bind the beneficiary’ if either ‘the trustee failed to make a full disclosure of all circumstances affecting the agreement’” which he knew or should have known or if the agreement is unfair to the beneficiary. Id., at 23 (quoting Restatement (Second) of Trusts §242, Comment i). Respondent, on the other hand, contends that the term “fiduciary” is not exclusive to the law of trusts, that the phrase means different things in different contexts, and that there is no reason to believe that § 36(b) incorporates the specific meaning of the term in the law of trusts. Brief for Respondent 34-36. We find it unnecessary to take sides in this dispute. In Pepper v. Litton, 308 U. S. 295 (1939), we discussed the meaning of the concept of fiduciary duty in a context that is analogous to that presented here, and we also looked to trust law. At issue in Pepper was whether a bankruptcy court could disallow a dominant or controlling shareholder’s claim for compensation against a bankrupt corporation. Dominant or controlling shareholders, we held, are “fiduciaries]” whose “powers are powers [held] in trust.” Id., at 306. We then explained: “Their dealings with the corporation are subjected to rigorous scrutiny and where any of their contracts or engagements with the corporation is challenged the burden is on the director or stockholder not only to prove the good faith of the transaction but also to show its inherent fairness from the viewpoint of the corporation and those interested therein.... The essence of the test is whether or not under all the circumstances the transaction carries the earmarks of an arm’s length bargain. If it does not, equity will set it aside.” Id., at 306-307 (emphasis added; footnote omitted); see also Geddes v. Anaconda Copper Mining Co., 254 U. S. 590, 599 (1921) (standard of fiduciary duty for interested directors). We believe that this formulation expresses the meaning of the phrase “fiduciary duty” in § 36(b), 84 Stat. 1429. The Investment Company Act modifies this duty in a significant way: It shifts the burden of proof from the fiduciary to the party claiming breach, 15 U. S. C. §80a-35(b)(l), to show that the fee is outside the range that arm’s-length bargaining would produce. The Gartenberg approach fully incorporates this understanding of the fiduciary duty as set out in Pepper and reflects §36(b)(l)’s imposition of the burden on the plaintiff. As noted, Gartenberg insists that all relevant circumstances be taken into account, see 694 F. 2d, at 929, as does § 36(b)(2), 84 Stat. 1429 (“[A]pproval by the board of directors... shall be given such consideration by the court as is deemed appropriate under all the circumstances” (emphasis added)). And Gartenberg uses the range of fees that might result from arm’s-length bargaining as the benchmark for reviewing challenged fees. 2 Gartenberg’s approach also reflects §36(b)’s place in the statutory scheme and, in particular, its relationship to the other protections that the Act affords investors. Under the Act, scrutiny of investment-adviser compensation by a fully informed mutual fund board is the “cornerstone of the... effort to control conflicts of interest within mutual funds.” Burks, 441 U. S., at 482. The Act interposes disinterested directors as “independent watchdogs” of the relationship between a mutual fund and its adviser. Id., at 484 (internal quotation marks omitted). To provide these directors with the information needed to judge whether an adviser’s compensation is excessive, the Act requires advisers to furnish all information “reasonably... necessary to evaluate the terms” of the adviser’s contract, 15 U. S. C. §80a-15(c), and gives the SEC the authority to enforce that requirement. See §80a-41. Board scrutiny of adviser compensation and shareholder suits under § 36(b), 84 Stat. 1429, are mutually reinforcing but independent mechanisms for controlling conflicts. See Daily Income Fund, 464 U. S., at 541 (Congress intended for § 36(b) suits and directorial approval of adviser contracts to act as “independent checks on excessive fees”); Kamen, 500 U. S., at 108 (“Congress added § 36(b) to the [Act] in 1970 because it concluded that the shareholders should not have to rely solely on the fund’s directors to assure reasonable adviser fees, notwithstanding the increased disinterestedness of the board” (internal quotation marks omitted)). In recognition of the role of the disinterested directors, the Act instructs courts to give board approval of an adviser’s compensation “such consideration... as is deemed appropriate under all the circumstances.” § 80a-35(b)(2). Cf. Burks, supra, at 485 (“[X]t would have been paradoxical for Congress to have been willing to rely largely upon [boards of directors as] ‘watchdogs' to protect shareholder interests and yet, where the ‘watchdogs’ have done precisely that, require that they be totally muzzled”). From this formulation, two inferences may be drawn. First, a measure of deference to a board’s judgment may be appropriate in some instances Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_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). PARKER v. COMMISSIONER OF INTERNAL REVENUE. No. 9792. Circuit Court of Appeals, Ninth Circuit. Aug. 20, 1941. Adolphus E. Graupner and Louis Janin, both of San Francisco, Cal., for petitioner. Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, A. F. Prescott, S. Dee Hanson, and Carl Marold, Sp. Assts. to Atty. Gen., for respondent. Before WILBUR, MATHEWS, and HEALY, Circuit Judges. HEALY, Circuit Judge. The proceeding is for a review of a decision of the Board of Tax Appeals. It involves an asserted transferee liability on the part of the petitioner, Parker, under the provisions of § 311(a) (1) of the Revenue Act of 1932, 26 U.S.C.A. Int.Rev. Acts, page 569. The case is a companion case to Tooley v. Commissioner, 9 Cir., 121 F.2d 350, decided June 10, 1941. The essential facts as found by the Board are as follows: For many years prior to March 1, 1934, James M. Botts was president of the American Marine Paint Company. Parker was vice-president. In 1922 Botts made a will containing a bequest to Parker, “as a mark of appreciation for his loyal and faithful service and friendship”, of 20 percent of the stock of the company “which shall stand in my name upon the books of said corporation at the time of my death.” On July 12, 1933, there were 1,980 shares of the capital stock of the company outstanding, of which 1,749 shares stood in the name of Botts and 204 shares in the name of C. M. Botts, his wife.' Botts and his wife had contemplated placing their stock in a joint tenancy with right of survivor-ship. On the date last mentioned the two surrendered their certificates, and certificates bearing that date were issued for 1,958 shares to J. M. Botts and C. M. Botts “as joint tenants with right of survivor-ship”. On March 1, 1934, Botts died testate. Within a few days after his death his widow placed the certificates in the stock book marked “cancelled” and caused the 1958 shares to be issued to herself. On March 15, 1934, Mrs. Botts filed a joint income return of herself and husband for the year 1933. The Commissioner later assessed against the estate of Botts deficiencies in income taxes for that year. One of these assessments in an amount exceeding $16,000 remains unpaid. Notice of the deficiency was given to Parker and others as transferees of the estate of James M. Botts, asserting transferee liability. The Board found Parker liable as a transferee on the basis of the following circumstances: In April, 1934, the will of James M. Botts, containing the bequest aforesaid, was filed for probate in the superior court of California and an executor was appointed. In the original inventory of the estate property in the hands of the executor was appraised at less than $2,-000, the stock in the Paint Company not being included. In 1936 an amended inventory was filed which included 1,749 shares which had been issued to Botts and his wife as joint tenants. The shares were appraised at a valuation in excess of $100 each. In the final account these shares were charged to the executor, and thereafter, on August 4, 1936, the superior court ordered final distribution of the estate, the decree providing for distribution to Parker of 390.5 shares and to the widow 1,358.5 shares. Parker formally acknowledged receipt of these shares. Two days after the entry of the decree of distribution the shares were divided in this manner: The certificates theretofore held by the widow were surrendered and new certificates issued to her and to Parker for the respective amounts specified in the decree. On the stub of the certificates which Mrs. Botts had caused to be issued to herself upon the death of her husband appears the notation “cancelled — issued by mistake”. Long prior to Botts’ death Parker had been informed that he would receive 20 percent of the company’s stock when Botts died. At the time the shares were issued to Botts and his wife as joint tenants the two informed-Parker that he would still receive his 20 percent. After Botts died his widow told Parker that her husband’s wish would be carried out. In Tooley v. Commissioner, supra, we determined that Mrs. Botts was not liable as a transferee of the stock, holding that under the California law she took as survivor of the joint tenancy, not as a transferee of her deceased co-tenant; and that since the California court, acting in probate, had authority to distribute only such title as existed in the decedent, its decree purporting to distribute the stock was not, as the Board of Tax Appeals supposed, an adjudication of the title. Further, that the distributees might show in a collateral proceeding that in fact the estate had no title. The ground covered in that decision need not be gone over again. The burden was on the Commissioner to show transferee liability “at law or in equity”; and in respect of Parker such liability must be, found, if at all, in his status as a distributee of the estate of the taxpayer, James M. Botts. It is not contended that there was any liability otherwise. Parker was not an heir of Botts and there was no showing that he received the stock in compromise of any claim under the latter’s will. Lyeth v. Hoey, 305 U.S. 188, 59 S.Ct. 155, 83 L.Ed. 119, 119 A.L.R. 410, upon which the Commissioner relies, is not in point. Nor could he have taken pursuant to the will, for, as was held in the Tooley case, supra, Mrs. Botts’ title to the whole number of shares had become vested as of the time of the creation of the joint tenancy, and no shares stood in the name of Botts at the time of his death. It necessarily follows that Parker received his stock as a gift from Mrs. Botts, not as a transferee of property of the taxpayer. Notwithstanding the formality of the decree of distribution, Parker was free to show the true source of the title. Reversed. The statute provides a summary method of enforcing “the liability, at law or in equity, of a transferee of property of a taxpayer, in respect of the tax * * * imposed upon the taxpayer by this title”. Subdivision (f) defines the term transferee as including “heir, legatee, devisee, and distributee.” Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_appel1_1_3	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. WESTERN CASUALTY AND SURETY COMPANY, a corporation, Appellant, v. Walter S. BROOKS, Trustee, Appellee. In the Matter of BRUNS COAL COMPANY, Inc. a corporation, d/b/a Bolt Mining Company, Bankrupt. No. 10236. United States Court of Appeals Fourth Circuit. Argued March 10, 1966. Decided June 1, 1966. Charles W. Yeager, Charleston, W. Va., and Joseph F. Hogan, Columbus, Ohio, for appellant. Robert J. Ashworth, Beckley, W. Va., for appellee. Before SOBELOFF, Circuit Judge, MARVIN JONES, Senior Judge, United States Court of Claims, and J. SPENCER BELL, Circuit Judge. Sitting by designation of the Chief Justice. MARVIN JONES, Senior Judge: The question presented on this appeal is the right of a surety on two public construction contracts, both performed by the same contractor, to setoff losses incurred on one bond with the excess realized on the other. In the bankruptcy proceedings against the contractor, the Referee held that the surety had no right of setoff, and therefore should surrender to the trustee the $23,882.26 excess realized on one contract. The District Court affirmed and this appeal followed. We affirm. The facts in this case, as stipulated by the parties, are briefly as follows: In 1958 the bankrupt, Bruns Coal Company, Inc., contracted with the State of Ohio to perform two separate road construction projects — Projects 24 and 37. Each contract was signed independently of the other and covered work in separate counties. As a prerequisite to entering into these two contracts, the contractor was required by State statute to execute a separate performance-payment bond for each contract. This was done, with the appellant becoming surety on both bonds. In the applications for these bonds, the contractor-principal assigned to the surety as collateral security all sums in the hands of the obligee-State and due to the contractor at the time of any breach, or which might become due thereafter. These agreements further provided that the assigned funds could be used by the surety to offset losses incurred on the individual bond or on any other bond between the two parties. The assignments were never recorded as required by State law. By the end of 1960 the contractor had completed all required construction work on the two projects. However, it had failed to pay certain subcontractors, laborers, and materialmen, who, in accordance with State law, filed mechanic’s liens with the State notifying it of the debts owed by the contractor. This statute further provided that the State, upon receipt of these lien notices, was to withhold all subsequent payments becoming due to the contractor until the laborers and materialmen had been paid. If payment did not follow, the State was to make payments directly to the laborers and materialmen out of the retained funds. If this latter course was not followed, the statute permits the unpaid parties to recover against the State up to, but not exceeding, the balance due to the contractor. Upon receipt of these various liens on the two projects, the State withheld all further payments to the contractor. The surety then proceeded to satisfy these various claims as it was obligated by the bond agreement and by State statute. By August 1962 all claims arising under both contracts had been paid by the surety. In December 1960 the contractor directed the State, by letter, to send all future payments falling due on each contract to the surety. This was done, and between December 8, 1961 and June 11, 1962 the surety received a total of $103,-414.87 from the State: $87,141.69 on Project 24 and $16,273.18 on Project 37. The payments the surety was required to make on Project 24 totaled $63,259.43, thereby leaving an excess on that bond of $23,882.26. However, the payments on Project 37 totaled $160,702.45, thereby causing a loss of $144,429.27. An involuntary petition in bankruptcy was filed against the contractor on March 15, 1962. This date was within 4 months of the receipt of the first payments by the surety from the retained funds in the hands of the State. The contractor was adjudged a bankrupt on April 9,1962 and the trustee in bankruptcy filed a petition for turnover of all the sums received by the surety from the State — $103,414.87, claiming these payments were voidable preferences under Section 60 of the Bankruptcy Act. It was decided by the Referee in Bankruptcy that the assignments made to the surety in the bond applications, not having been recorded in accordance with State law, were invalid as against the trustee in bankruptcy. Section 70c of the Bankruptcy Act. The Referee further held that the $103,414.87 in payments received by the surety within 4 months of the filing of the involuntary petition in bankruptcy were voidable preferences under Section 60 of the Bankruptcy Ait, unless the equitable doctrine of subrogation could be made applicable. On this latter point, both the Referee and the District Court agreed that- subrogation was applicable on each bond to the extent of the claims made by laborers and material-men on that particular bond. In other words, the surety was not permitted to apply the $23,882.26 in excess payments realized on Project 24 to offset either its legal or miscellaneous expenses on that project or its losses on Project 37. The surety has not appealed the decision holding the assignments invalid, or the determination that the payments were voidable preferences if subrogation is inapplicable to the $23,882.26. Likewise, the trustee in bankruptcy has not appealed the decision that the surety is legally entitled to $79,532.61 of the payments via subrogation. Therefore, the sole issue raised by this appeal is whether the appellant-surety is entitled to the $23,882.26 excess realized on the Project 24 bond, by way of subrogation. It is now settled law, since the decision in Pearlman v. Reliance Ins. Co., 371 U.S. 132, 83 S.Ct. 232, 9 L.Ed.2d 190 (1962), that when a surety meets its obligations on a contract bond by paying the claims of the laborers and materialman, it subrogates to whatever rights the owner (State), contractor, and laborers and materialmen had in the retained funds, “to the extent necessary to reimburse it.” And since this “equitable right” of the surety to the fund relates back to the date of the surety bond, it entitles the surety to priority in payment over all subsequent lienholders and general creditors. By the surety’s acquiring this equitable interest in the retained funds, “this property interest of the surety never became a part of the bankruptcy estate to be administered, liquidated, and distributed to general creditors of the bankrupt.” In the only pronouncement by the Supreme Court of Ohio related to this question, State ex rel. Southern Surety Co. v. Schlesinger, 114 Ohio St. 323, 151 N.E. 177, 45 A.L.R. 371 (1926), it was held that the surety on a performance bond, upon completing the performance of the contract (not the payment of claims by laborers and materialmen) was subrogated to the rights of the State in the retained funds. It may therefore be inferred that the Ohio Supreme Court would also apply the doctrine of subrogation where the surety acts on the payment bond to pay off the claims of laborers and materialmen. The right of subrogation is an equitable doctrine, designed to perform substantial justice. “[I] t goes no farther than the strict demands of equity and justice demand.” First Nat’l Bank of Seattle v. City Trust, Safe Deposit & Surety Co., 114 F. 529, 533 (9 Cir. 1902). The doctrine entails the right of “a surety who pays the debt of another * * * to [assert] all the rights of the person he paid to enforce his right to be reimbursed.” Pearlman v. Reliance Ins. Co., supra, at 137, 83 S.Ct. at 235. It is clear from the foregoing that the surety cannot, by way of subrogation, assert any greater rights than the creditor in whose shoes it is substituted. The surety has paid under legal obligation the debt of another (the contractor), and so is allowed to succeed to the rights of the creditor (laborers and material-men) in enforcing the collection of the debt so that the party primarily answerable on the debt, and who in equity and good conscience should pay the debt, will feel the ultimate expense. The appellant-surety cannot, therefore, by subrogation retain any of the funds on either project which are in excess of the claims of the laborers and materialmen on that individual project — claims paid by the surety under each separate bond. If the surety were allowed to offset either legal and miscellaneous expenses on the excesses received from Project 24, or the losses incurred on Project 37, the outcome would be contrary to the equal equities which other general creditors have in the property of the bankrupt. The mere fact that both these construction bonds had the same principal (contractor) and were executed by the same surety should not alter the result. Each contract and each bond was executed separately; each applied to a separate road construction job in a different county ; and the retained funds on each project were separate and distinct. The doctrine of subrogation arises out of the unpaid debts on each contract; relates back in time to the execution of that specific bond; and is limited in scope to the debts arising under one contract. The appellant-surety, however, has attempted to expand the scope of subrogation in this case through an application of its own interpretations of the Supreme Court decisions in United States v. Mun-sey Trust Co., 332 U.S. 234, 67 S.Ct. 1599, 91 L.Ed. 2022 (1947), and Pearlman v. Reliance Ins. Co., supra. In Mimsey it was held that the Government, as a debt- or of the contractor, “could offset against the contractor a claim bearing no relationship” to the fund being withheld. This offset of a portion of the retained fund took precedence over the right of the surety to the fund by way of subro-gation. In Pearlman the appellant relies on the language that the “Government had a right to use the retained fund to pay laborers and materialmen * * [371 U.S. at 141, 83 S.Ct. at 237.] And that the surety, upon payment of the claims, subrogates to this right of the Government. The appellant argues as follows: Since the Government has a right to pay off these debts of the bankrupt-contractor, and in so doing could offset its losses on one with the excesses on the other (a “claim” against the contractor as in Munsey), the surety by subrogating to the rights of the Government in the fund should be permitted the same right of offset. This is untenable. Neither the Federal Government under the Miller Act nor the State of Ohio under its laws has any obligation, legal or equitable, to insure that the laborers and materialmen are paid, when to do so would require payments in excess of the retained funds on each contract. The Ohio statute, note 5, supra, is explicit on this point and the Miller Act does not even allow a suit against the Government. Therefore, even if the State of Ohio did decide to pay the laborers and materialmen on the two contracts, these payments would only go to the extent of the retained funds on that particular contract. Any excesses would be turned over to the trustee in bankruptcy. There would, therefore, be no claim arising in the State against the contractor that could be offset against the excess funds from Project 24. In the instant case, as in Pearlman, the State is merely a “stakeholder.” It possesses no legal claim, as in Munsey, which could be set off against the retained funds. Someone other than the State is entitled to receive the funds on each project, and the sole interest of the State is to insure that the laborers and materialmen have been paid. If these claims have not been satisfied, the remaining funds on the contract under which their claims arose will be used to help satisfy the claims. If their claims have been met by either the contractor or the surety, then the funds will be given over to whichever of these two parties made the payments — to the extent of the retainages on each project for the claims made thereon. It should also be noted that in the Munsey case, upon which appellant places such heavy reliance, there also were several payment bonds covering various contracts between the United States and the same contractor. Each bond in that case was likewise with the same surety, as in our fact situation. The contractor in Munsey completed the performance on all six contracts but failed to pay the laborers and materialmen on five of the six projects. The reimbursement sought by the surety in the Court of Claims was for recovery on each of the five contracts under which a default in payment occurred, to the extent of the payments made on each particular contract. The excesses on each of the five funds were not claimed nor was a claim made on the fund remaining on the sixth contract — even though the surety’s over-all losses were greater than all the retained funds on all six contracts. Statements were made in both the opinion of the Court of Claims and in a footnote in the Supreme Court decision, that this formulation of the surety’s claim was correct. Setoff would not be an allowable remedy. For the above reasons we agree with the well-reasoned opinion of the Referee in Bankruptcy, as affirmed by the District Court, that the surety cannot by sub-rogation or assignment claim any rights in the $23,882.26 excess realized on Project 24. The decision of the lower court is affirmed. Affirmed. . Project 24 was signed on April 29, 1958 and covered road work in Lawrence County; whereas, Project 37 related to work in Ashtabula County and was dated May 27, 1958. . Ohio Revised Code, § 153.54, provides in part that a public contractor shall be required to execute: “ * * * the usual bond as provided for by law with good and sufficient sureties, with an additional obligation for the payment by the contractor * * * for all labor performed or materials and tools furnished * * This statutory requirement for performance-payment bonds is similar to requirements of the Miller Act on Federal building contracts, Sec. 1(a), 49 Stat. 793 (1935), 40 U.S.C. § 270a (1964). . The bond on Project 24 was executed on March 3, 1958 in the amount of $1,403,-600. The Project 37 bond was for $2,728,-450 and was signed on March 27, 1958. . Ohio Revised Code, §§ 1325.01-1325.04, requires notice to be filed with the county recorder of all assignments of an account receivable. If this recording is not done “prior to, or contemporaneously with, the assigning of the account receivable,” the assignee is not protected from the claim of any party other than the assignor. Bender v. Vaughan, 106 Ohio App. 136, 153 N.E.2d 778 (1958). . Ohio Revised Code, §§ 1311.26, 1311.28, 1311.32. By requiring the State to make direct payments to the unpaid laborers and ma-terialmen, upon refusal of the contractor to make payments, and permitting suit against the State to the extent of the unpaid funds in the hands of the State, the Ohio statute differs from the Federal Miller Act. Under the latter statute, the laborer’s or materialman’s sole means of recovery is against the surety in Federal District Court. 49 Stat. 794, 40 U.S.C. § 270b (1964). . Ohio Revised Code, § 153.56, permits the laborers and materialmen to bring suit against the surety on the payment bond if the surety fails to pay their claims once notified of the amounts owed. . 30 Stat. 562, as amended, 11 U.S.O. § 96 (1964), provides, in part, for the avoidance by the trustee in bankruptcy of any preference (a transfer of the debtor’s property to satisfy an antecedent debt within 4 months of the filing of the petition in bankruptcy and while the debtor was insolvent) if the creditor, at the time of transfer, had “reasonable cause to believe that the debtor is [was] insolvent.” . 30 Stat. 565, as amended, 11 U.S.O. § 110(c) (1964), provides in part: “The trustee, as to all property, whether or not coming into possession or control of the court, upon which a creditor of the bankrupt could have obtained a lien by legal or equitable proceedings at the date of bankruptcy, shall be deemed vested as of such date with all the rights, remedies, and powers of a creditor then holding a lien thereon by such proceedings, whether or not such a creditor actually exists.” See Lewis v. Manufacturers Nat’l Bank, 364 U.S. 603, 81 S.Ct. 347, 5 L.Ed.2d 323 (1961); In Re Collins & Kiser Constr. Co., 204 F.Supp. 42, 45 (S.D. Iowa 1962), aff’d, Employers Mut. Cas. Co. v. Hinshaw, 309 F.2d 806 (8 Cir. 1962). If the surety had recorded the assignment on the Project 24 bond, it is undisputed that appellant would then he legally entitled to the excess funds arising thereon. For a discussion by the Ohio Court of Appeals dealing with the State’s recording statute and its effect on assignments, see Bender v. Vaughan, 106 Ohio App. 136, 153 N.E.2d 778 (1958). . If the surety is not entitled to the $23,-882.26 by way of subrogation, it will be required to seek payment on its claim as a general creditor, sharing on an equality with them. Sec. 64, 30 Stat. 563, as amended, 11 U.S.O. § 104 (1964). . Prior to the decision in Pearlman v. Reliance Ins. Co., 371 U.S. 132, 83 S.Ct. 232, 9 L.Ed.2d 190 (1962), the Ninth and Tenth Circuits had construed the opinion in United States v. Munsey Trust Co., 332 U.S. 234, 67 S.Ct. 1599, 91 L.Ed. 2022 (1947), as denying the surety any equitable right of subrogation in the retained funds. American Sur. Co. of New York v. Hinds, 260 F.2d 366 (10 Cir. 1958) ; Phoenix Indem. Co. v. Earle, 218 F.2d 645 (9 Cir. 1955). See generally, Note, 71 Yale L.J. 1274 (1962). . This Supreme Court decision is case-noted in 61 Mich.L.Rev. 402 (1962). . “We therefore hold in accord with the established legal principles stated above that the Government had a right to use the retained fund to pay laborers and ma-terialmen : that the laborers and material-men had a right to be paid out of the fund; that the contractor, had he completed his job and paid his laborers and materialmen, would have become entitled to the fund; and that the surety, having paid the laborers and materialmen, is entitled to the benefit of all these rights to the extent necessary to reimburse it.” Pearlman v. Reliance Ins. Co., supra, n. 10, at 141, 83 S.Ct. at 237. There is some controversy in the cases and the published legal articles as to just what rights the surety subrogates to; those of the laborers and materialmen or those of the owner (State). See e. g., Pearlman v. Reliance Ins. Co., supra, at 142, 83 S.Ct. at 237 (concurring opinion) ; Continental Cas. Co. v. United States, 169 F.Supp. 945, 145 Ct.Cl. 99 (1959). See generally, Gleick, The Rights and Status of Sureties in Bankruptcy Cases of Contractors, 34 Fordham L.Rev. 451 (1966) ; Speidel, “Stakeholder” Payments Under Federal Construction Contracts : Payment Bond Surety vs. As-signee, 47 Va.L.Rev. 640 (1961). . Pearlman v. Reliance Ins. Co., supra, n. 10, at 138, 83 S.Ct. 232. . Gray v. Travelers Indem. Co., 280 F.2d 549, 552 (9 Cir. 1960). . See generally, Note 71 Yale L.J. 1274, 1288-89 (1962). . Pearlman v. Reliance Ins. Co., supra, n. 10, at 136, 83 S.Ct. at 234. . State law is controlling on this question of the property rights of the contractor at the time of bankruptcy (subrogation), as it also is on the question of the validity of an unrecorded assignment as to the trustee in bankruptcy. Cf. Corn Exchange Nat’l Bank & Trust Co., Philadelphia v. Klauder, 318 U.S. 434, 436-437, 63 S.Ct. 679, 87 L.Ed. 884 (1943). . “The right of subrogation is not founded on contract. It is a creature of equity; is enforced solely for the purpose of accomplishing the ends of substantial justice ; and is independent of any contractual relations between the parties.” Memphis & L. R. R. v. Dow, 120 U.S. 287, 301-302, 7 S.Ct. 482, 488, 30 L.Ed. 595 (1887). . Subrogation is “the substitution of another person in the place of the creditor, to whose rights he succeeds in relation to the debt.” 2 Bouv. Law Dict. (8th ed. Rawle’s 3d rev. 1914). . Black, Law. Dictionary 1595 (4th ed. 1951). . A similar result was reached in Lacy v. Maryland Casualty Co., 32 F.2d 48 (4 Cir. 1929), where the surety on two state road construction contracts was required to complete performance on both projects and attempted to setoff losses on one with the excess funds realized on the other. The Court denied the surety any right of offset via subrogation, but did allow it on the basis of a valid assignment — the latter not being present in the instant case. In First Nat. Bank of Seattle v. City Trust, Safe Deposit & Surety Co., 114 F. 529 (9 Cir. 1902), the Court denied the surety a profit on the bond and directed the excess funds to be paid to another creditor. See generally, Gleick, 34 Fordham L.Rev. 451, 462-63 (1966); 17 Am.Jur.2d Contractors’ Bonds § 112, n. 11 (1964) ; Annotation, 45 A.L.R. 383 (1926). . Pearlman v. Reliance Ins. Co., supra, n. 10, at 140, 83 S.Ct. at 237. . This equitable obligation of the Government to see that the laborers and ma-terialmen are paid, to the extent of retained funds, derives from the payment bond which is required by statute and which fixes for the contractor, as one of its obligations on the contract to the Government, the payment of all laborers and materialmen. Therefore, when the surety fulfills this obligation to the Government, it subrogates to the rights of the Government in the fund. Since the State of Ohio has a similar statutory requirement of a payment bond and, in addition, has a legal obligation to pay the laborers and materialmen out of the retainages if they are not otherwise paid, the surety in this case can be held to have subrogated to the rights of the State in the retained funds — as well as the rights of the laborers and materialmen in the fund. See generally Gleick, 34 Fordham L.Rev. 451 (1966) ; Note, 71 Yale L.J. 1274 (1962). . See nn. 5 and 23, supra. . The surety has a right to “make demand and to receive any balances due under the contracts, to the extent of such , balances or to the extent of the payments so made * * Munsey Trust Co. of Washington, D. C. v. United States, 67 F.Supp. 976, 982, 107 Ct.Cl. 131, 148 (1946), rev’d on other grounds, 332 U.S. 234, 67 S.Ct. 1599, 91 L.Ed. 2022 (1947). . United States v. Munsey Trust Co., supra, n. 10, at 238, n. 3, 67 S.Ct. at 1601. “The surety did not and could not claim the whole amount retained by the government. The payments for which it was liable and which it paid, on two of the contracts exceeded, and, on the other four, were less than, the amounts retained on each particular contract.” . See n. 21, supra. Cf., United Pacific Ins. Co. v. First Nat’l Bank, 222 F.Supp. 243, 250 (D.Or.1963) ; Continental Cas. Co. v. United States, 169 F.Supp. 945, 947, 145 Ct.Cl. 99, 103 (1959) ; Union Stone Co. v. Board of Chosen Freeholders, 71 N.J.Eq. 657, 65 A. 466, 471 (1906). Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_circuit	A	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. EVERLASTING DEVELOPMENT CORP. et al. v. SOL LUIS DESCARTES et al. No. 4572. United States Court of Appeals First Circuit. Nov. 2, 1951. Rehearing Denied Nov. 30, 1951. • William G. Grant, Atlanta, Ga., and Walter L. Newsom, Jr., San Juan, P. R. (Robert M. Hollings, Charleston, S. C., and Francisco Ponsa-Feliu, San Juan, P. R., on the brief), for appellants. Abe Fortas, Sp. Asst. Atty. Gen. of Puerto Rico (Victor Gutierrez Franqui, Atty. Gen. of Puerto Rico, and Jose Trias-Monge, Sp. Asst. Atty. Gen. of Puerto Rico, and Arnold, Fortas & Porter, Washington, D. C., on the brief), for appellees. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. MAGRUDER, Chief Judge. This is an appeal from a judgment of the United States District Court for the District o-f Puerto' Rico dismissing a complaint asking for a declaratory judgment that the plaintiffs are entitled to tax exemption under a Puerto Rican statute. The district court dismissed the complaint under the view that the suit was in substance one to restrain the assessment and collection of insular taxes, and that such suit could not be entertained in the federal court in view of the prohibition of the Butler Act, 44 Stat. 1421, 48 U.S.C.A. § 872. For the opinion below see D.C., 95 F.Supp. 954. The complaint was filed March 3, 1950. Joined as plaintiffs were Everlasting Development Corporation and Long Corporation, both organized and existing under the laws of Puerto Rico, and L. D.. Long individually (a citizen of South Carolina and during the times here involved a resident of Puerto- Rico) as majority stockholder of the two corporate plaintiffs. The defendants named were seven individuals, the heads of the executive departments of the Government of Puerto Rico, in their capacity as members of the Executive Council of Puerto Rico, 46 Stat. 1168, 48 U.S.C.A. §§ 773, 775-777, 784, 784a. There being no- diversity of citizenship, jurisdiction of the complaint in the federal court purported to rest upon 28 U.S.C. § 1331. We are of opinion that the factual allegations of the complaint do- not make out a case arising under the Constitution or laws of the United States, and that consequently the court below did not have jurisdiction of the subject matter. There are other difficulties with appellants’ case, some of which we find it unnecessary to discuss at all, and others of which will be alluded to only briefly in passing. Appellants claim that they have been denied a tax exemption rightfully theirs under Act No. 184 approved May 13, 1948, known as The Industrial Tax Exemption Act of Puerto Rico, Laws P.R. 1948, p. 482. We shall undertake to summarize its main provisions for a better understanding of the case. The Act, as appears from its statement of motives, was designed to promote the industrial development of Puerto Rico by offering to persons who were willing to establish new industrial units on the island exemption from various insular and municipal taxes and excises for a limited period. The exemptions provided for, § 5, started at 100 per cent and tapered off to 25 per cent for the fiscal year 1961-1962, at the end of which year the exemption period would terminate- In the statement of motives, the legislature listed 41 industries, denominated “designated industries”, described as “industries established in Puerto Rico, which have good prospects for further development” and which therefore deserved to enjoy the benefit of the tax exemption granted by the Act in order to encourage their expansion. Section 1 of the Act contained certain definitions of terms to which we shall refer subsequently. Under the heading “eligible industries”, § 2 provided that there shall be eligible for tax exemption: “a. Any industrial unit having as its object the production on a commercial scale in Puerto Rico, subsequent to January 2, 1947, of any manufactured product not in production on a commercial scale in Puerto Rico on said date, and for which there were on such date in Puerto Rico no- manufacturing facilities capable of the production of said manufactured product on a commercial scale.” b. Any new industrial unit of one of the so-called “designated industries” already established in Puerto Rico, having as its object the beginning of production on a commercial scale subsequent to May 12, 1947, which new industrial unit, in the judgment of the Executive Council, will be established “in good faith and with a permanent character”, and which, in the judgment of the Executive Council, has or will have capacity to produce “a substantial share of the articles of commerce, additional to that produced in Puerto Rico annually, on an average, by all existing units of such designated industry”. Since the granting of tax exemption to such a new unit of a designated industry would result in a competitive disadvantage to the business units already established in the island and making the same product, it was further provided that in that event any already established industrial unit in one of the designated industries would also be eligible for tax exemption. Section 2 went on to provide that the Executive Council might, “in the exercise of a sound judgment,” deny the tax exemption in any of the cases listed “when in its judgment, the article of commerce produced or to be produced by the applicant, because of the use thereof or other factors, will be a substitute for, or a competitor with substantial advantage on account of the exemption, of similar articles of commerce produced by industries established in Puerto Rico”. Notwithstanding this, the Executive Council might still grant the exemption “whenever in its judgment, the applicant eligible industry represents a substantial gain for the general economy of Puerto Rico by reason of the employment opportunities it may provide, the prospects for the development thereof in a higher scale in Puerto Rico, and the quality and efficiency in the use, or in the benefit to the community, of the article of commerce which the applicant eligible industry produces or will produce”; but the Executive Council may, in granting exemption to any industry under the aforesaid circumstances, “on petition of the interested party grant said exemption to such other existing industries manufacturing similar articles of commerce as in its judgment will sustain substantial prejudice because of the substitution or competition referred to in this paragraph.” Referring back to the definitions contained in § 1, the term “manufactured products” was defined to mean “not only all products transformed from raw materials into articles of commerce finished by hand or machinery, but also any product the value of which, in the judgment of the Executive Council, is substantially increased by processing, assembling, or extracting.” The term “industrial unit” meant “Any plant, factory, machine or machine ensemble having a capacity for performing the major functions involved in the production of a manufactured product on a commercial scale.” The term “production on a commercial scale” meant “Production for sale on the market in the normal course of business in quantities and at a price which justifies the operation of an industrial unit as a going business.” Section 3 provided that any person who has established or proposes to establish in Puerto Rico “an eligible industry” may apply to the Executive Council for tax exemption under the Act. Section 4 provided that after it is proved “to the satisfaction of the Executive Council, that an applicant has established or will establish in Puerto' Rico an eligible industry,” the Council shall declare the industry tax-exempt and shall grant the applicant exemption from the enumerated taxes. Section 9 provided that before deciding on any application for tax exemption “the Executive Council shall first consider the reports on each application which shall be submitted to the said Council by the Puerto Rico Industrial Development Company, and such other Insular agencies as in the judgment of the Council should make their report on such application.” Section 11 provided that “A grant of tax exemption approved by the Executive Council shall not be effective until the same has been approved by the Governor of Puerto Rico, but when so approved the grant shall be effective on and after the first day of the month following that in which the application was filed. The Treasurer of Puerto Rico shall return to the applicant whatever sum the said applicant may have paid for taxes appertaining to any period covered by the exemption.” Section 14 contained provisions authorizing the Executive Council, after hearing and with the approval of the Governor, to revoke any tax exemption previously granted where the grantee failed to complete, within the time fixed by the Council, the construction of the necessary installations or where the grantee discontinued production on a commercial scale for more than thirty days without authorization from the Executive Council. Section 16 provided: “All resolutions and findings of the Executive Council and of the Governor of Puerto Rico under the provisions of this Act, shall be final, and no judicial or administrative proceeding shall lie against the same.” The complaint alleges that the plaintiff corporations, on June 30, 1948, filed with the Executive Council their joint' application for tax exemption under Act No-. 184, and thereafter complied with all other requirements of law and of the applicable rules and regulations; that, notwithstanding the favorable finding and report of the special master who had taken testimony-on the application, and a favorable opinion of the Attorney General rendered in February, 1949, the Executive Council delayed a decision on the matter for several months; that meanwhile the Attorney General submitted a new and adverse opinion upon the application, “which opinion was and is erroneous and which fact was and is well known to the defendants”; that solely on the basis of this adverse opinion by the Attorney General, the Executive Council on November 23, 1949, denied the application for tax exemption. It is not easy to- tell from the allegations of the complaint just what the theory was upon which the plaintiff corporations applied for tax exemption. They seem to have claimed exemption under the provisions both of § 2a and § 2b of Act No. 184, though the two categories are mutually exclusive, one embracing an industrial unit designed to produce on a commercial scale a manufactured product not already being produced commercially in Puerto Rico-, and the other embracing a new unit of one of the so-called “designated industries” already established and in operation on the island. Plaintiffs are engaged in housing development on a large scale, in the course of which low-cost dwellings are erected by mass production methods, and sold commercially. To bring themselves within § 2a of the Act, plaintiffs allege that they established in Puerto Rico subsequent to January 2, 1947, “a plant, factory, machine or machine ensemble” for the erection and sale on a commercial scale “of mass produced low-cost housing”; that on that date there were no manufacturing facilities in Puerto Rico capable of the production of houses for sale on the market in the normal course of business in quantities and at a price which justified the operation of an industrial unit performing the major functions involved in the mass production of low-cost housing as a going business. Whether a house so erected is a “manufactured product” or article of commerce within the meaning of the Act, so as to entitle plaintiffs to apply for tax exemption under § 2a, is a matter of statutory interpretation, as to which it can hardly be said that the language of the Act is crystal-clear. To bring themselves within § 2b of Act No. 184, plaintiffs allege that subsequent to May 12, 1947, they established a new plant, factory, machine or machine ensemble for the purpose of producing low-cost housing in large quantities for the Puerto Rican masses; that the operation of this new industrial unit is permanent in character p that it has produced and has the capacity to produce a substantial share of homes-additional to- that produced in Puerto Rico annually on the average by all existing units of the local housing industry. Under the requirements of § 2b, they must have established a new industrial unit in one of the so-called “designated industries” listed under the statement of motives in Act No. 184; the only one of these “designated industries” which it might plausibly be suggested -fits the plaintiffs’ case, and which apparently the plaintiffs rely upon, is the 'first one listed, described as follows: “1. Articles produced by assembly plants. By assembly plants shall be understood those factories engaged in the production of articles of commerce, excluding furniture, by the joining of parts, provided that the cost of the work of assembling the article represents such a substantial part of the total cost of the article that, in the judgment of the Executive Council, the industry deserves the exemption herein provided for.” Again, whether a house is an article produced by an assembly plant within the meaning of the Act is a question of statutory interpretation as to which, it is fair to say, an affirmative answer is not obviously indicated. The complaint goes on to allege that since the passage of Act No-. 184 industrial units having as their object the production on a commercial scale “of certain manufactured products” have been granted tax exemption under § 2a of the Act; and new industrial units of so-called “designated industries” have been granted tax exemption under § 2b of the Act; that the defendants, having granted tax exemptions to all other industrial units qualifying therefor under the Act, “have arbitrarily and capriciously determined and agreed to deprive and have deprived these plaintiffs of the tax exemption to which they are entitled under the Tax Exemption Act as aforesaid”; that the defendants, “with the intent to discriminate against these plaintiffs”, in denying them the tax exemption to which they are entitled, have violated the Fifth Amendment to the Constitution of the United States and § 2 of the Organic Act, 39 Stat. 951, 48 U.S.C.A. § 737, in that the plaintiffs have been denied the equal protection of the laws, deprived of their property without due process of law, and subjected to unequal and discriminatory taxation. The complaint prays that the court enter a judgment declaring “That plaintiffs are eligible for and entitled to tax exemption under the provisions of Act 184 of May 13, 1948,” and that the action of the Executive Council in denying tax exemption to the plaintiffs constitutes a denial of equal protection of the laws, deprives the plaintiffs of their property without due process of law, and subjects the plaintiffs to unequal and discriminatory taxation. At the oral argument, counsel for appellants frankly conceded that they could not expect the full relief sought, namely, a judicial declaration that plaintiffs are entitled to tax exemption under Act No. 184. Whether tax exemption is to be accorded to a particular applicant is not merely a question of law to be determined by a reading of and interpretation of statutory language. It involves, moreover, the weighing of complex economic factors, a forecast or prophecy of the extent to which an over-all gain in the Puerto Rican economy, in the direction of the statutory objectives, is to be anticipated from the launching of a proposed new industrial unit with the advantage of tax exemption. In the broad sense, the exercise of such a judgment is political in nature rather than judicial. It is a judgment which Act No. 184 clearly confided, not to the courts, but to- the administrative determination of the Executive Council and, ultimately, to the executive determination of the Governor. See Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 1948, 333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed. 568. In their brief, appellants have put their case on a more modest contention. They say the controversy here “relates essentially to the construction of a statute”; that they were entitled to ask the court below for a declaratory judgment so limited in scope as merely to preclude the Executive Council from denying the application for tax exemption upon an erroneous-conclusion of law contained in the adverse opinion by the Attorney General, leaving the Council free, and under the duty, to apply the proper criteria, in the exercise of the judgment and discretion entrusted to it, in determining whether, on the facts, the applicants should be granted a tax exemption. The adverse opinion of the Attorney General, upon which the Council acted, is not included in the record; so we do not know the -specific ground upon which the application was denied. But if, as applicants contend, the denial was upon an erroneous interpretation of Act No. 184, we infer that the denial was upon the ground that the particular business established by these plaintiffs in Puerto Rico was not one ©>f the kinds contemplated by the legislature as-a possible subject of tax exemption in the administration of Act No. 184. Whether such ground was well taken or not may-present a difficult question of statutory-construction as to which, as we have suggested above, the answer is not obvious from a mere reading of the language. Of course, in so far as the controversy relates to the construction of an insular tax exemption statute, that is not a federal question. But it may be conceded' that a substantial constitutional question of equal protection of the laws may arise out of the discriminatory administration of ai statute fair on its face. See Io-wa-Des Moines National Bank v. Bennett, 1931, 284 U.S. 239, 52 S.Ct. 133, 76 L.Ed. 265. And so the plaintiffs here, in order to bring their case within the jurisdiction of the court below under 28 U.S.C. § 1331, have alleged in the complaint that the action of the Council deprived the plaintiffs of the equal protection of the laws. However, something more than the mere pleading of such an ultimate conclusion of law is necessary to bring the complaint within 28 U.S.C. § 1331. It is true the complaint alleges that the defendants intended to discriminate against these plaintiffs when the Council denied their application after having granted tax exemption to other applicants entitled thereto. This is no more than an allegation that the defendants, having granted tax exemption to other applicants, intended to treat these plaintiffs differently. But it is not a denial of the equal protection of the laws in a constitutional sense where the administrative body, upon an erroneous interpretation of a local statute, denies a tax exemption to one person after having lawfully and properly granted tax exemption to other persons differently situated. There must be a purposeful discrimination against one person and in favor of another person in like case, with no rational basis for a differentiation between the two. The complaint in the case at bar, however, carefully refrains from alleging that tax exemption has been granted to other persons in like case with the plaintiffs, engaged in the mass production of low-cost housing. We are clear that the factual allegations of the complaint fall far short of setting forth a substantial federal claim within the jurisdiction of the court below under 28 U.S.C. § 1331. Snowden v. Hughes, 1944, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497. There is another difficulty with plaintiffs’ case, which arose after their complaint below was filed and before the entry of the judgment by the district court on March 6, 1951, dismissing the complaint. Act No. 29, approved September 5, 1950, Laws P.R., 5th to 12th Spec.Sess. 1950-1951, p. 216, amended the Industrial Tax Exemption Act so as to eliminate entirely the functions of the Executive Council in the administration of the Act and to vest in the Governor the whole administrative disposition of applications for tax exemption. Thereafter, there ceased to be any controversy, in a legal sense, between the plaintiffs and the individual defendants named in the complaint. Whatever might be the terms of an ensuing declaratory judgment, the members of the Council would have only an academic interest in it; they would no longer have any official or personal function to perform in consequence of it. As to them, the case had become moot. See Snyder v. Buck, 1950, 340 U.S. 15, 71 S.Ct. 93, 95 L.Ed. 15. The Governor was not named a party-defendant in the complaint, nor was any effort made to join him as the successor to the functions formerly performed by the Executive Council. See Rule 25(d), Federal Rules of Civil Procedure, 28 U.S.C. Any declaratory judgment by the court below on the subject matter, so far as concerns the Governor, would have been a mere advisory opinion, which the Governor would have been legally free to disregard. Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 1948, 333 U.S. 103, 113-114, 68 S.Ct. 431, 92 L.Ed. 568. The judgment of the District Court is affirmed. . The original phraseology of § 2 seemed a little obscure at this point, but we take it that the meaning was as summarized above and that the revised phraseology in tbe amendatory Act No. 243 of May 8, 1950, was intended to be of a clarifying nature. 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_casedisposition	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. DOLE, SECRETARY OF LABOR, et al. v. UNITED STEELWORKERS OF AMERICA et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 88-1434. Argued November 6, 1989 Decided February 21, 1990 Brennan, J., delivered the opinion of the Court, in which Marshall, Blackmun, Stevens, O’Connor, Scalia, and Kennedy, JJ., joined. White, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, post, p. 43. Jeffrey P. Minear argued the cause for petitioners. With him on the briefs were Acting Solicitor General Wallace, Acting Assistant Attorney General Schiffer, Deputy Solicitor General Merrill, Leonard Schaitman, and Marleigh D. Dover. Laurence Gold argued the cause for respondents. With him on the brief for respondents United Steelworkers of America et al. were George H. Cohen, Jeremiah A. Collins, David C. Vladeck, Alan B. Morrison, and Elihu I. Leifer. Maurice Baskin filed a brief for respondents Associated Builders and Contractors, Inc., et al. Briefs of amici curiae urging reversal were filed for the Business Council on the Reduction of Paperwork by Clark R. Silcox; for the National-American Wholesale Grocers’ Association et al. by Arthur Y. Tsien; for the National Wholesale Druggists’ Association by Lawrence W. Bierlein; and for Senator Lawton Chiles by Daniel J. Popeo, Paul D. Kamenar, and Wayne Hartke. Burton D. Fvetz, Toby S. Edelman, and Edward F. Howard filed a brief for the Action Alliance of Senior Citizens et al. as amici curiae urging affirmance. Justice Brennan delivered the opinion of the Court. Among the regulatory tools available to Government agencies charged with protecting public health and safety are rules which require regulated entities to disclose information directly to employees, consumers, or others. Disclosure rules protect by providing access to information about what dangers exist and how these dangers can be avoided. Today we decide whether the Office of Management and Budget (OMB) has the authority under the Paperwork Reduction Act of 1980, 44 U. S. C. §3501 et seq. (1982 ed. and Supp. V), to review such regulations. I In 1983, pursuant to the Occupational Safety and Health Act of 1970 (OSH Act), 84 Stat. 1590, 29 U. S. C. § 651 et seq. (1982 ed.), which authorizes the Department of Labor (DOL) to set health and safety standards for workplaces, DOL promulgated a hazard communication standard. 29 CFR §1910.1200 (1984). The standard imposed various requirements on manufacturers aimed at ensuring that their employees were informed of the potential hazards posed by chemicals found at their workplace. Specifically, the standard required chemical manufacturers to label containers of hazardous chemicals with appropriate warnings. “Downstream” manufacturers — commercial purchasers who used the chemicals in their manufacturing plants — were obliged to keep the original labels intact or else transfer the information onto any substitute containers. The standard also required chemical manufacturers to provide “material safety data sheets” to downstream manufacturers. The data sheets were to list the physical characteristics and hazards of each chemical, the symptoms caused by overexposure, and any pre-existing medical conditions aggravated by exposure. In addition, the data sheets were to recommend safety precautions and first aid and emergency procedures in case of overexposure and provide a source for additional information. Both chemical manufacturers and downstream manufacturers were required to make the data sheets available to their employees and to provide training on the dangers of the particular hazardous chemicals found at each workplace. Respondent United Steelworkers of America, among others, challenged the standard in the Court of Appeals for the Third Circuit. That court held that the Occupational Safety and Health Administration (OSHA) had not adequately explained why the regulation was limited to the manufacturing sector, in view of the OSH Act’s clear directive that, to the extent feasible, OSHA is to ensure that no employee suffers material impairment of health from toxic or other harmful agents. The court directed OSHA either to apply the hazard standard rules to workplaces in other sectors or to state reasons why such application would not be feasible. United Steelworkers of America v. Auchter, 763 F. 2d 728, 739 (1985). When DOL responded by initiating an entirely new rule-making proceeding, the union and its copetitioners sought enforcement of the earlier order. The Third Circuit directed DOL, under threat of contempt, to publish in the Federal Register within 60 days either a hazard communication standard applicable to all workers covered by the OSH Act or a statement of reasons why such a standard was not feasible, on the basis of the existing record, as to each category of excluded workers. United Steelworkers of America v. Pendergrass, 819 F. 2d 1263, 1270 (1987). DOL complied by issuing a revised hazard communication standard that applied to work sites in all sectors of the economy. See 52 Fed. Reg. 31852 (1987). At the same time, DOL submitted the standard to OMB for review of any paperwork requirements. After holding a public hearing, OMB approved all but three of its provisions. OMB rejected a requirement that employees who work at multiemployer sites (such as construction sites) be provided with data sheets describing the hazardous substances to which they were likely to be exposed, through the activities of any of the companies working at the same site. The provision permitted employers either to exchange data sheets and make them available at their home offices or to maintain all relevant data sheets at a central location on the work site. 29 CFR § 1910.1200(e)(2) (1988). OMB also disapproved a provision exempting consumer products used in the workplace in the same manner, and resulting in the same frequency and duration of exposure, as in normal consumer use. § 1910.1200(b)(6)(vii). Finally, OMB vetoed an exemption for drugs sold in solid, final form for direct administration to patients. § 1910.1200(b)(6)(viii). See 52 Fed. Reg. 46076 (1987). OMB disapproved these provisions based on its determination that the requirements were not necessary to protect employees. OMB’s objection to the exemptions was that they were too narrow, and that the standard, therefore, applied to situations in which disclosure did not benefit employees. Id., at 46077-46078. DOL disagreed with OMB’s assessment, but it published notice that the three provisions were withdrawn. DOL added its reasons for believing that the provisions were necessary, proposed that they be retained, and invited public comment. 53 Fed. Reg. 29822 (1988). The union and its copetitioners responded by filing a motion for further relief with the Third Circuit. That court ordered DOL to reinstate the OMB-disapproved provisions-The court reasoned that the provisions represented good-faith compliance by DOL with the court’s prior orders, that OMB lacked authority under the Paperwork Reduction Act to disapprove the provisions, and that, therefore, DOL had no legitimate basis for withdrawing them. United Steelworkers of America v. Pendergrass, 855 F. 2d 108 (1988). Petitioners sought review in this Court. We granted certiorari to answer the important question whether the Paperwork Reduction Act authorizes OMB to review and countermand agency regulations mandating disclosure by regulated entities directly to third parties. 490 U. S. 1064 (1989). We hold that the Paperwork Reduction Act does not give OMB that authority, and therefore affirm. II The Paperwork Reduction Act was enacted in response to one of the less auspicious aspects of the enormous growth of our federal bureaucracy: its seemingly insatiable appetite for data. Outcries from small businesses, individuals, and state and local governments, that they were being buried under demands for paperwork, led Congress to institute controls. Congress designated OMB the overseer of other agencies with respect to paperwork and set forth a comprehensive scheme designed to reduce the paperwork burden. The Act charges OMB with developing uniform policies for efficient information processing, storage, and transmittal systems, both within and among agencies. OMB is directed to reduce federal collection of all information by set percentages, establish a Federal Information Locator System, and develop and implement procedures for guarding the privacy of those providing confidential information. See 44 U. S. C. §§3504, 3505, 3511 (1982 ed. and Supp. V). The Act prohibits any federal agency from adopting regulations which impose paperwork requirements on the public unless the information is not available to the agency from another source within the Federal Government, and the agency must formulate a plan for tabulating the information in a useful manner. Agencies are also required to minimize the burden on the public to the extent practicable. See 44 U. S. C. § 3507(a)(1) (1982 ed. and Supp. V). In addition, the Act institutes a second layer of review by OMB for new paperwork requirements. After an agency has satisfied itself that an instrument for collecting information — termed an “information collection request” — is needed, the agency must submit the request to OMB for approval. See 44 U. S. C. § 3507(a)(2) (1982 ed., Supp. V). If OMB disapproves the request, the agency may not collect the information. See 44 U. S. C. §3507(a)(3) (1982 ed.). Typical information collection requests include tax forms, Medicare forms, financial loan applications, job applications, questionaires, compliance reports, and tax or business records. See S. Rep., at 3-4. These information requests share at least one characteristic: The information requested is provided to a federal agency, either directly or indirectly. Agencies impose the requirements on private parties in order to generate information to be used by the agency in pursuing some other purpose. For instance, agencies use these information requests in gathering background on a particular subject to develop the expertise with which to devise or fine-tune appropriate regulations, amassing diffuse data for processing into useful statistical form, and monitoring business records and compliance reports for signs or proof of nonfeasance to determine when to initiate enforcement measures. By contrast, disclosure rules do not result in information being made available for agency personnel to use. The promulgation of a disclosure rule is a final agency action that represents a substantive regulatory choice. An agency charged with protecting employees from hazardous chemicals has a variety of regulatory weapons from which to choose: It can ban the chemical altogether; it can mandate specified safety measures, such as gloves or goggles; or it can require labels or other warnings alerting users to dangers and recommended precautions. An agency chooses to impose a warning requirement because it believes that such a requirement is the least intrusive measure that will sufficiently protect the public, not because the measure is a means of acquiring information useful in performing some other agency function. No provision of the Act expressly declares whether Congress intended the Paperwork Reduction Act to apply to disclosure rules as well as information-gathering rules. The Act applies to “information collection requests” by a federal agency which are defined as “a written report form, application form, schedule, questionnaire, reporting or recordkeeping requirement, collection of information requirement, or other similar method calling for the collection of information.” 44 U. S. C. §3502(11) (1982 ed., Supp. V). “Collection of information,” in turn, is defined as “the obtaining or soliciting of facts or opinions by an agency through the use of written report forms, application forms, schedules, questionnaires, reporting or recordkeeping requirements, or other similar methods calling for either— “(A) answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States; or “(B) answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes.” 44 U. S. C. § 3502(4) (1982 ed.). Petitioners urge us to read the words “obtaining or soliciting of facts by an agency through . . . reporting or record-keeping requirements” as encompassing disclosure rules. They contend that an agency is “soliciting facts” when it requires someone to communicate specified data to a third party and that the hazard communication standard’s rules are “reporting and recordkeeping requirements” within the meaning of the Act because the employer is required to report hazard information to employees. Petitioners submit that the provisions requiring labeling and employee training are “reporting requirements” and that the provision requiring accessible data sheets containing health and safety information is a “recordkeeping requirement.” We believe, however, that the language, structure, and purpose of the Paperwork Reduction Act reveal that petitioners’ position is untenable because Congress did not intend the Act to encompass these or any other third-party disclosure rules. “On a pure question of statutory construction, our first job is to try to determine congressional intent, using traditional tools of statutory construction.” NLRB v. Food and Commercial Workers, 484 U. S. 112, 123 (1987). Our “starting point is the language of the statute,” Schreiber v. Burlington Northern, Inc., 472 U. S. 1, 5 (1985), but “‘in expounding a statute, we are not guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.’” Massachusetts v. Morash, 490 U. S. 107, 115 (1989), quoting Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 51 (1987). See also K mart Corp. v. Cartier, Inc., 486 U. S. 281, 291 (1988) (same). Petitioners’ interpretation of “obtaining or soliciting facts by an agency through . . . reporting or recordkeeping requirements” is not the most natural reading of this language. The commonsense view of “obtaining or soliciting facts by an agency” is that the phrase refers to an agency’s efforts to gather facts for its own use and that Congress used the word “solicit” in addition to the word “obtain” in order to cover information requests that rely on the voluntary cooperation of information suppliers as well as rules which make compliance mandatory. Similarly, data sheets consisting of advisory material on health and safety do not fall within the normal meaning of “records,” and a Government-imposed reporting requirement customarily requires reports to be made to the Government, not training and labels to be given to someone else altogether. That a more limited reading of the phrase “reporting and recordkeeping requirements” was intended derives some further support from the words surrounding it. The traditional canon of construction, noscitur a sociis, dictates that “ ‘words grouped in a list should be given related meaning.’” Massachusetts v. Morash, supra, at 114-115, quoting Schreiber, supra, at 8. The other examples listed in the definitions of “information collection request” and “collection of information” are forms for communicating information to the party requesting that information. If “reporting and record-keeping requirements” is understood to be analogous to the examples surrounding it, the phrase would comprise only rules requiring information to be sent or made available to a federal agency, not disclosure rules. The same conclusion is produced by a consideration of the object and structure of the Act as a whole. See Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207, 220-221 (1986) (concluding that the meaning of a phrase was clarified by the language and purpose of the Act as a whole). Particularly useful is the provision detailing Congress’ purposes in enacting the statute. The Act declares that its purposes are: “(1) to minimize the Federal paperwork burden for individuals, small businesses, State and local governments, and other persons; “(2) to minimize the cost to the Federal Government of collecting, maintaining, using, and disseminating information; “(3) to maximize the usefulness of information collected, maintained, and disseminated by the Federal Government; “(4) to coordinate, integrate and, to the extent practicable and appropriate, make uniform Federal information policies and practices; “(5) to ensure that automatic data processing, telecommunications, and other information technologies are acquired and used by the Federal Government in a manner which improves service delivery and program management, increases productivity, improves the quality of decisionmaking, reduces waste and fraud, and wherever practicable and appropriate, reduces the information processing burden for the Federal Government and for persons who provide information to and for the Federal Government; and “(6) to ensure that the collection, maintenance, use and dissemination of information by the Federal Government is consistent with applicable laws relating to confidentiality, including . . . the Privacy Act.” 44 U. S. C. §3501 (1982 ed. and Supp. V) (emphasis added). Disclosure rules present none of the problems Congress sought to solve through the Paperwork Reduction Act, and none of Congress’ enumerated purposes would be served by subjecting disclosure rules to the provisions of the Act. The statute makes clear that the first purpose — avoiding a burden on private parties and state and local governments — refers to avoiding “the time, effort, or financial resources expended by persons to provide information to a Federal agency.” 44 U. S. C. §3502(3) (1982 ed.) (defining “burden”) (emphasis added). Because Congress expressed concern only for the burden imposed by requirements to provide information to a federal agency, and not for any burden imposed by requirements to provide information to a third party, OMB review of disclosure rules would not further this congressional aim. Congress’ second purpose — minimizing the Federal Government’s cost of handling information — also would not be advanced by review of disclosure rules because such rules do not impose any information processing costs on the Federal Government. Because the Federal Government is not the consumer of information “requested” by a disclosure rule nor an intermediary in its dissemination, OMB review of disclosure rules would not serve Congress’ third, fourth, fifth, or sixth purposes. Thus, nothing in Congress’ itemized and exhaustive textual description of its reasons for enacting this particular Act indicates any legislative purpose to have OMB screen proposed disclosure rules. We find this to be strong evidence that Congress did not intend the Act to authorize OMB review of such regulations. This conclusion is buttressed by the language and import of other provisions of the Act. For instance, every federal agency is required to take three internal preliminary steps before adopting an information collection request. The agency must take action to “(A) eliminate, through the use of the Federal Information Locator System and other means, information collections which seek to obtain information available from another source within the Federal Government; “(B) reduce to the extent practicable and appropriate the burden on persons who will provide information to the agency; and “(C) formulate plans for tabulating the information in a manner which will enhance its usefulness to other agencies and to the public.” 44 U. S. C. § 3507(a)(1) (1982 ed.) (emphasis added). These requirements affect agencies only when they gather information for their own use. The first directs an agency not to ask for information that it can acquire from another agency. The second requires an agency to consider the burden it places on the public, but only as to information provided to the agency. The third encourages an agency to make the information it has obtained useful to others as well. Significantly, no provision relates to disclosure rules. For example, no provision requires agencies to ensure that a paperwork requirement is effective or that its burden on one party is not disproportionate to the benefit afforded a third party. Also instructive are the provisions governing OMB’s review of proposed agency information collection requests that cast that review in terms applicable to information-gathering regulations but not to disclosure rules. OMB’s examination is limited to “determining whether the collection of information by an agency is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility for the agency.” 44 U. S. C. § 3504(c)(2) (1982 ed.) (emphasis added). “Practical utility” is defined in the statute as “the ability of an agency to use information it collects, particularly the capability to process such information in a timely and useful fashion.” 44 U. S. C. §3502(16) (1982 ed., Supp. V) (emphasis added). However, in reviewing the disclosure rules at issue in this case, OMB was unable to consider what OSHA planned to do with information regarding hazardous chemicals at the various work sites, because OSHA was not to be the recipient of this information. Nothing was to be given to OSHA to process — in a timely fashion or otherwise. OMB instead disapproved the three OSHA rules on the ground that the mandated disclosures would be of little benefit to the employees OSHA sought to protect. But there is no indication in the Paperwork Reduction Act that OMB is authorized to determine the usefulness of agency-adopted warning requirements to those being warned. To the contrary, Congress focused exclusively on the utility of the information to the agency. And the only criteria specified are whether the agency can process the information quickly and use it in pursuit of its substantive mandate. Yet a third provision reinforcing our conclusion that disclosure rules are not subject to the Paperwork Reduction Act is the statute’s mechanism for assuring agency compliance with its terms. When OMB approves an information collection request, it issues a control number which is placed on all forms. If a request does not receive OMB approval, it is not issued a control number and the agency is prohibited from collecting the information. See 44 U. S. C. §§ 3504(c)(3)(A), 3507(f) (1982 ed.). In addition, if the agency nevertheless promulgates the paperwork requirement, members of the public may ignore it without risk of penalty. See 44 U. S. C. §3512 (1982 ed.). However, this protection of the public is applicable only to information-gathering rules. Section 3512 provides that “no person shall be subject to any penalty for failing to maintain or provide information to any agency if the information collection request involved . . . does not display a current control number assigned by the [OMB] . . . .” Ibid. (emphasis added). While the grammar of this text can be faulted, its meaning is clear: the public is protected under the Paperwork Reduction Act from paperwork regulations not issued in compliance with the Act, only when those regulations dictate that a person maintain information for an agency or provide information to an agency. By its very terms, the statute’s enforcement mechanism does not apply to rules which require disclosure to a third party rather than to a federal agency. Thus either Congress intended the Paperwork Reduction Act to cover information-gathering rules only, or Congress intended the Act to cover disclosure rules but intended to exempt them from this agency compliance mechanism. Because the latter is counterintuitive and contrary to clear legislative history, § 3512 is further evidence that Congress did not intend the Act to cover disclosure rules. III For the foregoing reasons, we find that the terms “collection of information” and “information collection request,” when considered in light of the language and structure of the Act as a whole, refer solely to the collection of information by, or for the use of, a federal agency; they cannot reasonably be interpreted to cover rules mandating disclosure of information to a third party.. In addition, we find unpersuasive petitioners’ claims that there is a “clearly expressed legislative intention [to the] contrary,” see INS v. Cardoza-Fonseca, 480 U. S. 421, 432, n. 12 (1987). Petitioners rely on statements from various stages of the Act’s legislative history as evidence that Congress intended “collection of information” to include disclosure rules. However, the statements show merely that the Act was intended to reach not only statistical compilations but also information collected for law enforcement purposes and information filed with an agency for possible dissemination to the public (i. e., when the agency is an intermediary in the process of data dissemination). This sheds no light on the issue before this Court: Whether the Act reaches rules mandating disclosure by one party directly to a third party. Moreover, other statements in the Committee Reports reinforce respondents’ position. Because we find that the statute, as a whole, clearly expresses Congress’ intention, we decline to defer to OMB’s interpretation. See Board of Governors of Federal Reserve System v. Dimension Financial Corp., 474 U. S. 361, 368 (1986) (“The traditional deference courts pay to agency interpretation is not to be applied to alter the clearly expressed intent of Congress”); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984) (“If the intent of Congress is clear, that is the end of the matter”). We affirm the judgment of the Third Circuit insofar as it held that the Paperwork Reduction Act does not give OMB the authority to review agency rules mandating disclosure by regulated entities to third parties. It is so ordered. OMB concluded that workers on multiemployer sites would be- adequately protected if each employer kept chemical manufacturers7 label's intact, supplied data sheets to other employers on the site on request, aarcd taught its own employees about the chemicals with which, they worked directly and explained how to recognize hazards likely to< be introduced by other employers. 52 Fed. Reg. 46077 (1987). The standard promulgated by OSHA had exempted, from any otherwise applicable labeling requirements, all food and drugs subject to the labeling requirements of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, as amended, 21 U. S. C. § 301 et seq. (1982 ed.), and all consumer products or hazardous substances subject to a consumer product safety standard or labeling requirements of the Consumer Product Safety Act, 86 Stat. 1207, as amended, 15 U. S. C. §2051 et seq., or the Federal Hazardous Substances Act, 74 Stat. 372, as amended, 15 U. S. C. § 1261 et seq., or regulations issued under those Acts by the Consumer Product Safety Commission. 29 CFR §§ 1910.1200(b)(5)(ii), 1910.1200(b)(5)(iv) (1988). OMB wanted OSHA to exempt, in addition, all products packaged in the same form and concentration as a consumer product, whether or not used for the same purpose or with the same exposure, as well as all Food and Drug Administration regulated drugs handled in the nonmanufacturing sector. 52 Fed. Reg. 46078 (1987). OMB drew its recommended exemption for consumer products from § 311(e)(3) of the Superfund Amendments and Reauthorization Act of 1986, 100 Stat. 1615, 42 U. S. C. § 9601 et seq. (1982 ed., Supp. V), a provision aimed at informing the general public about chemicals that could cause hazardous conditions during an emergency situation. See S. Rep. No. 96-930, pp. 3-4, 8 (1980) (S. Rep.); H. R. Rep. No. 96-835, pp. 3, 17 (1980) (H. R. Rep.). Tax and business records are examples of information provided only indirectly to an agency. In these cases, the governing regulations do not require records to be sent to the agency; they require only that records be kept on hand for possible examination as part of a compliance review. See H. R. Rep., at 28 (the agency “is to eliminate any information collections which seek to obtain information available from other sources within the Federal Government”). See id., at 20 (The Act “allow[s] the public, by refusing to answer these [information collection requests], to help control ‘outlaw forms’ ”). See S. Rep., at 52-53 (“The only collections of information by a Federal agency which are exempted, and for which a person or persons could not claim protection under section 3512, are those collections of information which this chapter does not apply to and are exempted by section 3518 [certain law enforcement and national security exceptions]”). See also H. R. Rep., at 30. See Report of Commission on Federal Paperwork, The Reports Clearance Process 1, 43 (Sept. 9, 1977) (explaining that the Federal Trade Commission did not interpret the Federal Reports Act of 1942, predecessor to the Paperwork Reduction Act, to apply to information it collected for law enforcement purposes nor did the Securities and Exchange Commission interpret that Act to apply to information the SEC collected for possible disclosure by the agency to the public); Paperwork and Redtape Reduction Act of 1979: Hearing on S. 1411 before the Subcommittee on Federal Spending Practices and Open Government of the Senate Committee on Governmental Affairs, 96th Cong., 1st Sess., 87 (1979) (testimony of SEC Commissioner Evans that the definition of collection of information in the Federal Reports Act was limited to collection for statistical purposes; testimony of Senator Chiles that Congress was not trying to cripple the mission of the agencies but was “trying to put some governor on this thirst for information”); S. Rep., at 39-40 (explaining that the Senate had rejected the SEC’s attempt to limit “collection of information” to collection for statistical purposes, that the definition extended to documents filed with the SEC for possible disclosure to the public by the SEC, and that OMB’s review of these filing requirements should consider whether the SEC could use the data either to carry out its regulatory functions or to make it available to the public). See, e. g., H. R. Rep., at 3 (the Act resulted from “a growing concern that the way the Government collects, uses, and disseminates information must be improved”) (emphasis added); id., at 22 (explaining the “practical utility” review as a response to the tendency of agencies to “collect rearhs of data on the basis of need only to store the data unused” thereby imposing “an unnecessary reporting burden on those individuals or organizations being asked to provide it”); S. Rep., at 11 (“[T]he essential purpose of the legislation [is] to reduce the burden on the public in providing information to the Federal Government") (emphasis added); id., at 46 (“A Federal agency is considered to ‘sponsor’ the collection of information if the agency itself collects information or if it uses a procurement contract and the contractor collects information for the agency”); Senate Hearings, supra, at 40-41 (testimony of Wayne G. Granquist, Assoc. Dir., OMB) (“No one questions the basic need of the government for information to plan, make policy decisions, operate and evaluate programs, and perform necessary research. The question is rather how much information is essential”). OMB’s assumption of the authority to review the three provisions of the hazard communication standard at issue was consistent with its own regulations. See 5 CFR § 1320.7(c)(2) (1988) (“Requirements by an agency for a person to obtain or compile information for the purpose of disclosure to members of the public or to the public at large, through posting, notification, labeling, or similar disclosure requirements, constitute the ‘collection of information’ whenever the same requirment to obtain or compile information would be a ‘collection of information’ if the information were directly provided to the agency”); § 1320.7(q) (defining “reporting requirement” as “a requirement imposed by an agency on persons to provide information to another person or to the agency”). Petitioners’ argument that we should defer to OMB’s interpretation, as expressed in these regulations, is foreclosed by our finding of clear congressional intent. We do not reach the question whether other provisions of the hazard communication standard might legitimately be subject to OMB review under the Paperwork Reduction Act. See 29 CFR § 1910.1200(e) (1988) (requiring employers to develop written programs describing their compliance and make them available to the agency on request); § 1910.1200(g)(ll) (requiring employers to make their material safety data sheets available to the agency on request). Only the three provisions OMB disapproved are before us today. Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:
songer_district	F	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". In re PRINCE et al. NEW YORK CREDIT MEN’S ASS’N v. SCHNUR. No. 341. Circuit Court of Appeals, Second Circuit. May 3, 1937. Reit & Kaminsky, of New York City (Max. Schnur and Hyman J. Reit, both of New York City, of counsel), for appellant. Benjamin Siegel, of New York City (Benjamin Siegel and Benjamin Brown-stein, both of New York City, of counsel), for appellee New York Credit Men’s Ass’n. Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge. Meyer Prince and George Prince, a copartnership doing business as Paris Maid Dress Company, and also as Prince Dress Company, made agreements with the appellant Max Schnur under which they were to assign to Schnur certain of their accounts for merchandise as • collateral security- for loans thereon, and Schnur was to advance 70 per cent, of the face of the accounts. The agreements provided for payment by the borrowers of a service charge of 3 per cent, upon the net amount advanced by the lender for a period of thirty days. This charge was afterwards reduced to 2% per cent. The borrowers collected the accounts and the lender had nothing to do with them except to receive. the list on making the advances and to check them up with the invoices and to keep track of the collections and returns of merchandise by having an accountant examine the books of the borrowers. Any receipts from the assigned accounts in excess of the amounts required to repay Schnur belonged to the borrowers. The charges for the services were far in advance of the legal rate of interest and varied from 22% per cent, to 42 per cent, per annum. The arrangement was usurious under the New York law and was so held by the court below. The service charges made were for the benefit of Schnur and not for that of the borrowers. Although, under the terms of the written agreement, the lender might have collected the accounts, he did not do so and the services rendered by the auditor and others of his staff were in watching the collateral and otherwise safeguarding his loan. In that respect the services differed from those for which compensation has been allowed by courts to lenders such as for examination of title preliminary to making loans, for actually collecting pledged accounts and for work of attorneys in enforcing collections under agreements. Security Mortgage Co. v. Powers, 278 U.S. 149, 49 S.Ct. 84, 73 L.Ed. 236; In re Gotham Can Co. (C. C.A.) 48 F.(2d) 540, 542. In the case at bar the service charge was continuous from the time when the loan was made and was in fact a charge by the lender only “for a service he renders to himself.” Commercial Security Co. v. Holcombe, 262 F. 657, 662 (C.C.A. 5). Agreements to pay more than the legal rate of interest, though in form for services rendered, have been treated as usurious under circumstances such as we find here. Home Bond Co. v. McChesney, 239 U.S. 568, 36 S.Ct. 170, 60 L.Ed. 444; Commercial Security Co. v. Holcombe, 262 F. 657 (C.C.A.5); Grannis v. Stevens, 216 N.Y. 583, 111 N.E. 263; Quackenbos v. Sayer, 62 N.Y. 344. Such cases as Houghton v. Burden, 228 U.S. 161, 33 S.Ct. 491, 57 L.Ed. 780, and In re Mesibovsky (C.C.A.) 200 F. 562, where actual services were performed by the lender at an agreed rate of compensation in excess of legal interest are distinguishable. The court in Home Bond Co. v. McChesney, 239 U.S. 568, 36 S.Ct. 170, 60 L.Ed. 444, distinguished Houghton v. Burden, 228 U. S. 161, 33 S.Ct. 491,. 57 L. Ed. 780, on the ground that the services there were not a cover for usury. The contention of the appellant that the transaction was a sale and not a loan is palpably without foundation. The agreement was: “To make advances to the Customer from time to time, provided the Customer shall assign and deliver to the Company as collateral security for such advances, accounts receivable for goods actually sold and delivered by the Customer, or for work, labor and services actually performed and/or materials actually furnished by the Customer, or notes, or trade acceptances received in settlement thereof, which accounts, or notes, or trade acceptances shall be approved by and be acceptable to the Company, and which will hereinafter be designated as ‘Accounts’. Each advance to be seventy (70%) per cent, or less, óf the net face value of the accounts assigned.” The assignments plainly were not sales but loans under arrangements made in order to obtain an excess rate of interest for the use of money in evasion of the usury law. The question before us is the effect to be given to collections of the pledged accounts under the following circumstances: A petition in bankruptcy was filed against Meyer Prince and George Prince, and the appellant, New York Credit Men’s Association, was appointed receiver on November 6, 1935, and afterwards was elected and qualified as trustee. The receiver collected $2,729.19 on the assigned accounts and turned this sum over to Schnur under a stipulation whereby it was provided that the receiver should turn over to Schnur all moneys collected on the accounts, and that the delivery of such moneys should be “without prejudice to the rights of said * * * Receiver and/or Trustee in bankruptcy.” The fact that the accounts receivable were assigned upon a non-notification basis and that at the time of the filing of the petition in bankruptcy they were being collected by the bankrupts gave the bankruptcy court jurisdiction to determine the validity of all claims or liens thereto under the doctrine that the accounts were in cus-todia legis. A situation similar to that before us here was discussed by Swan, J., in Matter of Borok (C.C.A.) 50 F.(2d) 75, 77, where he remarked that: “One cannot speak of ‘possession’ of a chose in action in the same sense as of tangibles; but if such terminology is to be used it would seem that the bankrupt was as much in ‘possession’ of the assigned accounts as he could be of any chose in action. He had the right to collect from the debtors and to use the proceeds as he saw fit. * * * Under such circumstances we believe that the bankruptcy court has power to determine summarily the respective rights of the trustee and the assignee in respect to the assigned accounts outstanding at the date of the petition.” If in the present case the receiver had retained the proceeds of collection and turned them over to the trustee Schnur would have had to sue the latter who could have defended on the ground of usury under the following provisions of the - General Business Law of the State of New York (Consol.Laws, c. 20) : “§ 370. Rate of interest The rate of interest upon the loan or forbearance of any money, goods, or things, in action, except as otherwise provided by law, shall be six dollars upon one hundred dollars, for one year, and at that rate, for a greater or less sum, or for a longer or shorter time.” “§ 371. Usury forbidden. No person or corporation shall, directly or indirectly, take or receive in money, goods or things in action, or in any other way, any greater sum or greater value, for the loan or forbearance of any money, goods or things in action, than is above prescribed.” “§ 373. Usurious contracts void. All bonds, bills, notes, assurances, conveyances, all other contracts or securities whatsoever, except bottomry and respondentia bonds and contracts, and all deposits of goods or other things whatsoever, whereupon or whereby there shall be reserved or taken, or secured or agreed to be reserved or taken, any greater sum, or greater value, for the loan or forbearance of any money, goods or other things in action, than is above prescribed, shall be void. “Whenever it shall satisfactorily appear by the admissions of the defendant, or by proof, that any bond, bill, note, assurance, pledge, conveyance,, contract, security or any evidence of debt, has been taken or received in violation of the foregoing provisions, the court shall declare the same to be void, and enjoin any prosecution thereon, and order the same to be surrendered and canceled.” We can see no distinction between a situation where the receiver or trustee in bankruptcy or a stakeholder holds the fund and the one here where there was a stipulation that the moneys collected from the accounts by the receiver should be turned over to Schnur, but such transfer should “be deemed to have been and to be without prejudice to the rights of said * * * receiver * * * and/or * * * trustee.” The trustee in bankruptcy filed a petition in the District Court setting forth that the receiver had collected checks amounting to $2,729.19 from the assigned accounts and that the accounts were assigned under usurious agreements. The prayer of the trustee was to have the assignments adjudged void and Schnur directed to turn over the $2,729.19 to the trustee. Schnur answered the petition denying that the agreements were usurious and alleging that the percentages charged represented reasonable charges for services. The referee granted the petition and his action was affirmed by the District Court In essence Schnur was a stakeholder whose holding under the stipulation was as agent for the trustee in bankruptcy and both the trustee and Schnur were subject to summary jurisdiction of the bankruptcy court. Lazarus v. Prentice, 234 U.S. 263, 34 S.Ct. 851, 58 L.Ed. .1305; Babbitt v. Dutcher, 216 U.S. 102, 113, 30 S.Ct. 372, 54 L.Ed. 402, 17 Ann.Cas. 969; In re Joseph R. Marquette, Jr., Inc. (C.C.A.) 254 F. 419. By virtue of the stipulation the accounts collected by the receiver are constructively in the possession of the bankruptcy court. To establish any right to them Schnur would be obliged to take affirmative action in that" court. The very object of the stipulation was to leave the parties in the same position as though the moneys had remained in the possession of the trustee and to give Schnur no rights he would not have had in that situation. In such circumstances the trustee need not repay the amount loaned with interest as a condition of recovering the moneys in custodia legis. While he is not a borrower who, by virtue of section 377 of the New York General Business Law, is empowered to recover without tender (Halsey v. Winant, 258 N.Y. 512, 529, 180 N.E. 253), he requires no equitable relief in order to prevail and under the stipulation, is in the position of one defending against a usurious claim. The assignments were void - under the New York Statute, and if Schnur had appropriated the $2,-729.19 the trustee could have recovered from him as for a conversion. Schroeppel v. Corning, 5 Denio (N.Y.) 236; Ramsdell v. Morgan, 16 Wend. (N.Y.) 574; Boughton v. Bruce, 20 Wend. (N.Y.) 234. In Muller v. City of Philadelphia, 208 N.Y. 182, 183, 101 N.E. 762, beneficiaries under a will assigned their interest in an estate as collateral security for usurious loans. It was held that they were not obliged to pay their assignees the amounts loaned, as a condition of obtaining their legacies, but could recover their full share of the estate irrespective of the assignments which they had given as security for the loans. Cullen, Ch. J., said that the beneficiaries sought no equitable relief against their assignees but merely demanded that the executors pay to them from the estate. Here the trustee in effect seeks to retain property in the custody of the law against the claim of an assignee under a usurious loan. The decisions of this court In re L’Hommedieu, 146 F. 708, and In re Fishel, 198 F. 464, 468, are in accord with the foregoing ruling in Muller v. City of Philadelphia, as is our recent decision in Connecticut General Life Ins. Co. v. Benedict, 88 F.(2d) 436. See, also, Mortgage Securities Co. v. Levy, 11 F.(2d) 270 (C.C.A. 5), where a similar conclusion was reached in construing a Florida statute of usury; also, Vanderveer v. Holcomb, 17 N.J.Eq. 87, affirmed 17 N. J.Eq. 547. The petition of the trustee required no equitable relief against the usurious assignment. The prayer that it be adjudged void is for nothing more than what a court does in an action at law when, because of section 373 of the New York General Business Law, it disregards an attempted legal transfer to secure a usurious loan. Merchants Exchange Nat. Bank v. Commercial Warehouse Co., 49 N.Y. 635. An action at law to recover the moneys deposited would have served as well as the summary proceeding in bankruptcy. In any event Schnur, who holds the deposit under the stipulation as a mere stakeholder, cannot obtain the beneficial ownership without affirmative action against which the trustee may set up the defense of usury. Accordingly, the order of the court below was right and the appeal must fail. Order affirmed. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_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. ARLINGTON COUNTY REPUBLICAN COMMITTEE; Kevin Allen; Morton Blackwell; Joseph Evans; Mary N. Dabinett; John F. Dolan; Paul Haire; Thomas Heckard; Eugene Iwanciw; Daniel J. Murphy; Deborah M. Phillips; Donna Wiesner; Arlington Libertarian Committee; Duncan Sellars; Richard E. Sincere, Jr.; Michael D. Ward, Plaintiffs-Appellees, v. ARLINGTON COUNTY, VIRGINIA; Susan Ingraham, Zoning Administrator, Defendants-Appellants. No. 92-1655. United States Court of Appeals, Fourth Circuit. Argued Oct. 28, 1992. Decided Jan. 4, 1993. As Amended Jan. 21, 1993. Cynthea Lee Perry (argued), Special Counsel, Charles G. Flinn, on brief, County Atty., Arlington, VA, for appellants. Victor Michael Glasberg (argued), Victor M. Glasberg & Associates, Jeanne Goldberg, Victor M. Glasberg & Associates, John Kenneth Zwerling, William Mof-fitt, Moffitt, Zwerling & Kemler, P.C., Alexandria, VA, Stephen B. Pershing, American Civil Liberties Union Foundation of Virginia, Richmond, VA, for appellees. Before MURNAGHAN, NIEMEYER, and HAMILTON, Circuit Judges. OPINION HAMILTON, Circuit Judge: Arlington County, Virginia (the County) appeals the district court’s grant of summary judgment in favor of the plaintiffs-appellees (the Political Parties), and the subsequent injunction enjoining the County from enforcing parts of its ordinance governing the display of signs. 790 F.Supp. 618 (E.D.Va.1992). The challenged provisions of the ordinance, enacted as section 34 of the Arlington County Code, included: § F.4.f. and § E.7., limiting the number of temporary signs that an owner could place on his property to two; § C.7., prohibiting certain noncommercial portable signs; § G.I., prohibiting noncommercial signs on commercial property; and § A.I., providing a set time within which the County had to reject applications for temporary sign permits and provide reasons for any rejection. The County also appeals the district court’s award of attorneys’ fees in favor of the Political Parties. We agree with the district court’s conclusion that the two-sign limit provisions im-permissibly infringed on the Political Parties’ First Amendment guarantee of freedom of speech. Thus, we affirm that portion of the district court’s decision. However, we disagree with the district court’s conclusion that the three remaining challenged provisions (§§ C.7., G.I., and A.l.) also violated the Political Parties’ First Amendment rights and, therefore, reverse that part of the district court’s decision. Because the County subsequently amended these three remaining provisions, the practical effect of this reversal is to vacate and remand the award of attorneys’ fees so that the district court may consider modifying this award in light of our decision. Finally, we vacate the permanent injunction against enforcement of these three remaining provisions, since the County’s subsequent amendment renders the injunction moot as to these three provisions. I Arlington County adopted ordinance # 90-39 on December 8, 1990, effective February 15, 1991. As originally passed, the challenged portions of the ordinance: (1) limited the number of temporary signs that could be posted in residential districts (two-sign limit); (2) allowed seven work days for the processing of permit applications (waiting period); (3) exempted only owner identification signs from a general ban on portable signs displayed on vehicles (portable sign provision); and (4) limited the content of signs displayed at commercial sites (commercial establishment sign provision). Arlington Co.Code § 34. On October 18,1991, the Arlington County Republican Committee, along with several other political parties and individual candidates for election, instituted this action in the United States District Court for the Eastern District of Virginia, seeking a preliminary injunction against the County to prohibit enforcement of the challenged provisions within this ordinance. On October 25, 1991, the district court issued the requested preliminary injunction. After the Arlington County general election on November 5, the Political Parties returned to court, this time seeking to permanently enjoin the County from enforcing the challenged provisions of the ordinance. In the proceedings before the district court, the Political Parties argued that the challenged provisions violated their First Amendment guarantee of freedom of speech. Specifically, they argued that the two-sign limit prevented both the Political Parties and individual homeowners from expressing their political views. The County defended this provision on the basis that it furthered the County’s substantial interests in promoting aesthetics and traffic safety. To rebut these interests, the Political Parties introduced evidence showing the lack of any specific aesthetic or traffic safety problems during the period the preliminary injunction was enforced. Thus, the Political Parties claimed that the County did not narrowly tailor its ordinance to further its stated interests. With respect to the portable sign and commercial establishment provisions, the Political Parties asserted that these provisions impermissibly favored commercial speech over noncommercial speech. For example, the Political Parties hypothesized that the portable sign section allowed a sign reading “Don Beyer’s Volvo” but not “Vote for Don Beyer.” In addition, the commercial establishment sign provision allowed a supermarket to post a sign advertising “a free pot with every chicken,” but not a sign advertising a candidate “promising to put a chicken in every pot.” The County defended these provisions on the basis that it had historically construed the ordinance to allow noncommercial speech wherever commercial speech was permitted. The County claimed that this interpretation rendered the Political Parties’ challenges to those three provisions nonjusticia-ble. Finally, with respect to the seven-day waiting period, the Political Parties asserted that the seven days in which the ordinance allowed the County zoning administrator to decide on permit applications effectively prevented spontaneous, last minute sign posting. Thus, the Political Parties claimed that the waiting period also infringed on their freedom of speech. The County responded with two arguments. First, it argued that the waiting period necessarily allowed the zoning administrator sufficient time to review applications for large, complex, permanent, commercial signs. Second, the County claimed that it historically decided on applications for temporary sign permits immediately. Thus, the County argued that the Political Parties’ challenge to this provision was also nonjusticiable. The district court rejected the County’s arguments for all of the challenged provisions, and held that the challenged provisions violated the First Amendment. The district court explained that the County did not narrowly tailor the two-sign limit or the waiting period provisions to serve its stated interests, and that the commercial establishment and portable sign provisions im-permissibly favored commercial speech over noncommercial speech. In reaching this decision, the district court rejected the idea that the Political Parties’ challenges to the commercial establishment, portable sign and waiting period provisions were nonjusticiable. The district court explained that facially unconstitutional statutes could not be saved by narrow interpretations. In reviewing the district court’s decision, we find it helpful to analyze the two-sign limit separately from the other three challenged provisions. II In reviewing the challenge to the two-sign limit, the district court first analyzed whether existing case law controlled its decision. Finding no controlling case law, the district court then undertook the test established by the Supreme Court to determine the constitutionality of statutes under the First Amendment. We adopt the same approach. A Existing Case Law On appeal, the County claims that Supreme Court precedent and subsequent Fourth Circuit interpretations expressly allow restrictions on temporary political signs in residential neighborhoods. The County primarily relies on Supreme Court precedent established in Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984), and Metromedia, Inc v. San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (plurality opinion), as well as subsequent Fourth Circuit interpretations of Vincent and Metromedia, established in Naegele Outdoor Advertising v. Durham, 844 F.2d 172 (4th Cir.1988); Georgia Outdoor Advertising, Inc. v. Waynesville, 833 F.2d 43 (4th Cir.1987); and Major Media of the Southeast v. Raleigh, 792 F.2d 1269 (4th Cir.1986), cert. denied, 479 U.S. 1102, 107 S.Ct. 1334, 94 L.Ed.2d 185 (1987). However, we find none of these cases provides authority for imposing the two-sign limit in the present case. In reaching this conclusion, we begin with the venerable principle that “[e]ach medium of expression... must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 95 S.Ct. 1239, 1247, 43 L.Ed.2d 448 (1975). See also, Metromedia, 453 U.S. at 502, 101 S.Ct. at 2889; FCC v. Pacifica Foundation, 438 U.S. 726, 748, 98 S.Ct. 3026, 3040, 57 L.Ed.2d 1073 (1978); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 781, 96 L.Ed. 1098 (1952). Thus, our analysis of the precedent cited by the County focuses on whether those cases specifically address restrictions on temporary political signs on residential property. In Metromedia, the Court first addressed the extent to which governments can restrict billboards in the interest of promoting aesthetics and traffic safety. The City of San Diego passed a law banning permanent signs anywhere but in industrial zones. However, the ordinance specifically exempted on-site billboards “advertising goods or services available on the property where the sign is located.” 453 U.S. at 503. Several companies owning billboards within the city challenged the ordinance as an unconstitutional suppression of speech. In a badly divided Court, a plurality of four Justices rejected the ordinance solely because it impermissibly preferred commercial speech over noncommercial speech. Absent this preference, the plurality could find no constitutional problem. Id., 453 U.S. at 512, 101 S.Ct. at 2895. The concurring opinion rejected the ordinance because it totally prohibited a protected form of speech without sufficient justification and was not narrowly drawn. Id. at 528-30, 101 S.Ct. at 2903-04 (Brennan, J., concurring). The three dissenting opinions generally concluded that a city may constitutionally ban all billboards, and that allowing some commercial signs did not invalidate the ordinance. Id. at 542, 560-61, 570, 101 S.Ct. at 2910, 2919-20, 2924 (Stevens, J., Burger, C.J., Rehnquist, J., dissenting in separate opinions). Thus, without an impermissible preference of commercial speech over noncommercial speech, seven Justices would have upheld the prohibition on billboards as an acceptable means to promote aesthetics and traffic safety. However, the statute in Metromedia specifically excluded “temporary political campaign signs” from regulation. Id. at 495, 101 S.Ct. at 2886. In addition, the state court in Metromedia defined the scope of the ordinance to proscribe only permanent signs, specifically intending to avoid prohibitions on “a small sign placed in one’s front yard proclaiming a political or religious message.” Id. at 494 n. 2, 101 S.Ct. at 2885 n. 2. The Court accepted this interpretation, holding that “[w]e deal here with the law of billboards,” and defining billboards as “large, immobile and permanent structure^].” Id. at 501, 502, 101 S.Ct. at 2889, 2890. In Vincent, the Court again considered the government’s power to ban signs in the interests of aesthetics and traffic safety. In Vincent, the City of Los Angeles passed an ordinance “prohibiting] the posting of signs on public property.” 466 U.S. at 792, 104 S.Ct. at 2122. Supporters of a candidate for election in Los Angeles challenged the ordinance under the First Amendment in an effort to prevent the city from removing campaign signs which they had posted on utility poles throughout the city. The Court upheld the ordinance, reasoning that “the visual assault on citizens... presented by an accumulation of signs posted on public property constitutes a significant substantive evil within the City’s power to regulate.” Id. at 807, 104 S.Ct. at 2130. However, in reaching its decision, the Vincent Court expressly distinguished banning signs on public versus private property. The plaintiffs in Vincent challenged the law in part because they believed it impermissibly favored speech on private property. The Court rejected this argument, reasoning that “[t]he private citizen’s interest in controlling the use of his own property justifies the disparate treatment.” Id. at 811, 104 S.Ct. at 2132. In the wake of these Supreme Court decisions, we also considered First Amendment challenges to various ordinances regulating the display of signs. Such a challenge first arose in this circuit in Major Media of the Southeast v. Raleigh, 792 F.2d 1269 (4th Cir.1986), cert. denied, 479 U.S. 1102, 107 S.Ct. 1334, 94 L.Ed.2d 185 (1987). In that case, the City of Raleigh enacted a statute, the relevant portions of which confined the location of off-premise signs to industrial zones and limited their size to 150 square feet when facing four-lane streets and seventy-five square feet when facing two-lane streets. Id. at 1270. The statute gave existing sign owners five and one-half years to satisfy these requirements. Although the court described the ordinance as regulating signs, the size limits and grace period clearly indicate that the ordinance applied only to large, permanent signs. A company owning several billboards in the city challenged the ordinance as an abridgment of its First Amendment rights and as an invalid taking of property. This court rejected the First Amendment challenge, reasoning that Metromedia allowed prohibitions on “all off-premise signs or billboards for aesthetic and [traffic] safety reasons,” absent any preference for commercial speech over noncommercial speech. Id. at 1272. Thus, this court concluded that the ordinance “does not impermissibly burden commercial speech.” Id. This court again scrutinized a similar ordinance under the First Amendment in Georgia Outdoor Advertising v. City of Waynesville, 833 F.2d 43 (4th Cir.1987). In that case, the City of Waynesville enacted an ordinance “effectively outlawing] all... billboards within the jurisdiction of the City.” Id. at 44. A company owning numerous billboards within the city challenged the ordinance under the First Amendment, claiming that it impermissibly “outlawed a protected form of expression, commercial off-premise advertising.” Id. This court rejected this claim, again reasoning that Metromedia allowed a city to “prohibit all off-premise signs or billboards for aesthetic and [traffic] safety reasons....” Id. at 45 (quoting Raleigh, 792 F.2d at 1272). Most recently, this court addressed a First Amendment challenge to a sign ordinance in Naegele Outdoor Advertising v. City of Durham, 844 F.2d 172 (4th Cir.1988). In that case, the City of Durham adopted “a billboard ordinance prohibiting] all commercial, off-premise advertising signs except alongside interstate or federally-aided primary highways.” Id. at 173. An owner of numerous billboards in Durham challenged this ordinance under the First Amendment. This court again rejected the challenge, citing Waynesville and Raleigh for the principle that a city may constitutionally prohibit “off-premise commercial billboards” to protect aesthetics and traffic safety. 