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songer_late	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the appeals court level. That is, it is conceded that the trial court properly reached the merits, but the issue is whether, in spite of that concession, the appellant has a right to an appeals court decision on the merits (e.g., the issue became moot after the trial). The issue is: "Did the court refuse to decide the appeal because the appellant failed to comply with some rule relating to timeliness of the appeal (e.g., failed to pay the filing fee on time or missed the deadline to file the appeal)?" 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. Manuel Nicholas DIAZ, Defendant-Appellant. No. 85-2752. United States Court of Appeals, Seventh Circuit. Submitted Oct. 24, 1985. Decided Nov. 22, 1985. Opinion Dec. 2, 1985. Nancy J. Nicol, Law Office of Terry Sullivan, Ltd., Rolling Meadows, Ill., for defendant-appellant. Mark D. Stuaan, Asst. U.S. Atty., Peoria, Ill., Gerald D. Fines, U.S. Atty., Springfield, Ill., for plaintiff-appellee. Before CUDAHY and POSNER, Circuit Judges. POSNER, Circuit Judge. Diaz, the defendant in a criminal case pending in the district court, has asked us to order that court to admit him to bail pending the trial of the case. Diaz is being held under the pretrial-detention provisions of the Bail Reform Act of 1984, specifically 18 U.S.C. § 3142(e), which provides that, “Subject to rebuttal by the person [sought to be detained], it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in [among other places] the Controlled Substances Act,” 21 U.S.C. §§ 801 et seq. If the presumption is applicable and not rebutted, the judicial officer shall order the person detained till the trial is over. That is what the magistrate did here, and the district judge concurred. On the background and proper interpretation of the rebuttable presumption in section 3142(e) see Judge Breyer’s thorough discussion for the First Circuit in United States v. Jessup, 757 F.2d 378 (1st Cir. 1985). The only question we are asked to decide is whether there is adequate support for the determination that Diaz failed to rebut the presumption (which he concedes is applicable to him, since he has been indicted for multiple drug offenses, including violation of the “kingpin” statute, which carries a maximum punishment of life in prison without parole) that there is no condition that would reasonably assure Diaz’s appearance at trial if bail were granted. Appellate review of such a determination is, necessarily, highly deferential, even though personal liberty is at stake. The ultimate determination that the magistrate and then, if requested, the district judge is required to make — whether it is reasonably certain that the defendant will show up for trial if admitted to bail (and whether, even if so, he can be left at large without endangering the safety of any other person, see 18 U.S.C. §§ 3142(e)-(g); United States v. Daniels, 772 F.2d 382 (7th Cir.1985), but that is not an issue in this case) — is inherently judgmental. It depends both on personal observation of the defendant and on a weighing of the daunting list of factors in section 3142(g) (“the nature and circumstances of the offense charged,” “the weight of the evidence against the person,” his “character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history,” and several others). When the magistrate and district judge actually consider these factors, and agree on the outcome, and the factors don’t all line up in the defendant’s favor, it is difficult for an appellate court to second-guess the decision to deny bail. For although the presumption against bail is rebuttable, we agree with the First Circuit that it continues to weigh in the balance against bail even after the defendant meets his burden of producing some evidence to rebut the presumption. See 757 F.2d at 381-84. The presumption reflects a congressional judgment, to which we are obligated to give weight, that persons facing heavy sentences for particular types of offenses are likely to jump bail. The magistrate and the district judge agreed that Diaz had not rebutted the statutory presumption. They had some grounds, certainly, for this conclusion. Diaz is charged with the most heavily punishable offense in the federal criminal code — with being a drug “kingpin” — and could if convicted face life imprisonment without parole. See 21 U.S.C. §§ 848(a), (c). (The federal penalty for murder is life imprisonment with parole possible after 10 years. See United States v. Fountain, 768 F.2d 790, 799-800 (7th Cir.1985).) That is a prospect likely to make anyone think of fleeing, especially if he is likely to be convicted, so that the prospect is more than theoretical. The evidence of Diaz’s guilt is very strong, making it unlikely that if he stays and stands trial he will be acquitted — a happier outcome than becoming a fugitive from justice. A native of Cuba, he is fluent in Spanish and would find it easier than most to relocate to another country. When arrested he was carrying almost $150,000 in cash, and although that money was of course taken away from him he may have other assets squirreled away which he could use to smooth his transition to a new life in another country. He is the kind of person who Congress was worried would have an overwhelming temptation to flee rather than face a trial having a predictable and severely adverse outcome. There are, it is true, factors pointing against the likelihood of flight. Diaz has lived in the United States for 18 years (since he was 12), has been married for 12 years to an American citizen, has two children, is an honorably discharged veteran, has a good employment record, has many relatives in the United States, and has no prior criminal record or history of drug or alcohol abuse, a fact that among other things reduces somewhat the probability that he will receive the maximum sentence — which anyway is rarely imposed. But even the minimum sentence for being a drug kingpin is a stiff 10 years, again without possibility of parole. See 21 U.S.C. §§ 848(a), (c). It is true that unless Diaz could persuade his wife to flee with him and was willing to subject his children to the miseries of a fugitive existence, he could flee only at the cost of severing his most precious 'family ties; but if he stays they may be severed anyway, should he receive a long prison sentence without possibility of parole. Diaz has presented a strong case that he would not flee, so that as an original matter we would find ourselves extremely uncertain how likely he is to flee. But, still being in a state of some perplexity, we cannot overrule the determination of the magistrate and district judge that requiring bond or other conditions that would leave Diaz at large pending trial would not reasonably assure that he would show up for trial. What troubles us the most in the opinions below is the suggestion that Diaz might flee to Cuba. This seems most unlikely. So far as we know, the Cuban regime is not hospitable to returning emigres in general or suspected drug criminals in particular. But this was not the major factor in the magistrate’s or district judge’s determination and is not a sufficient basis on which to overturn the determination. As we said earlier, being bilingual expands Diaz’s options — though we very much doubt that going back to Cuba is one of them. Diaz may of course reapply to the magistrate for bail and point out to him how skeptical we are of at least one aspect of the magistrate’s reasoning and how troubling we have found appellate resolution of this matter to be. In view of some doubts expressed by the magistrate in the course of the bail hearing we emphasize that the statutory presumption against bail in serious drug cases is, indeed, rebuttable, as the statute expressly states. It just doesn’t disappear completely; it remains as a factor weighing against bail, though a factor that can be, and here may have been, outweighed by other factors. The motion to be admitted to bail is Denied. Question: Did the court refuse to decide the appeal because the appellant failed to comply with some rule relating to timeliness of the appeal? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_threejudgefdc	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts. SHAW et al. v. RENO, ATTORNEY GENERAL, et al. No. 92-357. Argued April 20, 1993 Decided June 28, 1993 O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. White, J., filed a dissenting opinion, in which Blackmun and Stevens, JJ., joined, post, p. 658. Blackmun, J., post, p. 676, Stevens, J., post, p. 676, and Souter, J., post, p. 679, filed dissenting opinions. Robinson O. Everett argued the cause for appellants. With him on the briefs was Jeffrey B. Parsons. H. Jefferson Powell argued the cause for state appellees. With him on the briefs were Michael F. Easley, Attorney General of North Carolina, Edwin M. Speas, Jr., Senior Deputy Attorney General, and Norma S. Harrell and Tiare B. Smiley, Special Deputy Attorneys General. Edwin S. Kneedler argued the cause for federal appellees. On the brief were Acting Solicitor. General Bryson, Acting Assistant Attorney General Turner, Thomas G. Hungar, and Jessica Dunsay Silver. Briefs of amici curiae urging reversal were filed for the American Jewish Congress by Marc D. Stern and Lois C. Waldman; for the Republican National Committee by Benjamin L. Ginsberg and Michael A Hess; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A Samp. Briefs of amici curiae urging affirmance were filed for the Democratic National Committee et al. by Wayne R. Arden and Jeffrey M. Wice; for the Lawyers’ Committee for Civil Rights under Law et al. by Herbert Wachtell, William H. Brown III, Thomas J. Henderson, Frank R. Parker, Brenda Wright, Nicholas DeB. Katzenbach, Michael R. Cole, Alan E. Kraus, Laughlin McDonald, Kathy Wilde, E. Richard Larson, and Dennis Courtland Hayes; for the NAACP Legal Defense and Educational Fund, Inc., by Elaine R. Jones, Charles Stephen Ralston, and Dayna L. Cunningham; and for Bolley Johnson et al. by Donald B. Verrilli, Jr., Scott A Sinder, Kevin X. Crowley, and James A Peters. Justice O’Connor delivered the opinion of the Court. This case involves two of the most complex and sensitive issues this Court has faced in recent years: the meaning of the constitutional “right” to vote, and the propriety of race-based state legislation designed to benefit members of historically disadvantaged racial minority groups. As a result of the 1990 census, North Carolina became entitled to a 12th seat in the United States House of Representatives. The General Assembly enacted a reapportionment plan that included one majority-black congressional district. After the Attorney General of the United States objected to the plan pursuant to § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c, the General Assembly passed new legislation creating a second majority-black district. Appellants allege that the revised plan, which contains district boundary lines of dramatically irregular shape, constitutes an unconstitutional racial gerrymander. The question before us is whether appellants have stated a cognizable claim. I The voting age population of North Carolina is approximately 78% white, 20% black, and 1% Native American; the remaining 1% is predominantly Asian. App. to Brief for Federal Appellees 16a. The black population is relatively dispersed; blacks constitute a majority of the general population in only 5 of the State’s 100 counties. Brief for Appellants 57. Geographically, the State divides into three regions: the eastern Coastal Plain, the central Piedmont Plateau, and the western mountains. H. Lefler & A. Newsom, The History of a Southern State: North Carolina 18-22 (3d ed. 1973). The largest concentrations of black citizens live in the Coastal Plain, primarily in the northern part. O. Gade & H. Stillwell, North Carolina: People and Environments 65-68 (1986). The General Assembly’s first redistricting plan contained one majority-black district centered in that area of the State. Forty of North Carolina’s one hundred counties are covered by § 5 of the Voting Rights Act of 1965, 42 U. S. C. § 1973c, which prohibits a jurisdiction subject to its provisions from implementing changes in a “standard, practice, or procedure with respect to voting” without federal authorization, ibid. The jurisdiction must obtain either a judgment from the United States District Court for the District of Columbia declaring that the proposed change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color” or administrative preclearance from the Attorney General. Ibid. Because the General Assembly’s reapportionment plan affected the covered counties, the parties agree that § 5 applied. Tr. of Oral Arg. 14, 27-29. The State chose to submit its plan to the Attorney General for preclearance. The Attorney General, acting through the Assistant Attorney General for the Civil Rights Division, interposed a formal objection to the General Assembly’s plan. The Attorney General specifically objected to the configuration of boundary lines drawn in the south-central to southeastern region of the State. In the Attorney General’s view, the General Assembly could have created a second majority-minority district “to give effect to black and Native American voting strength in this area” by using boundary lines “no more irregular than [those] found elsewhere in the proposed plan,” but failed to do so for “pretextual reasons.” See App. to Brief for Federal Appellees 10a-lla. Under §5, the State remained free to seek a declaratory judgment from the District Court for the District of Columbia notwithstanding the Attorney General’s objection. It did not do so. Instead, the General Assembly enacted a revised redistricting plan, 1991 N. C. Extra Sess. Laws, ch. 7, that included a second majority-black district. The General Assembly located the second district not in the south-central to southeastern part of the State, but in the north-central region along Interstate 85. See Appendix, infra. The first of the two majority-black districts contained in the revised plan, District 1, is somewhat hook shaped. Centered in the northeast portion of the State, it moves southward until it tapers to a narrow band; then, with finger-like extensions, it reaches far into the southernmost part of the State near the South Carolina border. District 1 has been compared to a “Rorschach ink-blot test,” Shaw v. Barr, 808 F. Supp. 461, 476 (EDNC 1992) (Voorhees, C. J., concurring in part and dissenting in part), and a “bug splattered on a windshield,” Wall Street Journal, Feb. 4, 1992, p. A14. The second majority-black district, District 12, is even more unusually shaped. It is approximately 160 miles long and, for much of its length, no wider than the 1-85 corridor. It winds in snakelike fashion through tobacco country, financial centers, and manufacturing areas “until it gobbles in enough enclaves of black neighborhoods.” 808 F. Supp., at 476-477 (Voorhees, C. J., concurring in part and dissenting in part). Northbound and southbound drivers on 1-85 sometimes find themselves in separate districts in one county, only to “trade” districts when they enter the next county. Of the 10 counties through which District 12 passes, 5 are cut into 3 different districts; even towns are divided. At one point the district remains contiguous only because it intersects at a single point with two other districts before crossing over them. See Brief for Republican National Committee as Amicus Curiae 14-15. One state legislator has remarked that “ ‘[i]f you drove down the interstate with both car doors open, you’d kill most of the people in the district.’” Washington Post, Apr. 20, 1993, p. A4. The district even has inspired poetry: “Ask not for whom the line is drawn; it is drawn to avoid thee.” Grofman, Would Vince Lombardi Have Been Right If He Had Said: “When It Comes to Redistricting, Race Isn’t Everything, It’s the Only Thing”?, 14 Cardozo L. Rev. 1237, 1261, n. 96 (1993) (internal quotation marks omitted). The Attorney General did not object to the General Assembly’s revised plan. But numerous North Carolinians did. The North Carolina Republican Party and individual voters brought suit in Federal District Court, alleging that the plan constituted an unconstitutional political gerrymander under Davis v. Bandemer, 478 U. S. 109 (1986). That claim was dismissed, see Pope v. Blue, 809 F. Supp. 392 (WDNC), and this Court summarily affirmed, 506 U. S. 801 (1992). Shortly after the complaint in Pope v. Blue was filed, appellants instituted the present action in the United States District Court for the Eastern District of North Carolina. Appellants alleged not that the revised plan constituted a political gerrymander, nor that it violated the “one person, one vote” principle, see Reynolds v. Sims, 377 U. S. 533, 558 (1964), but that the State had created an unconstitutional racial gerrymander. Appellants are five residents of Durham County, North Carolina, all registered to vote in that county. Under the General Assembly’s plan, two will vote for congressional representatives in District 12 and three will vote in neighboring District 2. Appellants sued the Governor of North Carolina, the Lieutenant Governor, the Secretary of State, the Speaker of the North Carolina House of Representatives, and members of the North Carolina State Board of Elections (state appellees), together with two federal officials, the Attorney General and the Assistant Attorney General for the Civil Rights Division (federal appellees). Appellants contended that the General Assembly’s revised reapportionment plan violated several provisions of the United States Constitution, including the Fourteenth Amendment. They alleged that the General Assembly deliberately “create[d] two Congressional Districts in which a majority of black voters was concentrated arbitrarily — without regard to any other considerations, such as compactness, contiguousness, geographical boundaries, or political subdivisions” with the purpose “to create Congressional Districts along racial lines” and to assure the election of two black representatives to Congress. App. to Juris. Statement 102a. Appellants sought declaratoiX-and-i-njunctive -relief against the state^appellees. ¡Theysought similar relief against* t'he^ ''federaf appellees, arguing, alternatively, that the federal appellees had misconstrued the Voting Rights Act or that.the Act itself was unconstitutional. ' The-three-judge District Court granted the federal appellees’ motion to dismiss. 808 F. Supp. 461 (EDNC 1992). The court agreed unanimously that it lacked subject matter jurisdiction by reason of § 14(b) of the Voting Rights Act, 42 U. S. C. § 1973¿(b), which vests the District Court for the District of Columbia with exclusive jurisdiction to issue injunctions against the execution of the Act and to enjoin actions taken by federal officers pursuant thereto. 808 F. Supp., at 466-467; id., at 474 (Voorhees, C. J., concurring in relevant part). Two judges also concluded that, to the extent appellants challenged the Attorney General’s preclearance decisions, their claim was foreclosed by this Court’s holding in Morris v. Gressette, 432 U. S. 491 (1977). 808 F. Supp., at 467. By a 2-to-l vote, the District Court also dismissed the complaint against the state appellees. The majority found no support for appellants’ contentions that race-based districting is prohibited by Article I, §4, or Article I, §2, of the Constitution, or by the Privileges and Immunities Clause of the Fourteenth Amendment. It deemed appellants’ claim under the Fifteenth Amendment essentially subsumed within their related claim under the Equal Protection Clause. 808 F. Supp., at 468-469. That claim, the majority concluded, was barred by United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U. S. 144 (1977) (UJO). The majority first took judicial notice of a fact omitted from appellants’ complaint: that appellants are white. It rejected the argument that race-conscious redistricting to benefit minority voters is per se unconstitutional. The majority also rejected appellants’ claim that North Carolina’s reapportionment plan was impermissible. The majority read UJO to stand for the proposition that a redistricting scheme violates white voters’ rights only if it is “adopted with the purpose and effect of discriminating against white voters... on account of their race.” 808 F. Supp., at 472. The purposes of favoring minority voters and complying with the Voting Rights Act are not discriminatory in the constitutional sense, the court reasoned, and majority-minority districts have an impermissibly discriminatory effect only when they unfairly dilute or cancel out white voting strength. Because the State’s purpose here was to comply with the Voting Rights Act, and because the General Assembly’s plan did not lead to proportional underrepresentation of white voters statewide, the majority concluded that appellants had failed to state an equal protection claim. Id., at 472-473. Chief Judge Voorhees agreed that race-conscious redistricting is not per se unconstitutional but dissented from the rest of the majority’s equal protection analysis. He read Justice White’s opinion in UJO to authorize race-based reapportionment only when the State employs traditional districting principles such as compactness and contiguity. 808 F. Supp., at 475-477 (opinion concurring in part and dissenting in part). North Carolina’s failure to respect these principles, in Judge Voorhees’ view, “augur[ed] a constitutionally suspect, and potentially unlawful, intent” sufficient to defeat the state appellees’ motion to dismiss. Id., at 477. We noted probable jurisdiction. 506 U. S. 1019 (1992). II A “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society....” Reynolds v. Sims, 377 U. S., at 555. For much of our Nation’s history, that right sadly has been denied to many because of race. The Fifteenth Amendment, ratified in 1870 after a bloody Civil War, promised unequivocally that “ft]he right of citizens of the United States to vote” no longer would be “denied or abridged... by any State on account of race, color, or previous condition of servitude.” U. S. Const., Arndt. 15, § 1. But “[a] number of states... refused to take no for an answer and continued to circumvent the fifteenth amendment’s prohibition through the use of both subtle and blunt instruments, perpetuating ugly patterns of pervasive racial discrimination.” Blumstein, Defining and Proving Race Discrimination: Perspectives on the Purpose Vs. Results Approach from the Voting Rights Act, 69 Va. L. Rev. 633, 637 (1983). Ostensibly race-neutral devices such as literacy tests with “grandfather” clauses and “good character” provisos were devised to deprive black voters of the franchise. Another of the weapons in the States’ arsenal was the racial gerrymander — “the deliberate and arbitrary distortion of district boundaries... for [racial] purposes.” Bandemer, 478 U. S., at 164 (Powell, J., concurring in part and dissenting in part) (internal quotation marks omitted). In the 1870’s, for example, opponents of Reconstruction in Mississippi “concentrated the bulk of the black population in a ‘shoestring’ Congressional district running the length of the Mississippi River, leaving five others with white majorities.” E. Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877, p. 590 (1988). Some 90 years later, Alabama redefined the boundaries of the city of Tuskegee “from a square to an uncouth twenty-eight-sided figure” in a manner that was alleged to exclude black voters, and only black voters, from the city limits. Gomillion v. Lightfoot, 364 U. S. 339, 340 (1960). Alabama’s exercise in geometry was but one example of the racial discrimination in voting that persisted in parts of this country nearly a century after ratification of the Fifteenth Amendment. See South Carolina v. Katzenbach, 383 U. S. 301, 309-313 (1966). In some States, registration of eligible black voters ran 50% behind that of whites. Id., at 313. Congress enacted the Voting Rights Act of 1965 as a dramatic and severe response to the situation. The Act proved immediately successful in ensuring racial minorities access to the voting booth; by the early 1970’s, the spread between black and white registration in several of the targeted Southern States had fallen to well below 10%. A. Thernstrom, Whose Votes Count? Affirmative Action and Minority Voting Rights 44 (1987). But it soon became apparent that guaranteeing equal access to the polls would not suffice to root out other racially discriminatory voting practices. Drawing on the “one person, one vote” principle, this Court recognized that “[t]he right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot.” Allen v. State Bd. of Elections, 393 U. S. 544, 569 (1969) (emphasis added). Where members of a racial minority group vote as a cohesive unit, practices such as multimember or at-large electoral systems can reduce or nullify minority voters’ ability, as a group, “to elect the candidate of their choice.” Ibid. Accordingly, the Court held that such schemes violate the Fourteenth Amendment when they are adopted with a discriminatory purpose and have the effect of diluting minority voting strength. See, e. g., Rogers v. Lodge, 458 U. S. 613, 616-617 (1982); White v. Regester, 412 U. S. 755, 765-766 (1973). Congress, too, responded to the problem of vote dilution. In 1982, it amended § 2 of the Voting Rights Act to prohibit legislation that results in the dilution of a minority group’s voting strength, regardless of the legislature’s intent. 42 U. S. C. § 1973; see Thornburg v. Gingles, 478 U. S. 30 (1986) (applying amended § 2 to vote-dilution claim involving multimember districts); see also Voinovich v. Quilter, 507 U. S. 146, 155 (1993) (single-member districts). B It is against this background that we confront the questions presented here. In our view, the District Court properly dismissed appellants’ claims against the federal appellees. Our focus is on appellants’ claim that the State engaged in unconstitutional racial gerrymandering. That argument strikes a powerful historical chord: It is unsettling how closely the North Carolina plan resembles the most egregious racial gerrymanders of the past. An understanding of the nature of appellants’ claim is critical to our resolution of the case. In their complaint, appellants did not claim that the General Assembly’s reapportionment plan unconstitutionally “diluted” white voting strength. They did not even claim to be white. Rather, appellants’ complaint alleged that the deliberate segregation of voters into separate districts on the basis of race violated their constitutional right to participate in a “color-blind” electoral process. Complaint ¶ 29, App. to Juris. Statement 89a-90a; see also Brief for Appellants 31-32. Despite their invocation of the ideal of a “color-blind” Constitution, see Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting), appellants appear to concede that race-conscious redistricting is not always unconstitutional. See Tr. of Oral Arg. 16-19. That concession is wise: This Court never has held that race-conscious state decision-making is impermissible in all circumstances. What appellants object to is redistricting legislation that is so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional districting principles and without sufficiently compelling justification. For the reasons that follow, we conclude that appellants have stated a claim upon which relief can be granted under the Equal Protection Clause. See Fed. Rule Civ. Proc. 12(b)(6). Ill A The Equal Protection Clause provides that “[n]o State shall... deny to any person within its jurisdiction the equal protection of the laws.” U. S. Const., Arndt. 14, § 1. Its central purpose is to prevent the States from purposefully discriminating between individuals on the basis of race. Washington v. Davis, 426 U. S. 229, 239 (1976). Laws that explicitly distinguish between individuals on racial grounds fall within the core of that prohibition. No inquiry into legislative purpose is necessary when the racial classification appears on the face of the statute. See Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 272 (1979). Accord, Washington v. Seattle School Dist. No. 1, 458 U. S. 457, 485 (1982). Express racial classifications are immediately suspect because, “[a]bsent searching judicial inquiry..., there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.” Richmond v. J. A. Croson Co., 488 U. S. 469, 493 (1989) (plurality opinion); id., at 520 (Scalia, J., concurring in judgment); see also UJO, 430 U. S., at 172 (Brennan, J., concurring in part) (“[A] purportedly preferential race assignment may in fact disguise a policy that perpetuates disadvantageous treatment of the plan’s supposed beneficiaries”). Classifications of citizens solely on the basis of race “are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States, 320 U. S. 81, 100 (1943). Accord, Loving v. Virginia, 388 U. S. 1, 11 (1967). They threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility. Croson, supra, at 493 (plurality opinion); UJO, supra, at 173 (Brennan, J., concurring in part) (“[E]ven in the pursuit of remedial objectives, an explicit policy of assignment by race may serve to stimulate our society’s latent race consciousness, suggesting the utility and propriety of basing decisions on a factor that ideally bears no relationship to an individual’s worth or needs”). Accordingly, we have held that the Fourteenth Amendment requires state legislation that expressly distinguishes among citizens because of their race to be narrowly tailored to further a compelling governmental interest. See, e. g., Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277-278 (1986) (plurality opinion); id., at 285 (O’Connor, J., concurring in part and concurring in judgment). These principles apply not only to legislation that contains explicit racial distinctions, but also to those “rare” statutes that, although race neutral, are, on their face, “unexplainable on grounds other than race.” Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). As we explained in Feeney: “A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification. Brown v. Board of Education, 347 U. S. 483; McLaughlin v. Florida, 379 U. S. 184. This rule applies as well to a classification that is ostensibly neutral but is an obvious pretext for racial discrimination. Yick Wo v. Hopkins, 118 U. S. 356; Guinn v. United States, 238 U. S. 347; cf. Lane v. Wilson, 307 U. S. 268; Gomillion v. Lightfoot, 364 U. S. 339.” 442 U. S., at 272. B Appellants contend that redistricting legislation that is so bizarre on its face that it is “unexplainable on grounds other than race,” Arlington Heights, supra, at 266, demands the same close scrutiny that we give other state laws that classify citizens by race. Our voting rights precedents support that conclusion. In Guinn v. United States, 238 U. S. 347 (1915), the Court invalidated under the Fifteenth Amendment a statute that imposed a literacy requirement on voters but contained a “grandfather clause” applicable to individuals and their lineal descendants entitled to vote “on [or prior to] January 1, 1866.” Id., at 357 (internal quotation marks omitted). The determinative consideration for the Court was that the law, though ostensibly race neutral, on its face “embodied] no exercise of judgment and rest[ed] upon no discernible reason” other than to circumvent the prohibitions of the Fifteenth Amendment. Id., at 363. In other words, the statute was invalid because, on its face, it could not be explained on grounds other than race. The Court applied the same reasoning to the “uncouth twenty-eight-sided” municipal boundary line at issue in Gomillion. Although the statute that redrew the city limits of Tuskegee was race neutral on its face, plaintiffs alleged that its effect was impermissibly to remove from the city virtually all black voters and no white voters. The Court reasoned: “If these allegations upon a trial remained uncontradicted or unqualified, the conclusion would be irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislation is solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre-existing municipal vote.” 364 U. S., at 341. The majority resolved the case under the Fifteenth Amendment. Id., at 342-348. Justice Whittaker, however, concluded that the “unlawful segregation of races of citizens” into different voting districts was cognizable under the Equal Protection Clause. Id., at 349 (concurring opinion). This Court’s subsequent reliance on Gomillion in other Fourteenth Amendment cases suggests the correctness of Justice Whittaker’s view. See, e. g., Feeney, supra, at 272; Whitcomb v. Chavis, 403 U. S. 124, 149 (1971); see also Mobile v. Bolden, 446 U. S. 55, 86 (1980) (Stevens, J., concurring in judgment) (Gomillion’s holding “is compelled by the Equal Protection Clause”). Gomillion thus supports appellants’ contention that district lines obviously drawn for the purpose of separating voters by race require careful scrutiny under the Equal Protection Clause regardless of the motivations underlying their adoption. The Court extended the reasoning of Gomillion to congressional districting in Wright v. Rockefeller, 376 U. S. 52 (1964). At issue in Wright were four districts contained in a New York apportionment statute. The plaintiffs alleged that the statute excluded nonwhites from one district and concentrated them in the other three. Id., at 53-54. Every Member of the Court assumed that the plaintiffs’ allegation that the statute “segregate^] eligible voters by race and place of origin” stated a constitutional claim. Id., at 56 (internal quotation marks omitted); id., at 58 (Harlan, J., concurring); id., at 59-62 (Douglas, J., dissenting). The Justices disagreed only as to whether the plaintiffs had carried their burden of proof at trial. The dissenters thought the unusual shape of the district lines could “be explained only in racial terms.” Id., at 59. The majority, however, accepted the. District Court’s finding that the plaintiffs had failed to establish that the districts were in fact drawn on racial lines. Although the boundary lines were somewhat irregular, the majority reasoned, they were not so bizarre as to permit of no other conclusion. Indeed, because most of the nonwhite voters lived together in one area, it would have been difficult to construct voting districts without concentrations of nonwhite voters. Id., at 56-58. Wright illustrates the difficulty of determining from the face of a single-member districting plan that it purposefully distinguishes between voters on the basis of race. A reapportionment statute typically does not classify persons at all; it classifies tracts of land, or addresses. Moreover, redistricting differs from other kinds of state decisionmaking in that the legislature always is aware of race when it draws district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic factors. That sort of race consciousness does not lead inevitably to impermissible race discrimination. As Wright demonstrates, when members of a racial group live together in one community, a reapportionment plan that concentrates members of the group in one district and excludes them from others may reflect wholly legitimate purposes. The district lines may be drawn, for example, to provide for compact districts of contiguous territory, or to maintain the integrity of political subdivisions. See Reynolds, 377 U. S., at 578 (recognizing these as legitimate state interests). The difficulty of proof, of course, does not mean that a racial gerrymander, once established, should receive less scrutiny under the Equal Protection Clause than other state legislation classifying citizens by race. Moreover, it seems clear to us that proof sometimes will not be difficult at all. In some exceptional cases, a reapportionment plan may be so highly irregular that, on its face, it rationally cannot be understood as anything other than an effort to “segregate]... voters” on the basis of race. Gomillion, supra, at 341. Gomillion, in which a tortured municipal boundary line was drawn to exclude black voters, was such a case. So, too, would be a case in which a State concentrated a dispersed minority population in a single district by disregarding traditional districting principles such as compactness, contiguity, and respect for political subdivisions. We emphasize that these criteria are important not because they are constitutionally required — they are not, cf. Gaffney v. Cummings, 412 U. S. 735, 752, n. 18 (1973) — but because they are objective factors that may serve to defeat a claim that a district has been gerrymandered on racial lines. Cf. Karcher v. Daggett, 462 U. S. 725, 755 (1983) (Stevens, J., concurring) (“One need not use Justice Stewart’s classic definition of obscenity — ‘I know it when I see it’ — as an ultimate standard for judging the constitutionality of a gerrymander to recognize that dramatically irregular shapes may have sufficient probative force to call for an explanation” (footnotes omitted)). Put differently, we believe that reapportionment is one area in which appearances do matter. A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group — regardless of their age, education, economic status, or the community in which they live — think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible racial stereotypes. See, e.g., Holland v. Illinois, 493 U. S. 474, 484, n. 2 (1990) (“[A] prosecutor’s assumption that a black juror may be presumed to be partial simply because he is black... violates the Equal Protection Clause” (internal quotation marks omitted)); see also Edmonson v. Leesville Concrete Co., 500 U. S. 614, 630-631 (1991) (“If our society is to continue to progress as a multiracial democracy, it must recognize that the automatic invocation of race stereotypes retards that progress and causes continued hurt and injury”). By perpetuating such notions, a racial gerrymander may exacerbate the very patterns of racial bloc voting that majority-minority districting is sometimes said to counteract. The message that such districting sends to elected representatives is equally pernicious. When a district obviously is created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole. This is altogether antithetical to our system of representative democracy. As Justice Douglas explained in his dissent in Wright v. Rockefeller nearly 30 years ago: “Here the individual is important, not his race, his creed, or his color. The principle of equality is at war with the notion that District A must be represented by a Negro, as it is with the notion that District B must be represented by a Caucasian, District C by a Jew, District D by a Catholic, and so on.... That system, by whatever name it is called, is a divisive force in a community, emphasizing differences between candidates and voters that are irrelevant in the constitutional sense.... “When racial or religious lines are drawn by the State, the multiracial, multireligious communities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race or to religion rather than to political issues are generated; communities seek not the best representative but the best racial or religious partisan. Since that system is at war with the democratic ideal, it should find no footing here.” 376 U. S., at 66-67. For these reasons, we conclude that a plaintiff challenging a reapportionment statute under the Equal Protection Clause may state a claim by alleging that the legislation, though race neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification. It is unnecessary for us to decide whether or how a reapportionment plan that, on its face, can be explained in nonracial terms successfully could be challenged. Thus, we express no view as to whether “the intentional creation of majority-minority districts, without more,” always gives rise to an equal protection claim. Post, at 668 (White, J., dissenting). We hold only that, on the facts of this case, appellants have stated a claim sufficient to defeat the state appellees’ motion to dismiss. C The dissenters consider the circumstances of this case “functionally indistinguishable” from multimember districting and at-large voting systems, which are loosely described as “other varieties of gerrymandering.” Post, at 671 (White, J., dissenting); see also post, at 684 (Souter, J., dissenting). We have considered the constitutionality of these practices in other Fourteenth Amendment cases and have required plaintiffs to demonstrate that the challenged practice has the purpose and effect of diluting a racial group’s voting strength. See, e. g., Rogers v. Lodge, 458 U. S. 613 (1982) (at-large system); Mobile v. Bolden, 446 U. S. 55 (1980) (same); White v. Regester, 412 U. S. 755 (1973) (multimember districts); Whitcomb v. Chavis, 403 U. S. 124 (1971) (same); see also supra, at 640-641. At-large and multimember schemes, however, do not classify voters on the basis of race. Classifying citizens by race, as we have said, threatens special harms that are not present in our vote-dilution cases. It therefore warrants different analysis. Justice Souter apparently believes that racial gerrymandering is harmless unless it dilutes a racial group’s voting strength. See post, at 684 (dissenting opinion). As we have explained, however, reapportionment legislation that cannot be understood as anything other than an effort to classify and separate voters by race injures voters in other ways. It reinforces racial stereotypes and threatens to undermine our system of representative democracy by signaling to elected officials that they represent a particular racial group rather than their constituency as a whole. See supra, at 647-649. Justice Souter does not adequately explain why these harms are not cognizable under Question: Was the case heard by a three-judge federal district court? A. Yes B. No 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, Appellee, v. Eugene Lamar JACKSON, Appellant, UNITED STATES of America, Appellee, v. Ruth JACKSON, Appellant. Nos. 16375, 16376. United States Court of Appeals Third Circuit. Argued July 17, 1967. Decided Oct. 17, 1967. G. W. Wilde, Pittsburgh, Pa., for appellant Eugene Lamar Jackson. Thomas F. Lamb, Pittsburgh, Pa., for appellant Ruth Jackson. Lawrence G. Zurawsky, Asst. U. S. Atty., Gustave Diamond, U. S. Atty., Pittsburgh, Pa., for appellee in both cases. Before BIGGS, McLAUGHLIN and WAN DUSEN, Circuit Judges. OPINION OF THE COURT GERALD McLAUGHLIN, Circuit Judge. Eugene Lamar Jackson and his wife Ruth Jackson were both convicted on two counts for violating 26 U.S.C. Sections 4742(a) and 4744(a) (2), of the federal narcotics law. Although appellants were tried separately the questions presented by both appeals are similar in nature and will be treated together in this opinion. The allegations of error have as their basis the common factual circumstances under which the illegal sales of narcotics were purportedly made. On March 15, 1966 Eugene Jackson was approached by undercover agent Norton J. Wilder of the Federal Narcotics Bureau and an informer, special employee of the Bureau. Agent Wilder testified that after the informer had introduced him to Jackson he negotiated and consummated a sale ot marijuana with the defendant. On May 12, 1966 at about 6:30 P.M. agent Wilder and the informer went to the Jackson residence in Pittsburgh, Pennsylvania, for the purpose of furthering the investigation against Eugene Jackson. At the doorway they were met by the appellant, Ruth Jackson, who told the men that her husband was not at home. Wilder then spoke with Ruth Jackson expressing his desire to buy some “bush” (marijuana). She apparently agreed to the sale and produced two brown envelopes of the narcotic which the agent purchased. At their trials appellants’ attorneys asked that the name of the informer be revealed so that he could be questioned to determine his possible usefulness as a witness for the defense. The trial judge ruled against disclosure in both instances and it is with that decision that Ruth and Eugene Jackson now assert error on appeal. In United States v. Day (opinion filed October 10, 1967), 384 F.2d 464, this Court had the opportunity of discussing some aspects of the informer dilemma in light of the Supreme Court’s decision in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Rovario holds that the Government has a privilege of nondisclosure, but that the privilege must give way “[w]here the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, * * 353 U.S. 53 at 60, 61, 77 S.Ct. at 628. However, the Supreme Court felt that “ * * * no fixed rule with respect to disclosure is justifiable.” and deposited with the trial judge the task of “ * * * balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.” 353 U.S. 53 at 62, 77 S.Ct. at 628. In the informer ' situation the burden placed upon the trial judge is great since he must often balance conflicting interests without being aware of what relevant information, if any, the informer possesses. In Day the writer’s opinion approved of a procedure employed by the District Court which I think made a substantial contribution to meliorating the disclosure dilemma. The other members of the Day panql refrained from passing upon the procedure followed by the District Court. There the trial judge conducted an in camera confrontation with the informer, who was made to take the oath and testify as to any relevant knowledge he had pertaining to the crime. A record of that in camera session was transcribed and sealed so that only an appellate court would have access to its contents. The advantage of the procedure is that it enables the court to view with a keener perspective the factual circumstances upon which it must rule and attaches to the court’s ruling a more abiding sense of fairness than could otherwise have been realized. At the trial of Eugene Lamar Jackson the informer was questioned in camera by the trial judge as to the possible physical danger he would encounter if disclosure were allowed and as to any testimony he could offer that might aid the defendant’s cause. An examination of the in camera record reveals that disclosure of the informer’s identity would not have been helpful or essential to a fair determination of the cause; and therefore, it is our opinion that the trial judge’s ruling was not erroneous. The appeal of Ruth Jackson presents a different problem since there the trial judge did not have the opportunity to conduct an in camera interrogation of the informer. However, the district court’s opinion notes that “ * * * although the United States Marshal extended untiring efforts to have the informer in this proceeding brought to court for a special interrogation, * * * the United States Marshal was not able to secure the presence of said informer.” Thus, absent any evidence showing that the informer would have offered testimony in support of the defense, we fail to see how appellant can base her appeal for a new trial on the ground that the informer’s identity should have been disclosed when in fact that person had disappeared. The shallowness of this claim is further highlighted by the testimony of agent Wilder, that at the time Ruth Jackson made the sale of narcotics there was another woman present in the Jackson home. At the trial there were no witnesses called to support the defense of mistaken identity — that Ruth Jackson was not the person who sold marijuana to agent Wilder on the evening of May 12, 1966. Plainly, appellant is not prejudiced because the informer was not present to testify at her trial since there was reliable testimony indicating that another witness was available who could have substantiated Ruth Jackson’s story. We feel under all the circumstances that the decision of the trial judge was correct. Also cited as error by both appellants was the refusal by the trial judge to permit the defense attorneys to argue to the jury that, since the Government did not produce the informer (a material witness), they (the jury) may infer that his testimony would be unfavorable to the Government’s case. Appellants’ contention rests on the rule in Graves v. United States, 150 U.S. 118, 14 S.Ct. 40, 37 L.Ed. 1021 (1893), followed by this Court in United States v. Jackson, 257 F.2d 41 (3 Cir. 1958), that: “The rule, even in criminal cases, is that, if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.” 150 U.S. 118 at 121, 14 S.Ct. 40 at 41. It is sufficient to say that in the appeal of Ruth Jackson it was not within the Government’s power to produce the informer since under the facts that individual had disappeared. But even if the informer could have been produced, as was the case in the trial of Eugene Jackson, that type of comment on the part of the defense would not be proper. The holding in Graves allows the presumption of unfavorableness to arise only when the Government fails to call someone who would qualify as a witness. When a court denies disclosure in accord with the Roviaro privilege it is in effect ruling that the Government has the privilege to disqualify the informer as a witness. Clearly, if the court allowed the defense counsel to make such inferential statements it would be penalizing the Government for invoking its lawful privilege and would be taking the inconsistent position of condoning, remarks which cut against the rationale of the court’s previous ruling on disclosure —that the informer possessed no information relevant or helpful to the defense of the accused. We have thoroughly examined the remaining contentions raised by appellants and find them without merit. The judgments of the District Court will be affirmed. . Mr. Mattingly, agent in charge of the Federal Bureau of Narcotics, testified in this case, as he had in United States v. Day, 384 F.2d 464 (3 Cir. 1967) (concurrence op.), that if informers such as the one involved in this case are discovered, they are in jeopardy of losing their life or suffering grave bodily harm. Counsel for defendant conceded: “I agree with your conclusion that in all probability this informer is going to indicate that his life will be in jeopardy if he testifies and faces the defendant in this particular case as an accuser.” See also, United States v. Day, supra, at 464 (concurrence op.). Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_respond1_7_2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). Mildred B. SAVOY, Appellant, v. Rodney P. SAVOY, Leonard D. Savoy, Appellees. No. 11365. United States Court of Appeals District of Columbia Circuit. Argued May 14, 1954. Decided Nov. 4, 1954. Mr. Albert J. Ahern, Jr., Washington, D. C., with whom Mr. James J. Laughlin, Washington, D. C., was on the brief, for appellant. Mr. George E. C. Hayes, Washington, D. C., for appellees. Mr. Leonard S. Hayes, Washington, D. C., also entered an appearance for appellees. Before EDGERTON, FAHY and WASHINGTON, Circuit Judges. FAHY, Circuit Judge. The appeal, in a contest over the alleged revocation of a will, presents the vexing problem of admissibility of testimony regarding a post-testamentary statement of the testator offered to show his intention in having a part in tearing his will. The instrument had been executed by Walter S. Savoy, referred to sometimes as the testator. After his death it was offered for probate by his widow, the appellant, the principal beneficiary named in the will. It had been tom into two pieces, joined by tape. Testator’s two brothers, the appellees, filed a caveat alleging revocation. If this had occurred Walter S. Savoy died intestate and a greater interest in his property devolved to the appellees than if the will stood. On trial of the issues in the District Court before a jury it was brought out that serious marital difficulties had arisen between testator and his wife, which were unresolved at the time of his death. A suit by her for separate support and maintenance and one by him for divorce were pending. The widow gave the following version of how the will became torn: “A. Well, after I refused to release him from paying me this alimony, I mean this maintenance, he said, ‘Well, I’ll just make another will,’ and he pulled this one out of his pocket and had it going in his hand, shaking, and I grabbed it. ‘‘Q. What is your best recollection, Mrs. Savoy, as to whether you tore it or whether Dr. Savoy tore it? “A. We both had a part in tearing it.” While there was evidence which ■might have led the jury to reject this version the resolution of the question was for them and they could have found the tearing occurred as the widow testified. If they did so it was essential that they find also whether or not the tearing was animo revocandi. Our Code, § 19— 103, D.C.Code (1951), provides that a will may not be revoked except by another will, codicil or other writing, none of which is here involved, or “by burning, canceling, tearing, or obliterating the same by the testator himself or in his presence and by his direction and consent * * If the tearing was accidental or unaccompanied by the necessary intent it did not constitute a revocation. Throckmorton v. Holt, 180 U.S. 552, 586-587, 21 S.Ct. 474, 45 L.Ed. 663. The court properly instructed the jury to this effect, but they found testator had revoked the will; that is, that the tearing was accompanied by an intent on his part to revoke. On this issue of intent testimony was offered on behalf of the widow that two or three months prior to his death, and some months after the tearing episode as related by her, the testator had asked the proffered witness to intervene with his wife to take him back. He said he had left his wife all his property and wanted his brothers to have nothing, that his brothers, particularly one, were instrumental in putting his mother away in an insane asylum and he was only going to leave them a small amount which would prevent them from contesting the will. This testimony was excluded. We think this was error. The testimony was relevant to aid the jury in determining whether or not the tearing was intended as a revocation. According to the widow’s version the will became torn in ambiguous or equivocal circumstances which left in doubt the state of mind accompanying the act. The proffered statement was revealing as to this. It was evidence that the condition of the will was not due to action intended by the husband to bring about a change in his beneficiaries. It was indicative of the absence of animo revoca/ndi. Other evidence of contrary import was available in abundance but that excluded was relevant for the jury to consider along with the other. It is contended the proffered testimony was incompetent because hearsay and therefore properly excluded even though relevant. We think it was not hearsay. The issue was the intent or state of mind of the testator when the will was torn. As we have said, the statement attributed to him, in and of itself, tended to show this. The witness whose testimony was offered to prove the testator’s statement was under oath and subject to cross-examination. If his statement to her was itself evidence of his intent then her narration of the statement on the witness stand would not have been hearsay but direct testimony of a relevant circumstance bearing upon intent. In contrast, if the proffered testimony had been that he told the witness he had not torn the will this would have been hearsay as to whether he did or did not tear it. Throckmorton v. Holt, supra; Mahan v. Perkins, 274 Mass. 176, 179, 174 N.E. 275, 276; 6 Wigmore, Evidence § 1736 (3d ed.); see, also, Peters v. Peters, 64 App.D.C. 331, 78 F.2d 215. But that is not the situation. The testimony was of a statement he made to the witness the content of which was itself relevant in ascertaining testator’s intent. Though not hearsay was the tendered evidence nevertheless of a character so untrustworthy or unreliable as to be incompetent on that ground? It is desirable to restate briefly the situation so that our decision will not be thought broader than it is. The case does not involve statements offered to prove the forgery of a will, the principal issue in Throckmorton v. Holt, supra, and see Peters v. Peters, supra, or the fact of its execution, as in Mahan v. Perkins, supra, or the content of the instrument, see 6 Wigmore, Evidence § 1736. Nor is it offered to show the act of revocation itself, that is, the tearing. It is tendered to show only the state of mind of the admitted author of the will when it was torn in circumstances which, according to one version, left quite unclear the full nature of the act of tearing. .Was it accidental? Did it occur in a scuffle between husband and wife, accompanied with no intent to revoke? Or was it an intentional revocation ? “ * * * since the question is here merely one of the existence of a state of mind, may we not infer the testator’s then state of mind from his state of mind at a prior or subsequent time not too remote? The principle of Relevancy already examined (ante, §§ 241, 242) certainly justifies this; hence, as evidence of this prior or subsequent state of mind, utterances at the prior or subsequent time are admissible.” 6 Wigmore, Evidence § 1737 (3d ed.). The numerous cases above cited, n. 3, supra, in support of the view that such evidence was not excludable implicitly hold also that it is not of a sort too unreliable to be received. Unless received in such a case as this the jury could only speculate from the inconclusive tearing act itself, unassisted by other available and relevant evidence of intent. 5 Wigmore, Evidence §§ 1420, 1421 (3d ed.). We are unwilling to characterize the evidence as too unreliable to be competent. But if, in view of the whole situation disclosed the trial court deems wise a cautionary instruction to guard the jury against placing too great reliance upon statements of the testator attributed to him after his death, such warning should be given. In reaching a conclusion as to the state of mind of the testator in participating in an equivocal act the jury should be able to consider his statements bearing thereon, though not part of the res gestae, if made at a time not too remote from the act to which they relate. No rigid standards on remoteness are feasible. The question must be decided in each case in the exercise of a sound discretion. In the case at bar exclusion for remoteness seems unjustified, for the situation between the parties at the time the statement was said to have been made, in relation to the time of the tearing, remained alive and unsettled. The evidence excluded was non-cumulative and non-repetitious. Since it was relevant and competent we think it was material. Its exclusion, therefore, was not harmless error. The issue of intent was left uncertain. We cannot say revocation was otherwise so clear that the excluded testimony could have made no difference. To do so in this case would be to substitute our judgment on a critical factual issue for that of the jury. Reversed and remanded. EDGERTON, Circuit Judge, concurs in the result. . The amount bequeathed to them by the terms of the will is $10 to each. The net value of the estate indicated by the papers seeking letters testamentary is approximately $23,000. . The issues as presented by the court to the jury were: (1) Was the purported will of Walter S. Savoy mutilated by him with the intent of rendering the same ineffective and revoking it during his lifetime? (2) Was the purported will of Walter S. Savoy fraudulently offered for probate by Mildred B. Savoy with knowledge that the decedent had revoked it? (3) Was the said paper writing, bearing the date of July 18, 1947, the last will and testament of Walter S. Savoy? Nos. 1 and 2 were answered in the affirmative, No. 3 in the negative. Notwithstanding that the basis of our reversal relates directly only to the first question, it seems clear that if reversible error in this respect occurred, as we hold, reconsideration also of the other questions is required below. . 6 Wigmore, Evidence § 1737 (3d ed.); Patterson v. Hickey, 32 Ga. 156; Saliba v. Saliba, 202 Ga. 791, 799, 44 S.E.2d 744, 751; Lawyer v. Smith, 8 Mich. 411, 423; Grampton v. Osborn, 356 Mo. 125, 137—138, 201 S.W.2d 336, 342, 172 A.L.R. 344; In re Barrie’s Will, 393 Ill. 111, 123, 65 N.E.2d 433, 438; In re Bond’s Estate, 172 Or. 509, 556, 143 P.2d 244, 262; In re Welch’s Estate, 60 Ariz. 215, 222-223, 134 P.2d 701, 704; In re Kehr’s Estate, 373 Pa. 473, 477, 95 A.2d 647, 649; First Nat. Bank of Adams v. Briggs, 329 Mass. 320, 322, 108 N.E.2d 548, 549. See, also, In re Smith’s Estate, 31 Cal.2d 563, 568, 191 P.2d 413, 416; Betts v. Jackson, 6 Wend. N.Y., 173, 188, with which compare Matter of Kennedy’s Will, 167 N.Y. 163, 60 N.E. 442; Pickens v. Davis, 134 Mass. 252, 257-258. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