844 F.2d at 173. We find none of our precedent controls the precise issue before this court for two reasons. First, the ordinances in our previous cases regulated billboards rather than temporary signs. Although these cases explained that Metromedia permitted a ban on “all off-premise signs or billboards for aesthetic and [traffic] safety,” this language should not be read to extend to restrictions on temporary political signs on residential property. As previously discussed, Metromedia only established “the law of billboards,” 453 U.S. at 501, 101 S.Ct. at 2889, and expressly recognized the inherently unique concerns in regulating billboards. Second, in all of the Fourth Circuit precedent discussed above, either the plaintiff challenged the ordinance as an impermissible burden on commercial speech {Durham and Waynesville), or we concluded that the ordinance did not impermissibly burden commercial speech {Raleigh). In contrast, the two-sign limit in the present case infringes on political speech. The Supreme Court consistently affords more protection to political speech than commercial speech. Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 563, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341 (1980). See also, Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983), (“[S]peech on public issues occupies the 'highest rung of the hierarchy of First Amendment values’ and is entitled' to special protection.”) (citation omitted). Thus, the two-sign limit in the present case requires more exacting scrutiny. B The Test Under the First Amendment Finding no dispositive precedent, we must analyze the two-sign limit under the Supreme Court’s test for determining whether a statute violates the First Amendment guarantee of freedom of speech. Under this test, we first question whether the two-sign limit burdens any speech. If we find any. burden, we must then determine whether the two-sign limit imposes content neutral or content based restrictions, If it is content neutral, we must then decide whether the two-sign limit serves any substantial interest of Arlington County. If the County identifies any interest, we must then determine whether the County narrowly tailored the two-sign limit to further this stated interest. Finally, we must also assess whether the two-sign limit leaves open ample alternative means for communicating the desired message. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984); United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). We agree with the district court that the two-sign limit affects speech rather than conduct. “Communication by signs and posters is virtually pure speech.” Baldwin v. Redwood, 540 F.2d 1360, 1366 (9th Cir.1976), cert. denied, sub nom. Leipzig v. Baldwin, 431 U.S. 913, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977) (footnote omitted). In addition, we agree that the two-sign limit infringes on this speech by preventing homeowners from expressing support for more than two candidates when there are numerous contested elections. Also, if two voters living within the same household support opposing candidates, the two-sign limit significantly restricts their ability to express support through sign posting. Since the two-sign limit burdens the freedom of speech, we next question whether those provisions impose content neutral or content based restrictions. Initially, the Political Parties claimed that the two-sign limit might be content based, since it exempted trespassing, for rent, and for sale signs. However, at oral argument they conceded that this was not the gravamen of their complaint. Since we invalidate the two-sign limit on other grounds, we assume for purposes of analysis that those provisions are content neutral. Under the content neutral test, we must assess whether the two-sign limit furthers any substantial governmental interest. As discussed earlier, the County defends the two-sign limit by arguing that it promotes aesthetics and traffic safety. We agree with the district court’s decision that these are substantial governmental goals. Vincent, 466 U.S. at 805, 104 S.Ct. at 2129; Metromedia, 453 U.S. at 507-08, 101 S.Ct. at 2892-93. Having found two substantial governmental interests, we next focus on whether the County narrowly tailored the two-sign limit to further these interests. We agree with the County that under this test, we cannot question whether narrowly tailoring the statute requires allowing more than two signs. Such a limit is a legislative decision, not reviewable by courts. See, e.g., Bd. of Trustees of State University of New York v. Fox, 492 U.S. 469, 478, 109 S.Ct. 3028, 3033, 106 L.Ed.2d 388 (1989) (Narrowly tailoring a statute does not “require elimination of all less restrictive alternatives.”) (citations omitted). However, this court may require the County to justify its chosen restrictions by demonstrating a necessity for the two-sign limit. Under this part of the analysis, we question whether the County needs to limit the number of signs on private property to protect aesthetics. As the Court noted in Vincent, “[pjrivate property owners’ esthetic concerns will keep the posting of signs on their property within reasonable bounds.” 466 U.S. at 811, 104 S.Ct. at 2132. We also find persuasive the fact that the County could not show any specific aesthetic or traffic problems arising while the preliminary injunction was in force. In contrast, the district court found that after issuing the preliminary injunction, “additional signs posted were neatly displayed and not unreasonably numerous.” Joint Appendix (J.A.) at 234. In addition, it is evident that the County could promote its interests through other, less restrictive means. First, the County could regulate the design and condition of these signs. Second, to ensure traffic safety the County could prevent posting signs within a certain distance of the street. Third, limiting the duration of these signs also furthers the County’s interest. Finally, we agree with the district court that the two-sign limit did not provide sufficient alternatives for political speech. The County suggests several viable alternatives, including speeches in public places, door to door and public canvassing, distributing handbills, appearing at citizen group meetings, advertising, posting signs in local businesses and automobiles, and posting two signs at private residences. However, we agree with the district court that these alternatives are insufficient in that they require too much time involvement {e.g., handbilling or canvassing), or too much expense. In addition, the County’s laundry list fails to recognize that the two-sign limit infringes on the rights of two groups: the candidates and the homeowners. Homeowners also express their views by posting political signs in their yard. In Vincent, the Court upheld the restraint on public signs in part because the speaker could still “exercise his right to speak and distribute literature in the same place where posting of signs on public property is prohibited.” 466 U.S. at 812, 104 S.Ct. at 2132-33 (emphasis added). Here, there is no viable alternative to the homeowner on his property. In summary, we find that the County did not narrowly tailor the two-sign limit to further its interests in promoting aesthetics and traffic safety. In addition, we find that the provision leaves no viable alternative means of political speech. Thus, we find the two-sign limit violated the First Amendment rights of the Political Parties. Ill The Political Parties challenged the commercial establishment and portable sign provisions on the basis that they impermissibly favored commercial speech over noncommercial speech. In addition, the Political Parties challenged the waiting period provision on the basis that it effectively prevented spontaneous, last minute posting of political signs. In response, the County argued that it historically allowed noncommercial speech wherever the ordinance allowed commercial speech, and that it historically decided on applications for temporary sign permits immediately. The Political Parties presented no evidence refuting these alleged interpretations and applications of the challenged provisions of the ordinance. Thus, the County argued that its narrow interpretations and applications of these provisions created no actual case or controversy before the district court. The district court rejected the County’s claim that its narrow interpretation and application of the commercial establishment, portable sign and waiting period provisions rendered the Political Parties’ challenges to these provisions nonjusticiable. Instead, the district court accepted the Political Parties’ argument that narrow interpretations can only save a vague statute which is subject to several possible interpretations. J.A. at 28-29. The district court explained that these three challenged provisions in the present case contained precise language and that “[tjhis court declines to write non-binding limits... into an ordinance whose meaning is plain.” J.A. at 29, 33, and 34. The district court then held that these provisions violated the First Amendment guarantee of freedom of speech. We disagree with the district court’s conclusion that the County’s narrow interpretation and application could not protect these three provisions from constitutional attack. Supreme Court precedent recognizes that a party may have no justiciable challenge to a particular statute if government interpretations preclude enforcement of that statute as written. For example, in Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), the Court refused to enjoin a local ordinance that prohibited picketing in front of an establishment. The Court construed the statute narrowly so as to avoid any constitutional problem, relying on statements by the city, “which indicate that the town takes, and will enforce, a limited view of the ‘picketing’ proscribed by the ordinance.” Id. at 484, 108 S.Ct. at 2502. In addition, in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), the Court held that a challenge to a ban on contraceptives presented no justiciable question even though the law was clear on its face, because the state never enforced the law. The Court reasoned, “deeply embedded traditional ways of carrying out state policy... or not carrying it out... are often tougher and truer law than the dead words of the written text.” Id. at 502, 81 S.Ct. at 1755. In the present case, the County’s uncon-tradicted evidence indicates that its historical interpretation and application of the commercial establishment, portable sign, and waiting period provisions did not result in enforcement of those provisions as written. Thus, we think the Political Parties’ challenges to those three provisions were nonjusticiable. IY After the ruling by the district court, the County amended the commercial establishment, portable sign and waiting period provisions of its ordinance. These amendments expressly allow noncommercial speech wherever the ordinance permits commercial speech, and require the county zoning administrator to decide on applications for temporary sign permits within twenty-four hours. The Political Parties then moved this court to dismiss as moot the County’s appeal on these three provisions. The County contested this motion, reasoning that the amendments merely clarified the County’s historical interpretation and application of these provisions. We deny this motion, because the validity of the district court’s decision with respect to the original commercial establishment, portable sign, and waiting period provisions may affect the amount of the attorneys’ fees award. The district court awarded attorneys’ fees to the Political Parties for their significant contribution in changing an unconstitutional law. Since we find that only the two-sign limit was subject to constitutional attack, we cannot say that the Political Parties significantly contributed to any change in the other three provisions. The district court may wish to modify the attorneys’ fees award to reflect this result. However, the County's amendments do moot the district court’s permanent injunction enjoining enforcement of the commercial establishment, portable sign and waiting period provisions. Thus, we vacate the injunction with respect to these three provisions. Y For the reasons stated herein, we affirm the district court with respect to its invalidation of the two-sign limit, but reverse the decision with respect to the commercial establishment, portable sign, and waiting period provisions. Because the County subsequently amended the latter three provisions, the practical effect of this reversal is to vacate and remand the award of attorneys’ fees for further consideration by the district court. Finally, we vacate the permanent injunction with respect to the commercial establishment, portable sign, and waiting period provisions, because the County’s subsequent amendment of these provisions renders that part of the injunction moot. AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED. . Specifically, the relevant sections provided: § 34 F. Signs Permitted in All Districts With Permits 4. Temporary noncommercial signs are permitted in residential districts subject to the following: f. No more than one (1) sign is permitted for each principal dwelling unit. g. The sign may be freestanding or placed in a window. (The County construes § 34 E.7., permitting “one (1) non-commercial or 'for sale,’'rent,' or 'lease' sign,” to allow one additional sign per residence. Thus, these sections combined create the two-sign limit.) § 34 A. Administration 1. A sign permit shall be obtained from the zoning administrator before any sign or advertising structure is erected_ A sign permit shall be approved or rejected within seven (7) work days. Upon request, a statement of the reasons for denial of a sign permit shall be provided within thirty (30) days after rejection.... § 34 C. Prohibited Signs The following types of signs are prohibited and shall not be permitted by variance: 7. Any portable sign, including any signs displayed on a vehicle which is used primarily for the purpose of such display. This shall not include identification signs on vehicles identifying the owner of the vehicle, or bumper stickers. § 34 G. Signs permitted in All “C" and "M” Districts With Permits. Business signs identifying the products or services available on the premises or advertising a use conducted thereon may be displayed in ‘C’ and ‘M’ Districts.... . The County also briefly cites to Burson v. Freeman, - U.S. -, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992), where the Court upheld a complete ban on temporary, political signs within 100 yards of polling places. However, in that case the Court upheld the ordinance as a reasonable means to further two compelling governmental interests of protecting the right of citizens to vote freely for candidates of their choice and conducting an election with integrity and reliability. In the present case, the County does not claim that its ordinance serves these compelling governmental goals. . The Court noted that it had previously upheld similar restrictions in summary decisions, but had never addressed such an ordinance after full, plenary review. Metromedia, 453 U.S. at 500, 101 S.Ct. at 2888. . Moreover, both the plurality opinion and concurring opinion recognized the inherently unique qualities of billboards. Id. at 502, 101 S.Ct. at 2889 ("[B]ecause it is designed to stand out and apart from its surroundings, the billboard creates a unique set of problems for land use planning and development.’’); Id. at 528, 101 S.Ct. at 2903 (Brennan, J., concurring) ("It is obvious that billboards do present their own unique problems: they are large immobile structures that depend on eye-catching visibility for their value.”). . At least one other court distinguished billboard restrictions from temporary political sign restrictions. City of Antioch v. Candidates Outdoor Graphic Service, 557 F.Supp. 52, 58 (N.D.Cal.1982). ("Permanent, fixed structures like billboards are a medium different from small, detachable political signs and present different regulatory problems.”) . The 1991 Arlington County general election contained at least seven contested elections. . See, e.g., Verrilli v. City of Concord, 548 F.2d 262, 265 (9th Cir.1977), (court invalidated an ordinance regulating signs because the city “failed to meet its burden [of] demonstrating the necessity of [its] restriction to further a legitimate government interest”). . The County apparently recognizes this since its ordinance limits sign posting from seventy days before the event to ten days after. . Notably, posting signs in local businesses and automobiles violates the commercial establishment and portable sign provision as written. Only the County’s interpretation of these sections allows this activity. See infra part III. . See also, Beck v. Communications Workers of America (C.W.A.), 776 F.2d 1187, 1199 (4th Cir.1985), where this court interpreted Supreme Court precedent to establish the principle that: a statute challenged for unconstitutionality under the First Amendment may be sustained if, as a result of a reasonable narrowing construction consonant with the legislative purpose reflected in the statute, the constitutional objective may be removed or obviated. . The specific amendments included: A. With respect to the waiting period, the County added the following language to § 34 A.I.: A sign permit for any temporary sign that requires a permit shall be approved or rejected within 24 hours of the receipt of a sign permit application. If the permit is denied, the reason for the denial will be given orally, with a written reason provided within five days, if requested. B. To clarify the portable and commercial dwelling sign provisions, the County added § 34 A.4., which states: Wherever commercial speech is permitted on a sign under this section of the ordinance, non-commercial speech also is permitted Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_treat	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. FIGGE AUTO CO., a Co-Partnership, and Greg Figge, Individually, and Lloyd H. Strand, Administrator of the Estate of Cyril R. Figge, Deceased, Appellants, v. David James TAYLOR, by Mrs. Arlene Taylor, His Mother and Next Friend, Appellee. No. 17393. United States Court of Appeals Eighth Circuit. Jan. 7, 1964. Arthur H. Jacobson, Waukon, Iowa, James D. Bristol, Waukon, Iowa, Jacobson & Bristol, Waukon, Iowa, of counsel, for appellants. Ira J. Melaas, Jr., Decorah, Iowa, Frank R. Miller and Floyd S. Pearson, Decorah, Iowa, Miller, Pearson & Melaas, Decorah, Iowa, for appellee. Before VOGEL, BLACKMUN and RIDGE, Circuit Judges. VOGEL, Circuit Judge. David James Taylor, by his mother and next friend, brought this action against Figge Auto Company, a co-partnership, and Cyril R. Figge and Greg Figge, co-partners, individually, defendants, and Lloyd H. Strand, Administrator of the estate of Cyril R. Figge, deceased, substituted defendant. All parties will be designated here as they were in the court below. Plaintiff sought money damages because of personal injuries sustained by him as the result of an automobile accident. Diversity of citizenship and amount meet federal court jurisdictional requirements. The case was tried to a jury and resulted in a verdict in plaintiff’s favor in the amount of $22,509. Defendants appealed from the judgment based upon the jury verdict. Error is predicated upon: 1. The District Court’s overruling defendants’ motions for directed verdict and for judgment notwithstanding the verdict. 2. The District Court’s overruling defendants’ motion to clarify a pre-trial order with reference to $1,509 medical expense and the inclusion of such amount in the jury’s verdict. It is defendants’ contention that because plaintiff was a minor, the right to recover for medical expenses would be owned by his parents and testimony regarding such expense was therefore irrelevant in this action. The first claim of error is based mainly upon defendants’ contention that the plaintiff was guilty of contributory negligence as a matter of law, that he therefore failed to sustain the burden of proving freedom from contributory negligence (a requirement under the law of Iowa) and, further, that the driver of the defendants’ car was not guilty of negligence. As in practically all tort cases, there are here conflicts in the evidence and disputes between witnesses and parties, from which tangled web it was the duty of the jurors, as the finders of the facts, to ascertain and to declare the truth. This they have done as they saw it. That was their responsibility. This as an appellate court, in ruling upon the correctness of the trial court’s overruling a motion for a directed verdict and a motion for judgment notwithstanding the verdict, must view the evidence in the light most favorable to sustaining the jury’s findings. We must also give to the prevailing party the benefit of every reasonable inference that may be drawn from the evidence. MacDonald Engineering Co. v. Hover, 8 Cir., 1961, 290 F.2d 301; Clinton Foods, Inc. v. Youngs, 8 Cir., 1959, 266 F.2d 116, 117-118; Nesei v. Willey, Iowa, 1956, 247 Iowa 621, 75 N.W.2d 257, 259; Gowing v. Henry Field Co., 1938, 225 Iowa 729, 281 N.W. 281, 283; and Goman v. Benedik, 1962, 253 Iowa 719, 113 N.W.2d 738, wherein the Supreme Court of Iowa stated, at page 739 of 113 N.W.2d: “ * * * It is not disputed by appellant, that we must view the evidence in the light most favorable to plaintiff; that it is only the exceptional case in which the issue of freedom from contributory negligence should not be submitted to the jury — only where such negligence is so palpable, flagrant and manifest that reasonable minds may fairly reach no other conclusion; that if there is any evidence tending to establish plaintiff’s freedom from contributory negligence, the question is one of fact for the jury and doubts should be resolved in favor of such submission.” As Judge John Sanborn said in Glawe v. Rulon, 8 Cir., 1960, 284 F.2d 495, 497: “It must be kept in mind that this Court will not concern itself with doubtful issues of fact which were for the jury nor with doubtful issues of local law as to which the trial court has reached a permissible conclusion. Webb v. John Deere Plow Co., Inc., 8 Cir., 260 F.2d 850, 852. In that case we said (at page 852): ‘Personal injury eases such as this are essentially fact cases, and it is rarely that a party aggrieved by the verdict of the jury can, on appeal, successfully visit his grievance against the jury upon the trial court.’ See, also, Greene v. Werven, 8 Cir., 275 F.2d 134, 137-138. It seems safe to say that as a general rule the verdict of the jury marks the end of such a case.” See Minnesota Mutual Life Ins. Co. v. Wright, 8 Cir., 1963, 312 F.2d 655; Gulf, Mobile & Ohio R. Co. v. Thornton, 8 Cir., 1961, 294 F.2d 104; Hanson v. Ford Motor Co., 8 Cir., 1960, 278 F.2d 586; and Greene v. Werven, 8 Cir., 1960, 275 F.2d 134. Having these rules in mind and notwithstanding that there is evidence to the contrary, the record indicates and the jury could have found and undoubtedly did find the following: The accident occurred on August 14, 1960, at about 12:30 in the morning on a highway between the towns of Calmar and Ossian, Winneshiek County, Iowa. The main traveled portion of the highway was concrete pavement eighteen feet in width and running in an east-west direction. There was an asphalt strip on the south shoulder of the concrete some twelve to eighteen inches wide. The grass shoulder on the south side of the highway measured from eight to eight and one-half feet. The shoulder on the north side of the highway measured approximately seven and a half feet in width. There was a slight drizzle of rain at the time. The plaintiff, then 17 years of age, (20 years old at the time of trial), accompanied by his father, the owner of the car, his mother and four younger sisters and a brother, was driving in an easterly direction on the highway when the left tire on a trailer the family ear was pulling went flat. Plaintiff drove the car and trailer off onto the south shoulder of the highway two to three feet from the main traveled portion of the road. Plaintiff and his father unhooked the trailer from the automobile and the plaintiff prepared to change the tire on the trailer. In the meantime, his father took the car, drove on farther east to a point where he could turn around, which he did, returned to the scene of the accident, and parked his car on the south shoulder of the highway facing west with the headlights shining upon the trailer. The lights were on low beam. Plaintiff began working on the wheel and tire of the trailer. While he was doing so, at least three cars approached from the west going east and passed them safely without any incident whatsoever. At this time Cyril R. Figge, accompanied by his wife, minor son and two minor daughters, was enroute home to Ossian, Iowa, having left Pine Bluff, Wyoming, the morning of August 13, 1960. He was traveling in an easterly direction. There is credible evidence supporting the view that he was traveling at a high rate of speed estimated at 60 to 70 miles per hour; that as he came over a slight rise in the highway approximately 700 feet west of the Taylor vehicles, he saw the headlights of the Taylor car and said to his wife, “I just can’t understand what is ahead of us.” As he approached the Taylor vehicles, he swung to his right onto the south shoulder, striking the plaintiff, the parked and disabled trailer and knocking the Taylor car backward across the highway and into the ditch on the north side. There is substantial evidence in the record supporting the jury’s finding that Cyril R. Figge was guilty of negligence which was a proximate cause of the accident. It requires no detailed discussion. Under the law of Iowa the plaintiff in such a case as this must plead and prove freedom from contributory negligence before he may recover. Scott v. Chicago, Rock Island & Pacific R. Co., 8 Cir., 1952, 197 F.2d 259, 260; Fort Dodge Hotel Co. of Fort Dodge, Iowa, v. Bartelt, 8 Cir., 1941, 119 F.2d 253, 258; Paulsen v. Haker, 1959, 250 Iowa 532, 95 N.W.2d 47, 55. It is also the law of Iowa, and so conceded by counsel for the defendants, that the negligence of the father is not attributable to his minor child, so that here, if the plaintiff’s father was guilty of negligence, that fact in itself does not establish that the plaintiff was guilty of negligence by imputation. See Wheatley v. Heideman, 1960, 251 Iowa 695, 102 N.W.2d 343, at page 353 of 102 N.W.2d; Primus v. Bellevue Apartments, 1950, 241 Iowa 1055, 44 N.W.2d 347, 25 A.L.R.2d 565; Ives v. Welden, 1901, 114 Iowa 476, 87 N.W. 408. The main, if not the only question regarding liability is whether the jury’s finding that plaintiff was not guilty of contributory negligence is supported by the evidence or if such finding is so contrary to the conclusion which would be reached in the minds of reasonable men that it must be set aside as a matter of law. Plaintiff himself has no recollection of the collision. He does recall three cars approaching from the west and passing him without interference as he worked on the tire. His last recollection is of turning around and attempting to wash some grease from one of his hands. He was on the shoulder of the highway. While aside from general rules of law which have been referred to, these cases generally speaking must be determined on a case-to-case basis. Nevertheless, the Supreme Court of Iowa, by whose decisions we are herein bound, has had occasion to pass upon fact situations not too dissimilar from that with which we are here concerned and in doing so has laid down guide lines to assist in determining this one. Such a case is Hanson v. Manning, 1931, 213 Iowa 625, 239 N.W. 793. The accident there occurred on an east-west highway at about 5:30 p. m. November 20, 1929. It was dark. Plaintiff was a guest in a car which had been headed east and was stopped on its right or south side of the highway about one and one-half feet from the south edge of the main traveled portion thereof and so stopped in order to repair a left rear tire. A service car, facing west, was backed within ten to fifteen feet of the disabled car. The road was dry and straight. A light from the rear of the service car furnished light between the two cars where the repairmen were working. Defendant’s car came from the west, passed the service car on the south side, striking the open front door of the disabled car and hitting the plaintiff as he was facing north and about to get into the car from the right side. Defendant’s was the only car that evening that tried to pass to the south of the vehicles. All other traffic had passed on the north side without incident. Because of erroneous instructions, the Supreme Court reversed a jury’s verdict and judgment for the defendant and directed a new trial. In doing so, the court stated at pages 796 and 797 of 239 N.W.: “Negligence is a relative term. Both plaintiff and defendant were bound to exercise ordinary or reasonable care. Whether either or both have done so depends on the circumstances of the case. When from the facts and circumstances reasonable minds might come to different conclusions as to whether ordinary care was exercised or not, the question is for the jury. Wine v. Jones, 183 Iowa, 1166, 162 N.W. 196, 168 N.W. 318; Vass v. Martin, 209 Iowa, 870, 226 N.W. 920; Spiker v. Ottumwa, 193 Iowa, 844, 849, 186 N.W. 465. “Plaintiff, or rather the owner of the car, had the right to stop, using reasonable care, and the owner and his employees had the right to make repairs and to use the highway in reasonable manner, exercising reasonable care, for that purpose. They were not trespassers, though they might have been negligent. Schacht v. Quick, 178 Wis. 330, 190 N.W. 87, 25 A.L.R. 130. Presence on one side of the street or the other is not per se negligence. Dickeson v. Lzicar, 208 Iowa, 275, 225 N.W. 406; Simrell v. Eschenbach, 303 Pa. 156, 154 A. 369; Billingsley v. McCormick Transfer Co., 58 N.D. 913, 228 N.W. 424, 426; Schacht v. Quick, 178 Wis. 330, 190 N.W. 87, 25 A.L.R. 130. **** “The defendant in argument assumes that the lights of the repair truck blinded or deceived defendant, and that defendant did not know that the repair truck was standing still and was deceived into thinking that the repair truck was a moving car. Defendant assumes that defendant did not see the truck or tower light or observe that a car was stationed in the rear of the truck, and assumes that defendant did not know, and in the exercise of reasonable care would not have known, that persons were or might be standing about the truck and car and in peril from his automobile. These matters were for the jury, not fpr the court. “Plaintiff was not required as matter of law to keep a constant lookout for approaching vehicles. He was only required to exercise ordinary care. Whether he did so or not is a question of fact for the jury. Wine v. Jones, 183 Iowa, 1166, 1170, 162 N.W. 196, 168 N.W. 318; Spiker v. Ottumwa, 193 Iowa, 844, 849, 186 N.W. 465; Smith v. Spirek, 196 Iowa, 1328, 1333, 195 N.W. 736; 42 C.J. 1135. (Emphasis supplied.) **** “ * * * Plaintiff was not required to anticipate negligence on the part of the drivers of approaching vehicles. Id.; Shields v. Holtorf, 199 Iowa, 37, 201 N.W. 63; Pixler v. Clemens, 195 Iowa, 529, 532, 191 N.W. 375; 45 C.J. 954.” Another such case is Janes v. Roach, 1940, 228 Iowa 129, 290 N.W. 87. There a stalled Chevrolet was parked facing west on the north shoulder of a generally east-west highway, with the left rear tire on the pavement. Plaintiff was driving a truck in the opposite direction. He passed the Chevrolet and then parked his truck on his right or gouth shoulder of the pavement, leaving the headlights lighted. Plaintiff left his truck, crossed the highway and was standing in front of the stalled Chevrolet. Defendant, traveling in the same direction as that in which the Chevrolet had been traveling and opposite to that in which plaintiff’s truck had been traveling, ran into the rear of the Chevrolet, which struck the plaintiff, causing injuries which were the basis of his cause of action. In sustaining a judgment based on a verdict of the jury in plaintiff’s behalf, the Supreme Court of Iowa said, at page 90 of 290 N.W.: “The contention that appellee was guilty of contributory negligence as a matter of law is without merit. He was not standing upon the travel-led portion of the highway and was not required, as a matter of law, to keep a constant lookout for vehicles approaching upon the pavement or to anticipate that another automobile would be driven against the rear of the Chevrolet. He was only required to exercise ordinary care. Whether or not he did so was a question for the fury. Hanson v. Manning, 213 Iowa 625, 239 N.W. 793; Townsend v. Armstrong, 220 Iowa 396, 260 N.W. 17. The court also instructed the jury that the parking of appellee’s truck on the opposite side of the highway unattended, with motor running and without proper flares, would constitute negligence and submitted to the jury the question of whether or not such negligence contributed to the accident. No reversible error appears in either of said instructions.” (Emphasis supplied.) See, also, Marts v. John, 1949, 240 Iowa 180, 35 N.W.2d 844, 846, and Engle v. Nelson, 1935, 220 Iowa 771, 263 N.W. 505, citing with approval the Hanson case, supra, and stating at page 508 of 263 N.W.: “ * * * In that case we held that the ‘plaintiff was not required * * * to keep a constant lookout for approaching vehicles. He was only required to exercise ordinary care. Whether he did so or not is a question of fact for the jury.’ ” The principle that it is for the jury to determine whether or not the plaintiff exercised the standard of care required of him was recently reiterated by the Supreme Court of Iowa in Mundy v. Olds, 1961, 252 Iowa 888, 109 N.W.2d 241, 242: “ * * * Whether or not appellee, in view of the conflict in the testimony, exercised due care under the circumstances for his personal safety, presents a question upon which reasonable minds might well differ. There is substantial proof in the record supporting each party in his contention. It was clearly a fact question for the jury and this Court on appeal will not reweigh the evidence and substitute its opinion for that of the jury. Schoonover v. Fleming, 239 Iowa 539, 32 N.W.2d 99; L. & W. Const. Co. v. Kinser, 251 Iowa 56, 99 N.W.2d 276.” Defendants rely heavily on Denny v. Augustine, 1937, 223 Iowa 1202, 275 N.W. 117, and Fortman v. McBride, 1935, 220 Iowa 1003, 263 N.W. 345. Each is clearly distinguishable on the facts and is of no help to defendants herein. Other cases cited have been considered and found not to be applicable. We conclude that on defendants’ first point, a jury question as to contributory negligence was presented and that the trial court properly overruled the motion for a directed verdict and the motion for judgment n. o. v. Defendants’ second point questions the propriety of allowing the jury to include in the verdict the amount of the plaintiff’s medical expense. In plaintiff’s complaint, he sought recovery for medical and hospital expense attributable to his injuries in the amount of $1,693.37. No particular point of the fact that the plaintiff was a minor was made in the defendants’ answer. After a pre-trial conference held on September 18, 1961, before the Honorable John W. Delehant, United States District Judge sitting by assignment, the following order was made: “The admissions of fact or of documents which will avoid unnecessary proof: “b) After discussion between counsel, counsel for the defendants agreed to waive the foundation for the introduction in evidence upon the trial of statements or bills for items of expense for which claim is made by the plaintiff but with the understanding that the defendants reserve the right to object to the admission of any such statement or bills in evidence on the ground of relevancy or materiality.” On November 21, 1962, the attorneys for the parties reported to the court on what apparently was a “preliminary pre-trial conference”, in which they stated: “11. The following medical and hospital bills have been identified in pencil as preliminary pre-trial exhibits : “Preliminary Pre-Trial Exhibit Numbers 1. French’s Funeral Home, ambulance service .... $ 15.00 2. Smith Memorial Hospital, hospital expense 1,191.87 3. Garfield Miller, M. D., medical ............. 390.00 4. D. W. Wright, M. D. .. 10.00 5. E. R. S. Wyatt, medical 50.00 6. Kitchener-Waterloo Hospital ............ 44.00 “Defendants agree to waive the foundation for the introduction in evidence upon the trial of the above exhibits but with the understanding that the defendants reserve the right to object to the admission of any such exhibit on the ground of relevancy or materiality. Defendants agree that the amounts stated in the various exhibits above set forth are fair and reasonable values for the services for which the charges are made. The foregoing exhibits are retained in the file of the plaintiff’s attorney and will be produced upon pre-trial conference. “29. The parties call the Court’s attention to the pre-trial conference report made by the Hon. John W. Delehant on September 18, 1961.” On January 31, 1963, the Honorable Edward J. McManus, to whom the preliminary pre-trial conference report had been presented, made the following “Final Pre-Trial Order”: “1. * * * It is further stipulated that as a result of injuries received in the collision, plaintiff sustained damages for medical and hospital expenses in the total sum of $1,509.00 and that a person the age of plaintiff at the time of trial has a life expectancy of 50.37 years. It is further stipulated that plaintiff sustained hospital and doctor expenses in the sum of $191.87 as a result of mononucleosis, but the defendant objects to its causal connection with the collision.” (Emphasis supplied.) On April 22, 1963, the day the case opened for trial before a jury, defendants’ counsel filed a motion to clarify the final pre-trial order entered January 31, 1963, supra. The motion was resisted by plaintiff’s counsel. Judge McManus overruled defendants’ motion, stating, inter alia: “In view of the stipulation and the final pre-trial order of January 31, 1963, the Court is going to, and does, overrule the motion to clarify the final pre-trial order with the feeling that the interest of justice dictates the decision under the circumstances of the case.” During trial and just before the plaintiff rested, plaintiff’s counsel, without objection by the defendants, read the following stipulation into the record before the jury: “Mr. Melaas: The parties stipulate and agree that on August 14, 1960, at 12:30 Á.M., a collision occurred between an automobile being driven and operated by Cyril R. Figge and certain motor vehicle equipment with which the plaintiff was working, and that as a direct result of such collision plaintiff was injured. It is further agreed that at such time and place the Corvair automobile operated by Cyril R. Figge was owned by the Figge Auto Company, a partnership consisting of Cyril R. Figge and Gregg Figge as co-partners, and that at the time of the collision the defendant, Cyril R. Figge, who is now deceased, was driving the automobile with the consent of its owner. “It is further stipulated — I should read about the medical. “The Court: Now this paragraph of the stipulation covers the matters in your medical and hospital bills, Exhibits Q to U, inclusive, and this will be for the particular benefit of the jury as far as the totals involved are concerned. “Mr. Melaas: It is further stipulated that as a result of the injuries received in the collision, plaintiff sustained damages for medical and hospital expense in the total sum of $1509.00, and that a person the age of the plaintiff at the time of trial has a life expectancy of 50.37 years. “It is further stipulated that plaintiff sustained hospital and doctor expenses in the sum of $191.87 as a result of mononucleosis, but the defendants object to its causal connection with the collision. The Court has sustained defendants’ objection to the hospital and doctor expenses in the sum of $191.87 that are attributable to the mononucleosis. The Court has admitted into evidence the bills totalling $1509.00 for the medical and hospital expense as stipulated to by the parties.” (Emphasis supplied.) In charging the jury, the trial court stated: “Plaintiff alleges that by reason of his claimed injuries, proximately resulting from the accident involved in this case, he has sustained general damages in the sum of $75,000.00 and has lost an additional sum of $1,693.37 on account of medical and hospital expenses.” No exception was taken to such charge. During their deliberations the jurors sent a note to the trial judge as follows: “Does the amount to be placed on the face of the verdict include the medical expenses. “Example: of his recovery at $40,000.00 or $41,509.00. “This is just an example attach no significance to figures. “Mr. A. P. DeLong, Foreman.” The court gave the following supplemental instruction, to which no exception was taken: “In answer to your request for supplemental instruction, you are instructed that the amount to be placed on the form of the verdict should include the medical expense, if the jury finds the plaintiff is entitled to recover.” The verdict was for $22,509, obviously giving the plaintiff $1,509 medical expense incurred by reason of the accident and excluding the $191.87 medical ex-' pense attributed to mononucleosis, to which defendants had particularized objections while stipulating that “ * * * plaintiff sustained damages for medical and hospital expenses in the total sum of $1,509.00.” We think the following matters are supportive of our opinion that no error has been committed: (1) The failure of defendants’ counsel to object to the reading of the stipulation before the jury during the trial of the case; (2) the failure of defendants’ counsel to object to the court’s charge with reference to the medical expense; and (3) the failure of the defendants’ counsel to object to the supplemental instruction with reference to medical expense. Under Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C.A., no party may assign as error -the giving or 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 objection. With reference to possible exceptions to the applicability of Rule 51, Federal Rules of Civil Procedure, 28 U.S.C.A., Vol. 2B, Barron and Holtzoff, Federal Practice and Procedure, 1961 edition, states at page 475: “ * * * if there is to be a plain error exception to Rule 51 at all, it should be confined to the exceptional case where the error has seriously affected the fairness, integrity, or public reputation of judicial proceedings.” We do not consider this such a case but, rather, that if there was error at all, it was harmless error within the provisions of Rule 61, Federal Rules of Civil Procedure, 28 U.S.C.A. Additionally, it should be pointed out that at the time of trial plaintiff was earning $67 a week as a technician for the Naugatauk Chemicals; that he was also operating the family farm; and that he was raising rabbits commercially. It may well be that he had himself paid the medical expenses or had promised to pay for them. Furthermore, under Section 599.2 of the Iowa Code Annotated there could well be a secondary liability on the plaintiff even though he was a minor at the time of trial. In any event, the stipulation entered into by the parties through their counsel to the effect that “ * * * plaintiff sustained damages for medical and hospital expenses in the total sum of $1,509.00” (emphasis supplied) and their particularization in the stipulation with reference, to their objections to the $191.87 expense for mononucleosis because it was not connected with the accident, may-very well have led counsel into believing,, as we think it did, that no proof of payment or obligation to pay or further establishment of personal liability on the part of the plaintiff himself was necessary. For all of the reasons given, we believe that the inclusion in the general verdict of the stipulated $1,509 medical expense as damages sustained by the plaintiff “as a result of injuries received in the collision” was not error but was substantial justice. Affirmed. . Both plaintiff’s father and Cyril R. Figge, driver of the Figge car, became deceased subsequent to the accident and before trial in the Distinct Court. Neither death is connected with this accident. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
sc_respondent	061	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. BARNHART, COMMISSIONER OF SOCIAL SECURITY v. SIGMON COAL CO., INC., et al. No. 00-1307. Argued November 7, 2001 Decided February 19, 2002 Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scaua, Kennedy, Soutee, and Ginsburg, JJ., joined. Stevens, J., filed a dissenting opinion, in which O’Connor and Breyer, JJ., joined, post, p. 462. Paul R. Q. Wolfson argued the cause for petitioner. With him on the briefs were Solicitor General Olson, Acting As sistant Attorney General Schiffer, Deputy Solicitor General Kneedler, Mark B. Stern, and Jeffrey Clair. Peter Buscemi argued the cause for the Trustees of the United Mine Workers of America Combined Benefit Fund as amici curiae urging reversal. With him on the brief were John R. Mooney, Mark J. Murphy, and David W. Allen. John R. Woodrum argued the cause for respondents. With him on the briefs was Harold R. Montgomery. Grant Crandall filed a brief for the United Mine Workers of America as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the Bellaire Corp. by Donald B. Ayer, Jonathan C. Rose, and Thomas A Smock; for R. G. Johnson Co., Inc., by Mary Lou Smith; and for USX Corp. et al. by David J. Laurent. Justice Thomas delivered the opinion of the Court. This case arises out of the Commissioner of Social Security’s assignment, pursuant to the Coal Industry Retiree Health Benefit Act of 1992 (Coal Act or Act), 26 U. S. C. § 9701 et seq. (1994 ed. and Supp. V), of 86 retired coal miners to the Jericol Mining, Inc. (Jericol). The question presented is whether the Coal Act permits the Commissioner to assign retired miners to the successors in interest of out-of-business signatory operators. The United States Court of Appeals for the Fourth Circuit held that it does not. Sigmon Coal Co. v. Apfel, 226 F. 3d 291 (2000). We affirm. HH The Coal Act reconfigured the system for providing private health care benefits to retirees in the coal industry. In restructuring this system, Congress had to contend with over half a century of collective-bargaining agreements between the coal industry and the United Mine Workers of America (UMWA), the coal miners’ union. Tensions between coal operators and the UMWA had often led to lengthy strikes with serious economic consequences for both the industry and its employees. Confronted with an industry fraught with contention, Congress was faced with a difficult task. This was not the first time that the Federal Government had been called on to intervene in negotiations within the industry. Such tensions motivated President Truman, in 1946, to issue an Executive Order directing the Secretary of the Interior to take possession of all bituminous coal mines and to negotiate with the UMWA over changes in the terms and conditions of miners’ employment. See Eastern Enterprises v. Apfel, 524 U. S. 498, 504-505 (1998) (plurality opinion) (quoting 11 Fed. Reg. 5593 (1946)). These negotiations culminated in the first of many agreements that resulted in the creation of benefit funds compensating miners, their dependents, and their survivors. 524 U. S., at 505. Subsequently, in 1947, the UMWA and several coal operators-entered into a collectively bargained agreement, the National Bituminous Coal Wage Agreement (NBCWA), which established a fund under which three trustees “were given authority to determine,” among other things, the allocation of benefits to miners and their families. Id., at 505-506. Further disagreement prompted the parties to negotiate another NBCWA in 1950. The following year, the Bituminous Coal Operators’ Association (BCOA) was created as a multi-employer bargaining association and primary representative for the coal operators in their negotiations with the UMWA. Id., at 506. While the NBCWA was amended occasionally and new NBCWAs were adopted in 1968 and 1971, the terms and structure of the 1950 agreement remained largely unchanged between 1950 and 1974. Ibid. In 1974, in order to comply with the Employee Retirement Income Security Act of 1974, 29 U. S. C. § 1001 et seq. (1994 ed. and Supp. V), the UMWA and the BCOA negotiated a new agreement to finance benefits. 524 U. S., at 509. The 1974 NBCWA created four trusts that replaced the 1950 fund. These benefit plans quickly developed financial problems. Thus, in 1978 the parties executed another NBCWA. This agreement assigned responsibility for the health care of active and retired employees to the respective coal mine operators who were signatories to the earlier NBCWAs, and left the 1974 Benefit Plan in effect only for those retirees whose former employers were no longer in business. Id., at 510. Nonetheless, financial problems continued to plague the plans “as costs increased and employers who had signed the 1978 NBCWA withdrew from the agreement, either to continue in business with nonunion employees or to exit the coal business altogether.” Id., at 511. “As more and more coal operators abandoned the Benefit Plans, the remaining signatories were forced to absorb the increasing cost of covering retirees left behind by exiting employers.” Ibid. Pursuant to yet another NBCWA, the UMWA and the BCOA in 1988 attempted to remedy the problem, this time by imposing withdrawal liability on NBCWA signatories that seceded from the benefit plans. Despite these efforts, the plans remained in serious financial crisis and, by June 1991, the 120,000 individuals who received health benefits from the funds were in danger of losing their benefits. Frieden, Congress Ponders Fate of Coal Miners’ Fund, 10 Business & Health 65 (Sept. 1992) (hereinafter Frieden). About 60% of these individuals were retired miners and their dependents whose former employers were no longer contributing to the benefit plans. Another 15% worked for employers that were no longer UMWA-represented or were never unionized. Karr, Union, Nonunion Coal Companies Head for Showdown on Retirement Benefits, Wall Street Journal, Mar. 3,1992, p. A6 (hereinafter Karr). These troubles were further aggravated by rising health care costs. Frieden 65. The UMWA threatened to strike if a legislative solution was not reached. Karr A6. And BCOA members, which included those coal firms that were currently signatories to NBCWAs, threatened that they would not renew their commitments to cover retiree costs when their contracts expired.' Ibid. Following another strike and much unrest, Secretary of Labor Elizabeth Dole created the Advisory Commission on United Mine Workers of America Retiree Health Benefits (Coal Commission), which studied the problem and proposed several solutions. Eastern Enterprises, 524 U. S., at 511-512. In particular, the Coal Commission focused on how to finance the health care benefits of orphaned retirees. Congress considered these and other proposals and eventually reconfigured the allocation of health benefits for coal miner retirees by enacting the Coal Act in 1992. Crafting the legislative solution to the crisis, however, was no easy task. The Coal Act was passed amidst a maelstrom of contract negotiations, litigation, strike threats, a Presidential veto of the first version of the bill and threats of a second veto, and high pressure lobbying, not to mention wide disagreements among Members of Congress. The Act “merged the 1950 and 1974 Benefit Plans into a new multiemployer plan called the United Mine Workers of America Combined Benefit Fund (Combined Fund).” Id., at 514; see 26 U. S. C. § 9702(a) (1994 ed.). The Combined Fund “is financed by annual premiums assessed against'signatory coal operators,’ i. e., coal operators that signed any NBCWA or any other agreement requiring contributions to the 1950 or 1974 Benefits Plans.” Eastern Enterprises, 524 U. S., at 514. Where the signatory is no longer in business, the statute assigns liability for beneficiaries to a defined group of “related persons.” Ibid.; see §§ 9706(a), 9701(c)(2), (7). The Coal Act charged the Commissioner of Social Security with assigning each eligible beneficiary to a signatory operator or its related persons. § 9706(a). The statute identifies specific categories of signatory operators (and their related persons) and requires the Commissioner to assign beneficiaries among these categories in a particular order. Ibid. The Coal Act also ensures that if a beneficiary remains unassigned because no existing company falls within the aforementioned categories, then benefits will be financed by the Combined Fund, either with funds transferred from interest earned on the Department of the Interior’s Abandoned Mine Reclamation Fund or from an additional premium imposed on all assigned signatory operators on a pro rata basis. See §§ 9704(a), (d), 9705(b). •II Respondent Jericol was formed in 1973 as Irdell Mining, Inc. (Irdell). Shortly thereafter, Irdell and another company purchased the coal mining operating assets of Shackle-ford Coal Company, a company that was a signatory to a coal wage agreement while it was in business. Sigmon Coal Co. v. Apfel, 33 F. Supp. 2d 505, 507 (WD Va. 1998). They acquired the right to use the Shackleford name and assumed responsibility for Shackleford’s outstanding contracts, including its collective-bargaining agreement with the UMWA. App. 23-24, 26. “There was no common ownership between Irdell and Shackleford.” 226 F. 3d, at 297. Irdell subsequently changed its name, operating as the Shackleford Coal Company until 1977, when it again changed its name to Jeri-col. The new company was a signatory only to the 1974 NBCWA. Acting pursuant to § 9706(a), between 1993 and 1997, the Commissioner assigned premium responsibility for over 100 retired miners and dependents to Jericol. Of these, 86 were assigned under § 9706(a)(3) because they had worked for Shackleford and the Commissioner determined that as a “successor” or “successor in interest” to the original Shackle-ford, Jericol qualified as a “related person" to Shackleford. The others were assigned because they had actually worked for Jericol. Jericol appealed most of the Commissioner’s determinations, arguing that the assignments were erroneous both because Jericol was not a successor in interest to Shack-leford and because Jericol was not a related person to Shack-leford. See, e. g., Pet. for Cert. 45a~62a. Dissatisfied with the outcome of administrative proceedings, respondent Sigmon Coal-Company, Inc., and Jericol filed suit against the Commissioner, arguing that he wrongfully assigned retirees and dependents to Jericol. 33 F. Supp. 2d, at 506. The District Court concluded that the classification regime of the Coal Act does not provide, directly or indirectly, “for liability to be laid at the door of successors of defunct signatory operators.” Id., at 509. The District Court ordered the Commissioner to withdraw the challenged assignments and enjoined the Commissioner from assigning additional retirees to Jericol on the basis that it is a related person to the original Shackleford. The Commissioner appealed, arguing that a “straight reading” of the statute shows that a successor in interest to a signatory operator qualifies as a related person, thereby permitting the assignment of the retirees and dependents to Jericol. 226 F. 3d, at 303. Alternatively, the Commissioner argued that the District Court’s “reading... produces inexplicable, anomalous results that are clearly at odds with congressional intent.” Ibid. “[D]eclin[ing] the Commissioner’s invitation to rewrite the Coal Act,” the United States Court of Appeals for the Fourth Circuit affirmed. Id., at 294. The Court of Appeals concluded that the “statute is clear and unambiguous” and that the court was “bound to read it exactly as it is written.” Ibid. Accordingly, the court held that Jericol was not a “related person” to Shackleford and thus could not be held responsible for Shackleford’s miners. The Court of Appeals rejected the Commissioner’s arguments that this reading either contravenes congressional intent or begets “some fairly odd results.” Id., at 305, 307. Rather, the Court of Appeals found plausible Jericol’s explanation that the plain text of the Act was consistent with Congress’ desire to promote the sale of coal companies and to respond to complaints by coal operators that they were being required to pay benefits for retired miners who had neither worked for them nor maintained any other relationship with them. Id., at 307. A plausible explanation, the court concluded, “is all we need to reject the assertion that the Coal Act’s definition of ‘related person’ is, on its face, absurd.” Id., at 308. Alternatively, the court reasoned, even if the literal text of the statute produced an arguably anomalous result, “we are not simply free to ignore unambiguous language because we can imagine a preferable version.” Ibid. This was not one of those rare cases, the court concluded, where Congress had drafted a statute that “produced an absurdity ‘so gross as to shock the general moral or common sense.’ ” Ibid, (quoting Maryland Dept. of Ed. v. Department of Veterans Affairs, 98 F. 3d 165, 169 (CA4 1996)). We granted certiorari, 532 U. S. 993 (2001), and now affirm. III As in all statutory construction cases, we begin with the language of the statute. The first step “is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U. S. 337, 340 (1997) (citing United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 240 (1989)). The inquiry ceases “if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’” 519 U. S., at 340. With respect to the question presented in this case, this statute is unambiguous. The statutory text instructs that the Coal Act does not permit the Commissioner to assign beneficiaries to the successor in interest of a signatory operator. The statute provides: “For purposes of this chapter, the Commissioner of Social Security shall, before October 1,1993, assign each coal industry retiree who is an eligible beneficiary to a signatory operator which (or any related person with respect to which) remains in business in the following order: “(1) First, to the signatory operator which— “(A) was a signatory to the 1978 coal wage agreement or any subsequent coal wage agreement, and “(B) was the most recent signatory operator to employ the coal industry retiree in the coal industry for at least 2 years. “(2) Second, if the retiree is not assigned under paragraph (1), to the signatory operator which— “(A) was a signatory to the 1978 coal wage agreement or any subsequent coal wage agreement, and “(B) was the most recent signatory operator to employ the coal industry retiree in the coal industry. “(3) Third, if the retiree is not assigned under paragraph (1) or (2), to the signatory operator which employed the coal industry retiree in the coal industry for a longer period of time than any other signatory operator prior to the effective date of the 1978 coal wage agreement.” 26 U. S. C. § 9706(a) (1994 ed.). In this case, the Commissioner determined that because Shackleford is a pre-1978 signatory and employed the disputed miners for over 24 months, assignment must be made under category 3. It then assigned the miners to Jericol after determining that Jericol was a successor in interest to Shackleford and was therefore a “related person” to Shackle-ford. 226 F. 3d, at 298. We disagree with the Commissioner’s reasoning. Because the disputed retirees were employees of Shackleford, the “signatory operator” that sold its assets to Jericol (then-Irdell) in 1973, the Commissioner can only assign them to Jericol if it is a “related person” to Shackleford. The statute provides that “a person shall be considered to be a related person to a signatory operator if that person” falls within one of three categories: “(i) a member of the controlled group of corporations (within the meaning of section 52(a)) which includes such signatory operator; “(ii) a trade or business which is under common control (as determined under section 52(b)) with such signatory operator; or “(iii) any other person who is identified as having a partnership interest or joint venture with a signatory operator in a business within the coal industry, but only if such business employed eligible beneficiaries, except that this clause shall not apply to a person whose only interest is as a limited partner.” § 9701(e)(2). In addition, the last sentence of § 9701(c)(2)(A) states that “[a] related person shall also include a successor in interest of any person described in elause (i), (ii), or (iii).” Although the Commissioner maintains that Jericol is a “related person” to Shackleford, Jericol does not fall within any of the three specified categories defining a “related person.” There is no contention that it was ever a member of a controlled group of corporations including Shackleford, that it was ever a business under common control with Shackleford, or that it ever had a partnership interest or engaged in a joint venture with Shackleford. Therefore, liability for these beneficiaries may attach to Jericol only if it is a successor in interest to an entity described in §§9701(c)(2)(A)(i)-(iii). Because Jericol is a successor in interest only to Shackleford, Jericol will be liable only if a signatory operator itself, here Shackleford, falls within one of these categories. None of the three categories, however, includes the signatory operator itself. Nor should we infer as much, as it is a general principle of statutory construction that when “ ‘Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’” Russello v. United States, 464 U. S. 16, 23 (1983) (quoting United States v. Wong Kim Bo, 472 F. 2d 720, 722 (CA5 1972)). Where Congress wanted to provide for successor liability in the Coal Act, it did so explicitly, as demonstrated by other sections in the Act that give the option of attaching liability to “successors” and “successors in interest.” For example, § 9706(b)(2) provides that with respect to beneficiaries of the Combined Fund, “[i]f a person becomes a successor of an assigned operator after the enactment date [of the Coal Act], the assigned operator may transfer the assignment of an eligible beneficiary... to such successor, and such successor shall be treated as the assigned operator with respect to such eligible beneficiary for purposes of this chapter.” (Emphasis added.) The subsection also provides, however, that “the assigned operator transferring such assignment (and any related person) shall remain the guarantor of the benefits provided to the eligible beneficiary under this chapter.” Ibid. While this provision gives a postenactment successor the option of transferring the assignment and assuming the signatory operator’s liability, it does not address the liability of preenactment successors. Further, §9711 enumerates the continuing obligations of Individual Employer Plans (IEPs) maintained pursuant to a 1978 or subsequent coal wage agreement. Section 9711(g)(1) provides that “[f]or [the] purposes of” IEPs and the 1992 UMWA Benefit Plan, “[t]he term ‘last signatory operator’ shall include a successor in interest of such operator.” Thus, in §9711, Congress gave “last signatory operator” a subsection-specific definition that extends the IEP obligations of a preenactment signatory operator to include its “successors in interest.” Those subsections stand in direct contrast to the provisions implicated here: §§ 9701(c)(1), (2), and (4), which define “signatory operator,” “related persons,” and “last signatory operator,” respectively, “[f]or [the] purposes of this section,” and do not specify that they include or impose liability on the signatory operator’s successor in interest. Despite the unambiguous language of the statute with respect to those entities to whom successor liability attaches, the Commissioner essentially asks that we read into the statute mandatory liability for preenactment successors in interest to signatory operators. This we will not do. “We refrain from concluding here that the differing language in the two subsections has the same meaning in each. We would not presume to ascribe this difference to a simple mistake in draftsmanship.” Russello, supra, at 23. Congress wrote the statute in a manner that provides for liability only for successors in interest to certain signatory operators. If Congress meant to make a preenactment successor in interest like Jericol liable, it could have done so clearly and explicitly. Therefore, because the statute is explicit as to who may be assigned liability for beneficiaries and neither the “related persons” provision nor any other provision states that successors in interest to signatory operators may be assigned liability, the plain language of the statute necessarily precludes the Commissioner from assigning the disputed miners to Jericol. IV The Commissioner admits that the “statute does not state in haec verba that an assignment may be made to a direct successor in interest of the entity that was the signatory operator itself.” Brief for Petitioner 10. Nonetheless, the Commissioner concludes that, in light of the text, structure, and purposes of the Coal Act, such direct successors in interest are included within the liability scheme and should be responsible for a signatory operator’s Combined Fund premiums if the signatory operator itself is defunct and there is no other “related person” still in business. Ibid. We address the Commissioner’s arguments below. A The Commissioner proposes several readings of the statute. First, the Commissioner argues that, because the last sentence of § 9701(c)(2)(A) states that the term “related person” “includefs]” a successor in interest of “any person described in clause (i), (ii), or (iii),” and because these clauses mention the “signatory operator” itself, the signatory operator is “described” in clause (i) by virtue of the express reference. Brief for Petitioner 24. The text of the statute does not support this reading. Where Congress wanted to 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_casetyp1_3-3-2	F	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 "First Amendment - speech and other expression". UNITED STATES of America ex rel. John F. HEMES, Petitioner-Appellant, v. Major Donald McNULTY, Commanding Officer, Armed Forces Entrance and Examining Station, Milwaukee, Wisconsin, Respondent-Appellee. No. 18395. United States Court of Appeals, Seventh Circuit. Sept. 9, 1970. Sander N. Karp, Milwaukee, Wis., for petitioner-appellant. David J. Cannon, U. S. Atty., Terry E. Mitchell, Asst. U. S. Atty., Milwaukee, Wis., for respondent-appellee. Before FAIRCHILD and PELL, Circuit Judges, and ESCHBACH, District Judge. . Honorable Jesse E. Eschbach is sitting by designation from the United States District Court for the Northern District of Indiana. PELL, Circuit Judge. Petitioner-appellant, John F. Hemes, registered with Winnebago County Local Board 79, Wisconsin, on November 5, 1964. After he received various classifications, which are not deemed material here, on November 14, 1968, he was classified 1-A. Following the classification, he requested and was granted a personal appearance before the board. The local board declined to reopen the classification on January 16, 1969. On February 18, 1969, Hemes, by letter, requested SSS Form 150, Special Form for Conscientious Objectors, which was executed and returned to the board on March 19, 1969. There was no previous indication in the board’s file, or in the record before us, of a claim of a conscientious objector status. On April 17, 1969, the local board again classified Hemes 1-A. On June 17, 1969, he appeared personally before the board. Prior thereto several persons had sent letters in support of Hemes’ claim for status as a conscientious objector. Immediately prior to his personal appearance, he presented a written summary of his position. Following his personal appearance he was again classified 1-A. Thereafter he was ordered to report for induction. Following unsuccessful efforts to appeal within the framework of the Selective Service System procedures, he reported for induction on March 9, 1970 and completed the induction ceremony, after which he filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin. That court dismissed the petition and the matter before us is the appeal from the dismissal. The Military Selective Service Act of 1967, 50 U.S.C.App. § 451 et seq., and its predecessor statute provide that decisions of the local board are “final.” This has been construed to mean that Congress chose not to give administrative action under the statutes the customary scope of judicial review obtaining under other statutes, that the courts are not to weigh the evidence to determine whether a classification made by the local board was justified and that decisions of the local board made in conformity with the regulations are conclusive even though they may be erroneous. Nevertheless, notwithstanding the purported finality, the Supreme Court has established that there may be judicial review if there is no basis in fact for the classification given the registrant. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946). This court has recently reached the result foreshadowed by Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953), and which has been reached in varying degrees in other circuits. United States v. Lemmens, 619 F.2d 430 (7th Cir. 1970). In Lemmens we stated the matter as follows (at p. 8): “We are persuaded that where the validity of a classification rejecting a claim as conscientious objector is an issue, and where the registrant described a belief which on its face fulfilled the legal requirements, the board did not state its reason for rejection, and the court can not otherwise determine with any degree of assurance that the decision really made by the board properly supported the rejection and had a basis in fact, the court should hold the classification invalid.” Adhering to the foregoing guiding principle we must now turn to the record in the case before us to determine whether Hemes described a belief which on its face fulfilled the legal requirements and if so we must then further determine whether there is anything in the record which with any degree of assurance supports the board’s decision. We are not unmindful that it is not for the courts “to sit as super draft boards, substituting their judgments on the weight of the evidence for those of the designated agencies. Nor should [the courts] look for substantial evidence to support such determinations.” Witmer v. United States, 348 U.S. 375, 380, 75 S.Ct. 392, 395, 99 L.Ed. 428 (1955). In his SSS Form 150, Hemes in part stated the following: “My religious training and belief stems from an intuitive feeling based upon my relationship with other people. I believe that man has an eternal quality within him; there is something about man that sets him appart from the rest of the animals on this earth. The greatest distinguishing quality of man is his ability to love. It is man’s ability to know love and enter into love relationships. This totally human characteristic is my concept of God. My God is the God of love and this force is present in every individual. My belief that God is love is totally humanistic in character and is the foundation of my personal moral code.” Hemes also pointed out that his parents were “diligent Catholics” and he was raised in that faith, attending some parochial and some public schools. He further stated, “In my senior year [of high school], I severed relations with the Catholic Church. I have not gone back nor do I have any desire to do so.” After referring to the impact upon his beliefs of a high school teacher, he stated that during this time “I was fired-up about religious concepts; since then my religious concern has mellowed to an inner glow based on love and is people orientated. I have traced the evolutionary development of my present religious beliefs based upon past training and beliefs. I think that it is important to note that the evolutionary process does not stop here; my beliefs are subject to change. Sometime in the future organized religion may once again become pertinate [sic] to my life.” In both his form 150 and in a subsequently submitted written summary, Hemes emphasized that while he was not capable of and was refusing to enter military service or to participate in war in any form because of his religious beliefs, he was hopeful that he would be allowed to serve his country through civilian alternate service. The local board’s file also contains letters from Hemes’ father, two teachers and two friends all testifying in effect to a belief in his sincerity. Hemes, as well as the local board, prepared a statement concerning his personal appearance before the board on June 17, 1969. There is no substantial dispute factually between the two statements. It appears that after Hemes read the summary of his religious belief he asked- the board if they had any questions regarding his response to the form or any questions in general and they had none. The question was asked of the board as to the criteria used to determine the validity or sincerity of a conscientious objector applicant to which the board replied that their decision was based on the applicant’s response to SSS Form 150. Hemes’ outline of his personal appearance also indicated that he asked the board if he met the requirements, to which there was no response, and that if he didn’t, what more could he do to convince the board that he was sincere in his beliefs. To this also there was no response. He further indicated that the interview lasted approximately ten minutes. The last mentioned phrases appearing in Hemes’ outline of his personal appearance are neither confirmed nor denied by the board’s summary but since they were placed in the registrant’s file without comment we may assume that matters stated were substantially correct. The ultimate question in conscientious objector cases is the sincerity of the registrant in objecting, on religious grounds, to participation in war in any form. Witmer v. United States, 348 U.S. 375, 381, 75 S.Ct. 392, 99 L.Ed. 428 (1955). See also, Welsh v. United States, 389 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), for the latest interpretation of religious beliefs. To qualify for the conscientious objector classification it is not necessary to belong to an orthodox religious sect. The test of religious belief within the meaning of the statute is whether it is a sincere and meaningful belief, occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption. The local board is not free to reject beliefs because they consider them incomprehensible but their task is to decide whether the beliefs professed by a registrant are sincerely held and whether they are, in 'his own scheme of things, religious. United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). The Court in Seeger further pointed out not only the standard but the difficulty of application thereof as follows, at p. 184, 85 S.Ct. 850, 863: “Moreover, it must be remembered that in resolving these exemption problems one deals with the beliefs of different individuals who will articulate them in a multitude of ways. In such an intensely personal area, of course, the claim of the registrant that his belief is an essential part of a religious faith must be given great weight.” Certainly many local boards must be confounded by the semantical problems involved in distinguishing between “a merely personal moral code” and religious belief, without benefit of orthodox sect backing, of a “sincere and meaningful” type. Indeed, Hemes refers to his particular belief as being the foundation of his “personal moral code.” Nevertheless, applying as we must the standards laid down by Seeger and Welsh, it would appear that Hemes had made out a prima facie case of religious belief. His statements to the board, on the one hand, may be artfully extracted from literature he has read and not be sincere but merely be based upon a personal desire to avoid military service. On the other hand, the beliefs expressed by him may be entirely sincere and have been arrived at through study and soul-searching. The point is that we are unable to discern which predication is here involved and absent the ability to do so we must perforce sustain the position of Hemes on this appeal. There is nothing before us to indicate whether the local board determined that Hemes was not sincere or whether, conversely, the issue was decided against him on an improper ground. It is significant in this respect that in the board’s file the following statement accompanying the Form 150 was underlined: “In my senior year, I severed relations with the Catholic Church. I have not gone back nor do I have any desire to do so.” Hemes asserts that the local board underlined the sentences and this is not denied by the respondent. This might be the basis for a belief that the board was adhering to a pre-Seeger doctrine of requirement of belonging to an established religious sect. The only other indication in the file of the basis for the board’s decision is its own statement that the decision was based on the SSS Form 150. We fail to discern any reason even by reading between the lines for casting doubt on the sincerity insofar as Form 150 is concerned. We do not here purport to reach any determination as to whether Hemes should have been classified as a conscientious objector. This is a matter for the determination of the board and is not within the scope of our limited review. The issuance of the writ which must follow in this case in no way precludes the local board from reconsidering Hemes’ file and determining whether under the law he is entitled to the conscientious objector classification.- We do not lightly reach the position of overturning a Selective Service Board determination. The people who compose the local boards, performing as they do a somewhat thankless task, must of necessity be loyal and dedicated citizens engaging in a patriotic and civic duty. While it is true that the local boards have certain powers such as that of subpoena, securing information from other governmental agencies, questioning the registrant under oath and requiring the production of documents, see Dickinson v. United States, 346 U.S. 389, 396, 74 S.Ct. 152, 98 L.Ed. 132 (1953), the board members, all volunteers, are not in the position by the very nature of the Selective Service System to engage in court-like proceedings and when judicial scrutiny is given to their actions it should be basically on the narrow issue of whether there is any apparent basis for it. We are also not unmindful of personal relationship difficulties imposed upon members of local boards. In many instances, particularly in smaller communities, the volunteer members are called upon to pass on the sincerity of a neighbor’s son. Perhaps it is natural and human to desire to avoid the confrontation involved in a direct statement that the board has found the applicant for the status to be insincere. Nevertheless, in this delicate area, the duty imposed upon and undertaken by the members of the board may require this. While we have carefully refrained from imposing any requirement on boards that they promulgate a court-like formal finding of facts and are of the opinion that the “basis in fact” may be otherwise determined, nevertheless, where the ultimate issue is the sincerity of the applicant, often times objective facts may not appear in the file. It would therefore appear to be desirable practice that the board, if it is denying the status claimed because of its belief in the lack of sincerity in the applicant, should state that fact and at least briefly summarize in the record those facts, whether they be inconsistencies in action or written statements, shifty or evasive demeanor, appearance of unreliability, lateness of claim or any other factors reasonably causing the board to reach its conclusion. In support of the board’s position, the respondent urges that the file does show a basis for insincerity in the fact that Hemes did not assert his conscientious objection claim until he had lost his student deferment. Inasmuch at this court suggested in United States v. Lemmens, 430 F.2d 619 (7th Cir. 1970), late timing of the claim combined with brevity of claim might not suffice as a basis in fact, we do not mean on the other hand that a tardy claim of conscientious objector status may not be a factor which enters into the board’s deliberations. Indeed, it can be conceived that a belated application in certain factual situations could be most persuasive. Each case will have to be judged on its own facts. An acceptable guideline in this respect is stated in United States v. Broyles, 423 F.2d 1299, 1305 (4th Cir. 1970), as follows: “To the extent that Campbell and Gaston hold that inadequately explained lateness in the assertion of a claim of conscientious objection constitutes evidence which a board may consider in passing upon the validity of the claim, we leave them untouched. However, it is not now and never has been our view that lateness as a matter of law requires the rejection of the claim.” In this appeal Hemes also contends that the local board erred in classifying him I-S(C) on November 10, 1966, contending that he was a full time undergraduate student on that date and was therefore entitled to a classification of II-S. The gist of the complaint is that I-S(C) classification can be granted only once and therefore Hemes might be prevented from taking advantage of this classification at a later date when he might use it to a better advantage. There is no showing that Hemes was deprived of any rights or prejudiced in any manner by the alleged misclassifieation. Certainly it has no material bearing on the present habeas corpus proceedings as it did not reflect upon or bring about his induction. Where no harm or prejudice resulted from a violation of a regulation, if such did occur, the proceedings of the board are not invalidated. United States v. Primous, 420 F.2d 33 (7th Cir. 1970). In the event that at some later time he should be a student otherwise eligible for I-S(C) and should his local board at that time deny him that classification because of his having previously been the recipient thereof, then the alleged deprivation would be out of the realm of the theoretical. The local board would then be in a position to determine upon the facts whether he should be entitled to the I-S(C) classification. For the reasons hereinbefore set out the order of the district court is reversed and the case remanded for the entry of an order granting the writ. Reversed and remanded. . The dissenting opinion of Justice Jackson summarizes the matter thusly: “Perhaps what bothers the Court is that when no evidence is introduced against a registrant and the board fails to state its reasons for acting, there is no practical way for the trial court to determine whether the correct statutory standard has been applied.” 346 U.S. at 400, 74 S.Ct. at 159. . United States v. Broyles, 423 F.2d 1299, 1304 (4th Cir. 1970); United States v. Washington, 392 F.2d 37, 39 (6th Cir. 1968); United States v. Abbott, 425 F.2d 910, 913 (8th Cir. 1970) and United States v. Haughton, 413 F.2d 736, 739 (9th Cir. 1969). . “Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. As used in this subsection, the term ‘religious training and belief’ does not include essentially political, sociological, or philosophical views, or a merely personal moral code.” 50 U.S.O. § 456(j). . Campbell v. United States, 221 F.2d 454 (4th Cir. 1955); Gaston v. United States, 222 F.2d 818 (4th Cir. 1955). Question: What is the specific issue in the case within the general category of "First Amendment - speech and other expression"? A. obscenity B. association C. federal internal security and communist control acts, loyalty oaths, security risks D. legality of expression in context of overt acts (speeches, parades, picketing, etc.) protesting race discrimination E. overt acts - opposition to war and the military F. conscientious objection to military service or other first amendment challenges to the military G. expression of political or social beliefs conflicting with regulation of physical activity (includes demonstrations, parades, canvassing, picketing) H. threats to peace, safety ,and order (except those covered above) (includes fighting words, clear and present danger, incitement to riot) I. challenges to campaign spending limits or other limits on expression in political campaigns J. other (includes tests of belief) 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. CITY OF LOS ANGELES DEPARTMENT OF WATER AND POWER et al. v. MANHART et al. No. 76-1810. Argued January 18, 1978 Decided April 25, 1978 Stevens, J., delivered the opinion of the Court, in which Stewart, White, and Powell, JJ., joined, in all but Part IV of which Marshall, J., joined, and in Part IV of which Burger, C. J., and Blackmun and Rehnquist, JJ., joined. Blackmun, J., filed an opinion concurring in part and concurring in the judgment, post, p. 723. Burger, C. J., filed an opinion concurring in part and dissenting in part, in which Rehnquist, J., joined, post, p. 725. Marshall, J., filed an opinion concurring in part and dissenting in part., post, p. 728. Brennan, J., took no part in the consideration or decision of the case. David J. Oliphant argued the cause for petitioners. With him on the briefs were Burt Pines and J. David Hanson. Robert M. Dohrmann argued the cause for respondents. With him on the brief were Kenneth M. Schwarts, Laurence D. Steinsapir, Howard M. Knee, and Katherine Stoll Burns Briefs of amici curiae urging reversal were filed by James A. Redden, Attorney General, Al J. Laue, Solicitor General, and William F. Hoelscher, Assistant Attorney General, for the State of Oregon; and by Harry L. Du Brin, Jr., for the New York State Teachers’ Retirement System. Briefs of amici curiae urging affirmance were filed by Solicitor General McCree, Assistant Attorney General Days, Deputy Solicitor General Wallace, Thomas S. Martin, Brian K. Landsberg, Cynthia L. Attwood, Abner W. Sibal, Joseph T. Eddins, Beatrice Rosenberg, and Mary-Helen Mautner for the United States et ah; by Ruth Bader Ginsburg, Marjorie Mazen Smith, and Matthew W. Finkin for the American Civil Liberties Union et al.; by Michael Evan Gold and Fred Okrand for the ACLU Foundation of Southern California; by Jonathan R. Harkavy for the American Nurses’ Assn.; by Marguerite Rawalt and Margaret Young for the Association for Women in Mathematics et al.; and by John A. Fillion, Stephen P. Berzon, Fred H. Altshuler, J. Albert Woll, and Laurence Gold for the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America et al. Briefs of amici curiae were filed by W. Bernard Richland and L. Kevin Sheridan for the city of New York; by Edward Silver, Larry M. Lavinsky, Stephen E. Tisman, and William B. Harman, Jr., for the American Council of Life Insurance; by Lawrence J. Lotto for the Society of Actuaries et al.; and by William R. Glendon, James B. Weidner, and James W. Paul for the Teachers Insurance and Annuity Association of America et al. Mr. Justice Stevens delivered the opinion of the Court. As a class, women live longer than men. For this reason, the Los Angeles Department of Water and Power required its female employees to make larger contributions to its pension fund than its male employees. We granted certiorari to decide whether this practice discriminated against individual female employees because of their sex in violation of § 703 (a)(1) of the Civil Rights Act of 1964, as amended. For many years the Department has administered retirement, disability, and death-benefit programs for its employees. Upon retirement each employee is eligible for a monthly retirement benefit computed as a fraction of his or her salary multiplied by years of service. The monthly benefits for men and women of the same age, seniority, and salary are equal. Benefits are funded entirely by contributions from the employees and the Department, augmented by the income earned on those contributions. No private insurance company is involved in the administration or payment of benefits. Based on a study of mortality tables and its own experience, the Department determined that its 2,000 female employees, on the average, will live a few years longer than its 10,000 male employees. The cost of a pension for the average retired female is greater than for the average male retiree because more monthly payments must be made to the average woman. The Department therefore required female employees to make monthly contributions to the fund which were 14.84% higher than the contributions required of comparable male employees. Because employee contributions were withheld from paychecks, a female employee took home less pay than a male employee earning the same salary. Since the effective date of the Equal Employment Opportunity Act of 1972, the Department has been an employer within the meaning of Title V.II of the Civil Rights Act of 1964. See 42 U. S. C. § 2000e (1970 ed., Supp. V). In 1973, respondents brought this suit in the United States District Court for the Central District of California on behalf of a class of women employed or formerly employed by the Department. They prayed for an injunction and restitution of excess contributions. While this action was pending, the California Legislature enacted a law prohibiting certain municipal agencies from requiring female employees to make higher pension fund contributions than males. The Department therefore amended its plan, effective January 1, 1975. The current plan draws no distinction, either in contributions or in benefits, on the basis of sex. On a motion for summary judgment, the District Court held that the contribution differential violated § 703 (a)(1) and ordered a refund of all excess contributions made before the amendment of the plan. The United States Court of Appeals for the Ninth Circuit affirmed. The Department and various amici curiae contend that: (1) the differential in take-home pay between men and women was not discrimination within the meaning of § 703 (a) (1) because it was offset by a difference in the value of the pension benefits provided to the two classes of employees; (2) the differential was based on a factor “other than sex” within the meaning of the Equal Pay Act of 1963 and was therefore protected by the so-called Bennett Amendment; (3) the rationale of General Electric Co. v. Gilbert, 429 U. S. 125, requires reversal; and (4) in any event, the retroactive monetary recovery is unjustified. We consider these contentions in turn. I There are both real and fictional differences between women and men. It is true that the average man is taller than the average woman; it is not true that the average woman driver is more accident prone than the average man. Before the Civil Rights Act of 1964 was enacted, an employer could fashion his personnel policies on the basis of assumptions about the differences between men and women, whether or not the assumptions were valid. It is now well recognized that employment decisions cannot be predicated on mere “stereotyped” impressions about the characteristics of males or females. Myths and purely habitual assumptions about a woman’s inability to perform certain kinds of work are no longer acceptable reasons for refusing to employ qualified individuals, or for paying them less. This case does not, however, involve a fictional difference between men and women. It involves a generalization that the parties accept as unquestionably true: Women, as a class, do live longer than men. The Department treated its women employees differently from its men employees because the two classes are in fact different. It is equally true, however, that all individuals in the respective classes do not share the characteristic that differentiates the average class representatives. Many women do not live as long as the average man and many men outlive the average woman. The question, therefore, is whether the existence or nonexistence of “discrimination” is to be determined by comparison of class characteristics or individual characteristics. A “stereotyped” answer to that question may not be the same as the answer that the language and purpose of the statute command. The statute makes it unlawful “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. § 2000e-2 (a)(1) (emphasis added). The statute’s focus on the individual is unambiguous. It precludes treatment of individuals as simply components of a racial, religious, sexual, or national class. If height is required for a job, a tall woman may not be refused employment merely because, on the average, women are too short. Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply. That proposition is of critical importance in this case because there is no assurance that any individual woman working for the Department will actually fit the generalization on which the Department’s policy is based. Many of those individuals will not live as long as the average man. While they were working, those individuals received smaller paychecks because of their sex, but they will receive no compensating advantage when they retire. ■ It is true, of course, that while contributions are being collected from the employees, the Department cannot know which individuals will predecease the average woman. Therefore, -unless women as a. class are assessed an extra charge, they will be subsidized, to some extent, by the class of male employees. It follows, according to the Department, that fairness to its class of male employees justifies the extra assessment against all of its female employees. But the question of fairness to various classes affected by the statute is essentially a matter of policy for the legislature to address. Congress has decided that classifications based on sex, like those based on national origin or race, are unlawful. Actuarial studies could unquestionably identify differences in life expectancy based on race or national origin, as well as sex. But a statute that was designed to make race irrelevant in the employment market, see Griggs v. Duke Power Co., 401 U. S. 424, 436, could not reasonably be construed to permit a take-home-pay differential based on a racial classification. Even if the statutory language were less clear, the basic policy of the statute requires that we focus on fairness to individuals rather than fairness to classes. Practices that classify employees in terms of religion, race, or sex tend to preserve traditional assumptions about groups rather than thoughtful scrutiny of individuals. The generalization involved in this case illustrates the point. Separate mortality tables are easily interpreted as reflecting innate differences between the sexes; but a significant part of the longevity differential may be explained by the social fact that men are heavier smokers than women. Finally, there is no reason to believe that Congress intended a special definition of discrimination in the context of employee group insurance coverage. It is true that insurance is concerned with events that are individually unpredictable, but that is characteristic of many employment decisions. Individual risks, like individual performance, may not be predicted by résort to classifications proscribed by Title VII. Indeed, the fact that this case involves a group insurance program highlights a basic flaw in the Department’s fairness argument. For when insurance risks are grouped, the better risks always subsidize the poorer risks. Healthy persons subsidize medical benefits for the less healthy; unmarried workers subsidize the pensions of married workers; persons who eat, drink, or smoke to excess may subsidize pension benefits for persons whose habits are more temperate. Treating different classes of risks as though they were the same for purposes of group insurance is a common practice that has never been considered inherently unfair. To insure the flabby and the fit as though they were equivalent risks may be more common than treating men and women alike; but nothing more than habit makes one “subsidy” seem less fair than the other. An employment practice that requires 2,000 individuals to contribute more money into a fund than 10,000 other employees simply because each of them is a woman, rather than a man, is in direct conflict with both the language and the policy of the Act. Such a practice does not pass the simple test of whether the evidence shows “treatment of a person in a manner which but for that person’s sex would be different.” It constitutes discrimination and is unlawful unless exempted by the Equal Pay Act of 1963 or some other affirmative justification. II Shortly before the enactment of Title VII in 1964, Senator Bennett proposed an amendment providing that a compensation differential based on sex would not be unlawful if it was authorized by the Equal Pay Act, which had been passed a year earlier. The Equal Pay Act requires employers to pay members of both sexes the same wages for equivalent work, except when the differential is pursuant to one of four specified exceptions. The Department contends that the fourth exception applies here. That exception authorizes a “differential based on any other factor other than sex.” The Department argues that the different contributions exacted from men and women were based on the factor of longevity rather than sex. It is plain, however, that any individual’s life expectancy is based on a number of factors, of which sex is only one. The record contains no evidence that any factor other than the employee’s sex was taken into account in calculating the 14.84% differential between the respective contributions by men and women. We agree with Judge Duniway’s observation that one cannot “say that an actuarial distinction, based entirely on sex is 'based on any other factor other than sex.’ Sex is exactly what it is based on.” 553 F. 2d 581, 588, (1976). We are also unpersuaded by the Department’s reliance on a colloquy between Senator Randolph and Senator Humphrey during the debate on the Civil Rights Act of 1964. Commenting on the Bennett Amendment, Senator Humphrey expressed his understanding that it would allow many differences in the treatment of men and women under industrial benefit plans, including earlier retirement options for women. Though h© did not address differences in employee contributions based on sex, Senator Humphrey apparently assumed that the 1964 Act would have little, if any, impact on existing pension plans. His statement cannot, however, fairly be made the sole guide to interpreting the Equal Pay Act,, which had been adopted a year earlier ; and it is the 1963 statute, with its exceptions, on which the Department ultimately relies. We conclude that Senator Humphrey’s isolated comment on the Senate floor cannot change the effect of the plain language of the statute itself. Ill The Department argues that reversal is required by General Electric Co. v. Gilbert, 429 U. S. 125. We are satisfied, however, that neither the holding nor the reasoning of Gilbert is controlling. In Gilbert the Court held that the exclusion of pregnancy from an employer’s disability benefit plan did not constitute sex discrimination within the meaning of Title VII. Relying on the reasoning in Geduldig v. Aiello, 417 U. S. 484, the Court first held that the General Electric plan did not involve “discrimination based upon gender as such.” The two groups of potential recipients which that cáse concerned were pregnant women and nonpregnant persons. “ ‘While the first group is exclusively female, the second includes members of both sexes.’ ” 429 U. S., at 135. In contrast, each of the two groups of employees involved in this case is composed entirely and exclusively of members of the same sex. On its face, this plan discriminates on the basis of sex whereas the General Electric plan discriminated on the basis of a special physical disability. In Gilbert the Court did note that the plan as actually administered had provided more favorable benefits to women as a class than to men as a class. This evidence supported the conclusion that not only had plaintiffs failed to establish a prima facie case by proving that the plan was discriminatory on its face, but they had also failed to prove any discriminatory effect. In this case, however, the Department argues that the absence of a discriminatory effect on women as a class justifies an employment practice which, on its face, discriminated against individual employees because of their sex. But even if the Department’s actuarial evidence is sufficient to prevent plaintiffs from establishing a prima facie case on the theory that the effect of the practice on women as a class was discriminatory, that evidence does not defeat the claim that the practice, on its face, discriminated against every individual woman employed by the Department. In essence, the Department is arguing that the prima facie showing of discrimination based on evidence of different contributions for the respective sexes is rebutted by its demonstration that there is a like difference in the cost of providing benefits for the respective classes. That argument might prevail if Title VII contained a cost-justification defense comparable to the affirmative defense available in a price discrimination suit. But neither Congress nor the courts have recognized such a defense under Title VII. Although we conclude that the Department’s practice violated Title VII, we do not suggest that the statute was intended to revolutionize the insurance and pension industries. All that is at issue today is a requirement that men and women make unequal contributions to an employer-operated pension fund. Nothing in our holding implies that it would be unlawful for an employer to set aside equal retirement contributions for each employee and let each retiree purchase the largest benefit which his or her accumulated contributions could command in the open market. Nor does it call into question the insurance industry practice of considering the composition of an employer’s work force in determining the probable cost of a retirement or death benefit plan. Finally, we recognize that in a case of this kind it may be necessary to take special care in fashioning appropriate relief. IV The Department challenges the District Court’s award of retroactive relief to the entire class of female employees and retirees. Title VII does not require a district court to grant any retroactive relief. A court that finds unlawful discrimination “may enjoin [the discrimination]... and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement... with or without back pay... or any other equitable relief as the court deems appropriate.” 42 U. S. C. § 2000e-5 (g) (1970 ed., Supp. V). To the point of redundancy, the statute stresses that retroactive relief “may” be awarded if it is “appropriate.” In Albemarle Paper Co. v. Moody, 422 U. S. 405, the Court reviewed the scope of a district court’s discretion to fashion appropriate remedies for a Title VII violation and concluded that “backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.” Id., at 421. Applying that standard, the Court ruled that an award of backpay should not be conditioned on a showing of bad faith. Id., at 422-423. But the Albemarle Court also held that backpay was not to be awarded automatically in every case. The Albemarle presumption in favor of retroactive liability can seldom be overcome, but it does not make meaningless the district courts’ duty to determine that such relief is appropriate. For several reasons, we conclude that the District Court gave insufficient attention to the equitable nature of Title VII remedies. Although we now have no doubt about the application of the-statute in this case, we must recognize that conscientious and intelligent administrators of pension funds, who did not have the benefit of the extensive briefs and arguments presented to us, may well have assumed that a program like the Department’s was entirely lawful. The courts had been silent on the question, and the administrative agencies had conflicting views. The Department’s failure to act more swiftly is a sign, not of its recalcitrance, but of the problem’s complexity. As commentators have noted, pension administrators could reasonably have thought it unfair— or even illegal — to make male employees shoulder more than their “actuarial share” of the pension burden. There is no reason to believe that the threat of a backpay award is needed to cause other administrators to amend their practices to conform to this decision. Nor can we ignore the potential impact which changes in rules affecting insurance and pension plans may have on the economy. Fifty million Americans participate in retirement plans other than Social Security. The assets held in trust for these employees are vast and growing — more than $400 billion was reserved for retirement benefits at the end of 1976 and reserves are increasing by almost $50 billion a year. These plans, like other forms of insurance, depend on the accumulation of large sums to cover contingencies. The amounts set aside are determined by a painstaking assessment of the insurer’s likely liability. Risks that the insurer foresees will be included in the calculation of liability, and the rates or contributions charged will reflect that calculation. The occurrence of major unforeseen contingencies, however, jeopardizes the insurer’s solvency and, ultimately, the insureds’ benefits. Drastic changes in the legal rules governing pension and insurance funds, like other unforeseen events, can have this effect. Consequently, the rules that apply to these funds should not be applied retroactively unless the legislature has plainly commanded that result. The EEOC itself has recognized that the administrators of retirement plans must be given time to adjust gradually to Title VII’s demands. Courts have also shown sensitivity to the special dangers of retroactive Title VII awards in this field. See Rosen v. Public Serv. Elec. & Gas Co., 328 F. Supp. 454, 466-468 (NJ 1971). There can be no doubt that the prohibition against sex-differentiated employee contributions represents a marked departure from past practice. Although Title VII was enacted in 1964, this is apparently the first litigation challenging contribution differences based on valid actuarial tables. Retroactive liability could be devastating for a pension fund. The harm would fall in large part on innocent third parties. If, as the courts below apparently contemplated, the plaintiffs’ contributions are recovered from the pension fund, the administrators of the fund will be forced to meet unchanged obligations with diminished assets. If the reserve proves inadequate, either the expectations of all retired employees will be disappointed or current employees will be forced to pay not only -for their own future security but also for the unanticipated reduction in the contributions of past employees. Without qualifying the force of the Albemarle presumption in favor of retroactive relief, we conclude that it was error to grant such relief in this case. Accordingly, although we agree with the Court of Appeals’ analysis of the statute, we vacate its judgment and remand the case for further proceedings consistent with this opinion. ionIt is so ordered. Mr. Justice Brennan took no part in the consideration or decision of this case. The section provides: “It shall be an unlawful employment practice for an employer— “(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin... 78 Stat. 255, 42 U. S. C. §2000e-2 (a)(1). In addition to the Department itself, the petitioners include members of the Board of Commissioners of the Department and members of the plan’s Board of Administration. The plan itself is not in the record. In its brief the Department states that the plan provides for several kinds of pension benefits at the employee’s option, and that the most common is a formula pension equal to 2% of the average monthly salary paid during the last year of employment times the number of years of employment. The benefit is guaranteed for life. The Department contributes an amount equal to 110% of all employee contributions. The significance of the disparity is illustrated by the record of one woman whose contributions to the fund (including interest on the aihount withheld each month) amounted to $18,171.40; a similarly situated male would have contributed only $12,843.53. 86 Stat. 103 (effective Mar. 24, 1972). In addition to five individual plaintiffs, respondents include the individuals’ union, the International Brotherhood of Electrical Workers, Local Union No. 18. See Cal. Govt. Code Ann. § 7500 (West Supp. 1978). The court had earlier granted a preliminary injunction. 387 P. Supp. 980 (1975). 553 F. 2d 581 (1976). Two weeks after the Ninth Circuit decision, this Court decided General Electric Co. v. Gilbert, 429 U. S. 125. In response to a petition for rehearing, a majority of the Ninth Circuit panel concluded that its original decision did not conflict with Gilbert. 553 F. 2d, at 592 (1977). Judge Kilkenny dissented. Id., at 594. See nn. 22 and 23, infra. See Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1174 (1971). “In forbidding employers to discriminate agaipst individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes. Section 703 (a) (1) subjects to scrutiny and eliminates such irrational impediments to job opportunities and enjoymept which have plagued women in the past.” Sprogis v. United Air Lines, Inc., 444 F. 2d 1194, 1198 (CA7 1971). The size of the subsidy involved in this case is open to doubt, because the Department’s plan provides for survivors’ benefits. Since female spouses of male employees are likely to have greater life expectancies than the male spouses of female employees, whatever benefits men lose in “primary” coverage for themselves, they may regain in “secondary” coverage for their wives. For example, the life expectancy of a white baby in 1973 was 72.2 years; a nonwhite baby could expect to live 65.9 years, a difference of 6.3 years. See Public Health Service, IIA Vital Statistics of the United States, 1973, Table 5-3. Fortifying this conclusion is the fact that some States have banned higher life insurance rates for blacks since the 19th century. See generally M. James, The Metropolitan Life — A Study in Business Growth 338-339 (1947). See R. Retherford, The Changing Sex Differential in Mortality 71-82 (1975). Other social causes, such as drinking or eating habits — perhaps even the lingering effects of past employment discrimination — may also affect the mortality differential. A study of life expectancy in the United States for 1949-1951 showed that 20-year-old men could expect to live to 60.6 years of age if they were divorced. If married, they could expect to reach 70.9 years of age, a difference of more than 10 years. Id., at 93. The record indicates, however, that the Department has funded its death-benefit plan by equal contributions from male and female employees. A death benefit — unlike a pension benefit — has less value for persons with longer life expectancies. Under the Department’s concept of fairness, then, this neutral funding of death benefits is unfair to women as a class. A variation on the Department’s fairness theme is the suggestion that a gender-neutral pension plan would itself violate Title VII because of its disproportionately heavy impact on male employees. Cf. Griggs v. Duke Power Co., 401 U. S. 424. This suggestion has no force in the sex discrimination context because each retiree’s total pension benefits are ultimately determined by his actual life span; any differential in benefits paid to men and women in the aggregate is thus “based on [a] factor other than sex,” and consequently immune from challenge under the Equal Pay Act, 29 U. S. C § 206 (d); cf. n 24, infra. Even under Title VII itself— assuming disparate-impact analysis applies to fringe benefits, cf. Nashville Gas Co. v. Satty, 434 U. S. 136, 144-145 — the male employees would not prevail. Even a completely neutral practice will inevitably have some disproportionate impact on one group or another. Griggs does not imply, and this Court has never held, that discrimination must always be inferred from such consequences. Developments in the Law, supra n. 12, at 1170; see also Sprogis v. United Air Lines, Inc., 444 F. 2d, at 1205 (Stevens, J., dissenting). The Bennett Amendment became part of § 703 (h), which provides in part: “It shall not be an unlawful employment practice under this title for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 6 (d) of the Fair Labor Standards Act of 1938, as amended (29 U. S. C. § 206 (d)).” 78 Stat. 257, 42 U. S. C. § 2000e-2 (h). The Equal Pay Act provides, in part: “No employer having employees subject to any provisions of thist section, shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who' is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.” 77 Stat. 56, 29 U. S. C. §206 (d). We need not decide whether retirement benefits or contributions to benefit plans are “wages” under the Act, because the Bennett Amendment extends the Act’s four exceptions to all forms of “compensation” covered by Title VII. See n. 22, supra. The Department’s pension benefits, and the contributions that maintain them, are “compensation” under Title VII. Cf. Peters v. Missouri-Pacific R. Co., 483 F. 2d 490, 492 n. 3 (CA5 1973), cert. denied, 414 U. S. 1002. The Department’s argument is specious because its contribution schedule distinguished only imperfectly between long-lived and short-lived employees, while distinguishing precisely between male and female employees. In contrast, an entirely gender-neutral system of contributions and benefits would result in differing retirement benefits precisely “based on” longevity, for retirees with long lives would always receive more money than comparable employees with short lives. Such a plan would also distinguish in a crude way between male and female pensioners, because of the difference in their average life spans. It is this sort of disparity — and not an explicitly gender-based differential — that the Equal Pay Act intended to authorize. “MR. RANDOLPH. Mr. President, I wish to ask of the Senator from Minnesota [Mr. Humphrey], who is the effective manager of the pending bill, a clarifying question on the provisions of title VII. “I have in mind that the social security system, in certain respects, treats men and women differently. For example, widows’ benefits are paid automatically; but a widower qualifies only if he is disabled or if he was actually supported by his deceased wife. Also, the wife of a retired employee entitled to social security receives an additional old age benefit; but the husband of such an employee does not. These differences in treatment as I recall, are of long standing. “Am I correct, I ask the Senator from Minnesota, in assuming that similar differences of treatment in industrial benefit plants, including earlier retirement options for women, may continue in operation under this bill, if it becomes law? “MR. HUMPHREY. Yes. That point was made unmistakably clear earlier today by the adoption of the Bennett amendment; so there can be n,o doubt about it.” 110 Cong. Rec. 13663-13664 (1964). The administrative constructions of this provision look in two directions. The Wage and Hour Administrator, who is charged with enforcing the Equal Pay Act, has never expressly approved different employee contribution rates, but he has said that either equal employer contributions or equal benefits will satisfy the Act. 29 CFR § 800.116 (d) (1977). At the same time, he has stated that a wage differential based on differences in the average costs of employing men and women is not based on a “ 'factor other than sex.’” 29 CFR §800.151 (1977). The Administrator’s reasons for the second ruling are illuminating: “To group employees solely on the basis of sex for purposes of comparison of costs necessarily rests on the assumption that the sex factor alone may justify the wage differential — an assumption plainly contrary to the terms and purpose of the Equal Pay Act. Wage differentials so based would serve only to perpetuate and promote the very discrimination at which the Act is directed, because in any grouping by sex of the employees to which the cost data relates, the group cost experience is necessarily assessed against an individual of one sex without regard to whether it costs an employer more or less to employ such individual than a particular individual of the opposite sex under similar working conditions in jobs requiring equal skill, effort, and responsibility.” Ibid. To the extent that they conflict, we find that the reasoning of § 800.151 has more “power to persuade” than the ipse dixit of § 800.116. Cf. Skidmore v. Swift & Co., 323 U. S. 134, 140. Quoting from the Geduldig opinion, the Court stated: “ ‘[T]his case is thus a far cry from cases like Reed v. Reed, 404 U. S. 71 (1971), and Frontiero v. Richardson, 411 U. S. 677 (1973), involving discrimination based upon gender as such. The California insurance program does not exclude anyone.from benefit eligibility because of gender but merely removes one physical condition — pregnancy—from the list of compensable disabilities.’ ” 429 U. S., at 134. After further quotation, the Court added: “The quoted language from Geduldig leaves no doubt that our reason for rejecting appellee’s equal protection claim in that case was that the exclusion of pregnancy from coverage under California’s disability-benefits plan was not in itself discrimination based on sex.” Id., at 135. See id., at 130-131, n. 9. As the Court recently noted in Nashville Gas Co. v. Satty, 434 U. S., at 144, the Gilbert holding “did not depend on this evidence.” Rather, the holding rested on the plaintiff’s failure to prove either facial discrimination or discriminatory effect. Some amici suggest that the Department’s discrimination is justified by business necessity. They argue that, if no gender distinction is drawn, many male employees will withdraw from the plan, or even the Department, because they can get a better pension plan in the private market. But the Department has long required equal contributions to its death-benefit plan, see n. 19, supra, and since 1975 it has required equal contributions to its pension plan. Yet the Department points to no “adverse selection” by the affected employees, presumably because an employee who wants to leave the plan must also leave his job, and few workers will quit because one of their fringe benefits could theoretically be obtained at a marginally lower price on the open market. In short, there has been no showing that sex distinctions are reasonably necessary to the normal operation of the Department’s retirement plan. See 15 U. S. C. §13 (a) (1976 ed.). Under the Robinson-Patman Act, proof of cost differences justifies otherwise illegal price discrimination; it does not negate the existence of the discrimination itself. See FTC v. Morton Salt Co., 334 U. S. 37, 44-45. So here, even if the contribution differential were based on a sound and well-recognized business practice, it would nevertheless be discriminatory, and the defendant would be forced to assert an affirmative defense to escape liability. Defenses under Title VII and the Equal Pay Act are considerably narrower. See, e. g., n. 30, supra. A broad cost-differential defense was proposed and rejected when the Equal Pay Act became law. Representative Findley offered an amendment to the Equal Pay Act that would have expressly authorized a wage differential tied to the “ascertainable and specific added cost resulting from employment of the opposite sex.” 109 Cong. Rec. 9217 (1963). He pointed out that the employment of women might be more costly because of such matters as 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_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. William A. LESTER, Trustee for the Bankrupt Estate of Daniel E. Harper, Plaintiff-Appellant, Cross-Appellee, v. RESOLUTION TRUST CORPORATION, as Receiver for Arlington Heights Federal Savings and Loan Association, Defendant-Appellee, Cross-Appellant. Nos. 92-1436 and 92-1561. United States Court of Appeals, Seventh Circuit. Argued Nov. 30, 1992. Decided May 24, 1993. Thomas A. Doyle, Baker & McKenzie, Terry Rose Saunders, Susman, Saunders & Buehler, George L. Saunders, Jr. (argued), Thomas F. Bush, Jr., Lee A. Monroe, Saunders & Monroe, J. Stephen Walker, Walker, Suriano & Associates, Chicago, IL, for plaintiff-appellant, Paul K. Vickrey (argued), William J. McKenna, Jr., John L. Rogers, Robert R. Hall, Jr., Jennifer M. Baratta, Hopkins & Sutter, Chicago, IL, for defendant-appellee. Before COFFEY and EASTERBROOK, Circuit Judges, and LAY, Senior Circuit Judge. Hon. Donald P. Lay, of the Eighth Circuit, sitting by designation. LAY, Senior Circuit Judge. William A. Lester, trustee for the bankruptcy estate of Daniel E. Harper, filed suit in the Circuit Court of DuPage County, Illinois, against Arlington Heights Federal Savings and Loan Association (Arlington), alleging that Arlington had breached a loan commitment to Harper. A jury verdict was returned in favor of Lester and against Arlington in the amount of $18,645,000. Arlington moved for judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. After judgment had been entered but while the posttrial motions were pending in state court, Arlington was declared insolvent and the Resolution Trust Corporation (RTC) was appointed receiver. Pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), the RTC removed the case to federal district court and renewed its motion for JNOV or for a new trial. The federal district court vacated the state court verdict and granted a new trial. After a second trial, this time in federal district court, the jury returned a verdict for the plaintiff Lester, but awarded zero damages. The RTC moved for JNOV, contending that the evidence was insufficient as a matter of law to show that Harper had fulfilled conditions precedent to Arlington’s obligation to fund under the commitment letter. The district court denied the RTC’s motion. On appeal Lester contends that the district court erred in ordering a new trial on the state court verdict. In addition, although he did not make a Rule 59 motion for a new trial following the verdict in federal district court, Lester argues that errors in several eviden-tiary rulings in that trial require a new trial on damages only. The RTC has cross appealed; arguing that the district court erred in denying its motion for JNOV. I. In late 1970, Harper, a real estate developer, made plans to develop a shopping mall located in Lake Zurich, Illinois. The mall was to be constructed in three phases on six different lots-. Phase I was to be a strip mall and fire station on lots four and six. Phase II was to be an enclosed mini-mall and service station on lots one and seven. Phase III was to include a, bank, restaurant, office space and library on lots two and three. In December of 1972, Harper and Arlington’s president began discussing the possibility that Arlington would finance a construction loan. On February 16, 1973, Arlington made a one-year commitment to loan Harper $5.3 million at 9.5% for 15 years. Under federal regulations, however, Arlington was prohibited from making land acquisition and infrastructure loans. Harper therefore entered into a one-year loan agreement on June 28, 1973 with another lender, McElvain-Reynolds, to fund $2.3 million to acquire the property and to construct the necessary infrastructure. Harper also obtained a $2.3 million standby commitment from Glen Ellyn Savings and Loan Association in August of 1973, funds with which Harper planned to pay off the McElvain-Reynolds loan. In the fall of 1973, after McElvain-Reyn-olds funded $1.7 million of the $2.3 million commitment, Harper acquired the land and began working on the infrastructure. In February 1974, the $5.3 million loan commitment from Arlington expired. Work on the infrastructure was not yet complete, however, so Harper could not seek funding under the Arlington commitment. Arlington and Harper therefore agreed to extend the commitment until August 1974 (later extended until October 1974). Meanwhile, the date on the McElvain-Reynolds loan, originally set at June 1, 1974, was extended until July 1, 1974. However, McElvain-Reynolds had never fully funded the infrastructure loan (financing only $1.7 million of the promised $2.3 million) and refused to lend Harper any more money. It is undisputed that Harper was in default on the McElvain-Reynolds loan as of July 1, 1974 and that at least some of the infrastructure work had not yet been completed. The evidence is also clear that Glen Ellyn Savings and Loan Association refused to honor its $2.3 million standby commitment. On July 26, 1974, Arlington gave a second one-year commitment to Harper in the amount of $3,832,000. The loan was described as a construction loan on Zurich Town Mall, lot numbers 4 and 6 — in other words, Phase I of the project. The interest rate was 10.5% for a term of fifteen years. The commitment letter required an appraisal of the property and stated that the loan amount could not exceed 75% of the appraised value. The loan was made subject to several conditions, two of which’ are relevant to this appeal. First, Harper was required to maintain sufficient funds on deposit and to post a completion bond. Second, the loan was conditioned on Arlington’s obtaining additional lenders to participate in the loan. Harper accepted this second commitment on July 29, 1974. During the summer of 1974, interest rates rose substantially. Aldington was therefore unable to find other lenders interested in participating in the loan at the 10.5% interest rate. In August, Harper and Arlington agreed to a plan to seek participants at an interest rate of 14%. By October 1974, however, Harper had run out of money, and construction on the project ceased. In a letter dated November 23, 1974, Arlington informed Harper that it had found participants at 14%. Shortly afterwards, on December 3, 1974, Harper demanded that Arlington fund under the first $5.3 million commitment letter. In response, Arlington indicated that it would fund under either the first or second commitment letter, “so long as you comply with all terms and conditions required in the respective letter of your choice.... ” Harper thereafter abandoned the project. In 1975, McElvain-Reynolds foreclosed on the project. In May 1978, Harper filed for bankruptcy. On September 2, 1981, after receiving authorization from the bankruptcy court, Lester, acting as trustee for the bankruptcy estate of Harper, filed a two-count complaint against Arlington in the Circuit Court of DuPage County. Count I alleged that Arlington breached the second commitment letter by failing to lend Harper the $3.8 million. The second count was a tort claim, alleging that the breach was intentional. Arlington subsequently filed a third-party complaint against Harper to collect a loan commitment fee. Finally, Harper in his individual capacity was permitted to add a $20 million fraud claim against Arlington on the first day of trial. A trial was held in the fall of 1989 in the Illinois circuit court. The jury, heard evidence pertaining to both the contract and tort claims brought by the trustee as well as evidence pertaining to Harper’s individual fraud claim against Arlington. The jury also heard testimony on Harper’s damages, including lost profits, not only from Phase I, but also from Phases II and III of the project as well. After the parties had rested but before the case was submitted to the jury, the state court dismissed Lester’s tort claim. The jury returned a verdict for Lester and against Arlington in the amount of $18,645,-000 on the breach of contract claim. It found for Harper and against Arlington on Arlington’s third party claim for a loan commitment fee, and for Arlington and against Harper on Harper’s individual fraud claim. Judgment was entered on November 8, 1989. On December 7, 1989, Arlington made timely motions for JNOV or, in the alternative, for a new trial. At the close of business on that same day, however, Arlington was declared insolvent and the RTC was appointed receiver. The RTC removed the ease to federal district court the next day (December 8, 1989), and subsequently renewed the motions for JNOV or alternatively for a new trial. The federal district court, the Honorable William T. Hart presiding, denied the motion for JNOV, but granted the RTC’s motion for a new trial and vacated the $18,645,000 jury verdict. Lester v. Resolution Trust Corp., 125 B.R. 528 (Bankr.N.D.Ill.1991). Judge Hart reasoned that (1) the expert testimony on damages was speculative and included Phases II and III, while the commitment letter at issue pertained only to Phase I; (2) Harper should not have been permitted to press his individual fraud claim against Arlington, because it belonged to the trustee; and (3) although Lester’s tort claim was later stricken before the jury’s deliberations, the jury was permitted to hear undifferentiated damage evidence pertaining to the impermissible tort claim. In the second trial in federal district court, the sole claim made by Lester was based on the alleged breach of contract against Arlington. The judge excluded all damage evidence relating to Phases II and III. He also excluded evidence of lost profits as to Phase I, limiting Lester’s damages to the appraised value of Phase I less saved costs. On November 6, 1991, the jury returned a verdict in favor of Lester but awarded zero damages. Thereafter the RTC moved for JNOV, arguing that the evidence showed as a matter of law that two conditions precedent to its obligation to fund the loan had never been fulfilled: (1) Harper did not obtain a completion bond for the construction of the infrastructure or place the required funds on deposit; and (2) despite reasonable, good faith efforts to secure loan participants, Arlington was unable to do so. The district court denied the motion. II. A. Jurisdiction We must first determine whether FIRREA authorizes the RTC to invoke federal jurisdiction and to remove this case from state court, even after judgment had been entered on the state court verdict. Here, the state court had entered judgment, but post-trial motions were pending. We conclude that removal was proper. In their jurisdictional statements to the court, the parties stated that the federal district court had jurisdiction by virtue of 12 U.S.C. § 1441a(i )(3). This provision authorizes the RTC to remove “any such action, suit, or proceeding,” but the words “action, suit, or proceeding” are not defined. Arguably, in using the word any, Congress intended an expansive reading of these terms to include more than just cases that had not yet reached a state court judgment. Indeed, the Fifth Circuit concluded that the same phrase in a different provision of FIRREA permitted the FDIC (as opposed to the RTC) to remove a state court action to federal court, even though the case was then pending before the state’s appellate court. See In re Meyerland Co., 960 F.2d 512 (5th Cir.1992) (interpreting 12 U.S.C. § 1819(b)(2)(B)), cert. denied, — U.S. -, 113 S.Ct. 967, 122 L.Ed.2d 123 (1993). B. New trial in federal district court Upon removal from the state court the district court ordered a new trial, citing several errors in the state trial. Lester now argues that the district court erred and requests that the state court verdict be reinstated. Ordinarily we review the trial court’s decision to grant a new trial under the deferential abuse of discretion standard. See Forrester v. White, 846 F.2d 29, 31 (7th Cir.1988). Lester argues that since the federal district judge did not preside over the first trial, deferential review of the district court’s ruling should be subject to closer scrutiny. See Finn v. American Fire & Casualty Co., 207 F.2d 113, 116 (5th Cir.1953), cert. denied, 347 U.S. 912, 74 S.Ct. 476, 98 L.Ed. 1069 (1954). In addition, Lester contends the federal district court erred as a matter of law. Under either standard we conclude that the district court did not err when it granted the RTC’s motion for a new trial. At the first trial, Lester was permitted to introduce expert testimony on lost profits for Phases II and III of the project. Illinois law does not require lost profits to be proven with absolute certainty, but they must be established “with a reasonable degree of certainty.” See Midland Hotel Corp. v. Reuben H. Donnelley Corp., 118 Ill.2d 306, 113 Ill.Dec. 252, 257, 515 N.E.2d 61, 66 (1987); Doctors Sellke & Conlon, Ltd. v. Twin Oaks Realty, Inc., 143 Ill.App.3d 168, 96 Ill.Dec. 633, 638, 491 N.E.2d 912, 917 (1986). Here, it is undisputed that the infrastructure on Phase I of the Zurich Village Mall was never completed and that Harper did not post a completion bond nor place sufficient funds on deposit to insure completion of the infrastructure. We cannot therefore say that the district court erred in concluding that lost profits evidence from Phases II and III of the venture was speculative, particularly where Arlington’s commitment letter at issue pertained only to Phase I. See Midland Hotel, 113 Ill.Dec. at 257-58, 515 N.E.2d at 66-67. Any ensuing loss of profit from Phases II and III were not foreseeable by reason of Aldington’s refusal to fund the loan; rather, the evidence indicates that Harper’s inability to complete the infrastructure was the sole cause of the project’s failure. In addition, at the first trial, Lester was permitted to press a tort claim for intentional breach of contract, a cause of action that does not exist under Illinois law. See Morrow v. L.A. Goldschmidt Assocs., Inc., 112 Ill.2d 87, 96 Ill.Dec. 939, 941-42, 492 N.E.2d 181, 183-84 (1986). Although the state judge dismissed this count before the case was submitted to the jury, the jury nevertheless heard evidence of agreements between Arlington and Harper pertaining to other Harper projects (Woodhills Bay Colony and Mohawk Point). Although this evidence was irrelevant to the contract claim in this case (which involved only the Zurich Town Mall project), Lester was permitted to introduce this evidence to support the tort claim, that is, to show Arlington’s alleged continuing bad faith in dealing with Harper. Moreover, the state judge improperly allowed Harper individually to press a $20 million fraud claim against Arlington, a claim which belonged only to the bankruptcy estate. See Henderson v. Binkley Coal Co., 74 F.2d 567, 569 (7th Cir.1935). Given these errors in the first trial, we agree with the district court that a new trial was properly ordered. C. The RTC’s motion for JNOV The RTC argues that the federal district court erred in refusing to grant its motion for JNOV after the second trial. It argues that the evidence is undisputed that Harper failed to meet conditions precedent to Arlington’s obligation to fund the loan. The commitment letter contained the following provision: Sufficient funds must be on deposit and a completion bond must be posted to ensure compliance with the Planned Unit Development requirements, ordinances and all other agreements approved by the Village of Lake Zurich, Illinois. The district court denied the motion for JNOV, reasoning as follows: [T]he contract does not set a specific date by which Harper was to make the deposits or provide the bond. On the evidence presented to it, the jury could have found that a point in time was never reached at which Harper would have been obliged to post the bond or make the required deposits. It is a close question, but absent Arlington Heights finding other participants or agreeing to otherwise fund the loan, it was arguable that Harper would not have been obligated to satisfy the bond and fund deposit conditions. This court reviews denials of JNOV motions de novo. Ross v. Black & Decker, Inc., 977 F.2d 1178, 1182 (7th Cir.1992). In reviewing a ruling on a motion for JNOV, this court must consider all the evidence together with all reasonable inferences in the light most favorable to the non-moving party. Ramsey v. American Air Filter Co., 772 F.2d 1303, 1307 (7th Cir.1985). We conclude that the district court erred in refusing to grant the RTC’s motion for JNOV. The condition at issue required Harper to place sufficient funds on deposit and to post a completion bond. Neither of these requirements was ever met. The evidence is clear that a completion bond for the required infrastructure was never posted; moreover, Harper did not place the necessary funds on deposit nor did he have the funds to do so. The district court so found, and in his brief to this court, plaintiff does not argue that these requirements were in fact met. The commitment letter as well as the evidence in the record demonstrate that the bond and fund deposit requirements were clearly conditions precedent. Arlington was prohibited from making infrastructure loans. Thus, in order to make certain that the funds it disbursed to Harper were not used for that proscribed purpose, Arlington required sufficient funds to be on deposit and a completion bond to be posted in order “to ensure compliance with the Planned United Development requirements, ordinances and all other agreements approved by the Village of Lake Zurich, Illinois.” If Harper were allowed to fulfill these requirements after Arlington had funded the loan, there would be no guarantee that the money was not being used to complete the infrastructure. In denying the motion, however, the district court reasoned that the jury could have found that “a point in time was never reached at which Harper would have been obliged to post the bond or make the required deposits.” Thus, the district court determined that Harper’s failure to meet the conditions was essentially excused. We think this analysis is erroneous. If a point in time was never reached at which Harper was required to meet these conditions precedent, then the point in time was never reached at which Aldington was obligated to fund the loan. Harper’s failure to perform the bond and fund deposit conditions left the commitment letter “neither enforceable nor effective.” Jones v. Seiwert, 164 Ill.App.3d 954, 115 Ill.Dec. 869, 872, 518 N.E.2d 394, 397 (1987). As the Illinois Court of Appeals succinctly stated: “A condition precedent is one which must be performed before ... the other party is obligated to perform. If the condition remains unsatisfied, the obligations of the parties are at an end.” McKee v. First Nat’l Bank of Brighton, 220 Ill.App.3d 976, 163 Ill.Dec. 389, 394, 581 N.E.2d 340, 345 (1991) (citation omitted). Under the facts of this case, the bond and fund deposit conditions were clearly intended to be performed prior to Arlington’s obligation to fund the loan. The fact that Harper did not perform these conditions meant that Arlington’s duty to make the loan never matured. Thus, there was no breach when the loan was not made. In essence, we hold that the defendant did not breach any duty owed to the plaintiff. Thus, the verdict for zero damages, although in favor of the plaintiff, is under the circumstances, the equivalent of a judgment for the defendant. The defendant has not argued any collateral consequences that might flow from the form of the judgment and on that basis we believe that the judgment for zero dollars may be affirmed. Under these circumstances, the cross appeal of the defendant is mooted and therefore ordered dismissed. The judgment is affirmed. . The RTC's motion for JNOV was filed November 13, 1991. On December 1, 1991, Federal Rule of Civil Procedure 50(c) was amended to reflect that a judgment notwithstanding the verdict would be called a judgment as a matter of law. . Pub.L. No. 101-73, 103 Stat. 183 (1989), codified in relevant part at 12 U.S.C. § 1811 et seq. and § 1441a et seq. . Harper admitted that as of July 1, 1974, the main road leading into the project had not been widened, no traffic lights had been installed, and the retaining wall (bin wall) was not yet done. . The record on this point is unclear. The jury returned its verdict on November 8, 1989. After the jury was polled, the judge stated in open court, "Judgment will be entered on all the verdicts.” He then issued an oral order staying execution of the judgment for 30 days. The next day, November 9, 1989, the court entered written orders evidencing the 30-day stay of execution (through December 8, 1989). On November 16, plaintiff appeared before the state court ex parte and requested that Arlington be required to post a bond in connection with the stay of execution. The judge issued an order requiring Arlington to post a bond, but providing that the stay of execution was to remain in effect for another six days during which time Arlington could deposit the bond. The court executed five memoranda of judgment, which Lester then recorded in five counties, despite the stay of execution. (These were later vacated.) On November 22, Arlington moved to vacate the November 16, 1989 order because it had been entered ex parte. The court vacated the earlier order and issued four written orders, again entering judgment on the verdicts from the trial. As with the earlier judgment, the judge again stayed execution of these judgments until December 8, 1989. . At oral argument, we inquired about the propriety of removal under these circumstances. At the court’s direction, the parties filed supplemental briefs on jurisdiction. . 12 U.S.C. § 1441a(Z)(3) provides in pertinent part: The [RTC] may, without bond or security, remove any such action, suit, or proceeding from a State court to the United States District Court for the District of Columbia, or if the action, suit, or proceeding arises out of the actions of the [RTC] with respect to an institution for which a conservator or a receiver has been appointed, the United States district court for the district where the institution's principal business is located. The RTC did not remove this case to the federal district court for the District of Columbia, but to the Northern District of Illinois, Eastern Division. Under Resolution Trust Corp. v. Lightfoot, 938 F.2d 65, 67 (7th Cir.1991), the RTC may remove a case to the district where the state court suit was pending. Thus, venue was proper if the federal district court had jurisdiction to accept the ease. . Other provisions in FIRREA make clear that the RTC had the authority to remove this case to the federal district court after judgment had been entered. Under FIRREA, the RTC has "the same duties” with respect to Arlington that the FDIC has under specified provisions of the Federal Deposit Insurance Act. See 12 U.S.C. § 1441a(b)(4)(A). One of the specified provisions, 12 U.S.C. § 1821 (d)(13)(B), states as follows: In the event of any appealable judgment, the [FDIC] as conservator or receiver shall— (i) have all the rights and remedies available to the insured depository institution (before the appointment of such conservator or receiver) and the Corporation in its corporate capacity, including removal to Federal court and all appellate rights; (emphasis added). Thus, the RTC has the right to remove an "appealable judgment," as it did in the case at bar. See In re Meyerland Co., 960 F.2d 512, 516 n. 7 (5th Cir.1992) (noting in dicta that "[12 U.S.C.] § 1821 makes it clear that the FDIC may remove a suit after judgment"); see also Federal Deposit Ins. Corp. v. Taylor, 727 F.Supp. 326, 328-31 (S.D.Tex.1989) (finding that removal after judgment was entered in state court, but while posttrial motions were pending, was proper under 12 U.S.C. § 1821; moreover, removal did not violate the Seventh Amendment). . In its motion for JNOV, the RTC contended that a second condition precedent had also been unfulfilled. That condition provided as follows: Loan Participation: Because of the high dollar amount of loan requested, it will be necessary to secure additional lending institutions as loan participants. The Association reserves the right to select such loan participants. The district court concluded that the jury could reasonably have concluded that Arlington failed to make a reasonable, good faith effort to find additional participants for the loan. The RTG does not raise this argument on appeal and thus we need not discuss it. 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_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. UNITED STATES of America, Plaintiff, Appellee, v. CERTAIN LAND LOCATED IN the COUNTY OF BARNSTABLE, etc., et al., Defendants, Appellees. Appeal of Grace E. BESSAY, Defendant. No. 88-2029. United States Court of Appeals, First Circuit. Heard May 4, 1989. Decided Nov. 17, 1989. Jeffrey B. Axelrod, with whom Cynthia L. Amara, Gregor I. McGregor, McGregor, Shea & Doliner, P.C., William P. Homans, Jr., and Homans, Hamilton, Dahmen & Marshall, Boston, Mass., were on brief, for appellant. David C. Shilton, Appellate Staff, Land & Natural Resources Div., Washington, D.C., with whom Donald A. Carr, Acting Asst. Atty. Gen., Jeremiah T. O’Sullivan, U.S. Atty., Nicholas C. Theodorou, Asst. U.S. Atty., Boston, Mass., Jacques B. Gelin, Maria A. Iizuka, Dept, of Justice, Washington, D.C., and Robin Lepore, Office of Sol., Dept, of Interior, Boston, Mass., were on brief, for U.S. Before BOWNES and TORRUELLA, Circuit Judges, and RE, Judge. The Honorable Edward D. Re, Chief Judge of the United States Court of International Trade, sitting by designation. RE, Judge: Defendant-appellant, Grace E. Bessay, appeals from a judgment of the United States District Court of the District of Massachusetts which held that her “cottage” was not “improved property,” and, therefore, was not exempt from condemnation under the Cape Cod National Seashore Act, 16 U.S.C. § 459b et seq. (1982) (the Act). The district court concluded that, “[fjirst, the cottage does not qualify as a one-family dwelling[,] [and] [s]econd, the evidence is insufficient to establish that the same person owned both the cottage and land on which it rested as of September 1, 1959.” United States v. Certain Land Located in the County of Barnstable, No. 67-988-N, slip op. at 6 (D.Mass. Sept. 15, 1988). The question presented on this appeal is whether the cottage owned by Bessay is “improved property” within the meaning of the Act, and, therefore, exempt from condemnation. Since we hold that the district court correctly held that Bessay’s cottage was not “improved property” because it did not qualify as a “one-family dwelling,” we affirm. Hence, it is unnecessary to decide the issue of the date of ownership of the cottage and the land. BACKGROUND This case is one of a series that resulted from the 1967 condemnation of 251 acres of land in Provincetown, Massachusetts, pursuant to the Act, by the United States Department of the Interior. It traces its origins to a dispute between Andrew Fuller, Bessay’s predecessor in interest, and adjoining landowners, who are referred to as the Beede Group. Fuller claimed ownership of a certain structure or “shack” and the surrounding land through the adverse possession of his predecessor in interest, Dorothy Fearing. On January 30, 1978, the Beede Group filed a petition for a determination of title, requesting a finding that they owned the entire 251 acres in question. The District Court for the District of Massachusetts issued an order “declaring the Beedes to be seised and possessed of a good title to the entire tract in fee simple.” United States v. Certain Land Located in the County of Barnstable, 491 F.Supp. 1252, 1256 (D.Mass.1980). The court also declared that “Mr. Fuller ha[d] failed to show that the Fearings acquired a good title by adverse possession, and ...[,] [therefore,] Fuller ha[d] no title to any land on the locus and owns only the shack itself.” Id. at 1257 (citations omitted). The executrix of Fuller, Grace Bessay, appealed to this court, and we reversed on the question of adverse possession. We held that “[t]he Beedes were not only not the true owners, they could not even claim prior constructive possession of the lot.... Bessay, on the other hand, ha[d] possessory title tracing back through Fuller to Dorothy Fearing_” United States v. Certain Land Located in the County of Barnstable, 674 F.2d 90, 95 (1st Cir.1982). On that appeal, we declined to “reach any claim against the government on account of the shack or lot being ‘improved property,’ ” and remanded the case to the district court. Id. at 96. On remand, the district court made certain determinations as to deed measurements and ownership of the land. Most pertinent here is its finding “that the cottage owned by Grace Bessay does not constitute ‘improved property’ under the Cape Cod National Seashore Act and is therefore subject to condemnation by the government.” Certain Land Located in the County of Barnstable, No. 67-988-N, slip op. at 9. In the present case, Bessay appeals only that portion of the decision of the district court which relates to the “improved property” exemption under the Act. DISCUSSION Because the increasing popularity of Cape Cod threatened to jeopardize the historic and scenic integrity of the area, in 1961, Congress established the Cape Cod National Seashore Act, 16 U.S.C. § 459b et seq. (1982), to ensure the preservation of the region. Rather than exclude all persons from owning or living on the land within the seashore, persons who had owned homes in the area for a certain period of time were permitted to remain. In pertinent part, the Act provides that the authority of the Secretary of the Interi- or to acquire property in the Cape Cod region shall: (1) ... be suspended with respect to all improved property located within such area in all of the towns referred to in section 459b of this title for one year following August 7, 1961. (2) Thereafter such authority shall be suspended with respect to all improved property located within such area in any one of such towns during all times when such town shall have in force and applicable to such property a duly adopted, valid zoning bylaw approved by the Secretary in accordance with the provisions of section 459b-4 of this title. 16 U.S.C. § 459b-3(b) (1982) (emphasis added). Under the Act, “improved property” is defined as: a detached, one-family dwelling the construction of which was begun before September 1, 1959 ... together with so much of the land on which the dwelling is situated, the said land being in the same ownership as the dwelling, as the Secretary shall designate to be reasonably necessary for the enjoyment of the dwelling for the sole purpose of noncommercial residential use, together with any structures accessory to the dwelling which are situated on the land so designated. The amount of the land so designated shall in every case be at least three acres in area, or all of such lesser amount as may be held in the same ownership as the dwelling.... 16 U.S.C. § 459b-3(d) (emphasis added). As we stated in our decision in United States v. 7.92 Acres of Land (I), 769 F.2d 4, 8 (1st Cir.1985), there is “no doubt that the ‘improved property’ exemption of the Act has been designed and interpreted to prevent the eviction of bona fide or actual homeowners from established residences, thereby accommodating ‘the legitimate interests of existing residents.’ ” (quoting S.Rep. No. 428, 87th Cong., 1st Sess., reprinted in 1961 U.S.Code Cong. & Admin. News 2212, 2220) (emphasis in original). In the present case the Town of Prov-incetown has enacted zoning ordinances approved by the Secretary. Consequently, in determining whether Bessay’s cottage qualified for the “improved property” exemption, the district court had to decide whether the cottage was a “detached, one-family dwelling” within the statutory definition. The district court held that the cottage did not qualify for the exemption. Bessay, in her brief, contends that the “plain language of the Act mandates that [the cottage] be classified as a dwelling entitled to improved property status.” In her reply brief she further argues that “[t]he Department improperly urges the [c]ourt to employ a theory of statutory interpretation that ignores the plain and ordinary meaning of the word ‘dwelling.’ ” We disagree. The nature and purpose of the Act, as well as the meaning of “dwelling,” is not new to this court. In 7.92 Acres of Land (I), Bessay acquired two tracts of land in 1963 where there existed the remains of a structure that had been built in the 1930’s. Bessay stated that, after 1959, but prior to 1963, the structure was partially burned. Sometime after 1963, the remaining portion of the structure was also burned. Bessay claimed that “since there [was] evidence that a ‘dwelling’ existed on her land prior to 1959, she ha[d] ‘rebuilding rights,’ and, therefore, [was] entitled to an exemption from condemnation [as ‘improved property’] under section 459b-3 of the Act.” 7.92 Acres of Land (I), 769 F.2d at 7. We held that “[s]ince there was no dwelling on Bessay’s land at the time of the taking, and the land [was] unbuildable, ... [Bessay] ha[d] no rebuilding rights.... ” Id. at 9. In addition, we noted that: [T]he structure ... was never served by utilities, had no waste disposal facilities, and permits for such services or facilities were never obtained or issued. Clearly, the legislative history and the case law interpreting the Act reveal that Congress did not intend to include within the definition of “improved property” the kind of structure which may have existed on Bessay’s land. Id. at 8; see generally P. Rohan & M. Reskin, Condemnation Procedures & Techniques § 14.04[4] (Supp.1988). In United States v. 7.92 Acres of Land (II), No. 86-1825, slip op. at 2 (1st Cir. Aug. 31, 1987) [831 F.2d 281 (table)], cert. denied, 484 U.S. 1011, 108 S.Ct. 711, 98 L.Ed.2d 661 (1988), the structure in question “consisted of a ten by ten foot shack. It contained no plumbing, no electricity, no septic system and no foundation.” (citations omitted). The structure contained a “chemical toilet [and] a primer stove.” Id. Bessay stated that she “used rain water for washing and brought in fresh water for drinking.” Id. In 1972, Bessay applied to the National Park Service for a Certificate of Suspension from condemnation on the ground that her property was “improved property” within the meaning of the Act. Her application was denied by the Department, and the district court held that the property was not “improved.” See United States v. 7.92 Acres of Land (II), No. 75-3546-C, slip op. at 6 (D.Mass. Mar. 31, 1982). In affirming, we noted that, in light of our discussion of “improved property” in 7.92 Acres of Land (I), and because of the lack of “permits for utility service or waste disposal,” it was evident that “Bessay’s property was not improved so as to suspend the Secretary’s condemnation powers.” 7.92 Acres of Land (II), No. 86-1825, slip op. at 2-3. The structure in the present case, which is referred to by Bessay as a “cottage,” consists of a two room wooden structure, eighteen and-a-half by sixteen-and-a-half feet, with a five foot wide porch along its length, on a foundation of wooden posts or pilings imbedded in the sand. The cottage has no plumbing, no electricity, no insulation, no built-in waste disposal or bathing facilities. It is lighted by kerosene lamps, and, is serviced by gas appliances, a water pump located approximately 200 feet east of the structure, and a portable chemical toilet. It cannot be questioned that, guided by what we have said in our prior cases, Bes-say’s cottage is not a “dwelling.” Bessay, nonetheless, claims that the cottage at issue in this case differs from the structures that we examined in the prior cases. In her reply brief, she argues that, unlike the structure in 7.92 Acres of Land (I), where “there was no existing structure on the property, at the time of the taking, and the land was unbuildable because it was a coastal bank,” here her cottage “has been located on the property at all times relevant to this appeal” and “has been inhabited continuously during the warmer months.... ” Furthermore, she adds that this case differs from the one in 7.92 Acres of Land (II) because in this case her “house and its foundation are significantly larger and more durable than those in [7.92 Acres of Land (II)]” and “[ejlectric utilities, have never been available at [this] site, whereas they were available at the ... site [in 7.92 Acres of Land (II)].” In our present inquiry it is noteworthy that the district court found that “[p]rior to trial, Bessay herself agreed that the structures in the present case and in United States v. 7.92 Acres of Land (II) ... were substantially similar.” Certain Land Located in the County of Barnstable, No. 67-988-N, slip op. at 7. Our examination of the record also confirms that, in a “Joint Status Report” prepared before trial, Bes-say did “agree that the structures in the present case and in [7.92 Acres of Land (II)] are substantially similar.” Hence, notwithstanding the distinctions that are stressed by Bessay on this appeal, the district court was correct in concluding that the distinctions “are insufficient to convert the cottage into ‘improved property.’ ” Id. Furthermore, from the description of the cottage and from what we said in our prior cases, it is clear that “Congress did not intend to include within the definition of ‘improved property’ the kind of structure which ... existed [here].” See 7.92 Acres of Land (I), 769 F.2d at 8. Notwithstanding the explanations offered at the trial and in Bessay’s appellate briefs, it is crystal clear that, without electricity and plumbing, the cottage did not meet the Minimum Standards of Fitness for Human Habitation promulgated by the Massachusetts Department of Public Health on March 8, 1955, and the Province-town Health Department Regulations adopted on July 15, 1957. The Provincetown Health Department Regulations require approved septic systems, piped in water supply and an adequate number of “water closets, lavatories, bathtubs or showers_” The Regulations also state that “[e]very kitchen sink, lavatory and bathtub or shower ... shall be properly connected to both hot and cold water lines.” (emphasis in original). Additionally, the Massachusetts Minimum Standards of Fitness for Human Habitation require “a kitchen sink in good working condition and properly connected to water and sewer systems ... [and] [w]here connection ... is not practicable, a dwelling shall be served by cesspools, septic tanks or other means of subsurface disposal of sewage. ...” At the trial, both Bessay and her witness, Peter Clemons, acknowledged that there are no pipes which connect a water supply to the cottage, that the kitchen sink is not connected to the water, that there is no bathtub or shower, and that there are no water heating facilities in the cottage. See Record at 60-61, 112, 116, Certain Land Located in the County of Barnstable (No. 67-988-N). Hence, Bessay’s contention that the cottage meets the criteria set forth in the Massachusetts Minimum Standards of Fitness for Human Habitation is contradicted by the facts and the trial testimony. In her reply brief, as an alternative argument, Bessay contends that the Department “incorrectly asserts that a structure must meet standards found in local and state health laws in order to be considered a ‘dwelling’_” (emphasis in original). According to Bessay, “[t]he Act merely provides that the Department shall issue regulations specifying standards for approval by the Department of a town’s zoning bylaws.” She asserts that “[t]he Provincetown Zoning Bylaw ... does not make any mention of local or state health statutes_” (emphasis in original). The Act provides that the authority of the Secretary to acquire property by condemnation shall be suspended as to all improved property “when such town shall have in force and applicable to such property a ... valid zoning bylaw approved by the Secretary_” 16 U.S.C. § 459b-3(b)(2). This provision, which suspends the Secretary’s power to condemn improved property during the existence of a valid zoning bylaw, was enacted because “Congress could not enact local zoning ordinances to avoid condemnation....” 7.92 Acres of Land (I), 769 F.2d at 8. The legislative history of the Act acknowledges that: If the Federal Government ... is to establish a national seashore in such a way as not to interfere with the continued ownership and enjoyment of ... property by private landowners ..., it is only reasonable that the communities involved adopt zoning laws which will assure that the property within the seashore will be used in a manner consistent with the purposes of the seashore. S.Rep. No. 428, 87th Cong., 1st Sess., reprinted in 1961 U.S.Code Cong. & Admin. News 2212, 2235. “Once such a bylaw is approved [by the Secretary], the Secretary becomes powerless to condemn improved property within that town[ ] ... as long as that improved property is put to a use consistent with the bylaw.” United States v. Certain Lands in Truro, 476 F.Supp. 1031, 1033 (D.Mass.1979). Prior case law had defined “improved property” consistently with the requirements of state and local law. It is not unreasonable, therefore, to look to this criteria when examining the cottage. Furthermore, as stated by the district court in United States v. 7.92 Acres of Land (II), “[w]hether a particular structure conforms with existing state health laws is pertinent, objective evidence with respect to its legal status as a dwelling.” No. 75-3546-C, slip op. at 6. CONCLUSION In agreement with our prior decisions as to the nature and purpose of the Act, and the findings and conclusions of the district court, we hold that the structure that is the subject of this litigation is not “improved property” within the meaning of the Cape Cod National Seashore Act. Since we agree with the district court that Bessay’s “cottage does not qualify as a one-family dwelling,” and, therefore, is not exempt from condemnation as “improved property,” we need not decide whether the land and building were in the same ownership in September of 1959. Therefore, the judgment of the district court is affirmed. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
sc_lcdisagreement	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. K MART CORP. v. CARTIER, INC., et al. No. 86-495. Argued October 6, 1987 Decided March 7, 1988 Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, and Stevens, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor, J., joined, post, p. 191. Kennedy, J., took no part in the consideration or decision of the case. Deputy Solicitor General Cohen argued the cause for petitioners in No. 86-625. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Assistant Attorney General Spears, Jeffrey P. Minear, David M. Cohen, and Robert V. Zener. Robert W. Steele argued the cause for petitioners in Nos. 86-495 and 86-624. With him on the briefs for petitioner in No. 86-495 were Robert E. Hebda and James C. Tuttle. Nathan Lewin and Jamie S. Gorelick filed briefs for petitioner in No. 86-624. William H. Allen argued the cause for respondents. With him on the brief were Eugene A. ' Ludwig • and Scott D. Gilbert. Together with No. 86-624, 4.7th Street Photo, Inc. v. Coalition to Preserve the Integrity of American Trademarks et al., and No. 86-625, United States et al. v. Coalition to Preserve the Integrity of American Trademarks et al., also on certiorari to the same court. Briefs of amici curiae urging reversal were filed for the State of Washington by Kenneth O. Eikenberry, Attorney General, and John G. Hennen, Senior Assistant Attorney General; for the American Free Trade Association by Stephen Kurzman, Robert Ullman, and Steven R. Trost; for the Consumers Union of U. S., Inc., by Alan Mark Silbergeld; for Darby Dental Supply Co. et al. by Robert V. Marrow; for the National Association of Catalog Showroom Merchandisers by Richard B. Kelly and Thomas P. Mohen; for the National Mass Retailing Institute by William D. Coston and Robert J. Verdisco; and for Progress Trading Co. by William F. Sondericker, Robert L. Hoegle, and Frank W. Gaines, Jr. Briefs of amici curiae urging affirmance were filed for American Cyanamid Co. et al. by David Ladd and Thomas W. Kirby; for the American Intellectual Property Law Association, Inc., by Neil A. Smith; for Duracell Inc. by James N. Bierman, Jay N. Varón, and Sheila McDonald Gill; for Lever Brothers Co. by Robert P. Devlin; for the Motor Vehicle Manufacturers Association of the United States, Inc., by William H. Crabtree; for the United States Trademark Association by Marie V. Driscoll; and for Yamaha International Corp. et al. by Robert E. Wagner and Robert E. Browne. Harold C. Wegner, Barry E. Bretschneider, Donald R. Dinan, Charles F. Schill, and Albert P. Halluin filed a brief for Cetus Corp. as amicus curiae. Justice Brennan delivered the opinion of the Court. A “gray-market” good is a foreign-manufactured good bearing a valid United States trademark, which is imported without the consent of the United States trademark owner. This action presents the issues whether a federal district court has jurisdiction to hear a challenge to the Secretary of the Treasury’s regulation permitting the importation of certain gray-market goods, 19 CFR § 133.21 (1987), and, if so, whether the regulation is a reasonable agency interpretation of § 526(a) of the Tariff Act of 1930 (1930 Tariff Act), 46 Stat. 741, as amended, 19 U. S. C. § 1526. I Section 526(a) of the 1930 Tariff Act prohibits importing “into the United States any merchandise of foreign manufacture if such merchandise . . . bears a trademark owned by a citizen of, or by a corporation or association created or organized within, the United States, and registered in the Patent and Trademark Office by a person domiciled in the United States . . . , unless written consent of the owner of such trademark is produced at the time of making entry.” 19 U. S. C. § 1526(a). The Customs Service regulation that implements § 526(a) does not prohibit importation of gray-market goods where the foreign manufacturer is affiliated with the United States trademark owner or has received the owner’s authorization to use its trademark. The regulation provides generally that “[f]oreign-made articles bearing a trademark identical with one owned and recorded by a citizen of the United States or a corporation or association created or organized within the United States are subject to seizure and forfeiture as prohibited importations.” 19 CFR § 133.21(b) (1987). But the regulation furnishes a “common-control” exception from the ban, permitting the entry of gray-market goods manufactured abroad by the trademark owner or its affiliate: “(c) Restrictions not applicable. The restrictions . . . do not apply to imported articles when: “(1) Both the foreign and the U. S. trademark or trade name are owned by the same person or business entity; [or] “(2) The foreign and domestic trademark or trade name owners are parent and subsidiary companies or are otherwise subject to common ownership or control. . . .” The Customs Service regulation further provides an “authorized-use” exception, which permits importation of gray-market goods where “(3) [t]he articles of foreign manufacture bear a recorded trademark or trade name applied under authorization of the U. S. owner . . . .” 19 CFR § 133.21(c) (1987). Respondent Coalition to Preserve the Integrity of American Trademarks, an association of United States trademark owners, and two of its members (all three collectively referred to as COPIAT) brought suit in the United States District Court for the District of Columbia, seeking both a declaration that the Customs Service regulation is invalid and an injunction against its enforcement. Specifically, COPIAT asserted that the common-control and authorized-use exceptions are inconsistent with both § 526(a) of the 1930 Tariff Act, and §42 of the Lanham Trade-Mark Act, 15 U. S. C. § 1124, which prohibits the importation of goods bearing marks that “copy or simulate” United States trademarks. Petitioners K mart Corporation and 47th Street Photo, Inc., intervened as defendants. After rejecting 47th Street Photo’s motion to dismiss on the ground that the Court of International Trade had exclusive jurisdiction over the case, the District Court upheld the Customs Service regulation against both challenges. 598 F. Supp. 844 (1984). The Court of Appeals affirmed the District Court’s jurisdictional ruling but reversed on the merits. 252 U. S. App. D. C. 342, 790 F. 2d 903 (1986) (hereinafter COPIAT). We granted certiorari, 479 U. S. 1005 (1986), to resolve conflicts among the Courts of Appeals on both the jurisdictional issue, compare Vivitar Corp. v. United States, 761 F. 2d 1552, 1557-1560 (CA Fed. 1985), aff’g 593 F. Supp. 420 (Ct. Int’l Trade 1984), cert. denied, 474 U. S. 1055 (1986), with Olympus Corp. v. United States, 792 F. 2d 315, 317-319 (CA2 1986), aff’g 627 F. Supp. 911 (EDNY 1985), cert. pending, No. 86-757; and COPIAT, supra, at 344-346, 790 F. 2d, at 905-907, and the merits, compare Vivitar Corp., supra, at 1560-1571, and Olympus Corp., supra, at 319-322, with COPIAT, supra, at 346-355, 790 F. 2d, at 907-916. We now affirm the Court of Appeals’ conclusion that the District Court had jurisdiction, and restore these cases to the calendar for reargument on the merits. II Only petitioner 47th Street Photo contends that we lack jurisdiction over this litigation. Both the general federal-question provision, 28 U. S. C. § 1331, and the specific provision regarding actions “arising under any Act of Congress relating to . . . trade-marks,” § 1338(a), would, standing alone, vest the district courts with jurisdiction over this action. The District Court would be divested of jurisdiction, however, if this action fell within one of several specific grants of exclusive jurisdiction to the Court of International Trade. Petitioner propounds two theories in support of its claim that exclusive jurisdiction lies in the Court of International Trade. We reject both. A Petitioner’s first theory is that § 526(a) imposes an “embarg[o]” within the meaning of 28 U. S. C. § 1581(i)(3), which grants the Court of International Trade exclusive jurisdiction over suits against the Government arising out of federal laws that provide for “embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety . . . .” The Court of Appeals rejected that theory on the ground that “Section 1581(i)(3) only extends to quotas and embargoes arising out of trade policy, the sort of measures that have traditionally limited the importation of shoes, textiles, automobiles, and the like.” COPIAT, supra, at 346, 790 F. 2d, at 907. We agree with the Court of Appeals that § 526(a) is not an “embargo,” but reach that conclusion on different reasoning. (1) An embargo is a “[government order prohibiting commercial trade with individuals or businesses of other nations.” Black’s Law Dictionary 468 (5th ed. 1979). It is “[a] policy which prevents goods from entering a nation” and which “may be imposed on a product or on an individual country.” J. Berenyi, The Modern American Business Dictionary 103 (1982). To be sure, embargoes, like those that the Court of Appeals enumerated, often implement trade policy. But (even assuming that the exclusion of foreign-manufactured goods bearing United States trademarks cannot fairly be said to implement trade policy) trade policy is not the sole, nor perhaps even the primary, purpose served by embargoes. The Government typically imposes embargoes to protect public health, see, e. g., 21 U. S. C. § 381 (adulterated, misbranded, or unapproved foods, drugs, and cosmetics); safety, see, e. g., 15 U. S. C. § 1397 (motor vehicles that do not conform to federal safety standards); or morality, see, e. g., 19 U. S. C. § 1305 (obscene pictures, lottery tickets, and articles for causing unlawful abortion), or to further interests relating to foreign affairs, see, e. g., 22 U. S. C. § 2370(a) (embargo on Cuba); law enforcement, see, e. g., 15 U. S. C. §§ 1241-1244 (switchblade knives); or ecology, see, e. g., 19 CFR § 12.60 (1987) (fur-seal or sea-otter skins). We have discovered no evidence that Congress intended to constrain the ordinary meaning of the word “embargoes” to mean “embargoes that are grounded in trade policy.” To the contrary, had Congress so intended, it would have been quite unnecessary to exclude expressly from the Court of International Trade’s jurisdiction, as Congress did, embargoes that are for the “protection of the public health or safety,” 28 U. S. C. § 1581(i)(3), or that prohibit the importation of certain “immoral articles,” see § 1581(j) (excluding suits arising out of 19 U. S. C. § 1305, which prohibits importation of a panoply of “immoral articles”). (2) Although we reject the Court of Appeals’ analysis, we nevertheless agree with its conclusion that § 526(a) does not impose an embargo. As the above-quoted definitions suggest, the ordinary meaning of “embargo,” and the meaning that Congress apparently adopted in the statutory language “embargoes or other quantitative restrictions,” is a govern-mentally imposed quantitative restriction — of zero — on the importation of merchandise. An importation prohibition is not an embargo if rather than reflecting a governmental restriction on the quantity of a particular product that will enter, it merely provides a mechanism by which a private party might, at its own option, enlist the Government’s aid in restricting the quantity of imports in order to enforce a private right. Suppose, for example, that a domestic producer grants a foreign distributor exclusive distribution rights abroad, and that a provision of the contract, captioned “Importation prohibited,” bars the foreign distributor from competing for domestic sales. If the foreign distributor nevertheless brazenly imports into the United States, the domestic manufacturer may invoke any of a number of contract remedies — including monetary or injunctive relief in court — to enforce its private right. A court-issued injunction is, technically, a “[g]overnment order prohibiting commercial trade.” Yet one could no more deem the private party’s enforcement of its “Importation prohibition” an “embargo” than deem damages for its breach a “tarif[f], dut[y], fe[e] or other ta[x] on the importation of merchandise,” 28 U. S. C. § 1581(i)(2). The private party, not the Government, by deciding whether and how to exercise its private right, determines the quantity of any particular product that can be imported. Section 526(a)’s “Importation prohibition” is of the same type. Trademark law, like contract law, confers private rights, which are themselves rights of exclusion. It grants the trademark owner a bundle of such rights, one of which is the right to enlist the Customs Service’s aid to bar foreign-made goods bearing that trademark. See 71 Cong. Rec. 3871 (1929) (remarks of Sen. George) (§ 526(a) “undoubtedly had its origin not in an effort to exclude merchandise bearing a trade-mark, but for the purpose of protecting the interest of the owner of the trade-mark who had gone to the trouble of registering it”); 62 Cong. Rec. 11603 (1922) (remarks of Sen. Sutherland) (§ 526(a) is designed to “protec[t] the property rights of American citizens who have purchased trade-marks from foreigners”). Thus, § 526(a) — like the court-issued injunction enforcing a contractual “Importation prohibition”— is very different from an embargo. It does not set a govern-mentally determined quantitative limit on the entry of, or foreign trafficking in, any particular product: The owner of the trademark can import to its heart’s content, and will usually do so until the market is content; and any other importer may also import a particular foreign-manufactured trademarked good ad infinitum, if it acquires the trademark owner’s consent to import. Nor does the Government have any control over the extent or the nature of § 526(a)’s prohibition. The trademark owner has sole authority to decide that all products bearing its trademark will enter or that none will, and to decide what entity may import them, under what conditions, and for what purpose. There is no reason to suppose that Congress would have intended to distort the term “embargo” beyond its ordinary meaning to encompass a provision that merely grants particular trademark owners a private property right — whose enforcement is entirely in the owners’, not the Government’s, control — to exclude intrabrand competition from abroad. Justice Scalia’s conclusion that § 526(a) falls within the “ordinary meaning” of “embargo,” post, at 196, follows from a rather extraordinary definition of the term as any governmental “import regulation that takes the form of a governmental prohibition on imports, regardless of. . . its ultimate purpose,” post, at 195 (emphasis added). As the court-enforced contractual prohibition illustrates, not every governmental importation prohibition is an embargo. To hold otherwise would yield applications of the term “embargo” that are unnatural, to say the least. For example, the prohibitory nature of regulations providing that the “importation into the United States of milk and cream is prohibited” except by a permitholder, 19 CFR § 12.7(a) (1987) (emphasis added), and that “Customs officers shall not permit the importation of any milk or cream that is not tagged in accordance with [applicable] regulations,” § 12.7(b) (emphasis added), would convert licensing and tagging requirements into embargoes on unlicensed or improperly tagged dairy products. Similarly, a requirement that certain meat products be inspected prior to importation would magically become an embargo of uninspected (but not necessarily tainted) meat when Congress uses a formulation like “meat. . . products shall not be released from Customs custody prior to inspection,” § 12.8 (emphasis added). This sampling of import regulations demonstrates that Justice Scalia’s departure from ordinary meaning, much more than our adherence to it, would “leave [§ 526(a)] to drift on the currents of lawyerly invention,” post, at 196. (3) Contrary to petitioner’s contentions, our adherence to the ordinary meaning of “embargo” is not at all inconsistent with the purposes of the Customs Courts Act of 1980, Pub. L. 96-417, 94 Stat. 1727, which enacted the jurisdictional provision. Congress intended, first and foremost, to remedy the confusion over the division of jurisdiction between the Customs Court (now the Court of International Trade) and the district courts and to “ensure . . . uniformity in the judicial decisionmaking process.” See H. R. Rep. No. 96-1235, p. 20 (1980). But Congress did not commit to the Court of International Trade’s exclusive jurisdiction every suit against the Government challenging customs-related laws and regulations. Had Congress wished to do so it could have expressed such an intent much more clearly and simply by, for example, conveying to the specialized court “exclusive jurisdiction . . . over all civil actions against the [Government] directly affecting imports,” S. 2857, 95th Cong., 2d Sess. (1978), or over “all civil actions against the [Government] which arise directly from import transactions and which arise under the Tariff Act of 1930 [or any one of several specified trade statutes],” S. 1654, 96th Cong., 1st Sess. (1979); see also H. R. 6394, 96th Cong., 2d Sess. (1980). In rejecting bills that would have implemented such a categorical approach, Congress opted for a scheme that achieved the desired goals of uniformity and clarity by delineating precisely the particular customs-related matters over which the Court of International Trade would have exclusive jurisdiction. Thus, for example, Congress granted the Court of International Trade exclusive jurisdiction over suits relating to “tariffs, duties, fees, or other taxes on the importation of merchandise,” but not if they are for the “raising of revenue.” 28 U. S. C. § 1581(i)(2). Similarly, Congress made no provision for direct review in the Court of International Trade of facial challenges to conditions of entry, such as labeling or marking requirements, see, e. g., 19 CFR §§ 11.6-11.7 (1987) (packaging and marking of distilled spirits, wines, and malt liquors); §§ 11.12-11.12b (labeling of wool, fur, and textile products), and inspection, see, e. g., § 11.1 (inspection of cigars, cigarettes, medicinal preparations, and perfumery); § 12.8 (inspection of meats). Or, to focus more closely on the genre of trade regulation at issue here, no one disputes that Congress declined to grant the Court of International Trade exclusive jurisdiction over import prohibitions relating to “public health and safety” or “immoral articles.” See supra, at 184. By choosing the word “embargoes” over the phrase “importation prohibitions,” Congress likewise declined to grant the Court of International Trade exclusive jurisdiction over importation prohibitions that are not embargoes. To depart from the words Congress chose would infect the courts with the same jurisdictional confusion that Congress intended to cure. Concededly, Congress did not fully explain its exclusion of certain customs-related matters from the Court of International Trade’s jurisdiction. There is, for example, no obvious reason why Congress declined to grant that court jurisdiction to review challenges to conditions of importation of the type mentioned above. There may likewise be no adequate explanation for Congress’ omission of importation prohibitions that do not fall within the ordinary meaning of “embargoes.” Whatever the reason, however, we disagree with petitioner that the omission is inconsistent with Congress’ intent to “utiliz[e] the specialized expertise of the United States Customs Court and the United States Court of Customs and Patent Appeals . . . .” H. R. Rep. No. 96-1235, supra, at 20. The Customs Court, which the Customs Court Act of 1980 renamed the Court of International Trade, and the Court of Customs and Patent Appeals, which the Federal Courts Improvement Act of 1982 merged with the Court of Claims to form the United States Court of Appeals for the Federal Circuit, had rarely dealt with, much less developed a “specialized expertise” in, trademark law. Nor is there any indication (aside from petitioner’s strained reading of the term “embargo”) that Congress wished the new institutions to acquire expertise in the area in which its predecessors had none. In sum, the purpose and legislative history of the jurisdictional provision provide no hint that Congress intended to depart from the ordinary meaning of “embargoes.” B Petitioner’s second theory for vesting exclusive jurisdiction in the Court of International Trade is more easily rejected. It begins with 28 U. S. C. § 1581(a), which grants “[t]he Court of International Trade . . . exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930.” The “protest” referred to in subsection (a) is an administrative remedy available to challenge specified decisions by Customs officers, including a decision ordering “the exclusion of merchandise from entry . . . under any provision of the customs laws.” 19 U. S. C. § 1514(a)(4) (emphasis added). Petitioner acknowledges that the present action is not a protest because it challenges a Customs Service decision to permit the entry of, not to exclude, gray-market goods. It asserts instead that since this suit involves subject matter that would have given rise to a protest had gray-market goods been excluded rather than admitted, the Court of International Trade had exclusive jurisdiction “ ‘as a corollary to protest jurisdiction under 28 U. S. C. § 1581(a).’” Brief for Petitioner 47th Street Photo, Inc. 17 (quoting Vivitar, 761 F. 2d, at 1560). The source of that putative corollary is 28 U. S. C. § 1581(i)(4), which confers on the Court of International Trade jurisdiction over suits against the Government arising out of federal laws pertaining to “administration and enforcement with respect to the matters referred to in [, inter alia,] subsectio[n] (a).” We agree with the Court of Appeals that § 1581(i)(4) will not bear petitioner’s reading. See also Olympus Corp., 792 F. 2d, at 317-319. The “matte[r] referred to” in § 1581(a) is “the denial of [a] protes[t],” or at the very broadest, “a protest.” Since this suit involves no “protest,” much less a denial of one, it cannot by any stretch of the imagination involve a “law . . . providing for . . . administration and enforcement” of a protest. Id., at 318. HI We affirm the Court of Appeals’ conclusion that the District Court had jurisdiction, and restore these cases to the calendar for reargument on the merits. It is so ordered. Justice Kennedy took no part in the consideration or decision of this case. The full text of § 526(a), as codified, 19 U. S. C. § 1526(a), is as follows: “(a) Importation prohibited “Except as provided in subsection (d) of this section [an exception added in 1978 for the importation of articles for personal use], it shall be unlawful to import into the United States any merchandise of foreign manufacture if such merchandise, or the label, sign, print, package, wrapper, or receptacle, bears a trademark owned by a citizen of, or by a corporation or association created or organized within, the United States, and registered in the Patent and Trademark Office by a person domiciled in the United States, under the provisions of sections 81 to 109 of title 15, and if a copy of the certificate of registration of such trademark is filed with the Secretary of the Treasury, in the manner provided in section 106 of said title 15, unless written consent of the owner of such trademark is produced at the time of making entry.” The Customs Service regulation provides in relevant part: “§ 133.21 Restrictions on importations of articles bearing recorded trademarks and trade names. “(b) Identical trademark. Foreign-made articles bearing a trademark identical with one owned and recorded by a citizen of the United States or a corporation or association created or organized within the United States are subject to seizure and forfeiture as prohibited importations. “(c) Restrictions not applicable. The restrictions set forth in paragraphs (a) and (b) of this section do not apply to imported articles when: “(1) Both the foreign and the U. S. trademark or trade name are owned by the same person or business entity; “(2) The foreign and domestic trademark or trade name owners are parent and subsidiary companies or are otherwise subject to common ownership or control (see §§ 133.2(d) [defining “common ownership and common control”] and 133.12(d) [providing that application to record trademark must report identity of any affiliate that uses same trade name abroad]); “(3) The articles of foreign manufacture bear a recorded trademark or trade name applied under authorization of the U. S. owner; “(4) The objectionable mark is removed or obliterated prior to importation in such a manner as to be illegible and incapable of being reconstituted, for example by: “(i) Grinding off imprinted trademarks wherever they appear; “(ii) Removing and disposing of plates bearing trademark or trade name; “(5) The merchandise is imported by the reeordant of the trademark or trade name or his designate; “(6) The reeordant gives written consent to an importation of articles otherwise subject to the restrictions set forth in paragraphs (a) and (b) of this section, and such consent is furnished to appropriate Customs officials; or “(7) The articles of foreign manufacture bear a recorded trademark and the personal exemption is claimed and allowed under § 148.55 of this chapter.” 19 CFR § 133.21 (1987). COPIAT sued the United States, the Secretary of the Treasury, and the Commissioner of Customs. For the Lanham Trade-Mark Act claim, COPIAT also invoked a specific provision of that Act conferring to the district courts jurisdiction over all claims arising under the Act. 15 U. S. C. § 1121. As relevant here, 28 U. S. C. § 1581 provides: “(i) In addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)-(h) of this section and subject to the exception set forth in subsection (j) of this section, the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for— “(1) revenue from imports or tonnage; “(2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue; “(3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or “(4) administration and enforcement with respect to the matters referred to in paragraphs (1) — (3) of this subsection and subsections (a)-(h) of this section. “(j) The Court of International Trade shall not have jurisdiction of any civil action arising under section 305 of the Tariff Act of 1930.” Section 526(a) is an unusual (if not a unique) breed of importation prohibition in that it takes all control out of the Government’s hands and puts it in the hands of private parties. The only other importation prohibitions mentioned by the parties or Justice Scalia that might even conceivably match that description are the prohibitions against the importation of goods that infringe trademarks, see 15 U. S. C. § 1124, or copyrights, see 17 U. S. C. §§ 601-603. Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? A. Yes B. No Answer:
songer_attyfee	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on attorneys' fees favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Edgar T. WEEKES et al., Appellants, v. ATLANTIC NATIONAL INS. CO., Appellee. CALIFORNIA STATE AUTO ASSOCIATION et al., Appellants, v. ATLANTIC NATIONAL INS. CO., Appellee. ATLANTIC NATIONAL INS. CO., Appellant, v. CALIFORNIA STATE AUTO ASSOCIATION et al., Appellees. No. 20245. United States Court of Appeals Ninth Circuit. Dec. 20, 1966. Robert G. Begam, of Langerman, Begam & Lewis, Phoenix, Ariz., for appellant and appellee Weekes. John J. O’Connor, III, of Fennemore, Craig, Allen & McClennen, Phoenix, Ariz., for appellants and appellees California State Auto Ass’n Inter-Ins. Bureau and Samuel Rotanzi. Mark Wilmer, of Snell & Wilmer, Phoenix, Ariz., for appellee and appellant Atlantic Nat. Ins. Co. Before MERRILL, KOELSCH and DUNIWAY, Circuit Judges. DUNIWAY, Circuit Judge: In this action for declaratory relief, in which jurisdiction is based upon diversity of citizenship, there are three appeals. The action was begun by Atlantic National Insurance Co. (Atlantic). The defendants are California State Automobile Association Inter-Insurance Bureau (California), Samuel Rotanzi (Rotanzi) and Edgar T. Weekes and Catherine H. Weekes, husband and wife, (the Weekes). The facts are not disputed, and the court entered a summary judgment, from various parts of which the Weekes, California and Rotanzi, and Atlantic appeal. The action arose out of an automobile accident occurring in Arizona. Rotanzi rented a car from Hertz Corporation. There was a collision between that car, driven by Rotanzi, and a car owned by the Weekes. For the purposes of this case, it is stipulated that at the time, Rotanzi was under the influence of intoxicating liquor. The accident occurred on April 20, 1961. On June 26, 1961, the Weekes filed an action in the federal district court claiming personal injury damages exceeding $160,000. In February, 1963, the parties agreed to hold that action in abeyance, to await the outcome of a declaratory judgment action to be filed thereafter. On March 22, 1963, Edgar Weekes filed suit in Arizona Superior Court against Rotanzi, claiming damage to his car; the present suit which is the declaratory judgment action that had been agreed upon, was filed by Atlantic about October 1, 1963, issue finally being joined upon the second amended complaint filed November 20, 1964. The car damage action was settled in October, 1963, and a stipulation was filed in that action on October 22, 1963. Pursuant to that stipulation, the car damage action was dismissed with prejudice upon payment to Weekes of $1,101.52, the exact amount prayed for in the complaint. The purpose of the present suit was to determine questions of insurance coverage. It was on file but. had not come to issue when the property damage action was settled. Atlantic had issued a policy of insurance to Hertz Corporation, affording liability insurance to persons leasing Hertz; cars. In this action, in its second amended complaint, Atlantic claimed: 1. that the disposition of the car damage action makes it a bar to the personal' injury action; 2. that the coverage issued by California to Rotanzi is primary and Atlantic’s coverage, if any, is secondary, and 3. that coverage was not afforded te Rotanzi because the policy excludes coverage if the accident occurs “while [the car is] being operated * * * by any" person under the influence of intoxicants * * or, alternatively, that this exclusionary clause should at least reduce Atlantic’s liability to a maximum of $10,-000 per person and $20,000 per accident. The policy limits are $100,000 and $300,-000. California had issued a policy of liability insurance to Rotanzi. Both California and Rotanzi asserted:' (1) that the disposition of the car damage action makes it a bar to the personal injury action; (2) that Atlantic’s coverage is primary, or, alternatively, that the two insurers should participate in proportion to the respective limits of their policies; and (3) that Atlantic’s liability is neither excluded nor limited by its exclusionary clause. The Weekes asserted that the disposition of the car damage case does not make it a bar to the personal injury action, that Atlantic’s liability is neither excluded nor limited, that California is also liable for Rotanzi’s conduct, and that both Atlantic and California should be required to pay the full amount, up to their full policy limits, of the Weekes’ personal injury claims. All parties moved for summary judgment. The court’s judgment on these motions is to the following effect (the numbering follows the numbering in the judgment): 1. The disposition of the car damage action does not make it a bar to the personal injury action. 2. A. Coverage of Rotanzi by Atlantic’s policy is not excluded. B. The limits of Atlantic’s coverage of Rotanzi are $10,000 for one injury, $20,000 for one accident. C. Atlantic’s coverage is primary. D. California’s coverage is excess. The Weekes appeal from paragraph 2B: Atlantic appeals from paragraphs 1, 2A, 2C, and 2D; California and Rotanzi appeal from paragraphs 1 and 2B. We consider these appeals according to their subject matter. 1. The effect of the settlement of the car damage case. An affidavit submitted in behalf of the Weekes, in support of their motion for summary judgment, shows that in February, 1963, about two years after the personal injury action was filed, the parties agreed that it be “held in abatement” pending disposition of a declaratory judgment action to be filed. In March, 1963, without the knowledge of the attorney who represented the Weekes in the personal injury action, Mr. Weekes, through another attorney, filed the car damage action. Counsel for Mr. Weekes in the car damage case was retained by Allstate Insurance Company. This was a “subrogation” action. Allstate, however, was not named as a plaintiff. The terms of its subrogation rights, if any, are not stated. It does not appear that Allstate paid for the damage to the car, or that Weekes assigned his car damage claim to Allstate, or whether the Allstate policy required that he do so. That policy is not in the record. The present declaratory judgment action was filed October 1, 1963. Atlantic is represented by different counsel from counsel who were acting for it as Rotanzi’s counsel in both the car damage and personal injury actions. During October, 1963, counsel for both sides in the car damage action agreed to settle and stipulated to its dismissal, with prejudice. An order to that effect was entered October 22, 1963. Not until October 26 did the attorney representing Weekes in the personal injury action learn of this stipulation and dismissal. He learned of it when Weekes brought him a settlement draft containing a full release. The attorney advised Weekes not to sign. After some correspondence with Atlantic’s attorney and the attorney chosen by Allstate to represent Weekes in the ear damage case, a new draft, not containing the release, was issued and Weekes’ counsel in the personal injury case advised Weekes to accept it, which he did. Certain correspondence between Weekes’ attorney in the car damage case, and Atlantic’s attorney in that case and the personal injury case, is set out in the margin. Atlantic, California and Kotanzi all urge that the stipulated dismissal in the car damage case is res judicata here. Their argument is in substance as follows: Arizona adheres to the single cause of action rule. In negligence cases the cause of action lies in defendant’s breach of duty, and where, as here, that breach causes both personal injury and property damage, there is still but one cause of action. The result of the rule is that if the injured party brings separate actions for personal injury and for property damage, and judgment is for the defendant in either of them, that judgment is res judicata as to the other action, and a bar to its further prosecution. The Arizona court has said that where two cases based on the same cause of action are filed, this result follows, regardless of which action was first commenced. Dismissal with prejudice is an adjudication on the merits, in favor of the defendant. Here, the property damage case was dismissed with prejudice by stipulation of the parties. This, say appellants, was an adjudication on the merits against Edgar Weekes, and is therefore res judicata in the personal injury case, which must be dismissed. This is particularly true here, they say, because the settlement was completed with full knowledge of the facts. The attorney for Atlantic, representing Rotanzi in both the car damage and the personal injury cases, expressly reserved whatever rights the dismissal might confer; the attorney for the Weekes in the personal injury case knew this and took his chances, based upon his own view of the law. He —and therefore his clients — are bound by the legal result of what he permitted them to do. No fraud was perpetrated. So far as appears from this record, none of the foregoing applies to Mrs. Weekes. She was not a party to the property damage case. The only case in which any cause of action of hers is asserted is the personal injury case. Her rights in the personal injury case, therefore, have not been adjudicated. As to Mr. Weekes, the result demanded by the appellants hardly squares with any conceivable notion of justice. The car damage case was brought by an attorney chosen by Allstate, using Weekes’ name. His personal injury attorney did not even know that it had been filed, much less that it had been settled and dismissed, until after it was dismissed. At that point the matter was brought to his attention, and he objected to the release that Weekes was asked to sign. The release was then withdrawn by the attorney who represented both Rotanzi and Atlantic in both cases. It is quite true that if Arizona law compels the result sought by appellants we must follow it, leaving Mr. Weekes to whatever remedies he may have against those who led him, or allowed him to proceed, down the road to disaster. Counsel suggest that there are two routes whereby Weekes can escape — the so-called “subrogation case” route, and the “consent” route. The subrogation exception to the rule against the splitting of a single cause of action has been recognized where the property element of the damages alleged in an accident case is covered by insurance. The insurer, under the terms of the insurance contract or upon paying off its obligation to the insured and taking an assignment, is seen, in effect, as the holder of a separate cause of action for the property damage. Hence the insurer’s suit for reimbursement from the defendant does not bar the injured party’s action for personal injury damages. The consent exception merely recognizes that the rule against splitting is for the benefit of the defendant and that he must timely object to the splitting. Appellants assert that the Arizona court has not opened the gate to either route. This is true, but it is also true that it has never considered whether it ought to. Other courts, confronted with similar arguments, have opened the gate to one or the other of them. On the record before us, we cannot support taking the “subrogation case” route. The affidavit of the Weekes’ attorney in support of their motion for summary judgment is totally insufficient. It merely alleges two things: (1) that the attorney for Mr. Weekes in the car damage case was retained by Allstate, Weekes being the nominal plaintiff, and (2) that the action was a “subrogation action.” Item (2) is nothing but a legal conclusion. Rule 56(e) requires “such facts as would be admissible in evidence.” No such facts are alleged, as to the subrogation issue. There is no allegation that Allstate had insured anything, much less any proof of the terms of any Allstate policy. We cannot indulge in any presumptions as to its existence or its terms. Nor can we presume that Allstate had become subrogated to Mr. Weekes’ rights under common law or equity principles when the car damage action was filed. There is no evidence that at that time Allstate had paid anything. See 46 C.J.S. Insurance § 1209, pp. 152-160. Indeed, there is no evidence that Allstate ever paid anything. All that was shown was that the settlement check was payable to and endorsed by Weekes and his attorney, and was also endorsed by Allstate. A counter affidavit establishes that the car damage case was filed in Weekes’ name alone, and that the complaint contained no allegations whatever about any rights of Allstate to recover anything. No case has been cited to us that opens the gate to the subrogation ease route under such circumstances. Every case having comparable facts refuses to open the gate. In every case in which the gate has been opened, the insurance company-subrogee was the party to the car damage case and its rights were the rights litigated in that case. In every such case, the insurance company had paid off, and was an assignee of the car damage claim, either by operation of law or by express assignment. In every such case, the car owner was not a party to the car damage case. And these were the facts held to be controlling. We turn then, to the gate to the “consent” route. We are convinced that the Arizona courts would open that gate, but the problem is whether it leads to a culde-sac. The one cause of action rule, and its result, the rule against splitting causes of action, are for the benefit of the defendant — to prevent his being harassed by multiple lawsuits. It would seem to follow that, if the defendant does not object, in either case, to the splitting of the cause of action, he will be held to have waived the point. The rule against splitting and the reasons for it, and the consent exception, are well stated in Restatement, Judgments, § 62: “§ 62. SPLITTING CAUSE OF ACTION-JUDGMENT FOR PLAINTIFF OR DEFENDANT. “Where a judgment is rendered, whether in favor of the plaintiff or of the defendant, which precludes the plaintiff from thereafter maintaining an action upon the original cause of action, he cannot maintain an action upon any part of the original cause of action, although that part of the cause of action was not litigated in the original action, except * * . “(c) where the defendant consented to the splitting of the plaintiff's cause of action. “Comment: a. Rationale. The rule stated in this Section is based on the idea that where a person has a single cause of action, in the interests of convenience and economy to the public and to the defendant he should be entitled to but one right of action and hence should be required to unite in one proceeding all matters which are part of it. “Comment on Clause (c): m. Consent of defendant. The purpose of the rule stated in this Section is to protect the defendant from being harassed by several actions based upon a single cause of action. It is not applicable where the defendant consents, in express words or otherwise, to the splitting of the cause of action. “Where the plaintiff brings separate actions based upon different items included in his claim, and in none of the actions does the defendant make the objection that another action is pending based upon the same claim, a judgment for the plaintiff in one of the actions does not preclude him from obtaining judgment in the other actions. In such a case the failure of the defendant to object to the splitting of the plaintiff’s claim is effective as a consent to the splitting of the claim.” We agree, and we think that the Arizona courts would agree. Why, then, can it be said that the “consent” gate leads to a cul-de-sac? Because here, even though the defendant did not object to splitting the cause of action, there was a judgment, on the merits and in favor of the defendant, in the car damage case. It will be noted that the comment on clause (c), quoted above, is limited to the case in which the plaintiff obtains a judgment in one of the cases. The first Comment in the Restatement, dealing with the rationale, which is also quoted above, indicates that the reference to the plaintiff in the above Comment is deliberate. The last paragraph of the first Comment reads: “The rule stated in this Section is applicable whether the judgment is for the plaintiff or for the defendant, irrespective of the issues raised in the case, provided only that where the judgment is for the defendant it is upon the merits as stated in § 48, and hence is one which would bar the plaintiff from maintaining another action upon the original cause of action.” It is argued from this that if defendant gets judgment in one of the cases, on the merits, his waiver or consent to the splitting of the cause of action does not extend to a waiver of the res judicata effect of his judgment. This is said to be made clear by Section 48 of the Restatement, to which the foregoing Comment refers. It says: “§ 48. JUDGMENT FOR DEFENDANT ON THE MERITS— BAR. Where a valid and final personal judgment is rendered on the merits in favor of the defendant, the plaintiff cannot thereafter maintain an action on the original cause of action.” And, as the cases cited in note 6, supra, show, the dismissal with prejudice of the car damage case was an adjudication on the merits in favor of Rotanzi. Hence it is urged that it cannot be said that Rotanzi or Atlantic waived the possible res judicata effect of the dismissal with prejudice of the car damage case, that, on the contrary, they expressly asserted their rights, and offered Weekes an alternative, which his attorney elected not to accept. The Weekes urge that the dismissal was in favor of Rotanzi as a matter of form only, that in substance it was a judgment in favor of Mr. Weekes, who received the full amount prayed for in his complaint. The same, however, can be said of any ease in which the defendant settles and the action is dismissed with prejudice, as occurred in several of the cases cited in note 6, supra. It can be said that Weekes is here attempting a collateral attack upon the car damage judgment, and that this he cannot do. We need not, and do not, decide this question, however. We assume that the dismissal is res judicata. In presenting their argument, both sides have failed to consider the effect of the Arizona Rules of Civil Procedure, 16 A.R.S., and of the Federal Rules of Civil Procedure. Arizona Rule 8(d) requires that all matters constituting an avoidance or affirmative defense be pleaded. The plea of another action pending is clearly within the rule. No such pleading was filed in the car damage case, although the personal injury case had been pending for more than two years. Under Rule 12 (i), it was waived. This, we think, is “consent” within the meaning of the consent rule. Thus there was consent to the splitting of the single cause of action. When the car damage case was settled, the personal injury case had been pending in the Federal court for over 2 years. Under F.R.Civ.P. 8(c), res judicata must be pleaded; if not so pleaded, it is waived, Rule 12(h). Here, it can only be raised by supplemental answer under Rule 15(d), since the settlement occurred long after the personal injury suit was filed. Such a pleading can be filed only on motion, and the court “may” permit it, “upon such terms as are just.” So far as appears, no motion for leave to file a supplemental answer has ever been filed in the personal injury case. We think that the attempt to raise the defense in this case should be treated as if it were a motion for leave to file a supplemental answer in the personal injury case. In substance, the court denied a motion for leave to file a supplemental answer in the personal injury case. We think that it did not abuse its discretion in so doing. A motion for permission to serve and file a supplemental pleading is addressed to the sound discretion of the court The fact is that in the car damage case Weekes recovered, by settlement, exactly what he prayed for in his complaint. The dismissal with prejudice was a substitute for a judgment in Weekes’ favor and a satisfaction of that judgment. The latter would have the same legal effect as a release of the car damage claim, but would not, under the consent exception, bar the personal injury action. The only purpose that the dismissal with prejudice should be given is the same, to release the car damage claim by its dismissal. There is nothing in the record to support a conclusion that any party to the stipulation believed that the personal injury claim was in fact being settled. The correspondence quoted above makes this clear. Before the settlement was completed, the appealing parties eliminated from the settlement check language that would have released the personal injury claim. The check was accepted only after that language was removed. Thus the paying parties paid when they knew that the receiving party intended to settle only the car damage claim. To uphold the contention that the dismissal is res judicata would certainly work an injustice. We hold, as we think that the Arizona courts would hold, that to permit the raising of the defense would work an injustice, and that the court did not abuse its discretion in refusing to permit it. The Arizona Supreme Court has gone out of its way to avoid applying the doctrine of res judicata “so rigidly as to defeat the ends of justice.” We think that that is what it would do here. Paragraph 1 of the judgment is correct. 2. The Effect of the “Intoxicants” Exclusion. It is not seriously contended that the exclusion of liability in the Atlantic policy is effective to permit Atlantic to escape all liability. The State of Arizona has a Financial Responsibility law that appears to invalidate the exclusion. In the light of the decision in Jenkins v. Mayflower Ins. Exch., 1963, 93 Ariz. 287, 380 P.2d 145, we think that the Arizona courts would strike down the exclusion. Paragraph 2-A of the judgment is correct. 3. The limits of Atlantic’s liability. The Atlantic policy limits are $100,000/$300,000. The Financial Responsibility law provides, in pertinent part: A.R.S. § 28-1170, subsec. B: “The owner’s policy of liability insurance must comply with the following requirements: “2. It shall insure the person named therein or any other person, as insured, using the motor vehicle * * with the express or implied permission of the named insured * * * subject to limits exclusive of interest and costs, with respect to each motor vehicle as follows: “(a) Ten thousand dollars because of bodily injury to or death of one person in any one accident. “(b) Subject to the limit for one person, twenty thousand dollars because of bodily injury to or death of two or more persons in any one accident. A.R.S. § 28-1170, subsec. F: “1. The liability of the insurance carrier with respect to the insurance required by this chapter shall become absolute when injury or damage covered by the motor vehicle liability policy occurs. * * * [A]nd no violation of the policy shall defeat or void the policy.” It is section 1170, subsec. F which nullifies the “intoxicants” exclusion. The law also provides: A.R.S. § 28-1170, subsec. G: “A policy which grants the coverage required for a motor vehicle liability policy may also grant lawful coverage in excess of or in addition to the coverage specified for a motor vehicle liability policy and the excess or additional coverage shall not be subject to the provisions of this chapter. With respect to a policy which grants the excess or additional coverage the term ‘motor vehicle liability policy’ shall apply only to that part of the coverage which is required by this section.” The appealing parties find some conflict between the provisions of sections 1170, subsec. B and 1170, subsec. G and the provisions of section 1170, subsec. F. We think that there is no conflict, and that section 1170, subsec. F nullifies the exclusion only to the extent of the limits specified in section 1170, subsec. B. To us, section 1170, subsec. G shows that this was the intent of the Arizona legislature. And there is nothing to the contrary in Atlantic’s policy. It provides, with reference to State Financial Responsibility laws as follows: “When this policy is certified as proof of Financial Responsibility for the future under the provisions of the Motor Vehicle Financial Responsibility law of any state or province, such insurance as is afforded by this policy for bodily injury liability or for property damage liability shall comply with the provisions of such law which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use of the automobile during the policy period, to the extent of the coverage and limits of liability required by such law, but in no event in excess of the limits' of liability stated in this policy.” To us, this shows an intent, first, to afford the coverage required by the law, and second, to limit the amount of liability to that required by the law. The policy is thus wholly consistent with the law. The cases on which appellants rely are not in point. None decides the precise question here presented. Paragraph 2B of the judgment is correct. 4. The primary-excess question. The contest here is between Atlantic and California. The policy limits of each, as applicable here, are the same —$10,000/$20,000. Atlantic’s policy provides : “The insurance under this policy shall be excess insurance over any other valid and collectible insurance available to the insured, either as an insured under another policy or otherwise.” California’s policy provides: “If the insured has other insurance against the loss covered by part I of this policy the Bureau shall not be liable for a greater portion of such loss than the applicable limit of liability stated in the declaration bears to the total applicable limits of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance.” The court held that Atlantic’s coverage is primary, California’s excess. Atlantic attacks this conclusion by arguing that California’s “excess” clause, the proviso in the language quoted above, is not here applicable. It says that the whole paragraph is ambiguous, and should be construed against California so as to bring into effect only California’s pro rata clause. Other courts have not found such clauses ambiguous, nor do we. It follows that we do not have here, as Atlantic asserts, a conflict between Atlantic’s “excess” clause and California’s “pro rata” clause. Rather, here is a conflict between two excess clauses. We find no applicable Arizona decisions, but the normal rule in such cases is that the two policies are to be applied pro rata. California, however, argues that the judgment is correct because the primary purpose of its policy is to insure Rotanzi while driving his own car, and the coverage given while he is driving another’s car is incidental and intended to operate only as excess to the insurance of the owner of that car, here Hertz, while Atlantic’s policy is primary because it insures Hertz, the owner. In part, California relies on the contention that the excess clause in Atlantic’s policy makes its coverage excess only over “other valid and collectible insurance available,” while California’s excess clause is not so worded. Hence, it says, California’s insurance is not “valid and collectible” unless the damages exceed the limits of Atlantic’s policy. But California’s policy also refers to other “valid and collectible” insurance in the pro rata portion of the paragraph containing the excess proviso, and, the excess language being a proviso to the pro rata provision, it also refers to other “valid and collectible” insurance. We hold that the two excess clauses offset each other, and that each insurer must bear its portion of the loss, in proportion to the limits of its policy. Paragraphs 2C and D of the judgment are erroneous. Paragraphs 2C and D are reversed; in all other respects, the judgment is affirmed. The matter is remanded with directions to modify paragraphs 2C and D in accordance with this opinion. The problem as to the effect of the dismissal of the car damage ease should never have arisen if the Weekes’ personal injury counsel had properly protected his clients’ interests. His briefing of the question has been of little assistance to us on this appeal. The Weekes, therefore, although successful here as against the appeals of Atlantic, California and Rotanzi from paragraph 1 of the judgment, shall recover no costs on appeal. Atlantic shall recover one-half of its costs on appeal from the Weekes and one-half of its costs on appeal from California. Otherwise, each party shall bear its own costs on appeal. . Atlantic's attorney to Weekes’ ear damage attorney: “Now, in delivering these funds to you, Bill, I want it clearly understood that we are not in any manner waiving, relinquishing or altering what legal effect, if any, the dismissal of the above captioned matter may have on your client’s action that is pending in Federal Court wherein he is represented by Bob Begam. “If the foregoing is not satisfactory to you and your client, please return the enclosed check to me. We will put the above captioned cause back on the trial list and try the lawsuit at the earliest opportunity available.” A copy was sent to the Weekes’ personal injury attorney. He then wrote to Atlantic’s attorney: “It was my understanding that Bill was representing Mr. Weekes’ insurance company on their subrogation claim. I can’t imagine why you refer to Mr. Weekes as being Bill’s client. Nor do I understand how the property damage settlement can conceivably have any effect on the pending Federal Court actions. “Clearly, you can’t be asking Mr. Weekes to sign a general release in order to enable his insurance company to receive compensation for their subrogation claim. I am confident that you and Bill can work this problem out without prejudicing the interest that Mr. Weekes has in processing his personal injury claim.” Atlantic’s attorney replied: “There is no mention of subrogation in the Complaint in the above captioned matter. Mr. Weekes is named as a party plaintiff and Bill Andrews indicates in the Complaint that he is his attorney as far as the lawsuit is concerned. This is why I refer to Mr. Weekes as being Bill’s client in this suit. “I am not asking Mr. Weekes to sign anything. There has already been signed by Bill Andrews, as Mr. Weekes’ counsel, a stipulation for dismissal of this cause with prejudice. My last letter to Bill was simply to point out that in paying these moneys to Bill and his client, we are fully reserving any effect that the conclusion of this litigation may have on the suits pending in Federal Court. So you see, Bob, I really have nothing to work out with Bill Andrews — either a) he accepts the money and the Stipulation and order of dismissal with prejudice stands, or b) he returns the money and we try the State action.” Weekes’ personal injury attorney then wrote to Weekes’ car damage attorney and to Atlantic’s attorney: “In any event, I want my position, and the position of Mr. Weekes, to be perfectly clear. I am not going to permit Mr. Weekes to sign any document, or endorse any draft, which might be construed as anything other than a special release of the Allstate subrogation claim. While I believe that it would be incredible for Jack or his company to take the position that something more than that has to be signed in order to resolve Allstate’s claim, and while I am convinced that Allstate’s property damage claim is a perfectly valid one, I am afraid that you and Jack will have to work the matter out the best way you can without imposing on Mr. Weekes and his Federal Court action. Mr. Weekes will, as he has in the past, cooperate with Allstate in every way short of prejudicing his far more substantial personal injury claim.” A few days later he authorized Weekes to endorse and cash the draft. It was payable to Weekes and his attorney in the car damage case. . Jenkins v. Skelton, 1920, 21 Ariz. 663, 192 P. 249. See also Daniel v. City of Tucson, 1938, 52 Ariz. 142, 79 P.2d 516, 117 A.L.R. 1211; State v. Airesearch Mfg. Co., Inc., 1949, 68 Ariz. 342, 206 P.2d 562; Malta v. Phoenix Title & Trust Co., 1953, 76 Ariz. 116, 259 P.2d 554. . Jenkins v. Skelton, supra, n. 2; see generally Annot. 62 A.L.R.2d 977. . See Suttle v. Seely, 1963, 94 Ariz. 161, 382 P.2d 570; Day v. Estate of Wiswall, 1963, 93 Ariz. 400, 381 P.2d 217. These are not accident cases, but they do apply the principle. See also Annot. 62 A.L.R.2d 988. . Day v. Estate of Wiswall, supra, n. 4. . Suttle v. Seely, supra, n. 4; Cochise Hotels, Inc. v. Douglas Hotel Operating Co., 1957, 83 Ariz. 40, 316 P.2d 290; DeGraff v. Smith, 1945, 62 Ariz. 261, 157 P.2d 342; Roden v. Roden, 1926, 29 Ariz. 549, 243 P. 413. . A consent judgment is as much an adjudication on the merits as one following a trial. Suttle v. Seely, supra, n. 4, Wall v. Superior Court, 1939, 53 Ariz. 344, 89 P.2d 624. . In form, this is correct. In substance, it is not; the dismissal in the car damage case was given in consideration of payment by the defendant to the plaintiff of the full amount prayed for in the complaint. . Day v. Estate of Wiswall, supra, n. 4; DeGraff v. Smith, supra, n. 6; Suttle v. Seely, supra, n. 4; Cochise Hotels, Inc. v. Douglas Hotel Operating Co., supra, n. 6. . It is asserted that Weekes had an interest in the car damage case to the extent of $100, the amount of the “deductible” under the Allstate policy. In plain English, appellants assert that Weekes bargained away a substantial cause of action for personal injuries for this dollop of pottage. . See, as to the “subrogation case route”, Annot., 62 A.L.R.2d 977, 989 ff, as to the “consent route” Restatement, Judgments, § 62. . Levitt v. Simco Sales Service of Pa., 1957, Del.Super.Ct., 11 Terry 552, 135 A.2d 910; Mims v. Reid, 1957, Fla., 98 So.2d 498; Sibson v. Robert’s Express, Inc., 1962, 104 N.H. 192, 182 A.2d 449; Farmers Ins. Exch. v. Arlt, 1953, N.D., 61 N.W.2d 429; Aubill v. Rowles, 1961, Ohio Com.Pl., 180 N.E.2d 643, 87 Ohio Law Abst. 353; Saber v. Supplee-Wills-Jones Milk Co., 1956, 181 Pa.Super. 167, 124 A.2d 620; Sprague v. Adams, 1926, 139 Wash. 510, 247 P. 960, 47 A.L.R. 529; cf. Kidd v. Hillman, 1936, 14 Cal.App.2d 507, 58 P.2d 662; Coniglio v. Wyoming Valley Fire Ins. Co., 1953, 337 Mich. 38, 59 N.W.2d 74; Hayward v. State Farm Mut. Ins. Co., 1942, 212 Minn. 500, 4 N.W.2d 316, 140 A.L.R. 123 Question: Did the court's ruling on attorneys' fees favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_district	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a corporation, Appellant, v. Peter C. WALTER, Betty Walter Allen, Jean Walter Davisson, and Daisy E. Walter, Appellees. No. 6922. United States Court of Appeals Tenth Circuit. May 25, 1962. Grey Satterfield, Oklahoma City, Okl. (Ernest D. Grinnell, Jr., St. Louis, Mo., and Franklin, Harmon & Satterfield, Oklahoma City, Okl., were with him on the brief) for appellant. John Ladner, Jr., Tulsa, Okl. (Ladner, Livingston & Ladner, Tulsa, Okl., were on the brief) for appellees. Before LEWIS, BREITENSTEIN and HILL, Circuit Judges. BREITENSTEIN, Circuit Judge. The issue is the ownership of a tract of land included in a grant to the predecessor of the Railroad and claimed by the appellees-plaintiffs (herein referred to collectively as the Walter Group) on the grounds that the grant was an easement, that the easement has terminated, and that they, as owners of the servient estate, hold the tract free of the easement. The Railroad contends that the easement has not terminated and that, if it has, the Railroad has title by adverse possession. Each party sought to quiet its title. The trial court entered an appropriate decree in favor of the Walter Group. Jurisdiction is based both on diversity and on the fact that the controversy arises under the laws of the United States. The tract is in Oklahoma and within an area formerly under the control of the Creek Nation of Indians. By treaty concluded with the United States on June 14, 1866, the Creek Nation granted a right of way through its lands for railroad purposes subject to the laws of the United States and regulations of the Secretary of the Interior. The Act of July 27, 1866, granted to the predecessor of the Railroad a 200-foot right of way for a railroad across the public domain and “all necessary grounds for station-buildings, workshops, depots, machine-shops, switches, side-tracks, turn-tables, and water-stations.” The Railroad constructed its line through the area during 1884-1886. In 1901 its Chief Engineer filed, and the Secretary of the Interior approved, a plat of “Stockyards Near Red Fork Station,” which covered an area 200 feet by 2,000 feet adjoining the right of way. Stockyard facilities were built on the tract about 1902 but removed partially in 1916 and completely in 1925 after which no stock pens were on the tract but until 1950 stock pens were maintained on the adjoining right of way. The stockyards tract and the right of way run diagonally across a 40-acre tract to which one Pleasant Grayson obtained title as a Creek allottee by a deed which was executed in 1903 and which conveyed the 40 acres, described as the Northeast Quarter of the Northwest Quarter of Section 33, “less 6.67 acres occupied as right of way and stockyards by St. Louis and San-Francisco Railroad.” These 40 acres were later platted, and the Walter Group, having title derived from Grayson, owns Lots 1 and 2. It claims 2.87 acres of the stockyards tract adjoining those lots. Herein the portion of the stockyards tract claimed by the Walter Group will be referred to as the disputed area. By the Act of April 26, 1906, Congress made final disposition of the affairs of the Five Civilized Tribes of Indian Territory. The Creek Nation was one of those tribes. Section 14 of that Act provided that as to lands reserved from allotment because of the right of any railroad “in the nature of an easement for right of way, depot, station grounds, water stations, stock yards * * * ” title may be acquired by the railroad under regulations prescribed by the Secretary of the Interior but if not so acquired or if the railroad “shall cease to use such land for the purpose for which it was reserved, title thereto shall thereupon vest in the owner of the legal subdivision of which the land so abandoned is a part” with certain exceptions which are not pertinent here. The first question is the nature of the right which the Railroad secured to the stockyards tract. As the Railroad did not' take advantage of the provision of § 14 of the 1906 Act to acquire title under regulations of the Secretary, we are not concerned with what right might have been secured had it done so. Title to the lands granted was imperfect until they were identified by the definite location of the Railroad. In considering the 1866 Act and another Act the Supreme Court said that “when the maps of definite location were filed and approved the grants took effect.” The plat of the stockyards tract has the designation “Stockyards 1% Miles West of Red Fork,” and bears a certificate stating that a survey has been made of the grounds of the stockyards near Red Fork station which have been selected and occupied by the Railroad under the Creek Treaty of June 14, 1866, and that the grounds so selected are required by the Railroad for the uses contemplated by the Treaty. This was a taking for a specific purpose, use as stockyards. As the Railroad failed to obtain title under § 14 of the 1906 Act it held an easement for the particular purpose for which the land was taken. Upon the termination of the use for which the easement was taken, the owner of the subservient estate holds title unencumbered by the easement. The argument of the Railroad that the easement was for general railroad purposes and has not terminated because portions of the original tract are used by shippers over the railroad is unconvincing. None of the cases cited by the Railroad in support of this contention apply because they do not concern statutes or grants similar to those here presented. The claim of the Railroad that it now has an easement over the disputed area is without merit. The Railroad urges that if its claim of an easement is not' sustained, it has title to the disputed area by open,, notorious, and adverse possession for more than 15 years. No stockyard facilities were on the stockyards tract after 1925 but some remained on the adjoining right of way until 1950. The only boundary markers for the tract have been a line of unwired fence posts. A portion of the tract outside of the disputed area has been leased since 1924, first to a tool company and then to a cement company. Another portion partly adjacent to the land of the Walter Group was leased from 1944 to 1956 by a wood products firm and since 1958 by a grain storage company. None of these leases covered the entire disputed area. The claim is that possession of part of the stockyards tract by the Railroad’s lessees is possession of the whole tract because the Railroad had color of title under the grant made pursuant to the 1866 Act. In Fife v. Barnard, 10 Cir., 186 F.2d 655, 660, a case arising in Oklahoma, we said that to sustain a prescriptive title under color of title a claimant must have an honest belief based on reasonable grounds that, when he obtained his grant relied on as color of title, he acquired a valid title although investigation later proved it otherwise. If a grant may be color of title for more than it professes to grant, a point which we do not decide, the necessity of adverse possession remains. The grant to the Railroad was of a valid easement which gave the Railroad a dominant right for the purposes of the easement. A claim of adverse possession could arise only when the Railroad asserted a right greater than that granted by the easement. Oklahoma has held that adverse possession requires an entry based on claim cf right or after entry there must be a distinct denial or repudiation of the right of a cotenant. If it be taken that the grant under the 1866 Act was of such a nature that it might be color of title upon which to base a claim of adverse possession, that adverse possession can begin only when there occurred a distinct denial or repudiation of the right of the owner of the subservient estate to hold free of the easement when the purpose of the easement ended. To establish adverse possession the claimant has the burden of proving such a change in the character of the possession as to preclude all doubt as to the nature of the holding or the want of knowledge on the part of owner. The leases on portions of the stockyards tract outside of the disputed area were not notice to the Walter Group as to the intention of the Railroad with regard to the disputed area. The possession under the unrecorded lease to the wood products company covering a part of the disputed area ran only 12 years. Further, under Oklahoma law the abandonment of an easement is based not only on actual relinquishment but also on intent to abandon. The fact that the Railroad maintained stock pens on its right of way adjoining the stockyards tract created an uncertainty as to the intent of the Railroad in regard to the use of the area as stockyards. In all the circumstances the Railroad did not have the clear, positive, and actual adverse possession required to sustain the burden of proof on its claim of a prescriptive right. Finally, the Railroad says that even if its claims fail the trial court awarded to the Walter Group more than it is entitled to as the adjoining landowner. The allotment deed covered the Northeast Quarter of the Northwest Quarter of Section 33. This was platted and the Walter Group owns Lots 1 and 2. These are in the northwest corner of the allotted 40-acre tract and together form a triangle. It has as its base the northwesterly boundary of the stockyards tract which passes through the allotted tract diagonally from northeast to southwest. The north boundary of the triangle is a section-line road and the west boundary is the same as that of the allotted tract. The disputed area is in the shape of a trapezoid with the shorter of the two parallel sides being the base of the triangle formed by Lots 1 and 2. The nonparallel sides are respectively the boundary of the allotted tract on the west and the section-line road on the north and thus are extensions of the sides of the triangle. The Railroad says that the area vesting in the Walter Group should be bounded on the east by a north-south line, parallel to the west line of the triangle, extending from the northeast comer of the triangle to the southerly boundary of the stockyards tract, on the south by the southerly boundary of the stockyards tract, on the west by an extension of the west line of the triangle to the southerly boundary of the stockyards tract, and on the north by the northerly boundary of the stockyards tract. This would substantially reduce the award to the Walter Group. Recognizing the difficulty inherent in the determination of the land to be awarded to an adjacent landowner when the abandoned easement intersects a lot diagonally, we are of the opinion that the court correctly interpreted and applied § 14 of the 1906 Act which provides that upon the abandonment of an easement title vests in the “owner of the legal subdivision of which the land so abandoned is a part.” The Walter Group owns all that portion of the legal subdivision northwesterly of the abandoned tract and of the existing railroad right of way except for the section-line road. We are not concerned with what the situation might be if the abutting landowner held a small triangular shaped portion of the legal subdivision with side lines not conterminous with the side lines of the legal subdivision. Affirmed. . 