songer_district	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". Sargent CAUEFIELD and Jim Lucas, Appellants, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK et al., Appellees. No. 23412. United States Court of Appeals Fifth Circuit. June 15, 1967. J. D. DeBlieux, Baton Rouge, La., for appellants. Robert J. Vandaworker, Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, La., for Southern Farm Bureau Cas. Ins. Co. Maurice J. Wilson, of Breazeale, Sachse & Wilson, Baton Rouge, La., for defendant-appellee, Fidelity & Casualty Co. of New York. Before HUTCHESON, GEWIN and THORNBERRY, Circuit Judges. HUTCHESON, Circuit Judge: These cases, consolidated for trial, were brought by Sargent Cauefield and Jim Lucas to recover damages for the alleged desecration of a Louisiana cemetery in which relatives of theirs are buried. The district court granted a motion by defendants to dismiss on the theory that the suit was foreclosed by the doctrine of judicial estoppel, as applied in Louisiana, due to a previous state court judgment which denied a similar claim made with respect to the same cemetery. We affirm. The background details of this controversy and the legal principles involved were set forth in full in the opinion of the district court reported at 247 F.Supp. 851. It, therefore, suffices ' that they be summarized only briefly here. The owner of a tract of land on which a cemetery is located in Louisiana, feeling that the cemetery had become too overgrown with brush, decided to clear the land. In March, 1956, he hired a dirt contractor to help him do so. After the land was cleared, a total of forty-one relatives of those buried in the cemetery filed numerous suits in the state courts, therein alleging that the cemetery had been desecrated as a result of the cleaning operations. One of those suits, filed by one Sid Thomas against the cemetery owner, the contractor, apd their insurers, was commenced and tried before a jury. In the trial lasting nine days, all the interested relatives testified, and the appellants here were active participating witnesses. After all the evidence relating to desecration was presented, the jury found that no desecration had occurred, and the verdict was affirmed on appeal. The instant ease was filed originally by appellants in the court below in November, 1956. The record shows that the matter was continued indefinitely until after completion of the Thomas case in the state courts. It was not until the Thomas case was concluded that this case was considered on its merits. Defendants’ motion to dismiss was granted in 1965. It thus appears that the Thomas case tacitly was intended to resolve all the numerous identical claims that the cemetery had been desecrated. Nevertheless, after appellate procedures in the Thomas case were exhausted, appellants Cauefield and Lucas, represented by the same attorney who had represented Thomas and all the other plaintiffs in the state courts, requested the same relief from the court below which had been denied to Thomas by the Louisiana state courts. The appellants concede that the issues concerning desecration which they ask to be tried in federal court would be identical to those already tried in the state court and resolved against Thomas. The appellants also concede that the evidence and testimony they would be able to produce would not differ in the least from that which they themselves and the other relatives presented and which was passed on in the Thomas case. These two concessions are particularly significant in light of the proof necessary to support an allegation of cemetery desecration in Louisiana. The plaintiff needs only to prove that any part of the cemetery has been desecrated. Humphreys v. Bennett Oil Corp., 195 La. 531, 197 So. 222, 228 (1940). Thus it was not necessary for Thomas to have proved that his own relative’s grave had been disturbed; it would have been sufficient for the jury to have accepted the testimony of any witness, including appellants, that any grave in the cemetery had been desecrated. Consequently, it is clear that all evidence favorable to appellants which could be presented in another trial has already been rejected by the state courts. Nonetheless, they insist that the district court was in error in applying the doctrine of judicial estoppel for the reason that, the plaintiffs of this case being different from that in the Thomas case, the alleged requirement that the parties in the two cases be identical is lacking. We observe at the outset that under Louisiana law, which governs this diversity action, the doctrine of res judicata plainly does not apply to the instant case. The concept of res judicata is strictly defined by the Louisiana Civil Code to require identity of parties, and the state courts have applied this definition uncompromisingly. On the other hand, the doctrine of judicial estoppel, a common-law concept recognized in Louisiana, California Co. v. Price, 234 La. 338, 99 So.2d 743, 747 (1957), has been viewed less rigidly. Although identity of parties also is generally considered a requisite for its application, the Louisiana courts have seen fit to fashion exceptions in circumstances analogous to those presented here. We conclude that the underlying principle of those exceptions also controls the instant case. The first case making such an exception was Muntz v. Algiers & G. St. Ry., 116 La. 236, 40 So. 688 (1906). In the plaintiff’s first suit for negligence against a lessee of a railroad, it was decided that the lessee was not negligent. The plaintiff subsequently proceeded against the lessor railroad on the theory that it was liable vicariously for its lessee’s negligence which the plaintiff attempted to have litigated again. The Louisiana Supreme Court held that the former judgment in favor of the lessee barred the subsequent suit against the lessor even though the defendants were not identical. A similar holding obtained in McKnight v. State, 69 So.2d 652 (La. Ct.App.1953). There the plaintiff had lost a suit based on negligence against three state police officers. He then sued the state, the employer of the officers, seeking to apply the doctrine of respondeat superior. Relying on Muntz, the court dismissed the latter suit. The Louisiana Supreme Court recently has commented on those two cases. In Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960), although it first noted that both Muntz and McKnight had been erroneously founded on the doctrine of res judicata due to the absence of identity of parties, it nevertheless approved the results reached and their rationale “that a plaintiff’s cause of action abates against the person secondarily liable when it is shown that he has already litigated with the tortfeasor [who has been] held to be without fault. Accordingly, a plea in bar of judicial estoppel would have been appropriate pro-cedurally.” 124 So.2d at 922. (emphasis added). This principle again was expressed in Bowman v. Liberty Mut. Ins. Co., 149 So.2d 723 (La.Ct.App.1963). The plaintiff had sued the employer first in a federal district court to recover damages arising from the alleged negligence of the defendant’s employee while acting in the scope of employment. After losing that suit, plaintiff brought an action in the state court against the employee. The state court declared that the real Issue, the employee’s negligence, had already been determined and that to permit a new trial would only condone a multiplicity of trials. Notwithstanding the defendants were not the same, the second suit was dismissed. This line of cases evidences a willingness by the Louisiana courts to relax the identity-of-parties requirement with respect to the application of judicial estoppel where it will prevent fruitless relitigation of an issue which already has been judicially determined. Thus far this attitude seems to have found expression only where vicarious or secondary liability is involved, such as that arising out of an employer-employee or lessor-lessee relationship. We are convinced, however;, that presented with the unusual facts of the case before us, the Louisiana courts also would find that appellants are estopped by the state court judgment in order to preclude re-litigation of the desecration issue. In reaching this opinion, we think it significant that the nature of this issue is such that desecration could have been established in the Thomas case by evidence of any relative, including the evidence offered by appellants, that any part of the cemetery had been desecrated. We reiterate that appellants admit that they can come forward with no evidence which was not produced at the Thomas trial. Under these circumstances, we are further convinced that absolutely nothing would be gained were appellants permitted to pursue their action in the federal courts. We therefore hold that under the particular facts of this case the district court correctly applied the doctrine of judicial estoppel in granting the motion to dismiss. The judgment is affirmed. . Art. 2286, LSA-Civil Code provides: “The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.” (emphasis added). . This language was criticized in McMahon, Civil Procedure, 22 La.L.Rev. 370, 374 n. 16 (1962). . The court in Bowman relied on res judieata for its decision. The reasoning of Williams v. Marionneaux, supra, indicates that this case should be regarded the same as were Muntz and McKnight: the result is correct since the application of judicial estoppel would have been appropriate. 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_othcrim	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". In re CALTON CRESCENT, Inc. MANUFACTURERS TRUST CO. v. BECKER et al. No. 111, Docket 21112. United States Court of Appeals Second Circuit. March 3, 1949. Writ of Certiorari Granted June 6, 1949. See 69 S.Ct. 1170. Beekman & Bogue, of New York City (Edward K. Hanlon and Bertrand L. Kohl-man, both of New York City, of counsel), for appellant. David W. Kahn, of New York City, for appellees. Roger S. Foster, Gen. Counsel, of Washington, D. C., George Zólotar, of New York City, and David Ferber, of Philadelphia, Pa. (W. Victor Rodin, of Philadelphia, Pa., and Ezra Weiss, of New York City, of counsel), Special Counsel, for Securities and Exchange Commission as amicus curiae. Before L. HAND, Chief Judge, SWAN and CHASE, Circuit Judges. SWAN, Circuit Judge. This appeal brings up for review an order with respect to the claims of three creditors, the appellees, in an arrangement proceeding under Chapter XI of the Bankruptcy Act, 11 U.S.C.A. § 701 et seq. The debtor, Calton Crescent, Inc., was formerly the owner of an apartment house located in New Rochelle, New York. In January, 1946, it sold the apartment house, which was its only property, and in May 1946 filed its petition for arrangement. Thereafter the purchase price received for the property was converted into cash, and the debtor is now able to pay a dividend in its arrangement proceeding of 43.61% to the holders of its debenture bonds. The appellees, being the holders of certain of such bonds, filed claims based thereon for the face amount thereof. The appellant, Manufacturers Trust Company as trustee under the indenture pursuant to which the debenture bonds were issued and in its individual capacity as a creditor, *filed objections to the appellees’ claims on the ground that the circumstances under which their bonds were acquired make it equitable to subordinate their claims to those of the other debenture holders so as to limit the dividends payable to the appellees to what the bonds actually cost them. The referee in bankruptcy dismissed the objections and allowed the appellees claims at their face amount. This order was confirmed by the district court, 80 F.Supp. 822, and the objector has appealed. The legal questions presented are, first, whether the issue as to subordination is to be determined by state law or federal law and, second, whether, under the law found applicable, the appellees’ dividends should be limited as the objector contends. As to the first question the appellant is right — federal law controls the distribution to creditors in bankruptcy. The Supreme Court has declared the rule very definitely. In Prudence Realization Corporation v. Geist, 316 U.S. 89, at page 95, 62 S.Ct. 978, at page 982, 86 L.Ed. 1293, the court said; “ * * The court of bankruptcy is a court of equity to which the judicial administration of the bankrupt’s estate is committed, Securities and Exchange Commission v. United States Realty & Improvement Co., 310 U.S. 434, 455—457, 60 S.Ct. 1044, 1053, 1054, 84 L.Ed. 1293, and it is for that court — not without appropriate regard for rights acquired under rules of state law — to define and apply federal law in determining the extent to which the inequitable conduct of a claimant in acquiring or asserting his claim in bankruptcy requires its subordination to other claims which, in other respects, are of the same class.” Later cases have reiterated the rule. American Surety Co. v. Sampsell, 327 U.S. 269, 272, 66 S.Ct. 571, 90 L.Ed. 663; Heiser v. Woodruff, 327 U.S. 726, 732, 66 S.Ct. 853, 90 L.Ed. 970; Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 161-163, 67 S.Ct. 237, 91 L.Ed. 162. For earlier cases on the general subject, see Pepper v. Litton, 308 U.S. 295, 303-304, 60 S.Ct. 238, 84 L.Ed. 281; American United Mut. Life Ins. Co. v. City of Avon Park, 311 U.S. 138, 146, 61 S.Ct. 157, 85 L.Ed. 91, 136 A.L.R. 860. From these decisions we understand the rule to be that, although the state law determines the title, validity and amount of a claim, the bankruptcy law, including what federal judges think to be equitable, determines what dividends shall be distributable to the claimant. In other words, in addition to those modifications which the Bankruptcy Act itself has imposed upon distribution with respect to preferences, priorities and the like, the courts must impose any other modifications which they deem necessary in the interest of justice. In the case at bar validity and amount of the bonds held by the appellees are not in dispute; nor is the legal title. The appellant does contend, however, that it is inequitable to allow them to recover full dividends. The amount of their respective claims and the cost thereof are as follows: Face am’t Claimant of bonds Cost Regine Becker $44,500 $3,060.63 Emily K. Becker 52,800 5,010.00 Walter A. Fribourg 50,000 2,124.80 The aggregate dividend payable upon the three claims amounts to $64,237.53, while the aggregate cost of their bonds to the claimants was only $10,195.43. The difference, namely, $54,042.10, the appellant contends, must be distributed under equitable bankruptcy principles to the other holders of debenture bonds. These holders whose bonds aggregate $107,150 (including the $5,000 of bonds mentioned in note 2, supra) will therefore receive approximately 94% of the face value of their claims. Before passing to a consideration of the equitable principles which are said to require this rather extraordinary result, a statement of the facts should be made. The debtor was organized in 1933 to take title to the New Rochelle apartment house pursuant to a plan of reorganization necessitated by the foreclosure of a mortgage executed in 1927. Under this plan a new first mortgage of $175,000 was placed on the property and the debtor issued its debenture bonds, in the authorized principal amount of $256,800, which were to mature in 1953 and to bear interest, not exceeding 6% per annum, if declared by the directors out of net earnings for each calendar year. These bonds, together with the debtor’s capital stock, were issued to the holders of participation certificates in the old 1927 mortgage, one share of stock and $50 of debenture bonds being exchanged for each $100 of participation certificates. The total amount of debentures issued was $254,450, debentures of the face amount of $2,350 being retained for certificate holders who had not deposited their certificates. No interest has ever been paid on the debenture bonds. Early in 1942 the debtor submitted to its shareholders an offer from a prospective purchaser to pay $220,000 for the apartment house, but the proposed sale did not obtain the requisite approval by the stockholders. Had the sale been approved the debenture bondholders would have received about five cents on the dollar on the face amount of their bonds. One who opposed the sale was Sanford Becker, the holder of 50 shares of stock and $5,000 face amount of debentures. Being in default under its first mortgage the debtor was in a precarious condition. Sanford Becker offered to find a client who would lend the debtor $15,000 upon a second mortgage on condition that he and his brother Norman Becker be given places on the debtor’s five man board of directors and be allowed to select the real estate agent to manage the property; the debtor imposed the further condition that all shareholders and debenture holders be given an opportunity to participate in the proposed second mortgage. In April 1942 this offer was accepted by the debtor, but none of its shareholders or debenture holders except Fribourg, availed themselves of the opportunity to participate in the second mortgage. The Becker brothers were then elected directors; Sanford became treasurer and Norman secretary, and Mr. Kelly continued as president. Sanford Becker’s clients who lent the money secured by the second mortgage were his mother, Regine Becker, his wife, Emily K. Becker and his friend, Walter A. Fribourg. They each advanced $5,-000. Neither of the Becker ladies was a shareholder or debenture holder at this time; Fribourg had shortly before acquired 50 shares of stock and $5,000 of debentures. On three occasions thereafter, when the debtor again came into default under its first mortgage, the appellees advanced further sums, aggregating about $8,000, to enable such defaults to be cured. These further advances were repaid without interest during 1945. The second mortgage was always in default from the end of 1942 but the appellees never threatened to foreclose it and, after the debtor’s property was sold in January 1946, it was paid in full with interest. In October 1943 when both the first and second mortgages were in default the appellees obtained an assignment of rents; the property, however, continued to be operated, as before, by the same managing agent. In the summer of 1944, the three directors other than the Becker brothers, sold their stock and debentures and resigned as officers and directors of the debtor. Their places as directors were filled by nominees of the Becker brothers, and Norman Becker became presidént in place of Mr. Richard Kelly. There is no contention that the conduct of the appellees- above recounted was “inequitable.” It was obviously very beneficial to those debenture holders who retained and have proved their bonds in the arrangement proceeding. It forestalled foreclosure by the first mortgagee, and enabled the debtor to retain its property until it could be sold for a price of $300,000, which is enough to enable all debenture holders to receive a dividend of 43.61% on the face amount of their bonds. No complaint is made as to the price at which the debtor sold, nor is it suggested that the debtor should have sold sooner at a lesser price or have postponed the sale in the hope of obtaining a better price. The “inequity” which is said to require that the dividend distributed to the appellees be less than that payable to the other bondholders arises out of the time when, and manner in which, the appellees acquired their bonds. At all times when the bonds were purchased by or for them the debtor was insolvent in the bankruptcy sense. During the period between April 1942 when the Becker brothers became directors, and the date when the debtor filed its petition for arrangement, May 23, 1946, the appellees acquired the bonds upon which their claims are based. Their own money was used in buying these bonds and neither of the Becker directors had any financial interest in the debentures bought by the appellees. Regine Becker bought her $44,500 of debentures between February 2, 1944 and August 30, 1945 inclusive, from E. Henry Sondheimer Company, a broker who dealt in over-the-counter securities. Sondheimer had originally acquired them for Fribourg but as the latter did not want them they were bought by the Becker ladies. Emily K. Becker bought her $52,800 of debentures between May 24, 1944 and February 5, 1945 inclusive; $7,-750 were bought from the Sondheimer Company in the same manner as were Regine Becker’s; $37,500 from the King estate which was represented by Reynolds, Richards & McCutcheon, one of whose partners was a director of the debtor; and $7,550 from the Y. W. C. A. through one Clay, a member of the Association’s investment committee and also a director of the debtor, who was kept fully informed of the debtor’s financial condition. Fribourg’s $50,000 of debentures were acquired between July 31, 1942 and June 4, 1946, inclusive. Many of Fribourg’s debentures were bought from the Sondheimer company or other brokers. $8,250 were acquired from Mr. Kelly when he resigned as president and a director in 1944. He insisted, that the offer made to him by Fribourg in the name of the latter’s brother-in-law, one Charles G. Winter, be extended to all the debenture holders, and Kelly notified all stockholders of the offer and of his intention to accept it. Some of Fribourg’s holdings were acquired as a result of that offer. Another $8,500 were purchased from Mr. Hays, vice-president of the debt- or. The Becker ladies in investing their money in the debentures exercised no independent judgment; their bonds were bought for them by Sanford or Norman Becker. The former was optimistic about the future of the debtor and thought that the termination of the war would be followed by an enhancement of the value of its property. Norman Becker was pessimistic and discussed his point of view with his mother and Fribourg. Fribourg testified that he invested in the debentures as a “gamble” on his own judgment. He apparently obtained some information from the'Becker brothers, in whose office he had desk loom, since he furnished Sondheimer with a list of the debenture holders which Sondheimer used in sending them inquiries as to whether they would sell. During the period when the appellees were purchasing their debentures the debtor was receiving frequent inquiries from brokers as to terms on which its property might be bought, but no “firm” offer to buy was submitted after the offer rejected by the shareholders in 1942 until receipt of the $300,000 offer which the debtor accepted in January 1946. The referee concluded that the proofs of debt filed by the Becker ladies should be treated as if they were proofs of debt filed by directors, but that Fribourg’s proof of debt should not be so treated. The district court concluded that his claim also should be treated as filed by a director. One contention of the appellant is that the appellees are disqualified from profiting by their transactions in the debt- or’s securities because they acquired them by using information obtained from the Becker directors without adequate disclosure to the sellers. The non-disclosure is said to consist in failure to inform the sellers of (1) the inquiries of brokers as to the terms on which the property might be purchased; (2) the fact that the appellees were the owners of the second mortgage taken in the name of Baset Realty Corporation; and (3) the fact that they were purchasing debentures. The referee stated that a finding that overreaching or concealment was practiced in the purchase of the securities was not warranted, and the district court, said that the record did not show this finding clearly erroneous. The appellant wishes us to overrule this finding, but we agree with the district judge that it is not shown to be clearly wrong. Furthermore, it should be observed that no seller is complaining that he was overreached in parting with his securities, as was the case in Strong v. Repide, 213 U.S. 419, 29 S.Ct. 521, 53 L.Ed. 853, upon which appellant puts great reliance. Such sellers as the King Estate, Kelly, Hays and the Y. W. C. A. had as full information as to the debtor’s financial condition and the prospect that its property might increase in value after the end of the war as did the appellees. As to securities purchased from Gver-the-counter traders, such as the Sondheimer Company and other brokers we should hesitate to lay down the rule that the purchaser from a broker must make disclosure of why he thinks the purchase a desirable investment under penalty of being charged with overreaching if he fails to do so. The appellant’s other line of attack rests on two premises, (1) that because of the appellees’ relationship to the Becker directors they can stand no better than the Becker brothers themselves would stand if they had invested their own money in the purchase of the securities, and (2) that under equitable principles it is a breach of fiduciary duty for a director to buy the company’s securities during its insolvency, and consequently he cannot be allowed to make a profit from such purchases. For the moment we pass the first premise and direct attention to the second. It is, of course, axiomatic that a fiduciary will not be permitted to profit at the expense of his cestui from any transaction where his fiduciary duty and his personal interest may come into conflict. This principle, however, does not preclude a director from purchasing a claim at a discount and collecting its face amount, if his company is solvent, since who holds the debt can be of no concern to a solvent company. It is not immediately apparent why insolvency should make a difference. It will cost the debtor no more whether the dividend which it may be able to pay creditors goes to the original holder of the debt or to a director-assignee. Counsel for the Securities and Exchange Commission suggests that insolvency creates a possible conflict between duty and personal interest because the directors can choose the time •for filing a bankruptcy petition and may accelerate or postpone it if doing so can result in a personal profit. The argument as to the timing of bankruptcy has no force after the petition has been filed, yet the law is better settled with respect to purchases made after the petition is filed than those made before. After insolvency it may be said that the directors are fiduciaries for the group of creditors who will share in the insolvent’s estate. But the creditors who have retained their claims will suffer nothing whether or not the director is allowed to make a profit from his purchases. If a wrong has been done to any of the group of cestuis, it is to those who sold their claims at a price less than the dividend they would have received had they retained them. If they were suing for the wrong done them, they would have to show something equivalent to a fraudulent nondisclosure. Strong v. Repide, 213 U.S. 419, 29 S.Ct. 521, 53 L.Ed. 853. Plainly if the contest for the director’s profits was between the wronged cestuis and the un-wronged cestuis, the former should prevail. Where it is between the unwronged cestuis and a director, if the former are allowed to prevail it can only be as a disciplinary measure against the director for wronging someone who has not complained of the wrong. That this is the real basis for the rule was recognized by Judge Kirkpatrick in the case of In re Real Estate Mortgage Guaranty Co., D.C.E.D.Pa., 55 F. Supp. 749, 752, where he said: “* * * The doctrine that a receiver may not retain a personal profit made out of his trust is a prophylactic rule. It implements the law’s precept that a trustee must give undivided loyalty to his trust. The surcharge is the sanction. * * * In the present case a substantial majority of the ultimate and only beneficiaries of the trust knew of and consented to the receivers earning these commissions by placing the insurance through his own agency. I think that is a controlling factor and that it gives the court full discretion to deny the surcharge.” The same judge made a similar statement in Re Philadelphia & Western Ry. Co., D. C., 64 F.Supp. 738, 741: “This limitation is not imposed upon the theory that such profits belong to the corporation by reason of any property right that it may have in them but is an administrative sanction for the enforcement of the rules of fiduciary conduct set by the law.” If the doctrine be recognized as a disciplinary sanction within the discretion of the court to impose or withhold, then, as Judge Kirkpatrick also said in the Mortgage Guaranty Co. case, “Each case depends on its own circumstances”. In the case at bar, where there was no overreaching of the sellers, we are not convinced that the circumstances are such as to require imposition of the sanction, even if the proof of debt had been filed by a director of the debtor. But if we are wrong as to this, and the federal rule, in the case of a director who buys the company’s securities after it has become insolvent, is as strict as the appellant contends and requires that he be disciplined by giving his profit to creditors whom he has not wronged, the rule must be extended even further if the appellees are to be limited to the cost of their debentures. We now come to consideration of the premise that the appellees can stand no better than would the Becker directors were they the claimants. This is a question of law .upon which the conclusions of the referee and district judge are not controlling on appeal. The appellees were not directors or officers of the debtor; their own funds were invested, and no officer or director of the debtor has any interest in the debentures they purchased. In the case of In re Philadelphia & Western Ry. Co., D.C.E.D. Pa., 64 F.Supp. 738, 741, the court declined to limit the claim of J. Prescott Stoughton who was the father of an officer of the debtor corporation. In so ruling he stressed the fact that the father was not a fiduciary who owed a duty to the debtor, that the purchases were made by the father with his own funds and for his sole account, and that neither the son nor any other person associated with the debtor had any interest in his dealings in the bonds of the debtor. For similar reasons he declined to limit the claim of Agnes C. McKernan who was an officer of the Conway Corporation which had a management contract with the debtor for the management of the debtor’s business. These two claims present a closer analogy to the purchases at bar than do any of the other cases brought to our attention. It is true that one who “knowingly confederates” with a fiduciary in a breach of trust is not allowed to make a profit from the transaction. Jackson v. Smith, 254 U. S. 586, 589, 41 S.Ct. 200, 65 L.Ed. 418. But “knowingly confederating” means more, in our opinion, than investing one’s own funds on a "tip” received from an officer or director of a debtor. With respect to Fribourg we see nothing in the record to justify a finding that he did more than this. As respects the Becker ladies, since they exercised no independent judgment in the investment of their funds, they are chargeable with the knowledge of their agent, Sanford Becker. But since there was no overreaching of the sellers when he made the purchases for his wife and mother, we do not think the disciplinary sanction for “knowingly confederating” with a disloyal fiduciary should be imposed. Viewing the situation broadly it appears that the second mortgage loan and the subsequent advances made by the appellees staved off foreclosure and made possible the 43.61% dividend now available for all debenture holders. Although the debtor had long been insolvent in the bankruptcy sense, it does not appear that bankruptcy proceedings were at any time contemplated before the filing of the arrangement petition in May 1946. Prior to that time the appellees acquired debentures from owners who were willing to sell and were not overreached. These circumstances do not seem to a majority of the court to afford adequate reason to limit the appellees’ dividends to the cost of the bonds and to transfer the balance as a windfall to the other debenture holders. Accordingly the order allowing their claims in full is affirmed. Its claim as a creditor in the sum of $1,587.50 represents fees and disbursements due it as indenture trustee. Fribourg’s claim as filed was for $55,-000. Objection was withdrawn as to $5,000 of bonds acquired by him under circumstances which the objector concedes entitle him to the full dividend thereon. The second mortgage was taken in the name of Baset Realty Corporation but it was a mere title holder for the appellees. These are the debentures mentioned in note 2 supra. To pay overdue taxes $3,615.54 was advanced in September 1943, $2,303.09 in April 1944, and $2,001 in October 1944. This, like the second mortgage, was taken in the name of the Baset Realty Corporation. Finding 55. Insolvency probably existed throughout the entire period of the debtor’s ownership of the apartment house property, but the referee made no finding as to insolvency during earlier years. Except for one $500 bond purchased by Fribo'urg at a cost of $131.05 on June 4, 1946. This was finding 54. There*is also finding 30: “There is no evidence to support a finding that Fribourg in connection with his purchases was acting on any information of an inside nature imparted to him by any officer or director of debtor — something not known to and of which the stock holders were not informed.” And finding 40: “The record does not warrant a finding of offers to purchase the debtor’s said property for sums increasing in amount from the Spring of 1942.” And finding 43: “From the time that the Ohesterbrook Estate offer was turned down until the time of the sale in 1946, nothing which would be called an actual firm offer was made for debtor’s property.” Magruder v. Drury, 235 U.S. 106, 119, 35 S.Ct. 77, 59 L.Ed. 151 is often cited for this well-known principle. In most of the cases cited by appellant the purchases were made after some type of bankruptcy proceeding was pending or was imminent and known to be so by the director. Monroe v. Scofield, 10 Cir., 135 F.2d 725, 726; In re Philadelphia & Western Ry. Co., D.C.E.D. Pa., 64 F.Supp. 738, 739; In re Los Angeles Lumber Products Co., D.C.S.D. Cal., 46 F.Supp. 77, 82. Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim. A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_fedlaw	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. Hiram COLON, Plaintiff-Appellant, v. COUNTY OF SHAWNEE, STATE OF KANSAS, Defendant-Appellee. No. 85-1091. United States Court of Appeals, Tenth Circuit. March 31, 1987. F.G. Manzanares, Topeka, Kan., for plaintiff-appellant. Joseph W. Zima, Asst. Shawnee County Counselor, Topeka, Kan., for defendant-ap-pellee. Before MOORE, McWILLIAMS and ANDERSON, Circuit Judges. JOHN P. MOORE, Circuit Judge. This case presents the question of whether the reemployment rights conferred upon veterans by the Vietnam Era Veterans’ Readjustment Assistance Act of 1984, 38 U.S.C. §§ 2021-2026 (the Act), require an employer to offer reemployment to a veteran who had been laid off, but had a limited eligibility for reemployment when he entered active military service. We hold the Act requires that upon proper application for reemployment, a veteran be given the precise employment status the veteran had obtained on the date he or she commenced active duty. We further hold that in this case the employer was required to return the veteran to the reemployment eligibility list for the period he would have been entitled to remain on that list had he not entered military service. Nevertheless, because the period of remaining eligibility to which the veteran was entitled expired before the employer had a position to offer him, the district court correctly entered judgment for the employer; therefore, we affirm. Plaintiff Hiram Colon was permanently employed by the defendant County of Shawnee as a refuse collector when he was laid off effective October 31, 1980. Under the terms of a collective bargaining agreement in force between the County and Mr. Colon’s union, however, laid off, permanent employees were entitled to remain on a “lay-off list” for the lesser of one year or the period of their prior service. As vacancies arose, former employees retained on the layoff list were entitled to be recalled to their prior positions or to similar positions within their job classification before new employees were hired. Mr. Colon, who was a member of the Kansas National Guard, was still on the layoff list when he was called to active duty by the Secretary of the Army. On March 3, 1981, the day Mr. Colon reported for service, he was entitled to remain on that list for twenty more days. On June 30, 1981, Mr. Colon completed his active duty service, and on July 3, 1981, he requested the County restore him to his former position. The County refused the request. Mr. Colon subsequently filed his complaint in this case alleging the violation of the reemployment rights guaranteed by the Act. He sought restoration to his former position of collector or appointment to a position of like status with the same seniority and pay. He also sought damages for loss of pay from July 3, 1981. Mr. Colon filed a motion for partial summary judgment on the question of his right to relief, contending that the Act entitled him to retain layoff list eligibility from the time he received his notice to report for active duty, some twenty-six days before he actually entered service. He also contended that the claimed eligibility period did not begin until July 3, 1981, the day he requested reemployment by the County. In response, the County took the position that Mr. Colon’s theory required a “tolling” of his reemployment rights not supported by the Act. The trial court ultimately concluded that because the Act did not specifically provide for a tolling of reemployment rights during a veteran’s active service, Mr. Colon’s eligibility for reemployment expired prior to his release from active duty. The court further concluded that because the County had not employed a refuse collector during the period Mr. Colon was eligible for reemployment, his rights under the Act had not been violated. Judgment was accordingly entered for the County. Contrary to the view expressed by the trial court, there must be a “tolling” or preservation of the layoff period if § 2021 is to have any meaning for one who enters active duty while in a layoff status. That tolling, however, would only give the veteran the position of employment he or she had on the date active duty commenced. The controlling statutory provision is 38 U.S.C. § 2024(c) which states: Any member of a Reserve component of the Armed Forces of the United States who is ordered to an initial period of active duty for training of not less than three consecutive months shall, upon application for reemployment within thirty-one days after (1) such member’s release from such active duty for training after satisfactory service ... be entitled to all reemployment rights and benefits provided by this chapter for persons inducted under the provisions of the Military Selective Service Act____ Members of the National Guard are members of a “reserve component” by definition. 38 U.S.C. § 2024(f). Additionally, § 2024(c) incorporates 38 U.S.C. § 2021(a)(2)(B), which states that persons who leave a position of employment with a subdivision of state government for induction into active military service are entitled; upon satisfactory completion of service, to be restored to the original position or to a position of like seniority, status, and pay. While the pertinent statutes appear to apply only to persons who are permanently employed on the date of induction, the statutory protections have been applied to employees in a “lay-off' status as well. Kelly v. Ford Instrument Co., Div. of Sperry Rand Corp., 298 F.2d 399 (2d Cir. 1962). Therefore, even though Mr. Colon was not actually working on the date he entered active duty, he was still “in the employ” of Shawnee County on that day for the purpose of the Act. The Act restores to veterans the same employment status they enjoyed when they entered active military service. Monroe v. Standard Oil Co., 452 U.S. 549, 101 S.Ct. 2510, 69 L.Ed.2d 226 (1981). This restoration does not, however, create new or additional employment rights, nor is a veteran entitled to any protection other than restoration of the veteran’s original position together with accumulated seniority and benefits at the time of enlistment or activation. Id. at 561, 101 S.Ct. at 2517. Because Mr. Colon was “in the employ” of Shawnee County on March 3, 1981, the date he entered upon active duty, he was entitled to retain the employment right then available to him. On that day, this right was the right to remain on the layoff list for twenty more days. Additionally, for the purpose of applying the Act, the right to remain on the list for those twenty days constituted his “position” within the meaning of § 2021(a)(2)(B). Because he made a proper application for reemployment on July 3, 1981, and was apparently qualified to perform the duties of his position, Mr. Colon was entitled to be restored to the layoff list for a period of twenty days, or until July 23, 1981. Restoration to layoff status would have returned Mr. Colon to the employment status he enjoyed at the time he began active duty precisely as the Act mandate's. We conclude the magistrate granted summary judgment to the County for an incorrect reason. This conclusion, however, affords Mr. Colon only a pyrrhic victory because even though Mr. Colon was protected by the Act until July 23, 1981, no vacancies for the collector position occurred before that date. On July 23, 1981, Mr. Colon’s layoff list eligibility expired, and he was no longer entitled to reemployment benefits under the Act. Ultimately, then, the trial court correctly denied relief to Mr. Colon. AFFIRMED. . Mr. Colon worked for the County for 142 days; therefore, he was entitled to remain on the list for that time. Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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. Joseph D. HUTT, Administrator of the Estate of Kathy Sue Deuser; Jack S. Deuser, Jr.; and Todd Deuser, Co-Administrators of the Estate of Jack S. Deuser, Plaintiffs-Appellants, v. GIBSON FIBER GLASS PRODUCTS, INC., et al., Defendants, Fuhry, Inc., Defendant-Appellee. No. 89-5731. United States Court of Appeals, Sixth Circuit. Argued Feb. 2, 1990. Decided Sept. 19, 1990. F. Thomas Conway, William J. Nold, Eugene L. Mosley (argued), Miller, Mosley, Clare & Townes, Louisville, Ky., for plaintiffs-appellants. Robert Stopher (argued), Boehl, Stopher, Graves & Deindoerfer, David Johnstone, Alagia, Day, Marshall, Mintmire & Chau-vin, Gary Anderson, Rice, Seiller, Cantor, Anderson & Bordy, Louisville, Ky., for defendant-appellee. Before MERRITT, Chief Judge, and JONES and RYAN, Circuit Judges. NATHANIEL R. JONES, Circuit Judge. Plaintiffs-appellants, Joseph D. Hutt, administrator of the estate of decedent Kathy Sue Deuser, Jack S. Deuser and Todd Deu-ser (collectively referred to as “the Administrators”) appeal the district court’s grant of summary judgment in favor of defendant Fuhry, Inc. For the following reasons, we affirm in part and reverse in part. I. On July 29, 1986, Jack and Kathy Deuser were electrocuted while swimming near the houseboat of Jack’s brother, Courtney Deu-ser, in Harrod’s Creek, Jefferson County, Kentucky. At the time of their deaths, the houseboat was docked at a marina owned by Steven and Charlene Habbich. Gibson Fiber Glass Products, Inc. (Gibson) had manufactured the houseboat with a dual voltage electrical system: an alternating current (AC) circuit connected to electrical outlets on shore, and a direct current circuit (DC) drawing power from batteries. The circuits were designed to be electrically isolated from each other, and each operated on a two-wire rather than a three-wire system. The Deusers’ deaths resulted from the malfunction of a switch in a light fixture on the houseboat, which caused the AC current to flow from the shore hookup into the switch, through the metal base of the fixture and then into the DC circuit. When the DC current attempted to ground itself through the outdrive of the boat, the water became electrified, killing the Deusers. Investigation subsequent to the accident showed that Gibson employees had removed the grounding wire from the light fixture prior to its installation on the houseboat. On January 8, 1987, the Administrators filed suit against Challenger Circle F Inc. (Circle F), which manufactured the switches; Fuhry Inc. (Fuhry), which manufactured and assembled the light fixture; Gibson, which manufactured the houseboat; Courtney Deuser, owner of the houseboat; Stephen and Charlene Habbich, who owned the boat dock; and Underwriter’s Laboratory, Inc. This complaint, originally filed in Jefferson County (Kentucky) Circuit Court, was removed to the United States District Court for the Western District of Kentucky, Chief Judge Johnstone presiding, after the Administrators settled with all defendants except Fuhry. The Administrators agreed as part of the settlement to indemnify the settling defendants should they be found liable to the remaining defendants. Upon completion of discovery, Fuhry moved for summary judgment. In an order entered on March 22, 1989, the district court ruled that Fuhry was entitled to summary judgment because Gibson’s employees knew of the importance of attaching the grounding wire in the light fixture; therefore, Fuhry had no duty to warn. The court further ruled that because Gibson altered the light fixture when installing it, Fuhry was entitled to the defense of KRS § 411.320(1), precluding liability when a product has been substantially changed or altered. On March 1, 1989, the Administrators moved for reconsideration, claiming that Gibson's cutting off of the ground wire did not constitute an alteration within the meaning of the Kentucky products liability statute, and that the court had applied the wrong standard for summary judgment. On May 15, 1989, the district court denied the motion. In this denial, the court stated that the standard for summary judgment has remained the same since 1986 when it became the same as that of a directed verdict. Moreover, the court noted that an alternative ground for granting summary judgment existed under Kentucky law, because a defendant passively at fault for falling to detect a hazard may seek indemnity from the one who created the danger. Therefore, even if Fuhry were liable for failing to detect the faulty switch, it could recover from Circle F, the manufacturer. Since the Administrators had agreed to indemnify Circle F, the court found that any recovery granted from Fuhry would have to come from the Deusers’ estates under the terms of the settlement. This timely appeal followed. II. This court has stated the appropriate standard for granting summary judgment: [0]n a motion for summary judgment the movant has the burden of showing conclusively that there exists no genuine issue as to a material fact and the evidence together with all inferences to be drawn therefrom must be read in the light most favorable to the party opposing the motion. Blakeman v. Mead Containers, 779 F.2d 1146, 1150 (6th Cir.1985) (citations omitted). A court deciding a motion for summary judgment must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Appellate review of a grant of summary judgment is de novo. Pinney Dock and Transport Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). The Administrators argue that genuine issues of material fact exist as to three issues: 1) whether Fuhry had a duty to warn consumers against use of the light fixture in dual voltage systems; 2) whether Gibson’s action in clipping the ground wire in the light fixture constitutes an alteration under the Kentucky products liability statute; and 3) whether the indemnification clause of the settlement agreement precludes judgment against Fuhry for malfunction of the fixture. These arguments will be addressed in order. A. The Administrators contend that Fuhry had a duty to warn installers of the light fixture not to use the fixture in a dual voltage application or a two wire system and not to remove the ground wire. Fuhry complains that the Administrators failed to raise this claim in the pleadings and raised it only in its motion for summary judgment, thereby precluding review by the court. Fuhry’s claim is incorrect. In response to a motion before the state court on March 25, 1988, the Administrators raised the issue of Fuhry’s breach of its duty to warn, and it is therefore properly before this court. Failure to warn when there is a duty to do so may give rise to an action in negligence or strict liability. The general rule, however, is that there is no duty to warn the user of a product when the user is aware of the product’s danger. See Garrison v. Rohm & Haas Co., 492 F.2d 346, 352 (6th Cir.1974). The district court addressed the duty to warn issue only as to Gibson’s removal of the ground wire. The court found that the ground wire was designed to carry current which mistakenly flowed from a short circuit safely into a non-conductor and found that it is undisputed that Gibson’s employees cut the wire and did not properly attach it to guard against malfunctions. The district court also found that Gibson’s employees admitted they knew the purpose of the wire, that the fixture was to be used with a grounding circuit, and that Gibson was aware of the dangers of ignoring its safety function. The court therefore concluded that Fuhry had no duty to warn Gibson of the danger of removing the grounding wire from the fixture because Gibson knew of the relevant dangers. The Administrators present two arguments on the issue of duty to warn. First, the Administrators assert that Carlos Green, Gibson’s electrician, did not understand the danger of severing the grounding conductor because he was uneducated and did not understand, in engineering terms, the consequences of failing to connect the grounding wire. This claim is not supported by the evidence. Green’s deposition clearly established that he understood both that the green wire was a ground, and the purpose of grounding electrical fixtures. The Administrators also contend that the district court failed to understand the distinction between a “two wire system and a dual voltage application” and argues that Fuhry was negligent in not warning consumers that the fixture was intended only for single voltage applications and not to be used in dual voltage applications. Fuh-ry argues that the only difference between a single and dual voltage fixture is the inclusion of a metal divider in the base to physically separate the wiring, and that both the Administrators’ expert witness, Donald Scheer, and Gibson’s expert, Charles Game, testified that the lack of a divider had no causal relationship to the accident. The district'court opinion does not address the issue of whether Fuhry had a duty to warn against use of the light fixture on a dual voltage system. The only evidence presented on this issue was the deposition of an expert who testified that the fixture should not have been used on a dual voltage system and that it would be “improper” for Fuhry to market its fixture for such use. However, there is no evidence in the record that Fuhry had knowledge that its fixtures were being used improperly. Nor does the record show that Gibson knew or should have known of the danger of using the light fixture in question in a dual voltage system. Because questions of material fact remain, we conclude that the district court erred in granting summary judgment for Fuhry on this issue. We also note that if Fuhry is found liable for breach of its duty to warn against use of the fixture in a dual voltage application, such liability would not be subject to indemnification by any co-defendant. B. The Administrators next argue that Gibson’s actions in cutting off the grounding wire do not constitute an alteration under KRS 411.320(1), which states in pertinent part: In any product liability action, a manufacturer shall be liable only for the personal injury, death or property damage that would have occurred if the product had been used in its original unaltered and unmodified condition. The Administrators further assert that Fuhry is subject to strict liability under Restatement (Second) of Torts § 402A, which states that “one who sells any product in a defective condition unreasonably dangerous to the user is subject to liability for physical harm thereby caused to the ultimate user or consumer ... [by the product if the product reaches] the user or consumer without substantial change in the condition in which it is sold.” It is undisputed that Fuhry sold a fixture with a grounding conductor properly attached to the base of the fixture, and that Gibson cut off the grounding conductor. The district court found that the testimony of the Administrators’ expert, Donald Scheer, established that the accident would not have occurred with the grounding wire present and properly attached. J. App. at 198. The district court therefore concluded that because the fixture was not used in its original, unaltered and unmodified condition, “[t]he plain language of the statute decrees that Fuhry has no liability in such a situation.” J. App. at 198. Therefore, we affirm the district court’s finding that Gibson’s cutting of the wire was an alteration under Kentucky law. C. Finally, the Administrators argue that the district court erred in determining that under Kentucky law, Fuhry would be entitled to indemnification from Circle F, the manufacturer of the switches used by Fuhry, for the short circuiting of the lamp fixture in which they were installed. The district court determined that under Kanawha Steel and Equipment Co. v. Dorsey Trailers, 856 F.2d 780, 783 (6th Cir.1988), Fuhry, even if liable for failure to detect the faulty switch, could recover from Circle F and that under the settlement agreement, “plaintiffs would in effect be collecting from themselves.” J. App. at 219. In the Kanawha Steel case, a trailer manufacturer incorporated suspension parts manufactured by Hutchens Industries, Inc. into a trailer. One of the suspension parts, a bracket, failed due to an inadequate weld. This failure caused the wheels of the trailer to break away, resulting in an accident. The trial court found that the bracket was defective and unreasonably dangerous at the time of sale and held both the trailer manufacturer and the parts manufacturer liable. The trial court, however, denied the trailer manufacturer’s request for indemnity from Hutchens, the parts manufacturer. On appeal, this court reversed, granting the trailer manufacturer full indemnification from Hutchens. This court found guidance in section 93(1) of the Restatement of Restitution which states: (1) Where a person has supplied to another a chattel which because of the supplier’s negligence or other fault is dangerously defective for the use for which it is supplied and both have become liable in tort to a third person injured by such use, the supplier is under a duty to indemnify the other for expenditures properly made in discharge of the claim of the third person, if the other used or disposed of the chattel in reliance upon the supplier’s care and if, as between the two, such reliance was justifiable. We also noted Comment a of section 93, which reads, in part, “claimant may be a manufacturer who incorporated the chattel in his product.” 