14 Stat. 785, 787. . 14 Stat. 292, 294. . 34 Stat. 142. . Wisconsin Central Railroad Company v. Price County, 133 U.S. 496, 509, 10 S.Ct. 341, 33 L.Ed. 687. . Southern Pacific Railroad Company v. United States, 183 U.S. 519, 530, 22 S.Ct. 154, 46 L.Ed. 307. . United States v. Magnolia Petroleum Co., 10 Cir., 110 F.2d 212, 218. While neither that case nor such cases as Fitzgerald v. City of Ardmore, Oklahoma, 10 Cir., 281 F.2d 717; Town of Maysville, Oklahoma v. Magnolia Petroleum Company, 10 Cir., 272 F.2d 806; City of Wilburton. Oklahoma v. Swafford, 10 Cir., 253 F.2d 479; Chickasha Cotton Oil Company v. Town of Maysville, Oklahoma, 10 Cir., 249 F.2d 542; St. Louis-San Francisco Railway Company v. Town of Francis, 10 Cir., 249 F.2d 546; Seminole Nation v. White, 10 Cir., 224 F.24 173, certiorari denied 350 U.S. 895, 76 S.Ct. 153, 100 L.Ed. 787; and United States v. Drumb, 10 Cir., 152 F.2d 821, involved the 1866 Treaty and Act, the statutes which were considered in those cases are in all important respects similar to those now under consideration The holdings have been uniform that when a railroad failed to acquire title under § 14 of the 1906 Act, the right acquired was an easement and upon the termination of the easement title vests in the adjoining landowner unless the land is within a municipality. The land under contest is not within a municipality. . 12 O.S.1961 §93 (4). . Wilcox v. Wickizer, 266 P.2d 638, 641-642 (Okl.); Morris v. Futischa, 194 Okl. 224, 148 P.2d 986. . Acton v. Culbertson, 38 Okl. 280, 132 P. 812, 815. . Kansas O. & G. Ry. Co. v. Rogers, 200 Okl. 111, 191 P.2d 209, 211. . McGrath v. Eichkoff, 187 Okl. 64, 100 P.2d 880, 885. . State ex rel. Patterson v. Superior Court for King County, 102 Wash. 331, 173 P. 186, 189. 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_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. Houshang SHEIKH, Defendant-Appellant. No. 80-1666. United States Court of Appeals, Fifth Circuit. Unit A Sept. 3, 1981. Rehearing Denied Oct. 6, 1981. Steven H. Swander, Fort Worth, Tex., for defendant-appellant. ■ Paul Coggins, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee. Before RUBIN, RANDALL and TATE, Circuit Judges. TATE, Circuit Judge: The defendant Sheikh appeals from his conviction, following trial by jury, on charges of (1) conspiracy to import heroin and to possess heroin with intent to distribute, in violation of 21 U.S.C. § 846 and § 963, and (2) possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We find the evidence insufficient to support the jury verdict of guilty on the conspiracy charge and, therefore, reverse the conviction on that charge. However, we affirm the conviction for possession with intent to distribute, finding no reversible error in the defendant’s contentions, inter alia, that severance of the trial with codefendants having antagonistic defenses was improperly denied, and that Fourth Amendment rights were violated by a customs search, 19 U.S.C. § 1582, at an airport port of entry (nearest the final destination of the goods, but not the first port of entry in the United States). The Facts On January 22, 1980, a crated package was shipped from Shiraz, Iran, by way of Iran Air, destined for delivery to Denton, Texas. The air waybill (or air consignment note) accompanying the crate listed as the shipper a Mr. Ahmad Javadzadeh and as the consignee a Mrs. Nasren Javadzadeh (“Nasren”). The package first arrived in the United States via Air France at the Houston Intercontinental Airport, was then transferred to American Airlines as per the air way bill, and was then transported by bonded carrier (a subsidiary of American Airlines) instead of by air, pursuant to arrangements made by American Airlines, to the Dallas-Fort Worth Airport (DFW) (the airport of final destination, per the waybill), where the package arrived on January 25, 1980. An American Airlines employee sent to the consignee letter notification of the arrival of the package. Meanwhile, the package remained in the American Airlines in-bond room, where international shipments were stored pending United States Customs inspection. (A primary fourth amendment contention made by the defendant is that although Houston — the airport where the shipment first landed — is a port of entry which is the functional equivalent of the border, the DFW airport — the final waybill destination, to which the goods were transhipped by the American airline to which the goods were transferred by Air France for final carriage to point of destination — cannot be considered as such.) On January 29, 1980, a customs inspector at DFW opened the crate in order to examine the shipped items — a Koran and its display case. On close inspection, he discovered within the sides of the display case several secret compartments containing what was later determined to be 4.4 pounds of heroin. Drug Enforcement Administration (DEA) agents, who were immediately informed of the discovery, determined to prepare the display case for a controlled delivery. The heroin (except for a 14 gram sample that was returned to a hidden compartment of the display case) was removed from the secret compartments and replaced with Nestle’s chocolate. The plastic bags containing the substitute were coated with a powder that stains the skin an orange color on contact. DEA agents also installed in the display case a beeper device wired to emit rapid beeping sounds upon the opening of the hidden compartments. On February 5,1980, Nasren, the consignee, picked up the crate and drove from DFW to her apartment in Denton, Texas (the address listed on the air waybill). At approximately midnight of February 6, 1980, DEA agents observed the arrival at the apartment of Hamid Javadzadeh Bijari (“Hamid”), Nasren’s brother. Approximately five minutes after his arrival, Ham-id left the apartment carrying the crate, and he put it in the trunk of his ear. DEA agents then followed him as he drove to a Sambo’s Restaurant in Denton, Texas, where he parked next to a Chevrolet Blazer and then entered the restaurant. Inside he met the defendant Sheikh, and the two returned to the restaurant parking lot. There, Hamid transferred the crate from the trunk of his car to the backseat of Sheikh’s Blazer. Both then entered their respective vehicles and returned to Nasren’s apartment. At approximately 3:00 a. m. on the morning of February 7, 1980, Sheikh left the apartment and entered the Blazer (with the crate still inside) and headed toward Dallas. DEA agents followed Sheikh to a motel in Greenville, Texas. At no time prior to this stop did DEA agents within the range of the beeper detect a change from the slow beeping sound emitted by the beeper device to that of a rapid beep (which was to be triggered upon the opening of the secret compartments in the display case). Within minutes of his arrival at the motel room, Sheikh removed the display case (the shipping crate had been discarded in a dumpster at a stop en route) from the Blazer and took it inside his motel room. About two minutes later Sheikh returned to the Blazer, this time to remove a tool box. Soon after Sheikh re-entered the motel room, DEA agents detected a change in the slow beeper signal to that of a rapid beeping sound, an indication that the hidden compartments of the display case had been opened. Immediately thereafter, Sheikh exited the mote! room and headed toward the Blazer. However, DEA agents effected his arrest at the door of the Blazer before he could enter. Agents observed at the time of his arrest that Sheikh’s hands were stained the same orange color as the powder used to dust the plastic bags inside the secret compartments of the display case. Hamid and Nasren were arrested later the same day at Nasren’s apartment. On February 21, 1980, a federal grand jury returned a two-count indictment charging that (1) on or about January 19 and February 7, 1980, Sheikh, Nasren, and Hamid conspired with each other and with others unknown to import heroin into the United States and to possess heroin with the intent to distribute (violations of 21 U.S.C. § 952(a) and § 841(a)(1)) in violation of 21 U.S.C. § 846 and § 963, and (2) on or about February 7, 1980, Sheikh knowingly and intentionally possessed with intent to distribute approximately 4.4 pounds of heroin, in violation of 21 U.S.C. § 841(a)(1). All three co-indictees were tried together at a jury trial. The jury returned a verdict of guilty as to Sheikh on both counts and found Nasren and Hamid not guilty on the conspiracy charge, the only count upon which these eodefendants were charged. Sheikh was sentenced to ten years on both counts, with the terms to run consecutively. He was also assessed a special parole term of five years on both counts. Sheikh now appeals to this court for review of his convictions. The Issues The defendant Sheikh urges reversal of his convictions on the following contentions: (1) the trial court erroneously denied his motions for judgment of acquittal urged on the basis of the insufficiency of the evidence to support the jury verdict of guilty on the conspiracy charge; (2) the trial court erroneously denied his motions for severanee made both pre-trial and during the trial of the three defendants; (3) there was a significant variance between the amount of heroin Sheikh was charged with possessing as set forth in the indictment and the amount proven at trial to have been in his possession; (4) the trial court erred in admitting evidence obtained in violation of the defendant’s Fourth Amendment rights; and (5) the trial court violated his Sixth Amendment right to confrontation by its failure to conduct an inquiry to determine whether the codefendant Hamid justifiably asserted his Fifth Amendment privilege against self-incrimination. 1. The Conspiracy Charge Sheikh and his codefendants Nasren and Hamid were charged in Count One of the indictment with conspiring with each other and with others unknown to import heroin and to possess heroin with intent to distribute. Sheikh was found guilty of the charged conspiracy despite the acquittal of Nasren and Hamid. Sheikh argues that the district court erred in denying his motions for judgment of acquittal in light of his codefendants’ acquittal and the insufficiency of the evidence to prove that he conspired with “others unknown.” We agree that a judgment of acquittal on the conspiracy conviction should have been granted based on the insufficiency of evidence to support the jury verdict and, therefore, reverse the judgment of conviction on Count One. The general rule of this circuit is that the conviction of only one defendant in a conspiracy prosecution will not be upheld when all the other alleged coconspirators on trial are acquitted. United States v. Klein, 560 F.2d 1236, 1242 (5th Cir. 1977), cert. denied 434 U.S. 1073, 98 S.Ct. 1259, 55 L.Ed.2d 777 (1978); United States v. Peterson, 488 F.2d 645, 651 (5th Cir. 1974); United States v. Musgrave, 483 F.2d 327, 333 (5th Cir. 1973), cert. denied 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973). However, a defendant may be convicted of conspiring with persons whose names are unknown or who have not been tried and acquitted, if the indictment asserts that such other persons exist, and the evidence supports their existence and the existence of a conspiracy. United States v. Klein, supra, 560 F.2d at 1242; United States v. Pruett, 551 F.2d 1365, 1369 (5th Cir. 1977); United States v. Lance, 536 F.2d 1065, 1068 (5th Cir. 1976); United States v. Pena, 527 F.2d 1356, 1365 (5th Cir. 1976), cert. denied 426 U.S. 949, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976); United States v. Goodwin, 492 F.2d 1141, 1144-45 (5th Cir. 1974). In the instant case, with the acquittal of Sheikh’s two codefendants, the conspiracy conviction can only be upheld if there is sufficient evidence of the existence of an unnamed, unindicted coconspirator; the indictment (see note 2) having charged the three named defendants with having conspired with one another and “with others unknown” to import heroin from Iran and to possess it with intent to distribute it. In reviewing the sufficiency of the evidence to support a jury determination of guilty, we are required to consider all the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Where the trial court has denied the defendant’s motion for judgment of acquittal, the evidence must be considered in the most favorable light to the government, in order to determine whether a reasonably minded jury could have concluded that the evidence was consistent with guilt and, in circumstantial evidence cases, inconsistent with every reasonable hypothesis of innocence. United States v. Marable, 574 F.2d 224, 229 (5th Cir. 1978); United States v. Caro, 569 F.2d 411, 416 (5th Cir. 1978); United States v. Pruett, supra, 551 F.2d at 1369; United States v. Barrera, 547 F.2d 1250, 1255 (5th Cir. 1977). We find that under the evidence a reasonably minded jury must have necessarily entertained a reasonable doubt as to Sheikh’s conspiring with “others unknown.” The theory advanced by the government in support of the charged conspiracy with “others unknown” is essentially that Sheikh must have had a coconspirator since the package was shipped from Iran after Sheikh had left the country, and it was addressed to the same misspelled “Oake” Street address in Denton, Texas, as found under Nasren’s name in Sheikh’s address book. The following evidence appears in the record relevant to the proof of the existence of a coconspirator in Iran and of a conspiracy: (1) Sheikh knew a Nassir Alloi, who lived near Shiraz, Iran (the city listed on the air waybill as the shipper’s address and from which the package was sent) and whose telephone number was 21507 (the number given on the air waybill as the shipper’s); (2) while in Iran from late December of 1979 until January 17, 1980, Sheikh visited with Alloi; (3) Sheikh called Alloi from the United States on January 29, 1980 (the date that Sheikh became aware that the package addressed to Nasren had arrived at DFW); (4) in September of 1979, Alloi sent to Hamid as gifts three ornamental picture frames, one of which Sheikh expressed a particular interest in and took as his own; (5) in December of 1979, prior to his leaving for Iran, Sheikh made several calls to a number in Iran listed in Sheikh’s address book (directly under the listing for Nassir Alloi) as that of a Nassir Shirazy, who Sheikh claims is not the same person as Nassir Alloi. The evidence proves at most that Sheikh had in Iran possibly two associates with whom he communicated prior to his trip to Iran, while in Iran, and after learning of the arrival of the package at DFW. Mere association between persons, however, cannot suffice as proof of a conspiracy. United States v. Fitzharris, 633 F.2d 416, 423 (5th Cir. 1980); United States v. White, 569 F.2d 263, 268 (5th Cir. 1978). Nor can suspicion, however strong, serve as proof of a conspiracy. Causey v. United States, 352 F.2d 203, 207 (5th Cir. 1965). While the government need not prove the existence of a formal agreement or otherwise rely on direct evidence to establish a conspiracy, see Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 2911, 41 L.Ed.2d 590 (1974), it must do more than pile “inference upon inference” upon which to base a conspiracy charge. Causey v. United States, supra, 352 F.2d at 207. Rather, the government must prove beyond a reasonable doubt that the defendant and Alloi, or others unknown, knowingly entered into a conspiracy by which they agreed to import heroin into the United States and to possess it with intent to distribute. See United States v. Gutierrez, 559 F.2d 1278, 1280 (5th Cir. 1977); United States v. Barrera, supra, 547 F.2d at 1255. Thus, while it is reasonable to speculate, as the government suggests, that Sheikh travelled to Iran to meet Alloi and arrange shipment of the heroin to the United States for distribution, and later called him to confirm that the heroin had been received as per their agreement, such speculation does not constitute proof beyond a reasonable doubt that the person in Iran knowingly agreed or conspired with Sheikh to perform acts with the intent to import heroin into the United States. See United States v. White, supra, 569 F.2d at 268. It is just as reasonable to infer from the evidence that while Sheikh was in Iran he made arrangements to have a person in that country mail to Nasren what the shipper believed to be only a Koran in a display case. In the absence of evidence inconsistent with the latter hypothesis, or of any evidence from which the jury might infer a knowing agreement by the transhipper to participate in the importation of heroin into the United States, we must reverse the conspiracy conviction on the basis of insufficiency of the evidence. See, e. g., United States v. Fitzharris, supra, 633 F.2d at 422-23; United States v. Caro, supra, 569 F.2d at 416-19; United States v. White, supra, 569 F.2d at 267-68; United States v. Pruett, supra, 551 F.2d at 1368-69; United States v. Barrera, supra, 547 F.2d at 1256-57; United States v. Pena, supra, 527 F.2d at 1364-65. 2. The Severance Issue At the trial below, Sheikh repeatedly urged — and was each time denied — his motion for severance first presented pretrial. The trial court’s denial of the motion, Sheikh insists, deprived him of his right to a fair trial. Specifically, Sheikh complains that he was subjected to trial alongside codefendants who asserted antagonistic defenses and who, in effect, aided the government in the prosecution of its case against Sheikh. While the issue raised presents an extremely close question of error, we cannot say — under the specific circumstances before us, and especially in light of the trial court’s actions taken to avoid possible prejudice to Sheikh — that he was denied a fair trial by the district court’s denial of severance. The decision to grant or to deny a motion for severance rests within the sound discretion of the trial court, which will not be overturned on appeal without an affirmative showing of an abuse of discretion. Rule 14 of the Federal Rules of Criminal Procedure, providing for relief from joinder of defendants, has been interpreted to require that prejudice to the defendant attendant to a joint trial be balanced against the interests of judicial economy to determine whether severance ought to be granted. United States v. Garza, 563 F.2d 1164, 1166 (5th Cir. 1977), cert. denied 434 U.S. 1077, 98 S.Ct. 1268, 55 L.Ed.2d 783 (1978). The degree to which prejudice may be lessened by other remedial court action should also be considered. Id. Thus, the complaining party should be granted relief on appeal only upon a showing of compelling prejudice, which the trial court could not alleviate in the absence of severance and which effectively denied the party a fair trial. United States v. Horton, 646 F.2d 181, 186 (5th Cir. 1981); United States v. Mota, 598 F.2d 995, 1000 (5th Cir. 1979), quoting United States v. Swanson, 572 F.2d 523, 528 (5th Cir. 1978), cert. denied 439 U.S. 849, 99 S.Ct. 152, 58 L.Ed.2d 152 (1978). Sheikh attempts to establish compelling prejudice in two respects. First, he claims that his defense at trial was antagonistic to the defenses asserted by his codefendants. Both Sheikh and the codefendant Hamid testified that they drove together in Sheikh’s Blazer from Panama City, Florida (where both lived) to Denton, Texas. Both testified that they rented a car at DFW which Hamid used to drive to Nasren’s to pick up the package while Sheikh remained at the Sambo’s Restaurant in Denton. Neither admitted, however, to having any knowledge of the existence of the hidden heroin or to having any reason to believe the other may have known of the heroin. Despite the above consistencies, Sheikh contends that the thrust of the defenses was so antagonistic as to deny Sheikh a fair trial in the absence of severance. In essence, Sheikh represented at trial that (1) he agreed to take Hamid to Denton because he, Sheikh, wanted to try out his new Blazer and possibly visit friends in Houston, Texas; (2) it was Hamid’s idea to rent a car (used later to pick up the crated package from Nasren’s apartment) at DFW before going on to nearby Denton; (3) upon their arrival in Denton, it was Hamid who suggested that Sheikh wait at the Sambo’s Restaurant in Denton (where the package was transferred from the rented car to Sheikh’s Blazer) until Hamid returned from Nasren’s apartment (where Hamid picked up the package); and (4) the package belonged to Hamid, who asked Sheikh to take it back to Panama City. Furthermore, Sheikh testified that the envelope of lidocaine (used to cut down cocaine and heroin) found in Sheikh’s wallet at the time of his arrest was given to him by Hamid. Hamid, on the other hand, testified that (1) he intended to visit Nasren long before he became aware of the existence of the package; (2) Sheikh admitted to having sent the package from Iran to Nasren’s address; (3) Sheikh said he sent packages from Iran to different addresses in the United States in order to insure that they were gotten out of the country successfully; and (4) it was Sheikh’s idea to rent the car for Hamid and then have Hamid pick up the package and meet Sheikh at the Sambo’s Restaurant. Hamid also denied having given Sheikh the envelope of lidocaine. The codefendant Nasren, consistent with her brother’s testimony, defended that it was her understanding that the package sent to her belonged to Sheikh.. The existence of antagonistic defenses among codefendants is cause for severance when the defenses conflict to the point of being irreconcilable and mutually exclusive. United States v. Horton, supra, 646 F.2d at 186; United States v. Marable, supra, 574 F.2d at 231. On appeal, however, the trial judge’s denial of severance may be reversed only on a showing that the defendant suffered “compelling prejudice.” United States v. Horton, supra, 646 F.2d at 186. In the instant case, the crux of the defense of each defendant was that he or she was ignorant of the existence of the heroin in the hidden compartments of the display case. To some extent, then, the defenses were not antagonistic. However, additionally each defendant contended that the crate containing the display case belonged to the other. Undoubtedly, in this respect, the defenses are so antagonistic as to be irreconcilable and mutually exclusive. Nevertheless, we do not find this antagonism sufficient under the particular facts to establish that Sheikh suffered the compelling prejudice that requires reversal of his possessory conviction because of the denial of severance. In so concluding, we emphasize that the essence of the defense of each codefendant — the absence of guilty knowledge — was not antagonistic with that of the other, and that no defendant indicated that he or she knew or believed the other to have had knowledge of "the existence of the heroin. To the contrary, Hamid testified that he had no reason to doubt the veracity of Sheikh’s explanation that it was necessary to send articles from Iran to various addresses in the United States in order to get them safely out of the former country. In addition, the evidence concerning Sheikh’s involvement with the shipments, summarized in our discussion of the sufficiency of the evidence to support the conspiracy conviction, together with the evidence concerning Sheikh’s actions in driving alone to Greenville with the package and, thereafter, in opening it, point so strongly to Sheikh’s possession that there was little, if any, actual prejudice to him in the joinder of his codefendants. The prejudice was to the codefendants, but they did not seek severance and were, indeed, acquitted. The defendant Sheikh also attempts to establish compelling prejudice resulting from the denial of severance on the basis that his codefendants exhibited at trial an antagonistic attitude toward him. In effect, he claims that he was prosecuted not only by government counsel but also by counsel for Hamid and counsel for Nasren. The taking of an adversarial stance on the part of counsel for codefendants may generate trial conditions so prejudicial to the codefendant under multiple attack as to deny him a fair trial. See United States v. Johnson, 478 F.2d 1129 (5th Cir. 1973); United States v. Valdes, 262 F.Supp. 474 (D.P.R. 1967). Considering the length of the trial (it lasted approximately three weeks) and the trial judge’s constant efforts to insure that the attorneys for Nasren and Hamid did not themselves act as prosecutors, we do not find that isolated instances of concerted attack as found in the trial court record created the sort of compelling prejudice necessary to warrant a severance. In sum, after a careful review of the record, we are not left with a definite and firm conviction that the defendant Sheikh may have been prejudiced by the trial court’s refusal to grant the motion for severance made only by Sheikh. See 1 Wright, Federal Practice and Procedure: Criminal § 227 (1969). We reach this conclusion keeping in mind the view that in conspiracy cases persons jointly indicted should ordinarily be tried together. See United States v. Perez, 489 F.2d 51, 65 (5th Cir. 1973), cert. denied 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974); 1 Wright, supra, § 223, but see id., § 226. In the face of possibly antagonistic defenses and hostility among codefendants, the trial judge properly and successfully lessened the degree of possible prejudice to Sheikh through careful trial supervision. Under these circumstances, Sheikh was not denied a fair trial. 3. The Variance Between the Indictment and the Evidence Presented at Trial Sheikh asserts that the trial court erroneously denied his motion for judgment of acquittal on the possession with intent to distribute conviction, charged by Count Two, because of the significant variance between the allegations of that count of the indictment and the proof at trial. Count Two charged Sheikh with possessing, on or about February 7, 1980 (the date of his arrest), with intent to distribute, 4.4 pounds of heroin. At trial, the government proved that Sheikh was found in possession at the time of his arrest of 14 grams (i. e., about one-half ounce, but see note 9) of heroin (i. e., the amount retained in the display case hidden compartments from the original 4.4 pounds of heroin discovered pursuant to the earlier customs search). Although a variance may have existed, we reject the defendant’s contention that the variance is material or warrants a judgment of acquittal on the charge of possession of 4.4 pounds of heroin with intent to distribute. Not every variance between the indictment and the proof is fatal to a conviction. In order for a variance to be fatal, thus mandating reversal, it must affect the substantial rights of the accused either (1) by insufficiently informing him of the charges against him such that he is taken by surprise and prevented from presenting a proper defense, or (2) by affording him insufficient protection against reprosecution for the same offense. United States v. Juarez, 573 F.2d 267, 278-79 (5th Cir. 1978), cert. denied 439 U.S. 915, 99 S.Ct. 289, 58 L.Ed.2d 262 (1978). See also Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935); United States v. Lambert, 501 F.2d 943, 947-48 (5th Cir. 1974) (en banc). The defendant has failed to prove how the variance in proof of the amount of heroin actually possessed on the date of his arrest affected his substantial rights. There was no variance in proof as to the date of possession and substance possessed. Thus, in the absence of a showing to the contrary, we find the defendant was sufficiently notified of the crime charged to enable him to present a proper defense. Nor is there convincing argument made that the defendant could not successfully plead former jeopardy against reprosecution. We thus hold that the variance between the amount of heroin set forth in the indictment and the amount proved is not fatal and cannot form the basis for reversal of the conviction on Count Two. Based upon the government’s failure of proof that Sheikh possessed the 4.4 pounds of heroin as charged in the indictment, Sheikh raises a subsidiary evidentiary issue. In particular, he urges as reversible error the trial court’s admission into evidence of testimony of (1) the street level dosage (generally found to be one to two percent pure heroin) equivalent in grams and pounds (96,214 grams or 212 pounds) of the 4.4 pounds of heroin (between 73%-76% pure) found in the display case during the customs search, and (2) the street value (ranging from $50-$100) of a gram of heroin at the street level dosage. Evidence of the price or the quality of a narcotic possessed is generally relevant to prove intent to distribute. United States v. Palmere, 578 F.2d 105, 108 (5th Cir. 1978), cert. denied, 99 S.Ct. 1026, 439 U.S. 1118, 59 L.Ed.2d 77 (1979). Thus, the street level dosage equivalent of the 4.4 pounds of heroin proved to have been imported into the United States from Iran was relevant to prove intent to distribute under the conspiracy count (Count One). Moreover, the testimony concerning the level of pure heroin generally found in a street level dosage was relevant to prove intent to distribute on the basis of possession of the 14 grams of heroin found to be 76% pure. The trial court’s admission of the testimony presents no reversible error. 4. The Alleged Fourth Amendment Violations At trial, the defendant Sheikh objected to the introduction of evidence obtained as the result of (a) the warrantless customs inspection of the package at DFW, (b) the warrantless attachment and use of an electronic beeper inside the package, and (c) the warrantless search of the defendant’s motel room at the time of his arrest. On appeal, the defendant raises as reversible error the trial court’s admission of this evidence, alleged to have been obtained in violation of the defendant’s fourth amendment rights. We find no reversible error. (a) The Customs Inspection at DFW The substance of the defendant’s complaint as to the warrantless search at the DFW airport is: Since the air shipment had first entered the United States at the Houston airport port of entry before its transfer to the DFW airport port of entry, a customs search under 19 U.S.C. § 1582 (see note 10) (authorizing routine customs searches upon entry into the United States) was not authorized. Since therefore the search was not made at the functional equivalent of an international border but rather at an inland city to which the package had been shipped following entry into the United States, reasonable suspicion was required to justify the warrantless search. 19 U.S.C. § 482 (see note 14). On January 29, 1980, customs inspector Cromer opened the crated package (containing the Koran, the display case, and the heroin) while it was stored in the American Airlines in-bound room, an area set aside by the carrier to house international freight that has not yet cleared customs. By way of this warrantless customs inspection, pursuant to which the 4.4 pounds of heroin was discovered, the DEA investigation was set in motion which ultimately led to the defendant’s arrest. Sheikh attempted by a motion to suppress to prevent the government’s introduction of the heroin thus obtained. The trial court denied the defendant’s motion on the basis that the warrantless inspection was authorized by 19 U.S.C. § 1582, 19 C.F.R. § 162, providing for warrantless customs searches of persons, baggage, and merchandise coming into the United States. We agree. Warrantless searches made at the international borders of the United States are considered reasonable under the Fourth Amendment simply by virtue of the fact that they occur at the border. United States v. Ramsey, 431 U.S. 606, 616-20, 97 S.Ct. 1972, 1978-80, 52 L.Ed.2d 617 (1977). Moreover, routine border searches may be conducted regardless of whether customs officials have a reasonable or articulable suspicion that criminal activity is afoot. United States v. Chaplinski, 579 F.2d 373, 374 (5th Cir. 1978), cert. denied, 439 U.S. 1050, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978); United States v. Himmelwright, 551 F.2d 991, 993-994 (5th Cir. 1977), cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). See also Carroll v. United States, 267 U.S. 132,154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925). We have held that 19 U.S.C. § 1582 provides statutory authorization for warrantless border searches by customs officials of all persons, baggage, and merchandise entering the United States. United States v. Pringle, 576 F.2d 1114, 1116 (5th Cir. 1978). The warrantless border searches do not require either probable cause or individualized suspicion of criminal activity. Id. See also United States v. Scheer, 600 F.2d 5, 7 (3d Cir. 1979); United States v. Odland, 502 F.2d 148, 151 (7th Cir. 1974). The applicability of § 1582 in the case before us thus depends upon whether, for purposes of the warrantless search by the customs officer of the package originating outside the United States, DFW can be considered an international border or its functional equivalent. The functional equivalent of an international border includes, by way of example, the United States airport that serves as the destination for a nonstop flight from a foreign point. Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973); United States v. Himmelwright, supra, 551 F.2d at 993-94. Such an airport is considered the functional equivalent of a border because of (1) the existence of reliable indications that the thing to be searched is of international origin and has not been changed in any way since entering the United States; and (2) the degree of regularity with which searches at the point in question are conducted such that the intrusion is minimal, the existence and function of the checkpoint are known in advance, and there is little discretionary enforcement activity. United States v. Brennan, 538 F.2d 711, 715-16 (5th Cir. 1976). For these same reasons, we consider DFW, under the circumstances here presented, the functional equivalent of a border. . [20] In the instant case, the air waybill accompanying the package indicated that it was sent from Iran by way of Iran Air. The waybill issued by Iran Air stated the airport of final destination was Dallas DFW, also indicating intermediate transfers at Paris (where it was to be transferred to Air France), and Houston (where Air France was to transfer it to American Airlines for final transit to Dallas DFW airport). The package first arrived in the United States on January 24, 1980, via Air France at the Houston Intercontinental Airport. It was immediately transferred from that Houston freight terminal to the American Airlines freight terminal. American Airlines then shipped the package by truck to its freight terminal at DFW. At all times after the package entered the United States until it was searched at DFW by customs inspector Cromer it remained under a United States customs bond. Prior to the January 29,1980 search at DFW, the package had not cleared customs, and the evidence negatives any indication it had been tampered with. Thus 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_summary	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". J. Woodford HOWARD, Trustee for Harris S. Howard and J. Woodford Howard, Jr., Harris S. Howard, J. Woodford Howard, Jr., and Henry Fults, Plaintiffs-Appellants, v. HI HAT ELKHORN MINING COMPANY, a corporation, Defendant-Appellee. No. 14412. United States Court of Appeals Sixth Circuit. Oct. 24, 1961. J. Woodford Howard (of Howard & Francis), Prestonsburg, Ky., for appellants. Joe Hobson, Prestonsburg, Ky. (R. D. Davis, Ashland, Ky., on the brief), for defendant-appellee. Before MILLER, Chief Judge, and MARTIN and CECIL, Circuit Judges. PER CURIAM. On May 1, 1956, appellant-trustee executed a coal lease which granted to the lessee, Henry Fults, the sole and exclusive right of mining all of the No. 3 Elkhorn seam of coal in and underlying a certain tract of land in Floyd County, Kentucky, specifically described therein. By the terms of the lease Fults agreed to pay a royalty of twenty cents for each ton of coal mined and to diligently mine all mineable and merchantable coal of said No. 3 Elkhorn seam. The term of the lease was for a period of four years. No payment of minimum rental or royalties was required. However, the lease provided that if at the end of the four-year term “all of the mineable and merchantable coal in said seam has not been mined or paid for, Lessee shall then measure up all of the unmined portion of said coal in said No. 3 Elkhorn Seam and pay therefor the rate of royalties herein provided without actually mining said coal, * -» * ” Under date of May 21, 1956, lessee Fults assigned the lease to Jacks Creek Mining Corporation, which agreed to be bound by all the provisions of the lease, with the exception of the royalty rate, which was increased to thirty cents per ton. Under date of August 31, 1956, Jacks Creek Mining Corporation assigned the lease to the appellee, Hi Hat Elkhorn Mining Company, which continued the mining of coal thereunder at intervals and paid royalties thereon over a period of some two years. By letter of September 8, 1958, appellee wrote appellants, “We have encountered mining conditions so very bad that it has been impossible for us to get this coal worked. * * *. We recently got some very good people interested and they brought in a good deal of equipment in addition to our own but we are advised today that they have quit and we just cannot continue as we have in the past. We ask, therefore, that you accept from us a surrender of this lease.” Appellant refused to accept a surrender of the lease and filed the present action under Sections 2201 and 2202, Title 28 U.S.Code, for a declaration of rights, alleging that the remaining coal in the seam was mineable and merchantable and praying that the court so find and grant them a recovery of such sums as they were entitled to under the lease. Appellee, by its answer and counterclaim, stated that the coal in the seam was not mineable or merchantable as defined in the lease and asked that the lease be cancelled. Following the taking of testimony, the District Judge held that there was no question but that there was good coal in the seam, but that the evidence showed that there was a layer of fire clay immediately on top of the coal of from one to two inches in thickness, that immediately over it was a slate ledge that ranged from a half-inch to four or five inches at times, and that on top of that was another thin layer of fire clay, and that the evidence was overwhelming that the fire clay could not be kept out of the coal. He found that the coal was not merchantable and mineable coal and entered judgment dismissing the complaint. This appeal followed. In our opinion the finding of the District Judge is supported by the evidence, is not clearly erroneous, and must be accepted on this review. Rule 52(a), Rules of Civil Procedure, 28 U.S.C.A. Based upon that finding, the ruling of the District Judge is not erroneous as a matter of law. It is not a question of releasing the appellee from its contract obligation merely because it became unprofitable to continue the mining of coal, contrary to the ruling in Hall v. Eversole’s Adm’r, 251 Ky. 296, 309-310, 64 S. W.2d 891. The lease obligation was limited to the mining of mineable and marketable coal. Appellants contend that the appellee, at the time it accepted an assignment of the lease, knew, or by the exercise of reasonable care could have known, all of the pertinent facts about the No. 3 Elkhorn seam, as well as the mining conditions affecting it, but with full knowledge of all of these material facts, continued to hold and operate the lease for a period of more than two years without raising any question as to the mineability of the leased coal, and that by reason thereof it was estopped from now seeking a cancellation of the lease or from asserting that the leased coal was not mineable and merchantable. Although this issue was raised by the reply filed by the appellants, it was not ruled upon by the District Judge. This was because counsel for appellants in his opening statement specifically stated as follows: “If the Court please, this is an action upon a coal lease and there is only one question on the matter of liability and that is whether or not the remaining coal is mineable and merchantable coal.” The case was heard by the District Judge on that issue alone. We, of course, do not know what additional evidence would have been introduced by the appellee if the issue of estoppel had been injected into the trial. The question of estoppel is not before us on this review. Lively v. Elkhorn Coal Co., 6 Cir., 206 F.2d 396, 399; Apex Smelting Co. v. Burns, 7 Cir., 175 F.2d 978, 982, certiorari denied, 338 U.S. 911, 70 S.Ct. 350, 94 L.Ed. 561. The judgment is affirmed. Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed 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. NEWBERRY'S ESTATE et al. v. COMMISSIONER OF INTERNAL REVENUE. COMMISSIONER OF INTERNAL REVENUE v. NEWBERRY'S ESTATE et al. JOHN J. NEWBERRY TRUST NO. 1 et al. v. COMMISSIONER OF INTERNAL REVENUE (two cases). Nos. 10786-10789. United States Court of Appeals Third Circuit. Argued Nov. 7, 1952. Decided Feb. 11, 1953. Montgomery B. Angelí, New York City (Thomas L. Zimmerman and Thomas J. Miller, New York City, on the brief), for taxpayers. L. W. Post, Washington, D. C. (Ellis N. Slack,. Acting Asst. Atty. Gen., on the brief), for Commissioner of Internal Revenue. Before GOODRICH, KALODNER and HASTIE, Circuit Judges. HASTIE, Circuit Judge. In these petitions for review the taxpayers complain that the Tax Court has improperly applied to the estate of Myrtle H. Newberry, deceased, the provisions of Section 811 (d)(2) of the Internal Revenue Code, 26 U.S.G. § 811 (d)(2), that the gross estate shall include any property interest which decedent may have transferred in trust, where, at the time of his death, the enjoyment of that interest was sub j ect to change through exercise by, the decedent of a power to alter or revoke. It is admitted that the trusts in controversy gave the decedent until her death such power of alteration. But they were created by transfer of her husband’s property under a trust indenture executed solely by him. Nevertheless, the Tax Court, upholding the Commissioner of Internal Revenue, has ruled that in the particular circumstances of this case the decedent may properly be regarded and taxed as the transferor of the trust property within the meaning of Section 811 (d)(2). 17 T.C. 597. In 1934 both John J. Newberry and his wife, Myrtle H. Newberry, were independently wealthy. Among other holdings, each owned about 50,000 shares of J. J. New-berry Company common stock, then valued at more than $50 per share. The Newberrys were deeply concerned for the future well being of their young children, a son and a daughter, neither of whom had independent means. In 1934 John Newberry created an irrevocable trust of 2500 shares of J. J. Newberry Company common stock for his daughter and a like trust for his son. In 1935 he repeated the process. In each trust he named himself and his wife as trustees and gave Mrs. Newberry alone broad power to alter, amend or terminate the trust, but in no event to revest principal or income in him. Before Mrs. Newberry’s death in 1944, this power had been so limited by amendment of each instrument that no more could be done in its exercise than to shift interests among the Newberry issue, spouses of such issue and charities. Other amendments of the trusts were made from time to time but their provisions have no bearing upon this case. On each occasion when Mr. Newberry executed one of these trusts Mrs. Newberry similarly executed a trust placing 2500 of her shares of J. J. Newberry Company common stock in trust for the same child. In each case she named herself and her husband as trustees and gave him the same powers of alteration as she was granted in the trusts created by him. Each time the husband amended the trusts he had created the wife made identical or equivalent changes in those she had created. The Tax Court, in its findings of fact, had this to say about the circumstances under which these trusts were established: “The idea of creating these trusts was first suggested to John J. New-berry by his brother, his business associate. After discussing the matter with his brother, John J. Newberry called in his attorney, with whom he discussed a plan that his brother had suggested. After John J. Newberry had the idea of creating the trusts ‘pretty well’ fixed in his mind and shortly after he had first discussed it with his attorney he discussed it with his wife. He and she usually talked over matters as important as the trusts. They always handled the affairs of the family mutually. When decedent joined her husband and the attorney in the discussion she said that ‘ * * * if it was a good thing to create these trusts, if John thought it was a good thing to create these tritsts for the children, she did, too. She thought it was an excellent idea, and she wanted to do the same thing. She wanted to create the same type of trusts.’ “He suggested the trust idea to her; she was interested right away and thought it was a good plan. Her purpose in creating her two 1935 trusts was the same as his. The decedent never gave any indication that she might not possibly execute the trusts. * * * “The Newberry children at the time of the creation of the trusts in 1934 and 1935 had no independent means of their own. They were very young and the decedent and her husband did not know what kind of lifemates they might choose. They had a great interest in the children and wished to protect their interest.” In addition, Mr. Newberry was positive in his testimony, and it was in no way rebutted, that he would have created his trusts regardless of whether Mrs. Newberry had decided upon a similar course. He also-testified that the property placed in trust represented a small fraction of the wealth of each spouse and that neither of them contemplated any personal benefit or gain from corpus or income of any of the trusts. Mr. Newberry testified further and the Tax Court found that powers to shift beneficial interests were incorporated in the trust indentures .so as to make sure that no “schemers or ne’er-do-wells” should obtain control of the property in the unhappy event of an unfortunate marriage by either of the children for whose security the trusts were designed. On this showing the Tax Court reached ultimate factual conclusions that in establishing, and -from time to time amending, these trusts “the decedent and her husband were acting as a unit * * * and that the trust instruments were merely part of an interdependent arrangement whereby neither decedent nor her husband would lose control of the amount of the J. J. New-, berry Company stock transferred to the trusts until they saw fit to do so”. On this' basis, the Tax Court ruled that Mrs. New-berry should be regarded -as the settlor of the trusts created by her husband as well as the holder of a power to change the enjoyment of the trust estate. Accordingly, the court treated the property in question as part of decedent’s gross estate under the requirement of Section 811 (d)(2) that the gross estate include any interests in property over “which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke * * This case decides the taxable status of the trusts in terms created by Mr. New-berry and those only. The narrow question is whether .the Tax Court erred in treating Mrs. Newberry as the person who had “made a transfer” of this property in trust within the meaning of Section 811 (d)(2). Normally taxing authorities and courts administering or applying a statute which taxes to a transferor’s estate property he has transferred -in trust reserving certain powers to himself have no occasion to go beyond the trust instrument in order to identify the transferor. At times, however, they have gone further. This procedure has been justified as necessary, and proper to determine whether the significant shifting of economic interests and the change of dominion and control over property has been different from what the trust instrument itself indicates. And if such analysis shows that another than the formal settlor is in reality the transferor, his estate may be taxed accordingly. The most obviously appropriate occasion for the application of the principle would be presented by a transaction in which one of the formal parties had been essentially a “straw” acting for someone else. Tax consequences, like many other legal and economic consequences of such a transaction, would attach to the real party in interest. A like result is clearly proper where, pursuant to a bargain and exchange, one party has given value to another to induce, and in consideration for, the creation of a trust by the second party wherein disposition is made of some beneficial interest as desired by the first party. Indeed, the taxing authorities need do no' more than apply considered and accepted doctrine of the law of trusts to reach the conclusion that he who pays another for the creation of a trust wherein the payor shall be granted a beneficial interest or a power which he desires may be taxed as one who has transferred property retaining an interest therein. This doctrine has been recognized and applied in a line of cases beginning with Lehman v. Commissioner of Internal Revenue, 2 Cir., 1940, 109 F.2d 99. That leading case clearly turned upon the court’s reasoning that “the transfer by the decedent’s brother, having been paid for and brought about by the decedent, was in substance a ‘transfer’ by the decedent, and the property so transferred formed part of his taxable estate by virtue of [the statutory predecessor of § 811 (d) (2)], to the extent that the decedent had power ‘to alter, amend or revoke’ the enjoyment of it”. 109 F.2d at pages 100—101. It was also a fact in the Lehman case that the way the decedent, who was treated as transferor, had paid his brother for setting up the trust in question had been by setting up a similar trust conferring an equivalent benefit upon his brother. Thus, procedurally, the establishment of “reciprocal” or “crossed” trusts was a technical device for realizing the quid pro quo of a bargain. The foregoing analysis is important because some of the subsequent cases which apply the Lehman doctrine have stressed the fact that trusts contained “reciprocal” or “crossed” provisions without spelling out that this circumstance is significant only to the extent that it may reveal a quid pro quo which another than the named grantor has paid for the creation of the trust in controversy. Actually, some of the cases seem to go rather far in inferring such payment or consideration in connection with reciprocal or crossed provisions. But this court in In re Lueders’ Estate, 3 Cir., 1947, 164 F.2d 128, has taken the lead in indicating that payment for the creation of a trust by another must be real if the alleged payor rather than the apparent settlor is to be treated as grantor of the trust. The essential picture which the crossed trusts must reveal to justify the result reached by the Tax Court in the present case is a declared grantor induced to establish a trust giving the party now to be treated for tax purposes as the grantor, a power which the latter has wanted and has paid for by setting up another trust to accomplish something desired by the declared grantor. Such in our view are the rather strict confines of the Lehman doctrine. What the Tax Court found in this case, and what happened, if the undisputed testimony is to be believed, falls short of the foregoing requirements. The “unity” of action of husband and wife and the “interdependent” character of their transactions which the Tax Court found are not such circumstances as the Lehman doctrine comprehends. Spouses in mutual confidence and common interest work out together what each is going to do with his own money to provide for their children. In the normal case, which this appears to be, it is a distortion of meaning to say that the action of one spouse is a quid pro quo inducing the action of the other. The only “consideration” is the historic “consideration of love and affection” for the dependent members of one’s family. Similarity of action occurs because each spouse is confident that they together have arrived at a wise and benevolent decision concerning the future welfare of their children. That is all there is to the “unity” and “interdependence” of action revealed by such a record as we have here. Neither the substance of the transaction nor the identity of the actor is revealed as any different from what appears on the face of each trust indenture. We have also considered that in the present decision and one or two others the Tax Court may well be treating as special cases to be governed by rules of construction peculiar to them family trusts so created that husband and wife by separately granting each other powers over the enjoyment of trust property achieve essentially the same controls as would have resulted from reserving powers. Undoubtedly, in this connection as in others, domestic privacy and informality may effectively conceal understandings made and honored between husband and wife at variance with the formal and apparent aspects of family financial transactions. A bargain and exchange, within the meaning of the Lehman doctrine may exist, yet be unprovable. Moreover, regardless of any such bargain, there may be policy considerations favorable to legislation which for particular tax purposes would treat these crossed trusts of spouses like a single joint transaction with both spouses pro tanto transferors of the property over which each will thereafter have certain control. But, absent such legislation, when on the facts the conclusion is inescapable that each spouse by a distinct and bona fide transaction has dispensed of his own separate estate in accordance with his own personal desires and without receiving a quid pro quo from the other, we think a court cannot justifiably refuse to recognize each spouse as the real transferor of the trust he has formally created. In the present case Mr. Newberry himself executed an operative indenture to transfer his own property in trust for the benefit of his children, pursuant to his personal desire to provide for their security. Of course, the total result of this transaction and the companion transaction of Mrs. Newberry, with each spouse granting a power to the other, could have been achieved by each spouse reserving a power in the trust he created. We have no doubt that the parties, advised by counsel, deliberately chose the alternative which appeared to entail the less burdensome tax consequences. But tax saving motivation does not justify the taxing authorities or the courts in nullifying, or disregarding, the taxpayer’s otherwise proper and bona fide choice among courses of action. Finally, the Tax Court approved a deduction of $25,000 from the gross estate in anticipation of expenses of apportionment proceedings which its decision would necessitate. There will no longer be occasion for such proceedings or for the deduction. The decisions of the Tax Court will be reversed and the cases remanded for the entry of dispositive orders consistent with this opinion. . These were New Jersey trusts. Whether the trustee could have employed his power to shift beneficial interests for his own advantage is as a matter of law at least doubtful. See In re Bender’s Estate, 1937, 122 N.J.Eq. 192, 197, 192 A. 718, 721, affirmed, 1938, 123 N.J.Eq. 171, 196 A. 677; In re Kline, 1948, 142 N.J.Eq. 20, 59 A.2d 14. In any event it seems clear on the record that no such use of the power was intended or contemplated when the trusts were established. And it is agreed that amendments prior to decedent’s death precluded any such use of the power. . See 1 Paul, Federal Estate and Gift Taxation (1942) 310 f£. . Grace D. Sinclaire’s Estate, 1949, 13 T.C. 742; see Hall’s Estate, 1946, 6 T.C. 933, 939. . 1 Scott, Trusts (1939) § 156.3. . Followed in Hanauer’s Estate v. Commissioner, 2 Cir., 1945, 149 F.2d 857; Cole’s Estate v. Commissioner, 8 Cir., 1944, 140 F.2d 636, 151 A.L.R. 1139; Commissioner of Internal Revenue v. Warner, 9 Cir., 1942, 127 F.2d 913. . E. g. Orvis v. Higgins, 2 Cir., 1950, 180 F.2d 537; Cole’s Estate v. Commissioner, supra, note 5; Carrie S. Newberry, 1947, 6 T.C.M. 455, affirmed per curiam, 3 Cir., 1943, 172 F.2d 220; Eckhardt’s Estate, 1945, 5 T.C. 673. . The same approach and emphasis led the Tax Court to the same result where a third person had induced settlors separately to establish crossed trusts, one settlor not being advised what the other was doing. Samuel S. Lindsay’s Estate, 1943, 2 T.C. 174. . Particularly Werner A. Wieboldt, 1945, 5 T.C. 946; Carrie S. Newberry, supra, note 6. 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_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. BLENHEIM CO., Ltd., v. COMMISSIONER OF INTERNAL REVENUE. No. 4830. Circuit Court of Appeals, Fourth Circuit. Feb. 25, 1942. Richard H. Wilmer, of New York City (Joseph C. White and Thomas F. Boyle, both of New York City, on the brief), for petitioner. Hubert L. Will, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and J. Louis Monarch, Sp. Asst, to Atty. Gen., on the brief), for respondent. Before PARKER, SOPER, and DOBIE, Circuit Judges. DOBIE, Circuit Judge: This is a petition for the review of a decision of the United States Board of Tax Appeals determining a deficiency in petitioner’s income tax liability for the calendar year 1934 in the sum of $1,691.77, and a penalty in the sum of $422.94. The decision of the Board is reported in 1940, 42 B.T.A. 1248. Petitioner is a foreign corporation organized under the laws of the Colony of Newfoundland. On June 15, 1935, it filed a personal holding company surtax return on Form 1120H, for the calendar year 1934, with the Commissioner of Internal Revenue, at Baltimore, Maryland. This return showed the following items: 1. Net income (as defined m Title I of the Revenue Act of 1934)..........$( 1,445.37) 2. Dividends on stock of domestic corporations subject to taxation under Title I of the Revenue Act of 1934 (from Schedule A)... 11,626.12 3. Total of Items 1 and 2.. $ 10,180.75 Less: 6. Losses from sale or ex- change of capital assets (disallowed by section 117(d) of the Revenue Act of 1934).... $ 144,594.24 8. Total of Items 4 to 7____$ 144,594.24 9. Adjusted Net Income (Item 3 minus Item 8) $(134,413.49) Thereafter, the Commissioner sent numerous letters to the petitioner and to its representatives both in the United States and in Canada, requesting that a normal income tax return (Form 1120) be prepared and filed, from which the total net income figure of $1,445.37 reported in the surtax return could be independently computed by the Commissioner. Harold P. Cornell was the petitioner’s secretary resident in the United States. It was his duty to prepare and file Federal income tax returns on petitioner’s behalf, and he did prepare and filed the above mentioned Form 1120H. However, he believed that no normal tax return on Form 1120 was required under the Internal Revenue Laws, because he thought Form 1120H contained all the information which would have been set forth on Form 1120, and because he also thought that the return on Form 1120 would show that petitioner did not have any net income subject to tax for the calendar year 1934. For these reasons, Cornell did not file a timely return on Form 1120. However, it is not without note that Cornell had prepared other returns for domestic corporate taxpayers on Form 1120 for 1934, even though he had not prepared any such returns for a foreign corporation for that year. Moreover, he had prepared Form 1120 returns for foreign and domestic corporations for years prior to 1934, including returns for the petitioner. After having received no response whatever to his numerous letters, the Commissioner of Internal Revenue, on April 28, 1938, prepared a normal tax return on Form 1120 for the petitioner. This was done pursuant to the authority granted in section 3176 of the Revised Statutes, as amended 26 U.S.C.A. Int.Rev.Code § 3612. The return showed gross income of $11,-626.12, consisting of dividends on stock of domestic corporations subject to taxation under Title I of the Internal Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Acts, page 664 et seq., no deductions, net income of $11,-626.12, and a tax due of $1,598.59. A notice of this deficiency was duly mailed to petitioner on May 18, 1938. The petitioner prepared and filed a normal tax return on Form 1120 for 1934 on August 9, 1938, at which time it did not know that the Commissioner had filed a return for it under § 3176 of the Revised Statutes. We pause to note that the return was filed four years after the date on which the return was due. In any event, the return was filled out in full in the usual fashion and showed a deficiency in income of $1,445.37, and no tax due. The attached schedules contained breakdowns of dividends and interest, petitioner’s securities transactions, and other detailed information. The items of gross income received by petitioner from sources within the United States were as follows: dividends received from domestic corporations, $11,626.12; and gain derived from the sale of 2,500 shares of Pacific Gas & Electric Company common stock, $677.65. During the calendar year 1934, petitioner sustained losses on sales of securities which were capital assets within the meaning of Section 117(b) of the Internal Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Acts, page 707, in the amount of $167,437.18. Petitioner’s ordinary and necessary expenses incurred in connection with earning income from sources within the United States during the calendar year 1934 totaled $1,283.77. The Board of Tax Appeals held that petitioner’s failure to file its normal income tax return (Form 1120) until after the Commissioner had filed a return for it under the authorization of section 3176 of the Revised Statutes, deprived petitioner of any deductions it might ordinarily be entitled to claim in the computation of its normal income tax; and that the 25% penalty imposed by section 291 of the Internal Revenue Act of 1934, 26 U.S.C.A. Int.Rev. Acts, page 750, for a late filing was also applicable. Accordingly, and pursuant to a computation by the Commissioner of Internal Revenue which was accepted by petitioner, the Board of Tax Appeals found (1) a deficiency in income tax for the year 1934 in the sum of $1,691.77; (2) a penalty thereon in the sum of $422.94 and (3) no defimsncy in personal holding company surtax for the year 1934. Petitioner has duly appealed from the first two determinations of the Board. We are of the opinion that the Board was correct in each instance. Petitioner is a foreign corporation and therefore subject to the special provisions of the Internal Revenue Act of 1934 applicable to such corporations. Of particular significance is section 233 of that Act which conditions the legislative grant of deductions and provides: “Allowance' of deductions and credits “A foreign corporation shall receive the benefit of the deductions and credits allowed to it in this title [chapter] only by filing or causing to be filed with the collector a true and accurate return of its total income received from all sources in the United States, in the manner, prescribed in this title [chapter] ; including therein all the information which the Commissioner may deem necessary for the calculation of such deductions and credits.” (Italics ours.) 26 U.S.C.A. Int.Rev.Code, § 233. It is true that this section contains no reference to a time element. Nevertheless, we feel that the so-called normal tax return filed by petitioner on Form 1120 was not a sufficient or timely compliance with Section 233 to entitle the petitioner to the deductions claimed therein. See, decided by this Court, Boone County Coal Corporation v. United States, 4 Cir., 1941, 121 F.2d 988. Let us review the chronology and effect of petitioner’s acts. On June 15, 1935, petitioner filed its personal holding company surtax return on Form 1120H. Examination of this return reveals that the first figure there reported is “Net income (as defined in Title I of the Revenue Act of 1934)”, which is the last or final figure on the regular corporate income and excess profits tax return, Form 1120. Since dividends from domestic corporations were subject to surtax, although not subject to normal tax, the second income figure called for in the surtax return is the total of such dividends. In petitioner’s Form 1120H return, its net income was stated to be a red figure of $1,445.37. The Commissioner was, consequently, without any information as to the manner in which this amount was computed since the petitioner had not filed the normal return which would have revealed exactly how this figure was reached. Extended efforts by the Commissioner to get petitioner to file a Form 1120 return voluntarily were unsuccessful. Accordingly, the Commissioner was forced by petitioner’s inactivity and uncooperative attitude to prepare a return for petitioner, in which no deductions were allowed. Shortly thereafter, on May 18, 1938, the Commissioner sent a notice of deficiency to petitioner based on the return. On August 9, 1938, the date on which the petition was filed with the Board, petitioner filed with the Collector at Baltimore, Maryland, a Form 1120 return which showed no tax due. This return for the first time presented the Commissioner with a breakdown of petitioner’s income and claimed deductions. But even this belated return was not entirely accurate. For example, it omitted an item of income realized on the sale in the United States of 2,500 shares of Pacific Gas & Electric Company common stock, while it included interest received from a foreign corporation, which did .not constitute income from a source within the United States under Section 119 of the Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Acts, page 709. In addition, a deduction of $50.00 for Newfoundland taxes was erroneously taken. The difficulty here encountered by the Commissioner in attempting to ascertain the petitioner’s correct income tax is a striking example of the many administrative problems inherent in the application of the federal income tax to foreign corporations. This has prompted Congress to impose special conditions on such corporations. Indeed, unless a foreign corporation is induced voluntarily to advise the Commissioner of all of its income attributable to sources within the United States and of the exact .nature of all deductions from such income, the Commissioner may never learn even of the corporation’s existence, and, in any event, he will probably be unable to determine the correct amount of its taxable income. The situation is pregnant with possibilities of tax evasion. In express recognition of this fertile danger to the orderly administration of the income tax as applied to foreign corporations, Congress conditioned its grant of deductions upon the timely filing of true, proper and complete returns. This is in addition, of course, to the 25% penalty provided by Section 291 of the 1934 Act for both foreign and domestic corporations which either file no return or a late return unless “reasonable cause” for the failure to file a timely return is shown. 26 U.S.C.A. § 291. That Congress intended the condition in Section 233 to be strictly applied is apparent both from the use of the limitation “only” and from the fact that the “reasonable cause” exception relating to the 25% penalty was not included in Section 233. This conclusion finds further support in the legislative history of Section 217 of the Revenue Act of 1918, 40 Stat. 1069, which allowed nonresident aliens the benefit of certain deductions and credits upon complying with specified conditions. The statute reads: “Nonresident Aliens — Allowance Of Deductions And Credits “Sec. 217. That a nonresident alien individual shall receive the benefit of the deductions and credits allowed in this title only by filing or earning to be filed with the collector a true and accurate return of his total income received from all sources corporate or otherwise in the United States, in the manner prescribed by this title, including therein all the information which the Commissioner may deem necessary for the calculation of such deductions and credits: * * . (Italics ours.) It will thus be noted that Section 233 relating to foreign corporations, which made its first appearance in the Revenue Act of 1928, 26 U.S.C.A. Int.Rev.Acts, page 419, is almost verbally identical with this section governing nonresident aliens which has been a part of the revenue laws since 1918. The application of Section 217 of the 1918 Act is clear. From the outset the Treasury Regulations have expressly provided that no deductions were allowable to nonresident aliens unless an accurate and complete return was filed, and the filing of the return by the Commissioner fixed the tax liability. Article 311 of Treasury Regulations 45 provides: “Allowance of deductions and credits to non-resident alien individual. — Unless a non-resident alien individual shall render a return of income as required in article 404, the tax shall be collected on the basis of his gross income (not his net income) from sources within the United States. Where a non-resident alien has various sources of income within the United States, so that from any one source or from all sources combined the amount of income shall call for the assessment of a surtax, and a return of income shall not be filed by him or on his behalf, the Commissioner will cause a return of income to be made and include therein the income of such nonresident alien from all sources concerning which he has information, and he will assess the tax and collect it from one or more of the sources of income within the United States of such nonresident alien, without allowance for deductions or credits." (Italics ours.) The foregoing regulation states specifically that deductions are allowable to a nonresident alien only if a return is filed, and, if no return has been filed at the time the Commissioner prepares a return for the taxpayer, the tax shall be assessed with no allowance for deductions. Congress may be presumed to have adopted this longstanding administrative construction when it enacted and reenacted Section 233. Brewster v. Gage, 1930, 280 U.S. 327, 50 S.Ct. 115, 74 L.Ed. 457, Morgan v. Commissioner, 1940, 309 U.S. 78, 626, 60 S.Ct. 424, 84 L.Ed. 585, 1035. The conclusion that the preparation of a return by the Commissioner a reasonable time after the date it was due terminates the period in which the taxpayer may enjoy the privilege of receiving deductions by filing its own return, is consistent not only with the intention of Congress as evidenced by the legislative history of Section 233, but also with considerations of sound administrative procedure and the generally accepted rule concerning the number of returns which may be filed. This terminal date, which the Board of Tax Appeals first adopted in Taylor Securities v. Commissioner, 1939, 40 B.T.A. 696, is directed against those foreign corporations which instead of being induced voluntarily to advise the Commissioner of their domestic operations, might find their interests best served by filing no return whatever, and then waiting until such time, if any, as the Commissioner discovers their existence and acquires sufficient information about their income on which to base a return. Unless they are precluded from then obtaining the deductions and credits under such circumstances, such foreign corporation can, if detected, come in for the first time after the Commissioner has made a return and suffer no economic loss other than the general 25% late filing penalty which applies to domestic as well as foreign corporations. Without prescribing an absolute and rigid rule that whenever the Commissioner files a return for a foreign corporation the taxpayer is completely and automatically denied the benefit of deductions or credits, we yet hold that the facts of the instant case justify a disallowance of deductions which petitioner might otherwise have been entitled to claim, had it filed a timely return in compliance with the statutory requirement. This necessity for requiring strict compliance with the provisions granting deductions and credits to nonresident aliens and foreign corporations has been generally recognized. In Gladstone Co. v. Commissioner, 1937, 35 B.T.A. 764, appeal dismissed by the Second Circuit Court of Appeals without opinion, June 24, 1938, the Board held that a foreign corporation which had filed a late return was not entitled to deductions for dividends received since it had failed to show the breakdown of the dividends in Schedule H of the return. Said the Board, 35 B.T.A. at page 768: “Petitioner did not fill in schedule H, nor give the information there sought. Deductions are not a matter of right but of legislative grace and statutory grant, and the taxpayer must bring himself strictly within the provisions of the statute to be entitled to them. Petitioner here, we think, ignored the very purpose of section 233, which provides that the return shall include information deemed necessary by the Commissioner, and not having given such information, did not bring itself within the requirements of the statute and the deduction must be denied. To hold otherwise would render the entire provisions of the statute a nullity." (Italics ours.) In the light of the foregoing quotation, it seems clear that petitioner’s contention that the filing of a Form 1120H surtax return satisfied the requirement of filing a Form 1120 return is without merit. Section 233 specifies a “true and accurate return” filed “in the manner prescribed in this title [chapter]”. That can relate only to the normal tax return, Form 1120, required by Sections 52, 53, 26 U.S.C.A. Int.Rev.Acts, page 683. The personal holding company return on Form 1120H does not contain all the information which the Commissioner "deems necessary” for the calculation of deductions and credits in respect of normal tax liability. In the instant case, for example, the 1120H return provided the Commissioner with no information not already in his possession since the only detailed information contained therein was the breakdown of dividends from domestic corporations. The corporation information returns for the year 1934 filed by domestic corporations contain all information on dividend payments in excess of $300. Since all of the payments here were in excess of that amount, the Commissioner was undoubtedly informed in respect to them entirely apart from the return on Form 1120H. In addition, there is no requirement in a return on Form 1120H for a schedule showing “Reconciliation of Net Income and Analysis of Changes in Surplus”, nor is there provision for the schedule “Balance Sheets”. Form 1120H also requires only 17 items, while Form 1120 requires 27. Petitioner’s net income figure of $1,445.37, reported as Item 1 on Form 1120H, is Item 27 on Form 1120, arrived at after consideration of the prior 26 items. It was only natural, therefore, that the Commissioner, presented with this isolated net income figure (which was a red figure indicating a minus amount) should request further information as to just how this result was computed. It would also seem clear that the normal tax and the surtax, here in dispute, are separate and distinct taxes. Revenue Act of 1934, Title 1, Title 1A, 26 U. S.C.A. Int.Rev.Acts, pages 664 et seq., 757 et seq.; cf. Taylor Securities, Inc., v. Commissioner, 1939, 40 B.T.A. 696. And the Revenue Act itself undoubtedly contemplates the filing of separate returns for these taxes. See Sections 52, 53, 54 and 351 of the Revenue Act of 1934, 26 U.S.C. A. Int.Rev.Acts, pages 683, 684, 757. Moreover, the Board of Tax Appeals has consistently held that the filing of a Form 1120 return does not excuse the failure to file a Form 1120H return. Collateral Mortgage and Investment Co. v. Commissioner, 1938, 37 B.T.A. 630; Rotorite Corporation v. Commissioner, 1939, 40 B.T.A. 1304, reversed on other grounds, 7 Cir., 1941, 117 F.2d 245; Noteman v. Welch, 1 Cir., 1939, 108 F.2d 206. Therefore, the single surtax return filed by petitioner was insufficient for normal tax purposes, and the sanction provided by section 233 must accordingly be applied. Gladstone Co., Ltd., v. Commissioner, 1937, 35 B.T.A. 764. This is in accord with the well accepted principle of tax law controlling the election of filing of returns by taxpayers, namely, that the federal income tax procedure provides for and contemplates the filing of only one return by a taxpayer for a single tax period and any subsequent return is a nullity. Buttolph v. Commissioner, 7 Cir., 1928, 29 F.2d 695; Grant v. Rose, D.C.N.D.Ga. 1928, 24 F.2d 115, affirmed, 5 Cir., 1930, 39 F.2d 338; Morris v. Commissioner, 2 Cir., 1930, 40 F.2d 504. Cf. Scaife Co. v. Commissioner, 62 S.Ct. 338, 86 L.Ed. -, decided by U. S. Supreme Court, December 22, 1941; Helvering v. Lerner Stores Corp., 62 S.Ct. 341, 86 L.Ed.-, decided by U. S. Supreme Court, December 22, 1941. Petitioner also contends that the Commissioner, in preparing the return, should have allowed the dividends as deductions, citing Ardbern Co., Ltd., v. Commissioner, 4 Cir., 1941, 120 F.2d 424. There the taxpayer attempted to file a return with a revenue agent who refused to accept the return and failed to advise the taxpayer that the return should correctly be filed with the Collector of Internal Revenue at Baltimore. Thereafter, the Commissioner filed his own return under Section 3176, Revised Statutes, allowing no deductions even though he had knowledge before he prepared the return and before he issued the deficiency notice of certain deductions to which the taxpayer was entitled. Subsequently, the taxpayer did file a return with the Collector and we held that, under those facts, the taxpayer was entitled to the deductions as a matter of “elementary justice”. Judge Northcott carefully stated, at page 426 of 120 F.2d: “ * * * at least, [the] taxpayer should be allowed such deductions when, upon the assessment of a deficiency against him, he shows that pri- or to its assessment he attempted in good faith to file a return in which such deductions were claimed. * * * The return made by the Commissioner was clearly not based upon the best available information.” (Italics ours.) A substantially different factual situation is presented in the case before us. Here the Commissioner prepared a return only after he had unsuccessfully made repeated requests to the taxpayer to do so, and only after the taxpayer had flouted all of these requests. Then, after the Commissioner had assessed a deficiency on the basis of his return, but only then, the petitioner filed its petition for review by the Board and also a return. Unless the deductions are here denied, Section 233 will become a meaningless provision, for if, after the Commissioner has earnestly attempted to obtain a return by the taxpayer and has waited a reasonable time before filing his own return, the taxpayer may still enjoy the privilege of all deductions and credits, there is then no inducement to foreign corporations voluntarily to file timely returns. In the absence of demonstrable fraud, they will, by self-serving uncooperative conduct, suffer no loss other than the general late filing penalty which is applicable to domestic as well as foreign corporations. Such a construction of the statute would put a premium on tax evasion and would reduce the administration of the tax laws to mere idle activity. Section 291 of the Revenue Act of 1934 provides: “Failure to File Return “In case of any failure to make and file a return required by this title, within the time prescribed by law or prescribed by the Commissioner in pursuance of law, 25 per centum of the tax shall be added to the tax, except that when a return is filed after such time and it is shown that the failure to file it was due to reasonable cause and not due to willful neglect no such addition shall be made to the tax. * * * ” (26 U.S.C.A. Int.Rev.Acts, page 750.) Since the taxpayer advanced no adequate reason to explain why the Form 1120 return was not made and filed in accordance with Section 233 of the Revenue Act of 1934, the taxpayer is clearly liable for the penalty provided in Section 291. Noteman v. Welch, 1 Cir., 1939, 108 F.2d 206. “It does not matter why he failed to file a return.” Harry D. Kremer v. Commissioner, 1934, 31 B.T.A. 566. We, accordingly, affirm the decision of the Board of Tax Appeals. Affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
songer_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". COHEN v. SUPERIOR OIL CORPORATION. No. 6239. Circuit Court of Appeals, Third Circuit. June 11, 1937. Albert L. Simon, of Wilmington, Del. (Meyer Kraushaar, of New York City, of counsel), for appellant. Ward & Gray, of Wilmington, Del. (E. Ennalls Berl and David F. Anderson, both of Wilmington, Del., of counsel), for appellee. Before BUFFINGTON, DAVIS, and BIGGS, Circuit Judges. BUFFINGTON, Circuit Judge. Passing by the numerous questions raised in this case, we restrict ourselves to the decisive one of res adjudicata which the court held barred the plaintiff’s suit, brought in the court below to recover on three notes given by defendant. The facts of the case and the contentions of the parties are correctly stated in the trial court’s opinion, as follows : “The- sixth plea is res judicata. It alleges that on July 30, 1930, a receiver was appointed for defendant in proceedings instituted in the state court of Oklahoma; that the receiver took charge of the assets of defendant in Oklahoma and notified creditors to file their claims; that pursuant to said notice the plaintiff, William W. Cohen, filed his claim with the receiver on November 24, 1930; that said claim was for $150,-000 based upon the identical notes here in suit. Exceptions were taken to the claim filed by Cohen with the receiver on the ground that the notes forming the basis of the claim were without consideration and were procured by the fraud of the payee of said notes and that Cohen knew these facts. The receivers’ exceptions to Cohen’s claim were sustained by the Oklahoma court. That court held Cohen was not entitled to recover anything on the notes. Wherefore, defendant alleges that the adjudication of Cohen’s rights in the Oklahoma court is a bar to plaintiff’s action. Plaintiff’s replication to defendant’s sixth plea alleges that an appeal was taken by the plaintiff (Cohen) from the judgment of the Oklahoma court disallowing his claim in the receivership proceeding. It further alleges that while this appeal was pending a plan of reorganization was adopted and the assets in the hands of the receiver were returned to Superior Oil Corporation, and that the receiver was discharged. In the plan of reorganization approved by the Oklahoma court it was provided that the Superior Oil Corporation should agree to perform all contracts and obligations of the receiver. In its order confirming said plan of reorganization the Oklahoma court expressly reserved the power to retake the property and assets of Superior Oil Corporation if it failed to fulfill the obligations of the receiver. Plaintiff’s replication further alleges: (1) That by reason of the receiver’s discharge, the judgment of the Oklahoma court disallowing Cohen’s (plaintiff’s) claim is null and void, and of no effect ab initio; (2) that if said judgment of the Oklahoma court were still in force, the pendency of an appeal therefrom prevents said judgment from being res judicata; (3) that the suit in Oklahoma is not between the same parties involving the same subject-matter. To this replication of the plaintiff to defendant's sixth plea defendant has demurred.” After discussing formal defects in the replication — a matter we need not go into — ■ the trial judge, referring to the question of res adjudicata, said: “Aside from the formal defects, plaintiff’s replication fails to answer defendant’s plea of res judicata. In his replication plaintiff alleges that by reason of the discharge of the receiver, (he courts of Oklahoma have lost jurisdiction of Cohen’s (plaintiff’s) claim, and therefore the judgment disallowing his claim is null and void and of no effect ab initio. This is a non sequitur. The order of the Oklahoma court providing for the surrender of the assets in the hands of the receiver and the order discharging the receiver do not purport to nullify the proceedings taken during the course of the receivership. On the contrary, according to the order as pleaded in the replication, the court expressly reserves to itself the power to see that all the obligations of the receiver are performed. The order provides : “ ‘It is also ordered, adjudged and decreed by the Court that as a condition for the surrender to it of the property in the hands of the Receiver, Superior Oil Corporation shall by its appropriate resolution of its Board of Directors accept the delivery and surrender of said property from said Receiver and agree that it will be bound by and perform all of the contracts and obligations of the Receiver for payments or otherwise; and the power to retake said property or any parcel thereof, in the event the said Superior Oil Corporation shall fail to comply with its said obligation, is hereby expressly reserved by the Court, and this Court expressly retains jurisdiction of all of said property and the power to retake said property or any part thereof and restore and reinstate the said Receivership for the purpose of enforcing the performance of any and all of the contracts and obligations of the said Receiver so to be assumed by Superior Oil Corporation at or before the receipt and taking by it of said property.’ “Further, the replication alleges that Cohen is now engaged in prosecuting an appeal from said judgment in the Supreme Court of Oklahoma. No authority is cited and none can be found that the Oklahoma judgment is null and void by reason thereof. The only question is whether the pendency of an appeal prevents the Oklahoma judgment from being res judicata. Tliere is no basis for this contention. “ ‘The appeal from a judgment does not suspend its effect. The appeal when perfected, may stay execution upon the judgment from which it is taken; but, until reversed, it stands binding upon the parties on every question directly decided.’ Emery v. United States (D.C.) 27 F.(2d) 992, 994. “ ‘When the state court refused to give that judgment effect it denied a right secured by the Federal court judgment upon matters wherein its decision was final until reversed in an appellate court, or modified or set aside in the court of its rendition.’ Deposit Bank v. Frankfort, 191 U.S. 499, 520, 24 S.Ct. 154, 162, 48 L.Ed. 276. "The United States Supreme Court recognized the principle that the judgment of a competent court is res judicata in all other controversies involving the same subject-matter between the same parties, until reversed or set aside. The pendency of an appeal does not prevent such a judgment from being res judicata. It is only when reversed on appeal that such a judgment loses its efficacy. " ‘The doctrine is of familiar application in this court that a prior adjudication of the same subject-matters, between the same parties, although in a different mode of proceeding, operates as an estoppel upon the parties against subsequent litigation, at least as 'to all matters that were actually in controversy and decided in that adjudication. Garrick v. Chamberlain, 97 Ill. 620; Hawley v. Simons, 102 Ill. 115; Hamilton v. Quimby, 46 Ill. 90, 98; Hanna v. Read, 102 Ill. 596, 40 Am.Rep. 608. But it seems to be thought by counsel for appellants that the fact that an appeal has been prosecuted from the decree destroys it as a former adjudication. This is a misapprehension. The appeal does not vacate or set aside the decree. It simply suspends its execution, and leaves it in full force as a determination of the cause of action, and a bar to its further prosecution. Curtis v. Root, 28 Ill. 367; Oakes v. Williams, 107 Ill. 154; Nill v. Comparet, 16 Ind. 107, 79 Am.Dec. 411; Burton v. Burton, 28 Ind. 342; Bank of North America v. Wheeler, 28 Conn. 433, 73 Am.Dec. 683; Freem. Judgm. § 328.' Moore v. Williams, 132 Ill. 589, 24 N.E. 619, 22 Am.St.Rep. 563. “The plaintiff submitted his cause of action to the Oklahoma courts and is bound by such election after judgment has been entered against him. Fié cannot come into this forum and retry the same issues a second time. The Oklahoma judgment in favor of the defendant is a bar to this proceeding, and the pendency of the appeal does not disturb its effectiveness.” ■Finding ourselves in accord with this reasoning and conclusion, the judgment below is affirmed, but with direction to the trial court to retain jurisdiction of the cause to await action by the Supreme Court of Oklahoma, Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_circuit	A	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. Alan Lloyd LUSSIER, Petitioner, Appellant, v. Frank O. GUNTER et al., Respondents, Appellees. No. 76-1282. United States Court of Appeals, First Circuit. Argued Sept. 15, 1976. Decided March 31, 1977. Richard S. Goldstein, Boston, Mass., for appellant. Deborah S. Solomon, Asst. Atty. Gen., Boston, Mass., with whom Francis X Bellotti, Atty. Gen., and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Bureau, Boston, Mass., were on brief, for appellees. Before COFFIN, Chief Judge, CLARK, Associate Justice, (Retired), CAMPBELL, Circuit Judge. Of the U.S. Supreme Court, sitting by designation. LEVIN H. CAMPBELL, Circuit Judge. The district court dismissed appellant Lussier’s petition for a writ of habeas corpus under 28 U.S.C. § 2254 and he appeals. Lussier was convicted after a jury trial in Massachusetts Superior Court of first degree murder committed with extreme cruelty or atrocity and was sentenced to life imprisonment. The Commonwealth introduced evidence that in 1971, at the time of the murder, Lussier was a part-time resident superintendent at an apartment building on Westland Avenue, Boston. Late in the evening of October 30 he arrived at a Halloween party in the building which was attended by the victim, a 19-year-old student nurse, and scores of other persons. While Lussier was there a fight broke out between one Devereaux and others. The testimony was conflicting as to the amount which Devereaux bled and petitioner’s proximity to him. The defense contended that the type 0 positive blood which was later found caked in small amounts on Lussier’s boot and clothing had originated with Devereaux. There was evidence that Lussier conversed with the victim and several others for about one half hour. Two participants in this conversation testified that they later saw petitioner and the victim leaving the apartment hand in hand. About eighteen hours after the couple had left the party, the victim’s badly battered, nude body was found in a vacant apartment in the same building. A downstairs neighbor’s testimony recalling sounds of a struggle and a loud thud emanating from the vacant apartment at about 2:30 a. m. on the night of the party tended to show that the murder occurred no later than one half hour after petitioner was observed leaving the party with the victim. The wounds about the victim’s head were consistent with those which might have been inflicted by repeated kicks with boots such as those worn by petitioner. The victim’s blood was of type 0 positive, the same type as that found on petitioner’s boot. There was testimony indicating that petitioner had been aware that the apartment was vacant, he having assisted in cleaning it on the day before the party. The prosecutor’s closing statement to the jury included a number of comments the propriety of which Lussier has since challenged. The comment which Lussier focuses upon here, and which he argues entitles him to issuance of a writ of habeas corpus as in violation of his privilege against self incrimination, is the following: “Maybe he told her, there was a party down there. I don’t know how he got her down there. There’s only one person that could tell us that. But, in any event, she went with him.” [Emphasis supplied.] Lussier’s attorney, who does not now represent him, did not object or request a curative instruction from the court. The court’s lengthy jury instructions included, however, the following: “The third fundamental proposition is the following — and I am referring to that portion of the statute which is General Laws, c. 233, § 20, Part Third. While the defendant in this case did not testify, I told you that under the law he is presumed to be innocent. “And, again, it’s found in G.L., Ter. Ed. c. 233, § 20, Part Third, and I am quoting: ‘the defendant in the trial of an indictment, complaint, or other criminal proceedings shall at his own request but not otherwise be allowed to testify, but his neglect or refusal to testify shall not create any presumption against him.’ “Our Supreme Judicial Court has interpreted that section of the statute and it has said time and time again that this is a privilege of the defendant which is guarded zealously by the courts. And his decision not to testify at the trial is a matter that cannot tend to incriminate him or create in the mind of the fact-finding tribunal, you the jury, in this case, any unfavorable circumstance and no unfavorable inferences can be drawn against him for his failure to so testify. “The logic for this is simple, because under the law the Commonwealth has the burden of proof to prove guilt of the defendant when it charges him with an offense. That means that it must establish each and every element of the crime with which he is charged and to prove it beyond a reasonable doubt. The defendant is not obliged to prove that he is innocent. “He is not obliged to assist in any way or to do anything when he is charged with an offense. He can remain absolutely mute. The Commonwealth’s burden is to prove that he committed the offense charged. And he does not have to prove that he did not commit it. “As a matter of fact and as a matter of law, he has no obligations at all to disprove that which the Commonwealth alleges.” On appeal to the Massachusetts Supreme Judicial Court, Lussier argued that the prosecutor’s comments were “improper and [he] challenge^] the failure of the trial judge to order the remarks struck when they were made or to subsequently instruct the jury to disregard them.” Commonwealth v. Lussier, 364 Mass. 414, 424, 305 N.E.2d 499, 505 (1973). The court ruled: “While we do not approve of some portions of the prosecutor’s summation to the jury, when viewed in the overall context they are not so prejudicial as to justify reversal. . . . Moreover, there is a simple and obvious reason for the trial judge’s alleged ‘failure’ to strike them or attempt to mitigate their impact as effectively as the defendant now argues was appropriate. That is, defense counsel took no exceptions at the close of the prosecutor’s summation, and made no request for special instructions despite ample opportunity to do so While under G.L. c. 278, § 33E, we will, in appropriate circumstances, act to rectify a substantial risk of a miscarriage of justice, despite the absence of exceptions in the record, we do not feel that such action is warranted here." Id. at 424-25, 305 N.E.2d at 506. In a footnote the Supreme Judicial Court quoted the prosecutor’s remarks which were asserted to be prejudicial. With reference to the comment that “[tjhere’s only one person that could tell us that,” the court stated: “This last remark would raise serious questions as to the infringement of the defendant’s Fifth Amendment right to remain silent, see Griffin v. California, 380 U.S. 609, 611, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), were it not for that portion of the judge’s charge specifically explaining to the jury that the defendant had the right not to testify, and that no unfavorable inferences were to be drawn from his exercising that right.” Id. at 424 n. 3, 305 N.E.2d at 506 n. 3. In the district court the Commonwealth resisted the habeas corpus petition on grounds that Lussier had waived objection to constitutional errors in failing to take exception to the prosecutor’s comment. According to this argument, Massachusetts’ statutory “miscarriage of justice” exception to a waiver is the equivalent of the federal “plain error” rule, Fed.R.Crim.P. 52(b). The Commonwealth also argued that the prosecutor’s comment was harmless in light of the trial judge’s extensive instructions on the defendant’s right to remain silent. The district court denied the petition. On appeal, Lussier presses the argument that the prosecutor’s remark was an unconstitutional and harmful comment on an accused’s exercise of the right to remain silent. He contends that his attorney’s failure to except was not a “deliberate bypass” of state court procedure, see Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), for the prosecutor’s misconduct had put him in the position of making a “grisly choice” between suffering the comment in silence and objecting, thereby calling further attention to the prejudicial remark. He denies that a calculated tactical decision to forego objection was ever made. Id. at 439, 83 S.Ct. 822. Furthermore, Lussier argues, the Supreme Judicial Court actually reached the constitutional issue, so the Commonwealth’s reliance on a theory of waiver is inapposite. We need not decide whether or to what extent Fay’s “deliberate by-pass” standard has been broadened by the Supreme Court in giving effect to state rules concerning waiver. See Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); P. Bator, et al., Hart & Wechsler’s The Federal Courts and The Federal System 256-58 (Supp.1977). We agree with petitioner that the Supreme Judicial Court decided the substance of his constitutional claim. It characterized the prosecutor’s offensive comments as “not so prejudicial as to justify reversal.” Id., 364 Mass. at 424, 305 N.E.2d at 506. The comment that is the subject of this appeal was said to “raise serious questions as to the infringement of the defendant’s Fifth Amendment right to remain silent . . . were it not for that portion of the judge’s charge specifically explaining that the defendant had the right not to testify, and that no unfavorable inferences were to be drawn from his exercising that right.” 364 Mass. at 424 n. 3, 305 N.E.2d at 506 n. 3. While it also stressed the lack of exceptions and requests for special instructions, we are satisfied that the court reached and decided the merits of the constitutional issue presented in this appeal. We are therefore free to consider it. Warden v. Hayden, 387 U.S. 294, 297 n. 3, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). In Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965) the Supreme Court held that “the Fifth Amendment, ... in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” In determining whether Lussier’s fifth amendment rights were infringed we must therefore inquire whether the prosecutor’s statement was a “comment on the accused’s silence.” The tenth circuit has formulated the following test: “[WJhether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955). The comment in this case came after the prosecutor had speculated about how Lussier might have lured the victim to the vacant apartment: “I don’t know how he got her down there. There’s only one person that could tell us that.” It is not entirely clear who the “one person” was supposed to be. Either the prosecutor was rhetorically invoking the victim (“there’s only one person that could tell us that and she no longer can”), or else he was pointing his finger at the silent Lussier. Cf. Rodriguez-Sandoval v. United States, 409 F.2d 529, 531 (1st Cir. 1969); Desmond v. United States, 345 F.2d 225, 227 (1st Cir. 1965). We cannot quite say, in the words of the tenth circuit, that the remark was “manifestly intended or was of such character that the jury would naturally and necessarily take it” as a comment on Lussier’s failure to testify. Even, however, if the comment were interpreted as coming within the class of prosecutorial comment which the fifth amendment forbids, we believe that the Superior Court justice’s lengthy instruction to the jury on a defendant’s right not to take the stand rendered the improper remark “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). While the judge did not immediately interrupt argument to admonish the prosecutor and instruct the jury, his instruction at the conclusion of the trial on Lussier’s right to remain silent was unusually emphatic and complete. It far exceeded the more perfunctory general instructions which have often been found inadequate to combat specifically prejudicial remarks. The prosecutor’s comment was itself brief, indirect and isolated. It plainly could and preferably should have been dealt with by an immediate, sua sponte instruction. But given the thoroughness of the later instructions, we think that whatever prejudicial impact the comment had in heightening the jury’s awareness of defendant’s failure to take the stand was adequately offset. See United States v. Biondo, 483 F.2d 635, 645 (8th Cir. 1973), cert. denied, 415 U.S. 947, 94 S.Ct. 1468, 39 L.Ed.2d 563 (1974); United States v. Mahanna, 461 F.2d 1110, 1114-15 (8th Cir. 1972); United States v. Alloway, 397 F.2d 105, 113 (6th Cir. 1968); Jacobs v. United States, 395 F.2d 469, 477-78 (8th Cir. 1968). Cf. United States v. Schartner, 426 F.2d 470, 478 (3d Cir. 1970); United States v. White, 444 F.2d 1274, 1278 (5th Cir.), cert. denied, 404 U.S. 949, 92 S.Ct. 300, 30 L.Ed.2d 266 (1971). But see Berryman v. Colbert, 538 F.2d 1247, 1249-50 (6th Cir. 1976); United States v. Handman, 447 F.2d 853, 855 (7th Cir. 1971). Affirmed. . Accord, United States v. Williams, 172 U.S.App.D.C. 290, 521 F.2d 950, 953 (1975); United States v. Aldridge, 484 F.2d 655, 660 (7th Cir. 1973), cert. denied, 415 U.S. 921, 94 S.Ct. 1423, 39 L.Ed.2d 477 (1974); United States v. Biondo, 483 F.2d 635, 644 (8th Cir. 1973); cert. denied, 415 U.S. 947, 94 S.Ct. 1468, 39 L.Ed.2d 563 (1974); Doty v. United States, 416 F.2d 887, 890 (10th Cir. 1968), vacated on other grounds, 401 U.S. 1006, 91 S.Ct. 1247, 28 L.Ed.2d 542 (1971). . Petitioner notes that this circuit, in United States v. Flannery, 451 F.2d 880, 882 (1 Cir. 1971), announced that in future cases we would reverse a conviction where after a prosecutorial comment on a defendant’s silence, the trial judge did not immediately and sua sponte interrupt the argument to admonish the prosecutor and instruct the jury. The Flannery rule, as petitioner concedes, rests on our supervisory powers over the federal courts within this circuit. It was not addressed to the state judiciary, and insofar as it might require actions in some cases going beyond the strict requirements of the Constitution, we shall not apply it in habeas review of state proceedings. This is not to say that the immediacy and force of a state judge’s corrective actions will not be important in determining whether the prejudice from an unconstitutional comment has been neutralized. 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_casetyp1_7-2	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". UNITED STATES v. DUBY et al. No. 13138. United States Court of Appeals Ninth Circuit. Jan. 30, 1952. j. Charles Dennis, U. S. Atty., John E. Belcher, Asst. U. S. Atty., Seattle, Wash., Cornelius Peck, Atty., Dept, of Justice, Washington, D. C., for appellant. Skeel, McKelvy, Henke, Evenson & Uhlmann and Willard E. Skeel, Seattle, Wash., for appellee. Before STEPHENS, HEALY, and POPE, Circuit Judges. STEPHENS, Circuit Judge. The district court dismissed the complaint of the United States against the defendants, and the United States appealed from the judgment entered thereon as to both defendants, Pat Duby and Continental Casualty Company, but appellant has requested that the appeal as to Duby be dismissed because he has been discharged in bankruptcy. We hereby grant the motion, and now proceed with the appeal as to Continental Casualty Company. The complaint is for damages alleged to arise out of the following basic facts: The United States through the Civil Aeronautics Administrator, a department of the Department of Commerce, contracted with Duby to construct certain concrete check dams and a twin box culvert at the Seattle-Tacoma Airport for $6,602.70, to be paid in progress payments. The work was to be 'completed in thirty days, but because <of some changes the contract completion time was extended sixteen days, and the contract price was raised to $7,562.70. The work was not completed within the contract time, but the government did not exercise its right to take the work over but permitted the contractor, as it had the right to do, to proceed and the work was completed one hundred thirty-three days after the expiration of the contract time. The government claimed liquidated damages of $20 for each day over time in accordance with the contract. No progress payments had been earned or paid within the contract completion time but thereafter progress payments were made as they were earned without deduction of the accrued liquidated damages, until the - final payment, from which $979.82 was withheld: Continental Casualty Company was the surety on the performance bond and also on a separate and independent labor and material bond. The first point raised on appeal is that the court erred in finding that the surety company had no notice of the government’s intention to claim liquidated damages, thus depriving Continental from opportunity to file a claim in the Duby bankruptcy proceedings. We see no clear error in this finding, but even so, the state of the record would not support a conclusion therefrom beneficial to appellee surety for the reason that the bankruptcy proceedings were introduced into evidence and they seem, on their face, to show that nothing out of the estate would Have been distributed to Continental, had it filed a claim. As will be more clearly shown later herein, a compensated surety is not relieved of responsibility by the act of the principal, unless the act prejudices the surety, and then only to the extent of the prejudice if it is reasonably discoverable. The more crucial point in the appeal is whether the surety was released pro tanto, wholly, or at all, by the act of the principal in making the progress payments in full without deducting the accrued liquidated damage sums from the payments. Since the contract completion period had expired before the first progress payment had accrued, and the total payments were $7,562.