856 F.2d at 783. Finally, this court also observed that Kentucky would follow the Restatement of Restitution regarding such indemnity questions. Id. The Administrators state that the district court’s reliance on Kanawha Steel is improper because in that case it was established that the sole cause of the accident was a latent defect in a component part. In the instant case, however, a question of material fact remains as to whether the switches were so defective as to be unreasonably dangerous to the user at the time they were sold and therefore whether Fuh-ry is entitled to indemnification from Circle F. The Administrators argue that despite the fact the switches failed, one cannot conclude that they were defective within the meaning of Restatement of Torts § 402A. The Administrators’ expert testified that the fixture defects were either defects in switch design or switch manufacture. In his opinion, insulation conductors at the area of the spring clip were compromised or absent in spots, and this caused the flow of electricity into the water. There is no evidence in the record that either of these switch defects was attributable or apparent to Fuhry. Circle F supplied the switches to Fuhry, who justifiably relied on Circle F’s care. Under Kentucky law, a defendant who is passively at fault for failing to detect a hazard may seek indemnity from the one who created the danger. Brown Hotel v. Pittsburgh Fuel Co., 311 Ky. 396, 224 S.W.2d 165 (1949). Even if Fuhry could be found liable for failure of the fixture on the alteration theory, Fuhry is entitled to indemnification from Circle F, who under the settlement agreement is now indemnified by the administrators. Thus, we uphold the grant of summary judgment by the district court for Fuhry on the alteration defense, because the administrators are not entitled to recover from Fuhry on this theory pursuant to the law and the indemnification agreement. III. Accordingly, we REVERSE and REMAND the judgment of the district court on the duty to warn issue, and AFFIRM on the remaining questions. . Fuhry’s duty to warn of the problem of using the fixture in a dual voltage situation is not related to whether Circle F defectively designed or manufactured the component switch. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_respond1_7_2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). PANAMA TRANSPORT COMPANY et al., Defendants, Appellants, v. Nathan GREENBERG, Plaintiff, Appellee. No. 5770. United States Court of Appeals First Circuit. May 5, 1961. Walter X. Connor, New York City, Joseph F. Dolan, Boston, Mass., James P. O’Neill, and Kirlin, Campbell & Keating, New York City, on the brief, for appellants. Daniel J. Hourihan, Boston, Mass., for appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. PER CURIAM. A Spanish seaman and member of the crew of the S.S. Esso Rochester was injured on board his vessel on December 6, 1958, while it lay in the harbor of Portland, Maine. On December 9, 1958, a member of the bar employed by the plaintiff-appellee, who is a member, inter alia,, of the Maine and Massachusetts bars practicing in Boston, visited the seaman in a Portland hospital and obtained the seaman’s signature to a retainer in the following language: “I hereby retain Nathan Green-berg, attorney-at-law, of Boston, Massachusetts and New York, New York, to represent me respecting my claim against the S.S. Esso Rochester its owners and operators, and to collect damages on my behalf. For such services rendered, I agree to pay my said attorney a fee not to exceed services rendered. I agree to pay my said attorney a fee not to exceed one-third of any amount collected by way of court verdict or settlement. “Dated this 9th day of December, 1958.” Subsequently the seaman was visited by representatives of the defendants, one of them the owner of the vessel and the other its husbanding agent, and eventually on February 10, 1959, the seaman wrote the plaintiff a letter discharging him as counsel on the ground that his services were no longer required. The plaintiff-appellee then brought this action on the law side of the court below under its diversity jurisdiction for wrongful interference by the defendant-appellants with his advantageous contractual relationship with the seaman. After trial without a jury the court gave judgment for the plaintiff and the defendants appealed. The appeal suggests a number of interesting questions but we do not reach them for lack of jurisdiction. The allegations of the complaint with respect to the diversity of the citizenship of the parties and the amount in controversy between them are adequate to show federal jurisdiction. But the plaintiff testified categorically that, in his opinion based on his experience as a specialist in suits in admiralty for personal injuries, the seaman's “case was worth about $25,-000.” Thus on the plaintiff’s own testimony the gross fee he could possibly receive under his retainer would be one third of that amount or $8,333.33, and, of course, his profit from the business would be substantially less. Out of his own mouth the plaintiff satisfies us to a legal certainty that he did not have a claim for the amount necessary to confer federal jurisdiction and either knew or reasonably ought to have known that fact. On the authority of Williams v. Nottawa, 1881, 104 U.S. 209, 26 L.Ed. 719; McNutt v. General Motors Acceptance Corp., 1936, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135; St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845: Judgment will be entered vacating the judgment of the District Court and remanding the case to that court with direction to dismiss the complaint for lack of jurisdiction. . The District Court found that actually the seaman’s case was worth $15,000 and that the plaintiff’s damages for the loss of his retainer amounted to $2,845. . See also the “Historical and Revision Notes” to § 1359, 28 U.S.C.A. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
songer_casetyp1_9-3	D	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 "miscellaneous". UNITED STATES of America, Plaintiff-Appellee, v. James Chalmers CLEMENCE, II, Defendant-Appellant. No. 71-2778. United States Court of Appeals, Ninth Circuit. April 10, 1972. Richard L. Knickerbocker, Torrance, Cal., for appellant. William D. Keller, U. S. Atty., Eric A. Nobles, Johnathan David Rapore, Asst. U. S. Attys., Los Angeles, Cal, for appellee. Before CHAMBERS, WRIGHT and GOODWIN, Circuit Judges. PER CURIAM: In this prosecution for refusing induction [50 U.S.C. App. § 462], appellant relies primarily on his claim that there was no basis in fact for the local board’s classifying him I-A in the face of evidence of medical disability. The medical evidence did not clearly present a prima facie case for exemption; but if it did, the finding of acceptability by the examining center provides a basis for the classification in this case. The trial court properly refused to redetermine appellant’s other claims. United States v. Shunk, 438 F.2d 1204 (9th Cir. 1971); United States v. Brunges, 450 F.2d 947 (9th Cir. 1971); and Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971). Question: What is the specific issue in the case within the general category of "miscellaneous"? A. miscellaneous interstate conflict B. other federalism issue (only code as issue if opinion explicitly discusses federalism as an important issue - or if opinion explicity discusses conflict of state power vs federal power) C. attorneys (disbarment; etc) D. selective service or draft issues (which do not include 1st amendment challenges) E. challenge to authority of magistrates, special masters, etc. F. challenge to authority of bankruptcy judge or referees in bankruptcy G. Indian law - criminal verdict challenged due to interpretation of tribal statutes or other indian law H. Indian law - commercial disputes based on interpretation of Indian treaties or law (includes disputes over mineral rights) I. Indian law - Indian claims acts and disputes over real property (includes Alaska Native Claims Act) J. Indian law - federal regulation of Indian land and affairs K. Indian law - state/local authority over Indian land and affairs L. Indian law - tribal regulation of economic activities (includes tribal taxation) M. other Indian law N. international law O. immigration (except civil rights claims of immigrants and aliens) P. other Q. not ascertained Answer:
sc_adminaction_is	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. UNITED STATES v. DURHAM LUMBER CO. et al. No. 23. Argued October 19, 1959. Decided June 20, 1960. Howard. A. Heffron argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Rice, Daniel M. Friedman, A. F. Prescott and Myron C. Baum. Arthur Vann argued the cause for respondents. With him on the brief were C. V. Jones, Daniel M. Williams, Jr. and J. L. Zimmerman. MR. Chief Justice Warren delivered the opinion of the Court. This case involves the competing claims of the Federal Government and certain subcontractors to a sum of money owed to the taxpayers under a general construction contract. The taxpayers, Michael & Embree, were general contractors doing business at Durham, North Carolina. Early in 1954, they agreed to construct certain buildings for persons herein referred to as the “owners.” This work was completed on July 15, 1954, but because the owners disputed the amount due under the contract, payment to the taxpayers was delayed. In completing the construction work, the taxpayers had utilized the services and materials of numerous subcontractors, most of whom had not been compensated. The respondents are two such subcontractors, who in January and February 1955, gave the owners notice of their respective claims against the taxpayers. On January 18, 1955, the taxpayers were adjudicated bankrupts. At that time, there was an unpaid balance of $5,250 due from the owners under the construction contract. After extensive negotiations between the owners, the trustee in bankruptcy, and the subcontractors, it was agreed that the owners would absolve themselves from further liability by paying the $5,250 to the trustee, and that the subcontractors could thereafter assert the same rights against the trustee as they could have asserted against the owners. This arrangement was approved by both the Superior Court for Durham County, North Carolina, and the federal bankruptcy court. Another claimant of the money deposited with the trustee was the Federal Government, which on August 13, 1954, and November 22, 1954, had assessed the taxpayers for uncollected withholding and unemployment insurance taxes. By virtue of Séctions 6321 and 6322 of the Internal Revenue Code of 1954, a federal tax lien attached to all “property and rights to property” belonging to the taxpayers at the time the assessments were made. The Government contended that the money owing under the construction contract was property of the taxpayers to which the tax lien attached. The referee in bankruptcy, attempting to resolve the competing claims against the fund as if the parties were before a state court, decided that the rights of the Federal Government under its tax lien were superior to those of the respondents. The District Court for the Middle District of North Carolina disagreed, and held that the respondents were entitled to payment of their claims before the Government could satisfy its tax lien. On appeal, the Court of Appeals for the Fourth Circuit affirmed, 257 F. 2d 570. We granted certiorari. 359 U. S. 905. In affirming the judgment of the District Court, the Court of Appeals stated that the nature and extent of the general contractors’ property rights, to which the tax lien attached, must be ascertained under state law. The court then undertook an extensive analysis of the relevant North Carolina statutes and cases. It found that the North Carolina law provides as follows: Subcontractors who have not been paid by the general contractor have a direct, independent cause of action against the owner to the extent of any amount due under the general construction contract, and any money owed by the owner under the construction contract must first be used to satisfy subcontractors’ claims of which the owner has notice. Moreover, to insure that the owner will receive notice of outstanding subcontractors’ claims, the North Carolina statute, N. C. Gen. Stat., 1950, § 44-8, requires the general contractor, before receiving any payment, to furnish the owner with a statement of all sums due subcontractors, and if the general contractor fails to supply the required statement, he is guilty of a misdemeanor. N. C Gen. Stat., 1950, § 44-12. Finally, the court found further evidence of the direct and independent nature of the subcontractors’ claims against the owner in N. C. Gen. Stat., 1950, § 44-9, which provides that should the owner pay the general contractor after receiving notice of a subcontractor’s claim, he will nevertheless be liable to the subcontractor to the extent of the amount which was due under the construction contract at the time notice was received. Based upon these considerations, the Court of Appeals held that, under North Carolina law, the general contractor did not have a property interest in the face amount, as such, of the general construction contract. Specifically, the court said that “except to the extent the claim of the general contractor exceeds the aggregate of the claims of the subcontractors, the general contractor has no right which is subject to seizure under the tax lien.” Id., at 574. Therefore, concluded the court, since under North Carolina law the taxpayers possessed merely a right to the residue of the fund, and since the Government’s tax lien attached to the property interests of the taxpayers as defined by state law, the Government can recover only “so much of the construction price as will remain unpaid after the owners have deducted a sum sufficient to pay the subcontractors.” Id., at 575. The Court of Appeals was correct in asserting that the Government’s tax lien attached to the taxpayers’ property interests in the fund as defined by North Carolina law. Aquilino v. United States, ante, pp. 509, 513; United States v. Bess, 357 U. S. 51, 55; cf. Morgan v. Commissioner, 309 U. S. 78, 82. It is suggested that the courts of North Carolina have never specifically described the nature of the property rights created by the North Carolina statutes involved in this case, and that the Court of Appeals’ interpretation of those statutes is probably incorrect. However, where “[t]he precise issue of state law involved ... is one which has not been decided by the . . . [state] courts,” this Court has said that, “[i]n dealing with issues of state law that enter into judgments of federal courts, we are hesitant to overrule decisions by federal courts skilled in the law of particular states unless their conclusions are shown to be unreasonable.” Propper v. Clark, 337 U. S. 472, 486-487. Since the Court of Appeals is much closer to North Carolina law than we are, and since we cannot say that the court’s characterization of the taxpayers’ property interests under that law is clearly erroneous or unreasonable, the judgment is Affirmed. [For dissenting opinion of Mr. Justice Harlan, concurred in by Mr. Justice Black, see ante, p. 516.] Section 6321. Lien for taxes: “If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.” Section 6322. Period of lien: “Unless another date is specifically fixed by law, the lien imposed by section 6321 shall arise at the time the assessment is made and shall continue until the liability for the amount so assessed is satisfied or becomes unenforceable by reason of lapse of time.” N. C. Gen. Stat., 1950, §§44-6 to 44-12. This case points up the distinction we drew in Aquilino. The facts here show how it simply begs the question to suggest that the principle of the lien-priority cases is somehow subverted or evaded by recognizing that what constitutes the taxpayer’s property in the first place is a question of state law. The facts show, too, that it does not promote clarity to substitute, for the property interests created by state law, a rule of federal property law, the main feature of which seems to be an inquiry into what the consequences would be if state law were different from what it in fact is. It is said that we should regard-the subcontractor’s interest as equivalent to a lien on the general contractor’s claim against the owner, overlooking the fact that the law of North Carolina, as interpreted by the Court of Appeals, indicates that there is no such claim. If we are to equate the subcontractor’s interest with something it is not, it would be much more appropriate, in terms of similarity, to equate it with the usual mechanic’s lien of a subcontractor on the owner’s property being improved — which of course is not the general contractor’s property, and which could not be taken by the United States under a lien against the general contractor. This only points up the lack of precision and content in the proposed federal definition of property. See also Fidelity & Deposit Co. of Md. v. New York City Housing Auth., 241 F. 2d 142 (C. A. 2d Cir.), cited with approval in United States v. Bess, 357 U. S. 51, 55. See Sims v. United States, 359 U. S. 108, 114; Ragan v. Merchants Transfer & Warehouse Co., 337 U. S. 530, 534; Estate of Spiegel v. Commissioner, 335 U. S. 701, 707-708. Question: Did administrative action occur in the context of the case? A. No B. Yes 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). UNITED STATES of America, Plaintiff-Appellant, v. Jerry V. MITCHELL and Roger Woods, Defendants-Appellees. No. 90-7423. United States Court of Appeals, Eleventh Circuit. Feb. 26, 1992. Frank W. Donaldson, U.S. Atty., Anthony A. Joseph, James A. Sullivan, Asst. U.S. Attys., Birmingham, Ala., for plaintiff-appellant U.S. John C. Robbins, Doug Jones, Birmingham, Ala., for defendant-appellee Jerry V. Mitchell. Jo Allison Taylor, Birmingham, Ala., for defendant-appellee Roger Woods. Before TJOFLAT, Chief Judge, CLARK , Senior Circuit Judge, and KAUFMAN , Senior District Judge. See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit. Honorable Frank A. Kaufman, Senior U.S. District Judge for the District of Maryland, sitting by designation. TJOFLAT, Chief Judge: The Government appeals from an order in the Northern District of Alabama granting a motion in limine to preclude certain expert testimony on the basis of Fed. R.Evid. 403 and 702. In the absence of a record of the pre-trial hearing on this motion, we find ourselves unable to affirm the challenged order. We therefore vacate the district court’s order and remand the case for further proceedings. I. Defendants Jerry V. Mitchell, Chief of Police for Albertville, Alabama, and Roger Woods are charged with three counts of conspiracy to commit extortion, and defendant Mitchell individually with twelve counts of extortion, all in violation of the Hobbs Act, 18 U.S.C. § 1951 (1988). Specifically, defendants stand accused of “fixing” tickets for driving under the influence of alcohol (DUI) in exchange for money. In order to obtain a conviction under the Hobbs Act, the Government must establish a connection between the extortionate conduct and interstate commerce. 18 U.S.C. § 1951(a). On the morning of the scheduled trial date, June 11, 1990, both defendants, prior to the empaneling of the jury, filed motions in limine to preclude the testimony of Dr. Robert A. Voas. Upon hearing arguments from counsel and receiving the Government’s proffer of Dr. Voas’ testimony in camera, the district court orally granted the motions. No record of the arguments, the proffer, or the court’s oral ruling exists because the in camera hearing on the motions occurred in the absence of a court reporter. In a written order issued later that day, the court precluded Dr. Voas’ testimony “under [Fed.K.Evid.] 702 and 403.” Left without the assistance of a record of the Government’s proffer, we turn to the court’s written order for a brief summary of the proffer. According to the court’s order, Dr. Voas, “[i]f permitted to testify ... would establish his qualifications as an expert in alcoholism and highway safety and then testify to the same matters that were presented by him as a witness in United States v. Wright, 797 F.2d 245, 249 (5th Cir.1986) [, cert. denied, 481 U.S. 1013, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987) ].” In a footnote to the quoted sentence, the order further explains that “[t]he government has indicated that it would not attempt to elicit from Voas in this case his opinion that failure to prosecute DWI charges has a demoralizing effect upon police officers.” On June 11, 1990, the Government filed its notice of appeal from the district judge’s order granting defendants’ motions to preclude Dr. Voas’ testimony. On June 15, 1990, the Government filed its certification that the appeal was not taken for purposes of delay and that the precluded evidence constitutes a substantial proof of a fact material in the proceedings. Accordingly, we have jurisdiction pursuant to 18 U.S.C. § 3731 (1988). II. We review the preclusion of evidence under an abuse of discretion standard. United States v. Norton, 867 F.2d 1354, 1361 (11th Cir.) (quoting United States v. Mitchell, 666 F.2d 1385, 1390 (11th Cir.), cert. denied, 457 U.S. 1124, 102 S.Ct. 2943, 73 L.Ed.2d 1340 (1982)), cert. denied, 491 U.S. 907, 109 S.Ct. 3192, 105 L.Ed.2d 701 (1989). In order for us to hold, however, that the district court did not abuse its discretion in precluding Dr. Voas’ testimony prior to trial and in the absence of a detailed and reported proffer by the Government, we would have to conclude that the precluded testimony could under no circumstances have been admissible. Based on the relevant parts of the record in this case, which include defendants’ motions in limine and the district court’s bare-bones order, we cannot reach this categorical conclusion. We first consider the reasons for precluding Dr. Voas’ testimony enunciated in the district court’s order. We then determine whether Dr. Yoas’ testimony, under all possible trial scenarios, would have been inadmissible as irrelevant. A. To affirm the district court’s pretrial order precluding Dr. Yoas’ testimony pursuant to Fed.R.Evid. 702, we would have to find either that Dr. Voas’ “scientific, technical, or other specialized knowledge” under no circumstances could have “assisted] the trier of fact [in this case, the jury] to understand the evidence or to determine a fact in issue,” or that the district court properly exercised its discretion in finding Dr. Voas unqualified as an expert, or both. Addressing the latter alternative first, we point to Dr. Voas’ conspicuous absence at the in camera hearing that supposedly settled his lack of qualifications. The district court therefore would have had to find Dr. Voas unqualified without ever having asked Dr. Voas a single question and without ever having observed or heard Dr. Voas respond to a question posed to him by counsel for either side. Should there have been a dispute about Dr. Voas’ qualifications—and, in the absence of a record or a more detailed order, we can only speculate—the district court could not have resolved it based solely upon arguments presented by counsel without abusing its discretion. Turning to the other possible basis for precluding Dr. Voas’ testimony pursuant to Rule 702, we cannot rule out that this testimony might have assisted the jury. Looking into our crystal ball for clues about what the trial might look like and about what might have transpired at the time the Government puts forth Dr. Voas’ testimony, we can easily make out a scenario in which Dr. Voas’ testimony benefits the jury. Although defendant Mitchell, based on his experience as Police Chief, might well be familiar with the effects that failure to prosecute DUI offenders might or might not have on interstate commerce, defendant Mitchell might well decide not to testify, or, should he take the stand, might decide not to give his opinion on this subject. In either case, Dr. Voas’ testimony on this issue would not be cumulative, and therefore would assist the jury in its deliberations. Without the benefit of a trial transcript or a record of a detailed outline of what the trial transcript would include, which conceivably could have been established at the pre-trial hearing on defendants’ motions in limine, we cannot eliminate the possibility that Dr. Voas’ testimony might assist the jury. Accordingly, we cannot conclude that the trial court did not abuse its discretion in precluding Dr. Voas’ testimony. B. Similarly, we could affirm the pretrial preclusion of Dr. Voas’ testimony on the basis of Fed.R.Evid. 403 only if we found that there exists no possible trial scenario in which the probative value of this testimony would not be “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403. In the absence of a trial transcript or a recorded and very detailed road map of the case, we cannot with any confidence arrive at this conclusion. On the sparse record before us, we simply cannot determine what probative value, if any, Dr. Voas’ testimony might have at the time it is presented by the Government. Rule 403 requires a delicate balancing of probative value against certain effects that testimony might have on the jury or on the trial proceedings at the moment it is presented. We can fill neither dish of this balance. On the one hand, the probative value, if any, of Dr. Voas’ testimony depends heavily upon what has transpired at trial before and what will transpire following its presentation, including, but not limited to, defendant Mitchell’s testimony, should he take the stand. On the other hand, the effect on the jury of Dr. Voas’ testimony will depend crucially on the specific posture of the trial at the time of its presentation. Cf. United States v. Beechum, 582 F.2d 898, 915 (5th Cir.1978) (en banc) (“a significant consideration in determining the probative value of extrinsic offense evidence is the posture of the case”), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). Whether or not Dr. Voas’ testimony will cause undue delay or waste of time will likewise entirely depend upon when it is introduced. A scenario in which Dr. Voas’ testimony might not constitute cumulative evidence already has been outlined above. Finally, even if we could, and clearly we cannot, foresee where Dr. Voas’ testimony would fall on the balance to be struck under Fed.R.Evid. 403 at the time of its introduction at trial, certainly we cannot predict with any confidence whether or not the district court, by giving a limiting instruction instead of excluding the evidence altogether, could circumvent any or all of the negative effects contemplated in Fed. R.Evid. 403 that might be associated with this testimony. C. Not only are we unable to conclude that Dr. Voas’ testimony, under all possible trial scenarios, would have been inadmissible on the grounds cited in the district court’s preclusion order, but also we cannot find that Dr. Voas’ testimony necessarily would have been inadmissible as irrelevant. On the contrary, Dr. Voas’ testimony might well have revealed a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. Dr. Voas’ testimony regarding the effects of failing to prosecute DUI offenders does not appear clearly irrelevant to the interstate commerce element of the Hobbs Act crimes charged in the indictment. See United States v. Wright, 797 F.2d 245, 249 (5th Cir.1986) (upholding a finding, based on testimony by Dr. Voas, that failure to prosecute DUI offenders results in interference with interstate commerce sufficient for Hobbs Act purposes), cert. denied, 481 U.S. 1013, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987). Even if we were to find that Dr. Voas’ testimony could never be relevant to any fact placed at issue in the pleadings prior to trial, we cannot exclude the possibility that this testimony might become relevant as the trial progresses and additional facts become of consequence to the trial’s outcome. For example, Dr. Voas’ testimony about the effects of failing to prosecute DUI offenders might become relevant as the defense, through testimony, seeks to establish either that one or both of the defendants knew nothing of any effects on interstate commerce caused by a failure to prosecute DUI offenders, or that no such effects exist. At that time, Dr. Voas’ testimony would become relevant as to the credibility of the defense witness rendering this testimony, insofar as a witness’ credibility becomes a consequential fact as soon as he or she takes the stand. III. For the reasons stated above, we VACATE the district court’s order precluding the testimony of Dr. Voas and REMAND the case with the instruction to conduct an adequate hearing on defendants’ preclusion motions in the presence of a court reporter. VACATED and REMANDED. . The Fifth Circuit in Wright, 797 F.2d at 249, found not clearly erroneous the district court’s factual findings underlying its conclusion that the government had proved the interstate commerce element of a Hobbs Act crime, which conclusion relied on the following testimony given by Dr. Voas, as summarized by the Fifth Circuit: Mr. Voas testified that the consumption of alcohol is "a major, perhaps the major factor in causing highway accidents[ ]’’ [and] that the more serious an automobile accident is, the more likely it is that a drinking driver is involved. Voas also testified that a person who has been arrested for DWI has a much greater chance of later being involved in a fatal accident than has a person with no DWI arrest or conviction record. It was Voas' opinion that the higher risk can be reduced either by treating the drinking driver or by suspending or revoking his driving privileges. Voas also testified that when the public became aware, either through the press or by word of mouth, that people arrested for DWI are not being prosecuted, then the deterrent effect of criminal sanctions is diminished. Failure to prosecute cases where the evidence is sufficient to sustain a conviction has a demoralizing effect on police officers to the point that they tend to make fewer arrests. Finally, Voas testified that alcoholism is a tremendous problem in the United States, costing the nation one hundred billion dollars per year in medical expenses and lost working time, and that people with drinking problems who finally do seek help often do so because they have been arrested and prosecuted on a charge of drunk driving. Id. . In its entirety, Fed.R.Evid. 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. . The district court’s order does not indicate on which of these potential grounds it relies. . The order provided in relevant part: In Wright, a majority of the appellate panel upheld a Hobbs Act conviction based on Voas’ opinions that had been received in a non-jury trial apparently without objection. Here, in this jury trial, the defendants have objected to that testimony and the court concludes under [Fed.R.Evid.] 702 and 403 that such testimony should not be permitted. . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. . We further urge the district court to consider whether it would be prudent to rule on defendants’ preclusion motions prior to the time at which the Government intends to put Dr. Voas on the stand. As our opinion indicates, a ruling prior to trial would appear questionable in the absence of detailed presentations by both parties predicting with sufficient certainty the exact state of the record at the time the Government seeks to present Dr. Voas' testimony. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_appel1_7_5	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). Leslie H. BAKER, Jr., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 75-1274 Summary Calendar. United States Court of Appeals, Fifth Circuit. June 13, 1975. Leslie H. Baker, Jr., pro se. Frank D. McCown, U. S. Atty., William L. Johnson, Jr., Asst. U. S. Atty., Ft. Worth, Tex., Scott P. Crampton, Asst. Atty. Gen., Tax Div., Harry Marselli, William M. Brown, Gilbert E. Andrews, Acting Chief, App. Section, U. S. Dept. of Justice, Washington, D. C., for defendant-appellee. Before BROWN, Chief Judge, and GODBOLD and GEE, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: In this second go around Taxpayer asserts that brokerage and related expenditures in the purchase of securities are not to be added to the price paid to the seller but should be deducted as an expense. Similarly, he argues that such costs of sale are not to be deducted from the sales proceeds from the buyer. Despite the earnestness of his contentions they come too late. For the law has held to the contrary. Woodward v. Commissioner, 1970, 397 U.S. 572, 574—75, 90 S.Ct. 1302, 1304, 25 L.Ed.2d 577, 581; Spreckles v. Commissioner (Helvering), 1942, 315 U.S. 626, 62 S.Ct. 777, 86 L.Ed. 1073; Commissioner (Helvering) v. Winmill, 1938, 305 U.S. 79, 59 S.Ct. 45, 83 L.Ed. 52; Meade v. Commissioner, 5 Cir., 1974, 489 F.2d 161; Helis v. Usry, 5 Cir., 1972, 464 F.2d 330. Affirmed. . Baker v. District Director, 5 Cir., 1972, 468 F.2d 199. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
songer_appel2_1_4	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "construction". Your task is to determine what subcategory of business best describes this litigant. ANNING-JOHNSON COMPANY and Workinger Electric, Incorporated, Petitioners, v. UNITED STATES OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Peter J. Brennan, Secretary of Labor, United States Department of Labor, Respondents. Nos. 74-1381, 74-1382. United States Court of Appeals, Seventh Circuit. Argued Feb. 19, 1975. Decided May 27, 1975. John A. Jeffries, Steven H. Adelman, Chicago, 111., for petitioner. McNeill Stokes, Atlanta, Ga., for amicus curiae. Carla A. Hills, Asst. Atty. Gen., Judith H. Norris, Atty., App. Section, Civ. Div., Dept, of Justice, Washington, D. C., for respondents. Before STEVENS, SPRECHER and TONE, Circuit Judges. SPRECHER, Circuit Judge. The single narrow issue in this appeal is whether subcontractors working at a multi-employer construction site can receive citations and be held liable for penalties under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [OSHA], for non-serious violations of standards promulgated by the Secretary of Labor to which their employees were exposed, but which the subcontractors neither created nor were responsible for pursuant to their contractual duties. I Wright Construction Company, Inc. was the general contractor for the con-' struction of a five-story steel and concrete bank building at Elkhart, Indiana. Petitioner Anning-Johnson Company was a subcontractor on the project with responsibility for furnishing and installing fireproofing for the building. Petitioner Workinger Electric, Inc. was a subcontractor on the same construction site with responsibility,for furnishing and installing electrical, plumbing and sheet metal work. Neither subcontractors’contract contained a description of their duties which included general construction or carpentry work. On May 31, 1973, an Occupational Safety and Health Administration compliance officer inspected the construction site. At the time of the inspection Anning-Johnson employed four employees on the jobsite who were members of Plasters Local 46, Cement Masons Local 532 and Laborers Local 645. Workinger employed fifteen employees at the construction site who were members of Electrical Workers Local 153, Plumbers Local 278 and Sheet Metal Workers Local 164. It was stipulated that at the time of the inspection that the five floors and the roof of the building were already in place. The walls of the building were not in place and each floor was open at the side and was more than six feet above the adjacent floor and ground level. The inspector found that on each floor a single steel cable was strung tautly along the edges of the open-sided floor at a height of approximately 40 inches above the surface of the floor. The cable was affixed to vertical columns of the building which were along the edge of the floor, about 50 feet apart. Red ribbons were tied to the cable at various intervals. The cables were the only barrier along the edges of these open-sided floors. There were no intermediate rails in place. At the time of the inspection employees of both subcontractors worked near and at the edge of these open-sided floors. Located in about the center of the interior of the building was a steel stairway running from the basement to the fifth floor. The stairway was approximately 42 inches wide and was open on both sides except for the presence on one side of the next higher flight of the stairway. Each flight of stairs had more than four risers. The stairway from the first to the fifth floor had a railing running along only one side in some areas and had no intermediate rails. Other areas had, on both open sides, a single railing without intermediate rails. The stairway was the only means of reaching the upper floors in the building and at the time of the inspection it was used by all employees to reach the various floors. On each floor level there was a floor opening for an elevator shaft. The opening in the floor was a rectangle approximately 5 feet IIV2 inches by 16 feet 2 inches. On the fifth floor at the time of inspection the opening was guarded by a single wood rail running along the edges of the opening at a height of approximately 40 inches above the floor surface. There was no intermediate rail or toeboard along any of the four sides of the opening. The opening on the third floor was covered by 4 foot by 8 foot plywood sheets which lay unsecured on top of 4 inch by 4 inch pieces of lumber running along the two sides of the opening. These plywood sheets were not installed so as to prevent accidental displacement. Because of these conditions the OSHA inspector cited Wright as well as both petitioners for non-serious violations of 29 C.P.R. §§ 1926.500(d)(1), 1926.500(b)(1) and 1926.500(e)(1). A total fine of $150 against each subcontractor was assessed. It was further stipulated by the parties that neither subcontractor installed the cable, erected any of the railings, or placed the plywood sheets over the floor openings, but that these, were installed by employees of Wright or other subcontractors who were members of Carpenters’ Local 565 and Laborers’ Local 645. Petitioners were not, however, specifically prohibited by the general contractor or by their contract with the carpenters’ union from abating the alleged violations. Foremen of both subcontractors were aware of the conditions and nonetheless allowed their men to remain on the job. The case was presented before the Administrative Law Judge on a theory that the Secretary of Labor’s enforcement policy of citing subcontractors for non-serious violations of OSHA standards created by employees of other employers and which could not be effectively abated by the cited subcontractors was not authorized by the Act. On February 11, 1974, the Administrative Law Judge denied petitioners’ motion for summary judgment and affirmed the citations issued and the proposed penalties. It is that decision which petitioners seek to have reviewed. 29 U.S.C. § 660(a). II The Occupational Safety and Health Act of 1970 was enacted in order to reduce the substantial burdens placed on interstate commerce because of work-related personnel injuries and illnesses. 29 U.S.C. § 651. Pursuant to the Act, an employer’s duty flows from two sources. First, the Act requires that employers “shall comply with... standards promulgated under this chapter.” 29 U.S.C. § 654(a)(2). Second, where no standards are applicable, Sun Shipbuilding & Drydock Co., 4 OSAHRC 1020, 1043 (1973) (Review Commission), an employer is subject to a general duty to “furnish... his employees. a place of employment... free from recognized hazards... likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). This appeal does not deal with the application of the general duty clause. Pursuant to the Act, the Secretary of Labor is given general authority to promulgate occupational safety and health standards. 29 U.S.C. § 655.6 The Secretary is authorized to send his agents to a worksite to inspect the area and equipment. 29 U.S.C. § 657(a). If upon such investigation the Secretary or his representative believes that an employer has violated any standard he shall issue a citation setting forth the nature of the violation and a reasonable time for abatement. 29 U.S.C. § 658(a). Thereafter, the Secretary shall notify the employer of any proposed penalty. The employer may contest the citation or the proposed penalty or both. The Commission, through its decisions, has consistently taken the position that, exposure to conditions that violate one of the construction standards constitutes a sufficient basis upon which the Secretary may issue a citation and assess a fine against a subcontractor pursuant to 29 U.S.C. §§ 654(a)(2), 666, notwithstanding the fact that the violation is non-serious and was not created by the cited subcontractor. Thus, in Charles S. Powell d/b/a Powell Electric, 3 OSAHRC 1056 (1973) (Review Commission Judge), it was said: [T]hese contentions by Respondent evade the real issue which is the exposure, if any, by Respondent of his employees to hazards. The underlying duty of each and every employer under Section 5 of the Act, regardless of whether an alleged violation was predicated upon paragraph (a)(1) or (a)(2) thereof, is to refrain from exposing employees to hazards. The Act grants no exceptions nor does it permit any delegation of this duty. The Act does not abridge the right to contract, it merely implies that an employer cannot by contract evade this duty to furnish a place of employment that is free of hazards. This duty is imposed upon each employer and makes no distinction as to whether the employer is a general contractor or a subcontractor; it may even include a lessor of employees relinquishing all control. Further the Act does not allow for any severance of responsibility predicated upon who produced or created the hazard or who may initially be responsible for its eradication. Simply stated, whenever a subcontractor exposes his employees to hazards the employer subjects himself to the enforcement provisions of the Act and this is so regardless of who created the hazard or who may be responsible for its elimination. Id. at 1060-61. The Commission’s position and the one which the Secretary urges on this appeal has not gone uncriticized. In Robert E. Lee Plumbers, Inc., OSHRC Docket No. 2431 (Jan. 30, 1974) (Commission Review Ordered), it was said: Admittedly, the respondent is responsible for the “place of employment,” yet no one should conclude that such responsibility imposed by the Act embraces the entire work project as shown in this case. This responsibility is the responsibility of the prime contractor. What then is the responsibility of the respondent, as a subcontractor employer? His responsibility is his worksite or that portion of the work as provided in his contract of employment. Under the Act, the respondent is required to comply with occupational safety and health standards and upon doing so, complys [sic] with the Act by furnishing a place of employment which is free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees. Laws usually follow the rule of reason and thus it would not be reasonable to require a subcontractor to insure a safe workplace for his employees, if to do so would embrace an entire work project on which numerous other contractors’ employees are working. Under section 9(a) [29 U.S.C. § 658(a)] of the Act it is mandatory for an abatement period to be fixed with respect to each alleged violation. Respondent then is required to correct any violations, but can he correct a violation, the creation of which was not of his doing nor over which he has any control? Can respondent correct a violation which by doing so would interfere with the work endeavor of another subcontractor? Did Congress intend for an employer to correct a violation, to cease his portion of the work he is required to perform under contract, although the cause of the violation has no relation to his portion of the work under contract? Certainly, these queries must be resoundingly answered in the negative. Id. at 7-8. Similarly, Chairman Moran dissenting from the Commission’s reversal of R. H. Bishop Co., 8 OSAHRC 930 (1974) (Review Commission) adopted the following from the Administrative Law Judge: In summary, therefore, while under the Act the employer is required to furnish a safe place to work, the Respondent cannot be held responsible for the default or conduct of the general contractor or other subcontractors on the job. It is in no position to guarantee compliance of all safety regulations by other employing units. Id. at 938. The reason for the divergent views is easily explainable. On the one hand the basic purpose of the Act is to prevent employment related injuries. The Secretary and a majority of the Commission have taken the position that this goal can best be achieved by imposing liability on a broad-based scale. Conversely, on the other side is the recognition that the prevailing position treats subcontractors, in light of the purposes of the Act, unnecessarily harshly and inequitably. We have carefully considered the position of both sides and have determined that the Act does not allow the Secretary to issue citations to the petitioning subcontractors for non-serious violations of the regulations involved in this case. Ill In reaching our conclusion we start with an analysis of the legislative scheme enacted by Congress. As previously stated the general duty clause provides that each employer shall furnish to his employees a place of employment free from serious hazards. 29 U.S.C. § 654(a)(1). It speaks in terms of furnishing a place of employment to employees such that they will not be exposed to the proscribed conditions, those conditions being ones that are “likely to cause death or serious physical harm.” The other source of an employer’s duty under the Act states that an employer “shall comply” with regulations promulgated pursuant to the Act. 29 U.S.C. § 654(a)(2). This subsection, unlike (a)(1) (the general duty clause), does not speak in terms of employee exposure to hazards. If anything at all can be gleaned from the words of the subsection, it is that one who is to be charged with absolute liability be realistically in a position to comply with the promulgated standards. This, as will be shown, is not the case under the Secretary’s position. It is true that the general duty clause was included in order to cover the most flagrant of situations and for which the Secretary had not promulgated appropriate regulations, so perhaps not much significance should be accorded the difference in language between the subsections. The varying thrust of the two subsections, however, is significant in at least one respect. The difference in language makes clear that when Congress desires to make mere exposure to a particular hazard a violation of the Act, it knows how to select language to clearly accomplish that goal. This conclusion is reenforced by the Contract Work Hours and Safety Standards Act, 40 U.S.C. § 333, where the language clearly makes exposure to conditions which violated promulgated regulations a violation for both general and subcontractors alike. We start then with the proposition that exposure to non-serious violations of standards promulgated pursuant to (a)(2) do not stand on the same footing as exposure to conditions that are likely to cause serious physical harm or death. IV If the literal language of the Act does not clearly require imposing liability on subcontractors for exposure of their employees to non-serious violations, neither does it clearly indicate that subcontractors should have some kind of broad exemption. In considering the proper interpretation of the statute, we have reviewed the legislative history carefully. Regretfully, we have found little that sheds significant light on the problem. We are, therefore, in the unenviable position of rendering an interpretation that seeks to fulfill the stated congressional purpose in an equitable manner, without the aid of a clear legislative record on the subject. The purpose of the Act is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources... 