-70, and the total accrued damages claimed amounted to $2,660.00, it is obvious that all of the claimed accrued damages would have been satisfied had the principal deducted them from the payments as they fell due. We look to the Washington state law, Erie R. R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and find that an act of the principal which does not prejudice the surety does not release the surety. Therefore, unless the failure to deduct the accrued damages prejudices the surety, it is not released. In Leghorn v. Nydell, 1905, 39 Wash. 17, 80 P. 833, and Monro v. Nat’l Surety Co., 1907, 47 Wash. 488, 92 P. 280, 282, there were advances made on the progress payments but the advances were deducted from the progress payments when the latter were made. Held: no prejudice resulted to the surety. In the Monro case it is said that “* * * in no event could the premature payments constitute a defense beyond the amount of the advancements made, and not at all unless the payments operated to the prejudice of the bonding company.” This is according to the pro tanto doctrine. Again, in City of Tacoma v. Peterson, 1933, 174 Wash. 621, 25 P.2d 1034, 1035, the Washington State Supreme Court reviewed the cases and deducted the following rule: “The rule then is that a surety cannot complain of an advance made while the work is in progress which assists the contractor to perform and which is deducted at or before the time of the last payment. Such* is not the situation here. The wrongful payment was here made, not to assist the contractor in performing, but after the work had been completed, and no purpose beneficial to the surety was or could be served. “The respondent surety, upon the other hand [and the court approves the principle], urges'that it is a well-settled rule at law that when the rights of a surety are involved the obligee must deduct from the payments any sum owing to it, otherwise the surety will be discharged; * * [Emphasis ours.] The court cited Wood v. Brown, 8 Cir., 1900, 104 F. 203, and two Pennsylvania state cases. Wood v. Brown is authority for the principle that the discharge is only to the extent of the prejudice. We adhere to this holding. We have emphasized the words “rights of a surety” for the purpose of indicating dearly that the rule quoted in the first preceding quoted paragraph is not modified by the second quoted paragraph, unless the rights of the surety are affected; or in other words, unless the surety has been prejudiced. .The district' court in the instant case found, upon sufficient evidence, that the delay did cause damage to the government and the damage under the contract was for $20 for each day over the contract time, but denied any relief because the accrued liquidated damages were not deducted from the sums due on the progress payments. We think the court was wrong in holding, as it seems to have done, that failure to deduct the accrued damages from the payment vitiated the surety liability or contract. Instead, the court should have considered all appropriate evidence as to whether the payment of the full progress sums actually prejudiced the surety, and to what extent. “There is a special factor to be considered in the case of a building contract, or any other contract the financing of which requires a progressive expenditure in the course of performance. In ' these cases, one reason for providing for instalment payments as construction proceeds is to supply the funds necessary for the agreed performance: and failure to pay one or more instalments is more likely to cause inconvenience and difficulty to the building contractor. Therefore, a failure to make one of the progress payments, even though the contract is not divisible into pairs of separate equivalents and the instalment unpaid is only a small part of' the whole consideration, is more likely to justify suspension of performance by the builder, or even the total renunciation of further duty. There are many eases holding that nonpayment has It appears from the record that only a part of the completion payment was withheld from the contractor. If the government intended to hold the surety for liquidated damages, the whole of the completion payment should have been withheld, unless the part paid was subject to liens. If, in a retrial of the case, the surety is held liable for the liquidated damages, this point should be taken into consideration so that any sum paid the contractor after completion of the work should be credited to the surety. As to whether, in the circumstances of this case, the contractor was in law released upon completion and acceptance of the work and whether, if he was released, the surety was thereby released as surety, we make no expression, since the court made no specific findings or conclusions on the subject, and since these problems may well be affected by additional evidence and findings in a retrial of the case. justified such a suspension or renunciation.” See, e. g., Phillips & Colby Construction Co. v. Seymour, 1875, 91 U.S. 646, 23 L.Ed. 341; Knotts v. Clark Construction Co., 7 Cir., 1917, 249 P. 181; Michigan Yacht & Power Co. v. Busch, 6 Cir., 1906, 143 F. 929; Beltinck v. Tacoma Theater Co., 1910, 61 Wash. 132, 111 P. 1045; Guerini Stone Co. v. P. J. Carlin Construction Co., 1919, 248 U.S. 334, 39 S.Ct. 102, 63 L.Ed. 275. “The legal effect of a nonpayment must be considered in the light of its practical effects upon performance by the builder, especially those .effects that the debtor had reason to know.” 3 Corbin on Contracts § 692. There is also a presumption “ * * * that all men are, in law, presumed to be able to meet their just obligations until the contrary is shown.” City of Tacoma v. Peterson, 1933, 174 Wash. 621, 25 P. 2d 1034, 1035. We note that the court found that the contractor’s encounter with quicksand and excessive rainfall “rendered completion of the work within the time limited under the contract most difficult and burdensome”, and that the presence of the quicksand was unknown to either of the contracting parties. There was, however, no finding or conclusion as to whether the presence of quicksand would have been discovered if reasonable investigation had been made. Whether such a suggested finding may or may not be material we do not decide. Reversed and remanded. . 3 Corbin on Contracts § 692: “Nonpayment of an Instalment on a Construction or Service Contract. Question: What is the 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_usc1	49	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. SATURN AIRWAYS, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Dan-Air Services, Ltd., et al., Intervenors. Lynn Michelle TSCHIRHART and Paul Jeffrey Tschirhart, Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent, Americans For Charter Travel et al., Intervenors. NATIONAL AIR CARRIER ASSOCIATION, INC., et al., Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent, Dan-Air Services, Ltd., et al., Intervenors. TRANSWORLD AIRLINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Lynn M. Tschirhart et al., Intervenors. PAN AMERICAN WORLD AIRWAYS INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, National Air Carrier Association, Inc., et al., Intervenors. AMERICAN AIRLINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, National Air Carrier Association, Inc., et al., Intervenors. AMERICAN SOCIETY OF TRAVEL AGENTS, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, National Air Carrier Association, Inc. and Overseas National Airways, Inc., Saturn Airways, Inc., et al., Intervenors. MASTER EXECUTIVE COUNCIL OF the AIR LINE PILOTS IN the EMPLOY OF UNITED AIR LINES, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, National Air Carrier Association, Inc., et al., Intervenors. Nos. 72-1904, 72-1905, 72-1908, 72-2042 to 72-2044, 72-2127 and 72-2129. United States Court of Appeals, District of Columbia Circuit. Argued April 24, 1973. Decided July 11, 1973. See also, 155 U.S.App.D.C. 151, 476 F.2d 907. Robert M. Lichtman, Washington, D. C., with whom Jerry D. Anker, Washington, D.C., was on the brief, for petitioners in Nos. 72-1904 and 72-1908 and intervenor National Air Carrier Assn., Inc., et al., in Nos. 72-2042, 72-2043, 72-2044, 72-2127 and 72-2129. Paul M. Ruden and Paul Y. Seligson, Washington, D.C., also entered appearances for petitioners in Nos. 72-1904 and 72-1905. Harold L. Warner, Jr., New York City, of the bar of the Court of Appeals of New York pro hac vice by special leave of Court, with whom Edmund E. Harvey and Jerry W. Ryan, New York City, were on the brief for petitioners in Nos. 72-2042, 72-2043, and 72-2044. Warren L. Sharfman, Associate Gen. Counsel, Litigation and Research, C. A. B., with whom Thomas E. Kauper, Asst. Atty. Gen., R. Tenney Johnson, General Counsel, O. D. Ozment, Deputy Gen. Counsel, Robert L. Toomey, Alan R. Demby, and Arnold Lav, Attys., C. A. B., were on the brief for respondent. Paul Y. Seligson, Washington,. D.C., was on the brief for petitioners in No. 72-1905. Charles A. Hobbs and Paul S. Quinn, Washington, D.C., were on the brief for petitioners in No. 72-2127. Richard F. Watt, Chicago, 111., was on the brief for petitioners in No. 72-2129. Lester.M. Bridgeman and Jeffrey M. Lang, Washington, D.C., were on the brief for intervenor, Dan-Air Services, Ltd., in Nos. 72-1904, 72-1908, 72-2042 and 72-2043. Benny L. Kass, Washington, D.C., was on the brief for intervenor, Americans for Charter Travel, in Nos. 72-1904, 72-1905, 72-1908, 72-2042, 72-2043 and 72-2044. Theodore I. Seamon, Joseph D. Sullivan and Lawrence D. Wasko, Washington, D.C., were on the brief for interve-nor, Capitol International Airways, Inc., in Nos. 72-1904, 72-1905, 72-1908, 72-2042, 72-2043, 72-2044, 72-2127 and 72-2129. Sanford Peyser, New York City, filed a brief on behalf of Louis J. Lefkowitz, Atty. Gen., of the State of New York, as amicus curiae urging affirmance. Howard E. Shapiro, Atty., Department of Justice, entered an appearance for the United States of America. John W. Simpson, Koteen & Burt, Washington, D. C., entered an appearance for intervenor, McCulloch International Airlines, Inc., in No. 72-1904. Edmund E. Harvey, New York City, entered an appearance for intervenors, Braniff Airways, Inc. et. al., in Nos. 72-2042, 72-2043 and 72-2044. Before TAMM and ROBB, Circuit Judges, and DAVIES, Senior United States District Judge for the District of North Dakota. Sitting by designation pursuant to 28 U.S.C. § 294(d) (1970). TAMM, Circuit Judge: “This case presents essentially a question of statutory construction. It grows out of the protracted and absorbing battle over the years between the regularly scheduled airlines and the so-called ‘sup-' plemental’ airlines.” Almost seven years ago we introduced our opinion in American Airlines, Inc. v. CAB, 125 U.S.App. D.C. 6, 365 F.2d 939, 940 (1966), with those two sentences; we find them an equally appropriate preface to today’s decision. The passage of time has soured rather than mellowed the pugnacious disposition of the scheduled and supplemental airlines, and we are once again called upon to exercise our judgment concerning the “liberalization” (if that beleaguered term is indeed appro-pos) of regulations governing the jurisdiction of supplemental air carriers to provide “charter trips... in air transportation.” 49 U.S.C. § 1301(34) (1970). On January 7, 1972, the Civil Aeronautics Board [hereinafter “Board”] published a Notice of Proposed Rule Making in the Federal Register, 37 Fed.Reg. 222 (1972), proposing and submitting for public comment a new set of regulations which provided for a new type of charter in air transportation, “Travel Group Charter” [hereinafter “TGC”]. As the TGC proposed regulations were somewhat revolutionary in concept — they relied upon travel factors rather than non-travel affinity to distinguish the charters from individually ticketed travel — they understandably elicited a deluge of analysis and discussion. On September 27, 1972, following oral argument and the reception and analysis of comments from interested parties, the Board by a 3-2 vote adopted the proposed regulations with some modification. 37 Fed.Reg. 20808 (1972). These consolidated appeals are taken by several interested parties and raise many different issues regarding the legality of various aspects of the Board’s action. We find that the Board acted within the scope of its authority and was neither arbitrary, unreasonable, nor capricious in the promulgation of the TGC regulations, and consequently in all respects affirm the Board. I Supplemental air carriers are those certificated by the Board pursuant to a finding of public convenience and necessity to engage solely in “supplemental air transportation,” 49 U.S.C. § 1371(d)(3) (1970), which is basically defined as “charter trips... in air transportation.” 49 U.S.C. § 1301(34) (1970). The act of Congress providing for such certification, passed in 1962, purposefully avoided a delineation of the term “charter trips,” leaving the Board with the task of “evolv[ing] a definition in relation to such variable factors as changing needs and changing aircraft....” American Airlines, Inc. v. CAB, 121 U.S.App.D.C. 120, 348 F.2d 349, 354 (1965). In the past decade the Board has responded to the challenge in a painstaking, almost evolutionary process of developing comprehensive regulations which authorize various types of charter flights. See 14 C. F.R. § 208.6. These include (1) “single-entity” charters, which involve engagement of an aircraft by one person for the transportation of others who pay nothing; (2) “affinity” charters, where groups having some community of interest apart from transportation, for example membership in a club, engage an aircraft for transportation to be paid for on a pro rata basis; (3) “inclusive tour charters,” which involve the charter of an aircraft by an entrepreneur who offers space to the public as part of an all expense paid tour; and (4) “travel group charters,” where individual travelers without a community of interest apart from transportation are organized by a third party and, subject to certain travel related restrictions, charter an aircraft on a pro rata basis. The supplemental air carriers, once known as “non-scheduled” or “irregular” air carriers, are meant to provide a supplementary service to that of the scheduled or trunkline carriers, who offer individually ticketed, regularly scheduled service to the general public. Since the supplemental are not subject to the economic rigors attendant upon a regularly scheduled, individually ticketed service, for they essentially fly when they desire and nearly always carry a full planeload of passengers, the air fares for comparable routes on charter flights can be significantly less than those offered by the scheduled air carriers. Congress in providing for certification of the supplemental recognized the potential problem of competition and the real possibility that if not carefully controlled they would supplant, rather than supplement, the regularly scheduled service. See generally American Airlines, Inc. v. CAB, supra, 365 F.2d at 944-945. Individually ticketed, regularly scheduled service is the mainstay of an efficient air transportation system, and a critical necessity in any sophisticated economy. Congress realized that it must be preserved. Accordingly, the legislative history and language of the statute itself manifest a congressional intent that although the Board should have the power of definition, it should never permit “individually ticketed service to be offered to the general public under the guise of charter.” Sen.Rep.No.688, 87th Cong., 1st Sess. 13 (1961). It is thus with each successive modification of the charter service regulations that the scheduled air carriers, asserting that the indistinct line between group (charter) and individually ticketed travel has been crossed, raise strong opposition to their implementation. The TGC regulations have proven to be no exception to that pattern of behavior. A brief summary of the past struggles between the supplemental and scheduled air carriers, who evidently view their respective positions as unalterably antagonistic, should serve to place this current litigation in proper perspective and render invaluable assistance in determining its outcome. 1. Split Charters In early 1964 the Board revised part 295 of its Economic Regulations and included what are known as “split charters” within the definition of charter flights. See ER-408, 29 Fed.Reg. 6005 (1964). Split charters, generally speaking, are the process whereby each of two unrelated but qualified charter groups with similar destinations charter one half of the same aircraft. Three scheduled air carriers petitioned in this court for review of that action, asserting that the Board lacked the statutory authority to define “charter trips” in such a manner — such charters were not authorized at the time of passage of the 1962 statutory revision — and that even if redefinition powers were found to exist, because of serious diversion of carriage from the scheduled services the Board abused its discretion in so acting. This court, speaking through Judge [now Chief Justice] Burger, disagreed, and in so doing laid the foundation for future decisions. American Airlines, Inc. v. CAB, 121 U. S.App.D.C. 120, 348 F.2d 349 (1965) [hereinafter “American Airlines /”]. The court stated: We conclude Congress intended, although not without limits, that the Board should be free to evolve a definition in relation to such variable factors as changing needs and changing aircraft; whatever the limits on the Board’s power of definition, those limits are not breached by a definition which permits two groups to charter one half an aircraft each We agree with the Board that the legislative history reveals that a prime concern of Congress was to maintain the integrity of the charter concept— to preserve the distinction between group and individually ticketed travel; within these limits it is for the Board to evolve reasonable definitions. Id. at 354. 2. Inclusive Tour Charters Further scrutiny of the Board’s authority was not long in coming, for on March 11, 1966, the Board issued certificates of authority granting certain supplemental airlines the right to operate “inclusive tour charters” in both domestic and transatlantic markets. The regulations promulgated concurrent therewith defined an inclusive tour charter as a kind of all-expense paid tour, with restrictions such as a seven day minimum between departure and return, a minimum of three stops, and a requirement that the tour package price be no less than 110 percent of the lowest available fare charged by the scheduled air carriers for comparable individually ticketed travel. The Board action was challenged by certain scheduled air carriers who sought review in this court as to the domestic charters, American Airlines, Inc. v. CAB, 125 U.S.App.D.C. 6, 365 F.2d 939 (1966) [hereinafter “American Airlines II” 2, and in the second circuit court of appeals as to the transatlantic charters. Pan American World Airways, Inc. v. CAB, 380 F.2d 770. (2d Cir. 1967), aff’d by an equally divided Court, 391 U.S. 461, 88 S.Ct. 1715, 20 L.Ed.2d 748 (1968). Although American Airlines I had settled the question of the Board’s basic power to evolve changing definitions of charter, the scheduled air carriers questioned whether the Board had exceeded the limits of this authority by failing to maintain the individually ticketed — group fair distinction that Congress desired. This line of attack required the courts to take a hard look at congressional intent in the passage of the 1962 legislation. In American Airlines II this court stated what it found to be the three primary purposes of the 1962 legislation: (1) to eliminate irresponsible supplemental; (2) to stabilize the operating authority of the supplemental under certification, including authority to authorize charter trips on a broad enough basis so that the supplemental might remain economically viable organizations capable of meeting supplemental transportation needs and high safety standards; and (3) “to maintain the regulatory scheme of the Federal Aviation Act and the protection of the [scheduled] carriers... by eliminating unregulated individually ticketed point-to-point competition from the supplemen-tals.” 365 F.2d at 945-946 (footnote omitted). It was to the third of these purposes that the contradictory references in committee reports, hearing transcripts, and floor speeches of Congressmen were directed. The court felt, however, that much of the concern over the specific authorization of inclusive tour charters arose because of the abuses experienced when, prior to 1962, the Board had granted supplemental air carriers the right to conduct ten flights per month of scheduled, individually ticketed carriage. “Groups of carriers would combine their operations and provide daily services claiming at least col- or of authority under the ten-flight per month authorization.” 365 F.2d at 945. The court then summarized the problem : The question therefore arises as to whether authorization of inclusive tour charters will in fact bring about the individually ticketed abuses experienced under the ten-trip-per-month authority.... In order to insure that the supplementals were properly regulated in this respect, and to insure that the individual ticketing abuses would not occur, the Board issued stringent regulations at the time of its decision in the instant case to cover inclusive tour charters. The key to this case, we believe, is the fact that the Congress at the time it passed the legislation had no way of knowing specifically how the Board would regulate the actions of the supplemen-tals with respect to inclusive tour charters. 365 F.2d at 946 (footnote omitted). Finding that the stringent regulations promulgated by the Board would in fact preclude the abuses both experienced in the past and foreseen by the legislators, we concluded that the inclusive tour charter regulations maintained the important distinction between group and individually ticketed travel, and therefore upheld the Board's action. On September 27, 1966, two months following the issuance of American Airlines II, presidential approval was given to the transatlantic aspects of the inclusive tour charter authorizations. As we noted earlier, review was immediately sought in the second circuit court of appeals by certain scheduled airlines, challenging the Board’s action in the international arena upon the same grounds that had earlier been contested in American Airlines II. The second circuit, although of course looking to the same legislative history that we had analyzed several months earlier, reached a contrary conclusion: We... reject the argument that the legislators’ concern was with abuses growing out of the Board’s prior practice of allowing supplemental carriers to perform limited scheduled individually ticketed travel. Regardless of the extent to which there may have been legislative concern based on this prior experience, indeed whether or not the expression of concern was misguided or wholly unwarranted, it was in fact manifested in a congressional declaration binding on both the Board and this court, that was clearly intended to forbid the Board to authorize inclusive tours. 380 F.2d at 781. The Supreme Court’s effort to relieve this conflict between the circuits was far from totally successful, for its consideration of the Pan American decision resulted only in a per curiam affirmance by an equally divided court. World Airways, Inc. v. Pan American World Airways, Inc., 391 U.S. 461, 88 S.Ct. 1715, 20 L.Ed.2d 748 (1968). Although an af-firmance by an equally divided Supreme Court is not “entitled to precedential weight,” Neil v. Biggers, 409 U.S. 188, 192, 93 S.Ct. 375, 34 L.Ed.2d 401, (1972), its restricted effect was to affirm the second circuit’s decision, and thus while domestic inclusive tours were allowed by this court’s decision, transatlantic inclusive tours were forbidden. Accordingly, Congress quickly passed legislation which expressly included inclusive tour charters within the definition of supplemental air transportation. Act of September 26, 1968, Pub.L. No. 90-514, 82 Stat. 867, amending 49 U.S.C. § 1301(33) (1964) (codified at 49 U.S.C. § 1301(34) (1970))/ We note that the Senate and House committee reports enunciated that the purpose of the new legislation was to “clarify” rather than add to the authority of the Board as originally granted in the 1962 legislation. II We have analyzed the record in light of the history — both litigious and legislative — of charter air travel. We adhere to the analysis and conclusions of our American Airlines II decision, and find that in authorizing the TGCs the Board met its obligations to encourage “[t]he promotion of adequate, economical, and efficient service by air carriers at reasonable charges, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices,” pursuant to the mandate of 49 U.S.C. § 1302(c) (1970), and to maintain the legislatively desired distinction between individually ticketed and group travel. We want to stress two items that have particularly influenced us, and which we have drawn from our review of this case and other experiences with this type of litigation. First, the test we must apply is result oriented — one cannot really know how the public will react and how the TGCs will affect scheduled travel until they are tested in the crucible of the marketplace. This is a situation in which, in Judge Leventhal’s words, “a month of experience will be worth a year of hearings.” American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 359 F.2d 624, 633 (D.C.Cir.), cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed.2d 75 (1966). We can only look to the record, contradictory legislative history, and the purposes of the enabling legislation itself to determine if the Board’s action is reasonable, and within its authority. We are loathe to be held out either as seers of the future or overseers of the air transportation system in this country. Secondly, the consistent lamentations and predictions of doom by diversion raised by the scheduled air carriers in the past have proved, to our way of thinking, to be considerably overstated. The actions of the Board in this area have provided for steady growth in both the scheduled and supplemental markets, and the public, as it should be, has been the primary beneficiary. An elaboration of the intricacies of the TGC regulations would serve little purpose. We have studied them carefully and find that they maintain the necessary distinction between group and individually ticketed travel, and that they are the result of painstaking and reasoned analysis by the Board. We are impressed with the five “substantial and vital” differences between TGCs and conventional travel that have been stressed by the Board in its argument before us: (1) The TGC traveler is a party to the charter contract itself, incurring liability for the pro rata share of the charter cost and running the risk that his cost may increase depending upon the load factor ultimately achieved. (2) The travel group must be formed no less than three months prior to the scheduled departure time, or the trip must be cancelled. (3) The members of the group formed in # 2 above must have paid a deposit of 25 percent of the minimum pro rata charter price before the time for filing the list of tour members with the Board has elapsed, no more than four nor less than three months prior to the scheduled departure. This deposit is, subject to certain exceptions, nonrefundable. Payment of the balance must then be made not later than two months before departure. As of then the participant risks, again subject to certain exceptions, a 100 percent forfeiture should he desire to change his plans. (4) There is a risk of cancellation of the flight up to 45 days prior to scheduled departure because of defaults by fellow charter participants. (5) All TGC participants must go and return as a group, subject to predetermined, fixed restrictions as to the length of the trip. Perhaps the primary reason for the extensive opposition to the TGCs on the part of the scheduled air carriers is that the TGCs do not require non-travel related “affinity.” Non-travel affinity, whereby members of an organization such as the Elks or Eagles Club are allowed to take advantage of charter fares through charters organized by their clubs, have proven to be discriminatory in application and difficult in enforcement. The Board correctly recognized that this non-travel “affinity” was not statutorily required, but only a vehicle to insure that charter travel did not become a guise for individually ticketed services. So long as such organizational membership is not necessary to insure the distinction — which can be and is maintained by travel related restrictions in both the inclusive tour and now in the TGC charters — it is not a sine qua non for legality. Finally, we find nothing at fault with the Board’s decision to forego an evidentiary hearing on the diversionary effects of the TGC authorizations. The Board stated that “insofar as the principal factual issues here involve largely unpredictable questions as to the traffic which these new rules will generate or cause to be diverted from scheduled carriers, they can best be resolved in light of experience gained through actual experimentation.” 37 Fed.Reg. 20811 (1972). The TGC regulations and authorizations are temporary in nature, with a termination date set for December 31, 1975. 14 C.F.R. § 372a.5. This is the best way to test the true effects of the TGCs, and the Board remains free at all times to adjust its regulations in the interim to adapt to unexpected results. The Board’s experience with charter definitions in the past and the comments and oral arguments submitted to it led it to believe that this experimentation approach was the proper manner in which to proceed. We cannot fault such an approach. See American Airlines, Inc. v. CAB, supra, 359 F.2d at 633, and Delta Air Lines, Inc. v. CAB, 147 U.S.App.D.C. 272, 455 F.2d 1340, 1344 (1971). Ill Several supplemental air carriers and the National Air Carrier Association, Inc., a trade association of the supplemental, challenge the TGC regulations from an understandably different posture. They urge us not to set aside any specific section of the regulations under review, but rather to remand to the Board for the limited purpose of reconsidering its requirement that the TGCs be marketed exclusively by independent charter organizers. The charter organizer is an “arranger.” He initially obtains an option from the air carrier which obligates it to enter into a contract to provide carriage, said contract to be entered into with the organizer as agent for the group he subsequently forms. The organizer is given a substantial administrative burden of filing contracts, passenger lists, etcetera, with the Board, and it is through his organizational abilities and solicitation of the charter group that the charter will ultimately succeed or fail. His compensation is in the form of a service charge from the charter group, which is pro rated among its members. He must be completely independent of, and receive no compensation from any air carrier. The Board’s reason for requiring an independent organizer is almost disarmingly simple — it is a further mechanism for separating the supplemental air carrier from the marketing of individual tickets to the general public. In light of Congress’ specific prohibition in the inclusive tour market, 49 U.S.C. § 1301(34) (1970): Nothing in this paragraph shall permit a supplemental air carrier to sell or offer for sale an inclusive tour. by selling... individual tickets directly to members of the general public, or to do so indirectly by controlling... a person authorized by the Board to make such sales. We find this requirement to be eminently reasonable. Accordingly, the various Orders of the Civil Aeronautics Board authorizing Travel Group Charters and promulgating regulations concerning such, are Affirmed. . The Board on January 29, 1971, had previously issued an Advance Notice of Proposed Rule Making — Non-Affinity Charters. 36 Fed.Reg. 2514 (1971). The Advance Notice resulted from a petition for rule making filed by the Member Carriers of the National Air Carrier Assoeiation (an organization of supplemental air carriers) on July 30, 1970. . A listing of the initial and reply comments was filed with the majority statement accompanying the adoption of the Travel Group Charter regulations, and appears at page 679 of the Joint Appendix filed with this appeal. . Act of July 10, 1962, Pub.L. No. 87-528, 76 Stat. 143, amending the Federal Aviation Act of 1958, 72 Stat. 731, as amended, 49 U.S.C. § 1301 et seq. (1970). . There are also “study group charters,” 14 C.F.R. §§ 373.1-.31, and “overseas military personel charters,” 14 C.F.R. §§ 372.1-.40. . Trans World Airlines, Pan American World Airways, American Airlines, Bran-iff Airways, Delta Air Lines, Eastern Air Lines, National Airlines, Northwest Airlines, United Air Lines, and Western Air Lines are all certified pursuant to 49 U.S. C. § 1371(d)(1) (1970), and thus are representative scheduled or trunkline air carriers. It is important to note that 49 U.S.C. § 1371(e) (6) (1970) provides that “[a]ny air carrier, other than a supplemental air carrier, may perform charter trips or any other special service.” Therefore, the scheduled air carriers can, should they so desire, compete with the supplemental air carriers in the charter travel market. . The scheduled air carriers providing individually ticketed transportation, because they provide the country with a “dependable and predictable air transportation service at all times, one that operates in peak and off-peak periods, to large cities and to small ones and in dense and thin traffic markets,” Brief for Petitioners and Intervenors in Nos. 72-2042, 2043, 2044 at 6, are admittedly at an economic disadvantage when competing against charter services. Whereas the “load factor” (average percentage of occupancy) of charter flights is near 100 percent, scheduled service normally operates at an average of 50 percent. See Comments of Trans World Airlines, Inc. in Opposition to the Travel Group Charter Proposal, Jt. App. at 423. . See generally the thorough analysis of the legislative history contained in American Airlines, Inc. v. CAB, 125 U.S.App.D.C. 6, 365 F.2d 939 (1966), and Pan American World Airways, Inc. v. CAB, 380 F.2d 770 (2d Cir. 1967), aff’d by an equally divided Court, 391 U.S. 461, 88 S.Ct. 1715, 20 L.Ed.2d 748 (1968). . The Act of September 26, 1968, Pub.L. No. 90-514, 82 Stat. 867, amending 49 U.S.C. § 1301(33) (1964) (codified at 49 U.S.C. § 1301(34) (1970)), amended the definition of supplemental air transportation by providing, inter alia, that “[n]oth-ing in this paragraph shall permit a supplemental air carrier to sell or offer for sale an inclusive tour in air transportation by selling or offering for sale individual tickets directly to members of the general public....” . On March 26, 1968, the Board again altered part 295 of its Economic Regulations, “by deleting the [then] existing rigid requirement that each group be comprised of one-half of the capacity of an aircraft and substituting therefore [a] more flexible requirement... namely, authorization of up to three groups on one aircraft with each group containing 40 or more passengers.” Reg. ER-531, Amdt. 1, 33 Fed.Reg. 5155 (1968). Subsequently, on January 29, 1971, the Board deleted part 295, incorporating it into part 208, and eliminated the limitation on number of groups per aircraft, while retaining the minimum passengers per group requirement. Reg. ER-659, Amdt. 9, 36 Fed.Reg. 2486 (1971). See 14 C.F.R. § 208.6(c). Both alterations were subjected to stiff opposition by the scheduled airlines. . The court continued, 348 F.2d at 354, in language we find relevant to the TGC controversy: In today’s swift engineering developments as to size and speed of aircraft a definition embalmed, for example, in • such origins as the admiralty law growing out of the sailing vessel era would be an unreasonable and unnecessary restraint on the Board and one we do not find in the statute or its history. . See generally Board Order E-23350 (March 11, 1966), and Keg. No. SPR-14, 31 Fed.Reg. 4779 (1966). . The regulations governing inclusive tour charters are contained in part 378 of the Board’s Economic Regulations, 14 C.F.R. §§ 378.1-.31. . The bill which evolved into the Act of July 10, 1962, Pub.L. No. 87-528, 76 Stat. 143, was prejoared by the Board and introduced in both houses of Congress early in the 87th Congress. See S.1969, 87th Cong., 1st Sess. (1961) ; H.R. 7318, 87th Cong., 1st Sess. (1961). Following lengthy committee hearings and floor argument the Senate and House versions of the bill became strikingly different — the Senate version attempted a definition of “charter service,” one which prevented individually ticketed service excepting that offered to “a member of a group on an all-expense-paid tour,” wliile the House version contained no definition whatsoever. The conflicting bills were submitted to a Conference Committee which reported out a substitute bill adopting the House version, and eliminating the definition of “charter” found in the Senate bill. This bill was ultimately enacted into law. As both Pan American World Airways, Inc. v. CAB, 380 F.2d 770, 777-782 (2d Cir. 1967), aff’d by an equally divided Court, 391 U.S. 461, 88 S.Ct. 1715, 20 L.Ed.2d 748 (1968), and American Airlines, Inc. v. CAB, 125 U.S.App.D.C. 6, 365 F.2d 939, 941-949 (1966), contain extensive analysis of conflicts in the legislative history, we find it unnecessary to repeat the discussion here. . Section (1) of Pub.L. 90-514 reads: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That paragraph (33) of section 101 of the Federal Aviation Act of 1958 is amended to read as follows: “(33) ‘Supplemental air transportation’ means charter trips, including inclusive tour charter trips, in air transportation, other than the transportation of mail by aircraft, rendered pursuant to a certificate of public convenience and necessity issued pursuant to section 401 (d) (3) of this Act to supplement the scheduled service authorized by certificates of public convenience and necessity issued pursuant to sections 401(d) (1) and (2) of this Act. Nothing in this paragraph shall permit a supplemental air carrier to sell or offer for sale an inclusive tour in air transportation by selling or offering for sale individual tickets directly to members of the general public, or to do so indirectly by controlling, being controlled by, or under common control with, a person authorized by the Board to make such sales.” . See S.Rep. No. 1354, 90th Cong., 2d Sess. 2 (1968) : “S.3566 would clarify Congress intent,” and 8: “The bill would reaffirm the previous position taken by this committee that inclusive tour charter trips are in the public interest and that supplemental air carriers should have the authority to conduct them.” See also H. Rep. No. 1639, 90th Cong., 2d Sess. 2 (1968), U.S.Code Cong. & Admin.News 1968, p. 3595: “The bill would amend the Federal Aviation Act of 1958 to clarify Congress’ intent that inclusive tour charter trips do not permit individually ticketed service by supplemental air carriers....” and 4 U.S.Code Cong. & Admin.News 1968, p. 3596: “The CAB’s authority is clarified, not enlarged here.” . The tremendous growth of the air transportation system — in the last decade both in the individually ticketed and group fare markets — is a well known phenomenon. The record is replete with charts and graphs showing rapid and steady growth in passenger numbers, passenger miles, and revenues. This growth has been accompanied in general with a reduction in rates — certainly in the transatlantic market. Trans World Airways, Inc. in a comment filed before the Commission in opposition to the TGCs stated that a round trip fare between New York and London which cost $675.00 in 1951 was set at $277.00 in 1971. Jt. App. at 99. . The TGC regulations comprise part 372a of the Board’s Economic Regulations, 14 C.F.R. §§ 872a.l-.50. . The majority of the Board in its statement accompanying the enactment of the TGC regulations, Reg. SPR-61, 37 Fed. Reg. 20808 (1972), noted these two factors as the prime moving force for the TGC proposals: The proposal stemmed from two principal factors : (1) the Board’s growing concern that our existing rules, limiting charter travel to groups having a “prior affinity,” tended to discriminate against members of the public who did not belong to qualified organizations with a membership large enough to successfully mount a charter program; and (2) the fact that our existing rules had proven to be extremely difficult to enforce. We recognized that these two factors are closely interrelated, in that the operators of illegal charters have been satisfying an ever increasing demand for low-cost charter travel by members of Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
sc_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. CAREY, STATE’S ATTORNEY OF COOK COUNTY v. BROWN et al. No. 79-703. Argued April 15, 1980 Decided June 20, 1980 Brennan, J., delivered the opinion of the Court, in which Stewart, White, Marshall, Powell, and Stevens, JJ., joined. Stewart, J., filed a concurring opinion, post, p. 471. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and Blackmun, J., joined, post, p. 472. Ellen G. Robinson argued the cause pro hac vice for appellant. With her on the briefs were Bernard Carey, pro se, and Paul P. Biebel, Jr. Edward Burke Arnolds argued the cause for appellees. With him on the brief was Michael P. Seng Briefs of amici curiae urging reversal were filed by William W. Becker for the New England Legal Foundation; and by Ronald A. Zumbrun, Robert K. Best, and Robin L. Rivett for the Pacific Legal Foundation et al. Howard Eglit and David Goldberger filed a brief for the Roger Baldwin Foundation of ACLU, Inc., as amicus curiae urging affirmance. Mr. Justice Brennan delivered the opinion of the Court. At issue in this case is the constitutionality under the First and Fourteenth Amendments of a state statute that generally bars picketing of residences or dwellings, but exempts from its prohibition “the peaceful picketing of a place of employment involved in a labor dispute.” I On September 6, 1977, several of the appellees, all of whom are members of a civil rights organization entitled the Committee Against Racism, participated in a peaceful demonstration on the public sidewalk in front of the home of Michael Bilandic, then Mayor of Chicago, protesting his alleged failure to support the busing of schoolchildren to achieve racial integration. They were arrested and charged with unlawful residential picketing in violation of Ill. Rev. Stat., ch. 38, § 21.1-2 (1977), which provides: “It is unlawful to picket before or about the residence or dwelling of any person, except when the residence or dwelling is used as a place of business. However, this Article does not apply to a person peacefully picketing his own residence or dwelling and does not prohibit the peaceful picketing of a place of employment involved in a labor dispute or the place of holding a meeting or assembly on premises commonly used to discuss subjects of general public interest.” Appellees pleaded guilty to the charge and were sentenced to periods of supervision ranging from six months to a year. In April 1978, appellees commenced this lawsuit in the United States District Court for the Northern District of Illinois, seeking a declaratory judgment that the Illinois residential picketing statute is unconstitutional on its face and as applied, and an injunction prohibiting defendants — various state, county, and city officials — -from enforcing the statute. Appellees did not attempt to attack collaterally their earlier state-court convictions, but requested only prospective relief. Alleging that they wished to renew their picketing in residential neighborhoods but were inhibited from doing so by the threat of criminal prosecution under the residential picketing statute, appellees challenged the Act under the First and Fourteenth Amendments as an overbroad, vague, and, in light of the exception for labor picketing, impermissible content-based restriction on protected expression. The District Court, ruling on cross-motions for summary judgment, denied all relief. Brown v. Scott, 462 F. Supp. 518 (1978). The Court of Appeals for the Seventh Circuit reversed. Brown v. Scott, 602 F. 2d 791 (1979). Discerning “no principled basis” for distinguishing the Illinois statute from a similar picketing prohibition invalidated in Police Department of Chicago v. Mosley, 408 U. S. 92 (1972), the court concluded that the Act’s differential treatment of labor and nonlabor picketing could not be justified either by the important state interest in protecting the peace and privacy of the home or by the special character of a residence that is also used as a “place of employment.” Accordingly, the court held that the statute, both on its face and as applied to appellees, violated the Equal Protection Clause of the Fourteenth Amendment. We noted probable jurisdiction. 444 U. S. 1011 (1980). We affirm. II As the Court of Appeals observed, this is not the first instance in which this Court has had occasion to consider the constitutionality of an enactment selectively proscribing peaceful picketing on the basis of the placard’s message. Police Department of Chicago v. Mosley, supra, arose out of a challenge to a Chicago ordinance that prohibited picketing in front of any school other than one “involved in a labor dispute.” We held that the ordinance violated the Equal Protection Clause because it impermissibly distinguished between labor picketing and all other peaceful picketing without any showing that the latter was “clearly more disruptive” than the former. 408 U. S., at 100. Like the Court of Appeals, we find the Illinois residential picketing statute at issue in the present case constitutionally indistinguishable from the ordinance invalidated in Mosley. There can be no doubt that in prohibiting peaceful picketing on the public streets and sidewalks in residential neighborhoods, the Illinois statute regulates expressive conduct that falls within the First Amendment’s preserve. See, e. g., Thornhill v. Alabama, 310 U. S. 88 (1940); Gregory v. Chicago, 394 U. S. 111, 112 (1969); Shuttlesworth v. Birmingham, 394 U. S. 147, 152 (1969). “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. CIO, 307 U. S. 496, 515 (1939) (opinion of Roberts, J.). “‘[SJtreets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.’” Hudgens v. NLRB, 424 U. S. 507, 515 (1976) (quoting Food Employees v. Logan Valley Plaza, 391 U. S. 308, 315 (1968)). Nor can it be seriously disputed that in exempting from its general prohibition only the “peaceful picketing of a place of employment involved in a labor dispute,” the Illinois statute discriminates between lawful and unlawful conduct based upon the content of the demonstrator’s communication. On its face, the Act accords preferential treatment to the expression of views on one particular subject; information about labor disputes may be freely disseminated, but discussion of all other issues is restricted. The permissibility of residential picketing under the Illinois statute is thus dependent solely on the nature of the message being conveyed. In these critical respects, then, the Illinois statute is identical to the ordinance in Mosley, and it suffers from the same constitutional infirmities. When government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized. Police Department of Chicago v. Mosley, 408 U. S., at 98-99, 101; see United States v. O’Brien, 391 U. S. 367, 376-377 (1968); Williams v. Rhodes, 393 U. S. 23, 30-31 (1968); Dunn v. Blumstein, 405 U. S. 330, 342-343 (1972); San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 34, n. 75 (1973). As we explained in Mosley: “Chicago may not vindicate its interest in preventing disruption by the wholesale exclusion of picketing on all but one preferred subject. Given what Chicago tolerates from labor picketing, the excesses of some nonlabor picketing may not be controlled by a broad ordinance prohibiting both peaceful and violent picketing. Such excesses 'can be controlled by narrowly drawn statutes/ Saia v. New York, 334 U. S., at 562, focusing on the abuses and dealing evenhandedly with picketing regardless of subject matter.” 408 U. S., at 101-102. Yet here, under the guise of preserving residential privacy, Illinois has flatly prohibited all nonlabor picketing even though it permits labor picketing that is equally likely to intrude on the tranquility of the home. Moreover, it is the content of the speech that determines whether it is within or without the statute’s blunt prohibition. What we said in Mosley has equal force in the present case: “The central problem with Chicago’s ordinance is that it describes permissible picketing in terms of its subject matter. Peaceful picketing on the subject of a school’s labor-management dispute is permitted, but all other peaceful picketing is prohibited. The operative distinction is the message on a picket sign. . . . Any restriction on expressive activity because of its content would completely undercut the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’ New York Times Co. v. Sullivan, [376 U. S. 254], 270. “Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an ‘equality of status in the field of ideas,’ and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.” Id., at 95-96 (citations and footnote omitted) III Appellant nonetheless contends that this case is distinguishable from Mosley. He argues that the state interests here are especially compelling and particularly well served by a statute that accords differential treatment to labor and non-labor picketing. We explore in turn each of these interests, and the manner in which they are said to be furthered by this statute. A Appellant explains that whereas the Chicago ordinance sought to prevent disruption of the schools, concededly a “substantial” and “legitimate” governmental concern, see id., at 99, 100, the Illinois statute was enacted to ensure privacy in the home, a right which ■ appellant views as paramount in our constitutional scheme. For this reason, he contends that the same content-based distinctions held invalid in the Mosley context may be upheld in the present case. We find it unnecessary, however, to consider whether the State’s interest in residential privacy outranks its interest in quiet schools in the hierarchy of societal values. For even the most legitimate goal may not be advanced in a constitutionally impermissible manner. And though we might agree that certain state interests may be so compelling that where no adequate alternatives exist a content-based distinction— if narrowly drawn — would be a permissible way of furthering those objectives, cf. Schenck v. United States, 249 U. S. 47 (1919), this is not such a case. First, the generalized classification which the statute draws suggests that Illinois itself has determined that residential privacy is not a transcendent objective: While broadly permitting all peaceful labor picketing notwithstanding the disturbances it would undoubtedly engender, the statute makes no attempt to distinguish among various sorts of nonlabor picketing on the basis of the harms they would inflict on the privacy interest) The apparent overinclusiveness and under-inclusiveness of the statute’s restriction would seem largely to undermine appellant’s claim that the prohibition of all non-labor picketing can be justified by reference to the State’s interest in maintaining domestic tranquility. More fundamentally, the exclusion for labor picketing cannot be upheld as a means of protecting residential privacy for the simple reason that nothing in the content-based labor-nonlabor distinction has any bearing whatsoever on privacy. Appellant can point to nothing inherent in the nature of peaceful labor picketing that would make it any less disruptive of residential privacy than peaceful picketing on issues of broader social concern. Standing alone, then, the State’s asserted interest in promoting the privacy of the home is not sufficient to save the statute. B The second important objective advanced by appellant in support of the statute is the State’s interest in providing special protection for labor protests. He maintains that federal and state law has long exhibited an unusual concern for such activities, and he contends that this solicitude may be furthered by a narrowly drawn exemption for labor picketing. The central difficulty with this argument is that it forthrightly presupposes that labor picketing is more deserving of First Amendment protection than are public protests over other issues, particularly the important economic, social, and political subjects about which these appellees wish to demonstrate. We reject that proposition. Cf. T. Emerson, The System of Freedom of Expression 444-449' (1970) (suggesting that nonlabor picketing is more akin to pine expression than labor picketing and thus should be subject to fewer restrictions). Public-issue picketing, “an exercise of . . . basic constitutional rights in their most pristine and classic form,” Edwards v. South Carolina, 372 U. S. 229, 235 (1963), has always rested on the highest rung of the hierarchy of First Amendment values: “The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.” Stromberg v. California, 283 U. S. 359, 369 (1931). See generally A. Meiklejohn, Free Speech and Its Relation to Self-Government (1948). While the State’s motivation in protecting the First Amendment rights of employees involved in labor disputes is commendable, that factor, without more, cannot justify the labor picketing exemption. C Appellant’s final contention is that the statute can be justified by some combination of the preceding objectives. This argument is fashioned on two different levels. In its elemental formulation, it posits simply that a distinction between labor and nonlabor picketing is uniquely suited to furthering the legislative judgment that residential privacy should be preserved to the greatest extent possible without also compromising the special protection owing to labor picketing. In short, the statute is viewed as a reasonable attempt to accommodate the competing rights of the homeowner to enjoy his privacy and the employee to demonstrate over labor disputes. But this attempt to justify the statute hinges on the validity of both of these goals, and we have already concluded that the latter — the desire to favor one form of speech over all others — is illegitimate. The second and more complex formulation of appellant’s position characterizes the statute as a carefully drafted attempt to prohibit that picketing which would impinge on residential privacy while permitting that picketing which would not. In essence, appellant asserts that the exception for labor picketing does not contravene the State’s interest in preserving residential tranquility because of the unique character of a residence that is a “place of employment.” By “inviting” a worker into his home and converting that dwelling into a place of employment, the argument goes, the resident has diluted his entitlement to total privacy. In other words, he has “waived” his right to be free from picketing with respect to disputes arising out of the employment relationship, thereby justifying the statute’s narrow labor exception at those locations. The flaw in this argument is that it proves too little. Numerous types of peaceful picketing other than labor picketing would have but a negligible impact on privacy interests, and numerous other actions of a homeowner might constitute “nonresidential” uses of his property and would thus serve to vitiate the right to residential privacy. For example, the resident who prominently decorates his windows and front yard with posters promoting the qualifications of one candidate for political office might be said to “invite” a counter-demonstration from supporters of an opposing candidate. Similarly, a county chairman who uses his home to meet with his district captains and to discuss some controversial issue might well expect that those who are deeply concerned about the decision the chairman will ultimately reach would want to make their views known by demonstrating outside his home during the meeting. And, with particular regard to the facts of the instant case, it borders on the frivolous to suggest that a resident who invites a repairman into his home to fix his television set has “waived” his right to privacy with respect to a dispute between the repairman and the local union, but that the official who has voluntarily chosen to enter the public arena has not likewise “waived” his right to privacy with respect to a challenge to his views on significant issues of social and economic policy. IV We therefore conclude that appellant has not successfully distinguished Mosley. We are not to be understood to imply, however, that residential picketing is beyond the reach of uniform and nondiscriminatory regulation. For the right to communicate is not limitless. E. g., Cox v. Louisiana, 379 U. S. 536, 554-555 (1965); Cox v. Louisiana, 379 U. S. 559, 563-564 (1965). Even peaceful picketing may be prohibited when it interferes with the operation of vital governmental facilities, see, e. g., ibid, (picketing or parading prohibited near courthouses); Adderley v. Florida, 385 U. S. 39 (1966) (demonstrations prohibited on jailhouse grounds), or when it is directed toward an illegal purpose, see, e. g., Teamsters v. Vogt, Inc., 354 U. S. 284 (1957) (prohibition of picketing directed toward achieving “union shop” in violation of state law). Moreover, we have often declared that “[a] state or municipality may protect individual privacy by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content.” Erznoznik v. City of Jacksonville, 422 U. S. 205, 209 (1975) (emphasis supplied). See, e. g., Cox v. New Hampshire, 312 U. S. 569 (1941); Kovacs v. Cooper, 336 U. S. 77 (1949); Poulos v. New Hampshire, 345 U. S. 395 (1953); Cox v. Louisiana, 379 U. S., at 554; Grayned v. City of Rockford, 408 U. S. 104 (1972). In sum, “no mandate in our Constitution leaves States and governmental units powerless to pass laws to protect the public from the kind of boisterous and threatening conduct that disturbs the tranquility of spots selected by the people either for homes, wherein they can escape the hurly-burly of the outside business and political world, or for public and other buildings that require peace and quiet to carry out their functions, such as courts, libraries, schools, and hospitals.” Gregory v. Chicago, 394 U. S. 111, 118 (1969) (Black, J., concurring). Preserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value. Our decisions reflect no lack of solicitude for the right of an individual “to be let alone” in the privacy of the home, “sometimes the last citadel of the tired, the weary, and the sick.” Id., at 125 (Black, J., concurring). See generally Stanley v. Georgia, 394 U. S. 557 (1969); Rowan v. United States Post Office Dept., 397 U. S. 728 (1970); FCC v. Pacifica Foundation, 438 U. S. 726 (1978); Payton v. New York, 445 U. S. 573 (1980). The State’s interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society. “ ‘The crucial question, however, is whether [the Illinois’ statute] advances that objective in a manner consistent with the command of the Equal Protection Clause.’ Reed v. Reed, 404 U. S. [71], 76 [(1971)].” Police Department of Chicago v. Mosley, 408 U. S., at 99’. And because the statute discriminates among pickets based on the subject matter of their expression, the answer must be “No.” The judgment of the Court of Appeals is Affirmed A violation of § 21.1-2 is a “Class B” misdemeanor punishable by a fine of up to $500 and imprisonment for not more than six months. See Ill. Rev. Stat., ch. 38, §§ 21.1-3, 1005-8-3, 1005-9-1 (1977). At least four other States have enacted antiresidential picketing laws similar in form to this statute. See Ark. Stat. Ann. §§ 41-2966 to 41-2968 (1977); Conn. Gen. Stat. § 31-120 (1979); Haw. Rev. Stat. § 379A-1 (1976); Md. Ann. Code, Art. 27, § 580A (1976). Connecticut’s law has been construed to permit all picketing in a residential area except for labor picketing that is not conducted at the situs of a labor dispute. State v. Anonymous, 6 Conn. Cir. 372, 274 A. 2d 897 (App. Div. 1970); DeGregory v. Giesing, 427 F. Supp. 910 (Conn. 1977) (three-judge court). The Maryland statute was declared unconstitutional by the Maryland Court of Appeals in State v. Schuller, 280 Md. 305, 372 A. 2d 1076 (1977). See also People Acting Through Community Effort v. Doorley, 468 F. 2d 1143 (CA1 1972) (invalidating municipal ordinance virtually identical to the Illinois residential picketing statute); but see Wauwatosa v. King, 49 Wis. 2d 398, 182 N. W. 2d 530 (1971) (upholding validity of similar ordinance). Because the Court of Appeals concluded that the labor dispute exception was not severable from the remainder of the statute, it invalidated the enactment in its entirety. Cf. State v. Schuller, supra, at 318-321, 372 A. 2d, at 1083-1084. The court therefore found it unnecessary to consider the constitutionality under the First Amendment of a statute that prohibited all residential picketing. Brown v. Scott, 602 F. 2d 791, 795, n. 6 (1979). Because we find the present statute defective on equal protection principles, we likewise do not consider whether a statute barring all residential picketing regardless of its subject matter would violate the First and Fourteenth Amendments. Chicago Municipal Code, ch. 193-1 (i) (1968), provided: “A person commits disorderly conduct when he knowingly: “(i) Pickets or demonstrates on a public way within 150 feet of any primary or secondary school building while the school is in session and one-half hour before the school is in session and one-half hour after the school session has been concluded, provided that this subsection does not prohibit the peaceful picketing of any school involved in a labor dispute. . . (Emphasis supplied.) The Illinois residential picketing statute apparently has not been construed by the state courts. Throughout this litigation, however, all parties and the courts below have interpreted the statutory exception for “peaceful picketing of a place of employment involved in a labor dispute” as embodying the additional requirement that the subject of the picketing be related to the ongoing labor dispute. Police Department of Chicago v. Mosley, 408 TJ. S. 92 (1972), was premised upon an identical construction. See id., at 94, n. 2 (statutory exemption for “the peaceful picketing of any school involved in a labor dispute” applies only to labor picketing of a school involved in such a dispute). The District Court read the labor exception in this statute as creating two separate classifications: one between “places of employment” and all other “residences,” and a second between “places of employment involved in a labor dispute” and “places of employment not involved in a labor dispute.” The court held that the first classification was a permissible content-neutral regulation of the location of picketing. And although recognizing that the second distinction may well be based on the subject matter of the demonstration, see n. 4, supra, the court held that appellees lacked standing to challenge it because they were not seeking to picket “a place of employment,” and thus would not have benefitted from a determination that the second classification was unconstitutional. Brown v. Scott, 462 F. Supp. 518, 534-535 (1978). The Court of Appeals, in reversing the District Court, refused to adopt the lower court’s interpretation of the statute. Rather, it read the “place of employment” exception to divide “residences and dwellings” into but two categories — those at which picketing is lawful (i. e., all places of employment involved in labor disputes) and those at which it is unlawful (*. e., all other residences and dwellings). Brown v. Scott, 602 F. 2d, at 793-794. We accept the construction of the Court of Appeals. Appellees sought to picket at a residence and were denied permission to do so. They clearly have standing to attack the statutory classification on which that denial was premised. Indeed, appellant does not challenge the Court of Appeals’ interpretation of the statute, Tr. of Oral Arg. 13, and he concedes that this restriction is content-based, id., at 21. It is, of course, no answer to assert that the Illinois statute does not discriminate on the basis of the speaker’s viewpoint, but only on the basis of the subject matter of his message. “The First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.” Consolidated Edison Co. v. Public Service Comm’n, post, at 537. Mosley was neither the Court’s first nor its last pronouncement that the First and Fourteenth Amendments forbid discrimination in the regulation of expression on the basis of the content of that expression. See Cox v. Louisiana, 379 U. S. 536, 581 (1965) (Black, J., concurring): “Standing, patrolling, or marching back and forth on streets is conduct, not speech, and as conduct can be regulated or prohibited. But by specifically permitting picketing for the publication of labor union views, Louisiana is attempting to pick and choose among the views it is willing to have discussed on its streets. It thus is trying to prescribe by law what matters of public interest people whom it allows to assemble on its streets may and may not discuss. This seems to me to be censorship in a most odious form, unconstitutional under the First and Fourteenth Amendments. And to deny this appellant and his group use of the streets because of their views against racial discrimination, while allowing other groups to use the streets to voice opinions on other subjects, also amounts, I think, to an invidious discrimination forbidden by the Equal Protection Clause of the Fourteenth Amendment.” See also Erznoznik v. City of Jacksonville, 422 U. S. 205, 209, 215 (1975); Hudgens v. NLRB, 424 U. S. 507, 520 (1976); Madison Joint School District No. 8 v. Wisconsin Employment Relations Comm’n, 429 U. S. 167, 175-176 (1976); First National Bank of Boston v. Bellotti, 435 U. S. 765, 784-785 (1978); Consolidated Edison Co. v. Public Service Comm’n, post, at 536-538. The importance which the State attaches to the interest in maintaining residential privacy is reflected in the Illinois Legislature’s finding accompanying the residential picketing statute: “The Legislature finds and declares that men in a free society have the right to quiet enjoyment of their homes; that the stability of community and family life cannot be maintained unless the right to privacy and a sense of security and peace in the home are respected and encouraged; that residential picketing, however just the cause inspiring it, disrupts home, family and communal life; that residential picketing is inappropriate in our society, where the jealously guarded rights of free speech and assembly have always been associated with respect for the rights of others. For these reasons the Legislature finds and declares this Article to be necessary.” IE. Rev. Stat., ch. 38, §21.1-1 (1977). Cf. Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 29 (quoted in Young v. American Mini Theatres, Inc., 427 U. S. 50, 67, n. 27 (1976) (opinion of Stevens, J.)): “If some groups are exempted from a prohibition on parades and pickets, the rationale for regulation is fatally impeached.” See also Police Department of Chicago v. Mosley, 408 U. S., at 100; Village of Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 638-639 (1980). See generally 29 U. S. C. § 141 et seq,; Thornhill v. Alabama, 310 U. S. 88 (1940); AFL v. Swing, 312 U. S. 321 (1941). Appellant does not go so far as to suggest that the National Labor Relations Act preempts the State from enacting a law prohibiting the picketing of residences involved in labor disputes. Such an argument has dubious merit. See Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132, 136, and n. 2 (1976). See Ill. Rev. Stat., ch. 48, § 2a (1977), which provides: “No restraining order or injunction shall be granted by any court of this State ... in any case involving or growing out of a dispute concerning terms or conditions of employment, enjoining or restraining any person or persons, either singly or in concert, . . . from peaceably and without threats or intimidation being upon any public street, or thoroughfare or highway for the purpose of obtaining or communicating information, or to peaceably and without threats or intimidation persuade any person or persons to work or to abstain from working, or to employ or to peaceably and without threats or intimidation cease to employ any party to a labor dispute, or to recommend, advise, or persuade others so to do.” We note that the statute’s labor dispute exemption is overbroad in this respect, for it not only protects the rights of the employee to picket the residence of his employer, but it also permits third parties to picket both the employer and his employee, even when there is no dispute between those individuals. As appellant’s counsel explained at oral argument: “[T]he labor dispute could exist even if the employee wasn’t part of the dispute. For example, if you have a condominium that employs non-union janitors and the non-union janitor is perfectly happy to be there, conceivably union janitors could engage in picketing, very much like a traditional labor law cane.” Tr. of Oral Arg. 14. An alternative justification for the statute — one not pressed by appellant — is that it is intended to protect privacy in the home, but only insofar as that objective can be accomplished without prohibiting those forms of speech that are peculiarly appropriate to residential neighborhoods and cannot effectively be exercised elsewhere. Since labor picketing arising out of disputes occurring in residential neighborhoods can only be carried out in those neighborhoods, the argument would continue, it is permitted under the statute while other forms of picketing, for which suitable alternative forums will generally exist, are barred. Even assuming that a content-based distinction might in some cases be permissible on these grounds, but see Schneider v. State, 308 U. S. 147, 163 (1939) (“one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place”), this is not such a case because the Illinois statute is seriously underinclusive in this respect. It singles out for special protection only one of the many sorts of picketing which must be carried out in residential neighborhoods or not at all. Protests arising out of landlord-tenant relationships, zoning disputes, and historic preservation issues are just some of the many demonstrations that bear a direct relation to residential neighborhoods. See generally Comment, Picketers at the Doorstep, 9 Harv. Civ. Rights-Civ. Lib. L. Rev. 95, 101-102, 106 (1974). Indeed, appellees themselves assert that they want to engage in residential picketing because it is the only effective means they have of communicating their concern about the issue of busing to the desired neighborhood audience. Yet the Illinois statute bars all of these groups from picketing in residential areas while those wishing to picket at the site of a labor dispute are permitted to do so. See supra, at 461-462. See n. 12, supra. Cf. Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974). Mr. Justice Goldberg’s opinion for the Court in the first Cox case stated: “The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy.” 379 U. S., at 554. 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_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 NESBIT et al. v. FREDERICK SNARE CORPORATION. No. 6933. United States Court of Appeals for the District of Columbia. Argued Jan. 13, 1938. Decided March 7, 1938. Roger O’Donnell, of Washington, D.C., for appellants. Brice Clagett and Challen B. Ellis, both of Washington, D. C., for appellee. Before GRONER, Chief Justice, and STEPHENS, and MILLER, Associate Justices. GRONER, C. J. Appellee Frederick Snare Corporation entered into a written agreement August 29, 1922, with Clarence W. DcKnight, an attorney then in practice in the city of Washington, providing among other things for the rendition of services by DeKnight to the corporation in prosecuting a claim of the latter against the United States in return for a contingent fee of 10 per centum. DeKnight brought suit in behalf of the corporation in the United States Court of Claims and procured a decision in favor of the corporation for the sum of $16,503.40, but by a subsequent decision, 75 Ct.Cl. 326, rendered June 6, 1932, the court reduced the amount of the award to $5,474.50, which was later paid and is not now in controversy. On June 22, 1932, DeKnight and the corporation, being dissatisfied with the results so far obtained, entered into another written agreement covering proposed further proceedings in the Court of Claims, the Supreme Court of the United States, “and/or elsewhere.” The last agreement provided: “that the Attorney [DeKnight] shall receive in full satisfaction for all services rendered or to be rendered in connection with the aforesaid súit and/or claim a sum equal to one-half or 50% of the amount over $5474.-50 that is ultimately recovered or realized (together with such costs and disbursements as may be awarded against the defendant in said suit, the United States of America) * * * » After the making of this agreement DeKnight applied to the Supreme Court for certiorari to the Court of Claims, which was denied. Snare & Triest Co. v. U. S., 299 U.S. 742, 53 S.Ct. 687, 77 L.Ed. 1489. He thereupon advised the corporation that he expected to have introduced a bill in Congress to obtain the relief which had been denied in the courts. The corporation in a letter to DeKnight under date of May 10, 1933, concurring in his recommendation, advised him as follows: “After all the decisions against you in this case, we naturally cannot feel very hopeful at the outcome of your effort to secure relief from Congress. We assume, however, that any time or expense in connection with your efforts to secure Congressional relief will be on the basis of our last agreement with you dated June 22, 1932. In other words, that there should be a fifty-fifty division of any sums collected by reason of your success in getting Congress to recognize our claim, but that all-expenses in connection with this further effort shall be for your account. “You have had a long hard road in connection with this claim, and I know we both feel the final decision has been very unfair to us, and therefore to you, and is based on legal technicalities rather than on real justice. We want to thank you for all the work you have done in the matter, and will await your further reply before writing to Mr. Clark.” DeKnight did have a bill introduced in Congress which after passage was approved by the President May 26, 1936, and as a result of which the corporation received from the United States in full settlement of its claim the sum of $83,978.05. The corporation immediately paid to DeKnight 10 per. centum of this amount, or $8,397.80, but declined to pay the balance on the sole ground that to do so would be contrary to the provisions of the act of Congress just above referred to and would render it guilty of a misdemeanor. DeKnight (who is now represented by the executors of his estate) brought this suit to recover the sum of $33,591.22 which, together with the $8,-397.80 paid him, would equal 50 per centum of the amount paid the corporation by the United States. The corporation filed a plea setting up the fact that.after payment to DeKnight of 10 per centum of the amount received from the United States it thereupon commingled the balance of that fund with its own funds and that any payment now to be made to the plaintiff would be made out of the common fund of which the money received from the United States is a part and that this would be contrary to the provisions of the act of Congress. The act of Congress is as follows, Act May 26,'1936, 49 Stat. 2304: “An Act for the relief of the Snare and Triest Company, now Frederick Snare Corporation. “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Treasury be, and he is hereby, authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, to the Snare and Triest Company, now Frederick Snare Corporation, the sum of $83,978.05, in full settlement of all claims against the Government of the United States, for damages for delay in carrying out its contract with the Navy Department, Numbered 3762, and agreements supplemental thereto for waterfront improvements, piers, and breakwater, at the submarine base, Key West, Florida, as reported January 13, 1925, by a board of which Rear Admiral H. H. Rousseau, Civil Engineer Corps, United States Navy, was senior member: Provided, That no part of the amount appropriated in this Act in excess of 10 per centum thereof shall he paid or delivered to or received by any agent or agents, attorney or attorneys, on account of services rendered in connection with said claim. It shall be unlawful for any agent or agents, attorney or attorneys, to exact, collect, withhold, or receive any sum of the amount appropriated in this Act in excess of 10 per centum thereof on account of services rendered in connection with said claim, any contract to the contrary notwithstanding. Any person violating the provisions of this Act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not exceeding $1,000.” The decision in the case turns on the meaning of the statute. DeKnight’s executors contend that it merely forbids payment of money which is definitely a part of the money appropriated and paid by Congress. The corporation contends that it forbids payment of any sum to plaintiff in excess of 10 per centum of the amount received by the corporation without regard to whether the payment is the particular money paid by the United States or not. It is not questioned in this case that the contract of employment was in all respects legal and valid. Nor is it questioned that the services to be rendered were in fact rendered or that the corporation was the beneficiary of the services. We, therefore, conclude that the contract created a legal obligation upon the part of the corporation which, if not recognized after the collection of the money and, if not prohibited by the Act of Congress, can be enforced by suit for the benefit of DeKnight’s estate. Nutt v. Knut, 200 U.S. 12, 26 S.Ct. 216, 50 L.Ed. 348; McGowan v. Parish, 237 U.S. 285, 35 S.Ct. 543, 59 L.Ed. 955. And this brings us to an interpretation of the language of the act. There are, so far as we are advised, only two decisions of the Supreme Court which may be said to throw any helpful light upon this question. The first is Capital Trust Co. v. Calhoun, 250 U.S. 208, 39 S.Ct. 486, 488, 63 L.Ed. 942. In that case Calhoun, a lawyer, brought suit against the administrator of Thomas N. Arnold who prior to his death had a claim against the United States. Calhoun and Arnold had entered into a contract in which the former undertook the prosecution of the claim- in consideration of a fee equal in amount to 50 per centum of whatever sum of money should be awarded or collected on the claim. There, as here, the attorney had a bill introduced in Congress for its payment; and there, as here, Congress appropriated the money and Arnold’s estate received it. And there, as here, the estate declined payment of more than the act of Congress designated, and there suit was brought by Calhoun to impose a lien upon the money in the hands of Arnold’s administrator received from the United States government. That case differed from this in that there was no other property belonging to the estate out of which a judgment could be paid. The appropriation to Arnold was contained in the Omnibus Claims Act of March 4, 1915, 38 Stat. 996. The language of the act is as follows: “No part of the amount * * * appropriated in this bill in excess of 20 per centum thereof shall be paid or delivered to or received by any * * * attorney * * * on account of services rendered or advances made in connection with said claim.” Section 4. And except for the words “or advances made” is identical down to this point with the language of the act we are construing. The act then continued: “It shall be unlawful for any * * * attorney * * * to exact, collect. withhold or receive any sum which in the aggregate exceeds twenty per centum of the amount * * * - appropriated in this bill on account of services rendered * -* * in connection with said claim, any contract to the contrary notwithstanding.” The Supreme Court in the Calhoun Case, in a paragraph which as the case subsequently turned out, was unnecessary to the decision, said: “If the judgment [the judgment of the lower court] only establishes a claim against the administrator to be satisfied, not out of the moneys received from the United States but from other assets of the estate, a situation is presented which it was said in Nutt v. Knut, 200 U.S. 12, 21, 26 S.Ct. 216, 50 L.Ed. 348, would not encounter legal objection. In other words, the limitation in the act appropriating the money to 20 per cent, as the amount to be paid to an agent or attorney would have no application or be involved. If we can accept this language as establishing a guide to the interpretation of the act here, the case would present little difficulty, for here as we have shown the suit is against the corporation and DeKnight’s executors are not asserting a lien against any money received from the United States or any right to have that sum earmarked and held apart for the payment of his fee. All that they assert is a legal obligation on the part of the corporation to pay out of its general funds the amount agreed. The congressional prohibition is certainly as clearly stated in the Omnibus Claims Act as in the act we are concerned with, and if it applied in ’ the Omnibus Act only to the money appropriated by Congress, it would certainly go no farther here. But a year later in Calhoun v. Massie, 253 U.S. 170, at page 175, 40 S.Ct. 474, 475, 64 L.Ed. 843, a similar case involving the same congressional language, the Supreme Court changed its View as we read the opinion, and construed the prohibition to forbid the payment of counsel fees in excess of the per centum provided in the act, either out of the specific fund appropriated or any other funds of the‘claimant. That our interpretation'of the language of the opinion is correct is strengthened by the dissenting opinion of Mr. Justice McReynolds at the bottom of page 178 and the top of page 179 of 253 U.S., 40 S.Ct. 474, 477, 64 L.Ed. 843. We, therefore, have no hesitation in concluding that if the provisions of the two acts were identical there could be no recovery in this case, either out of the specific money paid by the United States or any other money of the corporation. But there is a difference in the wording of the two acts, and this brings us to a consideration of the particular language used by Congress in making the appropriation in this case. In this act, as in the Omnibus Act as we have pointed out, the language is that no part of the amount appropriated in excess of 10 (20 per centum in Omnibus Act) per centum shall be paid, delivered, or received by the attorney. The difference occurs in the next sentence. In the present act the sentence is, “It shall be unlawful for any attorney to exact, collect, withhold, or receive any sum of the amount appropriated in this Act in excess of 10 per centum thereof.” In the Omnibus Act the sentence is, “It shall be unlawful for any attorney to exact, collect, withhold or receive any sum which in the aggregate exceeds 20 per centum of the amount appropriated in this bill.” This language, Mr. Justice Brandéis in the second Calhoun Case, 253 U.S. 170, 40 S.Ct. 474, 64 L.Ed. 843, said, -meant that the attorney should -not receive any sum which in the aggregate exceeded 20 per centum of the claim and he italicized the word “aggregate”; but in the present act the words “in the aggregate” are absent. Instead, the words are, “It shall be unlawful * * * to receive any sum of the amount appropriated * * * in excess of 10 per centum thereof.” This sentence is grammatically awkward, and the word “sum” is at least ambiguous. Ordinarily one does not speak of a sum of an amount. Appellants insist that any sum means any quantity of money, and that the act prohibits receiving any quantity of money out of the amount appropriated in excess of 10 per centum thereof. This is a permissible construction of the language, but it is not the only one possible. It is just as permissible to argue that it means any quantity of money on, that is to say, based on, the amount appropriated. Presumably the Supreme Court in the first Calhoun Case, 250 U.S. 208, 39 S.Ct. 486, 63 L.Ed. 942, read the words, “20 per centum of the amount,!' to mean out of the amount; and presumably the Supreme Court in the second Calhoun Case read the same words to mean, “based on the amount.” There are clearly two possible meanings of the sentence, “which may best be illustrated by simply transposing the words or phrases.” For example, the sentence may be transposed to read, “It shall be unlawful to receive [,] of the amount appropriated [,] any sum in excess of 10 per centum thereof.” On the other hand, the sentence may be transposed to read, “It shall be unlawful to receive any sum in excess of 10 per centum [thereof] of the amount appropriated.” In the first revised sentence what is unlawful is receiving from the amount appropriated more than 10 per centum thereof. In the second revised sentence what is unlawful is receiving a fee greater than the stipulated per centum, and in this instance the amount appropriated is not the source of payment but is instead only the basis of computation. Thus the ambiguous language of the act can be turned about into two sentences of positive and directly opposite meaning. In this view we are thrown back on an effort to ascertain the congressional intent. It is a matter of which we take judicial notice that in a very large proportion of all similar bills there is invariably a limitation on the amount of fee which an agent or an attorney may receive. The present form, we were told by counsel in the argument, is the standard form which is used more or less mechanically in the case of all bills' appropriating money by way of bounty or in settlement of claims against the government; and it has been stated by the courts' in interpreting such a provision that it grows out oí the necessity of protecting the citizen seeking the bounty of the government from imposition and extortion and of protecting the government against false, fictitious, or greatly magnified claims worked up by agents who have contracted for, or expect to get, a large share of the claim that may be allowed. United States v. Van Leuven, D.C., 62 F. 52, 56. The first of the reasons has no applicability here, but the last has real significance; and this was particularly true as the result of conditions growing out of the World War, when the government was faced with loss and damage claims of very large amount as to which it was said there was a moral, if not a legal, liability to make reimbursement. Mr. Justice Brandéis in the second Calhoun Case said: “For nearly three-quarters of a century Congress has undertaken to control in some measure the conditions under which claims against the government may be prosecuted. Its purpose has been in part to protect just claimants from extortion or improvident bargains and in part to protect the treasury from frauds and imposition. See United States v. Van Leuven, D.C., 62 F. 52, 56. While recognizing the common need for the services of agents and attorneys in the presentation of such claims and that parties would often be denied the opportunity of securing such services if contingent fees were prohibited, Taylor v. Bemiss, 110 U.S. 42, 45, 3 S.Ct. 441, 28 L.Ed. 64, Congress has manifested its belief that the causes which gave rise to laws against champerty and maintenance are persistent. By the enactment from time to time of laws prohibiting the assignments of claims and placing limitations upon the fees properly chargeable for services Congress has sought both to prevent the stirring up of unjust claims against the government and to reduce the temptation to adopt improper methods of prosecution which contracts for large fees contingent upon success have sometimes been supposed to encourage.” Applying this statement and its reasoning to the present case, and having in mind also what we think are the proper inferences to be drawn from the whole opinion in the second Calhoun Case under language similar though not identical, we have reached the conclusion that the congressional policy and purpose is to forestall champertous contracts and to defeat contracts for exorbitant contingent fees and not simply to declare that the government pays claims, but not attorneys' fees. In other words, Congress declares a public policy against high contingent fees on claims which are only collectible by the grace of the government. We think, therefore, that here the congressional purpose may be effectuated by transposing the language of the act to read, “It shall be unlawful to receive, etc., any sum in excess of 10 per centum of the amount appropriated.” In that view we are in accord with the judgment below. 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_procedur	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. DUNN et al. v. JEFFERSON STANDARD LIFE INS. CO. No. 9950. Circuit Court of Appeals, Fifth Circuit. Nov. 19, 1941. Motion to Retax Costs Denied Jan. 19, 1942. See 125 F.2d 98. Walter F. Brown, of Houston, Tex., for appellants. Gaius G. Gannon, of Houston, Tex., for appellee. Before HUTCHESON, HOLMES, and McCORD, Circuit Judges. PER CURIAM. A careful examination of the entire record before the court without regard to “technical errors, defects, or exceptions which do not affect the substantial rights of the parties”, as required by Section 391, 28 U.S.C.A., makes it dear that the proceedings in the court below were conducted in strict accordance with Rule 61, Federal Rules, Civil Procedure, 28 U.S.C.A. following section 723c, which requires “the court at every stage of the proceeding must disregard any error or defect * * * which does not affect the substantial rights of the parties”, and that the judgment must be affirmed. 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:
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. DE SOTO SECURITIES COMPANY, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 11687. United States Court of Appeals Seventh Circuit. Aug. 9, 1956. William A. McSwain, Chicago, III., Percy B. Eckhart, James O. Silliman, Chicago, 111., Eckhart, Klein, McSwain & Campbell, Chicago, 111., of counsel, for petitioner. Charles K. Rice, Asst. Atty. Gen., Davis W. Morton, Jr., Attorney, Tax Division, U. S. Dept, of Justice, Washington, D. C., Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, Harry Baum, Attorneys, Department of Justice, Washington, D. C., for respondent. Before FINNEGAN, LINDLEY and-SCHNACKENBERG, Circuit Judges. SCHNACKENBERG, Circuit Judge. Petitioner asks us to reverse a decision of the Tax Court which sustained respondent’s determination of a deficiency of $16,964.29 in the personal holding company surtax of petitioner for the fiscal year ending June 30, 1950. The Tax Court’s opinion found all of the facts as the parties stipulated them. During the fiscal year in question petitioner was a personal holding company. In addition to the federal income taxes accrued as of June 30, 1950, petitioner paid out of net income during the fiscal year ending on that date federal income taxes amounting to $54,002.83, all of which accrued in prior years. Petitioner deducted said amount in computing subchapter A net income for the fiscal year in question. Respondent disallowed that deduction and this litigation followed. In computing its subchapter A net income in each of the said prior years, petitioner deducted only federal income-taxes paid during each such year and it did not deduct any federal income taxes accrued but not paid during said prior-years. For the fiscal year ending June 30, 1950 petitioner filed its corporation income tax and personal holding company returns on a cash basis. The contested issue is whether taxpayer in computing its subchapter A net income, may deduct, under § 505(a) (1) of the Internal Revenue Code of 1939, federal income taxes paid during its fiscal year ended June 30, 1950 in. satisfaction of its tax liabilities for pri- or taxable years. 1. Section 505 of the Internal Revenue act of 1939 reads in its pertinent parts as follows: “For the purposes of this sub-chapter the term ‘Subchapter A Net Income’ means the net income with the following adjustments: “(a) Additional deductions. There shall be allowed as deductions— “(1) Federal income, war-profits, and excess-profits taxes paid or accrued during the taxable year to the extent not allowed as a deduction under section 23; but not including the tax imposed by section 102, section 500, or a section of a prior income-tax law corresponding to either of such sections. * * * ” (Emphasis supplied.) Counsel show concern about real or seeming conflicts in several cases dealing with the foregoing statutory language. They are Clarion Oil Co. v. Commissioner, 1 T.C. 751; Commissioner of Internal Revenue v. Clarion Oil Co., 80 U.S.App.D.C. 41, 148 F.2d 671, certiorari denied 325 U.S. 881, 65 S. Ct. 1575, 89 L.Ed. 1997; Oak Commercial Corp. v. Commissioner (Aramo-Stiftung v. Commissioner), 9 T.C. 947; Aramo-Stiftung v. Commissioner of Internal Revenue, 2 Cir., 172 F.2d 896; Joan Carol Corp. v. Commissioner, 13 T. C. 83; Joan Carol Corporation v. Commissioner of Internal Revenue, 2 Cir., 180 F.2d 751; Loetscher Co. v. Birmingham, D.C., 95 F.Supp. 892, affirmed 8 Cir., 188 F.2d 78, and Wm. J. Lemp Brewing Co. v. Commissioner, 18 T.C. 586. Under these circumstances, we shall resort to basic principles of statutory construction, relying on the reasoning of the cited cases insofar as it aids us. We shall attempt to ascertain the intention of congress by considering all the words used in § 505(a) (1), as well as significant language in other parts of the act. Courts have no right, in the guise of construction of an act, to either add words to or eliminate words from the language used by congress. We may also consider pertinent legislative history pertaining to events both before and after the passage of the act being construed. We have no right to first determine the legislative intention and then proceed to change the words used in an attempt to justify the predetermined conclusion. Section 505(a) (1) uses the words “paid or accrued”. The Tax Court’s decision has in effect construed the phrase “paid or accrued” so as to eliminate the word “paid”. We will not excide “paid” or any other word which congress placed in the act. We shall determine the intention of congress in conformity with the words it has used and not in the face of those words. The courts can only interpret congressional acts. They cannot legislate. After the respondent was led by his reading of court decisions to the conclusion that the statutory language failed to correctly state the intention of congress, he should have called the attention of congress to the matter. In the meantime he was bound by what congress said and he had no right to substitute as the law what he thought congress intended to say. The use of the words “paid or accrued” as found in § 505(a) (1) is not the only expression in the Revenue act of 1939 of the thought embodied in those words. The act makes frequent use of the terms “paid or accrued” and “paid or incurred”. The only difference in meaning is that “accrued” relates to the incidence of a tax or interest obligation, while “incurred” relates to the incidence of any other obligation. In § 23 of subchapter B of chapter 1 of the act allowable deductions for the purpose of computing net income are set forth. Specifically, in § 23(a) (1) (A), all ordinary and necessary expenses “paid or incurred” during the taxable year in carrying on any trade or business are mentioned; in § 23(a) (2), in the case of an individual, all such expenses “paid or incurred” during the taxable year for the production or collection of income, or for the management, conservation, or maintenance of property held for the production of income, are referred to; while in § 23(b), interest “paid or accrued” within the taxable year on indebtedness is referred to. Moreover, in § 23(c) (1) taxes “paid or accrued” within the taxable year, with certain exceptions, are mentioned. The presence of both “paid or accrued” and “paid or incurred” is explained by § 41 and § 48(c), which permit the taxpayer to compute its income in accordance with the methods of accounting regularly employed by it in keeping its books. Thus, it generally has a right to keep its books upon either a cash basis or an accrual basis, and it may make its return of net income under whichever method it has adopted. The above cited provisions of the act applicable in respect to taxes imposed by chapter 1, are, by Title 26 U.S.C.A. § 508, made applicable to the taxes imposed by subchapter A of chapter 2, dealing with personal holding companies. Sec. 508 reads: “All provisions of law (including penalties) applicable in respect of the taxes imposed by chapter 1, shall insofar as not inconsistent with this subchapter, be applicable in respect of the tax imposed by this subchapter, except that the provisions of section 131 shall not be applicable.” While § 131 is not pertinent to this case, the use in that section of the words “paid or accrued” with reference to taxes paid to foreign countries and possessions of the United States, evidences the uniformity characterizing the repeated use by congress of those words. The effect of these 1939 statutory provisions is that a personal holding company is permitted to make returns on the basis of the method of accounting which it employs. If it uses the cash receipts basis, as did the taxpayer in this case, its allowable deductions include taxes paid within the taxable year for which the return is made, regardless of when the taxes then paid accrued. While § 508 by its terms eliminates from its scope any provisions of law applicable in respect of taxes imposed by chapter 1 inconsistent with subchapter Á of chapter 2, no inconsistency exists between §§ 41 and 48(c) and §'505(a) (1). This conclusion is strengthened by the position taken by congress itself in enacting the Internal Revenue Code of 1954. While in so doing, congress eliminated the words “paid or” from the act, and in effect eliminated the right to deduct taxes paid during the taxable year but before then accrued, it went further and provided in said act: “A taxpayer which, for each taxable year in which it was subject to the tax imposed by section 500 of the Internal Revenue Code of 1939, deducted Federal income and excess profits taxes when paid for the purpose of computing subehapter A net income under such Code, shall deduct taxes under this paragraph when paid, unless the taxpayer elects, in its return for a taxable year ending after June .30, 1954, to deduct the taxes described in this paragraph when accrued. Such an election shall be irrevocable and shall apply to the taxable year for which the election is made and to all subsequent taxable years.” (Emphasis supplied.) In other words, until such a taxpayer elects to do otherwise, it may continue to follow the course theretofore pursued by it and figure its deduction in computing its subchapter A income on the basis of federal taxes paid during the taxable year. In granting this right of election congress clearly indicated that there is no inconsistency between such a method of computing deductions, based on Title 26 U.S.C.A. §§ 41 and 48(c), and the provisions of subchapter A. Thus congress itself in enacting the 1954 Revenue Code recognized the consistency of personal holding companies utilizing as a deduction payments of taxes during a taxable year, regardless of when those taxes accrued. Accordingly, the decision of the Tax Court is reversed. Judge FINNEGAN concurs in this result. . 25 T.C. 175. . This amount was allowed as a deduction in the computation of petitioner’s sub-chapter A net income, and no question as to that deduction is involved in this case. . Ch. 2, subchapter A, 26 U.S.O.A. § 500 et seq. . 26 U.S.C.A. § 505. . 26 U.S.C.A. § 23. . 26 U.S.C.A. § 41. “The net income shall be computed * * * in accordance with the method of accounting regularly employed in keeping the books of such taxpayer; * * . 26 U.S.C.A. § 48(c). “The terms ‘paid or incurred’ and ‘paid or accrued’ shall be construed according to the method Of accounting upon the basis of which the ■net income is computed under this Part.” . 26 U.S.C.A. § 545(b) (1). . The Senate Finance ■ Committee. Report accompanying the 1954 Code stated in this connection, S.Rep. No. 1622, 83d Cong., 2d Sess., pp. 74-75, 320, 3 U.S.C. Cong. & Adm.News, 1954, pp. 4621, 47C6-4707, 4960. “In the computation of undistributed income subject to the personal holding company tax, the deduction for taxes has been clarified by the House and your committee to provide that taxes are to be deducted when accrued. Under existing law there has been considerable confusion as to whether taxes may be deducted in the year paid or in the year accrued. Both versions of the bill permit taxpayers who have been deducting taxes when paid to continue to do so but such taxpayers may, if they so desire, make an irrevocable election at any time to change to the accrual method. ***** “In allowing a deduction only for taxes accrued, the committee recognizes that some corporations on the cash basis have consistently deducted, in returns filed for prior taxable years, only those taxes which have been paid during such years. Such corporations may continue to so deduct only the taxes paid during the taxable year. However, such a corporation may deduct only the taxes accrued during the taxable year if it so elects on its return filed for such year. An election once made in a return is irrevocable for such year and the accrual method of deducting taxes applies to all subsequent taxable years.” (Emphasis supplied.) 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_respond1_1_3	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. COHEN v. METROPOLITAN LIFE INS. CO. No. 8585. Circuit Court of Appeals, Third Circuit. Argued June 20, 1944. Decided Sept. 22, 1944. Edmund J. Canzona, of Red Bank, N.J. (Parsons, Labrecque & Borden, of Red Bank, N.J., on the brief), for appellant. Augustus C. Studer, Jr., of Newark, N. J. (McCarter, English & Egner, of Newark, N.J., on the brief), for appellee. Before BRATTON and GOODRICH, Circuit Judges, and KIRKPATRICK, District Judge. KIRKPATRICK, District Judge. This is an appeal from a summary judgment for the defendant in an action for accidental death benefits, by the beneficiary in three contracts of life insurance. The only question involved is whether the plaintiff has complied with the conditions of the policy relating to the furnishing of due proof of the death of the insured by accidental means. In passing upon the motion, the court had before it the pleadings, the plaintiff’s answer to the defendant’s request for admissions, to which was annexed a proof of death in the form of questions and answers together with the physician’s statement in the same form, the affidavit of the defendant’s general counsel and the affidavit of the plaintiff herself. From this, evidence, which discloses no conflict on essential points, the facts appear to be as follows: The three policies were for different amounts but were otherwise alike. Attached to each was an “Accidental Death Benefit” supplementary contract or rider providing for payments in double the amount of the policy in the event of the insured’s death by accidental means. The insured died August 17, 1938. The defendant paid the face amount of each policy but not the accidental death benefit. Within two or three weeks after her husband’s death, the plaintiff had several conversations with the defendant’s agent at Freehold, New Jersey, during which she “explained to (him) the manner in which my husband met with his accident and told him that my husband’s death was the result of the accident of July 29, 1938.” Shortly thereafter she accompanied the agent to the district office of the defendant at Freehold where she had a long interview with a person introduced to her by the agent as the manager, in the course of which she stated that “my husband had met with an accident in Lakewood, New Jersey, on July 29, 1938 and that the accident was the direct cause of his death.” The manager told her that the policies were still in the contestable stage and advised her that if she made claim for accidental death benefits the Company might refuse to pay anything. She never gave the defendant any cause other than accident for the death of her husband. Subsequently, she submitted a written proof of death on one of the Company’s forms in which the question “Cause of death” was not answered. The physician’s statement submitted at the same time contains the following questions and answers: “What was the immediate cause of death? 1. Mesenteric thrombosis. 2. Duodenal ulcer perforated.” “Was the death due to suicide, homicide or accident?” “No.” Neither in the body of the policy nor in the supplementary contract is there any requirement that the proof of death be in writing or under oath. Consequently no objection can be taken to the form in which proof was made — an unsworn oral statement of the facts. Levine v. New York Insurance Co., 155 Misc. 806, 280 N.Y.S. 468. The learned Judge of the District Court put his entry of judgment for the defendant upon two grounds; first, that the plaintiff’s proof was not submitted at the home office in New York but at a district office in Freehold, New Jersey, and second, that the plaintiff’s oral statement did not sufficiently show death resulting solely through external, violent and accidental means, independently of all other causes, and did not expressly negative disease as a contributing cause. We are of the opinion that it was not necessary for the plaintiff to submit her proof of death at the home office of the Company in New York City. The supplementary contract provides that the Company will pay the additional benefits “upon receipt, at the Home Office of the Company in the City of New York, of due proof,” etc. The body of the policy contains no condition that the beneficiary must submit the proof of death to the Company at its home office but says merely that the Company will pay at its home office, upon receipt of due proof, without specifying where the proof may be received. Upon the back of the policy is a notice to the policyholder which says, “In the event of death of the Insured, the Claimant should promptly advise the Home Office or the District Office through which premium payments have been made.” The supplementary contract in this case does not supersede or eliminate any of the general terms of the policy, but on the contrary expressly incorporates them into it. Conflict between it and the body of the policy can be avoided if the clause in the supplementary contract, relating to receipt of proof at the home office, be taken to mean that the Company will pay the double indemnity benefits only after the claim has been passed upon at its home office. In other words, the district offices have no right to pass upon the validity of accidental death claims but are to transmit the proofs to the home office for determination there. We consider this the fair interpretation of the provision, but if it should be given the interpretation for which the defendant contends the conflict with the notice to policyholders displayed on the back of the policy would create an ambiguity which we should resolve in favor of the insured. The conclusion is that the plaintiff complied with the requirements of the policy as to the place of proof by making her statement at the defendant’s district office at Freehold, New Jersey. As to the remaining point, we think that the evidence shows that the proof of accidental death submitted by the plaintiff was a sufficient compliance with the requirement of the supplementary contract. It will be noted that the provision in question calls for due proof of the death of the insured, “as the result, directly and independently of all other causes, of bodily injuries sustained solely through external, violent and accidental means.” It does not say that the proof must negative suicide or disease as contributing causes. That is a condition to recovery, but the preliminary proof need not be cast in a form which expressly excludes those causes. Nor do we think that the provision of the contract means that the proof must be in complete detail and conform with particularity to the words of the insuring clause. Those words have, through long litigation, become practically words of art, and their precise implications have been the subject of many conflicting judicial decisions. The notice to policyholders advises that it is not necessary to employ an attorney to collect the insurance, but the ordinary layman would certainly need a lawyer to file the kind of proof of death which the defendant argues is necessary. The plaintiff’s affidavit, not contradicted, shows that she told the defendant’s manager that the accident was the direct cause of her husband’s death. This was in the course of a long conversation with the manager and the agent to whom she had already explained the manner in which her husband met with the accident, and it is certainly a reasonable inference that the facts of the accident were discussed at that time. Her affidavit also states that she never gave any cause other than accident. We do not think it important that, later, in a proof of death on a Company form, the question “Cause of death” was not answered. If the plaintiff’s oral statement heretofore made was sufficient, the fact that she did not answer that question was unimportant. Furthermore, in view of what the manager told her, it may well be that the reason for her failure to do so was due to her desire to have the face of the policy paid promptly and not incur the risk of a contest upon the whole policy, which the manager had suggested might occur if she made a claim for the double indemnity. The law of New Jersey governs, but no decision of a court of New Jersey ruling the question involved has been cited, and we have found none. In Dikowski v. Metropolitan Life Ins. Co., 128 N.J.L. 124, 24 A.2d 173, 174, a very recent case, the Court of Errors and Appeals of New Jersey said: “There appears to be no reported case in this state passing upon the question of submitting proof of death by accidental means as a condition to recovery under a double indemnity clause in a life insurance policy.” The policy under consideration in that case was similar to those before the court in this appeal but the question before •the court was not the sufficiency of proof submitted but whether failure to submit any proof whatever was fatal to the plaintiff’s case. The court held that it was, and the only point decided which has any bearing upon the present case is that the submission of proofs of some kind was a condition precedent to a right of recovery — a matter fully conceded by the present plaintiff. The judgment of the District Court is reversed and the cause remanded for further proceedings in accordance with this opinion. . Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_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. M.J. WHITMAN & CO., INC. PENSION PLAN, Plaintiff-Appellant, v. AMERICAN FINANCIAL ENTERPRISES, INC., American Financial Corporation, Carl H. Lindner, Robert D. Lind-ner, Julius S. Anreder, James E. Evans, David M. Gerstein, Sandra W. Heimann, S. Craig Lindner, Lester W. Rubin, and Ronald F. Walker, Defendants-Appel-lees. No. 83-3012. United States Court of Appeals, Sixth Circuit. Argued Nov. 17, 1983. Decided Jan. 17, 1984. Gene Mesh, Cincinnati, Ohio, Sidney B. Silverman, argued, Silverman & Harnes, New York City, for plaintiff-appellant. Louis F. Gilligan, Cincinnati, Ohio, James E. Burke, argued, for defendants-appellees. Before KEITH and KENNEDY, Circuit Judges, and PRATT, District Judge. Honorable Philip Pratt, United States District Court for the Eastern District of Michigan, Southern Division, sitting by designation. CORNELIA G. KENNEDY, Circuit Judge. M.J. Whitman & Co., Inc. Pension Plan (Whitman), a shareholder in American Financial Enterprises, Inc. (AFEI), brought this derivative suit to compel AFEI to register under the Investment Company Act of 1940 (ICA or the Act), 15 U.S.C. § 80a-l et seq. (1981). The District Court found no private right of action to compel registration under the ICA and granted summary judgment against Whitman. On appeal, we affirm the grant of summary judgment on a different ground; even assuming that a private right of action exists, AFEI is exempt from registration according to the provisions of the ICA. AFEI is the successor in interest to the New York, New Haven and Hartford Railroad Company (the Railroad). The Railroad filed for reorganization under the federal bankruptcy laws in 1961. During reorganization proceedings, the Railroad transferred substantially all of its assets to the Penn Central Transportation Company, which itself subsequently filed for bankruptcy reorganization. Eventually, the Railroad received in return cash, redeemable securities of the reorganized Penn Central Corporation (Penn Central), and six percent of Penn Central’s outstanding common stock. AFEI’s assets presently consist largely of cash, government securities, and Penn Central securities. AFEI’s principal stockholder is American Financial Corporation (AFC), which owns about 70% of AFEI’s outstanding stock and about two-thirds of all AFEI stock available for distribution. These interests in AFEI constitute less than ten per cent of AFC’s assets. Although AFC has hundreds of shareholders, all common stock in AFC is owned by Carl H. Lindner and members of his family. When Whitman filed its complaint in this case, three of the ten directors on AFEI’s board were members of the Lindner family and three other directors were associated professionally with AFC. The membership of AFEI’s board of directors, as well as the other provisions of the Plan of Reorganization, were approved by the federal bankruptcy court in 1980. Creditors of the Railroad received ownership of all AFEI securities. Because reorganization left AFEI with disproportionately large holdings of cash and securities typical of an investment company, the bankruptcy court directed the Railroad’s Trustee to seek an exemption from registration. The Securities and Exchange Commission (SEC) issued to AFEI a “no-action” letter recognizing a one-year exemption from registration as a transient investment company. When this exemption period expired, AFEI was not engaged in “non-investment company business,” as the no-action letter had anticipated, and had increased its investment holdings, particularly in Penn Central securities. In response to an inquiry, AFEI informed the SEC that it did not intend to register since it believed that the company was covered by a statutory exception to the registration requirement applicable to reorganized companies. The SEC did not respond to this information. Whitman’s suit alleges that this failure to register has injured AFEI’s shareholders. In the complaint, the management of AFEI is charged with behavior that would arguably violate the ICA if the company were registered with the SEC. The provisions of the ICA, however, apply only to registered companies. Accordingly, Whitman filed this suit to compel AFEI to register under the ICA, thus becoming subject to its requirements. The District Court granted summary judgment against Whitman on the grounds that the ICA does not create a private right of action to compel an investment company to register with the SEC. Observing that the Act contains no general express private right of action, the District Court found no evidence in the language or history of the statute of any legislative intent to imply a private remedy for shareholders under the Act. We do not find it necessary to determine whether a private right of action may be inferred from the ICA. Assuming ar- gaendo that a private right of action exists, and that a shareholder such as Whitman may bring suit to compel registration, the grant of summary judgment against Whitman may be affirmed on alternative grounds. See Herm v. Stafford, 663 F.2d 669, 684 (6th Cir.1981); Winter v. Local Union No. 639, 569 F.2d 146, 151 (D.C.Cir. 1977); United States v. General Motors Corp., 518 F.2d 420, 441 (D.C.Cir.1975). Here, AFEI may not be compelled to register with the SEC since it is exempt from registration under the ICA. Section 6(a)(3) of the Act exempts reorganized investment companies that satisfy five requirements. The parties agree that AFEI clearly satisfies four of these five requirements: 1) it was reorganized under the supervision of a court of competent jurisdiction after the effective date of the Act; 2) it was not an investment company at the commencement of reorganization proceedings; 3) all of its securities were owned by creditors or by persons who took on account of creditors’ claims at the conclusion of reorganized proceedings, and 4) no securities of AFEI have been sold or offered for sale to the public since the reorganization concluded. The dispute in this case centers on the fifth requirement, that more than 50% of a company’s voting securities and other securities representing more than 50% of the net asset value of the company must be “owned beneficially” by 25 or fewer people. Here, one company, AFC, owns more than 50% of AFEI’s stock. AFEI argues that its shares owned by AFC are beneficially owned by a single entity; Whitman on the other hand contends that ownership by AFC must be attributed to the hundreds of shareholders of AFC. Section 6(a)(3) provides that beneficial ownership is determined according, to the manner set out in § 3(c)(1) of the Act. Under § 3(c)(1), if a company owns ten percent or more of the outstanding voting securities of the issuer, the securities are deemed owned by the company’s shareholders; since AFC owns considerably more than ten percent of AFEI’s outstanding securities, all AFC’s shareholders would be deemed to own beneficially the company’s share in AFEI were it not for a 1980 amendment to the ICA. That amendment added the provision that a company’s ownership of shares in another company is not attributed to the parent company’s shareholders if the value of all securities owned by the parent company of all companies which are or would be excluded “solely by this paragraph” does not exceed ten percent of the parent company’s assets. The meaning of “solely by this paragraph” is disputed in this case, and no court has previously interpreted the phrase. AFEI argues that the reference to companies excluded “solely by this paragraph” contained in § 3(c)(1)(A) when incorporated by reference into § 6(a)(3)’s exemption for reorganized investment companies should be construed to refer to companies exempt under § 6(a)(3). According to this reasoning, AFC should total all its interests in § 6(a)(3) companies, and if the sum is less than ten percent of AFC’s assets, beneficial ownership in its AFEI securities should not be attributed to AFC’s shareholders. On the other hand Whitman contends that “solely by this paragraph” indicates that the exclusion from attribution of ownership to shareholders attaches only to companies that satisfy all the requirements of § 3(c)(1). Section 3(c)(1)(A) explains how beneficial ownership is determined; it is preceded in § 3(c)(1) by a provision excluding from the definition of an investment company any issuer whose outstanding securities are beneficially owned by a hundred or fewer persons and which is not publicly selling its securities. AFEI has more than a hundred shareholders, and so could not be excluded solely by § 3(c)(1); Whitman would conclude that beneficial ownership of AFEI securities, therefore, should be attributed to AFC’s shareholders, thus disqualifying AFEI from exemption under § 6(a)(3). Under Whitman’s reasoning, a company must satisfy § 3(c)(1) before the beneficial ownership provisions are applied to determine whether the company is exempt under § 6(a)(3). However, a company that satisfies § 3(c)(1) is excluded from the definition of an investment company altogether; a § 6(a)(3) exemption would be unnecessary. This resúlt of Whitman’s interpretation violates the “elementary canon of construction that a statute should be interpreted so as not to render one part inoperative.” Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 684, 58 L.Ed.2d 596 (1979); see, e.g., Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 633, 93 S.Ct. 2469, 2485, 37 L.Ed.2d 207 (1973); Meade Township v. Andrus, 695 F.2d 1006, 1009 (6th Cir.1982). AFEI’s interpretation incorporating the § 3(c)(1)(A) test for beneficial ownership into § 6(a)(3) so that companies need satisfy only the requirements for a § 6(a)(3) exemption to avoid attribution of ownership to all shareholders produces more reasonable results. In 1980, Congress passed the Small Business Investment Incentive Act which added § 3(c)(l)(A)’s exception to attribution for companies whose interest in companies excluded “solely by this paragraph” does not exceed ten percent of their assets. Legislative history does not reveal how Congress intended the phrase “solely by this paragraph” to be interpreted in the context of § 6(a)(3). Congress’ evident purpose in amending § 3(c)(1) was to encourage investment in small development companies by making exclusion from the definition of an investment company more available through relaxing the rules for attributing beneficial ownership of securities by a corporation to its shareholders. As Whitman points out, this purpose is not advanced by exempting AFEI from registration; AFEI is not a small development company. Congress did state, however, that the provision amending § 3(c)(1) “would be available to all private investment companies, not just business development companies.” H.R. Rep. No. 1341, 96th Cong., 2d Sess. 27, re printed in 1980 U.S.Code Cong. & Ad.News 4800, 4809. Accordingly, there is no reason to conclude, as Whitman urges us, that § 3(c)(1)(A) should not be applied to avoid attributing ownership of AFEI securities to all AFC’s shareholders. Beyond that, legislative history gives no indication how Congress intended § 3(c)(1) and § 6(a)(3) to be interpreted. We hold, therefore, that in the absence of evidence of legislative intent to the contrary and in view of the unreasonable results of Whitman’s interpretation, the § 3(c)(1)(A) reference to companies excluded “solely by this paragraph” should be interpreted as referring to companies exempted by § 6(a)(3). In this case, AFC’s holdings in all § 6(a)(3) companies, including AFEI, do not exceed ten percent of its assets, so that beneficial ownership of AFEI securities is not attributed to AFC’s shareholders under § 3(c)(1)(A). This conclusion agrees with the interpretation of these sections put forward by the SEC in its statement of interest submitted in this case as amicus curiae. Courts ordinarily show great deference to the construction of a statute by the agency charged with its administration. See, e.g., Indiana and Michigan Municipal Distributors Association v. Federal Energy Regulatory Commission, 659 F.2d 1193, 1196 (D.C.Cir.1981); Hill v. Tennessee Valley Authority, 549 F.2d 1064, 1070 (6th Cir.1977), aff’d, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978); Begley v. Mathews, 544 F.2d 1345, 1352 (6th Cir.1976), cert. denied, 430 U.S. 985, 97 S.Ct. 1684, 52 L.Ed.2d 380 (1977). While we are clearly not bound by the SEC’s construction of securities laws, we recognize that the SEC is the agency charged with administering the ICA, and we regard its interpretation of the statute with deference. In this case, the interpretation favored by the SEC is the one we would choose independently. Following that interpretation, we find that more than 50% of AFEI’s securities are held by one beneficial owner, AFC; accordingly, AFEI satisfies the requirements of § 6(a)(3) and is exempt from the registration requirement of the ICA. We, therefore, affirm the District Court’s grant of summary judgment and agree that Whitman cannot compel AFEI to register under the ICA. . Specifically, Whitman alleges that the composition of the board of directors does not satisfy the ICA’s requirement that 40% of the members be disinterested, 15 U.S.C. § 80a-10(a), and challenges as improper certain fees paid by AFEI to AFC for various services. . If a statute does not authorize a private right of action, the court should dismiss for failure to state a claim upon which relief can be granted, not for lack of subject-matter jurisdiction. Lewis v. Transamerica Corp., 575 F.2d 237, 239 n. 2 (9th Cir.1978), aff’d in part and rev’d in part on other grounds, 444 U.S. 11, 100 S.Ct; 242, 62 L.Ed.2d 146 (1979); Wilson v. First Houston Investment Corp., 566 F.2d 1235, 1237 n. 2 (5th Cir.1978), vacated and remanded on other grounds, 444 U.S. 959, 100 S.Ct. 442, 62 L.Ed.2d 371 (1979). “[A] complaint that alleges the existence of a federal question establishes jurisdiction, even though the court ultimately decides that the plaintiff’s federal rights were not violated.” Mobil Oil Corp. v. Kelley, 493 F.2d 784, 786 (5th Cir.), cert. denied, 419 U.S. 1022, 95 S.Ct. 498, 42 L.Ed.2d 296 (1974). This court has subject-matter jurisdiction over this dispute whether or not an implied private right of action is found. . Any company which since the effective date of this subchapter or within five years prior to such date has been reorganized under the supervision of a court of competent jurisdiction, if (Á) such company was not an investment company at the commencement of such reorganization proceedings, (B) at the conclusion of such proceedings all outstanding securities of such company were owned by creditors of such company or by persons to whom such securities were issued on account of creditors’ claims, and (C) more than 50 per centum of the voting securities of such company, and securities representing more than 50 per centum of the net asset value of such company, are currently owned beneficially by not more than twenty-five persons; but such exemption shall terminate if any security of which such company is the issuer is offered for sale or sold to the public after the conclusion of such proceedings by the issuer or by or through any underwriter. For the purposes of this paragraph, any new company organized as part of the reorganization shall be deemed the same company as its predecessor; and beneficial ownership shall be determined in the manner provided in section 80a-3(c)(l) of this title. 15 U.S.C. § 80a-6(a)(3) (1981). . That section provides the following description of beneficial ownership; Beneficial ownership by a company shall be deemed to be beneficial ownership by one person, except that, if the company owns 10 per centum or more of the outstanding voting securities of the issuer, the beneficial ownership shall be deemed to be that of the holders of such company’s outstanding securities (other than short-term paper) unless, as of the date of the most recent acquisition by such company of securities of that issuer, the value of all securities owned by such company of all issuers which are or would, but for the exception set forth in this subparagraph, be excluded from the definition of investment company solely by this paragraph, does not exceed 10 per centum of the value of the company’s total assets.... 15 U.S.C. § 80a-3(c)(l)(A) (1981). Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