29 U.S.C. § 651(b). It is clear that the Act is not nor could it be designed to eliminate all occupational accidents. Rather it is designed to require a good faith effort to balance the need of workers to have a sale [sic] and healthy work environment against the requirement of industry to function without undue interference. Legislative History, supra, note 15 at 435 (Remarks of Senator Williams). The Act is designed not to punish, but rather to achieve compliance with the standards and the abatement of safety hazards. The underlying rationale in effectuating these purposes by placing primary responsibility on employers is that employers have primary control of the work environment and should therefore insure that it is safe and healthful. S.Rept.No.91-1282, 91st Cong., 2d Sess. 9 (1970); H.R.Rept.No.91-1291, 91st Cong., 2d Sess. 21 (1970). While this is true in most situations the application of that principle to the construction industry is not wholly accurate. On a multi-employer construction site, it is the general contractor who contractually controls the worksite. The subcontractor’s control, for all essential purposes, is contractually limited to his specific field (e. g. electrical, plumbing, painting). Indeed, the subcontractor’s contract in this case described their duties in limited terms. Thus, it is clear that the congressional reason for placing on the employer the primary responsibility for complying with occupational hazard and safety standards does not exist in the case of these challenging subcontractors. V It seems likely from the foregoing that Congress did not intend to adopt a broad mandatory rule providing that in all cases employee exposure to conditions which are violations of promulgated standards would result in employer liability. Such a rule would equate the employer’s duty to comply with the statute with a broader general obligation to assure safe and healthful working conditions for his employees under all circumstances. In short the Secretary’s rule, in addition to the employer’s clear duty to comply with promulgated standards within his control (29 U.S.C. § 654(a)(2)) and his duty to avoid exposing his employees to hazardous conditions likely to cause death or serious physical harm (29 U.S.C. § 654(a)(1)), would create a still broader general duty of avoiding exposure by his employees to non-serious technical violations created and within the control of third parties. We must consider whether, even though such a nonstatutory general duty clause has not been mandated by Congress, it may nevertheless represent a rule which the Secretary has discretion to adopt. We conclude that the Secretary’s rule involves a policy choice of such magnitude and would lead to results under the Act, not intended by the Congress, that it may not be appropriately adopted without more direct statutory authorization. An examination of the effects of the Secretary’s rule on the construction industry and the policy considerations mitigating against such a rule confirms our conclusion. We fail to see how requiring several different employers to place a proper guard rail over an opening or along the edge of open-sided floors or intermediate rails on stairways fulfills the purposes of the Act any more effectively than requiring only one employer to do so. The Secretary’s position is premised on the theory that the more people responsible for correcting any violation, the more likely it will get done. This is, of course, not necessarily true. Placing responsibility in more than one place is at least as likely to cause confusion and disruption in normal working relationships on a construction site. Such a policy might in effect prove to be counterproductive. In any event even if the Secretary’s position on this point was correct, the benefits to be, gained from his policy must be considered in light of the other likely effects of that policy on the construction industry. To the extent that the Secretary has not allowed employers to avoid liability under the Act by contractual arrangements between the various employers, some employers have sought to place liability on the party at fault by contractual indemnification clauses that would operate whenever liability was imposed on a party not responsible for a cited violation. As these clauses continue to proliferate it will mean that the Secretary’s policy will tend unnecessarily to favor general contractors. When jobs are to be subcontracted out, it is usually the general contractor who will be bargaining from a position of strength and thus able to shift liability away from himself. Even if contractual liability was fairly allotted to the party at fault, the Secretary’s policy of citing all employers at the site might necessitate litigation between the parties to finally affix liability. To require the parties in an ongoing relationship to resort to the courts to accomplish the objectives of fixing final responsibility for the abatement of minor hazards would seem to be an undesirable policy and one which Congress could not have intended. In addition to the confusion that might be caused by the Secretary’s interpretation, the thrust of multi-employer liability is economically wasteful and in some cases totally impractical. The Secretary’s policy requires multiple expenditures in the discovery of violations. Since each employer is responsible for every violation to which his employees are exposed, they are in effect required to discover violations that are beyond their area of expertise. This requires electricians and plumbers for example to be familiar with the standards for general carpentry work and in reverse, that carpenters be familiar with standards bearing on the work of more technical specialists. Not only are the most obvious violations required to be discovered, but also the most subtle; ones not likely to cause serious physical harm or death. This is a burdensome requirement especially in relation to non-serious hazards. In addition, the Secretary’s rule might cause duplicate expenditures to be made in the actual abatement of hazards by different employers. Furthermore, union contracts ordinarily require that only employees of certain crafts be permitted to undertake certain work. Thus, an electrical or other speciality subcontractor would often be required to hire additional employees in order to abate a hazard. For most subcontractors this would be uneconomical, and for small ones perhaps completely destroy the benefit of their contract. This result seems all the more curious in this situation where other subcontractors or the general contractor, who had more direct responsibility for general construction, already had the available equipment and personnel to undertake the correction of the stairway,, elevator shaft and building edges. At any rate in relation to non-serious violations we do not believe that Congress intended to subvert the well established craft jurisdiction concept or to impose burdensome expenses on subcontractors which do not have the appropriate employees to abate certain hazards. Assuming as we have just found that requiring abatement of hazards by subcontractors not responsible for the violating conditions is impractical, the only other alternative available is for such a subcontractor to remove his employees from the job after a violation is discovered and prior to a citation being issued. This again not only requires a subcontractor to be able to recognize non-serious violations outside its field of expertise, but also is an unrealistic and economically unfeasible solution. On many construction jobs the withdrawal of a single subcontractor, upon whose work future construction depends, could conceivably cause an entire project to shut down. The subcontractor who wants to avoid OSHA liability must guess at his peril that in fact a violation exists. Presumably, if it guesses wrong the owner or general contractor would have an action for all too often very substantial damages caused %y delay in the completion of a project. Whether a violation actually exists is not always easy to determine either before or even after a citation issues, since a successful contest may be brought. It is even more difficult for a subcontractor to make the correct choice in cases where a violation is non-serious, for example as in this case where the citation was for technically improper guarding devices, and not for a clearly visible total absence of guards. To the extent that the Secretary’s policy will lead to the removal of workers from construction sites because of non-serious violations we find that policy inconsistent with the Act. Correcting the hazard, not shutting down construction sites, is the desired result. It is the former not the latter that is consistent with the balance approach. The standards are to be set “in terms of objective criteria and of the performance desired.” H.Rept.No.91-1765, 91st Cong., 2d Sess. 35 (1970) (Conference Report accompanying S. 2193). The Secretary, proceeding in district court, can seek to temporarily restrain any activity on a work site in imminent danger situations. 29 U.S.C. § 662. There was significant congressional debate over this section and the extent of its scope. See, e. g. H.Rept. No.91 — 1765, supra at 40. Clearly, a non-serious violation of the promulgated standards is not the type of imminent danger Congress contemplated when they included this section. To the extent that the Secretary may achieve a shut down of a work site by citing a subcontractor for allowing his employees to be exposed to non-serious violations, that policy is inconsistent with the imminent danger provisions of the Act. For all of the foregoing reasons we have determined that the Secretary’s and Commission’s position cannot be sustained. VI In reaching this decision we have recognized that both sides have substantial merit in their position. We have not sought to undercut the Secretary’s authority or in any way frustrate the purposes of the Act. We have balanced the Secretary’s interest in enforcing his policy, and the purposes that policy serves, against the inefficient, uneconomical and inequitable effects it has on certain employers. It is important to define precisely what effect our decision is intended to have. We have not told the Secretary whom he must hold liable where there is joint responsibility for the existence of a standard violation. Similarly, we have not held that the Secretary’s policy of imposing liability on employers for exposure to conditions that are serious violations of promulgated standards is invalid. Nor have we held that exposure by a subcontractor’s employees to a non-serious standard violation, which he created or is otherwise responsible for is impermissible. We have only held that these petitioners are not responsible for the conditions deemed non-serious violations of the promulgated standards by the Secretary and, therefore, that the Secretary’s policy of imposing liability on them merely because their employees were exposed to conditions which they neither created, caused, nor are otherwise responsible for, does not, on balance, fulfill the purposes of the Act. Since the facts of this case fall into this narrow holding, we set aside the order of the Commission in both 74-1381 and 74-1382. . No employees from Anning-Johnson were working on the fifth floor at the time of the-inspection. . Wright did not contest the citations issued to it. . 29 C.F.R. § 1926.500 provides in relevant part: Guardrails, handrails, and covers. (a) General provision. This subpart shall apply to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, or wall openings, or from stairways or runways. (b) Guarding of floor openings and fíoor holes. (1) Floor openings shall be guarded by a standard railing and toe boards or cov-' er, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways. ****** (d) Guarding of open-sided fíoors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard. * * * * * * (e) Stairway railings and guards. (1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails: (i) On stairways less than 44 inches wide having both sides enclosed, at least one handrail, preferably on the right side descending; (ii) On stairways less than 44 inches wide having one side open, at least one stair railing on the open side; (iii) On stairways less than 44 inches wide having both sides open, one stair railing on each side; (iv) On stairways more than 44 inches wide but less than 88 inches wide, one handrail on each enclosed side and one stair railing on each open side; (v) On stairways 88 or more inches wide, one handrail on each enclosed side, one stair railing on each open side, and one intermediate stair railing located approximately midway of the width. . Initially, the penalties were set at $300, but pursuant to OSHA policy this figure was reduced. . The subcontractors petitioned for review of the Administrative Law Judge’s decision, but no commissioner directed review and therefore the decision of the Administrative Law Judge became a final order of the Commission. 29 U.S.C. § 661(i). . The general duty clause is not involved in this case, because by its terms the duty embodied in that clause flows only to hazards that are causing or likely to cause death or serious physical harm. In 29 U.S.C. § 666(j) a serious violation is deemed to exist “if there is a substantial probability that death or serious physical harm could result..” This definition parallels closely the wording of the general duty clause. In the present case the Secretary has classified the violations as “non-serious” which means ones that are not likely to cause death or serious physical harm and therefore outside the scope of the general duty clause. See generally Morey, The General Duty Clause of the Occupational Safety and Health Act of 1970, 86 Harv.L.Rev. 988 (1973). . The standards in the present case were originally made effective pursuant to 21 U.S.C. § 653(b)(2) which provides in relevant part: The safety and health standards promulgated under... Public Law 91-54, Act of August 9, 1969... are superseded on the effective date of corresponding standards, promulgated under this chapter, which are determined by the Secretary to be more effective. Standards issued under the laws listed in this paragraph... shall be deemed to be occupational safety and health standards issued under this chapter The 28 C.F.R. part 1926 standards were promulgated under the Contract Work Hours and Safety Standards Act, Pub.L. 91-54, codified at 40 U.S.C. § 333. They were adopted as occupational safety and health standards pursuant to 29 C.F.R. § 1910.12. For more on the interrelationship between the Contract Work Hours and Safety Standards Act and the Occupational Safety and Health Act see note 13, infra. . Any employer who has received a citation for a violation of 29 U.S.C. § 654 may be fined up to $1,000 for each violation. If cited for a serious violation some fine up to $1,000 must be levied. If an employer willfully or repeatedly violates section 654 he may be fined up to $10,000. Similarly, a failure to correct a violation within the time period allowed may be fined up to $1,000 for each day during which such violation remains unabated. 29 U.S.C. § 666. . If no notice of contest is filed within fifteen days from receipt of the Secretary’s citation, the citation and the assessment, as proposed, shall be deemed to be a final order of the Commission and not subject to review by any court or agency. 29 U.S.C. § 659(a). . For other cases with similar holdings see Savannah Iron & Fence Corporation, 10 OSAHRC 1 (1974) (Review Commission); Armor Elevator Company, Inc., 5 OSAHRC 260 (1973) (Review Commission); Sunray Electric Corporation, 7 OSAHRC 615 (1974) (Review Commission Judge); Star Circle Wall Systems, Inc., 3 OSAHRC 719 (1973) (Review Commission Judge); Skil-Craft Builders, Inc., 3 OSAHRC 622 (1973) (Review Commission Judge); Howard P. Foley Company, 3 OSAHRC 414 (1973) (Review Commission Judge); Jaffie Contracting Company, Inc., 2 OSAHRC 466 (1973) (Review Commission Judge); Fireproof Products Company, Inc., 2 OSAHRC 475 (1973) (Review Commission Judge); Ellison Electric, 1 OSAHRC 547 (1972) (Review Commission Judge); FEC, Inc., 1 OSAHRC 389 (1972) (Review Commission Judge). . See also Anning-Johnson Co., OSHRC No. 3694 (May 3, 1974) (Commission Review Ordered); Anning-Johnson Co., OSHRC No. 4409 (April 19, 1974) (Commission Review Ordered). . See note 6, supra and accompanying text. . There is another reason why we believe the Secretary should not force this inequitable burden on subcontractors. The standards which the challenging subcontractors in this case are accused of violating were initially adopted pursuant to the Contract Work Hours and Safety Act, 40 U.S.C. § 333. See note 7, supra. That act provided in specified construction contracts with the federal government that: [N]o contractor or subcontractor... shall require any laborer.. employed in the performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety, as determined under construction safety and health standards The standards applicable in this case, see note 3, supra, do not specifically declare that exposure to non-conforming conditions will be a violation, and unlike the Contract Work Hours and Safety Act the language of OSHA’s subsection (a)(2) does not speak in strict exposure terms. The standards adopted pursuant to the Contract Work Hours and Safety Act included the following: (b) By contracting for full performance of a contract.. the prime contractor assumes all obligations prescribed as employer obligations under the standards contained in this part, whether or not he subcontracts any part of the work. (c) To the extent that a subcontractor of any tier agrees to perform any part of the contract, he also assumes responsibility for complying with• the standards in this part with respect to that part. Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to.have joint responsibility. (d) Where joint responsibility exists, both the prime contractor and his subcontractor or subcontractors, regardless of tier, shall be considered subject to the enforcement provisions of the Act. 29 C.F.R. § 1926.16 (emphasis added). This regulation was part of subpart B of 29 C.F.R. part 1926. Subpart B was not adopted by the Secretary in promulgating OSHA standards, 29 C.F.R. § 1910.12(c), but the reason for not adopting was unrelated to that part of the regulation which makes subcontractors responsible only for their own work. The foregoing language may well have precluded liability against subcontractors who allowed their employees to be exposed to conditions not caused by them but which violated promulgated standards. In any case, we were not advised that the difference in statutory language in relation to subcontractors was considered by the Secretary prior to the decision to hold them liable. While we do not rest our decision on the manner in which the Secretary’s policy was arrived at, we do note that there is a substantial likelihood that the present policy evolved into a hard and fast rule without much consideration and certainly without comment from those likely to be affected, as is the general procedure under the Act. 29 U.S.C. § 655(b). . As Commission Chairman Moran has stated: In enacting this law, Congress apparently gave little thought to the unique relationship which arises when employees of a number of different employers work in and around the same job site and are subject to the hazards which may exist at that site — hazards which may or may not have been created by thejr own employer — or someone else’s — or by some other employees of a totally unrelated and unknown employer. Address by OSHRC Chairman Moran, National Construction Industry Conference of the American Arbitration Association, Boston, Massachusetts, April 24, 1974. . It was observed during debate in the Congress that the more than 14,500 workers killed by work-related accidents each year represented an annual death toll exceeding that of the Vietnam war. Subcomm. on Labor of Senate Comm, on Labor and Public Welfare, Legislative History of the Occupational Safety and Health Act of 1970, 92d Cong., 1st Sess. 411 (Comm.Print 1971) (remarks of Senator Williams). . The contract in this case between Wright and Workinger Electric provided that the latter in accordance with the plans and specifications of the architect do the “Electrical Work Complete.” Similarly, Anning-Johnson was “To furnish and install the Sprayed on Fireproofing” in accordance with the architect’s plans. In both contracts the only reference to OSHA was the following: Sub-contractor agrees to comply with all requirements of the Occupational Safety and Health Act (Current Edition) and to save harmless and indemnify General Contractor from and against any and all liabilities imposed on the contractor for violations of said act arising out of the work covered by this sub-contractor. No reference is made to correcting safety hazards beyond the scope of the subcontractor’s primary duties. . See, e. g., Armor Elevator Company, Inc., 5 OSAHRC 260, 278-79 (1973) (Review Commission); Skil-Craft Builders, Inc., 3 OSAHRC 622, 627-28 (1973) (Review Commission Judge); Howard P. Foley Company, 3 OSAHRC 414 Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "construction". What subcategory of business best describes this litigant? A. residential B. commercial or industrial C. other D. unclear Answer:
songer_suffic	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". LIST v. NEW YORK CENT. R. CO. (Circuit Court of Appeals, First Circuit. January 7, 1925.) No. 1748. Master and servant <§=>287(3) — Whether employee, injuring coemployee, was aoting within scope of employment, held-for jury. In action under Massachusetts law for injuries to employee,- struck by waste thrown by other employee in direction of.waste basket, question whether other employee was acting within scope of his employment held for jury. Johnson, Circuit Judge, dissenting. In Error to the' District Court of the United States for the District of Massachusetts; Peters, Judge." Action by Marie Y. List against the New York Central Railroad Company. Judgment for defendant, and plaintiff brings error. Judgment'vacated,, verdict set aside, and case remanded, with directions. Leo J. Kelly, of Boston, Mass., and Christopher J., Muldoon,. Jr., of Somerville, Mass. (John J. O’Hare and Kelly & Schumb, all of Boston, Mass., on the brief), for plaintiff in error. Ralph A. Stewart, of Boston, Mass. (Herbert Schnare, of Boston, Mass., on the brief), for defendant -in error. Before BINGHAM, JOHNSON, and ANDERSON, Circuit, Judges. BINGHAM, Circuit Judge. This is a wpt of error-.from a judgment in favor of the. defendant in a personal injury suit, in which, under the laws of Massachusetts, the master is made responsible for the negligent acts of his servants within the scope of their employment. At the close of the plaintiff’s evidence a verdict was directed for the defendant, upon which judgment was entered. This is the error complained of. There is no question but that it could have been found that the plaintiff was injured, and that her injury was due to the negligent act of the defendant’s servant. The only question is whether there was evidence from which it could have been found that the servant, at the time in question, was acting within the scope of his employment. The plaintiff’s evidence tended to prove that, at the time. she sustained her injury, she was at work for the defendant in one of' the rooms set apart for auditing its freight accounts; that her duties consisted in operating machines for punching and tabulating cards; that there were also employed in the same room five other girls and two men, Mr. Fitzgerald and Mr.' Roberts; that in the room there were four desks, four tabulating machines, two large card-sorting machines, and a large oblong table that Fitzgerald and Roberts worked at; that Fitzgerald was in charge of the room and. directed the work there carried on; that-Mr. Roberts’ duties consisted in doing tabulating work, assisting Mr. Fitzgerald, and in tidying the room; that it was customary for him to keep the tables and desks in order; that the work was of such a character as to produce waste material and refuse, ■ most of ■frhieh.eame from the punching.and tabulating machines; that eight or ten waste. baskets were provided for the purpose of taking cafe of the refuse and waste material, one of which was supposed, to be at each punching machine; that it had been customary for some time prior to the accident for some of the girls to eat their noon luncheon in the room; that it was' advanta-. geous to the conduct of work of the nature there- carried on that the desks and table-be kept clean and free from refuse; that on the day of the accident ■ some of ■ the girls took their luncheon in this room, but the • plaintiff went oiit to her noonday meal-; that thereafter she returned and resumed her work, and between- 2:30 and 3 o’clock was sitting at a-tabulating machine at the rear end of the room, engaged in her regular work; that about this time Fitzgerald and Roberts came into the room, and Fitzgerald, • seeing that there .was some orange peel,- papers, an orange, and other waste material-on the long table, which had been left there by the girls after their noon lunch, directed Roberts to clean up the table and remove the waste; that Roberts rolled up some of the material in a paper and threw it in the direction of a waste basket back of where the plaintiff was sitting; that the bundle missed the basket; that Roberts then picked up the orange and threw it in the direction of the same basket; and that, instead of going into the waste basket, it struck the plaintiff, causing the injury complained of. From this evidence the jury, as reasonable men, might find that Fitzgerald had charge of the room, with authority to keep it in order; that it was advantageous to the work there being conducted that the desks and tables be kept cleared of waste; that Fitzgerald, in directing Roberts to clear away the waste, was acting within the scope of his authority; and that Roberts, in clearing it away, was not only performing his duty as directed, but that, had he not been acting at the time under the immediate direction of Fitzgerald, he could have been found to have been acting within the scope of his employment, as he was only performing a duty which he had customarily performed in the defendant’s service. The judgment of the District Court is vacated, the verdict is set aside, and the ease is remanded to that court for further proceedings not inconsistent with this opinion, with costs to the plaintiff in error. JOHNSON, Circuit Judge, dissents. Question: Did the court rule that there was insufficient evidence for conviction? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_state	14	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". UNITED STATES of America, Plaintiff-Appellee, v. James D. REYNOLDS, Defendant-Appellant. No. 85-1621. United States Court of Appeals, Seventh Circuit. Argued Jan. 21, 1986. Decided Sept. 18, 1986. John M. Cutrone, Chicago, Ill., for defendant-appellant. L. Lee Smith, Asst. U.S. Atty., Peoria, Ill., for plaintiff-appellee. Before CUMMINGS, Chief Judge, BAUER and CUDAHY, Circuit Judges. CUMMINGS, Chief Judge. James Reynolds challenges his convictions of conspiracy to import and distribute marijuana and of interstate travel in support of racketeering. He raises issues of sufficiency of the evidence, prosecutorial misconduct, and sentencing proceeding irregularities. For the reasons discussed below, we affirm the convictions but vacate the sentence imposed and remand for new sentencing in compliance with Federal Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure. Statement of the Case and Facts James Reynolds, defendant, was convicted by a jury of conspiracy to import and distribute more than 1,000 pounds of marijuana in violation of 21 U.S.C. §§ 846 and 955c. He was also convicted of interstate travel in aid of racketeering, a violation of 18 U.S.C. § 1952(a)(3). Defendant was sentenced to one 8-year term and two 5-year terms on the three counts, the sentences to be served concurrently. In May 1984, Donald Harms was contacted by his uncle, John Ferrarini, about renting and piloting an airplane. Harms became suspicious of his uncle’s plans for the plane and contacted the Federal Bureau of Investigation (FBI). Harms agreed to help investigate his uncle by recording conversations. Some fourteen phone calls between Harms and Ferrarini were recorded during the first week of June. These conversations centered on the type of aircraft needed and the job Harms was to do. Fer-rarini cautioned his nephew about speaking too openly over the telephone. In a telephone conversation on June 7, 1984, the defendant, James Reynolds, spoke with Harms; the conversation involved the type of airplane and its capacity to carry cargo. A meeting was planned for the next day at a restaurant in Princeton, Illinois. Present at the June 8th meeting were Harms, Ferrarini, Reynolds, and Frank Gato, Reynolds’ business partner. Harms wore a recorder during the meeting. Transcripts of the conversation were introduced at trial. During this meeting the group discussed the range of the chosen aircraft, a Piper Navajo, and how much weight it could carry. Harms attempted to get the others to disclose the specifics of the plan. Harms was informed that he would be transporting marijuana. Reynolds told Harms that the plan was for the two of them to fly the marijuana from Colombia to Bimini in the Bahamas. Up to this point Harms had had no idea what their cargo would be; he had thought it was to be cocaine. The conversation turned to the aircraft and the potential profitability of the trip. Reynolds expressed concern over the ability to carry a large quantity of cargo over the necessary distance. Harms was told that the longest leg of the flight would be 1,200 miles. At one point in the conversation, Reynolds and Ferrarini left the table. While they were absent, Harms continued to question Gato about the ultimate destination for the marijuana. Gato responded that the plan was to bring it into the United States by boat from Bimini on the same day. Eventually Harms left to meet with the FBI. Reynolds, Gato, and Ferrarini were arrested as they left the restaurant. The defendant raises three issues on appeal. First, whether there was sufficient evidence to show that (a) he knew the marijuana was to be imported into the United States and (b) the group was planning to carry more than 1,000 pounds of marijuana. The second issue is whether statements concerning the judge’s responsibility to decide issues of probable cause constituted prosecutorial misconduct. The third issue is whether the judge should have ruled on defendant’s proposed corrections in the presentence report before sentencing. We affirm the convictions but remand for proper sentencing. I. SUFFICIENCY OF THE EVIDENCE A. Importation into the United States. The defendant concedes that he was part of a scheme to transport marijuana out of Colombia. But he contends that the evidence fails to establish that he agreed to bring the marijuana into the United States. The government maintains that sufficient evidence was presented to the jury for them to infer his- knowledge of the ultimate destination. We agree that the jury had enough evidence to conclude that Reynolds was part of the scheme to import marijuana into the United States so that the convictions on all three counts were sustainable from an evidentiary viewpoint. This Court employs the traditional reasonableness test when reviewing claims of insufficiency of the evidence. This Court must review the evidence in a light most favorable to the government to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in the original); United States v. Wiehoff, 748 F.2d 1158, 1160-1161 (7th Cir.1984). Conspiracy to distribute marijuana in violation of 21 U.S.C. §§ 846 and 955c requires an agreement to distribute the contraband within the United States. United States v. Hayes, 653 F.2d 8 (1st Cir.1981). The existence of an agreement may be proven by circumstantial evidence based upon the conduct of the parties or substantial evidence of the entire scenario. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942) (“a common purpose and plan may be inferred from a development and collocation of circumstances”). Even without personal communication, tacit understanding of the usual business arrangements through a long course of conduct between the parties is enough to constitute an agreement. United States v. Consolidated Packaging Corp., 575 F.2d 117, 126 (7th Cir.1978). Reynolds claims that the tape-recorded conversations actually support his position that he was not aware that the marijuana would be shipped into the United States. Reynolds points to his discussion with Harms when he said: Reynolds: Here’s what it is. Uh ... we got a load of smoke ... Harms: Oh. Reynolds: In Colombia, and a, and you’re ... Harms: Jesus Christ, you’re not gonna bring back much grass. Reynolds: No, listen to this, we’re not bringing it back in the country. Gato: Not to the country. Reynolds: You’re not gonna bring anything to this country and risk that. Harms: Oh. Reynolds: That’s not what it is. You and I ... Harms: Yeah. Reynolds: I’m gonna be with you, you are going to Colombia. Harms: Uh-huh. Reynolds: We’re going to go from Colombia, back to Bimini. Gato: It’s an island. Harms: Yeah, I know where Bimini is. Reynolds: Unload it, clean the plane, the plane will be cleaned there, and then we’ll come home. After Harms restates the proposed plan as flying to Colombia, picking up marijuana, and then flying to Bimini, Reynolds responds: Reynolds: Yeah. Harms: That’s all there is. Gato: That’s all there is. Reynolds: That’s it, that’s all. From this conversation Reynolds insists that the jury could not have concluded that he knew that the marijuana would be brought into the United States. Instead, Reynolds argues, these portions demonstrate that his understanding is that the marijuana was only going from Colombia to Bimini so that none of the three statutes was violated. But the jury had other evidence to consider. The transcript given to the jury reflects that immediately after Reynolds’ last statement above, Gato said to Harms, “Your job is to Bimini, then we transport it (emphasis supplied).” The defendant challenges the interpretation of the phrase “then we transport it,” but the accuracy of the government’s version of the tape-recorded conversations was a question of fact for the jury. Furthermore, Gato later disclosed to Harms the details of the importation plan: Harms: How far is Bimini from Miami? Gato: Bimini is exactly forty-eight miles. Harms: Forty-eight? Gato: Yeah. Harms: Hum. Gato: Only twenty minutes flight ... from Miami. Harms: Nothing to it. Gato: It’s real close. Harms: What they do, boat her in then? Gato: [unintelligible] Harms: I don’t give a shit, they boat her back in? Gato: Yeah. Harms: That’s all them bales floatin’ around those beaches you hear about. Gato: We’ll bring it in by boat and ... Harms: Bring her in by boat. Gato: By boat, same night, same day. Harms: Same time. These details resolve any ambiguities in Gato’s phrase “then we transport it.” Although this discussion took place while Reynolds was away from the table, the jury was aware of the close and long-standing working relationship between Gato and Reynolds. In fact, for the jury to have concluded that Gato would keep his longstanding partner in the dark about the final destination, yet reveal it so freely to an outsider hired only to fly the goods, would be preposterous. B. 1,000 Pounds The defendant next contends that the evidence was insufficient to support a conviction for a conspiracy to distribute more than 1,000 pounds of marijuana. Under 21 U.S.C. §§ 846 and 841(b)(5) and (c), conspiracy to distribute an amount less than 1,000 pounds of marijuana carries a maximum sentence of 5 years; for more than 1,000 pounds the penalty is up to 15 years. Again, in this conspiracy case to sustain the eight-year sentence under Count I the government must prove that Reynolds and his cohort had an agreement to distribute in excess of 1,000 pounds. See United States v. Butz, 784 F.2d 239, 240 (7th Cir.1986). Because there was no direct evidence of the amount of marijuana the defendants conspired to transport, the government attempted to prove the amount indirectly. See United States v. Silva, 781 F.2d 106 (7th Cir.1986) (direct evidence rarely available in conspiracy cases). Experts were called on both sides to speculate as to the feasibility of the chosen Navajo aircraft to carry 1,000-plus pounds of cargo, two persons, sufficient fuel, oil, etc. The government’s expert testified to the following calculations based on a 1,000-mile range: 2250 lbs useful load. (1152) fuel ( 45) oil ( 410) pilot and passenger 643 lbs cargo availability 325 5% over gross weight 968 lbs total cargo capacity The traveling distance with cargo (from Colombia to Bimini) is not in evidence. The only range testimony is that the longest leg of the journey would be from the United States to Colombia (1200) miles and the way back (Colombia to Bimini) was less. The jury could reason that if the journey was feasible with 968 pounds cargo, a shorter journey (Colombia to Bimini) with more cargo was within the realm of possibility. Moreover, the nature of the discussions between Harms and the conspirators showed that they were very much interested in carrying as much marijuana as possible. The government buttresses its argument with evidence that the conspirators planned at least three marijuana trips. The defense concedes that Reynolds indicated a willingness to engage in future trips, but argues no agreement to do so was ever reached. During the June 8th meeting the defendant stated: Reynolds: Your job is to fly a fucking airplane and get you and me down there in one piece, and get us back with the goods. That’s it and if you can spare the time ... Harms: Yeh. Reynolds: ... Wait a couple of days and we’ll do a turnaround and do it again. Then we all lay down for a couple weeks and then we’ll do it again. (Govt. Ex. 5, p. 16). From these statements and the evidence of the continuous business relationship between Gato and Reynolds the jury was entitled to infer that they agreed to make numerous trips. The government does not have to prove that the conspirators had an express agreement: “circumstantial evidence from which the jury could reasonably infer the existence of an agreement is permissible.” United States v. Mayo, 721 F.2d 1084, 1088 (7th Cir.1983). Because the first trip would bring at least close to 1,000 pounds of marijuana to the United States, by the third trip the conspiracy would have easily passed the I,000 pound mark. The combination of direct and circumstantial evidence permitted the jury to conclude that the conspiracy was created to import marijuana into the United States and that it would ultimately involve more than 1,000 pounds. II. PROSECUTORIAL MISCONDUCT Defendant contends that a portion of the prosecutor’s closing argument unfairly prejudiced him by giving the jury the impression that the judge thought the defendant was guilty. The government has responded by asserting that the argument was “invited” by the defendant. The defendant raises two distinct legal issues here: whether the prosecutor’s behavior was error, and if so, whether it is reversible error. The “invited response” doctrine is relevant only to the latter issue. United States v. Pollard, 790 F.2d 1309 (7th Cir.1986). The invited response doctrine does not give prosecutors a license to make improper arguments; it only puts such arguments in context. Darden v. Wainwright, — U.S. -, -, 106 S.Ct. 2464, 2472, 91 L.Ed.2d 144 (1986); United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 1044-1045. Once placed in context a reviewing court must decide if the defendant was unfairly prejudiced. Darden, — U.S. at -, 106 S.Ct. at 2472; United States v. Wheeler, 800 F.2d 100, 106-07 (7th Cir.1986). During closing rebuttal argument the prosecutor said: But there are a lot of non issues in this case.... Those deal with issues about whether or not these defendants should have been arrested, whether or not the Bureau County [sic ] should charge these defendants and whether or not the United States should be allowed to charge these defendants. I stated in my opening, ladies and gentlemen, that the judge has a job and that you have a job, and the judge’s job is to determine the law, and the judge’s job is to determine whether or not these people should be arrested and whether or not it is permissible to bring these charges against these defendants. [R. Dec. 11, 1984, p. 227] The trial judge denied defendant’s immediate motion for a mistrial but gave the following cautionary instruction: Ladies and gentlemen, the recent arguments of [the prosecutor] concerning what are the legal issues in this case is not an accurate statement of the law. The legal issues of this case will be stated to you by me in my instructions of law. The prosecutor’s reference to the judge’s role in deciding whether it is permissible to arrest and bring charges against the defendants was of course error but did not tell the jury that the judge had decided that defendants were guilty. While the defense counsel had attacked the accuracy of law enforcement witnesses’ reports, affidavits and Grand Jury testimony, primarily for impeachment purposes, the above remarks cannot really be considered an invited response. Nevertheless, they were not really prejudicial, as Judge Mihm recognized (Vol. IV Tr. 229). In any event, their effect, if any, was immediately blunted by the cautionary instruction given by the judge. Therefore the error was not reversible. See Wheeler, at 107. III. SENTENCING The defendant contends that the district court failed to abide by Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure and the mandates of United States v. Rone, 743 F.2d 1169 (7th Cir.1984). At the sentencing hearing the judge asked defendant and his counsel if they had read the presentence report and whether they had any objections to it. The defense counsel responded that Reynolds had prepared a list of inaccuracies. Only four were mentioned by the defense counsel, namely, dispute over the government’s claims that: (1) the shipment was going to Reynolds’ marina business; (2) there was in excess of 1,000 pounds of marijuana; (3) Reynolds’ marina business had failed prior to his arrest; and (4) he used a communication device in furtherance of the conspiracy. Defense counsel downplayed the remainder of •.Reynolds’ listed items and they were not specifically referred to. The defendant also was asked by the judge if he had any problems with the presentence report. He responded, “I’m in agreement with my attorney as to the itemized list that I made out while in Tazewell County Jail.” The sentencing judge explicitly agreed with defense counsel that a count containing a communication device charge had been dropped and thus was improperly included in the presentence report. As to the other alleged inaccuracies the court simply made a general statement that the government was entitled to present its version of the facts. This statement was made after recitation of the first of the above claimed errors in the report but before the other three. The judge told defense counsel to prepare a memorandum of the defendant’s complaints and attach it to the presentence report. He then proceeded to sentence the defendant. Under United States v. Rone, 743 F.2d 1169 (7th Cir.1984) and United States v. Eschweiler, 782 F.2d 1385 (7th Cir.1986), this procedure did not fulfill the requirements of Rule 32(c)(3)(D). Federal Rule of Criminal Procedure 32(c)(3)(D) provides that when a defendant alleges inaccuracies in the presentence report, the sentencing court must make written findings as to the allegations or a written determination that the disputed matters will not be relied on for sentencing. The rule also requires that the findings or determination be attached to the presentence report. Eschweiler, 782 F.2d at 1387. The purpose of the Rule is both to protect the defendant’s due process right to a fair sentencing procedure and to provide a clear record of the disposition of controverted facts in the presentence report. Id.; Fed. R.Crim.P. 32 Advisory Committee Notes. On this record it is far from clear whether the sentencing judge made findings with respect to the enumerated alleged inaccuracies, not to mention the rest of the list, the content of which was never orally brought to the court’s attention. Nor did the court state that it would not rely on the disputed facts for sentencing. Unlike Eschweiler, the court did not clearly impose the sentence on grounds other than those questioned by the defendant. See 782 F.2d at 1390. Although the court did give a general statement of its reasons for imposing the particular sentence on the defendant, it is unclear whether and to what degree the contested information may have played a part in the decision. Moreover, the court was aware of claimed inaccuracies that were never orally delineated. Since it is unclear whether the judge relied on information contested by the defendant, it is necessary to remand for resentencing in compliance with Rule 32(c)(3)(D). See id. at 1390 & n. 11. Additionally, allowing the defendant to attach a memorandum outlining his grievances does not meet the Rule’s requirements that the court attach a written determination of its findings or determination to the presentence report. First, the court has not made any findings under this approach. The Rule imposes an obligation on the court, not the defendant, to deal with and respond to presentence report complaints before sentencing a defendant. Second, the purpose of providing prison and parole authorities with a clear record of how disputes were resolved is not met by simply having the defendant list his grievances and attaching them to the pre-sentence report. The government also argues that we may not rely on the defendant’s factual inaccuracies to vacate his sentence because they are not in the record. The government misconstrues the defendant’s argument and our response. The remand for resentencing is not because the facts therein were inaccurate. The remand is necessary because the sentencing court is required under Rule 32(c)(3)(D) to make a finding one way or the other. Because the record is unclear, a remand is essential. See Eschweiler, 782 F.2d at 1390 & n. 11. For the reasons discussed above the defendant’s convictions are affirmed but we remand the cause for resentencing in compliance with Rule 32(c)(3)(D). . Reynolds summarized their relationship well by saying on tape, "Frank [Gato] and I live and breathe this shit all the time.” . Useful load is the gross weight a particular aircraft is capable of flying minus the weight of the aircraft itself. .The expert testified that the Navajo could conceivably fly at 5% above gross weight. . It is not necessary that the conspirators could have been successful in completing their crime. In other words, if the conspirators planned to fly 1,500 miles with 1,500 pounds of marijuana into the United States, but would surely have crashed, they could still be guilty of conspiracy to distribute in excess of 1,000 pounds of marijuana. United States v. Bagnariol, 665 F.2d 877 (9th Cir.1981), certiorari denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982); United States v. Oviedo, 525 F.2d 881 (5th Cir.1976). . The Government also argues that the defendant merely complains of its version of the facts. Because it is entitled to include those in the presentence report, the Government submits there was no error. Unfortunately, neither we nor the sentencing court are aware of all the defendant’s complaints about the contents of the presentence report since some of them were not specifically addressed. And it is not clear whether the disputed facts were merely disagreements with the government’s version of the evidence adduced at trial, e.g., whether the defendant’s business failed before or after his arrest. The Government also argues that it was the defense counsel who failed to inform adequately the sentencing judge of the alleged inaccuracies and who downplayed their significance. However, at the sentencing hearing the defendant reasserted his complaints, referring to the list he made while in jail. Furthermore, under Rule 32(c)(3)(D) it is the judge who has the duty to resolve any claimed inaccuracy brought to his or her attention. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_record	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the agency fail to develop an adequate record? For example, if the court was unable to determine what doctrine was used for the decision or unable to determine the basis of the decision. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Leonard P. MATLOVICH, Appellant, v. SECRETARY OF The AIR FORCE and Colonel Alton J. Thogersen, Appellees. No. 76-2110. United States Court of Appeals, District of Columbia Circuit. Argued May 15, 1978. Decided Dec. 6, 1978. E. Carrington Boggan, New York City, for appellant. Vincent B. Terlep, Jr., Atty., Civ. Div., Dept, of Justice, Washington, D. C.; with whom Earl J. Silbert, U. S. Atty., Barbara Allen Babcock, Asst. Atty. Gen., and Ronald Glancz, Atty., Civ. Div., Dept, of Justice, Washington, D. C., were on the brief, for appellees. Before WRIGHT, Chief Judge, ROBINSON, Circuit Judge, and DAVIS, Judge, United States Court of Claims. Opinion for the court filed by Judge DAVIS. Sitting by designation pursuant to 28 U.S.C. § 293(a) (1976). DAVIS, Judge: In March 1975, appellant Leonard P. Matlovich, after some twelve years of excellent service in the military, wrote to the Secretary of the Air Force, through his commanding officers, that he had concluded that his “sexual preferences are homosexual as opposed to heterosexual.” He added that in his view his sexual preferences would in no way interfere with his Air Force duties and that he considered himself fully qualified for further military service. He asked that the provision in AFM 39-12 (Change 4) Oct. 21,1970, para. 2-103, relating to the discharge of homosexuals be waived in his case. At that time Matlovieh was a Technical Sergeant assigned to the 4510th Support Squadron, Tactical Air Command, Langley Air Force Base, Virginia. His letter triggered an investigation by the Air Force Office of Special Investigation during which appellant provided information concerning his homosexual experiences since 1973; he stated that these were all consensual and occurred in private, while he was off-duty and off-base, with males over twenty-one. He also said that he had had such relations with two other members of the Air Force (one of whom had been discharged by that time), neither of whom had worked for him (he added that “as any responsible NCO [non-commissioned officer] I would always refrain from such a relationship”). As a result of the investigation, involuntary administrative discharge proceedings were begun against Matlovich on the ground of his homosexual activity. An Administrative Discharge Board met in September 1975 and held a four-day hearing at which appellant was represented by counsel. In addition to general testimony on homosexuality, appellant presented evidence on his own service in the Air Force and his ability to continue to give effective service. It was stipulated that he had committed homosexual acts during his current enlistment period. The Board so found and recommended that he be given a general discharge for unfitness, based on his homosexual acts. Matlovich’s commanding officer at Langley Air Force Base accepted the Board’s recommendation of discharge but determined that the discharge should be honorable. The Secretary of the Air Force then declined to waive the provisions of AFM 39-12, supra, and directed that the honorable discharge be executed. This was done on October 22, 1975. Appellant immediately applied to the Air Force Board for the Correction of Military Records (AFBCMR) to oyerturn his discharge and also amended his complaint below (see note 3) to seek reinstatement, as well as a declaratory judgment that the discharge was invalid. The AFBCMR refused to correct appellant’s records and the Secretary of the Air Force adopted that tribunal’s findings and recommendations. Thereafter both sides filed motions for summary judgment in the court below. It was stipulated, among other things, that the Air Force had in the past retained Air Force members on active duty who had engaged in homosexual activity. After argument, Judge Gesell granted appellees’ motion for summary judgment in an oral opinion. He held, first, that there is no constitutional right to engage in homosexual activity; second, that under the standards he deemed to govern judicial review of military determinations there is a rational basis for the Air Force policy of separating airmen found to have engaged in homosexual conduct; and, third, that appellant had not proved that an exception had to be made in his case. At the same time the judge recognized the superior quality of Matlovich’s service and expressed his personal view that “it would appear that the Armed Forces might well be advised to move toward a more discriminatory and informed approach” to the problem of homosexuality — “to approach it in perhaps a more sensitive and precise way.” I On this appeal from the District Court’s award of judgment to the appellees, the parties first present to us the basic issue of whether private consensual homosexual activities between adults is protected by the Constitution. The Government urges that that question has been settled negatively by Doe v. Commonwealth’s Attorney, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), summarily affirming 403 F.Supp. 1199 (E.D.Va.1975); that ruling, though summary, is said to be binding on us under the rule of Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). Appellant’s response is that, after Doe, the Supreme Court indicated that the issue was still open. See Carey v. Population Services Intl, 431 U.S. 678, 688 n.5, 594 n.17, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). Appellees’ riposte is that the reference in Carey to private consensual sexual behavior was confined by its context though not in terms to heterosexual conduct. Appellant insists, in turn, that the Court meant everything it said. II We do not reach these questions because a narrower problem looming before us requires remand of this case to the Air Force, and after further action by that Service renewed consideration by the District Court. The Air Force regulation expressly contemplates that exceptions can be made to the general policy of separating homosexuals (see note 1, supra), and the record shows that the Air Force has in the past retained members on active duty who had engaged in homosexual activity. With respect to Matlovich the Air Force said that it had considered whether to make an exception in his case but had decided against it. But what disturbs us is that it is impossible to tell on what grounds the Service refused to make an exception or how it distinguished this case from the ones in which homosexuals have been retained. The regulation (AFM 39-12, para. 2-103) gives only the most general of guidance when it limits exceptions to those “where the most unusual circumstances exist and provided that the airman’s ability to perform military service has not been compromised.” Also, “an exception is not warranted simply because the airman has extensive service” (emphasis added) or because of intoxication. No other pertinent standards are laid down. In this instance the Administrative Discharge Board was given by its Legal Advis- or only the most general of instructions on this point. After paraphrasing the exception provision of the regulation, the Legal Advisor said: “What constitutes most unusual circumstances cannot be defined with any great degree of precision. It must be based upon your experience with human nature, your understanding of the orderly conduct of the affairs of man, the very nature of the military environment as a separate and distinct segment of society with the full knowledge that military members are governed by a more strict set of rules of conduct and standards than is required and expected of the general public. The same rules apply to your understanding of what constitutes compromise of a military member’s ability to perform military service. You must consider all these factors that have been legally presented to you during this hearing.” No more light is shed by the Administrative Discharge Board’s conclusory finding, without any real explanation, that no exception should be made. The Correction Board is similarly unrevealing. It recognized that Matlovich had had an “outstanding” record but it then concluded summarily — without saying what was lacking — that that was not enough. The board went so far as to say that even if unusual circumstances existed that would not require retention; the existence of unusual circumstances “merely permits the retention if the service considers such action appropriate.” Obviously, the board did not consider such action “appropriate” here but it gives no hint why it would not be appropriate to retain appellant. The board merely concludes “that an outstanding military record without other unusual circumstances is not sufficient basis to compel a member’s retention” — and that the discharge board and the Secretary acted fairly. In confirming the Correction Board’s determination, the Secretary of the Air Force likewise said that an outstanding record was not enough and found no other “unusual circumstances” — but, again, he gave no hint (aside from a reference to instances involving intoxication, young airmen, and undue influence of a superior) what “unusual circumstances” there could be or what was missing in Matlovich’s case. What we have, then, is a serviceman with an admittedly outstanding record of considerable duration, with minimal sexual involvement with Air Force personnel and none with those with whom he worked and with substantial testimony that the Air Force community would be able to accept his homosexuality. Neither the Correction Board nor the Secretary (in confirming that board) suggested that his ability to perform military service had been compromised, and we do not understand the Administrative Discharge Board to have made such a finding either. What is missing, the Air Force says, are the “unusual circumstances” which have to exist to warrant retention even if the other conditions are satisfied. But what are “unusual circumstances,” or what they have been in past cases, is left uncertain and unknown. We are at sea as to the circumstances— aside from the exception for youths — in which the Air Force makes exceptions to its policy of eliminating homosexuals and when it refuses to make an exception. The absence of articulated standards, policies, or considerations — plus the absence of any reasoned explanation in this particular case-— makes it impossible to decide whether or not there has been an abuse of discretion in this instance or whether improper factors have played a material role. We suppose that everyone would admit that the Air Force could not decide, under its all-inclusive but unarticulated rubric, to retain only black homosexuals or only white ones, or homosexuals of one religion but not of others, or homosexuals of one ethnic background but not of others, or only homosexuals who were proteges of senior officers. We do not suppose that such blatantly improper distinctions entered into the decision in this case, but the almost-total lack of specificity in the Air Force’s determinations leads one to consider the possibility, for instance, whether Matlovich’s failure of retention may have been affected by his “going public” with his homosexuality and the publicity surrounding his case, and that if his homosexuality had been discovered and handled by the Air Force, without public notice, the result might have been different. If that factor entered into the refusal to retain, both appellant and the reviewing court are entitled to know it — so that appellant can challenge the propriety of reliance on that consideration and, if he does, the court can pass upon that contention. We do not say at this stage, because we do not know, that the Air Force cannot justify appellant’s discharge. What we say is that the Air Force should explicate more fully its reasons for refusing to retain appellant — as its regulation provides that it may do and its practice shows that it has done in other eases — so that the court can decide if it was arbitrary, capricious, or unlawful in exercising its discretion whether or not to retain Matlovich. Ill The normal rule where a discretionary administrative decision is to be reviewed by a court (other than on a de novo basis) is that the agency must give sufficient indication of the grounds for its exercise of discretion that the reviewing tribunal can appraise that determination under the appropriate standards of review (and the applicant for relief can challenge it). This basic concept has been reiterated time and again — in differing formulations and contexts but always centering on the need for the court, and the complaining party, to be given some helpful insight into the agency’s reasoning. See, e. g., United States v. Chicago, M., St. P. & P. R.R., 294 U.S. 499, 510-11, 55 S.Ct. 462, 467, 79 L.Ed. 1023 (1935) (“We must know what a decision means before the duty becomes ours to say whether it is right or wrong”); SEC v. Chenery Corp., 332 U.S. 194, 196-97, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947) (“It will not do for a court to be compelled to guess at the theory underlying the agency’s action * * * ); Baltimore & Ohio R.R. v. Aberdeen & Rockfish R.R., 393 U.S. 87, 92, 89 S.Ct. 280, 21 L.Ed.2d 219 (1968); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); Dunlop v. Backowski, 421 U.S. 560, 571-72, 573-74, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975); Kleppe v. Delta Mining, Inc., 423 U.S. 403, 409, 96 S.Ct. 816, 46 L.Ed.2d 591 (1976); Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 86, 88, 439 F.2d 584, 596, 598 (1971); Greater Boston Television Corp. v. F.C.C., 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971); Standard Rate & Data Service, Inc. v. United States Postal Service, 189 U.S.App.D.C. 315 at 324, 584 F.2d 473 at 482; Public Media Center v. F.C.C., 190 U.S.App.D.C. 425 at 434-435, 587 F.2d 1322 at 1331-1332 (1978). The fundamental principle of reasoned explanation embodied in these (and comparable) decisions serves at least three interrelated purposes: enabling the court to give' proper review to the administrative determination; helping to keep the administrative agency within proper authority and discretion, as well as helping to avoid and prevent arbitrary, discriminatory, and irrational action by the agency; and informing the aggrieved person of the grounds of the administrative action so that he can plan his course of action (including the seeking of judicial review). We know of no reason why this umbrella principle should be inapplicable to the Air Force’s decision not to retain appellant — as its regulation expressly contemplated that it could do. The explicit provision for exceptions to the overall policy of separating homosexuals is binding on the Air Force, Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Roberts v. Vance, 119 U.S.App.D.C. 367, 370, 343 F.2d 236, 239 (1964), just as much as the general directive calling for discharge of homosexuals. And the procedure established for processing these contested cases shows that the Service was expected to support its determinations of separation by some reasoned explanation. The general Defense Department Regulations on enlisted administrative separations of all types — applicable to each of the armed services — describes an administrative discharge board (such as acted in this case) as “appointed to render findings based on facts obtaining, or believed to obtain, in a case and to recommend retention in the Service or discharge, with reason for and the type of separation or discharge certificate to be furnished.” 