sc_caseorigin	160	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. BACHELLAR et al. v. MARYLAND No. 729. Argued March 2, 1970 Decided April 20, 1970 Anthony O. Amsterdam argued the cause for petitioners. With him. on the brief was Fred E. Weisgal. H. Edgar Lentz, Assistant Attorney General of Maryland, argued the cause for respondent. With him on the brief were Francis B. Burch, Attorney General, and Edward F. Borgerding, Assistant Attorney General. Mr. Justice Brennan delivered the opinion of the Court. A jury in Baltimore City Criminal Court convicted petitioners of violating Md. Ann. Code, Art. 27, § 123 (1967 Repl. Vol.), which prohibits “acting in a disorderly manner to the disturbance of the public peace, upon any public street ... in any [Maryland] city . . .” The prosecution arose out of a demonstration protesting the Vietnam war which was staged between 3 and shortly after 5 o’clock on the afternoon of March 28, 1966, in front of a United States Army recruiting station located on a downtown Baltimore street. The Maryland Court of Special Appeals rejected petitioners’ contention that their conduct was constitutionally protected under the First and Fourteenth Amendments and affirmed their convictions. 3 Md. App. 626, 240 A. 2d 623 (1968). The Court of Appeals of Maryland denied certiorari in an unreported order. We granted certiorari, 396 U. S. 816 (1969). We reverse. The trial judge instructed the jury that there were alternative grounds upon which petitioners might be found guilty of violating § 123. The judge charged, first, that a guilty verdict might be returned if the jury found that petitioners had engaged in “the doing or saying or both of that which offends, disturbs, incites or tends to incite a number of people gathered in the same area.” The judge also told the jury that “[a] refusal to obey a policeman’s command to move on when not to do so may endanger the public peace, may amount to disorderly conduct.” So instructed, the jury returned a general verdict of guilty against each of the petitioners. Since petitioners argue that their conduct was constitutionally protected, we have examined the record for ourselves. When “a claim of constitutionally protected right is involved, it 'remains our duty ... to make an independent examination of the whole record/ ” Cox v. Louisiana (I), 379 U. S. 536, 545 n. 8 (1965). We shall discuss first the factual situation that existed until shortly before 5 o’clock on the afternoon of the demonstration, since the pattern of events changed after that time. There is general agreement regarding the nature of the events during the initial period. Baltimore law enforcement authorities had advance notice of the demonstration, and a dozen or more police officers and some United States marshals were on hand when approximately 15 protesters began peacefully to march in a circle on the sidewalk in front of the station. The marchers carried or wore signs bearing such legends as: "Peasant Emancipation, Not Escalation,” “Make Love not War,” “Stop in the Name of Love," and “Why are We in Viet Nam?” The number of protesters increased to between 30 and 40 before the demonstration ended. A crowd of onlookers gathered nearby and across the street. From time to time some of the petitioners and other marchers left the circle and distributed leaflets among and talked to persons in the crowd. The lieutenant in charge of the police detail testified that he “overheard” some of the marchers debate with members of the crowd about “the Viet Cong situation,” and that a few in the crowd resented the protest; “[o]ne particular one objected very much to receiving the circular.” However, the lieutenant did not think that the situation constituted a disturbance of the peace. He testified that “[a]s long as the peace was not disturbed I wasn’t doing anything about it.” Clearly the wording of the placards was not within that small class of “fighting words” that, under Chaplinsky v. New Hampshire, 315 U. S. 568, 574 (1942), are “likely to provoke the average person to retaliation, and thereby cause a breach of the peace,” nor is there any evidence that the demonstrators’ remarks to the crowd constituted “fighting words.” Any shock effect caused by the placards, remarks, and peaceful marching must be attributed to the content of the ideas being expressed, or to the onlookers’ dislike of demonstrations as a means of expressing dissent. But “[i]t is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers,” Street v. New York, 394 U. S. 576, 592 (1969); see also Cox v. Louisiana (I), supra; Edwards v. South Carolina, 372 U. S. 229 (1963); Terminiello v. Chicago, 337 U. S. 1 (1949), or simply because bystanders object to peaceful and orderly demonstrations. Plainly nothing that occurred during this period could constitutionally be the ground for conviction under § 123. Indeed, the State makes no claim that § 123 was violated then. We turn now to the events that occurred shortly before and after 5 o’clock. The petitioners had left the marchers after half past 3 to enter the recruiting station. There they had attempted to persuade the sergeant in charge to permit them to display their antiwar materials in the station or in its window fronting on the sidewalk. The sergeant had told them that Army regulations forbade him to grant such permission. The six thereupon staged a sit-in on chairs and a couch in the station. A few minutes before 5 o’clock the sergeant asked them to leave, as he wanted to close the station for the day. When petitioners refused, the sergeant called on United States marshals who were present in the station to remove them. After deputizing several police officers to help, the marshals undertook to eject the petitioners. There is irreconcilable conflict in the evidence as to what next occurred. The prosecution’s witnesses testified that the marshals and the police officers “escorted” the petitioners outside, and that the petitioners thereupon sat or lay down, “blocking free passage of the sidewalk.” The police lieutenant in charge stated that he then took over and three times ordered the petitioners to get up and leave. He testified that when they remained sitting or lying down, he had each of them picked up bodily and removed to a patrol wagon. In sharp contrast, defense witnesses said that each petitioner was thrown bodily out the door of the station and landed on his back, that petitioners were not positioned so as to block the sidewalk completely, and that no police command was given to them to move away; on the contrary, that as some of them struggled to get to their feet, they were held down by the police officers until they were picked up and thrown into the patrol wagon. The evidence is clear, however, that while petitioners were on the sidewalk, they began to sing “We Shall Overcome” and that they were surrounded by other demonstrators carrying antiwar placards. Thus, petitioners remained obvious participants in the demonstration even after their expulsion from the recruiting station. A crowd of 50-150 people, including the demonstrators, was in the area during this period. The reaction of the onlookers to these events was substantially the same as that to the earlier events of the afternoon. The police lieutenant added only that two uniformed marines in the crowd appeared angry and that a few other bystanders “were debating back and forth about Bomb Hanoi and different things and I had to be out there to protect these people because they wouldn’t leave.” Earlier too, however, some of the crowd had taken exception to the petitioners’ protest against the Vietnam war. On this evidence, in light of the instructions given by the trial judge, the jury could have rested its verdict on any of a number of grounds. The jurors may have found that petitioners refused “to obey a policeman’s command to move on when not to do so [might have endangered] the public peace.” Or they may have relied on a finding that petitioners deliberately obstructed the sidewalk, thus offending, disturbing, and inciting the bystanders. Or the jurors may have credited petitioners’ testimony that they were thrown to the sidewalk by the police and held there, and yet still have found them guilty of violating § 123 because their anti-Vietnam protest amounted to “the doing or saying ... of that which offends, disturbs, incites or tends to incite a number of people gathered in the same area.” Thus, on this record, we find that petitioners may have been found guilty of violating § 123 simply because they advocated unpopular ideas. Since conviction on this ground would violate the Constitution, it is our duty to set aside petitioners’ convictions. Stromberg v. California, 283 U. S. 359 (1931), is the controlling authority. There the jury returned a general verdict of guilty against an appellant charged under a California statute making it an offense publicly to display a red flag (a) “as a sign, symbol or emblem of opposition to organized government,” (b) “as an invitation or stimulus to anarchistic action,” or (c) “as an aid to propaganda that is and was of a seditious character.” Id., at 361. This Court held that clause (a) was unconstitutional as possibly punishing peaceful and orderly opposition to government by legal means and within constitutional limitations. The Court held that, even though the other two statutory grounds were severable and constitutional, the conviction had to be reversed, because the verdict “did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury were instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause. . . . [T]he necessary conclusion from the manner in which the case was sent to the jury is that, if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld.” 283 U. S., at 368. See also Williams v. North Carolina, 317 U. S. 287 (1942); Terminiello v. Chicago, supra; Yates v. United States, 354 U. S. 298 (1957); Street v. New York, supra. On this record, if the jury believed the State’s evidence, petitioners’ convictions could constitutionally have rested on a finding that they sat or lay across a public sidewalk with the intent of fully blocking passage along it, or that they refused to obey police commands to stop obstructing the sidewalk in this manner and move on. See, e. g., Cox v. Louisiana (I), supra, at 554-555; Shuttlesworth v. Birmingham, 382 U. S. 87, 99-91 (1965). It is impossible to say, however, that either of these grounds was the basis for the verdict. On the contrary, so far as we can tell, it is equally likely that the verdict resulted “merely because [petitioners’ views about Vietnam were] themselves offensive to some of their hearers.” Street v. New York, supra, at 592. Thus, since petitioners’ convictions may have rested on an unconstitutional ground, they must be set aside. The judgment of the Maryland Court of Special Appeals is reversed and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. The trial in the Criminal Court was de novo upon appeal from a conviction in the Municipal Court of Baltimore. The Criminal Court judge sentenced each petitioner to 60 days in jail and a $50 fine. The statute was amended in 1968 but without change in the operative language involved in this case. See Md. Ann. Code, Art. 27, § 123 (c) (Supp. 1969). Both elements of the instruction were based on the Maryland Court of Appeals’ construction of § 123 in Drews v. Maryland, 224 Md. 186, 192, 167 A. 2d 341, 343-344 (1961), vacated and remanded on other grounds, 378 U. S. 547 (1964), reaffirmed on remand, 236 Md. 349, 204 A. 2d 64 (1964), appeal dismissed and cert. denied, 381 U. S. 421 (1965). The instruction was “that disorderly conduct is the doing or saying or both of that which offends, disturbs, incites or tends to incite a number of people gathered in the same area. It is conduct of such nature as to affect the peace and quiet of persons who may witness it and who may be disturbed or provoked to resentment because of it. A refusal to obey a policeman’s command to move on when not to do so may endanger the public peace, may amount to disorderly conduct.” The trial judge refused to grant petitioners’ request that the jury be charged to disregard any anger of onlookers that arose from their disagreement with petitioners’ expressed views about Vietnam. For example, the judge refused to instruct the jury that “if the only threat of public disturbance arising from the actions of these defendants was a threat that arose from the anger of others who were made angry by their disagreement with the defendants’ expressed views concerning Viet Nam, or American involvement in Viet Nam, you must acquit these defendants. And if you have a reasonable doubt whether the anger of those other persons was occasioned by their disagreement with defendants’ views on Viet Nam, rather than by the conduct of the defendants in sitting or staying on the street, you must acquit these defendants.” Petitioners’ conduct in the station is not at issue in this case, since the State did not prosecute them for their conduct in that place. The local police officers were deputized as marshals because their local police powers did not extend to the federally operated recruiting station. The defense evidence indicated that petitioners were on the sidewalk after their removal from the recruiting station for only five minutes. A prosecution witness testified that they were there for 15 or 20 minutes. Maryland states in its brief, at 41-42, that “[obstructing the sidewalk had the legal effect under these circumstances of not only constituting a violation of ... § 123 . . . but also of Article 27, § 121 of the Maryland Code, obstructing free passage.” Had the State wished to ensure a jury finding on the obstruction question, it could have prosecuted petitioners under § 121, which specifically punishes “[a]ny person who shall wilfully obstruct or hinder the free passage of persons passing along or by any public street or highway . . . Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. 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Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:
songer_r_fed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. James L. JACKSON, Petitioner, v. A. R. JAGO, Superintendent, Respondent. No. 76-2038. United States Court of Appeals, Sixth Circuit. Argued April 5, 1977. Decided June 10, 1977. James L. Jackson, pro se. Kurt A. Philipps, Jr., Covington, Ky. (Court appointed CJA), for petitioner. William J. Brown, Atty. Gen. of Ohio, David J. Simko, Leo J. Conway, Columbus, Ohio, for respondent. Before PHILLIPS, Chief Judge, CELE-BREZZE, Circuit Judge, and GUY, District Judge. Honorable Ralph B. Guy, Jr., Judge, United States District Court, for the Eastern District of Michigan, sitting by designation. PER CURIAM. James L. Jackson appeals from the denial of his application for a writ of habeas corpus. On February 25, 1974, three armed robbers entered an Ohio service station and took $2,000 from two attendants. Approximately four weeks later, a police detective took the two service station attendants to a courtroom where Jackson was to be arraigned on unrelated charges. The detective asked them to sit in court and see if they recognized any of the participants in the robbery. When Jackson appeared in the courtroom for his hearing two and one-half hours later, both witnesses immediately recognized him as one of the three assailants. Following this identification, Jackson was charged with the robbery of the service station. The two attendants testified at the trial and positively identified Jackson as one of the three armed men who robbed them. The jury found him guilty on one count of the indictment. His conviction was affirmed by the Court of Appeals for the Sixth Judicial District of Ohio. The Supreme Court of Ohio dismissed Jackson’s appeal, concluding that no substantial constitutional question was involved. The principal contention of Jackson on the present appeal is that he was denied his right to counsel and due process at the courtroom “showup.” We conclude that this contention is without merit under United States v. Black, 412 F.2d 687 (6th Cir. 1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970). Jackson relies upon the Wade-Gilbert-Stovall trilogy. He asserts that if these three cases had been decided prior to Black, a different result would have been mandated. We reject this contention. In the present case Jackson had not been charged at the time of the courtroom showup. He was not charged with the service station robbery until after the two witnesses had observed him in the courtroom and identified him as one of the robbers. Since a critical stage of the prosecution had not been reached, it was not necessary to have counsel present. Kirby v. Illinois, 406 U.S. 682, 689-90, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). We find no violation of Jackson’s due process rights. The identification procedure in the present case was not suggestive. The witnesses were placed in the courtroom and instructed “to watch everyone that comes into the courtroom, everyone that entered and left the courtroom.” If they saw anybody they recognized, they were requested to contact the police detective immediately. They followed these instructions and identified Jackson without any suggestive techniques on the part of the police. Accordingly, we hold that Jackson’s reliance on the Wade trilogy is misplaced. Jackson also complains that the State trial judge read a three count indictment to a jury panel, although he was actually tried on only one of the three counts. He also asserts that he was deprived of the effective assistance of counsel. We conclude that these two contentions are without merit. Affirmed. . United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). 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_usc2sect	159	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 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 16175. United States Court of Appeals Seventh Circuit. March 26, 1969. Lee C. Shaw, Walter P. Loomis, Jr., Chicago, 111., George G. Gallantz, New York City, for petitioner. Marcel Mallet-Prevost, Asst. Gen. Counsel, Richard S. Rodin, Warren M. Davison, Attys., N.L.R.B., Washington, D. C., for respondent. Before CASTLE, Chief Judge, MAJOR and HASTINGS, Senior Circuit Judges, and KILEY, SWYGERT, FAIRCHILD, CUMMINGS and KERNER, Circuit Judges, KILEY, Circuit Judge. The National Labor Relations Board found that State Farm Mutual Automobile Insurance Company violated Sections 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain with the Insurance Workers International Union, AFL-CIO, which had been certified to represent a unit of employees. The Board ordered the Company to bargain with the Union. The Company petitioned this court to review and set aside the Board’s order, and the Board cross-petitioned for enforcement of its order. A panel of this court, in an opinion (one judge dissenting) issued August 8, 1968, set aside the Board’s order. Subsequently, this court granted the Board’s petition for rehearing en banc. We now enforce the Board’s order. Petitioner is a multi-state insurance company. All of its business decisions, such as job benefits, holidays, overtime, sick leave, recruitment and salary ranges are made at its home office in Blooming-ton, Illinois. Petitioner is divided into twenty-one regions across the country. The Northeastern Region, pertinent to this ease, comprises New York, New Jersey, and the New England states, and its headquarters is at Wayne, New Jersey. It is headed by a regional vice-president assisted by two deputy regional vice-presidents. The vice-president directs all operations in the region, including recruitment, interviewing job applicants, promotions, and salaries. The Northeastern Region is divided into four divisions, including two automobile insurance divisions, one covering New York and the other New Jersey and New England. A division manager, who is responsible for overseeing the claim processing operations of the company, heads each division. He also makes salary and employment recommendations to the regional vice-president. The New York automobile division is divided into four districts, each headed by a division claims superintendent, who is in charge of about five offices and supervises about thirty-five adjusters. The responsibilities of a divisional claims superintendent include: supervising the instruction of claims personnel under his jurisdiction; training the claims supervisory personnel; examining claims files; recommending company action concerning promotion, salary changes, hiring, and disciplinary action; interviewing and initially screening applicants for claims agent jobs; administering the over-all day to day claims handling within his jurisdiction; and visiting the claims field offices. The proceedings before us began with a representation petition filed by the Union. The Company moved to dismiss the petition on the ground of inappropriateness of the unit. The Board rejected both the Union’s contention that the smallest appropriate unit was a single claims office, and the Company’s contention that the smallest appropriate unit was the Northeastern Region, or, alternatively, the New York State unit. The Board designated “the divisional unit of employees supervised by a divisional superintendent” as the smallest appropriate unit. Thereafter the Board conducted representational elections in two claims districts in New York. In the unit before us, the Union won the election and was certified as the bargaining representative. The Union then requested the Company to bargain. The Company refused on the ground that the unit found by the Board was inappropriate. The Union filed an unfair labor practice charge alleging an unlawful refusal to bargain. The General Counsel issued a complaint, and the Company’s response admitted the refusal to bargain, reasserting the inappropriateness of the unit. The Board granted the General Counsel’s “Motion for Summary Judgment and Judgment on the Pleadings,” over the Company’s objection that it was entitled to a further hearing on the appropriate unit and issued the order which is now before this court. The Company contends that the order should be set aside because the unit determination is unreasonable and the Board’s refusal to hold the further hearing requested by the Company violated Section 10(b) of the National Labor Relations Act. The Board has a wide discretion in designating appropriate units. It is not required by the Act to choose the most appropriate unit, but only to choose an appropriate unit within the range of several appropriate units in a given factual situation. The Board may look to various factors to determine what units are appropriate. The company organization, the numerical size of the unit, the geographical distribution of the employees in the unit, the type of work done by the employees in the unit, the responsibilities of the unit supervisor, the organizability of the unit, and the extent to which the unit has already been organized, are all revelant considerations and no one factor is determinative. NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965). Section 9(b) itself states that the unit shall be chosen “in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act.” Where the facts underlying a Board determination of an appropriate unit are not contested, the Board’s determination will not be overturned unless it is arbitrary or unreasonable. May Dept. Stores Co. v. NLRB, 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145 (1945); NLRB v. Krieger-Ragsdale & Co., 379 F.2d 517 (7th Cir. 1967), cert. denied, 389 U.S. 1041, 88 S.Ct. 780, 19 L.Ed.2d 831 (1968). The unit chosen by the Board in this case contains about thirty-five employees who do similar work under similar conditions; geographically the unit, on the average, covers one-fourth of New York State; the Union has successfully organized one of the units; the leader of the unit chosen is the Company official who directly controls and supervises the day to day work of the employees; under the Company’s organization the next larger unit would, on the average, cover a multi-state area; the smallest unit under the Company’s organization which has a leader, the regional vice-president, with any formal control over employee policy would cover all of New York, New Jersey, and New England; and the smallest unit where there is substantial control over employee policy, the Bloomington Home Office, is nation-wide. Under these circumstances, the reasonableness of the Board’s determination is clear. The fact that the next largest unit available under the Company’s organizational structure covers a multi-state area is of particular significance. In 1944 the Board adopted a policy of refusing to authorize an appropriate unit in the insurance industry which was less than state-wide, on the theory that this would promote the organization of employees by unions. Metropolitan Life Ins. Co., 56 N.L.R.B. 1635 (1944). The Board, however, subsequently abandoned this rule because As a practical matter * * * such state-wide or company-wide organization has not materialized, and the result of the rule has been to arrest the organizational development of insurance agents to an extent certainly never contemplated by the Act, or for that matter by the Board that decided the Metropolitan Life case. Quaker City Life Ins. Co., 134 N.L.R.B. 960, 962 (1961). Adoption of the Company’s position here would prevent the Board from choosing a less than state-wide unit for bargaining and would therefore “arrest the organizational development of insurance agents” in highly centralized insurance companies and would prevent the employees from enjoying “the fullest freedom in exercising the rights guaranteed by” the National Labor Relations Act, 29 U.S.C. 159(b). The Quaker City rationale also refutes the Company’s alternative contention that the most appropriate unit covers all of New York State. Finally, the Board’s decision is consistent with other Board decisions that the courts have previously approved. NLRB v. Quaker City Life Ins. Co., 319 F.2d 690 (4th Cir. 1963); Singer Sewing Machine Co. v. NLRB, 329 F.2d 200, 12 A.L.R.3d 775 (4th Cir. 1964). In Quaker City the duties of the head of the unit chosen as appropriate by the Board were described by the court as follows: The District Manager 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. That authority does not significantly differ from the authority of the divisional claims superintendent in the case before us, and in Quaker City the Board’s choice of an appropriate bargaining unit was approved. Moreover, in Quaker City the district manager had only six employees under him, while the supervisor in this case has approximately five times that number. The head of the unit in Singer also had substantially the same power as the divisional claims superintendent here, and in that case the Board’s unit determination was also approved. The Company relies mainly on NLRB v. Frisch’s Big Boy Ill-Mar. Inc., 356 F.2d 895 (7th Cir. 1966), and on NLRB v. Purity Food Stores, Inc., 376 F.2d 497 (1st Cir.), cert. denied, 389 U.S. 959, 88 S.Ct. 337, 19 L.Ed.2d 368 (1967). In Frisch this court rejected the Board’s determination that a single retail store was an appropriate unit, where the Company had ten stores in Indianapolis, Indiana. The store managers there had considerably less authority than the district managers here. Yet the court recognized that an eleventh store located sixty miles away in Muncie, Indiana, might constitute, a separate bargaining unit. In Purity the First Circuit rejected the Board’s determination that a single retail outlet constituted an appropriate unit where the Company operated a chain of seven outlets, all located within thirty miles of the Company’s central office. The court stated that Purity was “a small, compact, homogeneous, centralized and integrated operation” and that “the ‘independence’ of the stores * * * amounts to no more than a few miles of physical separation.” Neither of these cases is controlling or persuasive on the facts here. The Board states that in each similar case since Quaker City it has relied primarily upon the “autonomous” character of the “single district office” and the “over-all immediate supervision” exercised by the district office manager. In each ease, on different facts, the district office head may possess varying degrees of autonomy depending upon the degree to which he may exercise significant managerial power over the employees he superintends. We think the Board could find sufficient autonomy and supervisory authority here to justify its choice of an appropriate unit. The Board did not abuse its discretion in entering the order before us, and the order does not offend the Act’s limitation that designation of an appropriate unit must not be controlled by the extent to which the unit has already been organized. NLRB v. Quaker City Life Ins. Co., 319 F.2d 690 (4th Cir. 1963). We conclude that we should not set aside the Board’s order on the ground that the unit chosen was inappropriate. In opposing the General Counsel’s motion for summary judgment, the Company moved for an order transferring the ease to a Trial Examiner for further hearing on the unit issue. The Board denied the motion, finding that no issue had been presented requiring a hearing. In the Board’s view, the factual issues concerning the appropriateness of the unit were resolved in the representation proceeding, and absent newly discovered or previously unavailable evidence, the issues need not be relitigated. The Company insisted that since the Board, in the representation proceeding, chose as appropriate a unit advocated by neither party, the Company did not present evidence in its possession with respect to that unit. The Company claimed it was entitled to an opportunity to present this evidence in the unfair labor practice proceedings. The Board denied the further hearing on two grounds: It stated that the evidence sought to be introduced was available at the representation proceeding, and the Company’s failure to produce it at that time precluded introduction of the evidence on the same issue in the unfair labor practice proceeding. The Board also concluded that the proffered evidence was merely cumulative to evidence heard in the representation proceeding. We agree with the Board. NLRB v. International Die Sinker’s Conference, 402 F.2d 407, 411 (7th Cir. 1968). A representation proceeding is not adversary in the usual sense, but is designed primarily to enable the Board to fulfill its statutory function with respect to the certification of bargaining representatives. Part of the function is, of course, determination of an appropriate bargaining unit. When that determination is an issue in a lepresentation proceeding, all persons concerned have the duty to produce all information relevant to the issue. The Board’s determination is not confined to the units suggested by the parties, but it may choose any unit which it reasonably deems appropriate. Local 620, Allied Industrial Workers of America v. NLRB, 375 F.2d 707, 710-11 (6th Cir. 1967); S. D. Warren Co. v. NLRB, 353 F.2d 494, 499 (1st Cir. 1965). The issue of an appropriate unit was the subject of an extensive hearing in the representation proceeding. There was substantial evidence introduced of the entire organizational structure of the Company. Having failed to produce relevant evidence it possessed in that proceeding, the Company had no right to another opportunity to present evidence at the expense of the exercise of the employees’ collective bargaining rights. Rockwell Mfg. Co., Kearney Div., v. NLRB, 330 F.2d 795, 797-798 (7th Cir. 1964). The evidence proffered in the unfair labor practice hearing was intended to show that the unit chosen in the representation hearing was subject to change in the geographical area supervised by divisional claims superintendents. But in the representation proceeding it was specifically found that “The number of these superintendents in each division is subject to change according to the volume of business and geographic distribution of field claims offices in the division; * * * ” The Board, therefore, did not abuse its discretion in denying the motion for a further hearing, as no useful purpose would have been served by receiving the Company’s evidence. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 157-158, 61 S.Ct. 908, 85 L.Ed. 1251 (1940). Having concluded that none of the grounds urged by the Company for setting aside the order is valid, the Board’s order will be enforced. MAJOR, Senior Circuit Judge, dissents, with which HASTINGS, Senior Circuit Judge, concurs. I feel obliged to dissent from the majority opinion rendered on the Board’s petition for rehearing en banc which allows the Board’s petition for enforcement, thereby nullifying the August 8, 1968 panel decision of this court. This dissent is directed squarely at the decision under review, with the findings and conclusions contained therein. I am not concerned with the many cases which stand for the well recognized proposition that our scope of review is limited and that the Board has a wide discretion in determining an appropriate bargaining unit. Such cases are not controlling here because the Board’s order, in my view, is based upon a fallacious premise and its decision is clearly erroneous, arbitrary and capricious. Furthermore, I am not impressed with the Board’s two-fold argument in support of its unit determination, apparently embraced by the majority, (1) that it is in accordance with its policy, and (2) that owing to the circumstances of the case it would have great difficulty in determining a more appropriate unit. I realize the Board’s policy is entitled to serious consideration but I disagree with the idea that it can be utilized as a substitute for facts, which it appears the Board would have us do. Likewise, the fact that the Board might have difficulty in determining some other unit as appropriate furnishes no justification for its determination that the unit under consideration is appropriate. In the beginning it is well to keep in mind what the Board characterizes as the descending supervisory chain: (1) the company’s home office at Blooming-ton, Illinois; (2) its regional office at Wayne, N. J.; (3) its division managers; (4) its divisional claims superintendents, and (5) its claims superintendents. The functions of each link of this chain are described in the Board’s decision as follows: “National personnel policies are determined at the home office in Bloom-ington ; sick leave, group medical, life, and other insurance programs, vacations, credit unions, travel allowances, promotion procedures, and similar conditions and benefits of employment. These policies are effectively construed and implemented by the several regional offices. Against the background of policies and practices established by the home office, decisions as to the applicability of these policies and procedures to claim representatives are made by the regional supervisory authorities. Ultimately, most of the final decision-making authority in each Region is vested in the office of the Regional Vice-President. For instance, the Region makes annual reviews of the performance of each employee, for the purpose of determining whether he should be granted a salary increase (within a range predetermined by the home office). The Claim Superintendent will fill out a form to initiate such reviews, giving its comments and recommendations. The Divisional Superintendent will then make his recommendation in the portion of the form designed for his entry. Finally, the Division manager will add his recommendation, and the form will then be submitted to the office of the Regional Vice-President, where this official or his deputy will approve or disapprove the increase.” (Italics supplied.) It states: “Looking primarily to the autonomous character of the single district office petitioned for in Quaker City [134 N.L.R.B. 960], and the overall immediate supervision exercised by the district office manager, we concluded that a unit consisting of the employees in the district office was an appropriate bargaining unit. Since that case, we have found appropriate other single-office units which exhibited a similar degree of autonomy, and have also authorized groupings of single offices where considerations of geography or the employer’s administrative structure lent coherence to such multiple-office units.” (Italics supplied.) Then follows the heart of the decision: “The evidence of record in the case before us presents a significantly different picture of field operating procedure from that developed in the insurance agents cases cited above. It seems clear that the smallest component of the Employer’s business structure which may be said to be relatively autonomous in its operation is not the field claims office, but rather the divisional unit of employees supervised by a Divisional Superintendent. By virtue of the managerial authority reposed in the three Divisional Superintendents, who represent a supervisory focal point for their respective groups of 39, 32, and 29 claim representatives, these functionaries appear to exercise powers most closely analogous to those possessed by the district office managers in the earlier cases. A finding, therefore, that bargaining units could properly be demarcated by the supervisory jurisdiction of each Divisional Superintendent would be wholly in keeping with the principles applied in the insurance agents cases.” (Italics supplied.) Thus, the Board concedes that the operating procedure in this case “presents a significantly different picture” from that of the insurance agents cases upon which it relies, but nevertheless concludes that its unit determination “would be wholly in keeping with the principles” applied in such cases. Neither on brief nor in oral argument before this court did the Board criticize or take issue with a statement contained in our panel decision: “The Board’s reasoning rests upon two premises: (1) the unit determination was ‘relatively autonomous in its operation,’ and (2) ‘the managerial authority reposed in the three Divisional Superintendents.’ It is significant to note that the Board did not find that the unit was autonomous but only that it was ‘relatively’ so, without explanation as to why the qualifying word. Perhaps the explanation can be found in the dictionary, which defines ‘autonomous’ as ‘having the right or power of self-government; undertaken or carried on without outside control; existing or capable of existing independently.’ Webster’s Seventh New Collegiate Dictionary.” In my judgment, the record is devoid of any proof that the unit determined by the Board possessed autonomy, “relative autonomy” as found in its decision, or “substantial autonomy” as stated in its brief. On the contrary, the record clearly demonstrates that the unit determined was non-autonomous. The Board in its decision states that “sick leave, group medical, life and other insurance programs, vacations, credit unions, travel allowances, promotion procedures, similar conditions and benefits of employment” are established in the home office and “are effectively construed and implemented by the several regional offices.” The Board further found that “decisions as to the applicability of these policies and procedures” are “vested in the office of the Regional Vice President.” Further support for the view that the divisional claim superintendents were without managerial authority to resolve issues subject to collective bargaining is shown by a statement in the Board’s original brief: “Most of the final decision-making authority in each Region ultimately resides in the office of the regional vice president. Thus, for example, the Region annually reviews each claims representative’s performance for the purpose of determining whether he should be granted a salary increase (within a range established by the home office in Bloomington). The claim superintendent initiates such reviews by filling out a prescribed form, in which he includes comments and recommendations. In turn, the divisional claim superintendent will add his recommendation in the portion of the form designated for such use. Finally, the division manager will add his recommendation, and the form will then be submitted to the office of the regional vice president or his deputy will make the final decision.” (Italics supplied.) In short, the divisional claim superintendents were without authority to make any decisions on matters which might be involved in collective bargaining. On such matters they accepted recommendations from those below (claim superintendents) ; approved or disapproved and passed them on to those above (division managers), and received orders and directions from those above which they executed in an administrative but not in a managerial capacity. There are numerous court decisions which support the view that the autonomous nature of the unit determined and the managerial authority of the divisional claim superintendents, admittedly the basis for the Board’s decision, should be rejected. In N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., 356 F.2d 895, this court refused to enforce the Board’s order concerned with a single restaurant in an integrated chain because the unit designated was inappropriate. The main issue in the case was whether the unit determined was autonomous, as found by the Board. Relative to this issue we stated (page 896): “The only factual contention made by petitioner [the Board] which requires notice is that each restaurant has ‘autonomy’ because each restaurant manager has certain powers. However, the undisputed facts appearing in the record show that a common labor policy affecting all employees is formulated and administered by the president, as chief executive, and certain other officers of the corporations. Reporting to him are three area supervisors each of whom has a share of the Indianapolis restaurants to cover. These area supervisors visit the restaurants frequently.” (Italics supplied.) In deciding this issue we stated (page 897): “It is evident to us that the decisions left to the managers do not involve any significant element of judgment as to employment relations. * * * “It is obvious to us that none of the store managers will be deciding questions affecting the employees in the context of collective bargaining.” (Italics supplied.) The majority opinion, in the attempt to distinguish this case on its facts, states, “The store managers there had considerably less authority than the district managers here.” With this statement I disagree but, in any event, the pertinent point is the court’s reasoning and conclusion, which read as though written for this case. In N.L.R.B. v. Purity Food Stores, Inc., 376 F.2d 497, 501, the First Circuit cited with approval our opinion in Frisch’s and refused to enforce the Board’s order on the ground that its unit determination was inappropriate. The Board found a single supermarket to be an appropriate bargaining unit, based on the authority of the manager and the autonomy of the store. In rejecting the Board’s determination the court stated (page 500): “The Board rested its conclusion basically on lack of store-wide bargaining history and on its view that the Peabody store was so economically independent of the other retail stores and possessed such ‘significant autonomy’ within the respondent’s over-all operation that separation of that store from the others for purposes of collective bargaining would not obstruct centralized control and effective operation of the chain. We cannot agree.” (Italics supplied.) The Board in its brief, in support of the instant petition, states: “ * * * individual cases in which the courts of appeals have set aside such determinations as arbitrary or capricious may be regarded either as proper reversals of administrative action, under all the circumstances, or as aberrational abuses of judicial power.” In a footnote the Board states: “For purposes of the instant petition for rehearing, it is irrelevant whether the Court’s decision in N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., 356 F.2d 895 (1966) is regarded as the former or the latter.” While the Board does not state in which category it places this court, the implication is plain. Even so, our feelings are soothed by the opinion of the Fifth Circuit in N.L.R.B. v. Davis Cafeteria, Inc., 396 F.2d 18. In that case the court refused to enforce the Board’s order on the ground that the bargaining unit selected was inappropriate. Referring to Frisch’s and Purity, the court stated (page 20): “In view of the elucidating opinions in the Purity Foods case, in N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., supra, * * * it would serve no precedental value for us to repeat what we have previously said, or what the First and Seventh Circuits have already so well said. In the circumstances of this case, labor policy is centrally determined, and where local managers do not have authority to decide questions which would be subjects of collective bargaining, the two respondent cafeterias do not constitute an appropriate bargaining unit.” (Italics supplied.) Called to our attention subsequent to the instant hearing en banc is a decision of the Second Circuit in N.L.R.B. v. Solis Theatre Corp., and Interboro Circuit, Inc., 403 F.2d 381, decided November 14, 1968. In that case the court refused enforcement of the Board’s order on the ground that the Board improperly determined the bargaining unit. Concluding its statement of the facts, the court stated (page 383): “It appears, therefore, that instead of being in a decision making position, the ‘manager’ has little or no authority on labor policy but is subject to detailed instructions from the central office. “The Courts of Appeals have been reluctant to sanction bargaining units whose managers lack the authority to resolve issues which would be the subject of collective bargaining.” Following this statement, the court cites with approval our opinion in Frisch’s, the First Circuit opinion in Purity, and the Fifth Circuit opinion in Dams. I would deny enforcement of the Board’s order for reasons so clearly revealed in its decision. . 29 U.S.C. §160 sjí $ 5}C 8}í }¡í The person so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. * * * * * . In Singer the Board’s order was denied enforcement on other grounds. 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 29? Answer with a number. Answer:
sc_decisiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. WADE v. WILSON, WARDEN, et al. No. 55. Argued November 12, 1969 Decided January 13, 1970 Marshall L. Small, by appointment of the Court, 394 U. S. 941, argued the cause for petitioner. With him on the briefs was Melvin R. Goldman. John T. Murphy, Deputy Attorney General of California, argued the cause for respondents. With him on the brief were Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, and Karl S. Mayer, Deputy Attorney General. Mr. Justice Brennan delivered the opinion of the Court. In 1961, petitioner and one Pollard appealed to the California District Court of Appeal from murder convictions upon which the California Superior Court had sentenced each of them to life imprisonment. California Rules of Court 35 (c) and 10 (c) required that the appellants be furnished with one free copy of the trial transcript to be shared by them for the purposes of the appeal. Pollard received the free copy but would not share it with petitioner. However, the State Attorney General loaned petitioner’s appellate counsel his copy. The District Court of Appeal affirmed the convictions, 194 Cal. App. 2d 830, 15 Cal. Rptr. 214 (1961). Five years later, in 1966, petitioner wished to pursue a collateral remedy and sought the transcript from Pollard but Pollard “refuse [d] to communicate on the subject.” Petitioner’s inquiry of his appellate lawyer elicited the response that the copy borrowed from the Attorney General had been returned. Petitioner then turned to the California courts seeking, however, not temporary use of a copy, but to be furnished with a copy of his own. He applied initially to the trial court and was advised that the original of the transcript was in the District Court of Appeal. He thereupon filed a pro se motion for a copy in the District Court of Appeal, which motion was denied on the ground that the Court of Appeal had only the original and was not equipped to duplicate copies. He next filed a proceeding in the California Supreme Court and was advised by the clerk of that court that he must proceed in “the court possessed of the original record.” He renewed his application to the District Court of Appeal, which again denied it on the ground that that court had “no facility for reproducing records”; but this time petitioner was advised that the original record would be made available for copying at his expense. Petitioner then abandoned further efforts in the California courts. In 1967, he filed the instant federal habeas corpus proceeding in the District Court for the Northern District of California. His petition alleged his indigency and the single claim that California’s refusal to furnish him without cost his own copy of the transcript denied him due process and equal protection of the laws in violation of the Fourteenth Amendment. The District Court after hearing granted the writ and ordered California either to provide the free transcript or to release the petitioner. The District Court stated in an unreported opinion, “although there is no square holding on the precise question of the right to a transcript in preparing a petition for a writ of habeas corpus rather than an appeal, the logic of the Supreme Court holdings compels a finding that such a right exists.” The Court of Appeals for the Ninth Circuit reversed on the ground that “the trial court failed to find that Wade was claiming that there was any error which occurred in the proceedings which led to his conviction which would warrant the granting of post-conviction relief. . . . Wade was not entitled to demand a transcript merely to enable him to comb the record in the hope of discovering some flaw.” 390 F. 2d 632, 634 (1968). We granted certiorari. 393 U. S. 1079 (1969). The California Court Rules require that a free transcript be furnished to convicted persons separately tried in felony cases and to each codefendant where one or more co-defendants are under sentence of death. Petitioner argues that in furnishing only one copy to be shared by codefendants where none received the death penalty California interposes an unconstitutional barrier to the use of its criminal appellate proceedings and that the distinction made by the Rules, without more, establishes that California has denied him equal protection of the laws. But petitioner will not be heard to attack the Rules since they concern only the furnishing of transcripts for purposes of direct appeal and he and his appellate counsel in fact had the use on his direct appeal of the transcript borrowed from the State Attorney General and did not complain that the terms on which it was made available in any way impaired its effective use on the appeal. See United States v. Raines, 362 U. S. 17, 21-22 (1960). Petitioner argues that in any event, contrary to the Court of Appeals, the District Court was correct in holding that because “it may not be possible to pinpoint . . . alleged errors in the absence of a transcript,” petitioner was entitled to a transcript for use in petitioning for habeas corpus even though he did not specify what errors he claimed in his conviction. To pass on this contention at this time would necessitate our decision whether there are circumstances in which the Constitution requires that a State furnish an indigent state prisoner free of cost a trial transcript to aid him to prepare a petition for collateral relief. This is a question of first impression which need not be reached at this stage of the case. Notwithstanding petitioner’s success in borrowing a copy of the transcript in connection with his direct appeal, his insistence in the subsequent proceedings in both the California and federal courts is that he has a constitutional right to a copy of his own. We think consideration of that contention should be postponed until it appears that petitioner cannot again borrow a copy from the state authorities, or successfully apply to the California courts to direct his codefendant, Pollard, or some other custodian of a copy to make a copy available to him. Cf. Rule 10 (c). Without such a showing, or a showing that having his own copy would be significantly more advantageous than obtaining the use of someone else’s copy, the District Court should not have reached the merits of petitioner’s claim. We think, however, that the case should be retained on the District Court’s docket pending petitioner’s efforts to obtain access to the original or a copy. Upon being advised by the parties that petitioner has been provided such access, the court should dismiss the action. We vacate the judgments of both the Court of Appeals and the District Court and remand to the District Court for further proceedings consistent with this opinion. It is so ordered. Petitioner styled Ms application to the Supreme Court of California “A Petition for a Writ of Habeas Corpus” but the only relief he requested was issuance of the record in his case or an order to the District Court of Appeal to furnish him with the record. He did not request an order releasing Mm from custody. The District Court cited Smith v. Bennett, 365 U. S. 708 (1961) (habeas corpus filmg fee); Griffin v. Illinois, 351 U. S. 12 (1956) (transcript on direct appeal); Lane v. Brown, 372 U. S. 477 (1963) (transcript on post-conviction appeal); Long v. District Court, 385 U. S. 192 (1966) (transcript on post-conviction appeal). See also Roberts v. LaVallee, 389 U. S. 40 (1967); Gardner v. California, 393 U. S. 367 (1969). Rules 35 (c) and 10 (c) provide in pertinent part: Rule 35 (e): “As soon as both the clerk’s and reporter’s transcripts are completed, the clerk shall deliver one copy to the defendant or his attorney and one copy to the district attorney .... When there are two or more appealing defendants in a case in which a judgment of death has been rendered against one or more of the defendants, the clerk shall, deliver a copy of both transcripts to each such defendant or his attorney. . . . Where there are two or more appealing defendants represented by separate counsel in a case in which judgment of death has not been rendered against any defendant, the appellant’s copy shall be made available for the use of the appellants in the manner provided in Rule 10.” Rule 10 (e): “The additional copy of the record required by these rules shall be made available for the use of the parties to the appeal in such manner as the judge, or the clerk under his direction, shall prescribe; provided that the parties may stipulate to its use, and in such event only the original need be filed with the clerk of the superior court.” Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable 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). SIMUNOV v. UNITED STATES. No. 10433. Circuit Court of Appeals, Sixth Circuit. June 5, 1947. Benjamin C. Sfanczyk, of Detroit, Mich., for appellant. John C. Lehr, of Detroit, Mich., for ap-pellee. Before SIMONS, ALLEN and MARTIN, Circuit Judges. PER CURIAM. Upon appeal from an order denying a motion for the vacation or correction of a sentence, it appears that the appellant was convicted and sentenced for bank robbery under Title 12 U.S.C.A. Section 588b (a) and Section 588c. The indictment contained four counts charging the appellant with entering a bank with intent to commit a felony, stealing from the bank, putting the life of a bank officer in jeopardy by the use of a dangerous weapon and attempting to avoid apprehension by forcing a bank officer to accompany him without the consent of such officer. Notwithstanding our numerous admonitions that sentences be specific both as to counts and as to the beginning and ending of the term of sentence, the district judge, now retired, imposed upon the appellant in respect to all of the counts of ihc indictment, a blanket sentence of 65 years, but added “25 years for kidnapping”, and the sentence was in such terms recorded by the clerk of the court in the short-hook. It is now settled that the statute dealing with the offense of bank robbery creates but a single offense with various degrees of aggravation permitting sentences of increasing severity. It is also clear that under the authority of Section 588c the court would have been empowered to impose a maximum penalty of 65 years because that section provides for a minimum and is silent as to the maximum of imprisonment that might, have been imposed. However, the observation that 25 years was for kidnapping imparts ambiguity to the sentence. On behalf of the appellant it is urged that having been sentenced to 25 years for kidnapping the court was without power to cumulate an additional 40 years under the first three counts of the indictment because they became merged with the fourth count. On behalf of the government it is contended that the court indicated an intention of sentencing the appellant to a term of 65 years but that 25 years were added to what the court had in mind because the defendant, was found guilty of the kidnapping, and the court so decided in overruling the motion for correction. The latter argument is not persuasive because without the element of kidnapping the court could not have sentenced the defendant to a term of 40 years. More important, however, is the fact that the convict should know with certainty what his punishment is to be, and that a reviewing court should not be called upon to speculate as to what was in the mind of the sentencing judge at the time of the imposition of the penalty. It is imperative in maintaining respect for the judgments of courts that sentences in criminal cases should not be equivocal. This is more vital than the interests of a particular defendant in a criminal case. The order of denial is reversed and the cause remanded to the district court for the correction of sentence by the imposition of a sentence upon the appellant of not more than 25 years. It is so ordered. 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_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. James S. MURRAY, etc., Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee. No. 5941. United States Court of Appeals First Circuit. Heard March 5, 1962. Decided April 2, 1962. James M. Kendrick, Boston, Mass., for appellant. Earl J. Silbert, Atty., Dept. of Justice, with whom Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Melva M. Graney, Attys., Dept. of Justice, W. Arthur Garrity, Jr., U. S. Atty., and William C. Madden, Asst. U. S. Atty., were on brief, for appellee. Before WOODBURY, Chief Judge, and HARTIGAN, and ALDRICH, Circuit Judges. ALDRICH, Circuit Judge. This case, previously before this court, 1 Cir., 292 F.2d 602 (1961), is a suit for refund of alleged overpayment of income tax. The government admitted the overpayment, but alleged that taxpayer had authorized it to transfer that amount to satisfy a deficiency in his sister-in-law’s tax, and that it had done so. Taxpayer denied having consented. The district court, trying the case without jury, found for the government. In so doing the court, very properly, stated where it had placed the burden of proof on the issue of consent, but unfortunately, erred in placing it on the taxpayer. For this error we reversed and remanded. After a second trial the court again found for the government, and taxpayer again appeals. The case was, in substance, resubmitted to the court on the record of the first trial. The evidence as to whether the taxpayer had agreed to the transfer was highly conflicting. One Duffy, superintendent of delinquent tax accounts testified that on a Saturday in February 1953 there was a conference in taxpayer’s place of business between taxpayer, taxpayer’s accountant, Foster, and himself regarding taxpayer’s and his sister-in-law’s back taxes; that taxpayer stated he wished his sister-in-law’s account cleared up; that in taxpayer’s presence Foster told the witness to transfer a credit standing to taxpayer’s account to his sister-in-law’s; that the witness took this as sufficient consent and did not ask for anything in writing, and subsequently prepared an office memorandum directing this transfer to be made. Foster corroborated Duffy’s testimony except with relation to the memorandum, of which he had no knowledge. Taxpayer denied that this conference took place and denied that he had authorized the transfer at any other time. An accounting branch employee testified that she had made the credit transfer on the books; that she did not recall the circumstances, but that the customary procedure was not to do this without a written consent from the taxpayer. She stated, however, that she would have made the transfer simply on written instructions from her superior, as there was no absolute requirement that there be a document executed by the taxpayer himself. While this evidence well warranted a finding for the government, we are compelled to conclude that the court’s second decision was no more free from error than the first. The court proceeded as follows. “Initially, the burden of proof, as in all civil cases, is on the plaintiff to establish by a preponderance of the evidence the allegations contained in his complaint.” The court stated that the plaintiff had “met this burden” by presenting the evidence that the government made the transfer “without authority.” We do not understand these statements in the light of our ruling that the burden of proving consent was on the government. The court then seemingly found that it believed the evidence presented by the government witnesses Duffy and Foster. However, it is not entirely clear that this was an out-and-out finding in view of the balance of the opinion, and it is far from clear, if it was, that it was not affected by the erroneous recital as to the plaintiff’s burden of proof. The court continued, “[T]here is convincing evidence that the transfer [on the government’s books] would not have been made without having the necessary authority, either from the plaintiff in writing or from someone in the department. * * * [The fact that] the transfer was made * * * lays the basis for a presumption of regularity of procedure on the part of the Government. In re Ingersoll Co., 148 F.2d 282 (10th Cir.); Atcheson, Topeka & Sante Fe R. R. Co. v. Elephant Butte Irr. Dist., 110 F.2d 767 (10th Cir.).” After further discussion the court concluded, “The burden of going forward with the production of evidence which would overcome the presumption of regularity on the part of the Government has not been met by the plaintiff.” Even if we could assume that the court’s remarks about the burden of proof were inadvertent, we cannot accept the consequences which the court attributed to the presumption of regularity. This presumption is, as the court said, simply one of regularity of procedure. See 9 Wigmore, Evidence § 2534 (3d ed. 1940). The fact that the government had made the transfer did not raise a presumption that it had done so on taxpayer’s authority. Rather, as the court said, it merely indicated that the accounting branch, in view of its regular practice, either had taxpayer’s written consent, or written instructions from Duffy. Cf. Santarpio v. New York Life Ins. Co., 1938, 301 Mass. 207, 16 N.E.2d 668. Since Duffy admitted he obtained no writing from taxpayer, the total effect of the “presumption” was that Duffy had given the accounting branch a memorandum. This fact he had already testified to directly. The question at issue was not whether Duffy had made a memorandum, but was whether he had been authorized to do so. Corroboration of the fact that he had made a memorandum was, at best, merely confirmatory evidence of a prior consistent statement. There was no presumption that “meets and overcomes” anything, as ruled by the court, or which placed any burden of going forward on the plaintiff. In fact, as simple corroboration, it would be closer to say that the whole episode was of no consequence whatever. As Wigmore states, corroboration by proof of other consistent statements would be “both irrelevant and cumbersome to the trial; and is rejected by all Courts.” Id., § 1124. Indeed, it is normally rejected as irrelevant even after the witness has been impeached. Wilson v. Jeffrey, 1951, 328 Mass. 192, 102 N.E. 2d 426; cf. Commonwealth v. Bedrosian, 1924, 247 Mass. 573, 142 N.E. 778; Glover v. Callahan, 1937, 299 Mass. 55, 12 N.E.2d 194. It was error for the court to hold that the presumption of regularity placed a burden or shifted a burden of any sort. Reading the opinion as a whole we cannot, as the government would have us do, isolate certain sentences and conclude that the court properly found in the government’s favor. There must be a new trial. Perhaps under the circumstances fairness to both parties indicates a fresh view of the evidence by another judge. Judgment will be entered vacating the findings and judgment of the District Court and remanding the case for further proceedings not inconsistent herewith. . The court explained in its second ojnnion that what it had “really meant [was] the burden of going forward with the evidence.” We did not so read the first opinion, but if we had it would still have posed difficulties, as will be hereafter developed. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
sc_lcdispositiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations CALIFORNIA v. ACEVEDO No. 89-1690. Argued January 8, 1991 Decided May 30, 1991 Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’ConnoR, Kennedy, and Souter, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, post, p. 581. White, J., filed a dissenting opinion, post, p. 585. Stevens, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 585. Robert M. Foster, Supervising Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Harley D. Mayfield, Senior Assistant Attorney General, and Frederick R. Millar, Supervising Deputy Attorney General. Frederick Westcott Anderson argued the cause for respondent. With him on the brief was Jan Walls Anderson. Justice Blackmun delivered the opinion of the Court. This case requires us once again to consider the so-called “automobile exception” to the warrant requirement of the Fourth Amendment and its application to the search of a closed container in the trunk of a car. I On October 28, 1987, Officer Coleman of the Santa Ana, Cal., Police Department received a telephone call from a federal drug enforcement agent in Hawaii. The agent informed Coleman that he had seized a package containing marijuana which was to have been delivered to the Federal Express Office in Santa Ana and which was addressed to J. R. Daza at 805 West Stevens Avenue in that city. The agent arranged to send the package to Coleman instead. Coleman then was to take the package to the Federal Express office and arrest the person who arrived to claim it. Coleman received the package on October 29, verified its contents, and took it to the Senior Operations Manager at the Federal Express office. At about 10:30 a.m. on October 30, a man, who identified himself as Jamie Daza, arrived to claim the package. He accepted it and drove to his apartment on West Stevens. He carried the package into the apartment. At 11:45 a.m., officers observed Daza leave the apartment and drop the box and paper that had contained the marijuana into a trash bin. Coleman at that point left the scene to get a search warrant. About 12:05 p.m., the officers saw Richard St. George leave the apartment carrying a blue knapsack which appeared to be half full. The officers stopped him as he was driving off, searched the knapsack, and found 114 pounds of marijuana. At 12:30 p.m., respondent Charles Steven Acevedo arrived. He entered Daza’s apartment, stayed for about 10 minutes, and reappeared carrying a brown paper bag that looked full. The officers noticed that the bag was the size of one of the wrapped marijuana packages sent from Hawaii. Acevedo walked to a silver Honda in the parking lot. He placed the bag in the trunk of the car and started to drive away. Fearing the loss of evidence, officers in a marked police car stopped him. They opened the trunk and the bag, and found marijuana. Respondent was charged in state court with possession of marijuana for sale, in violation of Cal. Health & Safety Code Ann. § 11359 (West Supp. 1991). App. 2. He moved to suppress the marijuana found in the car. The motion was denied. He then pleaded guilty but appealed the denial of the suppression motion. The California Court of Appeal, Fourth District, concluded that the marijuana found in the paper bag in the car’s trunk should have been suppressed. 216 Cal. App. 3d 586, 265 Cal. Rptr. 23 (1990). The court concluded that the officers had probable cause to believe that the paper bag contained drugs but lacked probable cause to suspect that Acevedo’s car, itself, otherwise contained contraband. Because the officers’ probable cause was directed specifically at the bag, the court held that the case was controlled by United States v. Chadwick, 433 U. S. 1 (1977), rather than by United States v. Ross, 456 U. S. 798 (1982). Although the court agreed that the officers could seize the paper bag, it held that, under Chadwick, they could not open the bag without first obtaining a warrant for that purpose. The court then recognized “the anomalous nature” of the dichotomy between the rule in Chadwick and the rule in Ross. 216 Cal. App. 3d, at 592, 265 Cal. Rptr., at 27. That dichotomy dictates that if there is probable cause to search a car, then the entire car—including any closed container found therein—may be searched without a warrant, but if there is probable cause only as to a container in the car, the container may be held but not searched until a warrant is obtained. The Supreme Court of California denied the State’s petition for review. App. E to Pet. for Cert. 33. On May 14, 1990, Justice O’Connor stayed enforcement of the Court of Appeal’s judgment pending the disposition of the State’s petition for certiorari, and, if that petition were granted, the issuance of the mandate of this Court. We granted certiorari, 498 U. S. 807 (1990), to reexamine the law applicable to a closed container in an automobile, a subject that has troubled courts and law enforcement officers since it was first considered in Chadwick. h-i 1 — 1 The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Contemporaneously with the adoption of the Fourth Amendment, the First Congress, and, later, the Second and Fourth Congresses, distinguished between the need for a warrant to search for contraband concealed in “a dwelling house or similar place” and the need for a warrant to search for contraband concealed in a movable vessel. See Carroll v. United States, 267 U. S. 132, 151 (1925). See also Boyd v. United States, 116 U. S. 616, 623-624 (1886). In Carroll, this Court established an exception to the warrant requirement for moving vehicles, for it recognized “a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” 267 U. S., at 153. It therefore held that a warrantless search of an automobile, based upon probable cause to believe that the vehicle contained evidence of crime in the light of an exigency arising out of the likely disappearance of the vehicle, did not contravene the Warrant Clause of the Fourth Amendment. See id., at 158-159. The Court refined the exigency requirement in Chambers v. Maroney, 399 U. S. 42 (1970), when it held that the existence of exigent circumstances was to be determined at the time the automobile is seized. The car search at issue in Chambers took place at the police station, where the vehicle was immobilized, some time after the driver had been arrested. Given probable cause and exigent circumstances at the time the vehicle was first stopped, the Court held that the later warrantless search at the station passed constitutional muster. The validity of the later search derived from the ruling in Carroll that an immediate search without a warrant at the moment of seizure would have been permissible. See Chambers, 399 U. S., at 51. The Court reasoned in Chambers that the police could search later whenever they could have searched earlier, had they so chosen. Id., at 51-52. Following Chambers, if the police have probable cause to justify a warrantless seizure of an automobile on a public roadway, they may conduct either an immediate or a delayed search of the vehicle. In United States v. Ross, 456 U. S. 798, decided in 1982, we held that a warrantless search of an automobile under the CaiToll doctrine could include a search of a container or package found inside the car when such a search was supported by probable cause. The warrantless search of Ross’ car occurred after an informant told the police that he had seen Ross complete a drug transaction using drugs stored in the trunk of his car. The police stopped the car, searched it, and discovered in the trunk a brown paper bag containing drugs. We decided that the search of Ross’ car was not unreasonable under the Fourth Amendment: “The scope of a warrantless search based on probable cause is no narrower — and no broader — than the scope of a search authorized by a warrant supported by probable cause.” Id., at 823. Thus, “[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.”' Id., at 825. In Ross, therefore, we clarified the scope of the Carroll doctrine as properly including a “probing search” of compartments and containers within the automobile so long as the search is supported by probable cause. Id., at 800. In addition to this clarification, Ross distinguished the Carroll doctrine from the separate rule that governed the search of closed containers. See 456 U. S., at 817. The Court had announced this separate rule, unique to luggage and other closed packages, bags, and containers, in United States v. Chadwick, 433 U. S. 1 (1977). In Chadwick, federal narcotics agents had probable cause to believe that a 200-pound double-locked footlocker contained marijuana. The agents tracked the locker as the defendants removed it from a train and carried it through the station to a waiting car. As soon as the defendants lifted the locker into the trunk of the car, the agents arrested them, seized the locker, and searched it. In this Court, the United States did not contend that the locker’s brief contact with the automobile’s trunk sufficed to make the Carroll doctrine applicable. Rather, the United States urged that the search of movable luggage could be considered analogous to the search of an automobile. 433 U. S., at 11-12. The Court rejected this argument because, it reasoned, a person expects more privacy in his luggage and personal effects than he does in his automobile. Id., at 13. Moreover, it concluded that as “may often not be the case when automobiles are seized,” secure storage facilities are usually available when the police seize luggage. Id., at 13, n. 7. In Arkansas v. Sanders, 442 U. S. 753 (1979), the Court extended Chadwick’s, rule to apply to a suitcase actually being transported in the trunk of a car. In Sanders, the police had probable cause to believe a suitcase contained marijuana. They watched as the defendant placed the suitcase in the trunk of a taxi and was driven away. The police pursued the taxi for several blocks, stopped it, found the suitcase in the trunk, and searched it. Although the Court had applied the Carroll doctrine to searches of integral parts of the automobile itself, (indeed, in Carroll, contraband whiskey was in the upholstery of the seats, see 267 U. S., at 136), it did not extend the doctrine to the warrantless search of personal luggage “merely because it was located in an automobile lawfully stopped by the police.” 442 U. S., at 765. Again, the Sanders majority stressed the heightened privacy expectation in personal luggage and concluded that the presence of luggage in an automobile did not diminish the owner’s expectation of privacy in his personal items. Id., at 764-765. Cf. California v. Carney, 471 U. S. 386 (1985). In Ross, the Court endeavored to distinguish between Carroll, which governed the Ross automobile search, and Chad-tuick, which governed the Sanders automobile search. It held that the Carroll doctrine covered searches of automobiles when the police had probable cause to search an entire vehicle, but that the Chadwick doctrine governed searches of luggage when the officers had probable cause to search only a container within the vehicle. Thus, in a Ross situation, the police could conduct a reasonable search under the Fourth Amendment without obtaining a warrant, whereas in a Sanders situation, the police had to obtain a warrant before they searched. Justice Stevens is correct, of course, that Ross involved the scope of an automobile search. See post, at 592. Ross held that closed containers encountered by the police during a warrantless search of a car pursuant to the automobile exception could also be searched. Thus, this Court in Ross took the critical step of saying that closed containers in cars could be searched without a warrant because of their presence within the automobile. Despite the protection that Sanders purported to extend to closed containers, the privacy interest in those closed containers yielded to the broad scope of an automobile search. h-i 1 — 1 I — l The facts m this case closely resemble the facts m Ross. In Ross, the police had probable cause to believe that drugs were stored in the trunk of a particular car. See 456 U. S., at 800. Here, the California Court of Appeal concluded that the police had probable cause to believe that respondent was carrying marijuana in a bag in his car’s trunk. 216 Cal. App. 3d, at 590, 265 Cal. Rptr., at 25. Furthermore, for what it is worth, in Ross, as here, the drugs in the trunk were contained in a brown paper bag. This Court in Ross rejected Chadwick’s distinction between containers and cars. It concluded that the expectation of privacy in one’s vehicle is equal to one’s expectation of privacy in the container, and noted that “the privacy interests in a car’s trunk or glove compartment may be no less than those in a movable container.” 456 U. S., at 823. It also recognized that it was arguable that the same exigent circumstances that permit a warrantless search of an automobile would justify the warrantless search of a movable container. Id., at 809. In deference to the rule of Chadwick and Sanders, however, the Court put that question to one side. Id., at 809-810. It concluded that the time and expense of the warrant process would be misdirected if the police could search every cubic inch of an automobile until they discovered a paper sack, at which point the Fourth Amendment required them to take the sack to a magistrate for permission to look inside. We now must decide the question deferred in Ross: whether the Fourth Amendment requires the police to obtain a warrant to open the sack in a movable vehicle simply because they lack probable cause to search the entire car. We conclude that it does not. IV Dissenters in Ross asked why the suitcase in Sanders was “more private, less difficult for police to seize and store, or in any other relevant respect more properly subject to the warrant requirement, than a container that police discover iñ a probable-cause search of an entire automobile?” Id., at 839-840. We now agree that a container found after a general search of the automobile and a container found in a car after a limited search for the container are equally easy for the police to store and for the suspect to hide or destroy. In fact, we see no principled distinction in terms of either the privacy expectation or the exigent circumstances between the paper bag found by the police in Ross and the paper bag found by the police here. Furthermore, by attempting to distinguish between a container for which the police are specifically searching and a container which they come across in a car, we have provided only minimal protection for privacy and have impeded effective law enforcement. The line between probable cause to search a vehicle and probable cause to search a package in that vehicle is not always clear, and separate rules that govern the two objects to be searched may enable the police to broaden their power to make warrantless searches and disserve privacy interests. We noted this in Ross in the context of a search of an entire vehicle. Recognizing that under Carroll, the “entire vehicle itself . . . could be searched without a warrant,” we concluded that “prohibiting police from opening immediately a container in which the object of the search is most likely to be found and instead forcing them first to comb the entire vehicle would actually exacerbate the intrusion on privacy interests.” 456 U. S., at 821, n. 28. At the moment when officers stop an automobile, it may be less than clear whether they suspect with a high degree of certainty that the vehicle contains drugs in a bag or simply contains drugs. If the police know that they may open a bag only if they are actually searching the entire car, they may search more extensively than they otherwise would in order to establish the general probable cause required by Ross. Such a situation is not farfetched. In United States v. Johns, 469 U. S. 478 (1985), Customs agents saw two trucks drive to a private airstrip and approach two small planes. The agents drew near the trucks, smelled marijuana, and then saw in the backs of the trucks packages wrapped in a manner that marijuana smugglers customarily employed. The agents took the trucks to headquarters and searched the packages without a warrant. Id., at 481. Relying on Chadwick, the defendants argued that the search was unlawful. Id., at 482. The defendants contended that Ross was inapplicable because the agents lacked probable cause to search anything but the packages themselves and supported this contention by noting that a search of the entire vehicle never occurred. Id., at 483. We rejected that argument and found Chadwick and Sanders inapposite because the agents had probable cause to search the entire body of each truck, although they had chosen not to do so. Id., at 482-483. We cannot see the benefit of a rule that requires law enforcement officers to conduct a more intrusive search in order to justify a less intrusive one. To the extent that the Chadwick-Sanders rule protects privacy, its protection is minimal. Law enforcement officers may seize a container and hold it until they obtain a search warrant. Chadwick, 433 U. S., at 13. “Since the police, by hypothesis, have probable cause to seize the property, we can assume that a warrant will be routinely forthcoming in the overwhelming majority of cases. ” Sanders, 442 U. S., at 770 (dissenting opinion). And the police often will be able to search containers without a warrant, despite the Chadwick-Sanders rule, as a search incident to a lawful arrest. In New York v. Belton, 453 U. S. 454 (1981), the Court said: “[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. “It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment.” Id., at 460 (footnote omitted). Under Belton, the same probable cause to believe that a container holds drugs will allow the police to arrest the person transporting the container and search it. Finally, the search of a paper bag intrudes far less on individual privacy than does the incursion sanctioned long ago in Carroll. In that case, prohibition agents slashed the upholstery of the automobile. This Court nonetheless found their search to be reasonable under the Fourth Amendment. If destroying the interior of an automobile is not unreasonable, we cannot conclude that looking inside a closed container is. In light of the minimal protection to privacy afforded by the Chadwick-Sanders rule, and our serious doubt whether that rule substantially serves privacy interests, we now hold that the Fourth Amendment does not compel separate treatment for an automobile search that extends only to a container within the vehicle. V The Chadwick-Sanders rule not only has failed to protect privacy but also has confused courts and police officers and impeded effective law enforcement. The conflict between the Carroll doctrine cases and the Chadwick-Sanders line has been criticized in academic commentary. See, e. g., Gardner, Searches and Seizures of Automobiles and Their Contents: Fourth Amendment Considerations in a Post-Ross World, 62 Neb. L. Rev. 1 (1983); Latzer, Searching Cars and Their Contents: United States v. Ross, 18 Crim. L. Bull. 381 (1982); Kamisar, The “Automobile Search” Cases: The Court Does Little to Clarify the “Labyrinth” of Judicial Uncertainty, in 3 The Supreme Court: Trends and Developments 1980-1981, p. 69 (D. Opperman ed. 1982). One leading authority on the Fourth Amendment, after comparing Chadwick and Sanders with Carroll and its progeny, observed: “These two lines of authority cannot be completely reconciled, and thus how one comes out in the container-in-the-car situation depends upon which line of authority is used as a point of departure.” 3 W. LaFave, Search and Seizure 63 (2d ed. 1987). The discrepancy between the two rules has led to confusion for law enforcement officers. For example, when an officer, who has developed probable cause to believe that a vehicle contains drugs, begins to search the vehicle and immediately discovers a closed container, which rule applies? The defendant will argue that the fact that the officer first chose to search the container indicates that his probable cause extended only to the container and that Chadtvick and Sanders therefore require a warrant. On the other hand, the fact that the officer first chose to search in the most obvious location should not restrict the propriety of the search. The Chadwick rule, as applied in Sanders, has devolved into an anomaly such that the more likely the police are to discover drugs in a container, the less authority they have to search it. We have noted the virtue of providing “‘“clear and unequivocal” guidelines to the law enforcement profession.’” Minnick v. Mississippi, 498 U. S. 146, 151 (1990), quoting Arizona v. Roberson, 486 U. S. 676, 682 (1988). The Chadwick-Sanders rule is the antithesis of a “ ‘clear and unequivocal’ guideline.” Justice Stevens argues that the decisions of this Court evince a lack of confusion about the automobile exception. See post, at 594. The first case cited by the dissent, United States v. Place, 462 U. S. 696 (1983), however, did not involve an automobile at all. We considered in Place the temporary detention of luggage in an airport. Not only was no automobile involved, but the defendant, Place, was waiting at the airport to board his plane rather than preparing to leave the airport in a car. Any similarity to Sanders, in which the defendant was leaving the airport in a car, is remote at best. Place had nothing to do with the automobile exception and is inapposite. Nor does Justice Stevens’ citation of Oklahoma v. Castleberry, 471 U. S. 146 (1985), support his contention. Cas-tleberry presented the same question about the application of the automobile exception to the search of a closed container that we face here. In Castleberry, we affirmed by an equally divided court. That result illustrates this Court’s continued struggle with the scope of the automobile exception rather than the absence of confusion in applying it. Justice Stevens also argues that law enforcement has not been impeded because the Court has decided 29 Fourth Amendment cases since Ross in favor of the government. See post, at 600. In each of these cases, the government appeared as the petitioner. The dissent fails to explain how the loss of 29 cases below, not to mention the many others which this Court did not hear, did not interfere with law enforcement. The fact that the state courts and the Federal Courts of Appeals have been reversed in their Fourth Amendment holdings 29 times since 1982 further demonstrates the extent to which our Fourth Amendment jurisprudence has confused the courts. Most important, with the exception of United States v. Johns, 469 U. S. 478 (1985), and Texas v. Brown, 460 U. S. 730 (1983), the Fourth Amendment cases cited by the dissent do not concern automobiles or the automobile exception. From Carroll through Ross, this Court has explained that automobile searches differ from other searches. The dissent fails to acknowledge this basic principle and so misconstrues and misapplies our Fourth Amendment case law. The Chadwick dissenters predicted that the container rule would have “the perverse result of allowing fortuitous circumstances to control the outcome” of various searches. 433 U. S., at 22. The rule also was so confusing that within two years after Chadwick, this Court found it necessary to expound on the meaning of that decision and explain its application to luggage in general. Sanders, 442 U. S., at 761-764. Again, dissenters bemoaned the “inherent opaqueness” of the difference between the Carroll and Chadwick principles and noted “the confusion to be created for all concerned.” Id., at 771. See also Robbins v. California, 453 U. S. 420, 425-426 (1981) (listing cases decided by Federal Courts of Appeals since Chadwick had been announced). Three years after Sanders, we returned in Ross to “this troubled area,” 456 U. S., at 817, in order to assert that Sanders had not cut back on Carroll. Although we have recognized firmly that the doctrine of stare decisis serves profoundly important purposes in our legal system, this Court has overruled a prior case on the comparatively rare occasion when it has bred confusion or been a derelict or led to anomalous results. See, e. g., Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, 288-289 (1977). Sanders was explicitly undermined in Ross, 456 U. S., at 824, and the existence of the dual regimes for automobile searches that uncover containers has proved as confusing as the Chadwick and Sanders dissenters predicted. We conclude that it is better to adopt one clear-cut rule to govern automobile searches and eliminate the warrant requirement for closed containers set forth in Sanders. VI The interpretation of the Carroll doctrine set forth m Ross now applies to all searches of containers found in an automobile. In other words, the police may search without a warrant if their search is supported by probable cause. The Court in Ross put it this way: “The scope of a warrantless search of an automobile . . . is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” 456 U. S., at 824. It went on to note: “Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.” Ibid. We reaffirm that principle. In the case before us, the police had probable cause to believe that the paper bag in the automobile’s trunk contained marijuana. That probable cause now allows a warrantless search of the paper bag. The facts in the record reveal that the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment. Our holding today neither extends the Carroll doctrine nor broadens the scope of the permissible automobile search delineated in Carroll, Chambers, and Ross. It remains a “cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’” Mincey v. Arizona, 437 U. S. 385, 390 (1978), quoting Katz v. United States, 389 U. S. 347, 357 (1967) (footnotes omitted). We held in Ross: “The exception recognized in Carroll is unquestionably one that is ‘specifically established and well delineated.’” 456 U. S., at 825. Until today, this Court has drawn a curious line between the search of an automobile that coincidentally turns up a container and the search of a container that coincidentally turns up in an automobile. The protections of the Fourth Amendment must not turn on such coincidences. We therefore interpret Carroll as providing one rule to govern all automobile searches. The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained. The judgment of the California Court of Appeal is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. When Officer Coleman returned with a warrant, the apartment was searched and bags of marijuana were found there. We are here concerned, of course, only with what was discovered in the automobile. Although respondent now challenges this holding, we decline to second-guess the California courts, which have found probable cause. Respondent did not raise the probable-cause question in his Brief in Opposition nor did he cross-petition for resolution of the issue. He also did not raise the point in a cross-petition tó the Supreme Court of California. We therefore do not consider the issue here. See Lytle v. Household Mfg., Inc., 494 U. S. 545, 551, n. 3 (1990); Heckler v. Campbell, 461 U. S. 458, 468-469, n. 12 (1983). Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_abusedis	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 conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America, Plaintiff-Appellee, v. Milton James ROTH, Defendant-Appellant. No. 16173. United States Court of Appeals Seventh Circuit. Nov. 20, 1967. Rehearing Denied Jan. 5, 1968. Max Cohen, Gary, Ind., for appellant. Alfred W. Moellering, U. S. Atty., Joseph F. Eichhorn, Asst. U. S. Atty., Fort Wayne, Ind., for appellee. Before HASTINGS, Chief Judge, and KILEY, and SWYGERT, Circuit Judges. SWYGERT, Circuit Judge. Milton James Roth appeals from a judgment of conviction pursuant to a jury verdict of guilty. The indictment charged that he knowingly had in his possession goods stolen from a shipment in interstate commerce in violation of 18 U.S.C. § 659. The only question in this appeal concerns the propriety of the district court’s pre-trial ruling denying Roth’s motion to suppress evidence seized pursuant to the execution of a search warrant. On October 27, 1965 approximately three thousand Hamilton Beach blenders were placed on a truck in Chicago destined for Philadelphia. During the evening of October 29, the loaded truck disappeared and was found empty the next afternoon on the far south side of Chicago, several miles from Hammond, Indiana, William Morrison, a Special Agent of the Federal Bureau of Investigation, obtained a warrant from a judge of the Lake County, Indiana Superior Court on November 1. Pursuant to that warrant, agents searched a garage-type, warehouse building adjacent to and a part of Day-Lite Foods, Hammond, Indiana, occupied by the defendant, and found the stolen blenders. An affidavit sworn to by Agent Morrison was the only matter presented to the state court judge who issued the search warrant. After reciting the preliminary facts detailing the occurrence of the theft and the location of the building occupied by the defendant, the affidavit set forth two grounds purporting to establish probable cause that the blenders were contained on the defendant’s premises. The first was a statement that the affiant received information from a confidential informant on October 31, 1965 to the effect that “said electric blenders” were on the defendant’s premises and that the informant had in the past furnished accurate information and was a reliable source. The second was a statement that the affiant had been informed of the observation of another F.B.I. agent who had personally seen “a large number of boxes bearing the name ‘Hamilton Beach’ ” through a window in the warehouse. After he was arrested and before trial, the defendant moved to suppress the evidence obtained pursuant to the execution of the warrant. The motion was denied by the district court. Initially, we must determine the effect to be given to matters brought out at a hearing on a motion to suppress in assessing the sufficiency of an affidavit for a search warrant. When a court reviews whether an issuing magistrate has properly granted a search or an arrest warrant, the Supreme Court has cautioned, “the issue of probable cause * * * [has] to be determined by the * * * [magistrate], and an adequate basis for such a finding * * * [has] to appear on the face of the complaint.” Giordenello v. United States, 357 U.S. 480, 487, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503 (1958). If an affidavit is the only matter presented to the issuing magistrate, as in this case, the warrant must stand or fall solely on the contents of the affidavit. What is subsequently adduced at a hearing on a motion to suppress, therefore, cannot be used by the trial court to augment an otherwise defective affidavit. But if the hearing discloses matters which discredit or impeach the assertions in an affidavit, these must be considered by the trial court in determining whether probable cause in fact existed. At the hearing on the motion to suppress in the instant case, testimony was elicited which exposed a fatal flaw in the affidavit. The affiant, Morrison, testified that the confidential informant told him, “there was a load of Hamilton Beach products that were stored in a grocery store out on the 6500 block of Calumet Avenue in Hammond, Indiana.” In contrast, Morrison’s affidavit stated that the informant told him that “the said electric blenders [the stolen items]” were on the defendant’s premises. (Emphases added.) When Morrison’s testimony is compared with his statement in the affidavit, a contradiction is disclosed, glaring enough to require the trial court to find the affidavit insufficient as a matter of law. Other defects permeate the affidavit in addition to the contradiction. The statement therein that a confidential informant told Agent Morrison that “said electric blenders were contained” in the defendant’s premises is at best hearsay. In all probability, the statement reflects hearsay on hearsay, the informant having received the information from someone else rather than by means of his own observation. Agent Morrison’s testimony at the hearing supports this conclusion. The Supreme Court has held that an affidavit “is not to be deemed insufficient” on the ground that it contains hearsay statements “so long as a substantial basis for crediting the hearsay is presented.” Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960). There the affidavit was held to be sufficient in part because the hearsay statements related the personal observations of the informant. Subsequent Supreme Court cases have elaborated upon the nature and extent of the corroboration necessary to sustain a search warrant issued pursuant to an affidavit containing hearsay. In Aguilar v. State of Texas, 378 U.S. 108, 109, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the affiants, two local police officers, stated that they had received “reliable information from a credible person and do believe” the defendant possessed narcotics. Neither the police officers nor the informant had personally observed the facts recited in the affidavit. The Supreme Court held the affidavit insufficient to establish probable cause, stating: Although an affidavit may be based on hearsay information and need not reflect the direct personal observation of the affiant, * * * the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, * * * was “credible” or his information “reliable.” 378 U.S. at 114, 84 S.Ct. at 1514. (Emphases added.) In accordance with the teachings of Jones and Aguilar, if Morrison’s affidavit contained only the statement of what the informant related to him without the support of any “underlying circumstances,” there would be no adequate basis from which the magistrate could properly have concluded that probable cause existed. Despite the additional averment in the affidavit that the informant had “in the past furnished the affiant with reliable and accurate information and that he knows the informant to be a reliable source,” that statement in itself is too barren either to credit or to corroborate the hearsay statements of the informant. Irrespective of the informant’s reliability, he in turn may have received his information from someone wholly unreliable. Consequently, the fact that the agent vouched for the credibility or reliability of the informant cannot reach the crucial question posed by the hearsay on hearsay situation present m this case. For the reliability of both the anonymous hearsay source and the information he imparted to the informant is totally lacking. We believe that an affidavit containing “inherently defective hearsay on hearsay” (that is, hearsay on hearsay as to which there is absent any indication of the reliability of the anonymous hearsay source) can withstand attack only if the supporting circumstances related therein are sufficient in themselves to establish probable cause. Morrison’s statement in the affidavit that he was informed by Agent Noonan of his own observation of “boxes bearing the name ‘Hamilton Beach’ ” on the defendant’s premises fails to satisfy this requirement. The Supreme Court recently considered the sufficiency of an affidavit reciting the observations of the affiant’s fellow officers in Ventresca v. United States, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). That decision upheld the validity of a search warrant issued on the presentation of an affidavit in which the affiant based his belief that an illegal distillery was in operation on his own observations and “upon information received officially from other Investigators * * * assigned to this investigation, and reports orally made to me describing the results of their observations and investigations, * * .” 380 U.S. at 103, 104, 85 S.Ct. at 743. Seven instances of the agents’ observations of suspicious, incriminating activities were described. A significant difference is apparent between the affidavit in Ventresca, which relied on the observations of fellow officers (and which contained “not merely ‘some of the underlying circumstances’ * * but a good many of them” 380 U.S. at 109, 85 S.Ct. at 746) and Morrison’s affidavit which relied on the observations of Noonan. The latter lacked the specificity found adequate in Ventresca. Neither the date on which Noonan observed the defendant’s premises nor the type of Hamilton Beach products he observed was recited in the affidavit. Both of these omissions are highly critical in view of the nature of the premises, a “garage-type warehouse,” and the type of merchandise stolen, a product that is mass produced by a nationwide manufacturer of a variety of household electrical appliances. Without detailing the date of Noonan’s observation and what he specifically saw, Morrison’s statement might have described any of a large number of warehouses that had received a shipment of Hamilton Beach products prior to or contemporaneously with the theft of the blenders in question. The statement, therefore, is too imprecise to establish probable cause that what Noonan observed on the defendant’s premises was the stolen blenders. Although we are mindful of the Supreme Court’s admonition in Ventresca that “affidavits for search warrants, * * * must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion,” we may not overlook the equally important charge that sufficient specificity of an affidavit for a search warrant “is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police.” 380 U.S. at 108, 109, 85 S.Ct. at 746. We feel constrained, in light of the reasons heretofore outlined, to hold that the district court erred in refusing to grant the defendant’s motion to suppress the evidence obtained as a result of the search. The judgment of the district court is reversed and the case is remanded for a new trial. . The pertinent text of Agent Morrison’s affidavit follows: 1. That the affiant is employed as a Special Agent of the Federal Bureau of Investigation, a branch of the United States Department of Justice, and that affiant has continuously held such petition as a Special Agent for the past 11 years. 2. That the affiant has reason to believe, and does believe, that there is now being concealed certain property, to-wit : a large number, believed to be 3,000, Hamilton Beach Electric Blenders, which electric blenders were part of an interstate shipment from C. and A. Terminal Company, Chicago, Illinois, consigned to Hamilton Beach, c/o Terminal Warehouse, Philadelphia, Pennsylvania, under B. and P. Motor Express Pro No. 266419, and which were stolen on or about October 29, 1965, from B. and P. Motor Express Trailer No. 784, which was parked in the yards of B. and P. Motor Express, Inc., Chicago, Illinois, and that the said electric blenders are now being kept at the following-described premises: In the building located at 6406 Calumet Avenue, Hammond, Indiana, and known as Day Lite Foods, which building is an “L” shaped structure made up of the main store building and an attached garage-type warehouse which extends from the rear portion of the building at a right angle, and in a southerly direction, along a certain public alley, which alley runs in a northerly-southerly direction behind said address, and parallel to Calumet Avenue. 3. That the information upon which the affiant bases his belief that said Hamilton Beach Electric Blenders are on said premises mentioned above is as follows: (a) That on October 31, 1965, your affiant received information from a confidential informant that the said electric blenders were contained in the building above-described. That said informant has in the past furnished the affiant with reliable and accurate information and that he knows the informant to be a reliable source. (b) That your affiant has been informed by Thomas Noonan, a Special Agent of the Federal Bureau of Investigation, that Agent Noonan personally observed a large number of boxes bearing the name “Hamilton Beach” in the premises above-described, and that such boxes were observed through a window by Agent Noonan while he was standing in a public parking lot adjacent to the said building. (c) That the said B. and P. Motor Express Trailer No. 784 was found empty and abandoned at 103rd Street and Dan Ryan Expressway, in Chicago, Illinois, in the late afternoon of October 30, 1965. . Giordenello dealt with the sufficiency of an affidavit for the issuance of an arrest warrant. The Supreme Court stated, however, “The language of the Fourth Amendment, * * * of course applies to arrest as well as search warrants.” 357 U.S. at 485, 486, 78 S.Ct. at 1250. In a subsequent case, Aguilar v. State of Texas, 378 U.S. 108, 109 n. 1, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the Court cited Giordenello with respect to the sufficiency of an affidavit for the issuance of a search warrant. . If Morrison’s testimony is the correct version of the information given by the informant, the term “products” could refer to any of the full range of items manufactured by Hamilton Beach rather than specifically to the stolen blenders. See p. 7 infra. . The relevant testimony of Agent Morrison is as follows: Q. Did you ask him from where or how lie had obtained this information? A. No, sir. Q. Did you ask him whether or not he had seen the items in the store that he mentioned to you? A. To the best of my knowledge, I don’t recall asking him that. Q. So you have no knowledge from him or from anyone else that he personally observed these items in the store, do you? A. No, sir. Q. You don’t know whether or not he obtained that information from somebody else who may have observed it, do you? A. No, sir, I don’t. Q. Has this informant in the past supplied you with information? A. Yes, sir, he has. Q. On how many occasions? A. On several occasions. Q. How many is several? Is it more than three? A. Yes, sir. Q. Now, this informant — and again I am not asking you to reveal the identity of the informant — obtains information from other so-called underworld sources and then transmits it to you, doesn’t he? Isn’t this the way he works most of the time? A. Well, I would say in some cases, yes, and in some cases — we are talking about the past information, is that correct, sir? Q. Yes. A. I would say in some cases he did hear this from other individuals and a couple of cases he had personal knowledge of the information. . Thus if an affidavit, unlike Morrison’s, indicated the highly reliable nature not only of the confidential informant but also of his anonymous hearsay source, a different problem would be posed. In such a situation, the quantum of “underlying circumstances” necessary to sustain the affidavit would decrease as the indicia of reliability of the anonymous hearsay source increased. . Although we previously held that an affidavit setting forth the observations of fellow F.B.I. agents was sufficient to sustain the issuance of a search warrant, United States v. McCormick, 309 F.2d 367 (7th Cir. 1962), cert. denied, 372 U.S. 911, 83 S.Ct. 724, 9 L.Ed.2d 719 (1963), the affidavit there, like the one in Ventresca, was more specific than Morrison’s affidavit in this case. Question: Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_appnatpr	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Bruce Warren HOBSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Morton NEWMAN, Defendant-Appellant. Nos. 74-2700, 74-2866. United States Court of Appeals, Ninth Circuit. June 26, 1975. Rehearing and Rehearing En Banc Denied Sept. 10, 1975. Certiorari Denied Nov. 3,1975. See 96 S.Ct. 283. Gordon D. Lapides (argued), San Francisco, Cal., for defendants-appellants. David P. Bancroft, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., John D. O’Connor, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee. Before CHAMBERS and CARTER, Circuit Judges, and SCHWARTZ, District Judge. Honorable Edward J. Schwartz, Chief Judge, United States District Court, Southern District of California, sitting by designation. OPINION JAMES M. CARTER, Circuit Judge. Defendants Bruce Hobson and Morton Newman appeal from the judgments of conviction, following a jury trial, of harboring a prison escapee and fugitive from justice, being accessories after the fact, and conspiracy, in violation of 18 U.S.C. §§ 1072, 3, and 371 respectively. They allege numerous errors in their joint, six-week trial — errors pertaining to each individually and errors common to both. We affirm. FACTS The facts of this case concern the six-week period subsequent to the highly publicized October 6, 1972, “liberation” of Ronald W. Beaty from the California Institute for Men at Chino. Beaty had been serving federal time at the State facility pursuant to an Arizona federal district court twenty-year sentence for interstate transportation of kidnapped persons. While serving this sentence, Beaty joined a revoluntionary group called Venceremos and an escape plan was devised by Beaty and defendant Hobson’s mother (Jean Hobson), a member of the Venceremos Central Committee. Pursuant to this plan, Beaty was freed at gun point from a California State vehicle while enroute to San Ber-nardino County Superior Court for pretrial proceedings concerning his escape from Chino on another occasion. After the escape, during which a guard was killed, Beaty fled to Northern California, to Arizona, and back to Northern California again before being apprehended while crossing the Oakland-San Francisco Bay Bridge. This case involves the efforts of Bruce Hobson and Morton Newman to aid and harbor Beaty during the month following his escape, all other defendants having been severed from the case before trial. At trial, Beaty testified that immediately following his escape Hobson’s mother drove him to a house in Northern California (Los Altos). Shortly before daybreak the next morning, Hobson himself arrived at the house, helped load weapons into a car, and drove Beaty to a remote mountain cabin owned by Hob-son’s friends. There, Hobson and his mother guarded Beaty for about a month, furnishing him with a Colt.45 semi-automatic handgun, ammunition, civilian clothes, and false identification papers. During that period, Hobson and Beaty discussed where Beaty could be hidden in the future, problems concerning several other co-conspirators, whether or not to publicize Beaty’s membership in Venceremos, the role of Vencere-mos in the escape and flight efforts, and future plans for acts of violence. At the end of the month, Hobson and his mother returned Beaty to a Palo Alto residence where, in answer to a phone call, defendant Newman arrived carrying a Colt.45 in a shoulder holster which he later gave to Beaty. Beaty and Newman (also a member of Venceremos) discussed plans for a “shoot out” with police in the event that the residence was taken. An arsenal of weapons was deployed at the various entrances and windows of the residence for this purpose. According to Beaty, Newman took a major part in these proceedings and stood guard over him (along with other co-conspirators) during the next four nights. During this time, Newman and Beaty discussed the publicity generated by Beaty’s escape, the roles played by two other co-conspirators, Beaty’s prison experiences, their proposed future association as part of a direct action faction of Venceremos, recommendations by Newman of books on explosives, and the fact that the Colt.45 given to Beaty by Hob-son had belonged to Newman and was a “good piece.” Hobson testified at trial that he had understood Beaty to be a Vietnam veteran who had a narcotics problem and wanted to get away for a while, and that he (Hobson) took a gun to the cabin just to have it there. Newman chose not to testify. DISCUSSION On appeal, Hobson and Newman jointly contend that: 18 U.S.C. § 371 (conspiracy) and 18 U.S.C. § 3 (accessory after the fact) require the defendants’ scienter as to the distinctly federal nature of the offense committed by the person comforted and assisted; Beaty did not escape from “the custody of the Attorney General” as required by 18 U.S.C. § 1072 since Chino is a State correctional facility; and certain Vencere-mos Central Committee notes were improperly admitted into evidence against Hobson and even if properly admitted as to Hobson, necessitated Newman’s severance from the case or the giving of his proposed jury instruction. In addition to their joint contentions, the defendants allege a number of prejudicial errors applicable only to one or the other. Hobson contends that: the admission into evidence of an entry from a suppressed diary for purposes of impeachment constituted prejudicial error; and the court’s supplemental jury instruction amended the grand jury indictment in violation of the Fifth Amendment. Newman contends that: the district court failed to adopt measures to protect him from the risk of transference of guilt, particularly in failing to instruct the jury as to the possibility that multiple conspiracies had been committed instead of the single large conspiracy charged in the indictment; and evidence seized from his house pursuant to an arrest warrant should have been suppressed. We treat these various contentions seriatim. I. JOINT CONTENTIONS (a) Scienter as to the Federal Nature of the Offense Not Required Under 18 U.S.C. §§ 871 and 8 Both Hobson and Newman were convicted of being accessories after the fact, in violation of 18 U.S.C. § 3 which provides in part: “Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact....” They contend that in order for them to have violated the statute they must be shown to have known that Beaty’s escape (and shooting of the guard) constituted an offense against the United States. The district court rejected Hob-son’s proposed instruction to this effect and refused to grant a judgment of acquittal. The district court was correct in both rulings. Beaty was clearly guilty of escape. He has been convicted and sentenced to life imprisonment for that escape. There is no requirement that he had to have known that he was committing a federal offense in escaping. See United States v. Fernandez, 497 F.2d 730, 736— 739 (9 Cir. 1974). It borders on the ridiculous to suggest that Hobson and Newman could be acquitted, despite knowledge that they were aiding Beaty in hiding from the authorities, because they thought he had only committed murder and escape from a State prison. In fact, the Supreme Court has recently rejected just such a contention with respect to a conspiracy prosecution. See United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). The Court stated: “The situation is not one where legitimate conduct becomes unlawful solely because of the identity of the individual or agency [here, the prison] affected.... The concept of criminal intent does not extend so far as to require that the actor understand not only the nature of his act but also its consequence for the choice of a judicial forum.” Id. 95 S.Ct. at 1264. In United States v. Howey, 427 F.2d 1017 (9 Cir. 1970), this court held that the language of 18 U.S.C. § 641, “Whoever... without authority, sells, conveys or disposes of any thing of value of the United States”, does not require knowledge that the property taken belongs to the United States. “The reason for including the requirement that the property, in fact, belongs to the Government was to state the foundation for federal jurisdiction. A defendant’s knowledge of the jurisdictional fact is irrelevant....” 427 F.2d at 1018. Hobson contends, however, that How-ey is inapposite because it involved a principal rather than an accessory. This is essentially his same argument with respect to the conspiracy conviction under 18 U.S.C. § 371. But it is an argument rejected by the Supreme Court in Feola, supra: “The general conspiracy statute, 18 U.S.C. § 371, offers no textual support for the proposition that to be guilty of conspiracy a defendant in effect must have known that his conduct violated federal law.” 95 S.Ct. at 1265. In the present case, the defendants intended to aid Beaty escape from the authorities. The fact that they may not have known the jurisdictional (federal) nature of his pursuers and his crime is irrelevant. To paraphrase the Court in Feola, “[i]n a case of this kind the [defendants take their escapee] as [they find] him.” Id. 95 S.Ct. at 1265. (b) An Escape from a Correctional Facility Designated by the Attorney General is an Escape from “the Custody of the Attorney General” Within the Meaning of 18 U.S.C. § 1072 The defendants next contend that no federal offense was in fact committed because Beaty escaped from Chino, a State prison, and not from “the custody of the Attorney General.” See 18 U.S.C. § 1072. They cite no cases directly supporting this contention, but rely primarily upon the fact that the language “or from any institution or facility in which he is confined by direction of the Attorney General” which appears in the escape statute itself, 18 U.S.C. § 751 has been omitted from the harboring statute, 18 U.S.C. § 1072. However, the defendants have indicated. nothing in the legislative history or cases interpreting § 1072 which would suggest Congressional intent not to reach a situation such as that in the instant case where the escapee had been convicted of a federal offense, was specifically committed to “the custody of the Attorney General” by the order of Judgment and Commitment, and where the relevant federal statute provides that: “A person convicted of an offense against the United States shall be committed... to the custody of the Attorney General of the United States, who shall designate the place of confinement where the sentence shall be served.” 18 U.S.C. § 4082(a). See also 18 U.S.C. § 4082(b) (“The Attorney General may designate as a place of confinement any available, suitable, and appropriate institution or facility, whether maintained by the Federal Government or otherwise”) (emphasis added). In Tucker v. United States, 251 F.2d 794 (9 Cir. 1958), it was held that escape from a Los Angeles County General Hospital “Jail Unit” was an escape from the custody of the Attorney General, where United States Marshals had delivered the defendant to the Los Angeles County Sheriff’s Department in order to give testimony in a pending matter. The defendant had been serving a federal sentence at Alcatraz. And, in Frazier v. United States, 119 U.S.App.D.C. 246, 339 F.2d 745 (1964), the court held that escape from St. Elizabeth’s Hospital also constituted escape from the custody of the Attorney General. The court stated that “it is clear that the ‘custody’ intended is not limited to actual physical custody, but denotes a type of legal custody which remains in the Attorney General even though the prisoner is assigned to an institution over which the Department of Justice has no control.” Id. at 746. So also in the present case, we hold that escape from an institution designated by the Attorney General, pursuant to a commitment to his custody, under a federal sentence, is an escape from “the custody of the Attorney General” in the legal sense, even though the institution is run by the State. (c) The District Court Did Not Abuse Its Discretion Either in Admitting the Venceremos Central Committee Notes or in Failing to Permit Severance Over the defendants’ objections, the district court admitted into evidence against Hobson a one-page note of the Central Committee of the Venceremos. The note approved Beaty’s escape and advocated making the escape and Beaty’s affiliation with Venceremos public to “bridge the gap between talk about revolutionary action... and actual revolutionary action. It succeeded and shows that actions can be taken.” Hobson contends that the prejudicial effect of the note far outweighed its evi-dentiary value (it was drafted by unidentified individuals after a meeting held outside of Hobson’s presence), that the evidence failed to conform to the offer of proof, and that since the notes “only” advocated publicity, their use against Hobson violated his First Amendment rights. We conclude that the trial court did not abuse its discretion in holding that any unfair prejudice was outweighed by the probative value of the note. See Rule 403, Federal Rules of Evidence (effective July 1, 1975). A major part of the Government’s theory of the conspiracy was that all defendants, along with Beaty, were members of the Venceremos, that the Central Committee dictated the actions of the members who followed order in military fashion, and that the note indicated a Central Committee decision both to publicize and facilitate Beaty’s escape. The note was allegedly typed by Hobson’s mother, and was read and ratified by both him and Beaty in each other’s presence. Thus, the note was a reasonable link in the theory that Hobson was part of the Venceremos conspiracy, knew of the illegality of Beaty’s escape, and recognized that the authorities would be trying to recapture Beaty and that he was to help harbor and conceal Beaty on specific Venceremos Central Committee orders. Since much of the clearly admissible testimony linked Hobson (and Newman) to the Venceremos, the prejudicial impact of the note was slight. And since Hobson ratified the content of the note, he cannot complain that it was not written by him. Our reading of the record indicates that the note did not fail to conform to the offer of proof, but any such failure was totally insignificant and harmless. Hobson’s First Amendment argument based upon United States v. Spock, 416 F.2d 165 (1 Cir. 1969), is misplaced. In that case, the entire conspiracy and prosecution (conspiracy to counsel, aid, and abet registrants to evade the draft) involved a mixture of protected and unprotected activity. Statements made by some third parties alleged to be co-conspirators were introduced against the defendants to show specific intent. Because of the mixture of protected and unprotected sentiments, the court stated: “The specific intent of one defendant in a case such as this is not ascertained by reference to the conduct or statements of another even though he has knowledge.” 416 F.2d at 173. The defendant’s specific intent to adhere to the illegal portions, however, may be shown “by the individual defendant’s prior or subsequent unambiguous statements; by [his] subsequent commission of the very illegal act contemplated by the agreement; or by [his] subsequent legal act if that act is ‘clearly undertaken for the specific purpose of rendering effective the later illegal activity which is advocated.’ ” Id. In the present case, Hobson not only had knowledge of, but also specifically ratified the content of the note. He said on other occasions that he was aiding Beaty avoid recapture under specific Central Committee orders, and committed that on-going, specific illegal act for at least four days. Finally, the note goes beyond mere advocacy of publicizing the escape; it advocates the success of revolutionary action (Beaty’s escape), and indicates that the continued success (necessarily including avoidance of recapture) will encourage other revolutionary action. On all of the above grounds, Spock is just not on point. Even assuming the admissibility of the note as to Hobson, however, Newman contends that since it was not admissible as to him, he should have been severed from the trial or the court should at least have instructed the jury at the end of the trial that the evidence was only admissible as to Hobson. The issue of whether the court abused its discretion in failing to sever turns on the propriety of the court’s assessment of the jury’s ability to compartmentalize the evidence' against the defendants. See United States v. De LaRosa, 450 F.2d 1057, 1065 (3 Cir. 1971). Here, there were only two defendants on trial. There was no mention of Newman in the note, and in any event the court on two occasions, properly instructed the jury as to its limited admissibility. The relevation in the note of "Venceremos aims and thinking could not have prejudiced Newman to any great degree since he admitted (through Beaty) of being an active member, and his arsenal of weapons sufficiently demonstrated his willingness to engage in violence. In United States v. Ellsworth, 481 F.2d 864, 871 (9 Cir. 1973), the court rejected a similar contention with respect to certain admissions of co-defendants, not admissible as to the complaining defendant: “The admissions made by the defendants pleading entrapment did not name or hint at the involvement of any other defendant. Any conceivable taint was removed when the district court carefully instructed the jury that these admissions could not be considered against any other defendant.” See also United States v. Berlin, 472 F.2d 13, 16 (9 Cir. 1973). The district court twice instructed the jury that the Central Committee note was admissible only as to Hobson and, at the end of the trial, that the jury should not only consider the evidence admitted with respect to each individual defendant in determining guilt or innocence. Newman’s contention that it was prejudicial error not to again instruct that the note was not to be considered with respect to Newman is without merit. II. HOBSON (a) The Entry From a Suppressed Diary Was Properly Admitted for Purposes of Impeachment As part of the Government’s casein-chief, Beaty testified that Hobson had told him that he (Hobson) had gone to his friends’ (the Taulbees’) mountain cabin a few days before Beaty’s arrival to inspect it. This was elicited with respect to the charge that Hobson had conspired “with others” to harbor, conceal and assist Beaty. To refute this inference, Hobson took the stand and the following exchange took place between. Hobson and his counsel: “Q. Let me ask you this. Did you ever make any prior contact or arrangements with Milton or Laura Taulbee before going to the cabin? A. No. Q. You did go up there and say, ‘Here we come and you be here when we arrive? A. No.” After receiving a negative response to his question of whether Hobson had made any prior arrangements or preparation at the cabin, the prosecutor on cross-examination introduced an entry in Hobson’s diary from the day before Beaty’s arrival, in order to impeach Hobson. Among other notations appeared the word “PREPARE”. The Government had previously stipulated that the diary would be treated as if a motion to suppress had been granted with respect to it. However, the Government contended, and the district court agreed, that it was still admissible (for purposes of impeachment) on cross-examination under Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954) and Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Hobson contends that his answers on direct were solely defensive, merely denying the elements of the crime charged (conspiring to prepare the cabin to hide Beaty), and that in any event the diary entry was not directly contradictory evidence as required for impeachment purposes by Walder and United States v. Trejo, 501 F.2d 138 (9 Cir. 1974). Trejo, supra, is distinguishable in that there the defendant only generally denied the crime charged. The court stated that “since the offered evidence does not focus on the truthfulness of a defendant’s direct testimony, we hold its introduction into evidence to be error.” 501 F.2d at 145. In the proceedings below, on the other hand, Hobson went beyond a mere general denial, also stating that he had made no prior preparations for Beaty’s arrival. In any event, Hobson gave an uncontradicted account of what the word “PREPARE” meant, and it was a very minor piece of evidence in a six-week trial. The court specifically instructed the jury to consider it solely for impeachment. The error, if any, was harmless. See Trejo, supra, at 145. (b) The Supplemental Jury Instruction Did Not Impermissibly Amend the Grand Jury Indictment Count III of the indictment provided that Hobson “did transport and... provide Ronald Wayne Beaty with quantities of food, men’s clothing and a Colt.45 caliber semi-automatic handgun.” (Emphasis added.) The jury evidently had a problem with respect to the gun, since the evidence at trial was that either Hobson gave Beaty a different gun, or that someone else had given Beaty the gun, although it originally came from Newman and Hob-son. After several inquiries on this matter by individual jurors, the court instructed that if all other allegations had been proved (including transporting Beaty), then proof beyond a reasonable doubt that Hobson furnished Beaty “with quantities of food or men’s clothing or a Colt.45 caliber semi-automatic handgun” would be sufficient. (Emphasis added.) Hobson argues that the grand jury might have been willing to indict only if Hobson had furnished all of the above articles. Hence, the court’s instruction, changing the conjunctive in the indictment to the disjunctive in the instruction, requires reversal. We disagree. Hobson’s argument is premised upon the holding of the Supreme Court in Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), that an amendment to the body of an indictment violates a defendant’s Fifth Amendment rights because there is no way of knowing whether the grand jury would have returned the indictment as amended if they had been given the opportunity. But in Salinger v. United States, 272 U.S. 542, 47 S.Ct. 173, 71 L.Ed. 398 (1926), the Court limited Bain to its facts, holding that it was proper for the trial court to withdraw from the jury all but one of a number of fraudulent schemes alleged in the indictment. Any suggestion that Bain might have continuing validity beyond its facts (actual and physical striking out of words on the face of the indictment), was recently laid to rest by the decision of this court in United States v. Dawson, 516 F.2d 796 (9 Cir. 1975). The present case involves a slightly different problem than that in Salinger and Dawson, however. In those cases, the question was one of surplusage: the court removed all but one fraudulent scheme from jury consideration in Salinger and one of two bribery counts arising out of single bank robbery prosecution in Dawson. Therefore, conviction even on the amended indictment insured that the jury all agreed as to the remaining count. Hobson contends that in the case at bar each juror could have voted to convict With respect to a different act of furnishing, thereby precluding jury unanimity as to any one act. Although this argument has surface appeal, its major premise is fatally undermined by Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 654, 24 L.Ed.2d 610 (1970), where the Court stated: “The general rule is that when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive.. the verdict stands if the evidence is sufficient with respect to any one of the acts charged.” The grand jury indictment in this case tracked the language of 18 U.S.C. § 1072 by charging Hobson with harboring and concealing Beaty by transporting him and by furnishing him food, clothing, and a gun. Either the transporting or any of the acts of furnishing would be sufficient to support conviction. Hobson admits that “there was little question as to the transportation, food and clothing.” Brief, at p. 39. The effect of the supplemental instruction, then was to permit the jury to convict without finding that Hobson also furnished a Colt.45 caliber handgun. Under Turner, supra, and the decisions in this Circuit, this was not improper. See, e. g., McGriff v. United States, 408 F.2d 333, 334 (9 Cir. 1969) (elements of the offense denounced dis-junctively in the statute, alleged con-junctively in the indictment; instruction to the jury in the disjunctive held proper). III. NEWMAN (a) The Court Adequately Protected Newman From the Risk of Guilt Transference Newman alleges that the trial court did not take precautions adequate to protect him from the risk of “guilt by association,” particularly in refusing to instruct the jury as to the possibility that the Government had shown several conspiracies, rather than the one overall conspiracy charged in the indictment. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); Berger v. United States, 295 U.S. 78, 55 5. Ct. 629, 79 L.Ed. 1314 (1935). The doctrine enunicated in Kotteakos and Berger, however, has been applied primarily in those cases where the evidence reveals the likelihood that one or more of the defendants did. not know or had not agreed to the overall goals of the other co-conspirators, e.g., where there was a conspiracy to import drugs and one defendant may not have known the drugs were imported when he later bought them. In the proceedings below, on the other hand, the evidence clearly indicated that Newman knew that Beaty was an escapee, that members of the Venceremos were responsible for the escape and subsequent concealment, that he was aiding in that concealment on orders from the Vencere-mos, and that Beaty planned to move from Los Altos with the help of other Venceremos members for the purpose of showing that revolutionary action was possible. The fact that he may not have known all of the purposes involved and all of the co-conspirators is irrelevant. Once a conspiracy is shown, only slight evidence is required to link any one defendant to the conspiracy. See United States v. Knight, 416 F.2d 1181 (9 Cir. 1969). Under these circumstances, we conclude that the court’s instructions at the end of the trial, along with the instruction limiting the admissibility of the Central Committee note at the time it was introduced, were sufficient to protect against any risk of transference of guilt. In United States v. Ellsworth, 481 F.2d 864, 869 (9 Cir. 1978) the court stated: “Ellsworth claims that the district court erred in not granting his motion for new trial on the ground of a fatal variance between the one general conspiracy charged in the indictment and the proof at trial of several distinct conspiracies. The defense stems from the decision in Kotteakos v. United States. “The test here is whether there was one overall agreement among the various parties to perform various functions in order to carry out the objectives of the conspiracy; if so, there is a single conspiracy.... Although the proof of Ellsworth’s guilt was not strong, it was more than adequate to sustain a conviction, and such conviction carried with it the implied finding that, contrary to this testimony, Ellsworth knew or had reason to know of the existence of the charged conspiracy and its object. That Ells-worth may not have known the precise identities of the other principals is not relevant.. “To the extent that Ellsworth complains about ‘guilt by association,’ the district court obviated such problem through the giving of certain adequate cautionary instructions to the jury.” The evidence of multiple conspiracies, lack of evidence of the defendant’s knowledge of the conspiracy, and opportunity for “guilt by association” in Ells-worth were all stronger than in the present case with respect to Newman. See also Blumenthal v. United States, 332 U.S. 539, 551-552 n.8 & 9, 559-560, 68 S.Ct. 248, 92 L.Ed. 154 (1947); United States v. Lane, 514 F.2d 22 (9 Cir. 1975). (b) The Court Properly Admitted Evidence Obtained From Newman’s Home Pursuant to an Arrest Warrant Pursuant to an arrest warrant, Newman was arrested in his home and a search thereof was undertaken. Photographs of various weapons seized during this search were admitted against him at trial. He contends that the arrest warrant was issued without probable cause, that the arresting officer’s entry into the house was made without sufficient notice, that the ensuing search went beyond the limits imposed by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and that even if legally seized, the photographs should have been stricken as evidence in the case after the court dismissed the counts to which the guns in the photographs related. We hold that the search and seizure were proper in all respects. The existence of probable cause for the arrest was founded upon Beaty’s firsthand, eye-witness account of his escape and Newman’s help in concealing him and furnishing him with weapons and supplies, the fact that his (Beaty’s) declarations were against his penal interest, and the subsequent corroboration by the FBI affiant of the fact of the commission of the crime and details regarding the participants. This was clearly sufficient to justify the issuance of the warrant for Newman’s arrest. The narcotics cases cited by Newman involving unrevealed paid informers are not apposite. See Musgrove v. Eyman, 435 F.2d 1235, 1238 (9 Cir. 1971). With respect to the entry, the officers banged loudly at Newman’s door and yelled, “FBI — Open the door.” They waited 10 to 30 seconds without response and then broke in the bedroom window to gain admittance. They had seen Newman and at least one other individual in the house as they approached. This observation was coupled with their knowledge that Beaty and others had shot and killed an unarmed guard during his escape, and that Newman had allegedly supplied Beaty with weapons and possessed a small arsenal himself. Furthermore, Newman had allegedly been part of a plan to use machine guns and hand grenades on the authorities if they had tried to arrest Beaty while in the Los Altos house — and Newman had himself inspected all of the various weapons. With all of this in mind, the officers would have been foolhardy to wait any longer than they did. On virtually identical facts (but without prior knowledge that an arsenal of weapons and an expert with respect thereto was inside) the entry in United States v. Allende, 486 F.2d 1351, 1353 (9 Cir. 1973), was upheld. This is therefore an even stronger case for upholding the entry. Once inside the house, the officers found a number of weapons in “plain view” in various rooms of the house. Newman contends that searches of a house in which an arrest has been made are limited by Chimel, supra, to the area within which the arrested person might have obtained either a weapon or something that could have been used against the officer. Chimel was intended to prevent officers from using an arrest as a pretext for ransacking a defendant’s house in the search for evidence. Clearly, where the house is reputed to contain an arsenal of weapons and people who know how to use them and have expressed an intent to do so, some protective measures are in order. In the present case, the officers found two persons in the house in addition to Newman. Weapons were lying around in almost every room in plain view. It was entirely proper to quickly search each room for additional persons and weapons. See United States v. Mulligan, 488 F.2d 732, 734-735 (9 Cir. 1973); United States v. Sellers, 17 Cr.L. Rptr. 2085 (4 Cir. April 10, 1975); United States v. Briddle, 436 F.2d 4, 6 (8 Cir. 1970), cert. denied, 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 824 (1971). Finally, Newman Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_weightev	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Richard ATTREAU, Plaintiff-Appellant, v. Joseph MORRIS, Francis J. Bailey, Arthur P. Lindsey, Lester M. Anglin, Jesse J. Word, Edwin E. Williams, Alvin J. Palmer, William D. Crowell, David Mozee, Samuel Mosely, Columbus C. Brooks, Jr., Defendants-Appellees. No. 15105. United States Court of Appeals Seventh Circuit. March 21, 1966. Rehearing Denied April 19,1966. Enoch, Circuit Judge, dissented. James P. Chapman, Chicago, 111., for appellant. Raymond F. Simon, Corp. Counsel, Sydney R. Drebin, Marvin E. Aspen, Chicago, 111., for appellees. Before SCHNACKENBERG, KNOCH and SWYGERT, Circuit Judges. SCHNACKENBERG, Circuit Judge. Richard Attreau, plaintiff, has appealed, from an order of the district court dismissing with prejudice his complaint charging Joseph Morris and other defendants with violating his rights under the federal civil rights act, 42 U.S. C.A. § 1983, and the fourteenth amendment of the constitution of the United States. It is plaintiff’s contention that the district court committed error in ruling that the complaint failed to state a cause of action. We now consider the facts as alleged in the complaint. Plaintiff, of Chicago, Illinois, a citizen of the United States, was and is employed by that municipal corporation, as a police officer with the rank of patrolman. Defendants were also police officers of said city and were assigned to the “internal investigation unit” of its police department. With regard to the wrongs complained of, plaintiff avers that defendants were acting in the course of their employment and in performance of their duties as such police officers, under color of the statutes, ordinances, regulations, constitution and usages of the city of Chicago, county of Cook and state of Illinois; and that, on or about February 5, 1962, an anonymous letter to the superintendent of police of the city charged that said defendants and other police officers were guilty of accepting “payoffs” to permit violations of law to take place without police interference, in the Englewood police district. Shortly after receipt of this letter, defendants questioned plaintiff as to any evidence in his possession about misconduct or dereliction of duty by any officer assigned to the Englewood police district and were advised by plaintiff that he had no such knowledge. Thereupon, to embarrass Captain Bra-band, commanding that district, because of their personal dislike for him and other officers in that district, defendants embarked upon a plot to exculpate themselves from the charges in said letter, and defendants Morris, Bailey and Mozee sought to compel plaintiff to accuse Bra-band and detective John Sexton, assigned to said district, of malfeasance and misfeasance, threatening plaintiff that they would cause him to be arrested, prosecuted and discharged from his position if he did not make such accusations. When plaintiff refused to accede to these threats, defendants, in furtherance of their plot, in concert did the following things: (1) On March 13, 1962, defendants Morris, Bailey and Mozee arrested plaintiff without a warrant or probable cause or other lawful authority and, with the cooperation of the other defendants, detained him for twelve hours at their unit headquarters. No charges were filed against plaintiff as a result of this arrest and detention. (2) During the arrest on March 13, 1962, defendants threatened to cause plaintiff’s imprisonment and discharge from his employment. (3) On May 2, 1962, defendants were instrumental in causing the return of an indictment in the Criminal Court of Cook County against plaintiff, based on perjured testimony, which indictment falsely charged plaintiff with the crime of “Official Misconduct.” (4) Defendants were also instrumental in causing the superintendent of police to file charges against plaintiff before the police board. These charges falsely accused plaintiff with violation of certain state criminal statutes and rules and regulations of the police department of the city. (5) Defendants Morris, Bailey, Lindsey, Anglin, Word, Williams, Palmer, Mozee and Mosley caused plaintiff to be suspended from his position as a police officer from the day of his arrest, March 13, 1962, until April 11, 1963, when he was ultimately fully cleared by the police board and restored to duty. The complaint further alleged that on January 27, 1963, plaintiff’s case was called for trial in the Criminal Court of Cook County, Illinois, and he, with his counsel, was present and answered that he was ready, but the state’s attorney made a motion of nolle prosequi, which was granted, thus ending the proceeding. The complaint asserts that the foregoing constituted a plot against him by defendants under color of law and that he was thereby deprived of his liberty, pursuit of happiness and property without due process of law. In particular, he states that his reputation, credit and standing became a subject of scandal and disgrace among those who knew him and that he incurred expense in procuring his discharge from custody and in defending himself, and lost wages which he would otherwise have earned. Defendants’ motion to strike the complaint and dismiss the cause of action is based on two grounds: (1) Plaintiff’s complaint is replete with immaterial allegations and conclusions. (2) Plaintiff’s complaint does not indicate any violation of 42 U.S.C.A. § 1983 or the fourteenth amendment of the constitution of the United States. 1. In this court defendants argue that an invalid arrest is not in and of itself a violation of the federal civil rights act. We are not called upon to decide the correctness of this abstract proposition. The arrest and detention for twelve hours, without a warrant or probable cause or other lawful authority, as alleged in the complaint, accompanied by threats that plaintiff would be imprisoned and discharged from his employment, the procuring of his indictment, his suspension as a police officer for nearly thirteen months, and the charging that plaintiff had violated various statutes and rules and regulations of the police department, must all be considered together in determining whether the complaint sufficiently charges a violation of the civil rights act. We hold that the complaint contains sufficient allegations to support this charge. Our conclusion is not in any way at variance with Magee v. Williams, 7 Cir., 329 F.2d 470 (1964), where we held that a police officer of the city of Chicago could not maintain an action, 28 U.S.C.A. §§ 1331 and 1343, and 42 U.S.C.A. §§ 1981, 1983, 1985 and 1986. There, plaintiff was a city motorcycle policeman who stopped a speeding car driven by one Williams, who was actually a member of the internal investigation division of the Chicago police department (the same organizational unit as here involved). Magee rejected an offer of a bribe by Williams. Magee, believing that he had reasonable grounds for so doing, compelled Williams to submit to a search of his person, by reason of what appeared to be a gun. Thereupon Magee discovered a hidden recording device installed on Williams’ person, intended to record Magee’s conversation and his anticipated acceptance of a bribe offer. Magee was prevented from taking the recording device from Williams by two other city policemen who came and seized the device, informing Magee that it was police department property. Later Magee was told by a superior officer to release Williams, together with all articles taken from him. Magee did so and returned to his assigned duty. We held that there was no attempted entrapment of Magee and, at page 475, we said: “ * * * Therefore, we might be justified in treating as irrelevant the contention that an attempt to entrap him caused him actionable damage under the Civil Rights Act. However, we prefer to meet this contention. How was he damaged? It has not been questioned that the general purpose of Superintendent Wilson and the other defendants was to determine which police officers were dishonest. That determination would afford a basis for discharging such men. This plan obviously, if successful, would operate for the good of the public as well as every honest police officer. Plaintiff claims that he has always had a reputation as such an officer, an assertion which is not disputed. If his reputation was grounded upon fact, he had nothing to fear if, in the operation of the cleansing plan, there was applied to him, as an honest officer, the same test as was applicable to every other officer. If a driver whom he detained for a violation of law offered him a bribe which he refused, he was not damaged. Only by a later tortuously legalistic resort to the doctrine of entrapment was an effort made to demonstrate that he was damaged, because the conversation between plaintiff and the driver had been electronically recorded. The fallacy lies in the fact that in that conversation, according to plaintiff himself, he said nothing inconsistent with his faithful performance of his duty as an honest police officer. “Stated briefly, plaintiff’s complaint shows that, when submitted to a fair test designed for all police officers, he proved himself honest. Undoubtedly he was at the time justifiably gratified. Thereafter a prospect for monetary gain appeared and hence this litigation ensued. However, virtue is its own reward. Certainly there is no federal law that a policeman be awarded damages simply because he did his work honestly.” Obviously Magee’s rights under federal law were not violated. In contrast, the complaint’s allegations, which are not now denied in the case at bar, show that plaintiff’s rights under federal law were violated. 2. But defendants’ counsel contend in this court that, as a matter of fact, what plaintiff is really complaining about is not an arrest but simply his co-operative submission to an effective and fair investigation, as required by rule 298 of the police department and its General Order 16(3). Rule 298 on March 13, 1962 provided: “Although certain hours are allotted for the performance of regular duty assignments, a police officer is required to respond immediately to any police emergency regardless of when or where it may oceur within the corporate boundaries of the City of Chicago and is subject to applicable provisions of the Rules and Regulations of the Department at all times.” General Order 16(3), in effect on March 13, 1962, provided, in part: “All personnel of the Department will cooperate fully with the Internal Investigation Division staff, responding to requests for information, records, and reports.” The short answer to defendants’ contention is that a question of fact may be present as to whether their counsel’s present characterization of the conduct of defendants, as appearing in the complaint, is to be believed, or whether plaintiff’s characterization thereof is to be believed. This issue requires that defendants answer the complaint, join issues and permit the trier of facts to decide the factual issues. We cannot decide by merely considering defendants’ factual contention as stated in their brief. They should be required to file an answer. Coleman v. Johnston, 7 Cir., 247 F.2d 273, 275 (1957). 3. Contrary to defendants’ argument, we hold that the fact that plaintiff was indicted does not preclude this suit. They cite no federal court decision which supports their argument. Cf. Kozlowski v. Ferrara, 117 F.Supp. 650, S.D.N.Y. (1954). Persuasive, although probably not binding on the federal courts, is the rule announced in Freides v. SaniMode Mfg. Co., 33 Ill.2d 291, 211 N.E.2d 286 (1965), where the Illinois Supreme Court held that the return of an indictment does not grant defendants an absolute defense in a malicious prosecution action. At 296, 211 N.E.2d at 289, that court stated: “An indictment is but a formal accusation of a crime. * * * ” Seeking support from Ravenscroft v. Casey, 2 Cir., 139 F.2d 776 (1944), defendants maintain that the grand jury’s action under the circumstances of the case at bar “ * * * would preclude an action against the persons who caused * * * [plaintiff’s] arrest and prosecution for commission of a felony.” Raven-scroft was a diversity action for malicious prosecution under New York law. Plaintiff was a citizen of Ohio. The undisputed facts in her amended complaint revealed that plaintiff had been held for the grand jury by a police justice. The United States Court of Appeals, at 778, held this showed the presence of probable cause, under state law, which precluded the action. The case at bar is not a diversity action governed by state law. It is a federal action, and we hold as federal law that the indictment of plaintiff did not preclude this action. For all of these reasons, the order from which this appeal was taken is reversed, and this cause is remanded to the district court for further proceedings in due course. Reversed and remanded with directions. . Francis J. Bailey, Arthur P. Lindsey, Lester M. Anglin, Jesse J. Word, Edwin E. Williams, Alvin J. Palmer, William D. Crowell, David Mozee, Samuel Mosely, Columbus C. Brooks, Jr. . According to the complaint, since plain- (, tiff did not have possession of the grand jury minutes when the instant action was initiated, he was not able to allege the names of the specific persons who actually falsely accused him before the grand jury. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_circuit	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. UNITED STATES of America, Plaintiff-Appellee, v. Thomas AMBROSE, et al., Defendants-Appellants. Nos. 83-1213 to 83-1221, 83-1291. United States Court of Appeals, Seventh Circuit. Argued Feb. 8, 1984. Decided July 17, 1984. Dan K. Webb, U.S. Atty., James G. Schweitzer, Asst. U.S. Atty., Chicago, 111., for plaintiff-appellee. Elliot Samuels, James B. Haddad, Michael Jay Green, Chicago, 111., for defendants-appellants. Before WOOD and POSNER, Circuit Judges, and REYNOLDS, Chief District Judge. Hon. John W. Reynolds of the Eastern District of Wisconsin, sitting by designation. POSNER, Circuit Judge. Ten former Chicago policemen — the “Marquette 10” as they came to be called in the course of their celebrated three-month trial — appeal from their convictions for protecting narcotics dealers in Chicago’s Marquette district. The evidence, the sufficiency of which the defendants do not contest, shows that for more than three years the defendants protected two large drug distributorships in exchange for money and goods. They not only failed to arrest the distributors or their employees; they warned the distributors of impending raids by honest policemen, ignored many complaints from citizens about the activities of the distributors (who flaunted their wares so boldly that the press of customers caused traffic jams), and even beat up and threatened to kill a drug dealer who was competing with the protected distributors. The jury convicted all of the defendants of aiding and abetting federal narcotics violations, of extortion in violation of the Hobbs Act, and of violating the RICO statute. The judge sentenced each of the defendants to prison terms ranging from 10 to 20 years, followed by five years of probation. The most difficult issue raised by these appeals is the interrelationship between the federal aiding and abetting statute, 18 U.S.C. § 2, and the so-called “kingpin” statute, 21 U.S.C. § 848 (Continuing Criminal Enterprises, Title II, § 408, of the Organized Crime Control Act of 1970), which requires that heavy penalties be imposed on a person who commits a felony narcotics violation that “is a part of a continuing series of violations ... (A) which are undertaken by such person [the ‘kingpin’] 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.” 21 U.S.C. § 848(b)(2). The minimum penalty for the kingpin is 10 years in prison with no possibility of parole. The maximum prison sentence is life imprisonment, again without possibility of parole. Section 848 is the only federal criminal statute that does not allow parole. See U.S. Dept, of Justice, U.S. Parole Comm’n, Rules and Procedures Manual § 2.2-04 at p. 7 (Oct. 1, 1983). And because violation can be punished by life imprisonment, neither suspension nor probation is possible even if the sentence is for a shorter term than life. This is clear from 18 U.S.C. § 3651; but to make assurance doubly sure the kingpin statute expressly forbids suspension or probation. See 21 U.S.C. § 848(c). However, time off for good behavior is allowed from other than life sentences; and for sentences of 10 or more years this enables the prisoner, by behaving himself, to cut his sentence by a third, and sometimes even more. See 18 U.S.C. §§ 4161, 4162. The defendants in this case are not the kingpins; the drug distributors whom they protected are (and in separate proceedings were sentenced to 15-year prison terms under the kingpin statute). The defendants argue that Congress, in establishing such harsh penalties for being a drug kingpin, could not have intended to subject mere aiders and abettors to equivalent penalties. No doubt this is correct, as the government concedes, with respect to those whom the kingpin organizes, supervises, or manages. Otherwise there would be no differential punishment for the kingpin. His lowliest accomplices — mixers, runners, look-outs — would be subject to the same punishment as he, since the aider and abettor statute, as we are about to see, allows the aider and abettor to be punished as a principal. When a statute reveals on its face, as section 848 does, the legislators’ purpose to make one class of persons punishable more heavily than another, a court will not defeat that purpose by applying the general aiding and abetting statute to the second class. Cf. United States v. Southard, 700 F.2d 1, 20 (1st Cir.1983). That is what we would be doing if we applied 18 U.S.C. § 2 to the kingpin’s non-supervisory employees. But that is not what we are being asked to do. The defendants are not the kingpins’ employees, but the kingpins’ police protectors. Congress probably would have wanted them to be punishable, in an appropriate case, as severely as the kingpins themselves. It is difficult for a large illegal enterprise to flourish without official protection; and the large revenues that such enterprises earn (the source of the kingpin’s “substantial income or resources,” referred to in the statute) enable them to dangle attractive bribes before policemen and other officials. The effectiveness of the kingpin statute might therefore be reduced if a kingpin’s police protectors, such as these defendants, whose efforts enabled large drug enterprises to flourish brazenly for years, could never be punished as aiders and abettors. True, they could still be punished for aiding and abetting a violation of 21 U.S.C. § 846, a statute that also carries heavy penalties. But the penalties are not nearly so heavy as those under section 848, so that under the position urged by these defendants the aider and abettor could not be punished as severely as the principal even if he was just as culpable. We do not think that Congress intended this result. A harder question (not separately raised by the defendants, but implicit in their challenge to the application of the aider and abettor statute to them) is whether, in sentencing the aider and abettor of a narcotics kingpin, the judge is bound by the minimum sentence provisions of section 848. Although a minimum prison sentence of 10 years with no possibility of parole cannot be precisely equated to any sentence that allows for parole, it is approximately as severe as a 21-year sentence with parole. A person sentenced to 10 years in prison with no possibility of parole who earned his full good-time credits under 18 U.S.C. § 4161 (but not the additional “industrial good time” credits that can be earned under section 4162) would serve 7 years, while a person sentenced to 21 years in prison would be eligible for parole after 7 years, see 18 U.S.C. § 4205(a), though he would not be assured of parole then. (Parole is never mandatory in the federal system, see 18 U.S.C. § 4206, and in fact most prisoners serve more than the one-third minimum before being paroled.) Obviously, either a minimum 10-year sentence without possibility of parole, or a minimum 21-year sentence with that possibility, takes from the trial judge a great deal of his sentencing discretion. This was Congress’s desire with regard to the sentencing of the kingpin himself; but we must decide whether, in interpreting a different statute, the aiding and abetting statute, we should impute to Congress the same desire with regard to all of the kingpin’s aiders and abettors. The aiding and abetting statute states: “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” 18 U.S.C. § 2(a). Although this language, like that of its predecessor provision (“Whoever ... aids, abets, [etc.] is a principal,” Act of March 4, 1909, § 332, 35 Stat. 1152), makes clear that an aider and abettor can be punished as severely as the principal, it does not make clear that he must always be punished so severely. History is against such an interpretation. The distinction between “principal” and “aider and abettor” goes back to the time when all felonies carried the same sanction — death. By enabling the courts to punish a class of less culpable offenders — aiders and abettors as distinct from principals — less severely, the distinction introduced a welcome element of gradation into the sentencing of felons. See 4 Blackstone, Commentaries on the Laws of England 39 (1769); Perkins, Parties to Crimes, 89 U.Pa.L.Rev. 581, 613-15 (1941). But as judges acquired more and more sentencing discretion, the need to distinguish between principals and aiders and abettors diminished, and since it was sometimes a difficult decision to make there was a movement to abolish it with regard to determining criminal liability. This movement culminated in 18 U.S.C. § 2(a). But the purpose was not to make sure that aiders and abettors were always punished as severely as principals. Indeed, in passing the statute Congress must have realized that judges would use their sentencing discretion to proportion the severity of the sentence to the aider and abettor’s fault. The history suggests that, rather than being intended to limit sentencing discretion, the abolition of the distinction between principals and aiders and abettors presupposed such discretion. Since section 848 does not prescribe all penalties but only minimum penalties, equating the punishment of a kingpin’s aider and abettor to that of the kingpin would not prevent the judge from giving the aider and abettor a lighter sentence, provided that the judge was minded to sentence the kingpin to a longer term than the minimum provided in the statute. But the curtailment of sentencing discretion would still be very great, because the minimum sentences are so severe and because aider and abettor liability is defined so broadly. Learned Hand’s classic definition requires only that the alleged aider and abettor “in some sort associate himself with the venture, that he participate in it as something that he wishes to bring about, that he seek by his action to make it succeed.” United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938); see also Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949); United States v. Farid, 733 F.2d 1318, 1319 (8th Cir.1984); United States v. Beck, 615 F.2d 441, 448-49 (7th Cir.1980). There is nothing said about the magnitude and essentiality of the aider and abettor’s role. A policeman who took an isolated bribe from a kingpin but did not engage in a prolonged and systematic protection racket, as these defendants did, would still be an aider and abettor of the kingpin, and therefore under the view that the aiding and abetting statute mechanically incorporates the whole punishment schedule of section 848 would have to be sentenced to a minimum of 10 years in prison without possibility of parole. Yet if there were no minimum the judge might sentence the policeman to only two or three years in prison and the policeman would be eligible for parole after serving a third of that time. It would be artificial to assume, in the absence of any evidence, that the Congressmen who voted for the kingpin statute in 1970 were conscious that the aiding and abetting statute (last amended in 1951) might interact with the minimum penalties in the new statute to curtail the judge’s established power to differentiate in sentencing between the principal and his aiders and abettors. And to impute such a purpose to Congress would tend rather to defeat than to promote the objects of the legislation, because it would put pressure on the courts to define aiding and abetting very narrowly, as in United States v. Jones, 678 F.2d 102 (9th Cir.1982), in order to prevent section 848 from drawing within its deadly grasp all sorts of minor offenders. These include not only the policeman who takes one small bribe, but the landlord who leases space or the merchant who sells supplies to the kingpin knowing he is engaged in the narcotics business. These accomplices would be aiders and abettors of section 848 violations; for not being under the kingpin’s direction they would not be protected by the exception to aiding and abetting liability for those whom the kingpin employs or directs. The point is not that such accomplices ought not be punishable by such severe penalties as are provided in section 848. That is not our business. These defendants, however, were not sentenced under section 848, and could not have been, because they were not found guilty of being drug kingpins. They were sentenced under the aiding and abetting statute. Our job is to mesh two statutes passed at different times and without express reference to each other. In attempting to mesh them we cannot ignore the Supreme Court’s recent decision in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637 (1983), “holdpng] as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted” to pass constitutional muster under the Eighth Amendment’s cruel and unusual punishment clause. Although the Court in Solem said that reviewing courts “should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crime,” id., where as in the present case the legislature has not spoken clearly to the interrelation between two statutes we are not merely entitled, we are required, to consider the consequences for proportional punishment of alternative interpretations of the two statutes. If we hold that an aider and abettor of a section 848 violation is within the minimum-sentence provisions of that statute, even though he is sentenced under a different statute, 18 U.S.C. § 2, we shall create a situation where the statutory scheme requires disproportionate punishment. For there will then be cases where a kingpin’s own misconduct is not sufficiently egregious to earn him more than the minimum 10-year no-parole prison sentence and where the aider and abettor’s culpability is much less (maybe he was just a minor supplier of the kingpin) — yet the aider and abettor would have to be given the same sentence. We do not suggest — it is not argued — that Congress would violate the Eighth Amendment if it decreed that result; it is enough that we do not think it has decreed it. Thus, although we agree with the government that the defendants can be punished as aiders and abettors of kingpins, we must remand for resentencing on this count so that the district judge can decide whether he wants to punish them as severely as he would have to do if they were the kingpins themselves. He may decide that the sentences he has given are appropriate and reimpose them; but alternatively he may decide that less severe sentences (shorter, or with provision for parole) would be appropriate. We express no view on what sentences he should impose. Although the penalties in section 848 are among the most severe known to modern federal law, the misconduct of these defendants was very grave, and we do not depreciate it. They were not, however, the kingpins; and we hold that in sentencing an aider and abettor the district judge is not bound by the minimum-sentence provisions in the kingpin statute. On remand he should indicate explicitly whether the sentences he imposes shall be subject to parole. We also accept the government’s confession of error with regard to the district judge’s action in sentencing the defendants both for aiding and abetting violations of 21 U.S.C. § 848 and for aiding and abetting violations of 21 U.S.C. § 846; section 846 is a lesser included offense of section 848. United States v. Jefferson, 714 F.2d 689, 705 (7th Cir.1983). We move now to the defendants’ complaint that remarks made by the prosecutor (Mr. Webb, the United States Attorney) in closing argument regarding the possible consequences for the defendants if they were convicted of aiding and abetting a violation of the kingpin statute were misleading. During the course of the trial, for reasons of which the defendants do not complain, the prosecution had told the jury that the kingpin statute carried heavy mandatory minimum prison terms; and thereafter the defendants’ lawyer kept emphasizing this point to the jury in order to make the jury reluctant to convict. In closing argument, Webb, after telling the jury that the defendants were charged with aiding and abetting violations of the kingpin statute, added: “just so there’s no confusion, this is not a life and death struggle____ [T]o the extent that these lawyers try to tell you that the consequences — for example, his liberty is at stake — that’s just not true. I mean, if there is going to be punishment imposed, he [the district judge] will do that. But that’s not in issue.” If what Mr. Webb had meant, or had been understood to say, was that the defendants could not be sentenced to prison if they were convicted, this would have been a serious misstatement and might have required a curative instruction (which was not given) to avoid reversible error. Although sentencing is not the jury’s business, and in the normal course the jury is not even told what the range of possible sentences is, jurors have some sense of what are grave crimes, likely to be punishable by substantial prison sentences; and to be misinformed that what they thought was a serious crime was not punishable by imprisonment could lead them to resolve any reasonable doubts as to guilt against instead of in favor of the defendants. But the words “his liberty is [not] at stake” must not be read in isolation from the explanatory sentence that followed. When both sentences are read together, it seems that what Webb probably meant was that the jury wasn’t supposed to consider what the consequences of conviction might be for the defendants; that was the judge’s business. At least that is a possible reading; and though one would have had to hear the inflection with which Webb spoke to be sure what he meant, any doubt on that score must be resolved against the defendants. The able and experienced district judge had a big advantage over us, in actually hearing the words; and the gravity of the offenses with which the defendants were charged persuades us that he would have intervened if, as spoken, these words had conveyed the false impression that the defendants would not be punished with a loss of liberty if they were convicted. We must also be wary of highlighting a few seconds in a trial that lasted three months. The jury had heard a great deal about the harsh minimum sentences for violators of federal narcotics laws; and while it is true that the prosecutor prefaced his comment about “liberty” with the remark that the defendants were being charged with aiding and abetting, we doubt that a jury would have inferred that the defendants were being charged with a minor crime. The entire emphasis of the prosecution was on the gravity of the defendants’ crimes as devoted protectors of large-scale drug racketeers; we do not think the word “liberty” was likely to have dispelled that impression. The defendants were also convicted of extortion under the Hobbs Act, 18 U.S.C. § 1951, and of violating RICO (Racketeer Influenced and Corrupt Organizations, Title IX of the Organized Crime Control Act of 1970, 18 U.S.C. §§ 1961-1968). The Hobbs Act makes “whoever in any way or degree obstructs, delays, or affects [interstate] commerce or the movement of any article or commodity in [interstate] commerce” guilty of a crime. 18 U.S.C. § 1951(a); see 18 U.S.C. § 1951(b)(3). The defendants argue that the interstate commerce affected must be legal. Some legal interstate commerce was affected by the defendants’ extorting money from the drug dealers whom they protected — commerce in the quinine and other substances that are mixed with heroin and cocaine in preparing them for sale to the consumer. It is immaterial that the amount of commerce affected was small, either absolutely or relatively; $68 a month was held to be enough in United States v. Boulahanis, 677 F.2d 586, 589-90 (7th Cir. 1982), and the amount here was a lot more. The difference between this case and Boulahanis, however, is that here the lawful commerce was incidental to an unlawful activity, the sale of illegal narcotics; and it can be argued that anything that obstructs that commerce discourages the unlawful activity and is therefore a good thing. Moreover, most of the commerce affected by the defendants’ extortionate activity was itself illegal commerce, in narcotics; and again it can be argued that to burden an illegal interstate business is to promote the ultimate objectives of the Hobbs Act. Yet United States v. Hanigan, 681 F.2d 1127, 1131 (9th Cir.1982), held that the Hobbs Act does not require that the interstate commerce affected by a defendant’s extortionate activity be legal. We think this holding is correct, at least in a case such as the present where the sums extorted are for protecting an illegal activity. Although the drug dealers paid the defendants substantial sums that, considered in isolation, increased the dealers’ costs of doing business, the dealers got in return something invaluable to them— police protection that enabled them to conduct their businesses on a far larger and presumably more profitable scale than would have been possible if they had lacked such assistance. The benefits to the illegal activity exceeded the costs, so that on balance the activity was promoted rather than retarded. The issue is therefore whether the Hobbs Act can reasonably be read to punish extortion that promotes illegal commerce as well as extortion that retards legal commerce. Although discouraging the latter type of extortion has been said to be the dominant purpose of the Act, see, e.g., Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960); United States v. Mattson, 671 F.2d 1020, 1023 (7th Cir.1982), discouraging the former is a complementary objective and one well within the Act’s language. Moreover, it would be unrealistic to suppose that all Congress cared about in passing the Hobbs Act was promoting trade among the states; common sense, with a little support in legislative history, suggests that interstate commerce was not merely the object of Congress’s solicitude but also a handle for enabling federal power to be brought to bear on criminal activities that, because of their multistate incidence, the states had difficulty controlling. See 91 Cong. Rec. 11909-10 (1945) (remarks of Chairman of House Judiciary Committee); cf. H.R.Rep. No. 1833, 73d Cong., 2d Sess. 2 (1934) (letter from Attorney General, concerning bill that became the Anti-Racketeering Act, the predecessor to the Hobbs Act). The extortion in this case is within the scope of intended prohibition. The relevant provision of RICO, 18 U.S.C. § 1962(c), makes it “unlawful for any person employed by or associated with any enterprise ... to conduct ... such enterprise’s affairs through a pattern of racketeering activity____” The enterprise here is the Chicago Police Department (though it could just as well be the kingpins’ businesses); and the defendants argue that they cannot be guilty under this section because the “enterprise” did not benefit and because the defendants did not have a supervisory position in it. Both arguments were rejected in United States v. Kovic, 684 F.2d 512, 516-17 (7th Cir. 1982), another case of a corrupt Chicago policeman. To take over a legitimate enterprise and loot it through criminal activity that the statute defines as a pattern of racketeering is one of the forms of misconduct punishable under section 1962(c), see Sutliff, Inc. v. Donovan Cos., 727 F.2d 648, 653 (7th Cir.1984), and to use one’s position in the enterprise to line one’s pocket through a pattern of racketeering activity is so closely related as to be indistinguishable. The defendants challenge their convictions on a number of other grounds besides those we have discussed, but the additional grounds have no possible merit and can thus be disposed of very briefly. There are complaints for example about the use, to impeach defendant Lowery, of a statement that he had given the FBI before trial. The defendants argue that the statement was within the scope of the request that they made before trial for the government’s evidence of guilt. But it was not used as evidence of guilt; it was used only for impeachment. The defendants (other than Lowery himself) argue that they should have been allowed to sever their trials from his, because the statement so damaged his credibility. But the fact that one codefendant may be less credible than another is not a ground for severance. They also argue that the statement implicated them (as it did, for in it Lowery said that he had seen some of the defendants taking money from drug dealers), as well as casting doubt on Lowery’s credibility, and thus that their right of confrontation was infringed since it was an out-of-court statement. But Lowery was there in court, available for cross-examination; thus, to the extent he was an adverse witness, they could confront him. Defendant DeSimone, the only defendant who was not a member of the Tenth District Tactical Unit, argues that his trial should have been severed because he was less culpable than the other defendants. It is true that his involvement in the protection activities was less extensive than that of the other defendants, as he was not assigned full time to the Marquette district where the drug dealers had their operations. But the evidence of his guilt was clear, and it is most unlikely that the jury would have acquitted him had he been tried separately; but the cost of a separate trial would have been substantial. Cf. United States v. Shively, 715 F.2d 260, 267 (7th Cir.1983). There is no merit to the argument that a new trial should have been granted because of newly discovered evidence consisting of proffered testimony of inmates that prosecution witnesses with whom they shared cells had admitted that they had lied in testifying for the government. The district judge conducted a hearing and satisfied himself that it was the newly discovered “evidence” that was false, not the evidence at trial. This was a perfectly reasonable conclusion, especially considering the source of the evidence. And “it [is] important for the orderly administration of criminal justice that findings on conflicting evidence by trial courts on motions for new trial based on newly discovered evidence remain undisturbed except for most extraordinary circumstances,” United States v. Johnson, 327 U.S. 106, 111, 66 S.Ct. 464, 466, 90 L.Ed. 562 (1946). The district judge’s handling of the prejudiced-juror and pretrial-publicity issues was scrupulous, and entirely in accord with the applicable precedents. See, e.g., United States v. Wilson, 715 F.2d 1164, 1169 (7th Cir.1983); United States v. Read, 658 F.2d 1225, 1241 (7th Cir.1981). No other issues need be discussed. To summarize, the defendants’ convictions under 21 U.S.C. § 846 are vacated, their other convictions are affirmed, and the case is remanded for resentencing on all counts. See United States v. Harris, 729 F.2d 441, 449 (7th Cir.1984); United States v. Shively, supra, 715 F.2d at 269. Affirmed in Part, Vacated in Part, and Remanded. 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_casetyp1_7-3-1	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - taxes, patents, copyright". PORTLAND COPPER & TANK WORKS, INC., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 6510. United States Court of Appeals First Circuit, Heard Sept. 14, 1965. Decided Oct. 14, 1965. John M. Doukas, Washington, D. C., with whom Maloney, Williams, Baer & Doukas, Boston, Mass., was on brief, for petitioner. Loring W. Post, Atty., Dept, of Justice, with whom John B. Jones, Jr., Acting Asst. Atty. Gen., and Lee A. Jackson and Harry Baum, Attys., Dept, of Justice, were on brief, for respondent. Before ALDRICH, Chief Judge, J. WARREN MADDEN, Senior Judge, Court of Claims and JULIAN, District Judge. Sitting by designation. PER CURIAM. Essentially this case involves the single question whether an accrual taxpayer which has received payments under subcontracts subject to renegotiation under goverment procurement statutes may set up as a reserve, and accordingly deduct from gross income, amounts which by as-sertedly and, we will assume, concededly, proper accounting methods it appeared during the taxable year would later have to be repaid. The Tax Court rejected taxpayer’s contention. 43 T.C. 182. We have little to add to its opinion. It does not help taxpayer for the court to find that these reserves were minimum amounts. It is the existence of any reserve, not the amount, which is in controversy. Taxpayer’s contracts with the prime contractor gave it a right to receive full payment, and no negotiations resulting in a readjustment of the contracts in question took place during the taxable year. The- fact that as to some of the contracts taxpayer made a specific offer in settlement of its obligation to renegotiate established nothing. Since the offers had not been accepted, they could be withdrawn. We agree with the Tax Court that there was nothing inherently improper in requiring taxpayer to wait and proceed under 26 U.S.C. §§ 1341 and 1482. Affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation - taxes, patents, copyright"? A. state or local tax B. federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates) C. federal tax - business income tax (includes corporate and parnership) D. federal tax - excess profits E. federal estate and gift tax F. federal tax - other G. patents H. copyrights I. trademarks J. trade secrets, personal intellectual property Answer:
songer_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. DAVIS v. JACOBS. Circuit Court of Appeals, First Circuit. November 22, 1929. No. 2350. Albert Hurwitz, of Boston, Mass. (Hurwitz & Hurwitz, of Boston, Mass., on the brief), for appellant. Joseph B. Jacobs, of Boston, Mass., for appellee. Before BINGHAM, ANDERSON, and WILSON, Circuit Judges. WILSON, Circuit Judge. The bankrupt is the wife of Nathan Davis. A business was being carried on in her name under a married woman’s certificate required under the laws of Massachusetts. The entire charge and conduct of the business, however, was left to her husband, who contracted obligations in her name as her agent. On or about March 12,1927, Mary I. Davis and her husband, Nathan Davis, each filed separate petitions in bankruptcy, and each was in due course adjudged a bankrupt. Several years before the filing of his petition, her husband transferred to her three policies of life insurance, which, so far as this ease is concerned, must be regarded as a valid transfer, nothing appearing in the record to the contrary. The policies of insurance thus become the property of the wife, and any cash surrender value an asset for the benefit of her creditors in case of bankruptcy. In re Simmons et al. (D. C.) 253 F. 466. About a month before the filing of her petition in bankruptcy, Mrs. Davis surrendered the policies for their cash value of approximately $1,000, receiving checks for the same payable to her order, which she indorsed over to her husband, who used a considerable portion thereof in the support of the family, and transferred to a brother, Phillip Davis, at least $350 of the sum so received, and which later found its way in a manner not disclosed by the record into a new company organized by the husband after his bankruptcy for the purpose of conducting a business of his own. Neither of the policies nor the cash received therefor were included in the schedule of assets of either Mary I. Davis or her husband, Nathan Davis. Upon Mrs. Davis petitioning for her discharge,, the trustee objected on two grounds: (1) That the bankrupt had transferred certain accounts receivable of the business to one Forman to hinder, delay, and defraud creditors; and (2) that she had concealed the moneys received from the insurance policies with the same purpose in view. The referee in bankruptcy, who was appointed a special master to hear those charges, found that both were true, and recommended that the bankrupt’s discharge be withheld. The District Court, however, in considering the master’s report, did not pass on the first objection, as the matter was then in litigation between the trustee and Forman to recover the accounts receivable, but refused the discharge on the second ground, viz. that the husband had clearly transferred a part of the sum obtained from the insurance policies to his brother for the purpose of hindering, delaying, and defrauding his wife’s creditors, and, as the wife had intrusted the entire and absolute management of the business to her husband without any supervision on her part, she was responsible for the fraud on her creditors committed by him. We think it is unnecessary to decide what the effect would have been on the wife’s right to a discharge if the proceeds of the insurance policies had been a part of the assets of the business then being conducted by the husband in the wife’s name; as it does not appear that the insurance policies or the proceeds thereof were ever a part of the assets of the business, nor does it affirmatively appear that the proceeds were turned over to him with any understanding or intent on her part that they were to be used in the business. The transfer to her husband of these funds for a purpose not specifically disclosed by the record, except so far as it may be inferred from the fact that a considerable portion was spent for household and family expenses, was, so far as the record shows, only an instance of a wife intrusting to her husband funds for personal and family use; and at most would not carry with it any authority beyond its use in discharging valid obligations. The mere placing of funds by a wife in the hands of her husband, in whom she has confidence, for disbursement for their mutual benefit, involves no obligation as to supervision and Control over the use of such funds in order to avoid liability in case of fraudulent use, of which use she has no knowledge, and in which she did not participate. There is nothing in the record to show that Mrs. Davis knew or had any reason to suspect that her business creditors might be adversely affected by the disposition of these funds or that her husband intended fraudulently to divert any part of them from her creditors to his own personal advantage; or that she was guilty of such neglect as a wife as would render her liable for the fraudulent acts of her husband, of which she had no knowledge. On the contrary, the master found, and the court below accepted his findings, that there was nothing to indicate that she was at any time conscious of any wrongdoing ; and that in each instance she merely passively assented to suggestions by her husband in all these matters. So far, therefore, as the objection based on the transfer of the proceeds of the insurance policies is concerned, her discharge should be granted. Hardie v. Swafford Bros. Dry Goods Co. (C. C. A.) 165 F. 588, 20 L. R. A. (N. S.) 785; Gilpin v. Merchants’ Nat. Bank (C. C. A.) 165 F. 607, 20 L. R. A. (N. S.) 1023; In re W. S. Peck Co. v. Lowenbein (C. C. A.) 178 F. 178; Ragan, Malone & Co. v. Cotton & Preston et al. (C. C. A.) 200 F. 546; In re Kerner (C. C. A.) 250 F. 993; In re Rosenfeld (C. C. A.) 262 F. 876; In re William Tirschler & Co. (D. C.) 18 F.(2d) 365. The decree of the District Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion; the appellant recovers costs of appeal. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
sc_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. COHEN, EXECUTRIX, et al. v. BENEFICIAL INDUSTRIAL LOAN CORP. et al. NO. 442. Argued April 18, 1949. Decided June 20, 1949. Charles Hershenstein and Philip B. Kurland argued the cause for petitioners in No; 442 and respondents in No. 512. With them on the brief were Edward J. O’Mara, Samuel Dreskin and David F. Cohen. John M. Harlan argued the cause for the Beneficial Industrial Loan Corp., respondent in No. 442 and petitioner in No. 512. With him on the brief were Charles Danzig and Walter Pond. Briefs of amici curiae in support of petitioners in No. 442 and respondents in No. 512 were filed by Julius Levy for Weinberger; and by Lewis M. Dabney, Jr. Mr. Justice Jackson delivered the opinion of the Court. The ultimate question here is whether a federal court, having jurisdiction of a stockholder’s derivative action only because the parties are of diverse citizenship, must apply a statute of the forum state which makes the plaintiff, if unsuccessful,, liable for the reasonable expenses, including attorney’s fees, of the defense and entitles the corporation to require security for their payment. Petitioners’ decedent, as plaintiff, brought in the United States District Court. for New Jersey an action 'in the right of the Beneficial Industrial Loan Corporation, a Delaware corporation doing business in New Jersey. The defendants were the corporation and certain of its managers and directors. The complaint alleged generally that since 1929 the individual defendants engaged in a continuing and. successful conspiracy to enrich themselves at the expense of the corporation. Specific charges of mismanagement and fraud extended over a period of eighteen years and the assets allegedly wasted or diverted thereby were said to exceed $100,000,000. The stockholder had demanded that the corporation institute proceedings for its recovery but, by their control of the corporation, the individual defendants prevented it from doing so. This stockholder, therefore, sought to assert the right of the corporation. One of 16,000 stockholders, he owned 100 of its more than two million shares, so that his holdings, together with 150 shares held by the intervenor, approximated 0.0125% of the outstanding stock and had a market value that had never exceeded $9,000. The action was brought in 1943, and various proceedings had been taken therein when, in 1945, New Jersey enacted the statute which is here involved. Its general effect is to make a plaintiff having so small an interest liable for the reasonable expenses and attorney’s fees of the defense if he fails to make good his complaint and to entitle the corporation to indemnity before the case can be prosecuted. These conditions are made applicable to pending actions. The corporate defendant therefore moved to require security, pointed to its by-laws by which it might be required to indemnify the individual defendants, and averred that a bond of $125,000. would be appropriate. The District Court was of the opinion that the state enactment is not applicable to such an action- when pending in a federal court, 7 F. R. D. 352. The Court of Appeals was of a contrary opinion and reversed, 170 F. 2d 44, and we granted certiorari. 336 U. S. 917. Appealability. At the threshold we are met with the question whether the District Court’s order refusing to apply the statute was an appealable one. Title 28 U. S. C. § 1291 provides, as did its predecessors, for appeal only “from all final decisions of the district courts,” except when direct appeal to this Court is provided. Section 1292 allows appeals also from certain interlocutory orders, decrees and'judgments, not material to this case except as they indicate the purpose to allow appeals from orders other than final judgments when they have a final and irreparable effect on the rights of the parties. It is obvious that, if . Congress had . allowed appeals only from those final judgments which terminate an action, this order would not be appealable. The effect of the statute is to disallow appeal-from any decision which is tentative', informal or incomplete. Appeal gives the upper court a power of review, not one of intervention. So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal. But the District Court’s action upon this application was concluded and closed and its decision final in that sense before the appeal was taken. Nor does the Statute permit appeals, even from fully consummated decisions, where they are but steps towards final judgment in which they will merge. The . purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrécted if and when final judgment results. But this order of the District Court did not make any step toward final disposition of the merits of the case and will not be merged in final judgment. When that time comes, it will be too late effectively to review the present order, and the rights conferred by the statute, if ít is applicable, will have been lost, probably irreparably. We conclude that the matters embraced in the decision appealed from are not of such an interlocutory-nature as to affect, or to be affected by, decision of the merits of this .case. This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole, case is adjudicated. ' The Court has long given this provision of the statute this practical rather than a technical construction. Bank of Columbia v. Sweeny, 1 Pet. 567, 569; United States v. River Rouge Co., 269 U. S. 411, 414; Cobbledick v. United States, 309 U. S. 323, 328. We hold this order appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it. But we do not mean that every order fixing security is subject to appeal. Here it is the right to security that presents a serious and unsettled question. If the right were admitted or clear and ,the order involved only an exercise of discretion as to the amount of security, a matter the statute makes subject to reconsideration from time to time, appealability would present a different question. Since this order may be reviewed on appeal, the petition in No. 512, whereby the corporation asserts the right to ■compel security by mandamus, is dismissed. Constitutionality. Petitioners deny the validity of the statute under the Federal Constitution and the New. Jersey Constitution. The latter question is ultimately for the state courts, and since they have made no contrary determination^ we shall presume in the circumstances of this case that the statute conforms with the state constitution. Federal constitutional questions we must consider, because a federal court would not give effect, in either a diversity or nondiversity case, to a state statute‘that violates the Constitution of the United States. The background of stockholder litigation with which this statute deals requires no more than general notice. As business enterprise increasingly sought the advantages of incorporation, management became vested with almost uncontrolled discretion in handling other people’s money. .The- vast aggregate of funds committed to corporate control came to be drawn to a considerable extent from numerous and scattered holders of small interests. The director was not subject to an effective accountability. That created strong temptation for managers to profit personally at expense of their trust. Thé business code became all too tolerant of such practices. Corporate laws were lax and were not sélf-enforcing, and stockholders, in face of gravest abuses, were singularly impotent in obtaining redress of abuses of trust. Equity came to the relief of the stockholder, who had no standing to bring civil action at law against faithless directors and managers. . Equity, however, allowed him to step into the corporation’s shoes and to seek in its right the restitution he could not demand in his own. It required him first to demand that the corporation vindicate its own rights, but when, as was usual, -those who perpetrated the wrongs also were able to obstruct any remedy, equity would hear and adjudge the corporation’s cause through its stockholder with the corporation as a defendant, albeit a rather nominal one. This remedy, born of stockholder helplessness, was long the chief regulator of corporate management and has afforded no small incentive to avoid at least grosser forms of betrayal of stockholders’ interests. It is argited, and not without reason, that without it there would be little practical check on such abuses. Unfortunately, the remedy itself provided opportunity for abuse, which was not neglected. Suits sometimes were brought- not to. redress real wrongs, but to realize upon their nuisance value. . They were bought off by secret settlements in which any wrongs to the general body of share owners were compounded by the suing stockholder, who was. mollified by payments from corporate assets. These litigations were aptly characterized in professional slang as “strike suits.”- And it- was said that these suits were more commonly brought by small -and irresponsible than by large stockholders, because the former put less to risk and a small interest was more often within the capacity and, readiness of management to compromise than a large one. We need not determine the measure of these abuses or the evils they produced on the one hand or prevented" and redressed on the other. The Legislature of New Jersey, like that of other states, considered them sufficient to warrant some remedial measures. The, very nature of the stockholder’s derivative action makes it one in the regulation of which the legislature of a state has wide powers. Whatever theory one may hold as to the nature of the corporate entity, it remains a wholly artificial creation whose internal relations between management and stockholders are dependent upon state law and may be subject to most complete and penetrating regulation, either by public authority or by some form of stockholder action. Directors and managers, if not technically trustees, occupy positions of a fiduciary nature, and nothing in the Federal Constitution prohibits a state from imposing on them the strictest measure of responsibility, liability and accountability, either as a condition of assuming office or as a consequence of holding it. Likewise, a stockholder who brings suit on a cause' of action derived from the corporation assumes a position, not technically as a trustee perhaps, but one of a fiduciary character. He sues, not for himself alone, but as representative of a class comprising all who are similarly situated. The interests of all in the redress of the wrongs are taken into his hands, dependent upon his diligence, wisdom and integrity. And while the stockholders have chosen the corporate director or manager, they have no such election as to a plaintiff who steps forward to represent them. He is a self-chosen representative and a volunteer champion. The Federal Constitution does not oblige the state to place its litigating and adjudicating processes at the disposal of such a representative, at least without imposing standards of responsibility, liability and accountability which it considers will protect the interests he elects himself to represent. It is not without significance that this Court has found it necessary long ago in the Equity Rules and how in the Federal Rules of Civil Procedure to impose procedural regulations of the class action not applicable to any other. We conclude that the state has plenary power over this type of litigation. , In considering specific objections to the way in which the state has exercised its power in this particular statute, it should be unnecessary to say that we are concerned only with objections which go to constitutionality. The wisdom and the policy of this and similar statutes are involved in controversies amply debated in legal literature but not for us to judge, and hence not for us to remark upon. The Federal Constitution does not invalidate state legislation because it fails to embody the highest wisdom or .provide the best conceivable remedies. Nor can legislation be set aside by courts because of the-fact, if it be such, that'it has been sponsored and promoted by those who advantage from it. In dealing with such difficult and controversial subjects, only experience will verify or disclose weaknesses and defects of any policy and teach lessons which may be applied by amendment. Within the area of constitutionality, the states should not be restrained from devising experiments, even those we might think dubious, in the effort to preserve the maximum good which equity sought in creating the derivative stockholder’s action and at the same time to eliminate as much as possible its defects and evils. It is said that this statute transgresses the Due Process Clause by being “arbitrary, capricious and unreasonable”; the Equal Protection Clause by singling out small stockholders to burden most heavily; that it violates the Contract Clause; and that its application to pending litigation renders it unconstitutionally retroactive. The contention that this statute violates the Contract Clause of the Constitution is one in which we see not the slightest merit. Plaintiff’s suit is entertainéd by equity largely because he had no contract rights on which to base an action at law, and hence none which is impaired by this legislation. In considering whether the statute offends the Due Process Clause we can judge it only by its own terms, for it has had no interpretation or application as yet. It imposes liability and requires security for “the reasonable expenses, including counsel fees, which may be incurred” (emphasis supplied) by the corporation and by other parties defendant. The amount of security is subject to increase if the progress of the litigation reveals that it is inadequate, or to decrease if it is proved to be excessive. A state may set the terms on which it will permit litigations in its courts. No type of litigation is more susceptible of regulation than that of a fiduciary nature. And it cannot seriously be said that a state makes such unreasonable use of its power as to violate the Constitution when it provides liability and security for payment of reasonable expenses if a litigation of this character is adjudged to be tmsustainable. It is urged that such a requirement will foreclose resort by most stockholders to the only available judicial remedy for the protection of their rights. Of course, to require security for the payment of any kind of costs, or the necessity for bearing any kind of expense of litigation, has a deterring effect. But we deal with power, not wisdom; and we think, notwithstanding this tendency, it is within the power of a state to close its courts to this type of litigation if the condition of reasonable security is not met. The contention that the statute denies equal protection of the laws is based upon the fact that it enables a stockholder who owns 5% of a corporation’s outstanding shares, or $50,000 in market value, to proceed without either security or liability and imposes both upon those who elect to proceed with a smaller interest. We do not think the state is forbidden to use the amount of one’s financial, interest, which measures his individual injury from the misconduct to be redressed, as some measure of the good faith and responsibility of one who seeks at his own election to act a's custodian of the interests of all stockholders, and'as an indication that he volunteers for the large burdens of the litigation from a real sense of grievance and is not putting forward a claim to capitalize personally on its harassment value. These may not be the best ways of precluding “strike lawsuits,” but we are unable to say that a classification for these purposes, based upon the percentage or market value of the stock alleged to be injured by the wrongs, is an unconstitutional one. Where any classification is based on a percentage or an amount, it is necessarily somewhat arbitrary. It is difficult to say of many lines drawn by legislation that they give those just above and those just below the line a perfectly equal protection. A taxpayer with $10,000.01 of income does not think it is equality to tax him at a different rate than one who has $9,999.99, or to require returns from one just above and not from one just below a certain figure. It is difficult to say that a stockholder who has 49.99% of a company’s stock should be unable to elect any representative to its Board of Directors"while one who owns 50.01% may name the entire Board. If there is power, as we think there is, to draw a line based on considerations of proportion or amount, it is a rare case, of which this is not one, that a constitutional objection may be made to the particular point which the legislature has chosen. The contention also, is made that the provision which applies this statute to actions pending upon its enactment, in which no final judgment has been entered, renders it void under the Due Process Clause for retro-activity. While by its terms the statute applies to pending cases, it does not provide the manner of application; nor do. the New Jersey courts appear to have settled what its effect is to be. Its terms do not appear to require an interpretation that it creates new liability against the plaintiff for expenses incurred by the defense previous to its enactment. The statute would admit of a construction that plaintiff’s liability begins only from the time when the Act was passed or perhaps when the corporation’s application for security is granted and that security for expenses and counsel fees which “may be incurred” does not include those which have been incurred before one or the other of these periods. We would, not, for the purpose of considering constitutionality, construe the statute in absence of a state decision as imposing liability for events before its enactment. On this basis its alleged retroactivity amounts only to a stay of further proceedings unless and until security is furnished for expense incurred in the future, and does not extend either to destruction of an existing cause of action or to creation of a new liability for past events. The mere fact that a statute applies to a civil action retrospectively does not render it unconstitutional. Blount v. Windley, 95 U. S. 173, 180; Western Union Telegraph Co. v. L. & N. R. Co., 258 U. S. 13; Chase Securities Corp. v. Donaldson, 325 U. S. 304. Looking upon the statute as we haye indicated, its retroactive effect, if any, is certainly less drastic and prejudicial than that held not to be unconstitutional in these decisions. We do not find in the bare statute any such retroactive effect as renders it unconstitutional under the Due Process Clause, and of course we express, no opinion as to the effect of an application other than we have indicated; It is also contended that this statute may not be applied in this case because the cause of action derives from a Delaware corporation and hence' Delaware law governs it. But it is the plaintiff who has brought the case in New Jersey. The. trial will very likely involve questions of conflict of laws as to which the law of New Jersey will apply, Klaxon Co. v. Stentor Co., 313 U. S. 487; Griffin v. McCoach, 313 U. S. 498, and perhaps questions of full faith and credit. These are not before us now. A plaintiff cannot avail himself of the New Jersey forum and at the same time escape the terms on which it is made available, if the law is applicable to a federal court sitting in that State, which we later consider. We conclude, therefore, that, so far as the Federal Constitution is concerned, New Jersey’s security statute is a valid law of that State and the question remains as to whether it must be applied by federal courts in that State to suits brought therein on diversity grounds. Applicability in Federal Court. The Rules of Decision Act, in effect since the First Congress of the United States and now found at 28 U. S. C. § 1652, provides: “Thedaws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be-regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.” This Court in Erie R. Co. v. Tompkins, 304 U. S. 64, held that judicial decisions are laws of the states within its meaning. But Erie R. Co. v. Tompkins and its progeny have wrought a more far-reaching change in the relation of state and federal courts and the application of state law in the latter whereby in diversity cases the federal court administers the state system of law in all except details related to its own conduct of business. Guaranty Trust Co. v. York, 326 U. S. 99. The oniy substantial argument that this New Jersey statute is not applicable here is that its provisions are mere rules of procedure rather than rules of substantive law. Even if we were to agree that the New Jersey statute is procedural, it would not determine that it is not applicable. Rules which lawyers call procedural do not always exhaust their effect by regulating procedure. But this statute is not merely a regulation of procedure. With it or without it the main action takes the same course. However, it creates a new liability where none existed before, for it makes a stockholder who institutes a derivative action liable for the expense to which he puts the corporation and other defendants, if he does not make good his claims. Such liability is not usual and it goes beyond payment of what we know as “costs.” If all the Act did was to create this liability, it would clearly be substantive. But this new liability would be without meaning and value in many cases if it resulted in nothing but a judgment for expenses at or after the end of the case. Therefore, a procedure is prescribed by which the liability is insured by entitling the corporate defendant to a bond of indemnity before the outlay is incurred. We dp not think a statute which so conditions the stockholder’s action can be disregarded by the federal court as a mere procedural device. It is urged, however, that Federal Rule of Civil Procedure No. 23 deals with plaintiff’s right to maintain such an action in federal court and that therefore the subject is recognized as procedural and the federal rule alone prevails. Rule 23 requires the stockholder’s complaint to be verified by oath and-to show that the plaintiff was a stockholder at the time of the transaction of which he complains or that his share thereafter devolved upon him by operation of law. In other words, the federal court will not permit itself to be used to litigate a purchased grievance or become a party to speculation in wrongs done to corporations. It also requires a showing that an action is not a collusive one to confer jurisdiction and to set forth the facts showing that the plaintiff has endeavored to obtain his remedy through the corporation itself. It further provides^that the class action shall not be dismissed .or compromised without approval of the court, with notice to the members^ of the class. These provisions neither create nor exempt from liabilities, but require complete disclosure to the court and notice to the parties in interest. None conflict with the statute in question and all may be observed by a federal court, even if not applicable in state court. We see no reason why the policy stated m Guaranty Trust Co. v. York, 326 U. S. 99, should not apply. We hold that the New Jersey statute applies in federal courts and that the District Court erred in declining to fix the amount of indemnity reasonably to be exacted as a condition of further prosecution of the suit. The judgment of the Court of Appeals is Affirmed. Chapter 131, New Jersey Laws of 1945, provides in pertinent part as follows: "1. In any action instituted or maintained in the'right of any domestic or foreign corporation by the holder or holders of shares, or of voting trust certificates representing shares, of such corporation having a total par value or Stated capital value of less than five per centum (5%) of the aggregate par value or stated capital value of all the outstanding shares of such corporation’s stock of every class . . . unless the shares or voting trust certificates held by such holder or holders have a market value in excess of fifty thousand dollars ($50,000.00), the corporation in whose right such action is brought shall be entitled, at any stage of the proceeding before final judgment, to require the complainant or complainants to give security for the reasonable expenses, including counsel fees, which may be. incurred by it in connection with such action and by the other parties defendant’in connection therewith for which it may become subject pursuant to law, its certificate of incorporation, its by-laws or under equitable principles, to which the- corporation shall have recourse in such amount as the court having -jurisdiction shall determine upon the termination' of such action. The amount of such security may thereafter, from time to time, be increased or decreased in-the discretion of the court having jurisdiction of sucli action upon showing that the security provided has or may become inadequate or is excessive. “2. In any action, suit or proceeding brought or maintained in the right of a domestic or foreign corporation by- the holder or holders • of shares, or of voting trust certificates representing shares, of such corporation, it must be made to appear that the complainant was a shareholder - or the holder of a voting trust certificate at the time of the transaction of which he complains or that his share or voting trust certificate thereafter devolved upon him by operation of law. “3. ‘This act shall take effect immediately and shall apply to all such actions, suits or proceedings now pending in which no final judgment has been entered, • and to all future actions, suits and proceedings.” See New York General Corporation Law, § 61 — b; 12 Pa. Stat. Ann. § 1322; Laws of Maryland, 1945, c. 989; Wisconsin Stat. §180.13 (1945). Old Equity Rule 94, 104 U. S. ix; Equity Rule 27, 226 U. S. 649,656. Rule 23 (b). See Hornstein, Problems of Procedure in Stockholder’s Derivative Suits, 42 Col. L. R. 574; Hornstein, Directors’ Expenses in Stockholders’ Suits, 43 id. 301; Koessler, The Stockholder’s Suit: A Comparative View, 46 id. 238; Hornstein, New Aspects of Stockholders’ Derivative Suits, 47 id. 1; Carson, Current Phases of Derivative Actions Against Directors, 40 Mich. L. R. 1125; P. E. Jackson, Reorganization of the Corporate Concept And the Effect of Section 61-b of the New York General Corporation Law, A5 Am. Bankr. Rev. 323; Carson, Further Phases of Derivative Actions Against Director's, 29 Cornell L. Q. 431; House, Stockholders’ Suits And the Coudert-Mitchell Laws, 20 N. Y. U. L. Q. Rev. 377; Hornstein, The Death Knell of Stockholders’ Derivative Suits in New York, 32 California L. R. 123; Zlinkoff, The American Investor And the Constitutionality of Section 61-b of the New York General Corporation Law, 54 Yale E. J. 352. See Douglas, Directors Who Do Not Direct, 47 Harv. L. R. 1305. Daniel v. Family Insurance Co., 336 U. S. 220. 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_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. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. ESTATE OF James D. McDERMOTT, Deceased, John Lawrence McDermott and Maude E. McDermott, co-executors, Respondents. ESTATE OF James D. McDERMOTT, Deceased, John Lawrence McDermott and Maude E. McDermott, co-executors, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. Nos. 11154, 11155. United States Court of Appeals Seventh Circuit. May 27, 1955. H. Brian Holland, Asst. Atty. Gen., Grant W. Wiprud, Atty., U. S. Dept, of Justice, Washington, D. C., Ellis N. Slack, Robert N. Anderson, Carolyn R. Just, Sp. Assts. to Atty. Gen., for petitioners. Frederick O. Dicus, Chicago, Ill., Chapman & Cutler, Chicago, Ill., of counsel, for respondents. Before MAJOR, FINNEGAN and SCHNACKENBERG, Circuit Judges. MAJOR, Circuit Judge. In a controversy between the Commissioner of Internal Revenue and the executors of the estate of James D. Mc-Dermott relative to the estate tax owing by the latter’s estate, the Tax Court, in a decision rendered August 25, 1953, sustained a deficiency in the amount of $1,487.98. This deficiency was predicated upon the value at the time of decedent’s death of the corpus of certain trusts which had been previously created by the decedent. From this decision of the Tax Court the executors petitioned for a review (No. 11155). The executors, however, in this court have abandoned their petition for review and, as a result, we are not concerned with the Tax Court’s decision insofar as it includes the value of the trust corpus in decedent’s gross estate. The Tax Court also decided that the income attributable to the trust property and received by the trustee subsequent to the creation of the trusts and transfer of the corpus was not includible in decedent's gross estate for estate tax purposes. The Commissioner petitions for review from this portion of the Tax Court’s decision (No. 11154). The question for decision, therefore, arises from Commissioner’s contention that the Tax Court erred in holding that the value of that portion of the corpus of the trusts attributable to accumulations of income on property transferred by decedent, which income was received by the trustee subsequent to such transfer, was not includible in taxpayer’s estate. The Commissioner’s contention is predicated upon Sec. 811(c) (1) (B) and (d) (1), Internal Revenue Code of 1939, 26 U.S.C.A. § 811. The major portion of the discussion by the Tax Court, including its findings of fact and conclusions of law, relates to the terms and conditions of the agreements by which the trusts were created and is material in the main to the issue raised by the executors in their petition for review, now abandoned. In a single paragraph the Tax Court disposed of the issue now for decision, as follows: “Trust accumulations representing income on the property transferred by decedent are not includible in the gross estate. The statute, section 811(c) or (d), is only concerned with transfer, and since trust income was not transferred to the trust by decedent such accumulations as represented by income are not includible in decedent’s gross estate. Commissioner of Internal Revenue v. Gidwitz [7 Cir.], 196 F. 2d 813; affirming 14 T.C. 1263.” We do not understand there is any dispute as to any issue of fact pertaining to the question for decision and, in view of the situation as previously stated, we think there is no occasion to make more than a brief statement of the facts. On December 23, 1939, the decedent created eight separate trusts for the benefit of his wife and seven children, m each of which the decedent was designated as trustee. The trusts contained customary and ordinary provisions except that the trustee was authorized to accumulate part or all of the trust income, but any such accumulations were to be added to corpus. All beneficiaries survived the decedent, who died April 22, 1947. Upon termination, each trust provided for distribution to the principal named beneficiary, if living, with a contingent provision in the event that such beneficiary was then deceased. The sole property transferred by the decedent to the trusts was the original corpus, consisting in the aggregate of 800 shares of stock in Olympic Commissary Company. Subsequent to the creation of the trusts and receipt by the trustee of such corporate stock, the trustee received one dividend declared on such stock, the proceeds of which were accumulated and used to purchase United States Savings Bonds. Thereafter the trusts were inactive, no other income was received, distributed or accumulated. In all the trusts except the one established for decedent’s wife, the trustee was authorized to encroach upon and make distributions of corpus to the principal beneficiaries in the event the income from the trusts and from other sources was insufficient to relieve the needs of the beneficiaries arising from “accident, sickness or other emergency or unusual condition of any kind presently unforeseen.” Only through the exercise of such an encroachment power could accumulations be distributed prior to termination of the trusts, but such power was never exercised by the trustee. We think it is without dispute, at any rate the Tax Court found, “The trusts declare they are ‘irrevocable’ and the trustee is ‘without power at any time to revoke, change or modify the terms hereof,’ ” and “In none of the trusts was there given or reserved to decedent any interest in the principal or income therefrom * * The Tax Court also found: “Separate income tax returns were filed by the trusts in reporting the Olympic dividends received in 1939. [After the trusts were created.] The Bureau first held, under the Clifford doctrine, that this income was taxable to decedent, but later held such income was ‘taxable to the trusts.’ ” None of the cases cited by the parties in support of their respective positions is conclusive on the issue for decision. They all depend upon varying factual situations, different in some respects from those of the instant case. It has been held, however, under analogous situations that the accumulations from trust property received by a trustee after a complete transfer of such property by the trustee is outside the scope of the statute and is not includible at death in his estate. As previously noted, the Tax Court cited as authority for its position the decision of this court in Commissioner of Internal Revenue v. Gidwitz, 196 F.2d 813. In that case we held that accumulations on a transfer made in contemplation of death were not taxable. The court reasoned that the transfer was complete prior to death and that the statute reached no more than the property transferred to the trust. The accumulations there involved, as in the instant case, were not part of the property transferred and were, therefore, not in-cludible. The Commissioner in his attempt to escape our holding in Gidwitz argues that here “the transfers were not complete until taxpayer’s [decedent’s] death since the property transferred is includible in his estate by reason of retained powers to designate who shall enjoy, under Code Section 811(c) (1) (B), and to change the enjoyment of the trust estate through a power to alter, amend or revoke, under Code Section 811(d) (1).” We think this attempted distinction is without merit. The transfer in the instant case was as complete as it was in the Gidwitz case. The trusts were irrevocable, with no power reserved in the settlor or trustee to revoke, change or modify the terms of the trusts for his benefit or in a manner by which he could ever acquire any interest in either the corpus or the income therefrom. He received the dividends (accumulations) on the trust corpus (corporate stock) solely in his capacity as a trustee. He was without power or right to receive such dividends in any other capacity. The fact that the trustee retained some control over the manner of handling the accumulations and their distribution does not militate against the fact that the transfer of the trust corpus was complete when made. Such control or power as was retained did not or could not result in any financial benefit to the trustee, and neither could it affect the rights of the beneficiaries in the aggregate. It could result in nothing more than the shifting of benefits and a determination as to the time of their enjoyment by the beneficiaries. It is thus our view that the Tax Court properly relied upon the Gidwitz case as authority for its position. In Burns v. Commissioner, 177 F.2d 739, the Fifth Circuit had before it a situation similar to that before this court in the Gidwitz case. There, as in the instant situation, the trust agreement authorized the trustee to make and change investments and to encroach upon the trust corpus for the benefit of a designated beneficiary in the event an unusual need arose which the trust income was insufficient to meet. There, that court held the same as we held in Gid-witz, that the corpus of the trust transferred in contemplation of death was in-cludible in the gross estate. The court, however, sustained the Tax Court in its refusal to include in the gross estate accumulations of trust income. In so doing the court stated, 177 F.2d at page 741: “The tax statute in question should be strictly construed in favor of the taxpayer, and since it does not expressly provide for the inclusion of income derived from the transferred property in the gross estate, it is not our prerogative, by judicial fiat, to give it that effect.” A study of the involved statute without the aid of any adjudicated case leads us to the conclusion that the Commissioner’s contention is not sound. The statute- lays its hand upon property which has been transferred under the enumerated contingencies. Whether the trust agreement comes within the sweep of an enumerated contingency is immaterial unless the property sought to be taxed at decedent’s death was included in the property transferred at the time of the creation of the trust. Irrespective of all other considerations, property to be includible must have been transferred. Obviously, the accumulations here involved were not transferred by the decedent to the trustee. It is true, of course, that the accumulations represented the fruit derived from the property which was transferred but, even so, Congress did not make provision for including the fruit, it provided only for the property transferred. If it desired and intended to include the accumulations, it would have been a simple matter for it to have so stated. We have examined numerous cases cited and relied upon by Commissioner, which we think are irrelevant to the question with which we are here concerned. The decision of the Tax Court is Affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained 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". John W. RUSSO, Plaintiff-Appellee, v. MATSON NAVIGATION COMPANY, a corporation, Defendant-Appellant. No. 71-3057. United States Court of Appeals, Ninth Circuit. Oct. 29, 1973. Leon A. Pinney (argued), John S. Matthew, of Sikes, Pinney & Matthew, North Hollywood, Cal., for defendant-appellant. Joel N. Elevens (argued), George E. Bodle, Daniel Fogel, Eric Julber, of Bo-dle, Fogel, Julber, Reinhardt & Rothschild, Los Angeles, Cal., for plaintiff-appellee. Before HUFSTEDLER and WRIGHT, Circuit Judges, and RENFREW, District Judge. Of the Northern District of California. OPINION PER CURIAM: Defendant Matson Navigation Company appeals from a judgment on a jury verdict in favor of plaintiff seaman in the amount of $40,000. The sole issue on appeal is whether the district court correctly refused to set off against the award disability pension benefits being paid to plaintiff. We affirm the judgment. Russo, a seaman employed by Matson, was injured aboard Matson’s vessel “Pacific Trader.” He brought suit under the Jones Act [46 U.S.C. § 688 (1970)] and general maritime law, and received a verdict for $40,000. Russo receives $300 a month as a disability retirement pension pursuant to an agreement between the Pacific Maritime Association, to which Matson belongs, and plaintiff’s union, the Seafarer’s International Union of North America, Pacific District. Matson sought to introduce evidence of the pension benefits, but the court refused to allow it, ruling that whether a setoff is allowable is a matter of law for the court’s determination, and not a question for the jury. After verdict, the court entered judgment thereon without the requested setoff. Matson contends that setoff of the pension benefits is proper under Section 5 of the Federal Employers’ Liability Act [45 U.S.C. § 55], and in light of a general rule of law that a tortfeasor need not pay twice for the same damages. Section 5 of the FELA is incorporated in the Jones Act by 46 U.S.C. § 688. Section 5 provides: “Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void: Provided, That in any action brought against any such common carrier under or by virtue of any of the provisions of this chapter, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.” [Emphasis added.] Matson contends that, because it contributes to the fund from which plaintiff’s benefits are paid, and because they are paid “on account of the injury,” set-off of these benefits against the award is proper under Section 5. A denial of setoff, Matson contends, forces it to pay twice for the same injury. Clearly, the statute does not provide for a setoff of “benefits received,” but rather for a setoff of “any sum . contributed.” Therefore, any setoff to which Matson might be entitled must be limited to the amount it has contributed to the pension plan. Matson claims, however, that this amount is far in excess of the benefits being received by Russo. Generally, a tortfeasor need not pay twice for the damage caused, but he should not be allowed to set off compensation from a “collateral source” against the amount he owes on account of his tort. “[T]he broad rule seems to be that where the plaintiff receives from the tortfeasor payments specifically to compensate him for his injury, the tortfeasor need not pay twice for the same damage, and therefore such compensation payments should be taken into account in fixing tort damages. [Citations] On the other hand, where the injured plaintiff’s compensation comes from a ‘collateral source,’ it should not be offset against the sum awarded for the tort nor considered in determining that award.” United States v. Price, 288 F.2d 448, 449 (4th Cir. 1961); Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 534 (9th Cir. 1962). The issue, then, is whether the pension benefits come from a “collateral source,” or directly from Matson as compensation for Russo’s injury. In analyzing this issue, it is well established that courts should look at “the purpose and nature of the fund and of the payments,” and not merely at their source. Gypsum Carrier, Inc. v. Handelsman, supra at 534 n.31, and cases cited therein. Two courts in other jurisdictions have recently considered almost the precise issue with which we are confronted. Haughton v. Blackships, Inc., 462 F.2d 788 (5th Cir. 1972), virtually indistinguishable from this case, held that, in computing damages payable to a seaman who was injured aboard ship, it was improper to consider the seaman’s maritime pension in mitigation of damages. The court found that, although all money in the retirement fund was contributed by the employer, the fund was established as the result of a contract between the employer and the union and was in the nature of a fringe benefit or deferred compensation. In other words, the pension was a term of employment rather than an attempt by the employer to indemnify itself against liability. The court in Hall v. Minnesota Transfer Railway Co., 322 F.Supp. 92 (D. Minn.1971), reached a similar conclusion. The court considered a railroad’s claim that certain insurance benefits should be set off in light of Section 5 of the FELA, since the carrier paid the insurance premiums. The court concluded that Section 5 does not permit setoff of amounts that are in effect part of an employee’s income and are paid without regard to liability on the part of the employer. “On the basis of the foregoing, the court concludes that where the insurance policy is one of general hospital and medical coverage upon which the insured may make claim without regard to liability on the part of the employer, such ' a policy is a fringe benefit maintained by the employer and is in effect part of the employee’s income for services rendered, and the collateral source rule prohibits set-off of premiums paid or benefits received thereunder by the employee. In this court’s opinion Section 5’s express set-off proviso was not intended and does not permit set-off of amounts ‘paid’ or ‘contributed’ by the employer to a policy of such general coverage pursuant to a collective bargaining contract.” Id. at 97. In light of Haughton and Hall, plaintiff’s pension benefits are not, for purposes of Section 5, received “on account of his injury,” but rather as a fringe benefit of his employment. This benefit is the result of a contractual agreement between plaintiff’s union and the association to which Matson belongs. Under the pension agreement, the employee’s retirement, the length of his service, and the extent of his disability are all crucial to his eligibility for benefits. Eligibility is not dependent, however, on disability occurring in the course of employment or as the result of an employer’s negligence. A disabled employee receives no pension unless he has worked a minimum of 10 years, has been permanently and totally disabled, and has retired from sea duty. It is unnecessary that an injury cause the disability; an illness suffices. Once the employee is eligible for a pension, the amount increases with the length of employment. Thus, looking at the nature and purpose of the pension plan agreement, it is clear that benefits paid from it are “collateral” to Matson’s obligation to pay for its wrongdoing. In summary, Matson does not bear a double burden in this case if no setoff is allowed. Pension benefits paid from the fund to which Matson contributes are one form of compensation for plaintiff’s employment. The $40,000 judgment against Matson is the sole burden that it must bear directly as a result of its negligence. “This may permit a double recovery, but it does not impose a double burden. The tortfeasor bears only the single burden for his wrong.” Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 534 (9th Cir. 1962). Affirmed. . This is to be distinguished from benefits received under a limited employer indemnity insurance policy, which might be appropriately set off. “Where the insurance is written to cover only those injuries incurred on the job for which the employer might be liable by statute or common law, it is solely for the benefit of the employer and cannot be characterized as a fringe benefit given employees in partial consideration for their labors. See, e. g., Thomas v. Humble Oil & Refining Co., 420 F.2d 793 (4th Cir. 1970) . . . " Hall v. Minnesota Transfer Railway Co., 322 F.Supp. 92, 96-97 (D.Minn.1971) ; Haughton v. Blackships, Inc., 462 F.2d 788, 791 (5th Cir. 1972). 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_direct1	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. CITY OF SEDALIA, ex rel. and to Use of BAUMAN, City Treasurer, v. STANDARD OIL CO. OF INDIANA, and six other cases. Nos. 9653, 9652, 9654-9658. Circuit Court of Appeals, Eighth Circuit. Aug. 3, 1933 WOODROUGH, Circuit Judge, dissenting. Frank W. Hayes, of Sedalia, Mo. (E. W. Jones, W. D. O’Bannon, Fred M. Ross, and Lawrenee Barnett, all of Sedalia, Mo., on the brief), for appellant. Lee Montgomery, of Sedalia, Mo. (Buell F. Jones, of Chicago, Ill., Eben H. Jones, of Cleveland, Ohio, Cliff V. Peery and Walter E. Brown, both of Kansas City, Mo., and John T. Martin and John Z. Montgomery, both of Sedalia, Mo., on the brief), for appellee Standard Oil Co. of Indiana. James T. Dolan, of St. Louis, Mo. (Guy A. Thompson, Samuel A. Mitchell, Frank A. Thompson, and Truman Post Young, all of St. Louis, Mo., on the brief), for appellee Shell Petroleum Co. James P. Kem, of Kansas City, Mo. (W. H. Bohling, of Sedalia, Mo., on the brief), for appellees White Eagle Oil & Refining Co. and White Eagle Oil Corporation. J. C. Denton, R. H. Wills, J. H. Crocker, I. L. Lockewitz, and J. P. Greve, all of Tulsa, OkL, for Mid-Continent Petroleum Co. Before STONE and WOODROUGH, Circuit Judges, and MUNGER, District Judge. Rehearing denied October 20, 1933. MUNGER, District Judge. In this suit, the city of Sedalia, Mo., as plaintiff, now appellant, sought to collect from the defendant, now appellee, upon a claim for taxes due to the city. For that purpose it filed a bill in equity, containing two causes of action. The defendant’s motion to dismiss the bill was sustained, and this appeal was taken. Similar proceedings were had in similar cases where the Shell Petroleum Company, the Skelly Oil Company, the Sinclair Refining. Company, the White Eagle Oil & Refining Company et al., the Mid-Continent Petroleum Company, and the National Refining Company were defendants. By stipulation of parties and an order of this court the appeals were consolidated for presentation in this court, with leave that the transcript of the record in the Standard Oil case should be printed and that the appeals in the other eases should abide by the decision of this court in this ease. In the first cause of action the plaintiff based its right to recovery upon the terms of an ordinance of the city passed in 1924 and entitled “An ordinance providing for the licensing of persons, firms or corporations engaged in the business of selling gasoline and transporting same through the streets of the City of Sedalia, Missouri, and providing a tax of one-half of one cent per gallon on all gasoline so sold and providing penalties for the violation of said ordinance.” Sections 1, 2, and 6 of the ordinance were as follows: “Section 1. No person, firm or corporation shall engage in, carry on or conduct the business of selling gasoline and transporting the same in barrels, tank wagons or other containers having a capacity of more than five (5) gallons without first having obtained a license so to do from the City Clerk. “Section 2. Every person, firm or corporation, engaged in the business defined in Section 1 hereof shall' pay the City Treasurer a quarter-annual license tax of one-half of one cent per gallon on or before the 15th day of December, March, June, and September of each year for the preceding period of three months and ending as aforesaid.” “Section 6. The provisions of this Ordinance shall not apply to gasoline shipped out, of this City to other cities, towns and villages by the persons subject to the payment of the license tax provided for in Section 2 hereof.” The ordinance contained provisions relating to the keeping of records of the sales of gasoline, the making of reports to the city, and imposing penalties for violation of the ordinance. The plaintiff alleged that from September 1, 1924, until March 31, 1928, the defendant was engaged in Sedalia in carrying on the business of selling gasoline and transporting it in ban-els, tank wagons, and other containers having a capacity of more than five gallons, but had only paid part of the tax due to the city; that it had failed to keep an accurate record of its sales in Missouri, and had failed to file the reports required by the ordinance. The plaintiff also alleged that a trial of the issues in the case would necessitate the examination of a long and intricate account between the parties, and the examination of thousands of transactions between the defendant and its customers, and others, and prayed that the defendant should be required to account for the number of gallons of gasoline sold within the state of Missouri under the ordinance, and for judgment for the amount of taxes that should he found -due. The second cause of action sought a similar recovery of the taxes for a subsequent period under the terms of this ordinance, after it had been amended by increasing the tax imposed under section 2 from one-half cent to one cent per gallon. The trial court was of the opinion that the ordinances were void under the terms of sections 6840 and 7287 of the Revised Statutes of Missouri 1929 (Mo. St. Ann. §§ 6840r, 7287). It is conceded that the right of the city of Sedalia to impose a tax of this kind must be found in the powers conferred by the portions of section 6840 which read as follows: “The [city] council shall have power and authority to levy and collect a license tax on * * * wholesale merchants, merchants of all kinds” and that this right is limited by the terms of section 7287, which is as follows: “No municipal corporation in this state shall have the power to impose a license tax upon any business avocation, pursuit or calling, unless such business avocation, pursuit or calling is specially named as taxable in the charter of such municipal corporation, or unless such power be conferred by statute.” It was the view of the trial court that the avocation named in the ordinance of those “engaged in the business of selling gasoline and transporting same through the streets of Sedalia, Missouri,” was not one of those specially named as taxable under section 6840. In Campbell Bailing Co. v. City of Tlarrisonville, Mo., 50 E.(2d) 670, 674, it was determined by this court, after a review of the decisions of the Supreme Court of Missouri, that a grant of po wer to impose a city license tax upon “merchants of all kinds” authorized an ordinance of a city imposing a tax upon persons, firms, or corporations, “engaged in selling or delivering any goods or merchandise of any kind” at wholesale or retail to any one in the city, notwithstanding the limitations expressed in section 7287 of the Revised Statutes [Mo. St. Ann. § 7287], This court said: “Appellant urges that, if this ordinance may he regarded as taxing a calling which is included within any of the avoeations enumerated in the statute, it does this by subdividing such avocation, and that such is not permissible because the classifications for license tax purposes are made by the statute itself. It cites several Missouri eases. We have examined all of these citations as well as others. There are expressions in several opinions which, taken alone, support this contention (see City of St. Louis v. Baskowitz, 273 Mo. 543, 563, 564, 201 S. W. 870; State v. Miksicek, 225 Mo. 561, 125 S. W. 507, 511, 135 Am. St. Rep. 597; Kansas City v. Crush, 151 Mo. 128, 135, 52 S. W. 286), but in all of these eases the snbelassiiieation was in itself regarded as arbitrary. Unless these decisions he held to mean that no sub-classification is allowable where such is arbitrary, it is difficult to reconcile them with Eldorado Springs v. llighfill, 268 Mo. 501, 188 S. W. 68, which is later than the Grush and Miksicek Cases, only slightly older than the Baskowitz Case and decided by the same court. Attempting to reconcile fhe High fill Case with the other cases, we think the rule to bo deduced is that there may not he sub-classifications of an avocation enumerated in the statute unless such subclassifieation be reasonable and natural; that is, not arbitrary.” Nothing is found in the eases of City of Ozark v. Hammond, 329 Mo. 1118, 49 S. W.(2d) 129, or City of Lebanon v. Joslyn (Mo. Sup.) 58 S.W.(2d) 289, decided since the opinion was written in the Campbell Baking Company Case, which requires a different conclusion as to the right of a city to subdivide a class named as “merchants of all kinds.”- Applying the rule adopted by this court in the ease mentioned, the classification in this case of those “engaged in the business of selling gasoline and transporting same through the streets” of the city must be upheld, unless the s,election of the class is arbitrary or unreasonable. The appellee claims that the ordinance is unreasonable because it discriminates between those who may sell gasoline and haul it in containers such as are described in the ordinance and others who haul it in containers of less size, and discriminates between those who may both sell and transport gasoline as described in the ordinance within the city and others who may sell it within the city, but transport it into, out of, or through the city, and between those whose whole business is the sale and transportation of gasoline, and others who sell other articles than gasoline. As the case, is presented on this appeal, we are advised only by the bill and the motion to dismiss. The bill alleges that the defendant was engaged in the city of Sedalia in the business of selling gasoline and transporting it in barrels, tank wagons, and other containers having a capacity of more than five gallons, but it does not appear that there were any other vendors of gasoline who transported it in any manner. The presumption of the validity of an ordinance, as in case of other laws, may not be overthrown by the suggestion of discriminations that may never be proved. Pullman Co. v. Knott, 235 U. S. 23, 35 S. Ct. 2, 59 L. Ed. 105; Hodge Drive-It-Yourself Co. v. Cincinnati, 284 U. S. 335, 52 S. Ct. 144, 76 L. Ed. 323; Louisville & Nashville E. Co. v. Finn, 235 U. S. 601, 35 S. Ct. 146, 59 L. Ed. 379; Standard Stock Food Co. v. Wright, 225 U. S. 540, 32 S. Ct. 784, 56 L. Ed. 1197; 12 Corp. Jur. 786. The trial court was also of the opinion that the ordinance was invalid for lack of uniformity in its operation because it omitted to impose a similar tax upon those who sold gasoline, but did not transport it, and upon those who transported it in containers of less capacity than five gallons, whereas section 3 of article 10 of the Constitution of Missouri requires that taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax. Assuming that there may have been others who sold or transported this commodity under these circumstances, the requirement of uniformity is met if the tax falls alike on all persons who are in substantially the same situation. In illustrating this principle the court said in City of St. Charles v. Schulte, 305 Mo. 124, 264 S. W. 654, 655: “The Legislature delegated to cities of the third class, as it was competent for it to do, authority to levy and collect a license tax on the vendors of soft drinks. Under this general power so delegated to it the City of St. Charles was not bound to levy the same amount upon all vendors of soft drinks. It could, in its discretion, divide them upon any reasonable basis into classes, as, for example, the volume of business done (City of Aurora v. McGannon [138 Mo. 38, 39 S. W. 469], supra), or the specific character of the drinks sold (In re Watson [17 S. D. 486, 97 N. W. 463, 2 Ann. Cas. 321], supra), and fix a different tax for each class. (1 Cooley, Tax’n [4th Ed.] 353.) Upon the same principle peddlers have long been classified in this state for the purpose of taxation. Section 9259, E. S. 1919 [Mo. St. Ann. § 13318]. “There can be no doubt but that, under well-settled principles, respondent was not bound to levy and collect a license tax upon vendors of all kinds of soft drinks, if it imposed a tax upon the vendors of any. It could in its discretion have imposed a tax upon those who engaged in selling near beers, without imposing any at all upon the vendors of other soft drinks. Carroll v. Wright, 131 Ga. 728, 63 S. E. 260; Coca-Cola Co. v. Skillman, 91 Miss. 677, 44 So. 985.” See, also, Ex parte Asotsky, 319 Mo. 810, 5 S.W.(2d) 22; Automobile Gasoline Co. v. City of St. Louis, 326 Mo. 435, 32 S.W.(2d) 281. On this record it is not made to appear that there was not a reasonable basis for the classification adopted. The suggestion that the classification adopted offends also against the Fourteenth Amendment to the Constitution of the United States is sufficiently met by what was said on that subject in Campbell Baking Co. v. City of Harrisonville, Mo. (C. C. A.) 50 F.(2d) 670. There is a further suggestion that the ordinance is invalid because it undertook to impose a tax upon a business conducted outside of the territorial limits of the city. The bill alleges that defendant was engaged in the city of Sedalia in conducting the business of selling and transporting gasoline, but it also alleges that it was the defendant’s duty to account for all gasoline sold by it, under the terms of the ordinance, within the state of Missouri. Considering the title of the ordinance, the general purpose expressed in it, and the limitation stated in section 6, exempting from its operation gasoline shipped from Sedalia to other cities, towns, and villages, it is a reasonable interpretation of the ordinance in question that it included a tax. upon dealers who, in the city of Sedalia, conducted the business of both selling gasoline and transporting it within the city, in the manner mentioned, and also upon dealers who in the city of Sedalia conducted the business of both selling gasoline and transporting it from within the city to points within the state of Missouri. No challenge has been made of the territorial authority of the city to impose the tax upon the first class, but it is asserted that the city may not impose the tax upon the second class, because of the delivery of the gasoline outside of the city. The ordinance does not undertake to measure the tax by the transportation outside of the city of Sedalia. The right of a municipal corporation to impose a tax of this kind upon an occupation or business which is conducted within the city limits, although a portion of the business was carried on outside of the city, is generally recognized. Postal Telegraph Cable Co. v. City Council of Charleston, 153 U. S. 692, 14 S. Ct. 1094, 38 L. Ed. 871; Western Union Tel. Co. v. City of Fremont, 39 Neb. 692, 58 N. W. 415, 26 L. R. A. 698; 37 Corp. Jur. 181; American Union Express Co. v. City of St. Joseph, 66 Mo. 675, 27 Am. Rep. 382; City of Carterville v. Blystone, 160 Mo. App. 191, 141 S. W. 701; American Mfg. Co. v. City of St. Louis, 270 Mo. 40, 192 S. W. 402. The delivery outside of the city of gasoline sold within the city did not invalidate that ordinance. This suit was brought as a suit in equity for an accounting. There is no allegation of mutual accounts or of any other subject of equitable cognizance, but it was the theory of the bill that an accounting is authorized because it will be necessary to consider many transactions between the defendant and its customers, and to examine the books and records of carriers who transported gasoline to the defendant, and of those who sold the gasoline to defendant, as well as of those to whom defendant sold gasoline during the period in question, and because the defendant did not report all gasoline sold under the terms of the ordinance. We agree with the trial court that these facts present no grounds for maintenance of a suit in equity for an accounting. United States v. Bitter Root Dev. Co., 200 U. S. 451, 26 S. Ct. 318, 50 L. Ed. 550; Equitable Life Assur. Soc. v. Brown, 213 U. S. 25, 29 S. Ct. 404, 53 L. Ed. 682. The decree of dismissal in each of the cases: will be reversed, with directions to transfer the causes to the law docket, and for further proceedings. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_stpolicy	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". PROVIDENT LIFE & ACC. INS. CO. v. ANDERSON. SAME v. COCA-COLA BOTTLING CO. OF GREENVILLE, S. C. (two cases). Nos. 5689-5691. Circuit Court of Appeals, Fourth Circuit. March 8, 1948. John A. Chambliss, of Chattanooga, Tenn., and C. F. Haynsworth, Jr., of Greenville, S. C., for appellant. C. Granville Wyche and Alfred F. Burgess, both of Greenville, S. C., for appel-lees. Before PARKER, SOPER and DOB IE, Circuit Judges. DOBIE, Circuit Judge. This appeal involves the interpretation of three substantially identical policies of insurance issued by the Provident Life and Accident Insurance Company (hereinafter called the Company) on the life of Waddy M. Anderson (hereinafter called the insured). The three policies were ordinary 20-payment life insurance contracts of $25,000 each, one of which was payable to the wife of the insured and the other two to the Coca-Cola Bottling Company of Greenville, South Carolina, of which the insured was the General Manager at the time of his death. The insured was the owner of the policy payable to his wife; the Coca-Cola Bottling Company of Green-ville, South Carolina, was the owner of the two policies payable to it and had the right to change the beneficiary. At the bottom of the first page of each policy and at the end of the clause entitled “When policy is incontestable,” the following words had been added by means of a rubber stamp: “War and Aviation Clause Attached” Affixed to and a part of each policy was a page entitled “War Clause” which contained the following provisions: “This policy is issued subject to the following conditions and limitations which shall apply notwithstanding any conflicting provision of the policy. “If the death of the Insured shall occur; "1. while serving outside the continental limits of the United States in the military, naval or air forces of any country engaged in war regardless of the cause of death, or anywhere within six months following termination of such service if death is a direct or indirect result of injuries incurred or sickness or disease contracted while in such service; or “2. while serving within the continental limits of the United States in an air force of any country engaged in war regardless of the cause of death, or within six months following termination of such service, if death is a direct or indirect result of injuries incurred or sickness or disease contracted while in such service; or “3. as a result of operating or riding in any kind of aircraft, except as a fare-paying passenger in a licensed passenger aircraft operated by a licensed pilot on a regularly scheduled flight between definitely established airports within the continental limits of the United States; or “4. within two years after the date of issue of this policy as a result of injuries incurred or sickness or disease contracted while traveling or residing as a civilian outside the continental limits of the United States and as a result of war or any act of war, then, provided this policy is in force, the amount payable shall be the total amount of the premiums paid without interest or the life insurance reserve, whichever is greater, but in no event more than the sum insured.” The insured held a private pilot’s license and was the owner of his own airplane. On October 8, 1945, this plane piloted by him, crashed and' he sustained injuries from which he died about a week later. The insured, at the time of his death, had no connection whatsoever with the military or naval services, and the flight which resulted in his death had been made solely for reasons of personal pleasure or business. Upon the refusal of the Company to pay the full amounts of the policies, three civil actions were instituted by the beneficiaries, one action on each policy, in the Court of Common Pleas for Greenville County, South Carolina; all three actions were removed by the defendant Company to the United States District Court for the Western District of South Carolina, where these actions were tried before the District Judge without a jury. From judgments entered by the District Court in favor of the plaintiffs in all three cases, appeals have been taken to us. Since the provisions in question are identical in all three policies, reference by us to one policy is understood to include all three policies. The District Court, relying upon the general rule that ambiguity in an insurance policy is to be resolved against the insurance company, construed the policies here involved to mean that the Company was exempt from liability only if death resulted from aviation connected with the war effort; therefore the Company assumed the risk of death caused by peacetime civilian air travel. In reaching this conclusion, the District Judge reasoned as follows: “ * * * the insurer offered to the insured a policy of insurance containing a provision which it designated as a ‘War Clause’. That designation is an evidence of the insurer’s interpretation of the provision. The insured evidently accepted it as such and acted accordingly. The Company having represented the provision to be a war clause when it was selling the policy, it would be unjust and inequitable to allow it now to say, after the death of the insured, that the clause which it called a ‘War Clause’ is not in fact such, but is something else.” The meaning intended to be conveyed by the section entitled “War Clause” seems to us so clear and unambiguous that we are forced to conclude that the lower court erred in reading an ambiguity into the policies. The rule of strict construction against an insurer only serves the purpose of tipping the scales against the insurer when other aids to interpretation are in equipoise and the policy may reasonably be given one of several constructions. Gulf Refining Co. v. Home Indemnity Co., 8 Cir., 78 F.2d 842; Walker v. Commercial Casualty Ins. Co., 191 S.C. 187, 4 S.E.2d 248; Haselden v. Standard Mutual Life Ass’n, 190 S.C. 1, 1 S.E.2d 924. A stamped notation on the policy is a part of the contract of insurance. Hatch v. Turner, Tex. Sup., 193 S.W.2d 668; Smooth v. Metropolitan Life Ins. Co., La.App., 157 So. 298; Vancouver Lumber Co. v. Home Ins. Co., D.C., 3 F. Supp. 414, affirmed 2 Cir., 68 F.2d 1019. See also Graham v. Business Men’s Assur. Co. of America, 10 Cir., 43 F.2d 673; Walker v. Commercial Casualty Ins. Co., supra. Some courts have held that the stamped words are controlling even when they are in conflict with the printed provisions of the policy. New York Life Ins. Co. v. Hiatt, 9 Cir., 140 F.2d 752, 168 A.L. R. 551; Hatch v. Turner, supra; Givens v. Ætna Life Ins. Co., Mo.App., 59 S.W. 2d 761; Trousdell v. Equitable Life Assur. Soc., 55 Cal.App.2d 74, 130 P.2d 173, 990. The words, “War and Aviation Clause Attached” are stamped on the bottom of the front page of the policy in letters of approximately the same size as the regularly printed letters on that page; and the stamped letters at the end of the incontestable clause are larger than the letters of that provision. These stamped words are not hidden in the policies but are placed where they can easily be seen and where they should have been discovered by the insured. Indeed, the fact that this notation had been made by means of a rubber stamp should serve to distinguish it from the printed portions of the page and to attract the attention of a reader of the policy. It is settled law in South Carolina that the insured has the duty of reading the insurance policy and of acquainting himself with its contents and that failure to do so will estop him from avoiding the written contract on the grounds that he did not know its terms. Able v. Equitable Life Assur. Soc. of the United States, 186 S.C. 381, 195 S.E. 652; Dukes v. Life Ins. Co. of Virginia, 184 S.C. 500, 193 S.E. 36. By the stamped notation the insured was put on notice that the policy contained limitations on aviation risks, and being on notice, his inquiry could only lead him to the section of the policy entitled “War Clause.” There was no place to find these limitations other than in this section, which occupies a whole page of the policy and which could not fail to strike the eye of even a casual reader of the contract of insurance. In that manner the stamped words served their purpose when they focused the attention of the reader to the page where the limitations as to aviation risks were to be found. We do not think that the caption “War Clause” (however inept it may be) was so ambiguous as to mislead the insured and to prevent his knowing that he was not to be covered if his death occurred as a result of his operating his private plane. The lower court attempted to create such an ambiguity by considering the caption in conjunction with the stamped words on the face of the policy and thereby deciding that the caption was misleading in that the caption did not adequately describe all the matter contained in the clause. But there is no ambiguity in the operative language of this clause, and, since this language is clear, the actionable words are controlling. Resort may be had to the caption only to explain an ambiguity in the operative part of the clause, not to create an ambiguity where none exists. D Wilson v. Towers, 4 Cir., 55 F.2d 199; United States v. A. Bentley & Sons Co., D.C., 293 F. 229; Peters v. McLaren, 6 Cir., 218 F. 410; Coit v. Jefferson Standard Life Ins. Co., 28 Cal.2d 1, 168 P.2d 163, 168 A.L.R. 673. Also where the recital or caption in an insurance policy is vague, but the operative part is explicit, the operative part controls. Crowell v. Gould, 68 App.D.C. 297, 96 F.2d 569; Schaffran v. Mt. Vernon-Woodberry Mills, 3 Cir., 70 F.2d 963, 94 A.L.R. 543. The provisions of the section in question are sufficiently clear and unambiguous. There are four types of risks which are excluded from the coverage of the policy. Each type is set forth in a separate clause which is numbered and indented. The sentence begins with the words, “If the death of the Insured shall occur” followed by a colon and a line-spacing. Then there is an indentation and the four consecutively numbered clauses are set forth, each separated from the other by the space of a line. It seems that the purpose of this arrangement was to insure that the words “If the death of the Insured shall occur” would be read or understood before each of the numbered clauses. Thus each clause would be a limitation of the coverage of the policy, separate and distinct from the other three limitations. No real ambiguity exists when clause 3, the aviation exclusion provision, is read by itself. It provides that if the death of the insured occurs as a result of operating or riding in any kind of aircraft, “except as a fare-paying passenger in a licensed passenger aircraft operated by a licensed pilot on a regularly scheduled flight * * then the amount payable under the policy shall be the total amount of the premiums paid. The clear and unambiguous language of the aviation exclusion clause must be given its plain meaning. Clause 3 makes no distinction between whether the insured is, or is not, a member of any armed force. Accordingly, since the insured met his death as a result of operating his private airplane in which he was not a fare-paying passenger, his beneficiaries cannot recover the full face value of the policies Counsel for the beneficiaries, also the lower court, lay great stress upon the fact that of the four numbered clauses limiting the liability of the Company, three (Numbers 1, 2 and 4) are concerned with war activities and that clause 3 alone contains no reference to war. From, .this fact it is concluded that clause 3 was intended to apply only to war activities and not to civilians who had no connection with the war. We cannot read such a limitation into the express words of the aviation exclusion clause. Significant in this respect is the fact that in the other three clauses limiting the liability of the Company, specific mention is made of the status of the insured in the armed services. Clause 1 applies if he is serving in the armed forces of any country, outside of the continental limits of the United States; clause 2, if he is serving within the continental limits of the United States in the air force of any country engaged in war; and clause 4, if he is a civilian outside the continental limits of the United States and death occurs “as a result of war or any act of war.” Thus it seems that the omission of any reference to the military or naval status of the insured in clause 3 was done purposely in order that this clause would apply regardless of whether or not the insured was connected with the armed forces or the war. Limitations as to war risks and aviation risks are often placed in the same section or clause of an insurance policy and the courts have been inclined to construe each type of limitation as if it were a separate and distinct provision. The mere circumstance that all the exclusions are placed in one sentence is not vital as long as no ambiguity is thereby created. See State ex rel. Mutual Life Ins. Co. of New York v. Shain, 344 Mo. 276, 126 S.W.2d 181; Price v. Prudential Insurance Co., 98 Fla. 1044, 124 So. 817; Taylor v. Prudential Ins. Co. of America, 142 Misc. 94, 253 N.Y.S. 55. And such juxtaposition does riot call for the application of the principle of noscitur a sociis so as to limit the exclusion of aviation risks to risks connected with war. Indeed, in each of the policies under consideration in the instant case is a section covering total and permanent disability benefits, and this section contains a clause entitled “Risks not assumed” which reads as follows: “No benefits shall be granted for disability resulting directly or indirectly, wholly or in part from any of the following causes, which are risks not assumed under this provision, (a) intentionally self-inflicted injury, whether sane or insane, (b) military or naval service or civilian relief work in time of war, (c) being in or on, or coming in contact with any vehicle or device used wholly or partly for aerial navigation or ascension, or falling with or from such vehicle or device, or operating or handling such vehicle or device in any manner, except travel as a fare-paying passenger in a licensed passenger aircraft while operated on a regularly published schedule between definitely established airports and piloted by a licensed passenger aircraft pilot, (d) being in or on, or coming in contact with a submarine vessel or other device for submarine descent.” The coupling of the war and aviation risks in the same exclusion clause in the total and permanent disability contract and the similarity of the language there used with the language used in the war and aviation exclusion provision of the principal contract for death are persuasive of the conclusion that it was intended thereby to exclude the same risks from both clauses of the insurance contracts. The lower court excluded as incompetent certain evidence which, the Company alleged, tended to prove that insured understood that his death would not be covered by the policies if it resulted from piloting his own airplane. Some of the proffered evidence related to admissions and declarations concerning the clause in question, which the insured made to the agent of the Company at the time he applied for the policies. The Company contended that it could offer evidence which would show that when the insured began to fly, he made special inquiry as to his coverage and found that the Company could not remove the aviation exclusion clause from the policies. The Company sought to introduce proof that insured then applied to another company, the Aero Underwriters, Inc., for a special policy to cover the risk of flying his own plane, but ascertained the premium rate to be prohibitive. Evidence was also offered by the Company to show that later, when the defendant Company began to insure against aeronautical risks, the insured discussed with its agent the removal of the aviation exclusion clause from the policies upon the payment of an additional premium, but that the insured again decided the rate was too high. The Company further wished to prove that the insured then said he wasn’t going to get hurt flying anyway. In view of our interpretation of the insurance policies in these cases, it is unnecessary for us to pass upon the correctness of the rulings of the District Court which excluded this proffered evidence. We, accordingly, do not undertake to decide this question. The judgments appealed from are reversed and the cases are remanded to the District Court with directions in each case to enter judgment for the defendant insurance company. Reversed. Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_appel1_5_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 "state government (includes territories & commonwealths)", specifically "bureaucracy providing services". Your task is to determine which specific state government agency best describes this litigant. MINERSVILLE SCHOOL DIST. et.al. v. GOBITIS et al. No. 6862. Circuit Court of Appeals, Third Circuit Nov. 10, 1939. Writ of Certiorari Granted March 4,1940. See 60 S.Ct. 609, 84 L.Ed.-. Joseph W. Henderson, of Philadelphia, Pa., John B. McGurl, of Minersville, Pa., and George M. Brodhead, Jr., of Philadelphia, Pa., for appellants. Harry M. McCaughey, of Philadelphia, Pa., and O. R. Moyle, of Brooklyn, N. Y., for appellee. Arthur Garfield Hays, Jerome M. Britchey, and William G. Fennell, all of New York City, for American Civil Liberties Union, amicus curiae. Before BIGGS and CLARK, Circuit Judges, and KALODNER, District Judge. CLARK, Circuit Judge. Eighteen big states have seen fit to exert their power over a small number of little children- (“and forbid them "not”). ■The method' of exercise has sometimes been by their representatives in solemn conclave assembled and sometimes, as here, by an administrative agency (School Board). The matter of exercise is in that field where, above all, or so we had supposed, power must yield to principle. In other words, the area of action is within the aura of conscience. • The appellant School Board-is entrusted by statute of Pennsylvania with the delicate, but surely not difficult, task of instructing the public school children under its control in “civics, including loyalty to the State and National Government”. 24 Purdon’s Pa.Stat.Ann., § 1551. To that end, as we assume it believed, the following regulation was promulgated on November 6, 1935: “That the Superintendent of the Minersville Public Schools be required to demand that all teachers and pupils of said schools be required to salute the flag of our country as a part of the • daily exercises. That refusal to salute the flag' shall be regarded as an act of insubordination and shall be dealt with accordingly”. Record, p. 6. The appellees, a little girl of 13 and a little boy of 12, refused to salute the flag of “their country” on the appropriate occasion. They stood in respectful silence while the other children submitted to the “requirement” and they were “dealt with-accordingly” by being expelled. The reason for their refusal raises the constitutional issue of this appeal. They and their parents are members of a group (we avoid for the present more definite characterization) known as Russellites, or more colloquially, Earnest Bible Students, or Jehovah’s Witnesses. The defendant School Board admits that this group “sincerely and honestly believe that the act of saluting a flag contravenes the law of God” in that it constitutes a bowing down to a graven image. The so-called flag salute statute (or regulation) first appeared in Kansas in 1907. The idea, without benefit of sanctions, seems to have originated with an employee of the magazine, The Youth’s Companion. It was first put in practice at the National Public School celebration on October 21, 1892, The Youth’s Companion Flag Pledge pamphlet. As with its related predecessor the teacher’s oath (Nevada, 1866), the voluntary character of the ceremonial act soon disappeared into law and litigation, Oaths of Loyalty for Teachers pamphlet of the American Federation of Teachers, Chicago, Illinois. There is some current indication of a reversal in the trend of public opinion at least. Those who attended the training camps of World War No. 1 will remember our staff of life, the manuals of Colonel Moss. That distinguished officer, now retired, has also written extensively on the American flag. In his latest book, we find him taking a secular position remarkably like that of the plaintiff-appellees. He says: “Another form that false patriotism frequently takes is so-called ‘Flag-worship’ —blind and excessive adulation of the Flag as an emblem or image, — superpunc7 tiliousness and meticulosity in displaying and ■ saluting the Flag — without intelligent and sincere understanding and appreciation of the.ideals and institutions it symbolizes. This, of course, is but a form of idolatry —-a sort of ‘glorified idolatry’, so to speak. When patriotism assumes this form it is nonsensical and makes the ‘patriot’ ridiculous”. Chap. 14, Patriotism of the Flag, Moss, The Flag of the United States, Its History and Symbolism, pp. 85-86. So also, Mr. Laurens M. Hamiltoja, a direct descendant of Alexander Hamilton, president of the New York Chapter of the Sons of the Ame'rican Revolution (an organization never criticized for its lack of patriotism), told the Daughters of the American Revolution at the forty-second annual meeting of their Washington Heights Chapter: “Laws cannot take the place of feeling. We must beware of legislation such as that forcing people to salute the flag. We cannot make people salute, we cannot force them to or command them to. What we can do is to make them want to salute it”. The New York World Telegram, April 14, 1939. This change in social sentiment appears to have reached the consciousness of at least one legislator. In Massachusetts this year Mr. Curtis introduced an amendment to the original act which expressly permits the excusing from the flag salute of pupils whose “parent or guardian has scruples, which he regards as religious, against such salute”. Senate No. 449, March, 1939 (Mass.). In New Jersey, on the other hand, the opposite was true. The original act was “strengthened” to make a crime of influencing a “pupil * * * against the salute' to the flag * * * by instruction printed or otherwise”. P.L.N.J.1939, c. 65, sec. 1, N.J.S.A. 2:130-5. These little children (“suffer them”) are asking us to afford them the protection of the First Amendment (Bill of Rights) to the Constitution and to permit them the “free exercise” of their “religion”. That supplication raises, as we see it, two questions. First, do they bring themselves within the meaning of the word “religion” as used in the Constitution; and second, is there any limitation on the adjective “free” in the constitutional phrase “free exercise”? Appellant suggests that religion is an objective rather than a subjective matter. He goes on to argue that no one could conceivably appraise non-flag saluting in theological terms. In other words, he applies some sort of average reasonable man standard. We agree that the test is not without subjective limitations. The individual cannot claim any and all beliefs religious. Maybe he should be able to, but the fact is.that the Constitution uses a certain word of art and does not employ the wider term “belief”. A perfect illustration of this distinction is found in the cases of certain conscientious objectors under the Selective Draft Act of 1917, as amended, 40 Stat. 76, 534, 885, 955 (50 U.S. C.A. p. 165). As is known, most of those who objected to service in war offered religious scruples as an excuse. There were, however, a certain number whose claim for exemption was based solely on disbelief in war as an instrument of human policy. Their claims were disallowed and all of them were sentenced to long terms. See Case, Conscientious Objectors, 4 Ency. of Social Sciences p. 210; Second Report of the Provost Marshal General to the Secretary of War on the Operation of the Selective Service System, pp. 58-59; Third Assistant Secretary of War, Statement as to Treatment of Conscientious Objectors in the Army, September 28, 1918; Secretary of War, Statement as to Treatment of Conscientious Objectors in the Army, June 18, 1919. As in most phases of the subject, there is not complete agreement on even a definition of religion, Hopkins, The History of Religions ; Houf, What Religion Is and Does; Menzies, History of Religion, Rev. Ed.; Dewey, A Common Faith. Some interesting cases might (and may) arise under the broader conception, as for instance anything within the comprehensive term sacred, see Crawley, who gives the study of religion the wide scope of a comparative hierology. The Tree of Life, p. 209. Our courts have promulgated what has been referred to as a “minimum definition.” Compare the language of a distinguished writer on the subject with that of Mr. Justice Field speaking for the Supreme Court of the United States. The religious philosopher says: “Religion is squaring human life with superhuman life. * * * What is common to all religions is belief in a superhuman power and an adjustment of human activities to the requirements of that power, such adjustment as may enable the individual believer to exist more happily”. Hopkins, The History of Religions, p. 2. The legal philosopher says: “The term ‘religion’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will”. Davis v. Beason, 133 U.S. 333, 342, 10 S.Ct. 299, 300, 33 L.Ed. 637. By the same token the definition excludes any theory of sensible choice. If the requirement is present, the doctrinal views of the average man or the average official are wholly irrelevant. Professor Zollman speaks as follows:. “ ‘Were the administration of the great variety of religious charities with which our country so happily abounds, to depend upon the opinion of the judges, who from time to time succeed each other in the administration of justice, upon the question whether the doctrines intended to be upheld and inculcated by such charities, were consonant to the doctrines of the Bible; we should be entirely at sea, without helm or compass, in this land of unlimited religious toleration’. The law therefore does not presume ‘to settle differences of creeds and confessions, or to say that any poinf of doctrine is too absurd to be believed’ ”. Religious Liberty in the Law, Part 2, 17 Michigan Law Review 456, 460-461. This last sentence is quoted from an early (1836) Pennsylvania case, Schriber v. Rapp, 5 Watts 351, 363, 30 Am.Dec. 327. See also, 3 Scott on Trusts, § 371.4., The group to which the plaintiff-appellees belong comes plainly within the “most minimum” definition. It is the very thoroughness of their belief in the supernatural that has gotten them into trouble. Indeed, they qualify even under the more limited “well-recognized” of the Selective Service Act, 50 U.S.C.A. p. 165. Professor Elmer T. Clark lists them in his book, The Small Sects In America, and describes them as follows: “ * * * a propitiation or conciliation of powers superior to man which are believed to direct and control the course of nature and of human life”. Frazer, The Golden Bough, 3d. Ed., i. 222. “The most vehement and spectacular, and also the most vigorous propagandists, of all the Adventists are the followers of the late ‘Pastor’ Charles Taze Russell, now known as the International Bible Students’ Association, and sometimes called ‘Jehovah’s Witnesses’. The group is not a denomination, has no churches or ministry, and is not listed by the census; it is, indeed, bitter in its denunciation of all churches, Catholic and Protestant alike. The movement was created and controlled by Russell, who was an uneducated haberdasher of Allegheny, Pennsylvania, and at his death the mantle fell on one * * * “Russell’s exegesis differs from anything else that ever was on land or sea! He observes no canons of criticism and arrives at none of the conclusions reached by other students”. Clark, The Small Sects in America, pp. 58-59. See, also, Drake, Who Are Jehovah’s Witnesses, 53 Christian Century, April 15, 1936, p. 567. One might note that the sect does not appear to practice the tolerance that it now asks for these young members of its flock. Incidentally, Professor Clark and the publication Religious Bodies, 1926, Vol. 2, Bureau of the Census, United States Department of Commerce, indicate how far from the average religious man’s concept the beliefs of most of these so-called small sects depart.® The noun religion is specific and has therefore what might be called historical and institutional limitations. The adjective free is general and its limitations, if any, must therefore be constitutional and politically scientific. And that is just what they are. We, this court, and finally the United States Supreme Court, Committee for Industrial Organization v. Hague, D. C., 25 F.Supp. 127; Hague v. Committee for Industrial Organization, 3 Cir., 101 F.2d 774; Id., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423, June 5, 1939, had recent occasion to consider the word in relation to speech and assembly. Many of the considerations there validated apply here and we need not repeat them. There are others that have even greater cogency. They can be summed up thus. A man may die for the right to express his opinion. He has died or suffered worse than death for the right to worship according to his conscience. That is implicit in the definitions of religion we have cited, in the long history of the struggle for religious liberty before the law, and in the utterances of our statesmen. That history and those sayings are undoubtedly taught in this very school at Minersville and are so well-known anyway that we shall only encumber this opinion with a few references and quotations. The leading authority under the common law of England is, of course, Paterson. He devotes the second division of his work, Liberty of the Press, Speech and Public Worship, to an excellent account of the protracted struggle for toleration in Great Britain, Division of the Law Relating to the Security of Public Worship. Its successful continuation on the American continent is outlined in Crooker, The Winning of Religious Liberty, and the operation of the resultant constitutional mechanism which now governs and safeguards our manifold religious pursuits is carefully chronicled by Professor Zollman in his article, Religious Liberty in the Law, above cited. Three wise men of American public life have put into these words the concepts to which that mechanism is geared. “Religion is a subject on which I have ever been most scrupulously reserved. I have considered it as a matter between every man and his Maker, in which no other, and far less the public, had a right to intermeddle”. Thomas Jefferson, Letter to Richard Rush in 1813. “The love of religious liberty is a stronger sentiment than an attachment to civil or political freedom. That freedom which the conscience demands, and which men feel bound by their hopes of salvation to contend for, can hardly fail to be attained. Conscience in the cause of religion, and the worship of the Deity, prepares the mind to act and suffer beyond almost all other causes. History instructs us that this love of religious liberty, a compound sentiment in the breast of men, made up of the dearest sense of right and the highest conviction of duty, is able to look the sternest despotism in the face”. Daniel Webster, Speech in Commemoration of the First Settlement of New England, Plymouth, 1820. “ * * * The battle for religious liberty has been fought and won with respect to religious beliefs and practices, which are not in conflict with good order, upon the very ground of the supremacy of conscience within its proper field. What that field is, under our system of government, presents in part a question of constitutional law, and also, in part, one of legislative policy in avoiding unnecessary clashes with the dictates of conscience. There is abundant room for enforcing the requisite authority of law as it is enacted and requires obedience, and for maintaining the conception of the supremacy of law as essential to orderly government, without demanding that either citizens or applicants for citizenship shall assume by oath an obligation to regard allegiance to God as subordinate to allegiance to civil power”. Mr. Chief Justice Hughes dissenting in United States v. Macintosh, 283 U.S. 605, 634, 51 S.Ct. 570, 578, 75 L.Ed. 1302. We observed and in fact held that free, as applied to speech and assembly, is not absolute and, with pundit Lippmann, wondered if anything is. 124 Atlantic Monthly, p. 616. We continue that wonder because here also an even greater urgency for freedom falls before reality. ■ That reality lies in the need for society and so in the needs of society. It is rather interesting to note that in this case the proponents of religious freedom (the greater) are quite willing to concede this: whereas the proponents of free speech (the lesser) were quite unwilling to do so in the Hague case. There may be a distinction in the tendency of religious beliefs to go beyond the contemplations of Confucius into the practices of Brigham Young. This tendency piles up the precedents we discuss later. One might wonder, however, if the practice of rioting is not sometimes as bad as the practice of polygamy. At any rate the concession that the maxim, “salus populi suprema lex” embraces the dictates of conscience was early made and by that great champion of religious liberty, Roger Williams of Rhode Island. Likening the populace to a ship’s company, he said: “Liberty of conscience turns upon these two hinges: 1, that no one be forced to attend the ship’s prayers or prevented from attending prayers of his own; 2, that if either refuse to obey the laws and orders of the vessel concerning its preservation and the common peace, or mutiny, or maintain that there should be no superior, that the commander in such case shall judge, resist, compel and punish such transgressor according to his deserts and merits”. Roger Williams, Rhode Island Historical Society 4, p. 241. The law today is as he admitted it must be. Professor Freund, the definitive authority on the subject of “police power” (jurist’s argot for salus populi), sums it up: “The constitutional guaranty of religious liberty covers above all the two cardinal points of worship and doctrine, the two forms in which the uncontrollable facts of faith and opinion find their principal outward expression; it includes secondarily also customs, practices and ceremonies, which even where they do not form directly a part of worship, are prescribed by religion. That this liberty does not altogether supersede the operation of the police power is recognized by the constitutional proviso found in many states that it shall not excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state, a proviso which may be implied where it is not expressed. * * * In the United States legislation punishing polygamy was upheld, though the Mormons conscientiously believed that their religion sanctioned and commended the practice. The Supreme Court emphasized the distinction between opinion and precept on the one hand, and practices affecting the social order on the other. Quoting with approval Jefferson’s words ‘that it is time enough for the rightful purposes of civil government to interfere when principals break out into overt acts against peace and good order’. It held that Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order”. Freund, Police Power, p. 497. And another distinguished writer gives his approval: “Under the modern idea therefore, of intellectual and religious freedom, but at the same time of the paramount authority of the law, we generally and no doubt should generally, place a limit at the overt act and make its legality depend not on its motive but on its direct effect on the public weal. But the maxims ‘sic utere tuum ut alieno non laedas’, and ‘salus populi suprema est lex’ are as applicable in religious matters as in secular; and the state is and ever should be jealous of its public policy”. Bruce, Religious Liberty in the United States, 74 Central Law Journal, 279, 285. We have then to balance the two intangibles salus and religio and determine to which arm of the scale the weight of our decision must be added. In doing so, under our system of case law, we are entitled, or rather constrained, to examine the precedents. Cardozo, The Nature Of The Judicial Process. All of these that are cited in either brief and many more besides are collected in four standard sources. 11 Am.Jur. pp. 1100-1104; 16 C.J.S., Constitutional Law, § 206, pp. 599-603; American Digest System, Constitutional Law, ^84; U.S.C.A., Constitution, Part 2, pp. 453^156; and see Association of American Law Schools Selected Essays on Constitutional Law, Vol. 2, pp. 1108— 1175. Having examined these decided cases, we, again under our system, must search for a ratio decidendi, and then include or exclude our own particular set of facts. As indicated by their decisions, our courts consider that the peace and good order of the community must prevail over conscience, (a) wherever its mental or physical health is affected, (b) wherever a violation of its sense of reverence makes a breach of the peace reasonably foreseeable, and (c) wherever the “defense of the realm” is imperiled. So in the broad category of physical and mental health, we have cases which defer the dictates of individual scruple to the exclusion of obscene literature from the mails, Knowles v. United States, 8 Cir., 170 F. 409; the use of obscence language, Delk v. Commonwealth, 166 Ky. 39, 178 S.W. 1129, L.R.A. 1916B, 1117, Ann.Cas.l917C, 884; the vaccination, Vonnegut v. Baun, 206 Ind. 172, 188 N.E. 677; and the physical examination of school children, Streich v. Board of Education, 34 S.D. 169, 147 N.W. 779, L.R.A.1915A, 632, Ann.Cas.l917A, 760; the physical examination of prospective brides and grooms, Peterson v. Widule, 157 Wis. 641, 147 N.W. 966, 52 L.R.A.,N.S., 778, Ann.Cas.1916B, 1040; the medical qualification of physicians (faith healing etc.), Fealy v. Birmingham, 15 Ala.App. 367, 73 So. 296; Post v. United States, 5 Cir., 135 F. 1022, 70 L.R.A. 989; People v. Pierson, 176 N.Y. 201, 68 N.E. 243, 63 L.R.A. 187, 98 Am. St.Rep. 666; State v. Verbon, 167 Wash. 140, 8 P.2d 1083; State v. Miller, 59 N.D. 286, 229 N.W. 569; the limitation of the amount of sacramental wine consumable under the Prohibition Act, Shapiro v. Lyle, D.C., 30 F.2d 971; the elimination of drug addiction, State v. Big Sheep, 75 Mont. 219, 243 P. 1067; the regulation of the exhumation of dead bodies, In re Wong Yung Quy, C.C., 2 F. 624, 632; the preservation of quiet, State v. White, 64 N.H. 48, 5 A. 828 (Salvation Army); City of Louisiana v. Bottoms, Mo.App., 300 S. W. 316; the suppression of mail frauds, New v. United States, 9 Cir., 245 F. 710, and kindred schemes, McMasters v. State, 21 Okl.Cr. 318, 207 P. 566, 29 A.L.R. 292 (Spiritualism — exorcisement of evil spirits) ; State v. Neitzel, 69 Wash. 567, 125 P. 939, 43 L.R.A.,N.S., 203, Ann.Cas.1914A, 899 (astrology). Reverence is manifestly something deeper than law. The mere creation by fiat of a particular moral standard would not mean that its violation might reasonably be expected to arouse the passions productive of peace breaches. There are, however, certain “ethics” whether furnished with legal sanctions or not, that do plumb those reaches of our emotions. So in a monogamous civilization polygamy shocks and is forbidden, Reynolds v. United States, 98 U.S. 145, 163, 25 L.Ed. 244; Davis v. Beason, 133 U.S. 333, 342, 10 S.Ct. 299, 33 L.Ed. 637; Late Corporation of the Church of Jesus Christ of the Latter-Day Saints v. United States, 136 U.S. 1, 49, 10 S.Ct. 792, 34 L.Ed. 481, and see also, Warren, The Supreme Court in United States History p. 419. In a deistic civilization blasphemy shocks and is forbidden, State v. Mockus, 120 Me. 84, 113 A. 39, 14 A.L.R. 871; State v. Chandler, 2 Har.,Del., 553; Commonwealth v. Kneeland, 20 Pick. 206, 37 Mass. 206; People v. Ruggles, 8 Johns., N.Y., 290, 5 Am.Dec. 335; Updegraph v. Commonwealth, 11 Serg. & R., Pa., 394. In a Christian civilization disrespect for the Sabbath shocks and is forbidden, State v. Blair, 130 Kan. 863, 288 P. 729; Elliott v. State, 29 Ariz. 389, 242 P. 340, 46 A.L.R. 284; Shover v. State, 10 Ark. 259, 263; State v. Bott, 31 La.Ann. 663, 665, 33 Am.Rep. 224; Lindenmuller v. People, 33 Barb., N.Y., 548, 560; State v. Barnes, 22 N.D. 18, 132 N.W. 215, 37 L.R.A.,N.S., 114, Ann.Cas. 1913E, 93; Sparhawk v. Union Pass. Ry. Co., 54 Pa. 401, 406. It might be noted that the cases on these last seem to take an unduly sectarian position and further that the observance of Sunday is now generally placed on the basis of health. Petit v. State of Minnesota, 177 U.S. 164, 20 S.Ct. 666, 44 L.Ed. 716; Zollman, Religious Liberty in the Law, 17 Michigan Law Review 355, 373. So far we have been talking more about salus in the sense of welfare among the citizens of a community. Clearly that presupposes a country and therefore presupposes until the millennium at least, its defense. Because, however, of what might be termed wishful thinking for that very millennium, we find the conflict of conscience over “bearing arms” one of the saddest in this rather sad field. Professor Lecky, in his famous History of European Morals, traces the beginnings of this struggle. Vol. 2, p. 149. Public opinion, at least in the common law democracies, has taken cognizance of this conflict between scruple and safety. 5-6 Geo. V, ch. 104, secs. 2(1) and (3); Statutes of Canada, 7-8 Geo. V, ch. 19, sec. 11(1) f. From the inception of the Republic, religious objectors have been expressly or impliedly exempt from military service. Annals of Congress, Thirteenth Congress, Third.Session, Vol. 3, pp. 774, 775; Selective Draft Act, above cited; 32 U.S.C.A. § 3, and see United States v. Macintosh, 283 U.S. 605, 627, et seq., 51 S.Ct. 570, 75 L.Ed. 1302; Macintosh v. United States, 2 Cir., 42. F.2d 845; 26 Illinois Law Review 375 ; 30 Michigan Law Review 133; 11 Boston University Law Review 532; 80 University of Pennsylvania Law Review 275. These salutary laws made the constitutional issue of rare occurrence. Whenever it is presented, the decision, as it must, has been in favor of self-preservation. United States v. Macintosh, above cited, and see United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889; Hamilton v. Regents, etc., 293 U.S. 245, 55 S.Ct. 197, 79 L.Ed. 343. We have not included in our classification of authorities those bearing on the issue of the case at bar. They are numerous, see Appendix 1, but they stand or fall by our own rightness as finally determined. We may say hardly a kind word about any of them appears in the. legal periodicals, see Appendix 2. Further, there are no binding precedents among them, see Appendix 3. We have set forth the cases. What does an analysis show to be their ratio decidendi? Does compulsory flag saluting come within it? In making our analysis we must ke'ep constantly in mind what we have on those scales which must come down on one side or the other. A framework of government presupposes its own welfare and our particular framework prescribes religious liberty. Under • certain circumstances the two may be mutually exr elusive. The necessity for any choice between conscience and country is tragic. It must be made. -Salus is a material conception. The injury is to the body and not the soul of the body politic. This eliminates the gentler aspects of love of country. A compulsory voting law, Merriam and Gosnell, Non-Voting, Its Causes and Methods of Control (1924), might well yield to scruples. On the other hand the state’s existence has material foundations other than the martial one. Conscience could scarcely be added to the reasons for tax avoidance. But until wars and rumors of wars cease to trouble, bearing arms must be the means of safety and as such means it must depend on the collective, however determined (cf. war referendum proposals), and not the individual, will (“my country right or wrong”). All but,two classes of the cases are in negative form. In most of them, the religious objector is prohibited from.propitiating the Deity in a certain way; he is not forced to commit a sacrilege. For instance, the Mormon is not.damned for monogamy, the astrologist or spiritualist for personally consulting the stars or the spirits, or the Salvationists for using the soft pedal. The character of the field of health, of arms, and of the case at bar requires compulsion rather than prohibition. In the last named, the inoculation is against a spiritual indifference or disloyalty to country instead of a physical disease. Cicero inversely describes the disease in his famous definition of patriotism. To that definition, we most humbly subscribe: , “Cari sunt parentes, cari liberi, propinqui; familiares; sed omnes omnium caritates patria una complexa est; pro qua quis bonus dubitet mortem oppetere si ei sit profuturus?” Cicero, De Officiis, 1, 17. A modern writer on ethics classifies this same abstraction under the head of Benevolence, in his discussion of Intuition-ism. Sidgwiclc, The Methods of Ethics, p. 251. But is the disease so dangerous that it comes within the “clear and present” of the surely analogous free speech cases. Schenck v..United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561; Debs v. United States, 249 U.S. 211, 39 S.Ct. 252, 63 L.Ed. 566; Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173; Schaefer v. United States, 251 U.S. 466, 40 S.Ct. 259, 64 L.Ed. 360; Pierce v. United States, 252 U.S. 239; 40 S.Ct. 205, 64 L.Ed. 542; O’Connell v. United States, 253 U.S. 142, 40 S.Ct. 444, 64 L.Ed. 827; Gilbert v. Minnesota, 254 U.S. 325, 41 S.Ct. 125, 65 L.Ed. 287; Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095; Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1337. Love of country in its relation to the armed forces thereof may have either a positive or a negative effect. It may prevent treachery and it may promote courage. There are plainly many more certain, if less pleasant, methods of providing against that extreme of disloyalty which is treachery. So, also, there are many equally certain, if less noble, methods of inciting to the martial zeal which is bravery on the field of battle. If all armies had to be volunteer, it might be otherwise. As it is, considerations of prestige in both its positive (promotions, decorations, etc.) and negative (fear of ridicule, etc.) facets operate and make the disease only para at most. After all, even mercenary troops used to win wars; a. fortiori, is the remoteness of the sockknitting and nursing abilities of grown-up girls. See United States v. Bland, 283 U. S. 636, 51 S.Ct. 569, 75 L.Ed. 1319; United States v. Schwimmer, above cited. We conclude that patriotism is an added advantage rather than an essential whose absence is dangerous in the clear and present sense. An even more “clear, cogent and convincing,” as the books say, argument follows from the type of vaccine used. That it must. be reasonably effective is both a sensible and recognized canon of police power. Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643, 3 Ann. Cas. 765. The punishment of polygamy, drum beating, blasphemy, and faith healing is indispensable to accomplish their prohibition. So, too, the prevention of epidemics requires. vaccination. Is the same thing true of compulsory flag saluting? We can concede the general connection between the emblem and the virtue. In the words of a learned Japanese patriot: “ * * * Any nation which makes light of the flag must necessarily sink. Disrespect to the flag evinces a state policy pliable and submissive”. M. Matsunami, The National Flag of Japan, p. 6. Does the conception embrace the next step? The abstract problem postulated concerns the effectiveness of teaching love (of country) by force emanating from the would-be beloved (an administrative instrumentality of that country). We do not doubt that children can and have been forced to learn Latin or eat spinach and so eventually to love them. But Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "bureaucracy providing services". Which specific state government agency best describes this litigant? A. Police B. Fire C. Taxation D. Human Services/Welfare/Health Care E. Streets and Highways F. Transportation G. Election processes H. Education I. Other Service Activity J. not ascertained Answer:
sc_lcdisagreement	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. 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: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? A. Yes B. No Answer:
sc_respondentstate	37	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. COMMUNIST PARTY, U. S. A., et al. v. CATHERWOOD, INDUSTRIAL COMMISSIONER. No. 495. Argued May 4, 1961. Decided June 12, 1961. John J. Abt argued the cause and filed a brief for petitioners. Julius L. Sackman argued the cause for respondent. With him on the brief were Louis J. Lefkowitz, Attorney-General of New York, Paxton Blair, Solicitor General, and Samuel Stern, Assistant Attorney General. Mr. Justice Harlan delivered the opinion of the Court. We here review the upholding by the New York Court of Appeals of the action of the New York State Industrial Commissioner terminating petitioners’ registration and liability to state taxation as employers under the New York State Unemployment Insurance Law. N. Y. Labor Law, §§ 511-512, 517-518, 570, 577, 581. This determination was effected under what was conceived to be the compulsion of a federal statute, the Communist Control Act of 1954, 68 Stat. 775, 50 U. S. C. §§ 841-844, which provides, in pertinent part: “Section 2. The Congress hereby finds and declares that the Communist Party of the United States, although purportedly a political party, is in fact an instrumentality of a conspiracy to overthrow the Government of the United States .... Therefore the Communist Party should be outlawed. “Section 3. The Communist Party of the United States, or any successors of such party regardless of the assumed name, whose object or purpose is to overthrow the Government of the United States, or the government of any State, Territory, District, or possession thereof, or the government of any political subdivision therein by force and violence, are not entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof; and whatever rights, privileges, and immunities which have heretofore been granted to said party or any subsidiary organization by reason of the laws of the United States or any political subdivision thereof, are hereby terminated: Provided, however, That nothing in this section shall be construed as amending the Internal Security Act of 1950, as amended.” (Emphasis supplied.) New York has an “experience rating” scheme whereby employers with consistent records of high employment levels are taxed at a lower rate than would otherwise obtain. Under the Federal Unemployment Tax Act, 26 U. S. C. §§ 3301-3308, an employer is entitled to a federal tax credit for the amount paid in state unemployment taxes. If the state taxing structure allows for a reduction in tax rate to employers with good employment records under a federally certified “experience rating” system, the federal tax is nevertheless reduced by the highest rate imposed by the State, so that the employer retains the full benefit of his experience rating reduction. Thus, before the termination of their New York registration the combined federal and state tax rate of the petitioner, Communist Party, U. S. A., was 1%, and that of the petitioner, Communist Party of New York State, was, according to its representations, 1.1%. The effect of the registration termination as to both was to increase the rate to 3%, the rate provided in the federal statute. We granted certiorari, 364 U. S. 918, to consider the petitioners’ claims that New York has mistakenly construed the Communist Control Act of 1954 to require termination of their status as employers under the New York statute, and, contrariwise,, that both § 3 of the Communist Control Act, so construed, and New York’s termination of registration infringed the Constitution of the United States. We must reject at the outset respondent’s contention that the Court of Appeals’ decision rested on a determination, based on judicial notice which was not displaced by any proof, that petitioners were not employers within the meaning of § 512 of the New York Labor Law, but a criminal conspiracy. It is entirely clear that the Industrial Commissioner and the Unemployment Insurance Referee, the Unemployment Insurance Appeal Board, and the Court of Appeals all based their determination squarely on what they conceived to be the compulsion of the Communist Control Act. The Court of Appeals’ amended remittitur, which states that the questions of the construction and constitutionality of the Communist Control Act “were presented and necessarily passed upon,” puts the matter beyond doubt. Following the familiar rule that decision of Constitutional questions should be avoided wherever fairly possible, we turn at once to the federal statute which this Court has not heretofore had occasion to construe. Apart from unrevealing random remarks during the course of debate in the two Houses, there is no legislative history which in any way serves to give content to the vague terminology of § 3 of the Communist Control Act. The statute contains no definition, and neither committee reports nor authoritative spokesmen attempt to give any definition, of the clause “rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the United States or any political subdivision thereof.” Respondent would have us construe this language to mean that wherever a situation advantageous to the petitioners occurs by reference to the statutory or common law of a State or any other government in the United States, this is to be considered a “right,” “privilege,” or “immunity,” and must be deemed to be withheld by the Act. On this basis New York has reasoned that liability to taxation as an employer, though not a privilege in the ordinary sense of the term, is nonetheless a recognition of the common-law contractual capacity to employ, and as such is advantageous to petitioners; and further, that an employer whose employees are unable to benefit from state and federal unemployment insurance programs will be disadvantaged in finding and keeping employees. Therefore it was thought that the Communist Control Act required termination of the registration of petitioners as employers. This interpretation, raising as it does novel constitutional questions, the answers to which are not necessarily controlled by decisions of this Court in connection with other legislation dealing with the Communist Party, must, we think, be rejected. Not only does the language of the statute fall far short of compelling such an interpretation, but there are good indications that the particular result of barring petitioners as employers under state and federal unemployment insurance systems was not within the contemplation of this Act. The Internal Revenue Service has continued to collect taxes from petitioners under the Federal Unemployment Tax Act, and Congress in 1956 has dealt in terms with a like matter, excluding from federal old-age, survivors and disability benefits, 42 U. S. C., c. 7, subchapter II, employment with any organization required to register by the Subversive Activities Control Board and removing from the coverage of the Federal Insurance Contributions Act, 26 U. S. C., c. 21, any such organization, thus tying the exclusion to the administrative fact findings and determinations required by the Internal Security Act of 1950, 64 Stat. 987; see Communist Party v. Subversive Activities Control Board, ante, p. 1. In face of these considerations we should hesitate long before attributing to Congress a purpose to effectuate the similar exclusion in this instance by legislative fiat. Our reluctance to accept a state interpretation which would have that effect is fortified both by the difficult constitutional questions that would result and by the undesirability of having conflicting state and federal administrative interpretations of a federal statute establishing this “coordinated and dual system” (Buckstaff Co. v. McKinley, 308 U. S. 358, 364) of employment insurance. We hold that the Communist Control Act of 1954 does not require exclusion of the petitioners from New York’s unemployment compensation system. Since the New York Court of Appeals’ decision unmistakably rested on the contrary premise, its judgment must be reversed and the case remanded for further proceedings not inconsistent with this opinion. It is so ordered. Mr. Justice Black concurs in the result. The basic federal rate was increased to 3.1% by Public Law 86-778, § 523 (c), 74 Stat. 924, 982, effective 1961. 26 U. S. C. § 3301. Petitioners argue that the Act on its face and as applied violates the Due Process Clause of the Fifth Amendment and Art. I, § 9, cl. 3 of the Federal Constitution, which provides that “no Bill of Attainder or ex post facto Law shall be passed.” Petitioners also contingently assert a Fourteenth Amendment claim, see note 6, infra. The Referee, in reviewing the administrative action of the Commissioner, stated that “the Commissioner’s representatives . . . urge that Congress has effectively outlawed the Communist Party and thus, by force of law, the Referee is bound to find that . . . there could not have been any valid employment . . . .” (R. 5.) This contention the Referee accepted, holding that “Congress effectively terminated the right of the Parties to enter into contracts of employment . . . .” (R. 7.) The Board affirmed the Referee’s conclusions of law. (R. 2.) See 8 N. Y. 2d 77, at 83, 168 N. E. 2d 242, at 245, for the opinion of Chief Judge Desmond, with whom Judge Dye concurred, and 8 N. Y. 2d, at 90-91, 168 N. E. 2d, at 248-249, for the opinion of Judge Van Voorhis, with whom Judge Burke concurred. Two judges of the court dissented, and one judge did not participate. Petitioners also argue that if the administrative action rested upon some state procedural ground, as respondent contends, then that action violated the Due Process Clause of the Fourteenth Amendment. We do not reach this contention. The Solicitor General, in a letter to the Clerk of this Court responding to a certification by the Court to the Attorney General of the United States that the constitutionality of a federal statute had been drawn into question in this case, stated that “[t]here is no need to file a brief describing the practice of federal agencies in interpreting the statute [The Communist Control Act of 1954], for this information is already set forth in the opinion of Judge Fuld in the New York Court of Appeals.” The dissenting opinion of Judge Fuld states that “the federal authorities, admittedly aware of the Industrial Commissioner’s position, have taken one diametrically opposed and continue to recognize the Communist Party as an employer subject to the Federal act.” 42 U. S. C. § 410 (a) (17) and 26 U. S. C. § 3121 (b) (17), Act of August 1, 1956, § 121 (c) and (d), 70 Stat. 839. No similar exclusion, however, has been made from the coverage of the Federal Unemployment Tax Act, 26 U. S. C., c. 23, which imposes the federal tax against which the state taxes involved in this case are credited. See p. 391, supra. Question: What state is associated with the respondent? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_circuit	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. COMMONWEALTH NATURAL GAS CORPORATION, Appellee, v. UNITED STATES of America, Appellant (two cases). COMMONWEALTH GAS DISTRIBUTION CORPORATION, Appellee, v. UNITED STATES of America, Appellant (two cases). Nos. 11501-11504. United States Court of Appeals Fourth Circuit. Argued Dec. 8, 1967 Decided May 7, 1968. William A. Friedlander, Atty., Dept. of Justice (Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Meyer Rothwacks, David O. Walter, Attys., Dept. of Justice, and C. Vernon Spratley, Jr., U. S. Atty., on brief), for appellant. H. Brice Graves and Lewis F. Powell, Jr., Richmond, Va. (E. Milton Farley, III, and Hunton, Williams, Gay, Powell & Gibson, Richmond, Va., on brief), for appellees. Before SOBELOFF, BOREMAN and WINTER, Circuit Judges. WINTER, Circuit Judge: The district judge, in a trial non-jury, held that taxpayers, a natural gas pipeline company and a natural gas distributing company, were entitled to depreciate certain pipeline costs, i. e., the costs of easements, including damages and the costs of clearing and grading easements, over a 30-year useful life, and gave judgment for tax refunds. In these appeals the government contends that the evidence will not support 30 years as a reasonable estimate of the continued availability of a supply of natural gas, so that no depreciation for these costs should be recognized, or, alternatively, that depreciation over a 30-year period was improper, and that taxpayers’ costs in clearing and grading easements should be ascribed to land, and hence, are not depreciable. We affirm the judgments from which these appeals are taken. Commonwealth Natural Gas Corporation (“Commonwealth”) transports natural gas by pipeline and sells the gas to retail distributors. It owns 350 miles of pipeline. Commonwealth Gas Distribution Corporation, a wholly-owned subsidiary of Commonwealth, owns 15 miles of pipeline and is a retail distributor of natural gas. By stipulation of the parties, all gas reserves and resources which are available or discovered east of the Rocky Mountains are a source of supply for taxpayers’ pipelines, and the parties have stipulated, further, that taxpayers will receive their fair share of these reserves and resources. The tax years in question for both taxpayers were the years 1957 to 1960, inclusive. Before turning to the main question of depreciation, we find it convenient to dispose of the subsidiary question of whether the costs of clearing and grading easements are depreciable items. These costs were incurred after acquisition of the easements in order to put the land in shape for the pipeline to be laid. Taxpayers argue therefrom that these costs constituted a part of the costs of the pipelines, depreciable as such. The government, however, contends that the costs of clearing and grading should be ascribed to the land, or the interest in land, and that depreciation, if any, would turn on that premise. The district judge assigned these costs to the pipelines themselves and not to the intangible easements. Standard and regulatory accounting procedures require treatment of these costs in varying ways. The uniform system of accounts prescribed by the Federal Power Commission requires that these costs be charged to land and land rights accounts; the State Corporation Commission of Virginia previously had a like requirement, although it now recognizes that if such costs are incurred in connection with the construction of a pipeline they constitute a part of the costs of the line. “Accounting Research Study No. 7,” published by the American Institute of Certified Public Accountants (1965) suggests that accounts for land and land rights should include the purchase cost of land and interests in land together with other incidental costs such as clearing and grading. The only direct authority on the question is Portland General Electric Co. v. United States, 189 F.Supp. 290, 305 (D.Ore.1960), aff’d per curiam, 310 F.2d 877 (9 Cir. 1962), where it was held that the costs of clearing easements for electric transmission lines in order to construct the facilities were properly attributable to the costs of the facilities and depreciated as part thereof. See also, Algernon Blair, Inc., 29 T.C. 1205, 1220-1221 (1958), where the government conceded that the costs of clearing, grading and landscaping in building a multiple housing project were directly related to the construction of depreciable assets and were subject to depreciation. We are persuaded to follow the Portland General Electric case in the case at bar, and we hold that the costs of clearing and grading are attributable to the cost of constructing the pipeline and depreciable with it. Distinguishable is Meyer v. United States, 247 F.Supp. 939 (D.Mass.1965), aff’d per curiam, 362 F.2d 264 (1 Cir. 1966), which holds demolition costs a part of the cost of site acquisition. The rationale of that holding is the prevention of tax avoidance because otherwise a part of the purchase price of the site would be allocated to the old building and a taxpayer would be entitled to an immediate deduction of the price so allocated upon demolition. There is no such consideration here. We turn, therefore, to the main questions: are the costs of the pipeline de-preciable, and is 30 years a proper period of depreciation? Depreciation, as a deduction from gross income, is allowed by § 167 of the Internal Revenue Code of 1954. The pertinent regulations are set forth below. Through the successive codes and regulations thereunder there has been, over the years, little change in the provisions now obtaining. Essentially because the regulations say that an intangible asset “may” be the subject of depreciation if its length of life can be estimated with reasonable accuracy (notwithstanding that the statute says “shall”), the government argues that “the cost of an intangible asset which is known to have a useful life of a limited or finite period may be depreciated only when the length of that period can be estimated with reasonable accuracy.” By that measure, the government argues that the district judge’s findings with regard to finiteness and 30 years as a reasonable estimate of useful life are not supported by the proof so that taxpayers’ claimed depreciation should be disallowed. Before analyzing the proof, we find it helpful to consider what the Supreme Court has said that the statute requires in order to entitle a taxpayer to sustain a deduction for depreciation. In United States v. Ludey, 274 U.S. 295, 47 S.Ct. 608, 71 L.Ed. 1054 (1927), the Supreme Court sustained the government’s argument that a depreciation allowance must be made, even though the computation was based on a “rough estimate.” At issue was the cost basis of certain oil reserves which were the subject of a sale ; it was held that the original cost of the property must be reduced by depreciation and depletion which Ludey was entitled to deduct, but did not claim, for earlier years. Four years later, in Burnet v. Niagara Falls Brewing Co., 282 U.S. 648, 51 S.Ct. 262, 75 L.Ed. 594 (1931), the test of “reasonable approximation” was approved as a test for obsolescence when the government argued that the effect of the prohibition amendment in the years immediately preceding its adoption in the brewing business could not be proved with sufficient certainty to support a deduction for obsolescence. The Ludey case was cited with approval as recently as 1966, in the case of Fribourg Navigation Co. v. Commissioner, 383 U.S. 272, 86 S.Ct. 862, 15 L.Ed.2d 751 (1966), which also cited Massey Motors, Inc. v. United States, 364 U.S. 92, 80 S.Ct. 1411, 4 L.Ed.2d 1592 (1960), and Hertz Corp. v. United States, 364 U.S. 122, 80 S.Ct. 1420, 4 L.Ed.2d 1603 (1960), as recognizing that “depreciation is based on estimates as to useful life and salvage value.” Id., 383 U.S. p. 277, 86 S.Ct. at p. 866. Thus, it is clear that from the statute we must look to “estimates” which reasonably approximate what will occur; and, indeed, under certain circumstances they need be only “rough estimates.” In recognition of the inexactness which may result from resort to such sources — apparent during the useful life of the property being depreciated, at the termination of such life, or at the time of disposition of such property by sale — and which may become known by application of hindsight or by some future more exact knowledge, we must keep in mind the statement in the Fribourg Navigation case that “it is, of course, undisputed that the Commissioner may require re-determination of useful life or salvage value when it becomes apparent that either of these factors has been miscalculated.” Id., p. 277, 86 S.Ct. at 865. On review, our present task is only to determine in the light of present knowledge for the tax years in question if the district judge correctly determined that taxpayers have established useful life by the prescribed test's. The district judge made three ultimate findings that are before us on review: (a) natural gas reserves exist in nature in a finite amount, (b) natural gas reserves are depleted by use and such reserves will be available for a limited time which can be estimated with reasonable accuracy, and (c) the evidence demonstrated that 30 years was a reasonable measure of the life of the natural gas reserves available to the taxpayers for the tax years in question. The government does not contest the correctness of finding (a), nor does it contest the correctness of the part of finding (b) that natural gas reserves are depleted by use and will be available for a limited time. The whole dispute revolves about whether the finiteness of natural gas reserves as to quantity and useful life can be estimated with reasonable accuracy and, if so, whether 30 years is an accurate estimate. On these issues the taxpayers’ entire case was predicated on the testimony of Dr. Bruce C. Netschert, an economist with geological training, who termed himself an energy and fuels economist. Dr. Netschert was established to be a man of extensive and impressive qualifications in the study and assessment of present and future supplies of energy in the United States, including oil and natural gas. The government presented no evidence to controvert that adduced from Dr. Netschert. While it does not attack his credibility as such, it relies solely on the answers elicited from him on cross-examination and what it considers the general unpersuasiveness of his testimony. We will not undertake to summarize or reproduce all of Dr. Netschert’s testimony; a brief summary will suffice. Unequivocally, Dr. Netschert expressed the opinion that the useful life of natural gas reserves can be estimated with reasonable accuracy and is in the neighborhood of 30 years. The latter portion of the opinion was derived from a consideration of the ratio of proved natural gas reserves to annual production (the “R-P ratio”). As a straight mathematical computation, the R-P ratio indicates 20 years. This figure must first be adjusted downward because the initial rate of production is not maintained until exhaustion of a gas well; a gas well has a “deliverable life” of only 12 to 14 years. Conversely, the figure must next be adjusted upward because there are reserves other than proved reserves known to exist, although there is about their existence less certainty than proved reserves. These other reserves are of two types: “probable” or “possible” reserves which are known to exist but with less certainty than proved reserves and for which there has never been any compilation of reserves data on a state, regional or national basis, and gas that is presumed to exist but has as yet not been discovered although some will certainly be discovered. Taking into consideration the adjustments which must be made to the R-P ratio and “the matter of technology,” Dr. Netschert’s opinion was that 30 years useful life was a reasonable net result. His own explanation of his ultimate opinion was best expressed in response to a question by the Court, set forth in the margin. The basis for Dr. Netschert’s opinion is attacked by the government on two scores. First, it is claimed that the aspect of his testimony, wherein he admitted that in addition to proved and probable reserves there is gas presumed to exist but not yet discovered although some will certainly be discovered, destroyed the basis for his conclusion. This is so, it is argued, because there is clear recognition that the supply of gas will last beyond 30 years and, failing a reasonable estimate of how long the supply will last beyond 30 years, taxpayers have failed to meet the burden imposed on them to prove the reasonable accuracy of the claimed deduction. The answer to the argument is that the gas referred to has not yet been discovered. While there may be a degree of certainty that it will be discovered, when and in what quantities cannot be presently predicted. Until there is more certainty as to when and in what quantities these reserves of gas will be ascertainable quantities, they may not be given an existence such as to destroy the Congressional mandate that a depreciation deduction “shall be allowed.” In this regard we are persuaded by the majority and concurring opinions in Northern Natural Gas Company v. O’Malley, 277 F.2d 128 (8 Cir. 1960), a case on all fours with the instant case, which upheld a depreciation allowance. The comment of Judge Blackmun in his concurring opinion on this point is pertinent: “The Commissioner’s insistence in this case that there be a fixed and definitely limited period of time must equate only with the practical need of a measure. But that measure need not be one determined with precision accuracy and be good for all time. A ‘reasonable approximation’ or even ‘a rough estimate’, say the Niagara Falls and Ludey cases, is enough. In this light, the elements involved here, namely, proven reserves, production, reserve life index, load factor and the others, become acceptable for consideration in the absence of proof that they are wholly fallacious. These elements at first glance may seem to be difficult of application, but, if so, the difficulty bears upon only computational aspects and not upon basic eligibility. The amount of the deduction will change from year to year as proven reserves change and as additional costs of rights-of-way may be incurred. These changes are only computational but, when properly taken into account, they prevent the complete consumption, through deductions, of rights-of-way costs before the end of the rights-of-way life. There is thus no premature recovery of these costs.” Id., p. 140. See also, Shell Pipe Line Corp. v. United States, 267 F.Supp. 1014 (S.D.Tex.1967). The second ground of attack on the testimony of Dr. Netschert is its reference to an all-electric economy. It is argued that the witness predicated his opinion at least in part by theatened obsolescence and that this constituted a fatal variance in taxpayers’ cases under the familiar rule that a taxpayer may' litigate his taxes only on the grounds that were presented to or considered by the Commissioner. Samara v. United States, 129 F.2d 594, 597-598 (2 Cir.), cert. den., 317 U.S. 686, 63 S.Ct. 258, 87 L.Ed. 549 (1942). The short answer to this argument is that when the testimony of Dr. Netschert is considered in its entirety, it does not appear that he predicated his testimony on obsolescence occasioned by competition from electricity. Dr. Netschert did say that in arriving at a 30-year useful life he considered “the matter of technology.” “Matters of technology” included improvements on the consumption side (in new and increased uses of gas) and improvements on the production side (in finding and producing gas), and he was quite clear that “we have a more or less 20-25 year generation life of technology,” and that to “go beyond this period very far you begin to get into an area where all possibilities are open and where you have almost nothing to go on.” It was in connection with matters of technology that the witness speculated that there might be the all-electric economy by the end of the century and that by then “the natural gas industry would be * * * as obsolete as the buggy whip industry is today.” That increased use of electricity was a factor to be considered along with other factors, but that the conclusion of a 30-year life was not based on obsolescence, best appears from the witness’ own words, set forth below. Our review of the record satisfies us that the findings of the district judge were amply supported, particularly in view of the fact that he judged credibility by observance of manner and demeanor of the expert witness in testifying, and the inherent persuasiveness of his testimony without any evidence to controvert that testimony. We consider that the quantum and quality of that testimony satisfied the tests of what is needed to demonstrate entitlement to a deduction for depreciation. It follows that the allowance of a depreciation on the basis of a 30-year useful life for the tangible and intangible personal property in question for the years in question was correct. The judgments appealed from are Affirmed. . Internal Revenue Code of 1954: SEC. 167. DEPRECIATION. (a) General rule. — There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence) — (1) of property used in the trade or business, or (2) of property held for the production of income. * * * * (26 U.S.C. 1904 ed., Sec. 167.) . Treasury Regulations on Income Tax (1954 Code) : Sec. 1.167(a)-l. Depreciation in general. — (a) Reasonable alloioance. Section 167(a) provides that a reasonable allowance for the exhaustion, wear and tear, and obsolescence of property used in the trade or business or of property held by the taxpayer for the production of income shall be allowed as a depreciation deduction. The allowance is that amount which should be set aside for the taxable year in accordance with a reasonably consistent plan (not necessarily at a uniform rate), so that the aggregate of the amounts set aside, plus the salvage value, will, at the end of the estimated useful life of the depreciable property, equal the cost or other basis of the property as provided in section 167(g) and § 1.167(g)-l. * * * (b) Useful life. For the purpose of section 167 the estimated life of an asset is not necessarily the useful life inherent in the asset but is the period over which the asset may reasonably be expected to be useful to the taxpayer in his trade or business or in the production of his income. This period shall be determined by reference to his experience with similar property taking into account present conditions and probable future developments. * * * J¡í íjí Sec. 1.167(a)-3 Intangibles. If an intangible asset is known fr-om experience or other factors to be of use in the business or in the production of income for only a limited period, the length of which can be estimated with reasonable accuracy, such an intangible asset may be the subject of a depreciation allowance. Examples are patents and copyrights. An intangible asset, the useful life of which is not limited, is not subject to the allowance for depreciation. * * * (26 C.F.R. Sec. 1.167 (a)-3.) . »* * * The regerves are recognized as wasting assets. The depletion affected by operation is likened to the using up of raw material in making the product of a manufacturing establishment. As the cost of the raw material must be deducted from the gross income before the net income can be determined, so the estimated cost of the part of the reserve used up is allowed. The fact that the reserve is hidden from sight presents difficulties in making an estimate of the amount of the deposits. The actual quantity can rarely he measured. It must be approximated. And because the quantity originally in the reserve is not actually known the percentage of the whole withdrawn in any year, and hence the appropriate depletion charge, is necessarily a rough estimate. But Congress concluded, in the light of experience that it was better to act upon a rough estimate than to ignore the fact of depletion.” Id., 274 U.S. p. 302, 47 S.Ct. p. 610. . “It would be unreasonable and violate that cannon [sic] of construction to put upon the taxpayer the burden of proving to a reasonable certainty the existence and amount of obsolescence. Such weight of evidence as would reasonably support a verdict for a plaintiff in an ordinary action for the recovery of money fairly may be deemed sufficient. Neither the cost of obsolescence nor of accruing exhaustion, wear and tear that is properly chargeable in any period of time can be measured accurately. A reasonable approximation of the amount that fairly may be included in the accounts of any year is all that is required. * * * ” Id. 282 U.S. p. 654, 51 S.Ct. p. 265. . Before this ratio is computed, gross production must be adjusted because some of the gas produced is reinjected into the ground and not consumed. Of the gas considered to be consumed, some is wasted or lost. Another factor which affects blind resort to the ratio is that some of the proved reserves are unrecoverable because of economic or physical circumstances. . “ * * * The Witness: Well, I think that is necessary to take into account three things. On the one hand the overstatement of the life of reserves that is inherent in the R-P ratio because of this matter of deliverability, as I explained in my testimony. In the second place it is necessary to take into account the conservativeness of the R-P ratio because it uses proved reserves whereas we know that there are other categories of reserves in addition. And on the third point I think it is necessary to consider the matter of technology on the consumption side as well as the production side. That is, I have testified repeatedly on the fact that there are, I think, a great deal, a great, very large quantities of gas remaining in this country. I have further testified that I think that this gas will or can be made available through technological improvement, through continued technological improvements in the matter of finding and producing it. Now, in this context in which I testified, as I understand it, it would be appropriate to consider not only that but also the technology as to the effects, the other side, the consuming side. And that is where I talk about the all-electric economy. Now, taking all those things into account, we have a given figure, an actual specific figure in the neighborhood of 20, as an indicated life in the R-P ratio. We have an indication of, fairly good indication, that there are other quantities of gas which would make the actual figures somewhat higher. These quantities, however, cannot — or specific measures of these quantities are not available. There are no figures equivalent to the, equivalent to the proved reserves figures having to do with these additional quantities of gas. There are estimates, but they are not estimates made on the same basis or consistent among different estimators, et cetera. So we have a fairly solid figure on the one hand, which is clearly at the low end. The question, then, is how far do we go toward the high end. That is what, if you took for example, the figure such as I myself have used, that there were at least twelve hundred trillion cubic feet of reserves, or rather of gas, probably exist in the earth’s crust in the United States, this would give you a ratio of something close to 100 by dividing the current production into it. However, this involves this matter of technology, as I have said, and considering the possibilities on both scores it seems to me that a reasonable net result is in the neighborhood of thirty years.” . A related argument is that taxpayers stipulated that as yet undiscovered gas reserves would constitute a source of supply for them. Neither we nor the district judge read taxpayers’ stipulation so broadly. . “For several reasons, one of which I have already alluded to earlier, the concept that we have a more or less 20, 25-year generation life of technology, that when you go heyond this period very far you begin to get into an area where all possibilities are open and where you have almost nothing to go on. Whereas, here, for this period, you have, as the basis, the beginning R-P ratio. You have in addition the knowledge that there are certain unspecified, unmeasured, quantities of reserves in beyond the proved reserves and you have the indicated forces at work in the matter of the use of gas versus electricity, as well as the trend at present toward increased gas use. And it is the balance of all of these that I think is properly represented by a period of 30 years.” 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:

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