32 C.F.R. § 41.3(h) (1976). The enlisted man entitled to or granted such a board can have counsel and present available witnesses (through oral testimony or by deposition). 32 C.F.R. § 41.5(c). The board record shall be as prescribed by the Secretary of the particular Military Department but, “as a minimum, shall contain a verbatim record of the findings and recommendations”; if the board recommends discharge, it shall be “for a specified reason.” 32 C.F.R. § 41.-5(b). At the next level — that of the discharge authority (here, the commanding officer at Langley Air Force Base) — the regulations seem to preclude that officer from acting less favorably to the serviceman than the board recommended without indicating his reasons for the more severe treatment (see 32 C.F.R. § 41.5(d)); for instance, where the board recommends retention, the discharge authority may recommend separation to the Secretary “if he believes that separation is warranted by the circumstances of the particular case.” 32 C.F.R. § 41.5(d)(6). The same assumption that a reasoned explanation should exist and be given permeates the provisions on discharges for unsuitability and misconduct. The former prefaces its listing of specific grounds of unsuitability (including “homosexual or other aberrant sexual tendencies”) with the general requirements that the type of discharge shall be “as warranted by the member’s military record” and separation should be directed “when it has been determined that an individual is unsuitable for further military service.” 32 C.F.R. § 41.7(g). Similarly, determination of the type of misconduct separation calls for appraisal of “the particular circumstances in a given case” and separation for specific types of misconduct (including “sexual perversion * * * homosexual acts”) follow “when it has been determined that an individual is unqualified for further military service.” 32 C.F.R. § 41.7(i). These Defense Department directives are implemented and pointed up by Air Force regulations — including those contained in the portion of the Air Force Manual governing separation of enlisted personnel for unsuitability, unfitness or misconduct— which consistently stress the need for reasoned explanations and determinations in these circumstances. The letter of notification to the airman should give “specific reasons for the proposed discharge” which shall include an “itemization of the factual details which constitute recommendation for the allegations of unsuitability, unfitness or misconduct upon which recommendation for elimination is based.” AFM 39-12, paras. 2-18(a)(3), 2-60(a)(3), l-25(c)(2), 2-9(a)(3), l-25(a)(2). The administrative discharge board is primarily a “fact-finding and recommending board.” Its obligation is to “develop and review all information concerning the matter under consideration to arrive at clear logical findings of fact as to each allegation in the letter of notification and to recommend, on the basis of the findings, what action should be taken in the case.” AFM 39-12, para. 3-1; see also para. 2-18. These boards are also instructed (AFM 39-12, para. 3-6a) to follow the procedures in Air Force Regulations (AFR) 11-1 (“Administrative Practices: Boards of Officers for Conducting Investigations”). With respect to findings, AFR 11-1, para. 13. declares that the findings “will be the substance of the facts material to the issue as established by the evidence,” and such finding must be supported by evidence of record and “[a] finding should be made on each point in question before the board.” Recommendations are to be “appropriate to and consistent with the findings as well as consonant with applicable laws, regulations, policies and customs of the service, with due consideration for the best interests of the Government and the person concerned.” AFR 11-1, para. 14. To' us, this is the clear equivalent of an explicit requirement for a statement of reasons. Following the board proceedings, the convening authority gives his recommendation and forwards the complete file to the discharge authority. If the former disagrees with the board he must give his “reasons therefor.” AFM 39-12, para. l-31a. As for the discharge authority, the Air Force directives make it plain that he can agree with the board without making his own independent findings but that he cannot himself depart from the board to the detriment of the airman; if he thinks more severe action is warranted, or if he thinks higher authority should consider the matter in any case, he can forward the case “with his recommendation and reasons therefor” for Secretarial decision. AFM 39-12 (Change 6) May 12,1972, at 29, Table 2-B-1, n.1. In the light of these Defense Department and Air Force directives, we cannot escape the conclusion that the military has itself provided that in cases of this type a reasoned explanation should be made for any detrimental action ordered. The whole system of regulations is infused with this concept. And since the Air Force regulation on homosexuality (AFM 39-12, para. 2-103) expressly contemplates that retention in the service is an alternative in proper cases, the procedural regulations we have just summarized demand some reasoned explanation why that alternative is rejected in the case at hand. The history of this matter within the Air Force shows that it considered itself bound to give such reasons because it purported to do so, all along the line. The problem, as we have pointed out, is that no such reasoned explanation was given in a form which is intelligible to this court or permits any meaningful judicial review. It is established, of course, that the federal courts have the power and the duty to inquire whether a military discharge was properly issued under the Constitution, statutes, and regulations. See, e. g., Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958); Van Bourg v. Nitze, 128 U.S.App.D.C. 301, 307, 388 F.2d 557, 563 (1967); Hodges v. Callaway, 499 F.2d 417, 423 (5th Cir. 1974). In connection with such review the court can and should enforce a regulatory requirement for a meaningful explanation of the administrative determination. Van Bourg v. Nitze, supra, was such a case. 128 U.S.App.D.C. at 309, 388 F.2d at 565. So were Olenick v. Brucker, 107 U.S.App.D.C. 5, 273 F.2d 819 (1959), and Davis v. Brucker, 107 U.S.App.D.C. 152, 275 F.2d 181 (1960). A parallel line-of-decisions involves an application for discharge from service as a conscientious objector; the regulations controlling those requests required a statement of reasons for an adverse decision. This directive has been judicially recognized and enforced. Perhaps the leading decision is Judge Leventhal’s opinion for the Second Circuit in United States ex rel. Checkman v. Laird, 469 F.2d 773, 779-83, 787 (2d Cir. 1972). As that discussion pointed out, (i) “where the range of executive responsibility embraces the latitude to find in favor of the claimant on an issue, the matter must be considered, and if the conclusion is adverse, reasons must be stated, with support in a record basis in fact” (469 F.2d at 781); (ii) “the proper focus of a reviewing court is on the reasons given by the [board] and not on reasons that may come to light if and when a court rummages throughout the record in an effort to reconstruct on what basis the board might have decided the matter” (469 F.2d at 783); and (iii) the regulatory requirement for reasons “is a meaningful requirement, and one that cannot meaningfully be satisfied by a bare recitation * * of the ultimate statutory [regulatory] criteria * * * ” (469 F.2d at 787). Appellees seem to suggest that, in the nature of things, these principles cannot be used for the retention exception at issue here — that it is impossible for the service to specify “where the most unusual circumstances exist” and what constitutes a compromise of the airman’s “ability to perform military service.” We cannot accept such a contention. This problem is no more difficult than that presented in the conscientious objector cases, and there is no valid reason why a statement cannot be given which will show the reviewing court that improper considerations were not taken into account, that the particular airman was not treated differently from others in the same position, and that there is a rational basis for the refusal to retain this serviceman. The mere conclusion, tracking the terms of the regulation, that sufficient “unusual circumstances” do not exist in the particular case is inadequate compliance with the reasons requirement. See United States ex rel. Checkman v. Laird, supra. Undoubtedly the Air Force was much more specific and precise in its thinking when it passed upon Sgt. Matlovich’s case — and there is no good ground why he and the court should be screened off from that reasoning. That is true whatever the scope of judicial review of the service’s exercise of its discretion, a separate issue which we do not now touch. There are two means by which an administrative entity can develop standards for rational action in an area of formal or informal adjudication. The first is by advance promulgation of written rules, directives or formulated criteria; the other is through case-by-case decision making. See Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 86, 88, 439 F.2d 584, 596, 598 (1971); Standard Rate and Data Service, Inc. v. United States Postal Service, 189 U.S.App.D.C. 315, 584 F.2d 473 (1978) (concurring opinion of Judge Leventhal). There are advantages to the former method — in Judge Leventhal’s words, supra, “rulemaking assures that any modification in position will represent a generalized approach to a general problem, avoiding the uneasiness that results from the greater possibility of discrimination in a case-by-case approach” — but, as in Environmental Defense Fund, Inc. and Standard Rate & Data Service, Inc., supra, we leave to the Air Force the choice of the path it will pursue to clarify its policy on retention of homosexuals and the application of those standards to this case. In either event, the Secretary of the Air Force may do so through such permissible means as he considers appropriate. Accordingly, the decision granting summary judgment to the Government is vacated and remanded with instructions to remand to the Air Force for further proceedings consistent with this opinion. Appellant can of course seek judicial relief from any adverse determination made on this remand. Vacated and remanded. . This regulation provided for a general policy of discharging Air Force members determined to have performed homosexual acts. Exceptions to the policy were contemplated if “the most unusual circumstances exist and provided the airman’s ability to perform military service has not been compromised.” . This was Colonel Alton J. Thogersen, the second of the two appellees. . On the day before, October 21st, appellant filed the present action seeking to enjoin the discharge as invalid and for a declaratory judgment to that effect. A temporary restraining order was denied by the District Court and the discharge was then effected. . In his oral opinion, Judge Gesell said of Matlovich: “He has had a most commendable, highly useful service in the military over a long period of time, starting with the Air Force in 1963. The record fully discloses his qualifications and need only be briefly mentioned by the Court for purposes of this decision. “Here is a man who volunteered for assignment to Viet Nam, who served in Viet Nam with distinction, who was awarded the Bronze Star while only an Airman First Class, engaged in hazardous duty on a volunteer basis on more than one occasion, wounded in a mine explosion, revolunteered, has excelled in the" Service as a training officer, as a counselling officer and in the various social action programs and race-relation programs of the military, and has at all times been rated at the highest possible ratings by his superiors in all aspects of his performance, receiving in addition to the Bronze ' Star, the Purple Heart, two Air Force Commendation Medals and a Meritorious Service Medal.” . The Court said there that it had “not definitely answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults” — and that it did not purport to answer that question in Carey. . In addition there are somewhat more specific criteria for cases involving participation in homosexual acts prior to entry into the Air Force, AFM 39-12, para. 2-103(d), but those are not applicable to Sgt. Matlovich whose homosexual activity occurred after entry. . The record before us contains nothing to the contrary. Judge Gesell’s evaluation of appellant’s service is quoted supra, at note 4. . We do not understand the Secretary’s reference (in confirming the Correction Board) to “youthful curiosity, intoxication, or undue influence of a person senior in years or grade” as exhausting the list of “unusual circumstances” even for past cases; the Secretary goes on to say summarily that he found no “other unusual circumstances” warranting an exception in Matlovich’s case (emphasis added). . The Air Force has agreed that it does not have an active program to identify and discharge homosexuals; the discharges only occur when homosexuals come to the official attention of the Air Force. Moreover, the Air Force stipulated that it does not seek to suppress heterosexual activity which is technically in violation of the Uniform Code of Military Justice or state laws. . Of course, this assumes, without deciding, that it is generally constitutional to separate servicemen who engage in private consensual homosexual conduct with adults, off-duty and off-base. . In the same general class are those rulings invalidating administrative action because the agency had no articulated standards governing its discretionary determinations, or requiring the adoption of such standards. See Hornsby v. Allen, 326 F.2d 605, 610, 612 (5th Cir.), rehearing denied, 330 F.2d 55 (1964); Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968); White v. Roughton, 530 F.2d 750, 753-54 (7th Cir. 1976). . Under 32 C.F.R. § 41.11(d)(2) and (e)(1), appellant, as a member with 8 or more years of total active military service, was entitled to an administrative discharge board (if he wished one) before being discharged for unsuitability. . Also, the discharge authority may change the basis of a board-recommended discharge “when the record indicates such action would be appropriate, except that he shall not designate misconduct as the basis [of discharge] when the board has recommended discharge for unsuitability,” 32 C.F.R. § 41.5(d)(3). . AFR 11-1, para. 3, also declares: “The primary function of a board is to ascertain and report facts so that the appointing authority may have adequate information on which to base his decision. The primary duty of a board is to develop and consider the evidence concerning the matter under investigation, to arrive at clear, consistent findings and, where required, to make recommendations. ” . It is significant, too, that, where the airman has waived a board hearing and the discharge authority directs a discharge inferior to the type recommended by the initiating commander “he [the discharge authority] will prepare and file in the case a detailed statement of the reasons for his decision.” AFM 39-12 (Change 6) May 12, 1972, at 29, Table 2-B-l, n.3. . Since Matlovich also had a hearing by the Air Force Board for the Correction of Military Records, it is pertinent to add that that tribunal was likewise expected to give its reasons — and that it purported to do so. See AFR 31-3, para. 17. Cf. the stipulation of dismissal entered in Urban Law Institute of Antioch College v. Secretary of Defense, Civil Action No. 76-530 (D.D.C. Jan. 31, 1977). . The Davis court said (107 U.S.App.D.C. at 153, 275 F.2d at 182): “We cannot say that the basis of the [Army’s] action clearly appears. It is certainly not clear to us that [the Army] acted solely on the basis of [the soldier’s] military record, and not on his pre-induction conduct” [j. e., a course forbidden by Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958)]. Mutatis mutandis, precisely those words can be used in the present case. We are not and cannot be clear that improper or unequal considerations did not enter into the decision against retaining this appellant. . See also Sanger v. Seamans, 507 F.2d 814, 817 (9th Cir. 1974): “This requirement [of reasons] is dictated by basic considerations of fairness: The in-service applicant [for release because of conscientious objections] should know the reasons for the denial of his application so that he may be able effectively to seek judicial relief, [citation omitted] Moreover, the reviewing court must know the reasons for the adverse decision in order adequately to review the Secretary’s decision within the narrow scope permitted.” . The Civil Service Commission has, relatively recently, issued new regulations setting forth (at least in part) more specific criteria for retention or discharge of homosexuals in the Civil Service. See Memorandum for the Respondents, at 6, Singer v. United States Civil Service Comm'n, 429 U.S. 1034, 97 S.Ct. 725, 50 L.Ed.2d 744 (1977). . Appellees’ brief states (at 28) that the exception policy was designed to benefit the military, not the servicemen, and then goes on to say that the discretionary determination involves a weighing of the need of the service for the specific attributes and talents of the particular airman “and the affect [sic] on the military of the loss of the services of that individual, against the actual or probably [sic] detriment that retention of the individual would have upon the military in general, and the effectiveness of the serviceman in particular.” We find neither of these statements in any of the Air Force’s determinations in this case— and it is understood by now that counsel’s post hoc rationalizations cannot substitute for the agency’s own failure. Van Bourg v. Nitze, supra, 128 U.S.App.D.C. at 309, 388 F.2d at 565; Standard Rate & Data Service, Inc. v. United States Postal Service, supra, 189 U.S.App.D.C. at 323, 584 F.2d at 481. Moreover, even if the general standard outlined by counsel were adopted by the service, we would expect some more specific spelling out of the reasons why the balance went against Sgt. Matlovich. Question: Did the agency fail to develop an adequate record? For example, if the court was unable to determine what doctrine was used for the decision or unable to determine the basis of the decision. A. No B. Yes C. Mixed answer D. Issue not discussed 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. BANNER SIGHTSEEING COMPANY/DAVID E. KLINGAMAN, Petitioner, v. WASHINGTON METROPOLITAN AREA TRANSIT COMMISSION, Respondent. WASHINGTON METROPOLITAN AREA TRANSIT COMMISSION v. David E. KLINGAMAN, et al., Appellants. Nos. 83-1413, 83-1901. United States Court of Appeals, District of Columbia Circuit. Argued 23 March 1984. Decided 17 April 1984. Lawrence E. Lindeman, Washington, D.C., for petitioner/appellant. David E. Klingaman was on the brief pro se. Gregory Paul Barth, Washington, D.C., for respondent/appellee. Joel C. Weingar-ten, Washington, D.C., also entered an appearance for respondent/appellee. Before WILKEY, Circuit Judge, McGOWAN, Senior Circuit Judge, and GE-SELL, United States District Judge for the District of Columbia. Sitting by designation pursuant to 28 U.S.C. § 292(a). Opinion PER CURIAM. PER CURIAM: The petitioner and appellants in these cases contend that the Washington Metropolitan Area Transit Commission lacked jurisdiction to regulate their activities. The thesis underlying this claim is that the Commission is empowered to regulate only “transportation,” and the petitioners’ and appellants’ primary business is “sightseeing.” Although their sightseeing business involves transportation for hire, the petitioner and appellants argue that this transportation is only incidental to the sightseeing and so is not reachable by the Commission under the powers granted it by Congress. Many cases of this Court have implicitly recognized that transportation operations which are tied to sightseeing operations are subject to the jurisdiction of the WMATC. See, e.g., Holiday Tours v. WMATC, 352 F.2d 672 (D.C.Cir.1965). Nothing in the law strips the WMATC of its jurisdiction simply because those providing transportation for hire are also in another business; the law looks only to whether transportation for hire is involved. Washington Metropolitan Area Transit Regulation Compact, D.C.Code § 1-2411 (1981 Ed.). The WMATC thus had jurisdiction in this case. The other contentions of the petitioner and appellants are also without merit. For the foregoing reasons, the district court and WMATC decisions under challenge here are Affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
sc_petitioner	027	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. UNITED STATES v. EMPLOYING PLASTERERS ASSOCIATION OF CHICAGO et al. No. 440. Argued February 3, 1954. Decided March 8, 1954. Charles H. Weston argued the cause for the United States. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Barnes and Marvin E. Frankel. Thomas M. Thomas argued the cause for the Employing Plasterers Association of Chicago, appellee. With him on the brief was Howard Ellis. Perry S. Patterson entered an appearance. Daniel D. Carmell argued the cause and filed a brief for the Journeymen Plasterers’ Protective and Benevolent Society, Local No. 5, et al., appellees. Mb. Justice Black delivered the opinion of the Court. The United States brought this civil action in a Federal District Court charging the defendants (appellees here) with having violated § 1 of the Sherman Act which forbids combinations or conspiracies in restraint of interstate trade or commerce. Holding that the complaint failed to state a cause of action on which relief could be granted under the Act, the District Court dismissed. The case is before us on direct appeal, 15 U. S. C. § 29, and the only question we must decide is whether the District Court’s dismissal was error. We hold it was. In summary the Government’s complaint alleges: Defendants are (1) a Chicago trade association of plastering contractors; (2) a local labor union of plasterers and their apprentices; (3) the union’s president. These contractors and union members employed by them do approximately 60% of the plastering contracting business in the Chicago area of Illinois. Materials used in the plastering, such as gypsum, lath, cement, lime, etc., are furnished by the contractors. Substantial quantities of this material are produced in other states, bought by Illinois building materials dealers and shipped into Illinois, sometimes going directly to the place of business of the dealers and sometimes directly to job sites for use by the plastering contractors under arrangements with the dealers. The practical effect of all this is a continuous and almost uninterrupted flow of plastering materials from out-of-state origins to Illinois job sites for use there by plastering contractors. Restraint or disruption of plastering work in the Chicago area thus necessarily affects this interstate flow of plastering materials adversely. Since 1938 the Chicago defendants have acted in concert to suppress competition among local plastering contractors, to prevent out-of-state contractors from doing any business in the Chicago area and to bar entry of new local contractors without approval by a private examining board set up by the union. The effect of all this has been an unlawful and unreasonable restraint of the flow in interstate commerce of materials used in the Chicago plastering industry. The District Court did not question that the foregoing and other factual allegations showed a combination to restrain competition among Chicago plastering contractors. But the court considered these allegations to be “wholly a charge of local restraint and monopoly,” not reached by the Sherman Act. And the court held that there was no allegation of fact which showed that these powerful local restraints had a sufficiently adverse effect on the flow of plastering materials into Illinois. At this point we disagree. The complaint plainly charged several times that the^ effect of all these local restraints was to restrain interstate commerce. Whether these charges be called “allegations of fact” or “mere conclusions of the pleader,” we hold that they must be taken into account in deciding whether the Government is entitled to have its case tried. We are not impressed by the argument that the Sherman Act could not possibly apply here because the interstate buying, selling and movement of plastering materials had ended before the local restraints became effective. Where interstate commerce ends and local commerce begins is not always easy to decide and is not decisive in Sherman Act cases. See Mandeville Island Farms v. American Crystal Sugar Co., 334 U. S. 219, 232. However this may be, the complaint alleged that continuously since 1938 a local group of people were to a large extent able to dictate who could and who could not buy plastering materials that had to reach Illinois through interstate trade if they reached there at all. Under such circumstances it goes too far to say that the Government could not possibly produce enough evidence to show that these local restraints caused unreasonable burdens on the free and uninterrupted flow of plastering materials into Illinois. That wholly local business restraints can produce the effects condemned by the Sherman Act is no longer open to question. See, e. g., United States v. Women’s Sportswear Manufacturers Assn., 336 U. S. 460, 464. The Government’s complaint may be too long and too detailed in view of the modern practice looking to simplicity and reasonable brevity in pleading. It does not charge too little. It includes every essential to show a violation of the Sherman Act. And where a bona fide complaint is filed that charges every element necessary to recover, summary dismissal of a civil case for failure to set out evidential facts can seldom be justified. If a party needs more facts, it has a right to call for them under Rule 12 (e) of the Federal Rules of Civil Procedure. And any time a claim is frivolous an expensive full dress trial can be avoided by invoking the summary judgment procedure under Rule 56. We hold it was error to dismiss the Government’s complaint for failure to state a cause of action. This leaves the separate contention of the union that it is immune from prosecution for violation of the Sherman Act because of § 20 of the Clayton Act. This contention has no merit under the allegations of the complaint here because they show, if true, that the union and its president have combined with business contractors to suppress competition among them. Allen Bradley Co. v. Local Union No. 3, 325 U. S. 797. Reversed. 26 Stat. 209, as amended by 50 Stat. 693, 15 U. S. C. § 1, so far as here relevant reads: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal . . . .” The complaint here also charged a violation of § 2 of the Sherman Act, but the Government has not pressed that claim here. Cf. Standard Oil Co. v. United States, 337 U. S. 293, 314. 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_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. Bobby Joe CRAIG, Appellant, v. SUN OIL COMPANY OF PENNSYLVANIA, and William R. Claiborne, Appellees. No. 74-1310. United States Court of Appeals, Tenth Circuit. Argued Jan. 20, 1975. Decided April 28, 1975. Ray Painter, Jr., Tulsa, Okl. (Jack R. Givens, and Jones, Givens, Brett, Gotcher, Doyle & Atkins Inc., Tulsa, Okl., with him on the brief), for appellant. Jon A. Baughman, Philadelphia, Pa. (John J. Runzer, Philadelphia, Pa., Robert M. Dubbs, St. Davids, Pa., and John A. Ladner, Tulsa, Okl., with him on the brief), for appellee, Sun Oil Co. of Pennsylvania. Booth & Jay, and Frank R. Hickman, Tulsa, Okl., on the brief for appellee, William R. Claiborne. Before SETH, HOLLOWAY and BARRETT, Circuit Judges. SETH, Circuit Judge. This is a private action under the Sherman Act seeking treble damages against Sun Oil Company of Pennsylvania and William R. Claiborne. The trial court granted motions of the defendants for summary judgment at the conclusion of discovery and after the filing of affidavits by plaintiff in response to the motions. The defendant Claiborne held a distributorship franchise from Sun, and sold tires, batteries, and accessories pursuant thereto from a filling station in Tulsa. The tire sales by Claiborne were at retail to his station customers and at wholesale to other Sun stations and fleet owners. He sold this station to the plaintiff in May 1969, and plaintiff was given a franchise by Sun. Claiborne then began business under a Sun franchise from another location. This suit centers on this sale and subsequent relationships between Sun, plaintiff, and Claiborne. As mentioned, defendant Claiborne, after his sale to plaintiff, began a wholesale tire distributorship from a warehouse in Tulsa. This enterprise was financed for the most part by Sun. It was operated under the same type of contract with Sun as plaintiff had and Claiborne had before. There were in Tulsa and vicinity at least one or two other similar distributorships at all pertinent times. The sale of the Claiborne station to plaintiff involved Sun in that it approved the new franchise to plaintiff for tires, batteries, and accessories, and it also financed for plaintiff equipment and machinery at the station. Part of the sale price was applied on debts which Claiborne owed to Sun, and the part for good will concerned only plaintiff and Claiborne. By February 1970 plaintiff’s business had failed, he was in default on notes to Sun, and Sun began suit, and took possession of the equipment. The essence of plaintiff’s complaint is that Claiborne and Sun conspired to set him up as an additional distributorship for the purpose of making it practical for Sun to finance Claiborne in the new outlet, and that once that purpose was achieved Claiborne and Sun continued to conspire to destroy his business by means of price, credit, and service discrimina-tions in favor of Claiborne. With respect to conspiracy to restrain trade under 15 U.S.C. § 1, the trial court concluded that even if such claim was supported in fact, which it found was not, a conspiracy which does not decrease competition or the number of competitors, or which replaces one distributor with another, is not actionable under the Sherman Act. With respect to attempt or conspiracy to monopolize under 15 U.S.C. § 2, the court concluded the complaint made no allegations supporting a claim thereunder. As to price, service, or credit discrimination under 15 U.S.C. § 13, the court found the only fact situation possibly involving price discrimination was a subsequently corrected mechanical error in a billing; it found that the same services were available to plaintiff and Claiborne alike, but that plaintiff neither accepted nor desired any assistance other than credit; and that discrimination in terms of credit does not as a matter of law violate the Robinson-Patman Act. The allegations of plaintiff relating to the inducements for him to purchase Claiborne’s station are that Claiborne represented that he was “getting entirely out of the tire business,” and that plaintiff believed this and Sun knew about it. The plaintiff then alleges that the defendants used the proceeds of the sale to set up Claiborne at his new place of business to compete with plaintiff. Thus the conspiracy alleged was to induce plaintiff to buy, to use the money to start Claiborne at a new place, and then for defendants to drive plaintiff put of business by price, credit, service, and facilities discrimination. The plaintiff in his complaint does not refer to any monopoly nor to any relevant markets; in fact, neither of the terms appear in the complaint. Two references are made in the complaint to 15 U.S.C. § 2 but are conclusionary only, and were stricken by the trial court. We agree that there are no allegations which can be taken as asserting a violation of 15 U.S.C.A. § 2. The plaintiff is very specific that only a 'cause of action for an antitrust violation has been alleged, and that there is only one conspiracy alleged. We have held that a conspiracy which results merely in the substitution of one distributor for another does not violate 15 U.S.C. § 1. Feddersen Motors, Inc. v. Ward, 180 F.2d 519 (10th Cir.); Shotkin v. General Electric Co., 171 F.2d 236 (10th Cir.). See also, Ace Beer Distributors, Inc. v. Kohn, Inc., 318 F.2d 283 (6th Cir.). An increase in the number of distributors is not actionable under section 1. Claiborne and Sun argue further that any fraudulent misrepresentations by which.they allegedly induced plaintiff’s entry into the market are at best actionable as a business tort. We agree. Plaintiff, however, responds that if such a tort is not acionable under section 1, it is evidence, together with the later discrimination, of the overall conspiracy against him and that in any event conspiracy to restrain trade is a per se violation of section 1. As to the per se violation argument, based on the allegation of a conspiracy to restrain trade, the plaintiff refers to Albert Pick-Barth Co. v. Mitchell Woodbury Corp., 57 F.2d 96 (1st Cir.); the later First Circuit case of Atlantic Heel Co. v. Allied Heel Co., 284 F.2d 879 (1st Cir.); to C. Albert Sauter Co., Inc. v. Richard S. Sauter Co., 368 F.Supp. 501 (E.D.Pa.), and to our decision in Perryton Wholesale, Inc. v. Pioneer Distributing Co. of Kansas, 353 F.2d 618 (10th Cir.). The attorneys at oral argument directed the court’s attention to Whitten v. Paddock Pool Builders, Inc., 508 F.2d 547, First Circuit, No. 74-1169, December 17, 1974, which overruled Albert Pick-Barth and Atlantic Heel. We do not consider Perryton Wholesale, Inc. v. Pioneer Distributing Co. of Kansas, 353 F.2d 618 (10th Cir.), to be applicable to this case, as the court was there concerned with a particular type of business activity which is not present here. Reference is made in the Perryton opinion to existing competition, and it is not necessarily a per se case despite the citation of the First Circuit cases. The complaint, as to the purchase of the business, alleges only a business tort, if anything, as noted above. The subsequent events alleged, and the facts used on the motion for summary judgment, show a series of events which in total amounted to no more than a substitution of distributors. The “in and out” of plaintiff had no impact on the competitive situation, and was not actionable under the antitrust theory of plaintiff’s case. The complaint also contains allegations framed under the Robinson-Patman Act, assertions that the defendant Sun discriminated against plaintiff, as compared to Claiborne, during the relatively short period plaintiff was in business. Both were “distributors” under franchise agreements with Sun. The record shows that defendant Claiborne was engaged in wholesaling tires, sold to him by Sun, from a warehouse. Plaintiff operated the filling station with facilities for retail sales and service of tires, batteries, and accessories, as well as gasoline and oil. Thus tires were only a part of his business. Plaintiff alleges he acquired no Sun service stations as tire customers for wholesale sales which he was franchised to make. The allegations of plaintiff considered in this aspect of the appeal, of course, relate to the “services” and “facilities” provided by Sun, 15 U.S.C. § 13(e), and to price discrimination under 15 U.S.C. § 13(a) to include the granting of credit. It is clear that the allegations of price discrimination are based upon several billing errors made by Sun, but which were corrected. The trial court reached the same conclusion, and it would serve no useful purpose to detail the transactions. Similarly there is also no basis for any assertion of discrimination grounded on the handling of cash discounts, or the annual bonus plan. The trial court concluded that although there may have been a dispute as to the facts relating to the credit terms and conditions arranged by Sun with Claiborne and those with plaintiff, this made no difference because the discrimination in credit terms as alleged could not, as a matter of law, be the basis for a claim under 15 U.S.C. § 13(a) or (e). We agree with this conclusion. It is obvious that differences in the borrower’s financial strength, business experience, and many other factors bring about differences in the terms of credit, security required, guarantees, and other devices used by creditors under these circumstances. See Rea v. Ford Motor Co., 497 F.2d 577 (3d Cir.); Skinner v. United States Steel Corp., 233 F.2d 762 (5th Cir.); and Clausen & Sons, Inc. v. Theo. Hamm Brewing Co., 284 F.Supp. 148 (D.Minn.), reversed on other grounds, 395 F.2d 388 (8th Cir.). We do not say that there could not be a discrimination in credit of such magnitude or nature as to constitute a violation, but no such extreme situation was alleged here by any means. The allegations of the complaint relating to discrimination in the furnishing of facilities are conclusionary only. The record contains nothing which could relate to such an allegation. The allegations concerning the discrimination in the furnishing of services are somewhat more specific. Plaintiff asserts that Sun did not assist him by advice and counseling provided to others to help in soliciting customers, and for other business matters. The deposition of the plaintiff, however, demonstrates that he did not really know what advice or visits were to be expected. What he did expect by way of visits again related to the solicitation of the former customers of the station and his expectations as to competition from Claiborne. There is really no allegation of any specific way in which there was discrimination; there was thus nothing specific that plaintiff asserts was given others that he did not have available to him. Willis Craig, who managed the business for plaintiff for the first month and also during the period before it closed (in fact, for six out of the ten months the business existed), stated that he did not need any such help, that he did not ask for any. He said: “I didn’t need any help. I didn’t need them telling me how to run my business.” It is apparent from the record that the plaintiff was disappointed in the amount of business he had, but there are no allegations of the specific discrimination, and his evidence shows advice was available but was not sought. We agree with the conclusions of the trial court as to this point. The facts were clearly insufficient to establish a prima facie violation of the Robinson-Patman Act. The consequences described in FTC v. Simplicity Pattern Co., 360 U.S. 55, 79 S.Ct. 1005, 3 L.Ed.2d 1079, do not come about as the per se aspects were not brought into being. There were no unresolved questions of fact relevant to the issues when the case is considered strictly as an antitrust action, as plaintiff on appeal asserts that it must be. Disposition by summary judgment under these rather unusual circumstances was proper. The complaint in the final analysis presented questions of law as to several issues, and as to the others, the facts developed left no unresolved questions under the applicable doctrines. See, First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569, and Bushie v. Stenocord Corp., 460 F.2d 116 (9th Cir.). Also there survives no cause of action under state law. Affirmed. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_appel1_7_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 "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). SPEAKER v. KEATING et al. No. 337. Circuit Court of Appeals, Second Circuit. Aug. 7, 1941. Rehearing Denied Sept. 4, 1941. CLARK, Circuit Judge, dissenting. Louis Klatzko, of New York City, for plaintiff-appellee. Bergner & Bergner, of New York City^ (I. Maurice Wormser, Louis Bergner, and Benjamin Poller, all of New York City, of counsel), for defendants-appellants. Before L. HAND, CHASE, and CLARK, Circuit Judges. CHASE, Circuit Judge. The plaintiff, a resident of New Jersey, is a daughter of Katherine Schaefer, a resident of New York, who died intestate August 2, 1939. The defendants are another daughter, a son, the husband of the deceased, and Mrs. Schaefer’s attorney, Adam Christmann, who was made a defendant because he had the custody of certain bonds and mortgages whose ownership is in issue but who had no interest in the controversy and neither filed an answer nor took an appeal. The defendants are all residents of New York and diversity is the basis of federal jurisdiction. In December 1936, Mrs. Schaefer, who was estranged from her husband and had not been living with, or supported by, him for about thirty years wanted to make some disposition of her property which would make certain that he would get none of it. She then consulted defendant Christmann who advised her that under New York law her husband might not surely be entirely cut off by her will. She was also estranged from her daughter Lillian; had already provided for her son, Charles, as adequately as she intended to; and wanted to give the remainder of her property to her daughter Elsie but in such a way that she might have the use of the income so long as she lived. The property she wanted to give to Elsie consisted of seven mortgages securing bonds and Mr. Christmann advised her to assign them to Elsie and to herself as joint tenants. Mrs. Schaefer did execute such assignments on January 26, 1937 and they were all duly recorded on January 26, 1937. The appellee knew, at least as early as December 21, 1936, that her mother intended to make the assignments of the mortgages for on that day she wrote her mother as follows: “I hereby authorize you to collect any and all interest on mortgages which may be held by myself and yourself, as joint tenants and sign for same. I further agree that I shall not make any claim against your estate for any interest that may have been collected by you.” Mrs. Schaefer did collect the interest and did receive the principal of one of the mortgages which was paid. She and Elsie both executed the discharge of that mortgage and Mrs. Schaefer took the money under an arrangement she and Elsie had made in June 1937 that the proceeds of mortgages paid would be re-invested for them jointly though no such use was actually made of these funds. Another of the mortgages was cancelled when the mortgagor deeded the property to Mrs. Schaefer and Elsie as tenants in common though they would then have taken title to the property as joint tenants but for a mistake of the lawyer who drew the deed. Mrs. Schaefer had possession of the mortgages before the assignments above mentioned and her son Charles, who had charge of her affairs generally as her agent, took them to Mr. Christmann who had them while drawing the assignments, and who also had the assignments after they were recorded until he delivered them together with the bonds and mortgages to Charles for Mrs. Schaefer. The trial judge stated in his opinion that “ * * * the witness Christmann held the papers after recording the assignments of mortgages for the benefit of both joint tenants” but there is no express finding to that effect and we find no evidence which would have supported one. The evidence was that the lawyer was employed by and acting for Mrs. Schaefer. After the death of Mrs. Schaefer, all the bonds and mortgages except the two either satisfied by payment or by a deed of the property were delivered by Charles to Christmann who holds them subject to disposition in accordance with the outcome of this litigation. After the death of Mrs. Schaefer, the plaintiff became involved in a dispute with the other heirs as to the ownership of these bonds and mortgages. She claimed them as a surviving joint tenant. They, on the contrary, contended that the deceased had never made a gift of any part of them to the plaintiff which was valid under New York law. It is plain and undisputed that the law of New York controls. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. In general, it is clear that in New York delivery is a condition upon the validity of a gift inter vivos and it has long been held that the requirement applies to a chose in action so as to make delivery of the documents necessary. Young v. Young, 80 N.Y. 422, 36 Am.Rep. 634. See also Beaver v. Beaver, 117 N.Y. 421, 22 N.E. 940, 6 L.R.A. 403, 15 Am. St. Rep. 531. In the Young case the intent of a father to make a gift of certain bonds was so well proved that the court was obviously reluctant to come to the conclusion it did that the gift was invalid for lack of delivery. The same principle has recently been reaffirmed in the Appellate Division, Viggiani v. Favata, 257 App.Div. 346, 13 N.Y.S.2d 353, and we feel compelled to accept it as the law of New York. In the last mentioned case the subject matter of the intended gift was a bond and mortgage which an uncle had had assigned, by one who held for him as his nominee, to his nephew and the assignment was duly recorded. The documents were, however, retained by the uncle until he died and it was held that lack of delivery to the donee made the intended gift invalid. Notwithstanding this, the plaintiff insists that the gift here, being only of an interest in the property as joint tenant, was not subject to the strict rule of delivery applied in the above cases. This argument is twofold. First it is said that there was sufficient delivery in that after the execution and recordation of the assignment the return of the documents to Mrs. Schaefer was delivery to a joint tenant who, under applicable common law theories, held for the plaintiff as well as herself. This but begs the question, however, for we are here dealing not with what would have been the effect of delivery to Mrs. Schaefer after she and the plaintiff actually became joint tenants or with delivery to her by a third party from whom both were acquiring property as joint tenants but with a situation requiring delivery to effectuate a gift necessary to divest Mrs. Schaefer of her absolute ownership which would otherwise remain as before. Until, and unless, Mrs. Schaefer’s absolute ownership was changed in a lawful way she continued to be the owner and the mere return of the documents to her without any delivery to the plaintiff, or to anyone for the plaintiff, was as ineffective to alter the title as to a part as it would have been as to the whole since a diminution of Mrs. Schaefer’s former interest was required as a condition precedent to the creation of a joint tenancy setting up the necessary new interest in the plaintiff. Second, it is argued that cases dealing with joint bank deposits are in point. But there is no analogy since such deposits are held by a third party subject to withdrawal in accordance with the deposit agreement. McElroy v. Albany Savings Bank, 8 App.Div. 46, 40 N.Y.S. 422. So, too, in the case of an insurance policy where the beneficiary does not take delivery of the policy since delivery to the insured is enough to make the insurer’s contract enforceable. Fowler v. Butterly, 78 N.Y. 68, 34 Am.Rep. 507. Despite a natural desire to give effect to the clear intention of the deceased, we find it impossible to hold this assignment valid under New York law. Judgment reversed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
songer_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. CITY OF PHILADELPHIA v. STRAUB. In re HARLEIGH-BROOKWOOD COAL CO.'S ESTATE. No. 7018. Circuit Court of Appeals, Third Circuit. Aug. 9, 1939. John J. Gain and Thomas C. Egan, both of Philadelphia, Pa., for appellant. Alexander N. Rubin and Hirschwald, Goff & Rubin, all of Philadelphia, Pa., and G. Harold Watkins, of Frackville, Pa., for appellee. Before BIGGS, MARIS, and BIDDLE, Circuit Judges. BIDDLE, Circuit Judge. . This appeal involves the construction of a mining lease to determine whether the lessor or the lessee's trustee in bankruptcy is entitled to the equipment, machinery and supplies placed on the mine by the tenant and used in its operation. The referee in bankruptcy found for the trustee, and the lower court sustained the Referee. ' The lessor appealed. Nearly a month after the adjudication in bankruptcy the lessor served a notice of forfeiture on the bankrupt in accordance with a provision of the lease; and thereafter filed a reclamation petition asserting title to the property. At the time of the bankruptcy the tenant owed four months’ rent, but no notice of forfeiture had then been given. The question is, therefore, who had title to this property immediately before the bankruptcy. To the extent that this is governed by the intention of the parties we must look to the lease for its expression. Article XXII alone expresses any intention, and sets forth what shall happen when the lease expires, and when it is forfeited. Forfeiture is covered by Article XXV, and results where the lessee’s default has continued for sixty days after service of notice. Before the bankruptcy, therefore, neither expiration nor forfeiture had occurred, and Article XXII is not applicable, except as its language throws light on the parties’ intention as to title before expiration or forfeiture. It provides that at expiration the property shall be appraised, at the lessor’s option, and he is allowed to “retain” it at the appraised valuation. “Retain” hints that the lessor keeps what is his; but in effect the transaction is a purchase by the lessor from the lessee. If lessor does not exercise this option lessee may remove the improvements. If there is a forfeiture the lessee is not. entitled to an appraisal of the improvements, which “shall be taken to be the absolute property of the lessor.” From these words there is some indication that it was intended that the lessor’s title arose from the forfeiture, and therefore did not exist before. The older criteria of annexation to the real estate, or whether the improvements are necessary for the operation of the leased premises, have given way to the modern rule usually expressed by saying that the intention of the parties as to whether the property shall be treated as real estate, and therefore as belonging to the landlord, or as personal property, and so the tenant’s, shall govern. The change doubtless came from the difficulty in determining when attachments to the land became a part of it. Ultimately such a rule must mean intention as to title, not as to the nature of the property, if the intention of the parties, and not a somewhat metaphysical classification, is to control. Parties usually do not speculate as to whether improvements are realty or personalty, but do consider who owns them. For the modern test therefore the provisions of leases often afford little help, and intention is constructed by the courts from reasoning more adapted to the older conception. In the case of Wick v. Bredin, 189 Pa. 83, 42 A. 17, a lease for coal lands contained a clause allowing the lessee to abandon the lands and remove the improvements. A creditor of the lessee levied on them. The lessor declared a forfeiture, under a forfeiture clause similar to that before us, by reason of nonpayment of rent, and claimed the property as part of his real estate. The court held that the provision allowing the lessee to remove showed an intention to treat the property as personalty; that this intention governed; that the property was therefore the lessee’s.; and that a forfeiture under the clause in the lease of the lessee’s property to the lessor was “odious” and would not be enforced. Wick v. Bredin, supra, is perhaps distinguishable — the lessee’s rights there were broader. But it presents substantially the same situation as here, and its authority is applicable. Here too the forfeiture bears no relation to any liquidated damages, and as a penalty will not be enforced. Penn-Ohio Gas Company v. Frank’s Heirs et al., 322 Pa. 233, 185 A. 280; Whiteside v. Rocky Mountain Fuel Co., 10 Cir., 101 F.2d 765. The cases cited by appellant do not deal with forfeiture of the property but forfeiture of the lease, upon a breach by lessee, an enforceable clause. And in Re American Fork Exploration Co., 8 Cir., 291 F. 746, there was no forfeiture of property, which, under the express provisions of the lease, the lessee had no right to remove, and which went to the lessor at the end of the term. Appellant says the trustee should not have the property without paying the rent. But the rent claimed is for a period prior to bankruptcy, there is no claim for use and occupancy; and no theory of equitable lien can be extracted from the language of the lease. In the Rocky Mountain Fuel Co. case, supra, such a lien was expressly provided, and was held enforceable under • Colorado law. We need not consider therefore whether, if found in this lease, it would be enforceable under the' law of Pennsylvania, although the lessor had taken no steps to perfect it before bankruptcy. Judgment affirmed. Sproul v. Help Yourself Store Co., 3 Cir., 16 F.2d 554; Empress Theatre Co. v. Horton, 8 Cir., 266 F. 657; Lindeke v. Associates Realty Co., 8 Cir., 146 F. 630; Potter v. Gilbert, 177 Pa. 159, 35 A. 597, 35 L.R.A. 580. In the last case the landlord, on forfeiture of the lease, was allowed to keep the improvements at their appraised value — obviously not a forfeiture of the property. 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_weightev	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Arnold S. WELLMAN, et al., Plaintiffs-Appellees, v. Fairleigh S. DICKINSON, Jr., Defendant-Appellant. Nos. 39, 40, Dockets 80-6213, 80-6357. United States Court of Appeals, Second Circuit. Argued Dec. 9, 1981. Decided June 24, 1982. S. Lee Terry, Jr., Washington, D. C. (Jacob H. Stillman, Associate Gen. Counsel, Elisse B. Walter, Asst. Gen. Counsel, Ruth S. Epstein, Paul Gonson, Sol., Washington, D. C., of counsel), for appellee S. E. C. Paul M. Bernstein and Kreindler & Kreindler, New York City, Lead Counsel for Stockholder Class and Liaison Counsel (Kaufman, Taylor & Kimmel, New York City, Co-Lead Counsel for Stockholder Class, Harvey Greenfield, New York City, Co-Counsel for Class Plaintiff Wellman, Pomerantz, Levy, Haudek & Block, New York City, Lead Counsel for debenture holder Class, Philips & Mushkin, P. C., New York City, Counsel for class plaintiff Polne, Rabin & Silverman, New York City, Counsel for class plaintiff Pupko, of counsel on the brief), for class plaintiffs and cross-appellants. Sheldon Elsen, New York City (Orans, Elsen, Polstein & Naftalis, Leslie A. Lup-pert, Paul E. Summit, New York City, of counsel), for defendant-appellant. Before LUMBARD, MOORE and VAN GRAAFEILAND, Circuit Judges. LEONARD P. MOORE, Circuit Judge: This appeal arises from seven separate actions brought against defendant-appellant, Fairleigh S. Dickinson, Jr., and eleven other defendants, for alleged violations of the federal securities laws, New Jersey state law, and the rules of the New York Stock Exchange. These seven actions include an enforcement action brought by the Securities and Exchange Commission (“SEC”), a private action filed by Becton, Dickinson & Company (“Becton”) and certain of its officers, and five class actions brought on behalf of certain Becton shareholders. All seven actions stem from the acquisition by Sun Company, Inc. of approximately 34% of the outstanding stock of Becton, a New Jersey corporation engaged in the manufacture of health care products and medical testing and research equipment. The actions were consolidated for a bench trial before the Honorable Robert L. Carter, District Judge of the Southern District of New York. By agreement of the parties, the consolidated trial was bifurcated on the issues of liability and damages. On the issue of liability, Judge Carter held, inter alia, that Dickinson, in an effort to induce a third-party takeover or partial takeover of Becton, had violated Section 13(d) of the Securities Exchange Act of 1934, 15 U.S.C. § 78m(d) (1976), when he joined a group to sell more than 5% of the company’s common stock without making the requisite filings with the SEC, Becton, and the exchange on which the securities were traded. Wellman v. Dickinson, 475 F.Supp. 783, 837 (S.D.N.Y.1979). Before the trial on damages commenced, the SEC withdrew its request for relief from Dickinson other than a judicial declaration that Dickinson had violated Section 13(d). Accordingly, by order entered on February 19, 1980, Judge Carter adhered to the court’s findings concerning Dickinson’s liability and, with the SEC’s consent, terminated with prejudice its enforcement action against Dickinson. On July 31, 1980, Judge Carter issued a final opinion addressing, inter alia, the class plaintiffs’ claims for damages or disgorgement of profits against Dickinson and other members of the group found to have violated Section 13(d). Wellman v. Dickinson, 497 F.Supp. 824, 834-36 (S.D.N.Y.1980). Judge Carter held that these plaintiffs had no right to monetary relief against Dickinson for a number of reasons, including their failure to demonstrate that the Section 13(d) violations directly caused any injury to the class. Thus, the district court entered a final judgment on September 29, 1980, denying the class plaintiffs’ claims for disgorgement and other monetary relief against Dickinson for his violation of Section 13(d). Dickinson appeals from this final judgment and all prior orders in this case finding that he violated Section 13(d) of the Securities Exchange Act of 1934. Dickinson contends that plaintiffs have failed to prove either that the purported members of the Section 13(d) group had beneficial ownership of sufficient Becton stock to form a group with him, or that he had entered an agreement with anyone to dispose of Bec-ton stock either directly or indirectly through agents. The class plaintiffs cross-appeal from those portions of the September 29, 1980 judgment denying their claims for disgorgement and other monetary relief against Dickinson and from the dismissal of their claims for breach of fiduciary duty against Dickinson. On appeal, the class plaintiffs renew their argument that Dickinson breached his fiduciary duty to the shareholders of Becton, and that he must disgorge a portion of the profits he obtained as a result of his actions in violation of Section 13(d) and in breach of his fiduciary duty. We reject the claims raised by both parties, and hold that Judge Carter did not err in finding that Dickinson violated Section 13(d) of the Securities Exchange Act of 1934 and in denying the claims of the class plaintiffs for damages or disgorgement from Dickinson. For the reasons set forth below, we affirm the district court’s judgment and orders in all respects. “The prior findings and order of this Court shall remain in effect as to Dickinson and [the SEC’s enforcement action] as to Dickinson is otherwise terminated with prejudice.” FACTS Since the facts underlying this appeal are described in detail in the two opinions of the district court, Wellman v. Dickinson, 497 F.Supp. 824 (S.D.N.Y.1980); Wellman v. Dickinson, 475 F.Supp. 783 (S.D.N.Y.1979), we shall only summarize them briefly- As Judge Carter observed: “The background and governing facts in this complex drama embrace personality conflicts, animosity, distrust, and corporate politics, as well as a display of ingenuity and sophistication by brokers, investment bankers and corporate counsel”. Wellman v. Dickinson, supra, 475 F.Supp. at 797-98. One of the principal personalities was Fairleigh S. Dickinson, Jr., the son of a founder of Becton and a major stockholder of the company. He individually held 802,-138 shares of Becton stock (4.2% of the outstanding shares). In addition, Dickinson held 140,794 shares (.64%) as a co-trustee and at least 198,922 shares (1%) as a member of the Dickinson family. Dickinson personally managed Becton for over twenty-five years. In 1974, Dickinson relinquished his management responsibilities and became Chairman of the Board. In late 1976, however, differences between the new management and Dickinson emerged. On April 20, 1977, after a bitter internal power struggle over the course of several months, the new management team prevailed, and the board of directors voted to remove Dickinson as its chairman. The day following his removal as chairman, Dickinson met with representatives of Salomon Brothers (“Salomon”), a New York limited partnership engaged in the investment banking and brokerage business, to obtain advice on how to regain control of Becton. In attendance were Jerome Lipper, who was Dickinson’s attorney, Kenneth Lipper, brother of Jerome Lipper and a partner of Salomon, Richard Rosen-thal and John Gutfreund of Salomon, Martin Lipton, who was Salomon’s attorney, and two directors of Becton who were sympathetic to Dickinson. These men discussed several possible strategies. Dickinson ultimately agreed to a plan to vote with outside directors as a means of bringing pressure on Becton’s management and selling a block of the company’s shares, including his own, to a corporation interested in taking over Becton. Dickinson hired Salomon to assist him in locating a corporation that would be interested in purchasing his substantial holdings in Becton and those of his friends as the springboard for a complete or partial takeover of the company. Dickinson’s friends included Dr. J. H. Fitzgerald Dunning, a director of Becton, who personally owned 3,200 shares and served as one of two co-trustees for one of three family trusts which held 344,849 shares (1.8%). Each of his two brothers served as a co-trustee for one of the other two trusts, and Dunning’s personal lawyer served as the other trustee for all three trusts. Shortly thereafter, Salomon was also contacted by Dan W. Lufkin who was concerned about his investment in Becton stock in light of Dickinson’s removal from the company’s chairmanship. Lufkin was a member of a partnership together with Edward L. Scarff which owned 93,000 shares of Becton stock. The partnership and three other individuals, Richard Drake, Charles Willock, and Robert Smith, were the principals of a kidney dialysis company acquired by Becton in 1977. As a result of that transaction, the partnership received 93,000 shares of Becton stock, Willock received 46,248 shares, and the two other men each received 140,148 shares (total 2.2%). After the acquisition of the dialysis company, Drake, Willock, and Smith continued to rely heavily on Lufkin’s partnership for investment advice. Dickinson subsequently contacted Robert Zeller, chief executive officer of F. Eber-stadt & Company, Inc. (“Eberstadt”), a Delaware corporation engaged in investment banking, institutional stock brokerage, and the management of pension funds and advisory accounts. Eberstadt had acted for many years as Becton’s investment banker. Zeller had also advised Dickinson on the handling of some of his personal affairs. Moreover, an Eberstadt subsidiary, F. Eber-stadt & Company Managers & Distributors Inc. (“Eberstadt M & D”), served as investment advisor to two mutual funds (the “Funds”), the Chemical Fund and the Surveyor Fund, which along with a number of Eberstadt-managed discretionary brokerage accounts held 496,075 shares of Becton stock (2.6%). Dickinson informed Zeller that he was asking Salomon to involve Eberstadt in the effort to encourage a corporation to undertake a complete or partial takeover of Becton. Initially, Dickinson and Salomon and Zeller entered into merely an oral understanding. However, after Becton’s counsel threatened to sue if Dickinson continued to seek a buyer for a large percentage of Becton stock, Martin Lipton, Salo-mon’s attorney, advised Salomon to obtain written indemnification from Dickinson. By letter dated October 12, 1977, Dickinson confirmed his engagement of Salomon and agreed to indemnify the firm against all claims arising out of its representation of Dickinson in securing a buyer for his stock. Beginning in the spring of 1977, Salomon and Eberstadt worked earnestly to interest a major corporation in acquiring a minority interest or in effecting a complete takeover of Becton. During the next eight months, Salomon and Eberstadt arranged meetings with several major corporations, including Avon, American Home Products Corp., and Squibb Corp., in an effort to induce these companies to acquire shares in Becton. Dickinson himself participated in these activities until late December, when he was hospitalized for approximately one month. The presentations by Salomon and Eber-stadt to the corporations potentially interested in purchasing Becton stock were virtually identical. A representative from one of the two brokerage houses would inform the corporation that Salomon and Eberstadt were representing Dickinson. They would then describe Dickinson’s animosity toward Becton’s management and his desire to dispose of his stock in the company. They would also disclose that other stockholders shared Dickinson’s ill feelings and were interested in selling their shares. In each case, the corporation was advised that Dickinson’s stock and a block of stock that the brokerage houses represented were available if the corporation was interested in a takeover of Becton. This block of shares included those beneficially owned by the Eberstadt-managed funds and by Dickinson’s friends, Dunning and Lufkin. The representative would then outline a takeover plan, placing special emphasis on the number and availability of the shares controlled by Dickinson, the Funds, Dunning, and Lufkin’s partnership. They asserted that Dickinson and his family held approximately 1,200,000 shares and that the remaining three members of the group held approximately 1,300,000 shares. Although a portion of these shares were held in trust, the representative assured the potential purchaser that the approximately 2,500,000 shares (13%) were readily available. Moreover, the corporation was usually told that the group’s shares of Becton stock would provide a sufficient base from which to launch a more extensive acquisition program for additional shares and a complete takeover of the company. The labors of the two brokerage houses eventually bore fruit when Sun Company, Inc. (“Sun”), a Pennsylvania corporation whose principal business involves oil and gas, entered the picture. On November 28, 1977, Kenneth Lipper of Salomon approached Horace Kephart, a senior vice president of Sun in charge of the company’s corporate development and diversification program, and suggested that Sun might want to consider Becton as a possible acquisition. Lipper informed Kephart that 15% of Becton’s stock was available and that this initial block included 1,200,000 shares owned by Dickinson, 300-400,000 shares owned by Dunning, 400,000 shares owned by Lufkin, and 500,000 shares owned by the Chemical Fund, one of the Eberstadt-man-aged mutual funds. Lipper also advised Kephart that Sun would be able to acquire quickly an additional 10-20% of Becton stock. Kephart was aware of the rift between Dickinson and Becton’s management and learned of Becton’s public announcement in June of its desire to remain independent. At a meeting of Sun’s senior executives held in early December, Kephart mentioned Becton as a possible acquisition opportunity. A study of Becton and the health care industry in general was undertaken to determine the desirability of an investment in the company. After reviewing the results of this in-house study, Sun’s senior executives decided that the possibility of acquiring Becton should be explored more fully. Accordingly, a number of meetings were held between Dickinson’s and Sun’s representatives in late December 1977 and early January 1978 to discuss alternative strategies for acquiring Becton. Kephart was given a list of available holdings, including those of Dickinson, Dunning, and Lufkin. Kephart was already aware that a large percentage of Becton’s shares was held by institutions, and he was assured that the 500,000 shares of Becton stock held by the Funds and the Eberstadt-managed discretionary accounts were readily available to Sun. Four possible strategies were considered: (1) to seek shares sequentially, first from individuals, then from institutions; (2) to seek shares simultaneously from these two groups; (3) to tender immediately; and (4) to contact management directly. The consensus was that simultaneous purchases from large individual and institutional shareholders, undertaken with as much secrecy as possible, would be the best strategy. Sun would purchase the block held by Dickinson, Dunning, Lufkin and the Funds, and then would conduct a limited solicitation of Becton’s institutional holders to reach its target of acquiring 34% of the outstanding shares. This strategy would enable the acquisition to be carried out quickly and would permit Sun to acquire physical possession of the shares in the shortest possible time. Presentations made to Sun’s board of directors on January 5 indicated that a 15% block of the Becton’s shares held by four non-management persons were available and additional shares representing 10-20% of the outstanding stock could be readily acquired. Sun executives understood that the block of shares in question belonged to Dickinson, the Funds, Dunning, and Lufkin. On January 11, recommendations concerning an acquisition strategy were presented to Sun’s senior officials. On January 13, Sun’s Executive Committee approved the strategy of limited solicitation of large individual and institutional shareholders and authorized the purchase of approximately 34% of Becton’s outstanding shares, provided that the total expenditure not exceed $350 million. The transaction was contingent, however, upon Sun’s obtaining at least 25% (subsequently lowered to 20%) of the outstanding shares of Becton stock. Sun further agreed to a $700,000 fee to be divided equally between Eberstadt and Salomon, plus indemnification for all their out-of-pocket expenses, including attorneys’ fees, due and payable upon the acquisition of 20% of the shares. The offer proposed a two tier price structure — a higher price of $45 per share with no recourse and a lower figure of $40 per share with a right to receive the highest price paid to any subsequent solicitee. To complete the first step in effecting the acquisition, on January 14,1978, Lipper and Zeller went to Dickinson’s hospital room and formally presented Sun’s proposal to him. Lipper’s brother, Jerome Lipper, was also present. Dickinson was told that the matter must be kept confidential and that Sun was the purchaser. After the price options were outlined, Dickinson indicated that he was ready to accept the $45 price but only on the condition that the proposal would be presented to Dunning as well. After guaranteeing Dunning’s discretion, Dickinson called Dunning in Baltimore and informed him that Salomon and Eberstadt had presented him with an attractive proposal for the sale of his Becton stock and that he was conditioning his acceptance on the extension of the same offer to Dunning. Dickinson arranged for Dunning to meet with Zeller and Lipper in Baltimore on the following day. Kenneth Lipper then made the same offer given to Dickinson to Dickinson’s daughter, Ann Dickinson Turner, who was visiting her father in the hospital. At the request of Jerome Lipper, Turner-subsequently delivered her shares and those sold by her father to Sun in New York. On January 15, Kenneth Lipper and Zel-ler met with Dunning in Baltimore and extended to him the same offer that they presented to Dickinson. Dunning responded favorably to the proposal and promised to advise them after he conferred with his two brothers and their co-trustee. Sun later purchased about 110,000 shares from each of the three Dunning trusts, for a total of 329,849 shares (1.7%). On January 16, Kenneth Lipper and another representative of Salomon, met with Lufkin and made him the same offer extended to both Dickinson and Dunning. Although the identity of the purchaser was not disclosed, he was told that Dickinson favored the transaction and that the purchaser was an appropriate company. Luf-kin soon learned, however, that Sun was the purchaser. Lufkin indicated that he preferred the $45 price and was confident that he could commit the 93,000 shares of Becton stock that he and his partner, Edward L. Scarff, received after Becton acquired the partnership’s interest in a kidney dialysis company. Moreover, Lufkin stated that while he “could not speak for” Richard Drake, Charles Willock, and Robert Smith, the other three principals of the dialysis company who received Becton stock as a result of the takeover, he expected that they would tender their shares. Lufkin immediately telephoned Scarff, who promptly agreed that the partnership shares should be sold at the $45 price. In addition, Scarff promised to contact Richard Drake, Charles Willock, and Robert Smith, and inform them that they had the opportunity to sell their Becton stock at $45 per share to Sun. On January 17, Scarff collected the shares of the three other individuals, receiving their signatures on purchase agreement contracts and on their voting proxies. Scarff then flew to New York to deliver these shares, those of the partnership, and the executed contracts to Sun. Eberstadt M & D was also offered the same proposal extended to Dickinson, Dunning, and Lufkin. On January 16, a representative of Eberstadt M & D recommended the $45 price to the director of the Funds and of the Eberstadt-managed discretionary accounts. Both groups of directors accepted this offer. With the favorable response from Dickinson, Dunning, Lufkin, and the Funds, the time was ripe for Sun to commence the second stage of its plan for acquiring 34% of the outstanding stock of Becton. At 4:00 P.M. on January 16, the Sun solicitation team met in the trading room at Salomon’s New York offices and began telephone solicitations of additional tenders from institutional investors holding large blocks of Becton stock. The team worked in pairs of one caller and one lawyer, who monitored the caller’s side of the conversation. The caller solicited offers to sell Becton stock to an anonymous purchaser from at least 20 individuals representing 30 institutions, offering the same two-tier price structure as was extended to Dickinson, Dunning, Luf-kin, and Eberstadt M & D. Each solicitee was told that a non-disclosed purchaser was looking for 20% of Becton’s stock; that no transaction would be final unless 20% of the shares were acquired; that the $40 option could be accepted without fear of losing the opportunity to obtain a higher price in the event shares were later bought at a higher figure; and that the purchases necessary to reach the desired 20% goal were rapidly being made and that a hurried response was therefore essential. Each solicitee was asked to respond within one hour or less, although some were allowed to wait until the next day. Sun was identified as the purchaser to a few institutions, but in most cases, the purchaser’s specific identity was not revealed. By 5:35 P.M., Kephart of Sun was advised that verbal commitments reached 20%, and Kephart was given authorization to seal the bargain with the institutions that had agreed to tender their shares. The closing price on the New York Stock Exchange for Becton shares on January 16 was $32% per share. Thus, Sun paid a premium of $12% per share over market price to those stockholders which accepted the $45 option. Before the end of the evening, Sun officials had realized their objective of obtaining at least 34% of Becton’s outstanding shares. On January 17 and 18, couriers were dispatched throughout the country to pay for the stock, to obtain signatures or collect prepared purchase agreements, to take physical possession of the stock certificates, and to have solicitees sign powers of attorney to allow Sun to vote their proxies. On January 17, Salomon representatives contacted officials of the New York Stock Exchange and convinced them to halt trading in Becton stock on the ground that an unidentified client would be filing a statement pursuant to Section 13(d) filing two days later, on January 19. Dickinson and Turner, his daughter, also filed separate Section 13(d) statements on January 19. On January 24, the day after the trading ban on Becton stock was finally lifted, the Dunning trusts filed Schedule 13(d) statements. Sun’s lightning strike triggered litigation starting on January 23, 1978. In his first opinion, Judge Carter ruled that Sun had made a tender offer without the requisite filings in violation of Section 14(d), 15 U.S.C. § 78n(d) (1976). Sun agreed to divest itself of its stake in Becton by issuing debentures of 10-25 years maturity which will be exchanged or redeemed for Sun’s Becton shares. This agreement, along with the settlement of various class action claims, was approved by Judge Carter on July 31,1980, and upheld by this court in an unpublished order, Wellman v. Dickinson, 647 F.2d 163 (2d Cir. 1981). Sun’s liability under Section 14(d) is not at issue in this appeal. DISCUSSION Section 13(d) of the Securities Exchange Act of 1934 requires a group that has acquired, directly or indirectly, beneficial ownership of more than 5% of a class of a registered equity security, to file a statement with the SEC, disclosing, inter alia, the identity of its members and the purpose of its acquisition. The central question on appeal is whether the district court erred in finding that Dickinson joined a group holding beneficial ownership of approximately 13% of the outstanding shares of Becton, and in finding that the members of this group agreed to dispose of the Becton stock under their control but failed to disclose this fact pursuant to Section 13(d). A group, under Section 13(d)(3), 15 U.S.C. § 78m(d)(3) (1976), is defined as an aggregation of persons or entities who “act... for the purpose of acquiring, holding or disposing of securities.... ” The statute contains no requirement, however, that the members be committed to acquisition, holding, or disposition on any specific set of terms. Instead, the touchstone of a group within the meaning of Section 13(d) is that the members combined in furtherance of a common objective. Bath Industries, Inc. v. Blot, 427 F.2d 97, 111 (7th Cir. 1970). See also Corenco Corp. v. Schiavone & Sons, Inc., 488 F.2d 207, 217 (2d Cir. 1973); Texasgulf Inc., v. Canada Development Corp., 366 F.Supp. 374, 403 (S.D.Tex.1973). Of course, the concerted action of the group’s members need not be expressly memorialized in writing. Securities and Exchange Commission v. Savoy Indus., Inc., 587 F.2d 1149, 1163 (D.C.Cir.1978), cert. denied, 440 U.S. 913, 99 S.Ct. 1227, 59 L.Ed.2d 462 (1979). Dickinson contends that plaintiffs have not demonstrated that he entered into a formal or informal agreement with any other person to dispose of his Becton stock, or that the purported members of the Section 13(d) group had beneficial ownership of sufficient Becton stock to form a Section 13(d) group with him. In evaluating Dickinson’s contentions, we must sift through the record to determine whether there is sufficient direct or circumstantial evidence to support the inference of a formal or informal understanding between Dickinson and others holding beneficial ownership of more than 5% of Becton stock for the purpose of disposing of the shares under their control. See id. The evidence in this ease supports the district court’s determination that as part of an effort to effectuate a shift in the corporate control of Becton, Dickinson and others holding beneficial ownership of approximately 13% of the company’s outstanding stock, reached an understanding to act in concert in disposing of their shares, but failed to disclose this fact as required by Section 13(d). Ample evidence supports the district court’s finding that Dickinson, Eberstadt, Eberstadt M & D, Lufkin, and Dunning “were all part of a group formed to dispose of their shares to aid a third party acquisition of a controlling interest in [Becton].” Wellman v. Dickinson, supra, 475 F.Supp. at 830. In reaching its conclusion that an express or implied understanding existed between the group members, the district court relied to a great extent on the representations made by Dickinson and his representatives from Salomon and Eberstadt to potential purchasers concerning the availability of the shares controlled by Dickinson, Dunning, Lufkin, Eberstadt, and Eberstadt M & D. One vivid example of testimony concerning the assurances made by Dickinson’s representatives to potential purchasers is that of William LaPorte, chairman of the board of directors of American Home Products Corporation, one of the companies approached with the Becton takeover proposal. LaPorte testified at trial that Kenneth Lipper of Salomon called to inform him that Dickinson was seeking a company interested in merging with Becton and that 16-17% of the outstanding shares were readily available for sale. Specifically, Lip-per indicated, according to LaPorte, that Eberstadt controlled 500,000 shares of Bec-ton and that the shares controlled by Dickinson and Dunning were available and would “go with [the] deal”. John Whitehead, an investment banker for Monsanto Company, another corporation offered the Becton takeover proposal, also testified that Dickinson and his representatives provided assurances concerning the availability of outstanding shares of Becton. Whitehead testified at trial that he was asked “whether Monsanto was interested in buying around 3,000,000 shares [of Becton]” and that the 3,000,000 figure was composed in part of 1,200,000 shares controlled by Dickinson and his family and 1,300,000 shares controlled by Dickinson’s friends and associates. Moreover, Whitehead testified that Dunning was named as a principal owner of the latter group of shares. Dickinson contends that the representations made by him and his representatives to potential purchasers are not probative of an understanding among the group members because the statements were simply “predictions” as to which Becton shareholders would sell. We reject Dickinson’s claim and conclude that, in light of all the facts, the district court could reasonably infer from the evidence that assurances, not mere predictions, were made by the group. See Securities and Exchange Commission v. Parklane Hosiery Co., Inc., 558 F.2d 1083, 1086 (2d Cir. 1977). Additional direct and circumstantial evidence supports the district court’s finding of an agreement between Dickinson, Eberstadt, Eberstadt M & D, Dunning, and Lufkin. The record clearly demonstrates that Dickinson aggregated his family’s holdings of 1,200,000-1,300,000 shares of Becton stock and contacted Eberstadt and Salomon for the purpose of finding a corporation acceptable to him that would be interested in buying his substantial Becton holdings.Dickinson solicited Eberstadt to assist in his search for a buyer, aware that the Eberstadt-controlled discretionary accounts held 52,175 of Becton stock (.27%) and that the Funds managed by Eberstadt M & D held 443,200 shares (2.33%). It is conclusively established that Eber-stadt agreed to join Dickinson’s effort to interest a corporate purchaser in a takeover or partial takeover of Becton. Executives of Eberstadt were apprised that the brokerage house’s fee of $350,000 was contingent on its successful delivery of 20% of the Becton stock to Sun. In an effort to reach this goal, representations concerning the number of group shares attributable to Eberstadt and Eberstadt M & D repeatedly included the discretionary account shares. Moreover, actions taken in connection with Sun negotiations indicate that prior to the receipt of Sun’s offer, a determination had already been made to sell the shares held by the discretionary accounts as part of the total shares of the group. With respect to Eberstadt M & D, substantial evidence supports the district court’s finding that it also committed itself to the endeavor of effectuating a shift in the corporate control of Becton. Robert Zeller served as both chief executive officer of Eberstadt and vice-chairman of Eberstadt M & D. Moreover, Eberstadt owned 75% of Eberstadt M & D. Dickinson contends that this finding is erroneous because the court refused to credit the testimony of executives of Sun who stated that Zeller of Eberstadt had disclaimed authority to direct the disposition of shares held by the Funds and that the executives had believed these disclaimers. The court properly discredited this testimony in light of the fact that the notes of these executives taken during their meetings with Dickinson’s representatives reflect the executives’ understanding that the Funds’ shares managed by Eberstadt M & D were available for purchase. Moreover, the individuals who met with Zeller and Lipper, despite Zeller’s silence or disclaimer, departed from the meeting convinced that the shares held by the Funds were available with those of Dickinson, Dunning, and Lufkin. “Indeed, Lipper would tell the prospective acquisition clients that Chemical Fund was the bellweather of the institutions holding large blocks of [Becton] stock and that it would sell for the right price, implying that the others would follow suit. Zeller would agree to this statement.” Wellman v. Dickinson, supra, 475 F.Supp. at 828. The evidence also supports the inference drawn by the district court that from the beginning, Dunning was a member of the undisclosed group formed to dispose of its shares of Becton. Dickinson kept Dunning abreast of any progress made in the search for a corporation interested in taking over Becton. Moreover, Dunning’s name was mentioned as one of the prospective sellers of Becton stock to nearly every company solicited by Dickinson’s representatives. In addition, when Lipper and Zeller formally presented Sun’s offer to Dickinson in his hospital room on January 14, Dickinson said that he would be interested only if the same offer were extended to Dunning. Dickinson contacted Dunning from his hospital room and arranged for Zeller and Lipper to meet with Dunning on the following day. Finally, the evidence as to Lufkin’s participation with Dickinson supports the conclusion that Lufkin was a full participant in the search for a purchaser to take over Becton. On November 10,1977, Lufkin met with Dickinson, Kenneth Lipper of Salo-mon, and Jerome Lipper. Lufkin, according to Dickinson, informed them that “he represented a stock holding in [Becton] that grew out of the acquisition by [Becton] of a company on the West Coast”, and that he was concerned over the recent internal difficulties at Becton. Lufkin stated that he was “very much in [Dickinson’s] corner”. Thereafter, Dickinson’s representatives always included the approximately 400,000 shares held by the Lufkin partnership and Drake, Willock, and Smith among those who could be counted on as willing sellers. In addition, like Dickinson, his daughter, Dunning, and Eberstadt, the Lufkin partnership and the three other individuals received their offers prior to the extension of formal offers to other solicitees, and Lufkin appears to have been told the identity of the purchaser. Dickinson, Dunning, Eberstadt, Eberstadt M & D, and Lufkin were linked by a desire to profit from a shift in the corporate control of Becton. The evidence clearly supports the district court’s finding that in an effort to achieve their common objective, Dickinson, Eberstadt, Dunning, Eberstadt M & D and Lufkin formed a group to dispose of the Becton shares under their control. Dickinson also contends that the district court erred in finding that Eberstadt, Eber-stadt M & D, Dunning and Lufkin held beneficial ownership of sufficient Becton stock to form a Section 13(d) group with him because they possessed “the power to commit [Becton] shares to the group purpose of effectuating a shift in corporate control”. Wellman v. Dickinson, supra, 475 F.Supp. at 829 (emphasis supplied). Dickinson contends that control over present voting power should be the sole determinant of beneficial ownership and that the power to dispose of stock is not a relevant consideration. We reject Dickinson’s argument. Although voting control is alone sufficient to support a finding of beneficial ownership, it need not be the only indicium. See Rule 13d-3,17 C.F.R. 240.13d-3 (1981). A rule that beneficial ownership can be established only by proof of voting control would exclude from the coverage of Section 13(d) a range of conduct that Congress clearly intended should be covered. Section 13(d) was designed to alert investors in securities markets to potential changes in corporate control and to provide them with an opportunity to evaluate the effect of these potential changes. GAF Corp. v. Milstein, 453 F.2d 709, 717 (2d Cir. 1971), cert. denied, 406 U.S. 910, 92 S.Ct. 1610, 31 L.Ed.2d 821 (197 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_numappel	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. CONTINENTAL INS. CO. OF CITY OF NEW YORK v. FIRE ASS’N OF PHILADELPHIA. No. 10016. Circuit Court of Appeals, Sixth Circuit Nov. 26, 1945. Paul H. Heineke, of Chicago, 111. (Thompson, Hiñe, & Flory and Thomas E. Lipscomb, all of Cleveland, Ohio, and Paul H. Heineke, of Chicago, 111., on the brief), for appellant. James V. Suhr, of Cleveland, Ohio (Kitchen & Messner, F. A. Messner, and James V. Suhr, all of Cleveland, Ohio, on the brief), for appellee. Before SIMONS and ALLEN, Circuit Judges, and RAYMOND, District Judge. RAYMOND, District Judge. This is an appeal from an order of the United States District Court for the Northern District of Ohio granting defendant’s motion to dismiss the complaint upon the grounds that it fails to state a claim against the defendant upon which the relief prayed could be granted. The complaint, which, for the purposes of the motion, must be accepted as true, alleges in substance that prior to December 23, 1941, the Rotor Tool Company (hereinafter referred to as “Rotor”) delivered to the Wellman Bronze and Aluminum Company (hereinafter referred to as “Wellman”) certain patterns and core boxes, to be used by Wellman in the manufacture of merchandise for Rotor; that on April 15, 1941, plaintiff issued to Rotor an insurance policy insuring it against loss by fire on patterns, drawings, jigs and dies, their own, or for which they are liable, all while located within the United States or Canada, but excluding their main place of business in Cleveland, Ohio. The policy contained the provision that if any specific property included in the terms of the policy be insured otherwise, “this policy shall not extend to cover the same excepting only as far as refers to any excess of value beyond the amount of such specific insurance or insurances, and shall not be liable for any loss unless the amount of such loss shall exceed the amount of such other insurance or insurances, which said excess only is declared to be under the protection of this policy.” The complaint further alleges that on November 6, 1941, defendant issued its policy to Wellman in the sum of $50,000, covering the property of others, held in trust or on consignment, or for which assured may be legally liable only while contained in the premises of the assured. The complaint further alleges that on December 23, 1941, certain patterns and core boxes, the property of Rotor, of the value of $5345.64, while in the possession of Wellman, were destroyed by fire; that plaintiff has loaned to Rotor $5000, in accordance with a loan receipt whereby Rotor assigned any claim it had under the policy issued by defendant to Wellman. The complaint further alleges that after the fire, Wellman informed Rotor' that it was presenting claim under the policy issued to it by defendant, for the value of the property of Rotor which was in its possession and which was destroyed by fire, and which was of the value of $5345.64; that at that time Wellman was of opinion that the value of the property was but $1968.87; that upon receipt of information that Wellman intended to file claim for the latter amount, it (Wellman) was advised that the correct amount of the claim for which it should make claim was $5345.65. The complaint then alleges: “* * * that thereupon and from time to time until after the 23rd day of December, 1942, negotiations were carried on between the adjusters for the Fire Association of Philadelphia and the representatives of the Wellman Bronze and Aluminum Company and of the Rotor Tool Company in an endeavor to arrive at an amicable disposition of this matter. Wherefore this plaintiff says that the provision in the policy of the defendant, Fire Association of Philadelphia, requiring suit to be brought within 12 months next after the calendar date of the happening of the physical loss or damage was waived and the defendant is estopped to set up the defense of the limitation in its said policy.” The complaint further alleges that on May 24, 1943, defendant advised Rotor and plaintiff that defendant’s policy to Wellman for the benefit of Rotor was a liability insurance policy and did not insure against loss and destruction of property and that defendant refused to pay the loss for that reason, and that defendant has denied its liability under its policy, for the reason only that its policy is a liability policy and not a policy of insurance indemnifying against loss by fire; that the defendant has waived compliance with the provisions of its policy and that therefore defendant is indebted to plaintiff in the sum of $5000. Defendant’s motion to dismiss is based upon the allegations that plaintiff is not the real party in interest, and that the complaint fails to state a claim against defendant upon which relief can be granted. The District Judge dismissed the complaint upon the second ground. We think the District Judge was right in holding that mere negotiations in an endeavor to arrive at an amicable disposition of a controversy are insufficient ■basis for application of the doctrine of waiver or estoppel. It is noteworthy that there are in the complaint no allegations of promises to pay, concealment, bad faith, fraud, misrepresentation or other facts which might be construed as an attempt to mislead plaintiff’s assignor or to lull it into a sense of security, or into the belief that payment of any amount would be made by defendant. There is no allegation, direct or inferential, of intention by plaintiff’s assignor to commence suit within the period limited by the policy and of its being turned from that course of action by misleading acts or promises by the defendant. No facts are alleged from which an inference might be drawn that the postponement of suit was at the express or implied request of the defendant, or that there was an intentional delay in adjustment until after the limitation period provided in the policy had passed. The failure of plaintiff to make such allegations is convincing that no facts could be established which would permit such deduction, and that the delay was solely the result of endeavors to arrive at an amicable adjustment. This belief is further substantiated by the fact that after absolute denial of liability by defendant on May 24, 1943, as alleged in paragraph 10 of the complaint, plaintiff’s assignor, Rotor, failed to commence suit but instead thereof, on December 16, 1943, assigned its claim against defendant to plaintiff. The present action was commenced by plaintiff on December 22, 1943, within a few days after that assignment. This was nearly seven months after absolute denial of liability by defendant, and lacked only one day of two years after the happening of the loss. The principles upon which the doctrines of waiver and estoppel are based have been fully discussed by this court. See Reynolds v. Detroit Fidelity & Surety Co., 6 Cir., 19 F.2d 110; Grand Trunk Western R. Co. v. H. W. Nelson Co., 6 Cir., 116 F.2d 823, 836; Hartford Fire Ins. Co. v. Nance, 6 Cir., 12 F.2d 575, 576, 579; (see also, Coen v. American Surety Co. of New York, 8 Cir., 120 F.2d 393; Texas Co. v. Chicago & A. R. Co., 7 Cir., 126 F.2d 83, 90; Grouf v. State National Bank, 8 Cir., 40 F.2d 2, 7; 130 A.L.R. 8). Application of these principles results in the conclusion that the District Judge was correct in holding that mere negotiations for settlement do not effect a waiver or work an estoppel, and that the complaint should be dismissed for that reason. The judgment of the district court is affirmed. Question: What is the total number of appellants in the case? Answer with a number. Answer:
songer_state	14	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". Hugh W. SHUMAKER, Plaintiff-Appellee, v. GEM MANUFACTURING CO., Defendant-Appellant. No. 13706. United States Court of Appeals Seventh Circuit. Dec. 20, 1962. James P. Hume, Chicago, Ill., Russell H. Clark, Edwin H. Halligan, Chicago, Ill., for appellant. Francis A. Utecht, Long Beach, Cal., Benjamin F. Berry, Seattle, Wash., Max Richard Kraus, Chicago, Ill., for appellee. Before SCHNACKENBERG, KNOCH and KILEY, Circuit Judges. ENOCH, Circuit Judge. Plaintiff, Hugh W. Shumaker, brought this action against defendant, Gem Manufacturing Co., charging infringement of plaintiff’s patent No. 2,933,344, granted April 19, 1960. The patent is directed to a pair of wind deflectors attached to the rear corner posts of a station wagon to break up the vacuum formed during forward movement of the vehicle. The vacuum created at the blunt end during forward movement of a station wagon draws road dust, dirt, grime, snow and other foreign material onto the rear window, obscuring rear vision and creating a driving hazard. The District Court found the patent to be valid; held that claims 1 and 2 thereof were wilfully and wantonly infringed by defendant; and granted permanent injunction and accounting for costs. Defendant appealed. The defendant lists the contested issues as follows: 1. The Shumaker patent No. 2,~ 933,344 here in suit is invalid as to claims 1 and 2 for lack of invention and for anticipation over the prior art. 2. The patent here in suit as to ■claims 1 and 2 is invalid because ■Shumaker did not exercise that de.gree of inventive skill necessary to ■comply with the requirements of ■Section 103, Title 35, U.S.Code, which relates to conditions for patentability. 3. The defendant has not directly infringed claims 1 and 2 of the •patent here in suit by manufacturing and selling wind deflectors as ■exemplied in Plaintiff’s Ex. 32 and ■39. 4. The defendant is not liable as a contributory infringer under 35 U.S.Code Section 271(c) because the wind deflectors which it manufactures and sells are staple articles of commerce and said wind deflectors can be applied to the roofs of cars, to the hood of autos and to boats, all substantial non-infringing uses. Defendant contends that wind deflectors and air directors are not new and form the subject of a number of prior art patents. However, the problem was an old and long existing one. Plaintiff testified that he became aware of it while driving a station wagon on a rural mail delivery route during the summer of 1956. He then conceived the idea of eliminating the vacuum by directing the slip stream of air inwardly across the rear window area. He constructed and tested deflectors to secure an inexpensively manufactured, attractive, easily adjustible device, adaptable to all conventional models, which would allow the tailgate to be opened without striking the wind deflector assembly. He also found that the deflectors kept exhaust gases and road dust from entering the vehicle if the rear window were kept open. He began selling his device in 1958, and, alone, lacking substantial merchandising experience, with a limited operating budget, relying on mail orders from advertisements in rural magazines, and his own personal visits to service stations and garages, he achieved a sales volume of about $57,000 between March 1958 and July 1960. After July 1, 1960, when he entered into an exclusive licensing agreement with Superior Industries, Inc., of North Hollywood, California, he discontinued selling his devices. Louis Borick, an employee of Superior Industries, testified that his company, from about June 1959 to December 1961, had a gross sales volume of about $450,000. David L. Gass, an employee of defendant, testified, as an adverse witness for plaintiff, that in October or November 1959, a customer had brought in a wind deflector which Mr. Gass later found to be identical to deflectors manufactured and sold by plaintiff’s exclusive licensee, Superior Industries. He immediately started developing the accused device, completed tools and dies, and had pieces for sale in January 1960. Defendant continued from that date to manufacture and sell its deflectors in competition with those of plaintiff’s licensee. Although he found that the vanes of defendant’s deflectors were provided with non-functional vertical embossing and their brackets utilized Phillips-head screws rather than straight slotted screws, the District Judge found the defendant’s device substantially identical with those sold by plaintiff and by plaintiff’s licensee, the vanes and brackets being interchangeable. Defendant advertised its product through a catalog sheet containing a picture of the rear of a station wagon with wind deflectors mounted on its rear corner posts. The catalog sheet stated that these deflectors broke the vacuum, thus keeping the rear window clear, and kept exhaust gases and road dust out if the rear window were open. Defendant’s cartons bore a substantially similar picture and description, and contained instructions for installing the deflectors in an adjustable manner on the rear corner posts of a station wagon. In April 1960, plaintiff served notice of infringement on defendant. Defendant then brought out a new catalog sheet in which deflectors were shown on an automobile hood, on a boat windshield, and singly on the roof, as well as in pairs at the rear, of a station wagon. The carton cover was similarly changed, and the instruction sheet referred to the varied pictured uses. But the instructions themselves dealt only with mounting the deflectors in pairs on the rear corner posts of a station wagon. Later a third instruction sheet added a statement that, comparable installation could be made “for cars and boats.” Mr. Gass testified to seeing one deflector on the roof of a station wagon and one pair on a boat. There is no question that if installed on the rear posts of a station wagon pursuant to the instructions contained in the carton, defendant’s wind deflectors constitute a direct infringement of claims 1 and 2 of the patent in suit. Of the prior art introduced by defendant, only three patents disclosed means for breaking the vacuum behind a moving vehicle: Chalkley 1,584,275, May 11, 1926; Stalker, 1,871,396, August 9, 1932; Ishiwata, 2,199,883, May 7, 1940. We have examined these patents and are constrained to agree with the analysis of the District Court that none presents a practical solution of the problem. On the contrary, it appears that Chalkley and Stalker would require extensive modification of the vehicles to which they are attached. Ishiwata, on which defendant particularly relies, might well result in obscuring the view through the rear window. All three-were included among the patents cited by the Patent Examiner, a fact which, strengthens the presumption of patent, validity. Amp, Inc. v. Vaco Products Co., 7 Cir., 1960, 280 F.2d 518, 521; Copeman Laboratories Co. v. General Plastics Corp., 7 Cir., 1945, 149 F.2d 962, 964; Ekstrom-Carlson & Co. v. Onsrud Machine Works, Inc., 7 Cir., 1962,. 298 F.2d 765, 768. It is true, as defendant argues, that development of a vacuum at the flat-ended rear of a forward moving vehicle is a well known physical phenomenon. But the need for a device such as plaintiff’s existed for a long time prior to his discovery of a solution. The apparent simplicity of the invention here involved gives it a false appearance of obviousness only now after the event, in the light of the patent’s own teaching. The District Court’s finding of patent validity is bolstered by the immediate commercial success of the device and by defendant’s own prompt adoption of it. As defendant asks, we have considered the prior art respecting the brackets, but we do not see disclosed brackets which would fulfill the need of maintaining the vanes in an adjustable position relative to the supporting member. We must agree with the District Judge’s findings that none of the prior art anticipates or negatives invention in the patent in suit. The District Court found that defendant has contributorily infringed claims 1 and 2 of the patent in suit by inducing others to purchase defendant’s deflectors with the intent that they be installed on the rear corner posts of a station wagon in an infringing manner. As noted above, the drawings and instructions accompanying the defendant’s device are clearly directed to this end. “Whoever actively induces infringement of a patent shall be liable as an infringer.” Title 35 U.S.Code § 271(b). Defendant contends that it is selling a staple article of commerce suitable for substantial non-infringing use, and that some of these non-infringing uses are indicated in the revised instruction and catalog sheets issued after the filing of this suit; that defendant sells to wholesalers who in turn sell to the public and that defendant has no way of knowing what ultimate infringing, or non-infringing, use the final consumer will make of defendant’s product. However, the defendant, for example, sells these deflectors in sets of two. It is unlikely that a purchaser seeking- a single deflector for non-infringing use on the roof of an automobile will buy the uevice in pairs. As defendant asserts, plaintiff’s licensee sells a wind deflector for use singly on the roof of an automobile in a carton which does not bear any patent number. That deflector, however, is longer that those of defendant’s; it does not fall within the scope of claims 1 and 2, not “being of a vertical height substantially the same as the vertical height of the rear window,” and is boxed and sold singly. Even after notice of infringement and after institution of this suit, defendant continued to sell its product in pairs, with carton and catalog illustrations of their installation on the rear posts of a station wagon in an infringing manner. The instructions, even as revised, continued to describe in detail a 9-step method for mounting the deflectors on the rear posts of a station wagon in an infringing manner. At the foot of the instruction sheet, defendant merely says: “For Cars & Boats “Installation is entirely comparable to the above, except that when using Wind Deflectors as a "scoop’, brackets are attached to the adhesive coated convex side.” Defendant complains that the injunction is overly broad. We understand the injunction entered herein to be limited strictly to the infringing activity of selling the defendant’s deflectors in pairs for installation on the rear posts of a station wagon in an infringing manner. The injunction is not directed to sale of the deflectors singly for use on the roof or in pairs for use on the hood of an automobile or on the windshield of a boat. However, the defendant may not with impunity continue the practice of picturing the infringing use on its cartons, in its catalogs, and in its instruction sheets, or of selling its product with directions for mounting it in an infringing manner. Under these circumstances defendant cannot reasonably be heard to contend that it is selling its product for a non-infringing use and that the ultimate purchaser, by his own ingenuity alone, has devised an infringing use for which the ■defendant is not responsible. The judgment of the District Court, •subject to the above comments as to the scope of the injunction, is affirmed. . 1. In combination with a vehicle of the type having a closed body and being provided with a rear section which is substantially flat and generally vertical and having in the upper region thereof a generally upright and substantially flat window extending between rear corner posts of the vehicle body, whereby the vehicle while in motion tends to produce a vacuum in the region of the rear section thereof such as to cause dust and road dirt to be delivered against the rear window glass, a wind deflector disposed in outwardly spaced relationship with respect to each such corner post, each deflector being of a vertical height substantially the same as the vertical height of the rear window, means secured to each corner post articulately mounting a respective wind deflector therefrom, said means including a link extending between a respective corner post and deflector and being pivotally secured at its opposite ends to these members whereby each deflector is positionable to project laterally and forwardly from the rear window into the slip stream of air at its corresponding side of the vehicle body, each deflector being in the form of an elongate strip of material of generally rectangular form and being arcuated in cross section so that whereas the forward edge of each such ■ deflector is disposed within the slip stream, the rear edge thereof is positioned to direct deflected air streams across the back surface of the window to obviate the vacuum effect of the vehicle body. 2. The assembly as defined in and by ■ claim 1 wherein said means also includes .a first strap member fixed to a respeefive deflector and having a pair of outstanding ears rigid therewith and disposed in vertically spaced relationship to each other, a second strap member fixed to a respective corner post and having a pair of outstanding ears rigid therewith disposed in vertically spaced relationship, said link being pivotally attached at its opposite ends to one ear of each said pair of ears, and there being a second link pivotally connected at its opposite ends to the other ears of said pairs of ears. . Whoever sells a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_genapel2	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 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. MICROIMAGE DISPLAY DIVISION OF XIDEX CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Local 619, Allied Industrial Workers of America, AFL-CIO, Intervenor. LOCAL 619, ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Nos. 89-1707, 89-1777. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 19, 1990. Decided Jan. 18, 1991. Rehearing and Rehearing En Banc Denied in No. 89-1707 March 4, 1991. Kenneth R. Loebel, Milwaukee, Wis., for Local 619, Allied Indus. Workers of America, AFL-CIO, petitioner in No. 89-1777 and intervenor in No. 89-1707. Kevin J. Kinney, Milwaukee, Wis., for Microimage Display Div. of Xidex Corp., petitioner in No. 89-1707. Joseph A. Oertel, Atty., N.L.R.B., with whom Aileen A. Armstrong, Deputy Associate Gen. Counsel, N.L.R.B., was on the brief, for respondent. Charles P. Donnelly, Atty., N.L.R.B., Washington, D.C., also entered an appearance for respondent. Before WALD, Chief Judge, RUTH BADER GINSBURG and HENDERSON, Circuit Judges. Opinion for the Court filed by Circuit Judge HENDERSON. HENDERSON, Circuit Judge: In this proceeding, we address both the employer’s and the union’s exceptions to a ruling of the National Labor Relations Board (Board). In late 1987 and the first half of 1988, the union filed a series of unfair labor practice charges with the Board. The Board’s General Counsel issued complaints on the charges and they were consolidated for hearing before an Administrative Law Judge (AU). In February, 1989, the AU issued his decision. The employer, the union and the General Counsel all filed exceptions to the AU’s decision. In October, 1989, a three-member panel of the Board issued its decision, affirming in part and reversing in part the AU’s order. Both the employer and the union have petitioned this court for review of the Board’s ruling. The Board has cross-petitioned for enforcement of its order. We address the issues in the petitions for review seriatim below, setting out our reasons for enforcing the Board’s order. I. Background In 1987 and 1988, the employer, Microim-age Display Division of Xidex Corp. (Xi-dex), manufactured microfilm readers and reader/printers at two separate facilities in Wisconsin. The employer owned a large plant in Hartford and, leased space for its smaller plant in the town of Iron Ridge. In 1986, the employer had purchased the Hartford facility from another corporation. At the time of the sale, Xidex assumed the collective bargaining agreement then in effect at the Hartford plant. The labor contract had been negotiated by Local 619 of the Allied Industrial Workers of America, AFL-CIO, the union that had long represented the Hartford employees. This agreement was set to expire on April 3, 1988. The Iron Ridge employees were not represented by a union. Even before the purchase of the Hartford plant was complete, officers of Xidex Corp. began developing a strategy to oust the union. According to testimony the AU credited, the employer’s vice president for human resources stated that the corporation was not interested in negotiating a new contract with the union. He intended to develop a strategy that would allow the corporation to avoid a new contract, merge the two plants and have the resulting operation be nonunionized. Over the course of the months following Xidex’s purchase of the Hartford facility, the employer undertook a number of actions that the union assigned as unfair labor practices. A. Unilateral Change of Lunch Break In August of 1987, three months before the events on which this proceeding primarily focuses, the employer changed, for two days, the lunch break of the employees on the paint line at the Hartford plant. At an employee meeting, one of the line employees suggested that, to increase the line’s productivity, the employees should have a fifteen-minute, paid lunch break rather than the thirty-minute, unpaid break they had previously received. The other line employees agreed to the change and the company put it into effect. The supervisor did not consult the union before implementing the change. Two days later, when the employees expressed dissatisfaction with the new arrangement, the supervisor reinstated the previous lunch schedule. After the hearing, the AU noted that the failure to consult the union before implementing the new lunch schedule “telegraph[ed] to the employees that the Union was irrelevant.” Petitioner’s Appendix (P.A.) 590. The AU held that this unilateral change in an employment condition violated sections 8(a)(5) and 8(a)(1) of the National Labor Relations Act (the Act or NLRA). The Board affirmed the AU’s ruling with one member dissenting. The dissenting Board member would have found no violation involving the change in lunch schedule because of the “insubstantial nature of the change.” P.A. 576 n. 2. B. Threat to Move Work From the Union to the Non-Union Plant On November 25, 1987, the director of operations at the Hartford plant announced to the plant’s managers that, within- a month, Xidex would move a production group known as the power drawer module (PDM) department from the Hartford to the Iron Ridge plant. Earlier, the employer had moved product lines from the unionized to the non-union plant but those transfers had resulted in no work force reduction. Management projected that the PDM transfer, on the other hand, would cause the layoff of 22 or 23 employees at the Hartford facility. Because of the timing of the work transfer, the layoffs would occur shortly before Christmas. As the reason for the move, the employer cited the greater productivity and flexibility of the employees at the Iron Ridge plant. The employees learned of the planned work transfer on December 1. The following day, a group of employees approached the employer’s director of operations, seeking information about how to decertify the union. Through him, they learned the telephone number of the Board’s regional office and from the Board they learned the proper form for a decerti-fication petition. The same day, the employees drew up a petition and began circulating it, encouraging their co-workers to sign it “to save PDM.” P.A. 230. Within two days, the employees circulating the petition had secured the signatures of a majority of the Hartford plant’s 165 employees. In the end, 108 employees signed the petition. At some point after the petition began to circulate, the employer decided to postpone the PDM transfer and the attendant layoffs. There was conflicting evidence on the question of when the employer announced this decision. Certain employees testified that their managers announced the postponement of the move on December 3, the day after the employer learned of the decertification petition. The director of operations, on the other hand, testified that the decision to put off the department transfer did not occur until later that month when the employer learned of several large orders it had received that made the move and work force reduction appear unwise. The AU credited the employees’ testimony, finding the evidence showed that the move was postponed immediately after the employer learned of the decertification petition. On January 12, 1988, the employees filed the decertification petition with the Board’s regional office. On the same day, the employer withdrew its recognition of the union, pointing to the petition as evidence of the union’s lack of majority support. Xi-dex stated, however, that it planned to continue to honor the terms of the existing collective bargaining agreement until it expired. After the employer terminated recognition of the union, the employer began transferring work to, rather than away from, the Hartford plant. At the expiration of the contract later that year, the employer unilaterally changed several terms and conditions of employment at the Hartford plant. The AU held that the employer’s threat to move the PDM department to the Iron Ridge facility violated section 8(a)(1) of the Act. He further held that the employer’s threat tainted the decertification petition and that the withdrawal of union recognition, based as it was on the petition, violated sections 8(a)(5) and 8(a)(1) of the Act. On review, the Board affirmed the AU’s holding. It concluded that the employer’s announcement of a transfer for reasons “shown by the record to be transparently baseless would reasonably tend to lead employees to infer that they were losing work and jobs as a result of their support for the Union.” P.A. 576 n. 2. C.One-Day Transfer of a Vocal Union Supporter While the decertification petition was circulating among the employees, Cheryl Sa-dowski was vocal in her support of the union as she moved about the Hartford plant performing her job in the shipping department. On the day Xidex withdrew recognition from the union, Sadowski learned that, starting the following day, she was to be transferred to another job, one that did not permit her to move about the plant. Her supervisor told Sadowski she was being transferred because of complaints about her discussion of the union during work hours. Sadowski complained to the union president; together they confronted the supervisor and the supervisor returned Sadowski to her previous position. The transfer was in effect for only one day and Sadowski suffered no loss in pay or benefits as a result of it. The AU concluded Sadowski’s transfer represented at most a de minimis violation of the Act. The Board reversed, stating that the transfer “must be viewed in the context of the [employer’s] other unfair labor practices, specifically including a simultaneous withdrawal of recognition from the Union and an antecedent threat to transfer unit employees’ work to a nonu-nionized facility in order to undermine the Union.” P.A. 580. In light of these considerations, the Board held that the transfer constituted a “substantial violation of Section 8(a)(3) requiring a traditional board remedy.” P.A. 580. D. Employer’s Publication of Its Views on the Union After the decertification petition circulated, Xidex published several different notices at the Hartford plant, informing the employees of the progress of the unfair labor practice charges, stating the employer’s belief that the employees would be better off without the union and denying rumors that, if the union were decertified, the employer would cut wages. The AU found that none of these publications amounted to an unfair labor practice. He noted that all of the publications occurred after the employees had signed the petition and they therefore could not have affected the employees’ decision to decertify the union. The AU also found that, under section 8(c) of the Act, the employer communications could not constitute unfair labor practices since they embodied the employer’s views and opinions and contained no threat of reprisal. With one member dissenting with respect to one of the publications, the Board affirmed the AU’s decision. E. Employer’s Failure to Arbitrate Grievances Before the decertification process began, the union had filed two grievances on which it sought arbitration. The employer contested the arbitrability of the grievances and therefore did not respond to the union’s request to select arbitrators. At the unfair labor practice hearing, the union alleged that this amounted to a refusal to arbitrate violative of the Act. The AU agreed, ruling that the question of arbitra-bility itself is a subject for arbitration and that, by failing to proceed with the arbitration and raise the question of arbitrability as a defense before the arbitrator, the employer violated sections 8(a)(5) and 8(a)(1) of the Act. The Board reversed, holding that the employer at no time refused to arbitrate the grievances in question. The Board stated that, unless a collective bargaining agreement specifies otherwise, questions of arbitrability present “a threshold issue for judicial determination” and the employer did not breach its duty to bargain by refusing to submit its arbitrability objections to arbitration. P.A. 578. II. Employer’s Petition for Review At the outset we note the deference that we extend to the Board’s factual determinations. Section 10(e) of the Act provides that “[t]he findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.” 29 U.S.C. § 160(e). A reviewing court is not to “displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951); see also NLRB v. Walton Mfg. Co., 369 U.S. 404, 405, 82 S.Ct. 853, 854, 7 L.Ed.2d 829 (1962); St. Francis Fed’n of Nurses & Health Professionals v. NLRB, 729 F.2d 844, 849 (D.C.Cir.1984) (deferring to Board’s “reasoned exercise of its expert judgment”); Conair Corp. v. NLRB, 721 F.2d 1355, 1373 (D.C.Cir.1983), cert. denied, 467 U.S. 1241, 104 S.Ct. 3511, 82 L.Ed.2d 819 (1984). Finding that substantial evidence supports the Board’s decision, we reject the employer’s challenges. A. Work Transfer Section 7 of the Act guarantees employees the “right to self-organization, to form, join, or assist labor organizations... and to engage in... concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Section 8(a)(1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” 29 U.S.C. § 158(a)(1). Section 8(a)(1) is the blanket 8(a) provision that shields employees from unfair labor practices. In most unfair labor practice cases, the Board has rested its decisions primarily on the particularized provisions of 8(a)(2)-(5); in such cases, the Board has found that the employer has violated section 8(a)(1) only derivatively. The Board has found independent violations of section 8(a)(1) under two different circumstances. First, the Board has concluded that the employer’s actions have infringed on section 7 rights in a manner that outweighs the business justification the employer offers for those actions. Textile Workers Union v. Darlington Mfg. Co., 380 U.S. 263, 269, 85 S.Ct. 994, 998, 13 L.Ed.2d 827 (1965); see also NLRB v. Brown, 380 U.S. 278, 286, 85 S.Ct. 980, 985, 13 L.Ed.2d 839 (1965) (approving finding of § 8(a)(1) violation when “employers’ conduct is demonstrably so destructive of employee rights and so devoid of significant service to any legitimate business end that it cannot be tolerated consistently with the Act”); American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 309, 85 S.Ct. 955, 962, 13 L.Ed.2d 855 (1965) (approving finding of § 8(a)(1) violation based on acts inherently “destructive of collective bargaining”). Alternatively, the Board has found violations of section 8(a)(1) alone when antiunion animus has motivated the employer’s actions. When established by independent evidence, “antiunion motivation will convert an otherwise ordinary business act into an unfair labor practice.” Brown, 380 U.S. at 287-88, 85 S.Ct. at 985-87; see also NLRB v. Erie Resistor Corp., 373 U.S. 221, 227, 83 S.Ct. 1139, 1144, 10 L.Ed.2d 308 (1963). The petitioner employer assigns as error two aspects of the Board’s ruling that the threatened work transfer constituted an independent violation of section 8(a)(1). First, Xidex attacks the finding that antiunion sentiment motivated the work-transfer decision. In light of the deference, discussed above, that we accord Board findings of fact, we reject this argument. There is ample evidence from which the Board could have concluded that the employer’s decision to move the PDM department to the nonunion plant arose from a desire to be rid of the union. Before Xidex had even finalized its purchase of the Hartford facility, its management was plotting a “strategy to avoid a [new union] contract through whatever means.” P.A. 29. Furthermore, the AU found that the employer called off the PDM transfer the day after it learned of the petition. After the employees submitted the petition to the Board, the operations manager began transferring production units from Iron Ridge to Hartford, although he had earlier stated his intention to move everything to the nonunion Iron Ridge plant even if he had to “build it in the back of semi trucks.” P.A. 309. We find, as did the Board, the employer’s conduct after the decertification petition to be instructive on the question of the employer’s motive for announcing the PDM transfer. Second, Xidex argues that the Board erred in finding a section 8(a)(1) violation because, in moving the PDM department, the employer was exercising a right it had reserved under the collective bargaining agreement and because the employer offered evidence that legitimate business considerations prompted it to undertake the move. The AU’s finding that antiunion animus was the motivating factor behind the PDM move deprives Xidex of the defense that its legitimate reasons for planning the move might otherwise afford it. “When specific evidence of a subjective intent to discriminate or to... discourage union membership is shown, and found, many otherwise innocent or ambiguous actions which are normally incident to the conduct of a business may, without more, be converted into unfair labor practices.” Erie Resistor Corp., 373 U.S. at 227, 83 S.Ct. at 1145; see also Associated Press v. NLRB, 301 U.S. 103, 132, 57 S.Ct. 650, 655, 81 L.Ed. 953 (1937). Although a showing of antiunion animus does not automatically establish a violation of section 8(a)(1), it places on the employer the burden to prove that it would have undertaken the action alleged to be an unfair labor practice even in the absence of the antiunion sentiment. Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083, 1088-89 (1980); NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983). Here, the employer failed to carry its burden; the Board was therefore justified in finding a violation of section 8(a)(1). B. Transfer of Sadowski Based on Her Union Sympathies Section 8(a)(3) makes it an unfair labor practice for an employer “by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3). There is little doubt that the transfer of Sadowski qualifies as “discrimination in regard to... [a] term or condition of employment.” It therefore comes within the scope of section 8(a)(3). The dispositive question then becomes the motive behind the employer’s action: “[t]he discriminatory act is not by itself unlawful unless intended to prejudice the employees’ position because of their membership in the union; some element of antiunion animus is necessary.” Brown, 380 U.S. at 286, 85 S.Ct. at 985; see also Radio Officers’ Union v. NLRB, 347 U.S. 17, 42-44, 74 S.Ct. 323, 336-338, 98 L.Ed. 455 (1954). In determining the employer’s motivation, the Board may rely on either direct or circumstantial evidence. NLRB v. Link-Belt Co., 311 U.S. 584, 602, 61 S.Ct. 358, 367, 85 L.Ed. 368 (1941); Teamsters Local Union No. 171 v. NLRB, 863 F.2d 946, 955 (D.C.Cir.1988), cert. denied, 490 U.S. 1065, 109 S.Ct. 2063, 104 L.Ed.2d 628 (1989); United Food & Commercial Workers Int’l Union, Local 152 v. NLRB, 768 F.2d 1463, 1475 (D.C.Cir.1985). Here, in determining that antiunion animus motivated the employer, the Board stated that Sadowski’s transfer "must be viewed in the context of the Respondent’s other unfair labor practices, specifically including a simultaneous withdrawal of recognition from the Union and an antecedent threat to transfer unit employees’ work to a nonunionized facility in order to undermine the Union.” P.A. 580. In addition to this background, the Board considered the facts that Sadowski’s new position significantly curtailed her contact with other employees and that her transfer occurred the day after Xidex withdrew recognition of the union. This constitutes substantial evidence from which the Board was justified in drawing the inference of improper motivation on Xidex’s part. In an attempt to provide a valid business justification for Sadowski’s transfer, the employer points to evidence of mistakes she had made in her job with the shipping department. Here again, under Wright Line, the evidence of antiunion animus placed on Xidex the burden to establish a permissible, non-discriminatory motive for Sadowski’s transfer. It failed to convince the Board that its intentions were pure and, under our deferential standard of review, we are not prepared to reach a different conclusion. See Conair Corp., 721 F.2d at 1373. The employer also argues that, regardless of the presence of antiunion animus, Sadowski’s one-day transfer is, at most, a de minimis violation of the Act that does not justify the finding of an unfair labor practice. In determining what conduct violates section 8(a)(3) and justifies a remedial order under the Act, especially when there is ample evidence of antiunion animus behind the contested action, we accord the Board a wide measure of discretion. See Champion Parts Rebuilders, Inc. v. NLRB, 717 F.2d 845, 853 n. 9 (3d Cir.1983) (citing Virginia Elec. & Power Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943)); see also Truck Drivers, Oil Drivers, Filling Station and Platform Workers Local No. 705 v. NLRB, 509 F.2d 425, 428 (D.C.Cir.1974) (per cu-riam) (“where to draw the line of matters trivial in their impact is primarily a task for the Board and not for the court”). In this instance, the Board’s determination that Sadowski’s transfer violated the Act is one that we will not reverse. C. Two-Day Change in the Paint Line’s Lunch Break Under section 8(a)(5) of the Act, it is an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees.” 29 U.S.C. § 158(a)(5). Mandatory subjects of bargaining include “wages, hours, and other terms and conditions of employment.” 29 U.S.C. § 158(d). In unilaterally changing a condition of employment, an employer violates section 8(a)(5). First Nat’l Maintenance Corp. v. NLRB, 452 U.S. 666, 674-75, 101 S.Ct. 2573, 2578-79, 69 L.Ed.2d 318 (1981); NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 1111, 8 L.Ed.2d 230 (1962). Xidex does not contend that the Board erred in finding the change in lunch break amounted to a unilateral change in a mandatory subject of bargaining. Instead it argues, as it did with respect to Sadowski’s transfer, that the lunch break change is only a de minimis violation that is too insubstantial to support the finding of an independent unfair labor practice. We are unpersuaded by the employer’s reasoning. The Board has recognized that not every minor unilateral change in working conditions constitutes an unfair labor practice. To violate section 8(a)(5), the change in working conditions must be “material, substantial and significant.” See Alamo Cement Co., 281 NLRB 737, 738 (1986); Peerless Food Prods., Inc., 236 NLRB 161 (1978); Rust Craft Broadcasting of N.Y., Inc., 225 NLRB 327 (1976). In this case, the Board and the AU found that the lunch break change rose to the level of a violation of section 8(a)(5) because of the context in which it occurred. The Board found that the employer undertook this action as part of its concerted strategy to weaken and discredit the union in the eyes of the employees. It was an action that “could not help but undermine support for the Union,” and by unilaterally implementing the change, the employer was “telegraphing to the employees that the Union was irrelevant.” P.A. 590-91. Viewed in this light, the Board held, and we agree, the apparently unimportant change in a working condition takes on more significance. Had the lunch break change occurred in isolation, with no other manifestation of the employer’s opposition to the union, we might be more inclined to conclude that the two-day lunch break change did not constitute an independent violation of the Act. That, however, is not the situation with which we are presented. Here, by the time it changed the lunch break, the Board found, the employer had already expressed its desire to rid itself of the union “through whatever means.” P.A. 29. After the change, the evidence shows the employer threatened, in bad faith, to move production to a nonunion plant and discriminated against an employee because of her support for the union. Given the surrounding violations of the Act, we decline to hold that the unilateral lunch break change was too insignificant to violate the Act. Cf. Truck Drivers, 509 F.2d at 427 (considering context of union’s “single remark” in finding it violated the Act). D. Withdrawal of Union Recognition We also affirm the Board’s conclusion that, in withdrawing recognition from the union, the employer violated sections 8(a)(5) and 8(a)(1) of the Act. Once certified, a union enjoys a presumption of majority support that is irrebuttable for a year after certification and that continues thereafter until the employer can show, by “clear, cogent and convincing” evidence, either that the union has lost majority support or that the employer has a reasonable, good-faith doubt of continuing majority support. St. Agnes Medical Ctr. v. NLRB, 871 F.2d 137, 145 (D.C.Cir.1989); NLRB v. Creative Food Design Ltd., 852 F.2d 1295, 1300 (D.C.Cir.1988) (quoting NLRB v. Tahoe Nugget, 584 F.2d 293, 297 (9th Cir.1978), cert. denied, 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 290 (1979)). Nevertheless, “an employer that has itself orchestrated the union ousting campaign cannot rely on the pendency of a decertification petition or the loss of majority status to justify its withdrawal of recognition, and refusal to bargain with, the incumbent representative.” NLRB v. Maywood Plant of Grede Plastics, 628 F.2d 1, 5 (D.C.Cir.1980) (per curiam). The record supports the Board’s conclusion that the employer’s unfair labor practices, not a bona fide dissatisfaction with the union, caused the employees to begin circulating the decertification petition. The employer may not rely on the petition as justification for the withdrawal of union recognition. Without objective evidence to support its doubt about the union’s continuing majority status, we conclude the employer violated sections 8(a)(5) and 8(a)(1) by withdrawing recognition of the union. III. Union’s Petition for Review The union assigns as error several aspects of the Board’s order. We find none of the union’s arguments meritorious and affirm without modification those portions of the order the union challenges. A. Blanket Reinstatement Order First, the union contends the Board erred in failing to order the reinstatement of all employees Xidex has discharged since its unlawful withdrawal of union recognition and refusal to negotiate a new collective bargaining agreement. The expired union contract provided that the employer could terminate employees only for just cause. After the contract’s expiration, however, under the applicable state law, Xidex’s employees were terminable at will. The union asserts that this change in status justifies a blanket order of reinstatement. The Board’s order requires the employer to rescind changes that the [employer] made unilaterally in the terms and conditions of employment of its employees on and after April 4, 1988 [the contract termination date] and [to] maintain those reinstated terms and conditions of employment until such time as the [employer] negotiates in good faith to a new agreement or to impasse. P.A. 582-83. The order further requires the employer to “[m]ake employees whole... for any loss of earnings and benefits suffered as a result of the [employer’s] unlawful unilateral changes in their terms and conditions of employment.” P.A. 583. This order adequately protects the interests of Xidex’s employees and we decline to modify it. In the first instance, we extend broad deference to the Board’s choice of remedies. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898-99, 104 S.Ct. 2803, 2812-13, 81 L.Ed.2d 732 (1984); NLRB v. Gissel Packing Co., 395 U.S. 575, 612 n. 32, 89 S.Ct. 1918, 1939 n. 32, 23 L.Ed.2d 547 (1969). Only when a remedy is “clearly inadequate” will we upset the Board’s choice of how best to effectuate the policies of the Act. International Union of Elec., Radio & Mach. Workers, Local 806 v. NLRB, 434 F.2d 473, 478 (D.C.Cir.1970). The union has failed to show that the Board’s order falls short of this standard. The effect of the order is to grant make-whole relief to those employees discharged without good cause. Ordering the reinstatement of those employees discharged for cause would itself violate the Act and the Board properly declined to do so. B. Dues Check-Off The union next contends that the Board erred in failing to order the employer to pay to the union the money that the union would have received had the dues check-off provision of the expired collective bargaining agreement remained in effect. This was not error on the Board’s part. Section 8(a)(3) of the NLRA and sections 302(a)(2) and 302(c)(4) of the Labor Management Relations Act, 29 U.S.C. §§ 186(a)(2), 186(c)(4), permit an employer to make payments to a union only under a dues check-off provision contained in an effective collective bargaining agreement. Southwestern Steel & Supply, Inc. v. NLRB, 806 F.2d 1111, 1114 (D.C.Cir.1986). The collective bargaining agreement had expired and, accordingly, the Board properly refused this portion of the union’s requested order. C. Visitatorial Clause The union asserts that the Board erred in refusing to include in its order a broad visitatorial clause that would enable the Board to monitor the employer’s compliance with the other portions of the order. The order requires Xidex to “[pjreserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of back-pay due under the terms of the Order.” P.A. 583. The union has not shown any way in which the Board’s order is inadequate; in the absence of such a showing, we decline to substitute our judgment for the Board’s on the question of the proper remedy. See Sure-Tan, Inc., 467 U.S. at 898-99, 104 S.Ct. at 2812-13. It is Board policy to include the broad visitatorial clause the union seeks only when the employer appears likely to resist complying with the other terms of the order. See Cherokee Marine Terminal, 287 NLRB 1080, 1083 (1988). The union has been unable to point to any evidence of this sort; without it, we decline to modify this portion of the order. D. Employer’s Publications Regarding the Union We have examined the documents that the employer published to its employees and remain unpersuaded by the union’s contention that the publications violated the Act. The Board reasonably read the notices as noncoercive expressions of the employer’s “views, argument, or opinion” regarding the union. NLRA § 8(c), 29 U.S.C. § 158(c). The union has failed to identify any particular in which the publications offend the Act. As long as the publications contain “no threat of reprisal or force or promise of benefit,” id,., “an employer is free to communicate- to his employees any of his general views about unionism or any of his specific views about a particular union.” Gissel Packing Co., 395 U.S. at 618, 89 S.Ct. at 1942. We affirm the Board’s decision that these notices to employees did not constitute violations of the Act. E. Employer’s Failure to Arbitrate Grievances We also agree with the Board that Xidex’s delay in submitting to arbitration did not violate sections 8(a)(5) and 8(a)(1) of the Act. The employer’s position did not amount to a repudiation of its duty to arbitrate under the union contract. Instead, the delay resulted from its position that, under the collective bargaining agreement, it had no duty to arbitrate the particular grievances in question. The Board correctly ruled that the threshold question of arbitrability is one for the courts, not for arbitration, and the employer’s delay in choosing arbitrators therefore presented no violation of the NLRA. See AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986); National R.R. Passenger Corp. v. Boston & Maine Corp., 850 F.2d 756, 759 (D.C.Cir.1988). IV. We reject, in their entirety, the petitions for review of both the employer and the union. Accordingly, we direct that the Board’s order in this proceeding be Enforced. . At the hearing, a PDM department employee testified that she was certain the move was postponed the day after the petition began to circulate. P.A. 144-48. An employee from another department corroborated this sequence of events. P.A. 158. . The conversations in which a Xidex manager declared his intent to develop a strategy to rid the company 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_genapel1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. In re COHEN et al. (Circuit Court of Appeals, Third Circuit. February 19, 1926. Rehearing Denied March 20,1926.) No. 3418. Bankruptcy <s=>467 — Master’s failure to make findings held not reviewablo on appeal from valid order setting aside order granting discharge improperly obtained. Failure of master, to whom, bankrupt’s offer of composition had been referred, to make findings of fact which creditor desired to use in opposition to discharge, held not reviewable on appeal from concededly valid order setting aside order improperly obtained granting discharge. Appeal from the District Court of the United States for the District of New Jersey; Joseph L. Bodine, Judge. In the matter of the bankruptcy of Abraham S. Cohen and another, individually and as copartners doing business as the Army & Navy Salvage Company. From an order accompanying the disposition of contempt proceedings against H. H. Weinberger and others, attorneys for bankrupts, vacating an order granting discharge which had been improperly obtained, the Endicott-Johnson Corporation, a creditor, appeals. Appeal dismissed. Harold Remington, of New York City, for appellant. Furst & Furst, of Newark, N. J., for appellee Van Cleve. Collins & Corbin and Harry E. Walburg, all of Jersey City, N. J., for appellees Weinberger. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. WOOLLEY, Circuit Judge. At the hearing, it was plain that this motion to dismiss the appeal could be allowed on formal defects in the appellate proceeding. We endeavored, however, to ascertain the bearing of the motion on the highly confused record. In doing this, we heard the entire case on the merits. Desiring to quiet the appellant’s concern, we shall so decide it. A statement of the facts will, we think, dispose of the ease. Somewhat disentangled, they are these: Cohen and Janes, bankrupts, made an offer of composition which the court referred to a special master for report on its allowance or disallowance. With an eye to future proceedings for discharge and with the purpose of developing in the composition proceedings evidence for use in the discharge proceedings — on the theory that what is a bar to composition is equally a bar to discharge — a creditor (the appellant) opposed the confirmation. The master reported in favor of confirmation but in doing so he did not make findings which the creditor desired for future use. Before the report was confirmed the creditor obtained from the court an order remanding the reference to the master with directions to complete his work by making findings. While the matter was pending, the court by order permitted the bankrupts to withdraw their offer of composition. Their estates were then settled and distribution made by final dividends. The controversy, however, went on. The court set aside its order permitting the withdrawal of the offer of composition but made an order confirming in part a later report of the master denying composition. Then the bankrupts filed a petition for discharge. This was opposed by the creditor who, still desiring fact findings on the evidence produced in the composition proceedings for use in the discharge proceedings, moved for an order to make the master find facts. The court made such an order, staying the discharge proceedings. Notwithstanding one judge of the court had ordered a stay of the discharge proceedings pending the completion of the composition proceedings, the master made a report recommending the .discharge, and counsel for the bankrupts — innocently, they say — went to another judge and obtained from him an order confirming the master’s report and granting the discharge. In contempt proceedings which followed, these counsel were first adjudged guilty and then exonerated. Accompanying the disposition of the contempt proceedings the court entered an order vacating the order of discharge which had been thus improperly en tered. From the last order this appeal was taken. . . It should be noted that the appellant’s action, preliminary and final, was all the time in opposition to the bankrupts’ discharge. Yet by the order vacating the order allowing their discharge the proceeding for discharge was opened, and the appellant got what it wanted, and what it needed, in order effectively to oppose the discharge. We discover no error in this order appealed from —indeed, none is charged. Reversal is distinctly not wanted. The matter of which the appellant complains is not the order appealed from but the refusal of the master to finish the composition proceedings and furnish it' with the evidence it desires for use against the discharge. The order of reference to the master, which is truly interlocutory, and his action thereunder are matters which have not been brought before us by this appeal; nor can they be reached through appeal from a coneededly valid order. They are still in the bankruptcy court where they remain to be disposed of by that court — wholly without prejudice from the order we now make that the appeal be Dismissed. 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_typeiss	A	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. UNITED STATES of America, Plaintiff-Appellee, v. Heriberto Fernandez MONSISVAIS, Defendant-Appellant. No. 89-2187. United States Court of Appeals, Tenth Circuit. July 3, 1990. Presiliano A. Torrez (William L. Lutz, U.S. Atty., with him on the brief), Asst. U.S. Atty., Albuquerque, N.M., for plaintiff-appellee. Robert Ramos (Gary Hill with him on the brief), of Hill & Ramos, El Paso, Tex., for defendant-appellant. Before SEYMOUR, BARRETT, and BRORBY, Circuit Judges. BRORBY, Circuit Judge. After filing an unsuccessful motion to suppress evidence, appellant Monsisvais entered a conditional guilty plea to possession of more than 100 kilograms of marijuana with intent to distribute. Mr. Monsisvais asserts on appeal that the discovery of the marijuana in his vehicle was the result of an illegal search and seizure. I On February 17, 1989, Bruce Goad, an agent with the United States Border Patrol, was operating a Border Patrol checkpoint station on northbound Interstate 25 near Truth or Consequences, New Mexico. Agent Goad testified that at approximately 7:30 p.m. a sensor alarm alerted the checkpoint’s officers to the presence of a vehicle traveling northbound on Highway 85, a route by which it is possible to bypass the checkpoint and which is commonly used to bypass the checkpoint. Agent Goad then looked over to Highway 85 and saw the headlights of appellant’s northbound vehicle. Accompanied by another agent, Goad drove north on 1-25 in a marked Border Patrol car to Exit 83 in order to intercept the vehicle. Exit 83 was described by Goad as the point “where State Road 52 and Highway 85 meet, ... there’s an on-ramp for 1-25 north, or if they’re going up the road or turning from 52 they can catch 1-25 south.” Goad elaborated that “there’s three ways you can go right there at the intersection” and that the intersection is “somewhat” confusing and “[pjeople have gotten lost there.” Agent Goad testified that he stopped his patrol car at the intersection with his lights off and turned his headlights on again as appellant’s vehicle drew near. Goad described the vehicle as a small Chevrolet S — 10 pickup with a camper shell and noted that he could see two occupants in the cab. He said the vehicle was “riding extremely heavy. The rear end was real low on the vehicle, and the front of the vehicle was raised like there was a lot of weight in the rear_” Goad stated that he had previously found aliens concealed in pickup trucks with camper shells, and that the pickup had Arizona plates and “we don’t get many Arizona vehicles on the old highway there.” According to Goad, appellant’s vehicle slowed as it approached the intersection, and it appeared to [Agent Goad] that he [appellant] was going to take the on-ramp on to 1-25 north, and I believe that when he saw the border patrol vehicle and the headlights, he corrected his turn. Instead of going on 1-25 north he continued on up the old highway, and eventually took the on-ramp to 1-25 south_ Goad added: It’s not an uncommon practice for aliens or alien smugglers, either case may be, if they see the border patrol vehicle, they will sometimes instead of entering the freeway northbound in the direction they were going, they will continue up the old highway, if they are using Old Highway 85, and enter the freeway southbound, sometimes they will just continue on up Old Highway 85 ’til it ends.” Goad further testified that, after noticing “the weight and the two occupants and the out-of-state plates, it kind of aroused my suspicions and we stopped the vehicle on 1-25 southbound, pretty close to the exit.” After questioning appellant as to his citizenship, Goad smelled “a very strong odor of marijuana” emanating from the camper shell. Goad then placed appellant and his passenger under arrest for possession of marijuana. After another agent arrived at the scene with a dog to verify the marijuana odor, the agents opened the camper shell and discovered the marijuana inside. At the conclusion of the hearing on the Motion to Suppress, the district court announced its findings and conclusions from the bench: The Court finds that Agent Goad was working the T or C fixed checkpoint when they had a sensor alert on Highway 85, which is the old Highway 85 which now parallels 1-25. That he observed a car proceeding north on 85. That he stationed himself at the intersection of 85, 52 and 1-25. That — at least he perceived that when the vehicle noticed his presence, the vehicle continued on 85 and then proceeded to the ramp, which then placed the defendant’s car traveling south on 1-25. I should state that the reason why the sensor on 85 was placed was an attempt to alert the checkpoint to vehicles which normally were using 85 to circumvent the fixed checkpoint. Upon noticing the vehicle he noticed that it was riding extremely heavy, using his words. That it had Arizona plates and that it was not common to see an automobile with Arizona plates in that vicinity. And so he then proceeded to follow the vehicle and then he suspected that it might contain illegal aliens, as there was a camper on the pickup, and so therefore he stopped the vehicle. [T]hat this is an appropriate and proper Terry stop.... Additionally, the district court held that the subsequent search was proper. Appellant now challenges the legality of both the stop of the vehicle and the resulting search. Because we reverse the district court on the issue of the investigatory stop, we do not address the propriety of the search. II This case returns the court to familiar geographic and legal territory; we have frequently been called upon to assess the legality of investigatory stops made by the Border Patrol near the New Mexico-Mexico border. See, e.g., United States v. Pollack, 895 F.2d 686 (10th Cir.1990); United States v. Merryman, 630 F.2d 780 (10th Cir.1980); United States v. Leyba, 627 F.2d 1059 (10th Cir.), cert. denied, 449 U.S. 987, 101 S.Ct. 406, 66 L.Ed.2d 250 (1980); United States v. Sperow, 551 F.2d 808 (10th Cir.), cert. denied, 431 U.S. 930, 97 S.Ct. 2634, 53 L.Ed.2d 245 (1977). An investigatory stop need not be supported by probable cause. United States v. Espinosa, 782 F.2d 888 (10th Cir.1986). However, Border Patrol “officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.” United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975) (extending Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to the border context). Stated alternatively, an investigatory stop is justified when an officer “observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” Terry, 392 U.S. at 30, 88 S.Ct. at 1884. In determining whether there is reasonable suspicion to stop a car in the border area, officers may consider any number of factors, including: (1) characteristics of the area in which the vehicle is encountered; (2) the proximity of the area to the border; (3) the usual patterns of traffic on the particular road; (4) the previous experience of the agent with alien traffic; (5) information about recent illegal border crossings in the area; (6) the driver’s behavior, including any obvious attempts to evade officers; (7) aspects of the vehicle, such as a station wagon with concealed compartments; and (8) the appearance that the vehicle is heavily loaded. 422 U.S. at 884-85, 95 S.Ct. at 2581-82. Additionally, an “officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling.” Id. at 885, 95 S.Ct. at 2582 (citing Terry, 392 U.S. at 27, 88 S.Ct. at 1883). In United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), the Supreme Court provided further direction for applying the Terry/Brignoni-Ponce standard: Terms like “articulable reasons” and “founded suspicion” are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances — the whole picture — must be taken into account. Based upon that whole picture the de-taming officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. 449 U.S. at 417-18,101 S.Ct. at 695 (emphasis added). Incorporating the “totality of the circumstances” relied upon by appellees in support of the instant stop, we fashion the reasonable-suspicion question before us as follows: Whether the Border Patrol agents operating the Truth or Consequences checkpoint may stop every heavily loaded pickup truck bearing a camper shell and out-of-state license plates that travels northbound on this stretch of Highway 85 at 7:30 p.m. For the reasons outlined below, we believe the question must be answered in the negative. Appellee places considerable significance on the fact that appellant was intercepted while traveling northbound on Highway 85. To be sure, all parties agree that it is possible to bypass the permanent checkpoint by traveling Highway 85. However, due to the state of the record before us, this fact represents the sum total of our knowledge about this stretch of highway. The record is barren of information describing the origins of Highway 85 in this area and thus fails to instruct us as to the types of legitimate traffic that might be expected to make use of the road at this time of day. For all the record reveals, this stretch of Highway 85 might be the sole artery connecting the city of Truth or Consequences to northbound 1-25, or it may represent a primary means of access from 1-25 to Elephant Butte Reservoir. We certainly are not willing to assume without some evidence that “old” Highway 85 is some decaying dirt road or that checkpoint circumvention is its lone practical utility. Accordingly, we cannot conclude that Highway 85 has no significant legitimate traffic during the early evening hours. In short, the record does not provide us a basis for concluding that a vehicle’s presence on Highway 85 at 7:30 p.m. is at all unusual, much less that it is suggestive of criminal conduct. Similarly, the record does not enable us to attach any particular significance to the appearance of Arizona license plates in this area. Although Arizona cars must certainly be less common on this stretch of road than those bearing New Mexico plates, we cannot find any basis in the record from which to conclude that Arizona-plated vehicles are any more likely to be transporting aliens near Truth or Consequences than are vehicles bearing the license plates of New Mexico or, for that matter, Texas or Colorado. We are also unable to ascribe any significance whatsoever to the driving maneuvers of appellant as he approached Highway 85’s intersection with 1-25. As Agent Goad testified, three highways — Highway 85, 1-25 and state road 52 — converge at this point. He admitted that the intersection is confusing and that “[pjeople have gotten lost” there. Thus, any out-of-state traveler might well appear confused approaching the intersection, slow down to determine which exit to take or even make a wrong turn. Appellee argues that “the truck ... turned south rather than North on [1-25] after spotting the border patrol. This action was considered evasive by the border patrolman.” However, appellant’s driving behavior simply does not elicit the same types of logical inferences and suspicions as do other “evasive” maneuvers encountered by this court in similar cases. For example in Pollack, the appellant’s vehicle first approached the Truth or Consequences checkpoint and turned back south on Interstate 25 after asking for directions to the nearest gas station. After responding to two sensor alerts on northbound Highway 85, agents then discovered the appellant’s vehicle leading a second vehicle that later was found to be carrying contraband. Based on the record before it, the Pollack court referred to the use of a “scout” car in this fashion as “a classic alien smuggling pattern.” 895 F.2d at 687, 689. Similarly, in Merryman the Border Patrol officer made an investigatory stop after observing a pickup truck make a direct U-turn just prior to reaching a permanent checkpoint. 630 F.2d at 781. More importantly however, we find that the inferences drawn here by Agent Goad from the fact that appellant turned south at the intersection cannot withstand rational analysis. Revisiting Goad’s testimony, he asserted: It’s not an uncommon practice for aliens or alien smugglers, either case may be, if they see the border patrol vehicle, they will sometimes instead of entering the freeway northbound in the direction they were going, they will continue up the old highway, if they are using Old Highway 85, and enter the freeway southbound, sometimes they will just continue on up Old Highway 85 ’til it ends. ... [I]f they see the border patrol vehicle ... [aliens or alien smugglers] do a little bit of everything. In other words, no matter which direction appellant might have traveled upon reaching the intersection — north on 1-25, south on 1-25 or straight ahead on Highway 85— his actions would have been “suspicious” to Agent Goad. Plainly, not every suspicion that is “articulable” is reasonable. We are left to consider the fact that appellant was traveling in a pickup truck with a camper shell and that the vehicle was “riding heavy.” While these facts represent two significant factors detailed in Brignoni-Ponce, they are not automatic indicia of criminal conduct. A pickup truck with a camper shell has any number of legitimate uses — commercial, agricultural and recreational — that may periodically require the transportation of heavy cargo. Accordingly, we consider it fatal to the legality of the instant stop that the evidence as to these particular aspects of the vehicle has not been supplemented by record evidence of any other salient factors tending to support a reasonable suspicion. As we have demonstrated, the record is silent as to the characteristics of the area in which the vehicle was encountered, the proximity of the area to the border, the usual patterns of traffic on the particular road and information about recent or expected illegal immigrant activity in the area. Additionally, the record does not provide details of the agent’s previous experience with alien traffic beyond Agent Goad’s suggestions that “sometimes” alien smugglers use pickups with camper shells and “sometimes” they travel Highway 85. As such, the record fails to provide the “whole picture” necessary to justify the stopping of this heavily loaded pickup truck on this road at this time of day. Were we to conclude otherwise based on this record, we would effectively emasculate the Terry/Brignoni-Ponce standard in this circuit and render suspect and subject to stop every heavily loaded out-of-state vehicle traveling this stretch of roadway that is capable of transporting and concealing human beings. Accordingly, we hold that the totality of the specific articulable facts presented in this case, together with the rational inferences to be drawn therefrom, do not reasonably warrant suspicion that appellant’s vehicle contained persons illegally in the country. The decision of the district court is REVERSED. . The record does inform us, via Agent Good's testimony, that state road 52 leads to a lake. Thus, it is conceivable that some travelers might use Highway 85 to access state road 52 for recreational purposes. . By contrast, the record in Leyba provided this court with evidence with which to weigh the significance of a vehicle’s presence on another highway in New Mexico at 2:55 a.m.: U.S. Highway 180 is considered a major artery for smuggling undocumented aliens from Mexico, northward. During the year prior to Leyba's arrest, 1,163 undocumented aliens were apprehended on Highway 180. Agent Martinez testified that the majority of alien trafficking on Highway 180 took place between 2:00 a.m. and 7:00 a.m. — hours during which traffic at the point of the stop averaged only one or two cars during the entire period. (Leyba testified that he had not seen any cars on Highway 180 in the hour before he was stopped.) In contrast, the average daily traffic on Highway 180 from Silver City to the Route 78 turnoff was 1,031 vehicles per day in 1978. Just southeast of Cliff, New Mexico, there averaged 1,071 vehicles per day; at the town of Cliff on Highway 180 an average of 1,473 vehicles per day was observed, and just north of Cliff, New Mexico, traffic on Highway 180 averaged 878 vehicles per day. Of these vehicles, 14.1% were passenger cars with out-of-state license plates. Officer Martinez, based on past experience, estimated that fifty percent of the smugglers apprehended were driving vehicles bearing out-of-state plates. 627 F.2d at 1061 (footnote included parenthetically). Similarly, in Sperow, we affirmed the stop of a vehicle traveling a mile and one-half from the Mexico border at 2 a.m. in part because “testimony showed that the ranchers in the area were not prone to drive the roads in question at 2 a.m. so that it was inferable that the vehicle had passed the border.” 551 F.2d at 810-11. . We do not suggest that a sufficient documentation in the record of an agent’s reasonable suspicion must contain any particular number or combination of the factors suggested in Brig-noni-Ponce. We simply hold up those factors as a benchmark by which tq demonstrate the woeful lack of information submitted to support the instant stop. 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_genapel1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. In re VISKING CORPORATION et al. No. 5038. Circuit Court of Appeals, Fourth Circuit. April 8, 1943. Before PARKER, SOPER, and DO-BIE, Circuit Judges. Lawrence Bristol, of New York City (Elmer R. Helferich, of New York City, C. O’Conor Goolrick, of Fredericksburg, Va., Wm. S. Pritchard and Harry H. Levin, both of New York City, and Lewis C. Williams, of Richmond, Va., on the brief), for appellants. Paul W. Kear, Clerk of the District Court, of Norfolk, Va., in support of the decree of the District Court. PARKER, Circuit Judge. This is an appeal from an order of the District Court determining costs to be taxed in connection with the certifying by the clerk of a record on appeal to this court. The papers constituting the record consisted of copies of pleadings, testimony and exhibits made outside the clerk’s office at the expense of the parties. They were furnished by the parties to the clerk and by him assembled, compared with the originals on file in his office and certified as the record on appeal. Under the order appealed from, the clerk’s fee was fixed at $1,112.70, based on 7,418 folios at 15 cents per folio. The contention of appellants is that the fee should have been fixed at $370.90, based on the same number of folios at 5 cents per folio. The question involved is whether paragraph 11 or paragraph 12 of the Act of February 11, 1925, 43 Stat. 858, 28 U.S. C.A. § 555, subds. 11, 12, is controlling. These paragraphs, which are a part of the statute prescribing fees to be charged by the clerk, are as follows: “11. For making and comparing a transcript of record on appeal or writ of error when required or requested, 15 cents for each folio of one hundred words. “12. For comparing any transcript, copy of record, or other paper not made by the clerk with the original thereof, 5 cents for each folio of one hundred words.” Since the clerk did not make but merely compared the copies furnished him in making the certificate to this court, it is clear, we think, that paragraph twelve is the provision applicable and that only 5 cents per folio is taxable as costs for the service. We are not impressed with the argument that the clerk makes the record for the appellate court. The theory underlying appeal under the new rules is that the appellate court has before it, in the form of copies, the record of the court below, or such parts of it as the parties may designate, including always the portions specified in Rule 75 (g), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The clerk is required to certify and transmit to the appellate court “a true copy” of the portions of the record designated by the parties or required by the rule; and the rule provides that the copy so certified and transmitted shall constitute the record on appeal. What the clerk does under the rule, therefore, is merely certify and transmit a copy of the record or portions of the record of the lower court, not make a record. If he makes the copy which he certifies and transmits, the fee taxed is 15 cents per folio. If he merely compares copies furnished by the parties, it is 5 cents per folio. Fastening the papers together, or striking out unnecessary portions of copies furnished him, does not, we think, justify the higher rate. The clerk relies upon an opinion of comptroller Tracewell rendered in the year 1902, interpreting sec. 828 of the Revised Statutes, 28 U.S.C.A. § 555, which provided: “For entering any return, rule, order, continuance, judgment, decree, or recognizance, or drawing any bond, or making any record, certificate, return, or report, for each folio, fifteen cents. “For a copy of any entry or record, or of any paper on file, for each folio, ten cents.” The opinion of the Comptroller was to the effect that the certification was the making of a record for which the 15 cent rather than the 10 cent charge was taxable, and a number of District and Circuit Court decisions are in accord. See Blain v. Home Ins. Co., C.C., 30 F. 667; McIlwaine v. Ellington, C.C., 99 F. 133; Mohrstadt v. Mutual Life Ins. Co., C.C., 107 F. 872, 145, Id., C.C., F. 751; Thornton v. Ins. Co., C.C., 125 F. 250; Hoysradt v. Delaware L. & N. R. Co., C.C., 182 F. 880; Sarfert Co. v. Chipman, D.C., 205 F. 937. Contra, Cavender v. Cavender, C.C., 10 F. 828. These decisions, however, are not convincing. More impressive, we think, is the decision to the contrary of the Circuit Court of Appeals of the Third Circuit in United States v. Oliphant, 3 Cir., 230 F. 1, 13. In that case, after referring to the fact that the question had been a controverted one in the Circuit Courts since 1882 and reviewing the decisions, the Court, speaking through Judge Woolley, went on to say: “By the first paragraph quoted, the statute provides that ‘for entering any return, rule, order, continuance, judgment, decree or recognizance, or drawing any bond or making any order, certificate, return or report,’ a charge shall be made at the rate of 15 cents a folio. “The acts here contemplated are original in their nature. They are such and only such as occur and are required to be performed in the progress of the cause. They ■constitute the recorded entries of the court’s doings and of the court’s orders and judgments, both interlocutory and final. They are original acts in the sense of being the first of their character or in their ■order, and in the sense of deriving their ■origin from no previous record. They are original in the sense employed in several of the cases cited, in that they require original thought and judgment to make them conform precisely to the things done or ordered. They have to do with the building of a record, which must accurately and fully disclose the acts and rulings of the court upon the matter in controversy. They are, therefore, of a higher dignity and impose a greater responsibility in their performance than acts contemplated by the second paragraph quoted from the statute. “The second paragraph provides that ‘for making a copy of any (entry or) record, or any paper on file,’ the fee therefor shall be at the rate of 10 cents per folio. “This paragraph contemplates services of a lesser grade for which smaller fees are to be charged, based upon a lower rate prescribed. It contemplates copying something which is already written, and compiling the ■copies of something which already exists. Originality, discretion or judgment connected with such a service, if it be the making of a certified transcript of a record for use in an appellate court, is restricted to the selection of the parts of the record required by the rules to be transcribed, and responsibility in copying the same is limited to accuracy.” The Act of 1925 prescribing the present fee bill modified the provisions of R.S. § 828 and the old decisions throw little light on the question before us. We find only one decision bearing upon the question since the enactment of that statute, but it seems very much in point and supports the position that the 5 cent and not the 15 cent charge is the one properly taxable. In re King, 5 Cir., 73 F.2d 175, 177. In that case it was held that an appellant is entitled to have the record on appeal printed and is not obliged to have it printed by the clerk, and that if appellant has it printed and has the clerk certify a printed copy of the transcript to the appellate court, the clerk is entitled to fees under 28 U.S.C.A. § 555 for making copies and “for comparing copies, including a printed copy of the transcript, with the originals on file in his office”. (Italics supplied). In such case, if appellant needs copies of papers on file in the clerk’s office for printing, he must pay the clerk for copies “and for comparing with the originals any copies furnished by him”. The court said: “The fees of the clerk of the District Court, in so far as they are here material, are enumerated in 28 U.S.C.A. § 555. The clerk is allowed 15 cents a folio for a copy of any record, entry, or other paper, or for making and comparing a transcript of record on appeal when required or requested, and 5 cents a folio for comparing any transcript, copy of record, or other paper with the original. If the appellant, proceeding under 28 U.S.C.A. § 865, causes a record to be printed, one of the printed transcripts is certified by the clerk, and it takes the place of, and dispenses with the necessity theretofore existing of requiring, a written or typewritten transcript of the record. In that event the clerk is only entitled to the fees under 28 U.S.C.A. § 555 for making copies of original records, entries, and papers, and for comparing copies, including a printed copy of the transcript, with the originals on file in his office. But the appellant is not entitled to take out of the clerk’s office original court records, such as transcripts of evidence, bills of exceptions, or other original papers and documents on file in the case, for the purpose of having printed copies made, and a rule which prevents him from doing so is well within the discretion of the District Court. He must pay the clerk for copies of such original papers on file as he needs for printing and for comparing with the originals any copies furnished by him.” (Italics supplied). If there were any doubt as to which of the provisions of the statute is here applicable, it should be resolved in favor of the lower costs which would result from the application of paragraph twelve. The whole trend of recent legislation and rule making is toward a simplification of procedure and a lessening of the burdens of litigation, and there is no reason in exacting of litigants who furnish copies for certification of the record on appeal the same fees as paid by those who require the clerk to make the copies as well as compare and certify them. We think, however, that there is no doubt as to the proper interpretation of the statute and that its clear meaning is that, where, as here, all that the clerk does is compare and certify copies furnished by the litigants, all that may be taxed as costs for the service is 5 cents per folio plus, of course, the fee for the clerk’s certificate. For the reasons stated, the judgment appealed from will be reversed and the cause will be remanded with directions to re-tax the costs as herein indicated. Reversed. 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_crossapp	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case. UNITED STATES of America, Plaintiff-Appellee, v. Alan Forest HERBST, Mark Blane Griffin and Stephen Dale McGowan, Defendants-Appellants. No. 80-7341. United States Court of Appeals, Fifth Circuit. Unit B April 8, 1981. Kenneth T. Humphries (Court appointed), Atlanta, Ga., for Herbst., Jay Strongwater, Asst. Federal Public Defender, Atlanta, Ga., for Griffin. Michael A. Kessler (Court appointed), Atlanta, Ga., for McGowan. Richard W. Hendrix, Asst. U. S. Atty., Atlanta, Ga., for United States. Before TJOFLAT and FRANK M. JOHNSON, Jr., Circuit Judges and SCOTT , District Judge. District Judge of the Middle District of Florida, sitting by designation. FRANK M. JOHNSON, Jr., Circuit Judge: Facts Appellant Alan Herbst was convicted after a non-jury trial of knowingly, intentionally and unlawfully possessing. 110.1 grams of cocaine hydrochloride with intent to distribute in violation of 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A. § 2. Appellants Mark Griffin and Stephen McGowan were charged with aiding and abetting Herbst; Griffin and McGowan were also found guilty by a jury of violating 21 U.S. C.A. § 841(a)(1) and 18 U.S.C.A. § 2. Our review of the record reveals that appellants’ contentions that the district court erred by denying their motion to suppress and by failing to grant use immunity to a defense witness are without merit. Accordingly, their convictions are affirmed. On November 15, 1979, Officers Brennan and Green of the Broward County Sheriff’s Airport Detail observed the movements of Herbst, McGowan and Griffin at the Ft. Lauderdale, Florida, airport. The officers saw a man, later identified as appellant Herbst, enter the terminal and briefly scan the area around him; he ceased his scanning activity when he apparently made eye contact with two men, later identified as appellants Griffin and McGowan, who had entered through a different entrance. Officer Brennan overheard Griffin and McGowan identify themselves as Garrett and Davis at the Delta ticket counter; Griffin and McGowan were requesting new seats in the coach section for Delta Flight # 906 to Atlanta and then Flight # 333 to Memphis since the third member of their party, a Mr. Cleveland who had made the reservations, would not be joining them. Meanwhile, Officer Green observed Herbst at a ticketing position several feet away identify himself as A. Cleveland; Herbst told the ticketing agent that the first class reservations had been made by Garrett and Davis but that they were unable to make the trip. After the three men left the ticket counter they were observed meeting together at a bar in the terminal. Officer Brennan also learned from the Delta ticket agent that passenger Cleveland (Herbst) stated that he had no identification and paid for his ticket in cash. None of the appellants checked any luggage; Herbst had a garment bag which he carried with him and Griffin and McGowan had one small blue suitcase between them which was also carried on board. Officer Brennan decided he needed assistance in interviewing the three men that he suspected were drug couriers. He relayed the information he had to Drug Enforcement Administration [DEA] Agent Mathewson in Atlanta. Agent Mathewson made a further check on the Passenger Number Reservations [PNRs] histories of the three suspects and learned the following information from three separate PNRs. First, a party of three consisting of S. Davis, M. Garrett and Cleveland had reservations on Delta Flights # 906 and # 333 that were made after reservations for an earlier flight had been changed; this PNR had a local call back number that was listed as the Wilton Manors, Florida, Police Department. Second, Cleveland’s PNR for Flight # 906 did not have a local telephone contact and revealed that this reservation was made two minutes prior to those made by passengers Davis and Garrett. Third, Cleveland’s PNR cancelling his reservation for the earlier flight to Memphis again showed that the three men were to travel together and that this reservation was also made within two minutes of the ones made by passengers Davis and Garrett; moreover, the local call back number on this PNR (which was only one digit different than the call back number to the Police Department) was listed to the Gateway Hotel in Ft. Lauderdale. A night manager at the hotel told Mathewson that a Mark Garrett had registered for two people at 5:45 a. m. that same day and had checked out before noon; moreover, Garrett had paid in cash, gave no address, and arrived without a car. Mathewson then relayed all of this information to Atlanta based DEA Agents Markonni and Chapman and Police Detective Burkhalter. The officers met Flight # 906 and, relying on Brennan’s descriptions, noted that suspect Cleveland (Herbst) was one of the first passengers to deplane. Herbst then waited and watched the other passengers deplane; suspect Davis (Griffin) deplaned and spoke briefly to Herbst. Suspect Garrett (McGowan) exited next, carrying the blue suitcase, and the three men had a brief conversation before they walked to the departure gate for their connecting flight to Memphis. Agents Mathewson and Chapman approached Griffin, who was the first of the three suspects to exit from a rest room. The agents identified themselves as police officers and asked if he minded talking to them, and Griffin indicated his consent. Griffin’s ticket envelope contained two tickets issued to S. Davis and M. Garrett; in response to a question from Mathewson, Griffin said he was Steve Davis. Griffin said he had no other identification and appeared very nervous. Agent Markonni and Detective Burkhalter observed Herbst and McGowan leave the rest room and walk toward Griffin and the other agents. After a brief conversation, McGowan approached the area where Griffin was being interviewed while Herbst walked past the interview area. Agent Mathewson asked McGowan if he was Garrett and McGowan replied yes. However, when asked for identification, McGowan gave the agent his driver’s license which read Stephen Dale McGowan. McGowan then admitted his name was not Mark Garrett. In response to further questions about the nature of their trip, Griffin stated he was visiting a relative and had been there for two or three days. The agents then identified themselves as federal narcotic agents and asked them if they were carrying drugs; McGowan and Griffin said no. The agents then asked if McGowan and Griffin would agree to a search of themselves and the blue suitcase. They agreed and followed Mathewson’s suggestion that the search be conducted in the more private Delta employees’ lounge. Once in the lounge, Mathewson read Griffin and McGowan their rights concerning the search; both again agreed to be searched. Agent Chapman then informed them that he observed McGowan throw a suspected marijuana cigarette on the floor as they had walked into the lounge. The search of the two men and the suitcase did not reveal any other drugs but did disclose Griffin’s true identity and an airline ticket on Griffin showing travel from Memphis to Miami during the early morning hours of that same day. During the search, the other officers maintained surveillance of Herbst. Herbst continually watched the search from a distance and appeared nervous and concerned about the search. A few minutes later Agent Markonni and Detective Burkhalter approached Herbst and after identifying themselves asked if they could talk to him for a few minutes. Herbst agreed, showed his ticket issued to A. Cleveland and said his name was A1 Cleveland. In response to further questions Herbst stated that he had no identification, he was traveling alone, and he had stayed at a friend’s house for several days. Herbst also said that he was not carrying drugs and would consent to a search. Agent Markonni again asked him if he was traveling alone and he said no. Agent Markonni gave Herbst the option of being searched in public or inside an office and Herbst indicated he preferred the Delta office. Upon entry, Mathewson announced that both of his suspects had been lying and that a marijuana cigarette had been found. Markonni pointed at Griffin and McGowan and asked Herbst if he knew them and he denied knowing them. Markonni advised Herbst that he had the right to refuse or to allow a search and that he had the right to consult an attorney prior to a search; Herbst indicated he understood and agreed to a search of his garment bag. However, Herbst, who appeared very nervous, would not allow the agents to search his body as it was a personal embarrassment to him, a reputable businessman. The search of the bag revealed two used tickets issued to A. Cleveland and S. Davis for a flight from Memphis to Miami that arrived during the early morning hours of the same day. Herbst was searched over his protest and approximately 146.4 grams of suspected cocaine were found concealed in his right boot. Agent Markonni formally placed Herbst under arrest while Agent Mathewson arrested Griffin and McGowan. Appellants made a pretrial motion to suppress the evidence seized by the DEA agents. After a full evidentiary hearing, United States Magistrate Dougherty found that probable cause existed for the arrests and recommended that the motion to suppress be denied. The United States District Court for the Northern District of Georgia adopted the United States Magistrate’s report and recommendation (with a few exceptions) and held that the search was legal. One day prior to McGowan’s and Griffin’s trial, Griffin’s counsel moved for a continuance on the basis of representations made by Herbst’s attorney that Herbst could give exculpatory testimony if he could testify after his sentencing. Herbst had already been convicted on the basis of stipulated facts and indicated he was willing to testify if he was granted immunity. The district court denied the motion for continuance; after the Government rested its case, McGowan and Griffin again moved that the court grant use immunity to Herbst to allow him to testify for the defense. The district court denied this oral motion because it could not find any authority for the granting of judicial use immunity. Herbst was called as a defense witness but he claimed the Fifth Amendment in response to all questions. Defense counsel never made a specific proffer of what Herbst’s testimony would disclose. Appellants Herbst, McGowan and Griffin all appeal the denial of their motion to suppress; McGowan and Griffin also appeal the district court’s failure to grant use immunity to Herbst. The Search It is well settled that McGowan and Griffin cannot challenge the constitutionality of the search of co-defendant Herbst because they failed to prove any legitimate expectation of privacy regarding a personal search of Herbst. Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 2562, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Evans, 572 F.2d 455, 486 (5th Cir.), cert. denied, 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978). McGowan and Griffin were both charged with possession of the cocaine found taped to Herbst’s leg; they could claim the benefit of the exclusionary rule only if their Fourth Amendment rights were in fact violated by the agents’ search of Herbst. Rakas v. Illinois, supra, 439 U.S. at 131-34, 99 S.Ct. at 424-26. McGowan adopted Herbst’s pretrial motion to suppress and further alleged that he had automatic standing to challenge Herbst’s search since he was charged with possession.1 ** Moreover, McGowan contends on appeal that his Fourth Amendment rights were violated because the DEA agents, operating only on the basis of certain manifestations of the drug courier profile, lacked probable cause to stop, question and search him or his co-defendants. Our review of the record reveals that the initial investigative stop of appellants McGowan and Griffin by DEA Agents Mathewson and Chapman did not violate their constitutional rights. It is clear that, if the agents had searched or seized McGowan and Griffin without their consent solely on the basis of the information in the agents’ possession prior to the stop, McGowan’s argument would have merit. Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam) held that profile characteristics alone will not give rise to the requisite reasonable suspicion necessary to justify an investigatory stop. However, on appeal neither McGowan nor Griffin challenge the voluntariness of their consent to talk to the agents; since both men were free to decline to talk to the agents, they were not seized during the initial encounter. See United States v. Berd, 634 F.2d 979, 985 (5th Cir. 1981); United States v. Bowles, 625 F.2d 526, 532 (5th Cir. 1980); United States v. Robinson, 625 F.2d 1211, 1218 (5th Cir. 1980). Moreover, once Griffin and McGowan responded to the agents’ questions, their answers supplied the agents with a reasonable suspicion that they were engaged in criminal activity. United States v. Berd, supra, 634 F.2d at 986; see also United States v. Pulvano, 629 F.2d 1151, 1155 (5th Cir. 1980). McGowan voluntarily produced his real driver’s license which proved that he had given false information to the agents when he said his name was Garrett; McGowan was also the one who dropped a suspected marijuana cigarette on the way to the office. After the voluntary search of McGowan and Griffin was conducted, the agents learned Griffin’s true identity and that both men had been lying about the length of their stay in Florida. These facts, along with the profile characteristics, provided the agents with the requisite probable cause to place McGowan and Griffin under arrest, even without the additional proof supplied by the cocaine found on Herbst. Fourth Amendment rights are personal rights that may not be vicariously asserted. Rakas v. Illinois, supra, 439 U.S. at 133-34, 99 S.Ct. at 425-26. Since McGowan and Griffin did not have “automatic standing” to challenge the legality of Herbst’s search (which produced the cocaine), their challenge to the district court’s denial of the motion to suppress must fail unless they could demonstrate a legitimate expectation of privacy in the cocaine strapped to Herbst’s leg. See Rawlings v. Kentucky, supra, 100 S.Ct. at 2561-62; United States v. Salvucci, 448 U.S. 83, 95, 100 S.Ct. 2547, 2555, 65 L.Ed.2d 619 (1980) (abrogating automatic standing doctrine). McGowan and Griffin have not asserted any privacy interests in the contraband found on Herbst; since we conclude that Herbst’s search was legal, McGowan and Griffin lack standing to attack the district court’s denial of the motion to suppress. Herbst contends that his Fourth Amendment rights were violated by the DEA agents’ warrantless search that was not founded on probable cause. Moreover, he argues that he was actually arrested when Agent Markonni asked him to accompany the agents to the Delta office for a search; thus he alleges that the Government did not meet its burden of showing that Herbst’s consent to be searched was voluntary. Our review of the factual circumstances of Herbst’s stop reveals that his contentions are without merit. Again, if the DEA agents had stopped and searched Herbst solely on the basis of certain manifestations of profile characteristics, such action would have violated Herbst’s constitutional rights. However, Herbst’s statements made immediately after the initial stop, to which the record reveals he consented, provided the agents with reasonable suspicion to detain Herbst further. See United States v. Bowles, supra, 625 F.2d at 532; United States v. Elmore, 595 F.2d 1036, 1039 (5th Cir. 1979). Herbst’s statements that he did not know McGowan and Griffin, and that he had been in Florida for several days, were proven false when his garment bag was searched. While we agree with Herbst that seizure occurred when Agent Markonni asked Herbst to accompany him to the Delta office, we do not agree that the Government failed to meet its burden of showing that Herbst’s consent to the search of his garment bag was voluntary. See United States v. Robinson, supra, 625 F.2d at 1218. Since the district court’s factual determination regarding the voluntariness of Herbst’s consent was based on the United States Magistrate’s Report, we are not bound by the clearly erroneous standard. See United States v. Pulvano, supra, 629 F.2d at 1156. Our independent review of the record reflects that once Herbst was in the Delta lounge he understood that he had the choice to consent or consult with an attorney prior to giving his consent; it is significant that Herbst gave his consent to the search of his garment bag but refused his consent to a personal body search. See United States v. Robinson, supra, 625 F.2d at 1218-19. The two ticket coupons discovered during the search of the garment bag confirmed that Herbst had been lying about the length of his stay and that he did not know Griffin, alias S. Davis. This information, along with all of the other information obtained up to that point, provided the agent with probable cause to institute a personal search of Herbst over his protest. See United States v. Bowles, supra, 625 F.2d at 533; United States v. Ashcroft, 607 F.2d 1167, 1170 (5th Cir. 1979). The cocaine seized was thus a lawful incident of Herbst’s arrest. We conclude that the district court properly denied appellants’ motion to suppress the cocaine seized at the airport. Judicial Use Immunity Appellants McGowan and Griffin assert a novel argument that their Sixth Amendment rights to compulsory process were violated by the district court’s failure to grant Herbst immunity for his alleged exculpatory testimony. Their argument is premised on the principle embodied in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1967) and its progeny, namely, that in the interests of a fair trial a defendant is entitled to exculpatory information in the Government’s possession. Thus, they contend that, because the Government was in a position to provide statutory immunity to Herbst, and McGowan and Griffin had no other means to obtain his testimony, the district court’s failure to grant judicial use immunity violated their constitutional rights. McGowan and Griffin rely primarily upon Government of Virgin Islands v. Smith, 615 F.2d 964, 969 (3rd Cir. 1980), where the Court stated that it would enter a judgment of acquittal if the Government failed to offer use immunity to an unavailable, material defense witness. There are several reasons why we decline to follow the Third Circuit in fashioning a doctrine of judicial use immunity in this case. First, the Virgin Islands case is clearly the minority view. See, e. g., United States v. Gleason, 616 F.2d 2,2 8 (2d Cir.), cert. denied, 444 U.S. 1082, 100 S.Ct. 1037, 62 L.Ed.2d 767 (1980); United States v. Lenz, 616 F.2d 960 (6th Cir.), cert. denied, 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124 (1980); United States v. Graham, 548 F.2d 1302, 1315 (8th Cir. 1977); United States v. Alessio, 528 F.2d 1079 (9th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3167, 49 L.Ed.2d 1184 (1976). Moreover, the defense never made to the district court a specific proffer as to the nature of the alleged exculpatory testimony. An affidavit filed by Herbst’s attorney, which states in conclusory terms that Herbst could offer exculpatory testimony, is the sole basis of appellants’ claim. The district court was never requested by the defense to conduct an in-camera hearing relating to the proffered exculpatory information. During oral argument appellants’ counsel were unable to demonstrate, on the basis of the record, any specific showing of prejudice to McGowan and Griffin resulting from the district court’s failure to grant Herbst immunity. There was no showing that the Government had the exculpatory information in its possession or of any prosecutorial misconduct as in the Virgin Islands case. Even if we were inclined to follow the Third Circuit’s view, the record is insufficient to allow us to conclude that McGowan’s and Griffin’s constitutional rights were violated. See United States v. Lenz, supra, 616 F.2d at 964. Finally, this Court has previously held that a district court has no authority to grant statutory immunity (under 18 U.S.C. § 6002 (1976)) to a defense witness; such authority resides exclusively in the Executive branch. See, e. g., United States v. Beasley, 550 F.2d 261, 268 (5th Cir. 1977). However, we note that the issue of whether the Sixth Amendment’s compulsory process clause or the Fifth Amendment’s due process clause may, in some circumstances, require judicial use immunity, did not arise in that case (or in any other Fifth Circuit case). Because we conclude that the record below, for reasons herein noted, is insufficient to allow us to reach these constitutional issues, the district court properly denied McGowan’s and Griffin’s motion to grant judicial use immunity to Herbst. Accordingly, the convictions of appellants Herbst, McGowan and Griffin are AFFIRMED. . Herbst’s conviction was based on stipulated facts and on evidence produced during the hearing before the United States Magistrate on appellants’ motion to suppress the seized evidence. . The United States Magistrate made an erroneous factual finding regarding the agents’ discovery of Herbst’s true identity. The United States Magistrate had concluded that Agent Markonni knew at the time of the search that Herbst had used an alias; this conclusion was erroneous as Herbst’s true identity was not disclosed until a much later point. The district court noted that its modification of certain factual findings did not alter its conclusion that probable cause existed to search Herbst. . Oral argument disclosed that presumably Herbst was going to testify that he offered McGowan and Griffin a free trip to Florida under fictitious names and that they were unaware that drugs were involved. . Apparently McGowan did not move to suppress the evidence of the marijuana cigarette that he abandoned upon entering the lounge. Griffin conceded that he did not have standing after the United States Magistrate’s report was filed. . See generally United States v. Ballard, 573 F.2d 913, 914 (5th Cir. 1978). . Since Griffin’s defense was that he was unaware that Herbst carried drugs, he certainly could not claim any expectation of privacy in the contraband. . Those characteristics included (a) Herbst’s disassociation behavior toward McGowan and Griffin in both airports, given the three PNRs linking the three aliases together, (b) his lack of personal identification at the Delta counter, (c) his nervous scanning of areas in both the Ft. Lauderdale and Atlanta airports, (d) his use of cash to pay for his ticket and lack of checked luggage, and (e) his departure from a known “source” city. . The issue of when a “seizure” of an individual has occurred and the quantum of proof necessary to justify such a seizure is an unsettled one. For example, the Supreme Court in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), did agree that agents must have reasonable suspicion to justify a seizure, but the Court could not agree whether the police-citizen contact involved constituted a seizure within the meaning of the Fourth Amendment. Similarly, this Circuit has held that a seizure requires only reasonable suspicion, see United States v. Berd, supra; United States v. Elmore, supra; on the other hand, we have also held that a seizure is an arrest requiring probable cause. See United States v. Hill, 626 F.2d 429 (5th Cir. 1980); see also United States v. Pulvano, supra, 629 F.2d at 1154 (Court suggests probable cause might be necessary in some instances to justify a seizure); United States v. Fry, 622 F.2d 1218 (5th Cir. 1980) (following Mendenhall, Court makes alternative findings). Part of the conflict is a result of differing definitions of the word “seizure.” Whether a seizure should be treated (a) as an arrest requiring probable cause, (b) as a police-citizen contact requiring no justification, or (c) as an intermediate concept between these two extremes requiring' reasonable suspicion, is an issue that has not been squarely addressed by this Circuit. See United States v. Bowles, supra, 625 F.2d at 532, n. 6; see generally United States v. Robinson, supra. The dominant view in this Circuit appears to be that a seizure occurs when an individual is no longer free to leave and is justified when supported by reasonable, articulable suspicion. See United States v. Elmore, supra. . It is clear that at this point Herbst would not have been free to leave, i. e., the agents probably would have apprehended him had he attempted to leave the terminal. See, e. g., United States v. Hill, 626 F.2d 429 (5th Cir. 1980). . We do note that, since all of defense counsel’s arguments were directed to the district court’s position that it had no authority to grant use immunity, a specific proffer probably would have been futile. . We note in passing that neither Brady nor its progeny places an affirmative duty upon the Government to assist the defense in the presentation of its case. Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case? A. No B. Yes C. Not ascertained Answer:
songer_usc2	42	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 42. 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. Eddie MIDDLETON, Appellant, v. REMINGTON ARMS COMPANY, INC., Appellee. No. 78-1513. United States Court of Appeals, Eighth Circuit. Submitted Feb. 13, 1979. Decided March 9, 1979. John E. McKay, Law Office of Arthur A. Benson, II, Kansas City, Mo., on brief for appellant. Jack W. R. Headley, of Lathrop, Koontz, Righter, Clagett, Parker & Norquist, Kansas City, Mo., for appellee; R. B. Miller, III, Kansas City, Mo., on brief. Before HEANEY and McMILLIAN, Circuit Judges, and SCHATZ, District Judge. ALBERT G. SCHATZ, United States District Judge for the District of Nebraska, sitting by designation. HEANEY, Circuit Judge. Eddie Middleton, a black man, brought this action against his former employer, Remington Arms Company, Inc., alleging discrimination on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and of 42 U.S.C. § 1981. Middleton contended that Remington Arms’ failure to recall him from layoff status to a salaried job and his subsequent dismissal from an hourly wage job were the result of racial discrimination. The District Court found no evidence of discrimination and entered judgment for Remington Arms. Middleton appeals. We affirm. Middleton began working for Remington Arms as a “wage-roll,” or hourly wage employee, in March of 1966. After seven months in this job, Middleton was promoted to a salaried position as a safety inspector. Kenneth Wyatt, another black wage-roll employee, and Gerald Foster, a white wage-roll employee, were similarly promoted. On March 19, 1971, Middleton and Foster were told that their jobs were being eliminated as part of an overall reduction in force at the Remington Arms’ plant. Because Middleton had sufficient plant-wide seniority, he was given a choice between accepting a demotion to a wage-roll job, or taking an indeterminate layoff. He chose the latter and left Remington Arms’ employ. Since Foster had insufficient plant-wide seniority to return to a wage-roll job, he was automatically placed on layoff status. Wyatt was retained in his job in anticipation of the retirement of Joe Duncan, another safety inspector. Middleton made various inquiries at Remington Arms about the availability of jobs in the safety department in July, 1972. He was informed that there were no openings in any salaried positions. He was, however, offered a wage-roll job, which he accepted. Middleton reported for work on July 17 and 18,1972. Thereafter, he failed to report for work, claiming that his job at Remington Arms conflicted with another job which he held outside. He requested a shift change at Remington Arms, but none could be arranged. His employment was terminated by Remington Arms on August 7, 1972, because he had been absent over sixteen consecutive days without an approved leave of absence. Upon his termination, Middleton lost all previously accrued seniority rights. The District Court found no evidence that Middleton “has been discriminated against in any way because of his race * * * It found that the Company’s failure to rehire Middleton to his former position as safety inspector was not discriminatory since it was established Company policy to fill salaried jobs by promoting current wage-roll employees, and all of the safety positions, which had been filled after Middleton’s layoff, were filled in this manner. The court also found that Middleton’s termination was in accordance with established Company policy, and that this policy was applied to all employees equally, regardless of race. The District Court found that the only safety inspectors hired by Remington Arms from the time of Middleton’s layoff until the time of trial were hired in June, October and December, 1973. The dispositive issue is, thus, whether Middleton was properly discharged on August 7, 1972. If he was, his claim that he was discriminatorily denied recall to the position of safety inspector is without merit since no safety jobs were filled by Remington Arms until after his discharge. Any recall rights which Middleton may have had were, of course, extinguished as of the date of a valid discharge. Middleton challenges the District Court’s holding that there was no racial discrimination in his termination on two grounds. First, he contends that the court’s findings that he was hired in July, 1972, only for a wage-roll job and that he was terminated for unexcused absences from that job are clearly erroneous. He contends that the evidence supports the conclusion that he was hired for the wage-roll job with 'the understanding that he would be immediately promoted, and that his absence from his wage-roll job was not by reason of his own volition but because Remington Arms changed his shift after he was hired to one which conflicted with his outside job. We have carefully reviewed the record and do not believe that the District Court’s findings on these issues are clearly erroneous. Middleton testified that because Remington Arms’ officials were aware of his desire to return to a position in safety when he took the wage-roll job, he “felt” that he would be quickly transferred into a salaried job. There was no evidence, however, that Middleton was ever told more than that he would be “considered” for any openings in safety if they occurred. There is conflicting evidence as to whether Middleton was hired to work on a shift at Remington Arms which conflicted with his outside job, or whether he was reassigned to such a shift after he was hired. There was ample evidence, however, from which the District Court could have concluded that Middleton was aware, when he was hired, that he would be assigned to a shift which conflicted with his outside job. In any event, there is no evidence that Middleton was ever told that absence because of an outside job conflict was excusable or that absences by other employees for this reason were tolerated. There was evidence that Middleton was advised that continued absence would result in his termination and that termination would result in the loss of any previously earned seniority rights. Under these circumstances, we cannot say that the District Court’s findings, that Middleton was terminated because of excessive unexcused absences and that his termination was in accordance with established company policy, were clearly erroneous. Middleton also contends that the District Court required a showing that his discharge was undertaken with discriminatory intent, and that this requirement was error. We disagree with this characterization of the District Court’s opinion. That court held that since there was “not one scintilla of evidence” that Middleton was treated any differently than any other employees, his claim that he was discriminatorily terminated must fail. Since Middleton’s case was premised upon the claim that he was treated differently than other employees because of his race, proof of racially disparate treatment was necessary for his proof of a prima facie case. See Teamsters v. United States, 431 U.S. 324, 335, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). We find no error on this ground. Since, as noted above, there were no openings in safety at Remington Arms from the time of Middleton’s layoff until the time of his discharge, his claim that his application for any such openings was discriminatorily denied is likewise without merit. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). We, therefore, need not reach Middleton’s contentions that certain findings of the District Court, concerning the policy used by Remington Arms to fill salaried positions and Middleton’s knowledge of the same, were clearly erroneous. Remington Arms requests an award of reasonable attorney’s fees under 42 U.S.C. §§ 1988 and 2000e-5(k), on the basis that Middleton prosecuted this appeal after he should have known that his claims were frivolous. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Although we have upheld the judgment of the District Court, we do not believe that Middleton’s contentions on appeal were so frivolous as to justify an award of attorney’s fees to Remington Arms. Affirmed. . In each case, the job was filled by a longtime employee of Remington Arms, who was employed in a wage-roll job at the time of the promotion. . We also need not reach Remington Arms’ contention the Middleton’s Title VII claim must fail because of the alleged failure of Middleton to file a timely charge of discrimination with the EEOC, Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 42. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. Answer:
sc_jurisdiction	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ. FAIRFAX FAMILY FUND, INC. v. CALIFORNIA. No. 124. Decided October 11, 1965. Herman F. Selvin for appellant. Thomas C. Lynch, Attorney General of California, Charles E. Corker, Assistant Attorney General, and Arthur C. de Goede and H. Warren Siegel, Deputy Attorneys General, for appellee. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. Question: What is the manner in which the Court took jurisdiction? A. cert B. appeal C. bail D. certification E. docketing fee F. rehearing or restored to calendar for reargument G. injunction H. mandamus I. original J. prohibition K. stay L. writ of error M. writ of habeas corpus N. unspecified, other Answer:
songer_usc1sect	1727	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 12. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". EUCLID NATIONAL BANK, Plaintiff-Appellant, v. The FEDERAL HOME LOAN BANK BOARD and the Federal Savings and Loan Insurance Corporation, Defendants-Appellees. No. 17831. United States Court of Appeals Sixth Circuit. May 7, 1968. Certiorari Denied Oct. 14, 1968. See 89 S.Ct. 130, Maxwell J. Gruber, Cleveland, Ohio, for plaintiff-appellant, R. Dugald Pearson, Zellmer & Gruber, Cleveland, Ohio, on the brief. Daniel J. Goldberg, Atty., Federal Home Loan Bank Bd. etc., Washington, D. C., for defendants-appellees, Kenneth E. Scott, Gen. Counsel, Max Wilfand, Assoc. Gen. Counsel, Washington, D. C., on the brief. Before O’SULLIVAN, McCREE and COMBS, Circuit Judges. ORDER This is an appeal by the Euclid National Bank, formerly Euclid Savings Association, from a judgment of the District Court which holds that the bank is not entitled to recover certain insurance premiums paid to the Federal Savings and Loan Insurance Corporation. The Euclid Savings Association was converted from an Ohio chartered building and loan association to the Euclid National Bank on February 1,1966. During its life as a building and loan association its savings accounts were insured by the appellee Federal Savings and Loan Insurance Corporation under the provisions of the National Housing Act, 12 U.S.C. § 1727. When it became a national bank its deposits were insured by the Federal Deposit Insurance Corporation. Under the terms of the National Housing Act the Euclid Savings Association became obligated on November 21, 1965, to pay an annual premium in advance to the Federal Savings and Loan Insurance Corporation. One-half of the premium was paid in November, 1965, and the other one-half was deferred to April, 1966, and then paid pursuant to demand. The bank contends that the portion of the premium covering the period beyond February 1, 1966, when it became a national bank, is unearned and should be returned to it. The trial judge held in a well reasoned memorandum opinion, D.C., 286 F.Supp. 125, that there is no federal statute or agency regulation applicable to this situation and, in the absence of an express agreement or one that may be implied in law, the rule is that “an insured may not have any part of his premium returned once the risk attaches, even if it eventually turns out that the premium was in part unearned.” Citing Fleetwood Acres v. Federal Housing Administration, 171 F.2d 440, 442 (2nd Cir. 1948). For the reasons stated in the District Judge’s memorandum opinion, the judgment is affirmed. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 12? Answer with a number. Answer:
songer_genresp2	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 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. N. H. NEWMAN et al., Respondents-Appellees, v. STATE OF ALABAMA and Bill Baxley, Attorney General for the State of Alabama, Petitioners-Appellants, United States of America, Amicus Curiae. No. 73-2033. United States Court of Appeals, Fifth Circuit. Nov. 8, 1974. Rehearing and Rehearing En Banc Denied Jan. 10, 1975. William J. Baxley, Atty. Gen., Herbert H. Henry, George Beck, Thomas Sorrels, Asst. Attys. Gen., Montgomery, Ala., for petitioners-appellants. Joseph Phelps, Phillip H. Butler, Montgomery, Ala., for respondents-ap-pellees. Michael S. Loftman, Civ. Rights, Dept, of Justice, Washington, D. C., Ira DeMent, U. S. Atty., Montgomery, Ala., J. Stanley Pottinger, Asst. Atty. Gen., Patricia G. Littlefield, Walter W. Barnett, Attys., Dept, of Justice, Civil Rights Div., Washington, D. C., amicus curiae. Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges. GEWIN, Circuit Judge: This appeal emanates from a district court order, reported at 349 F.Supp. 278 (M.D.Ala.1972), sustaining a challenge to the quality of medical care dispensed to inmates incarcerated in the Alabama Penal System (APS). While laboring arduously and meticulously to implement the extensive relief mandated by the district court in the interim between that decree and oral argument before this court, appellants nevertheless raise numerous evidentiary objections, contest the finding of a constitutional violation as erroneous, and dispute the authority of a federal court in fashioning remedial relief to dictate medical standards which must be implemented. Our en banc opinion in Sands v. Wainwright, 491 F.2d 417 (5th Cir. 1973), cert. denied, Guajardo v. Estelle, 416 U.S. 992, 94 S.Ct. 2403, 40 L.Ed.2d 771 (1974), prompted consideration, sua sponte, of whether the issues presented in this case were appropriate for disposition solely by a three judge court. Concluding that appellants’ contentions cannot be sustained, and that the three judge court act, 28 U.S.C. § 2281, does not pose a jurisdictional impediment to the result obtained below, we affirm. I This class action litigation was initiated by the filing of a pro se complaint, designating the State of Alabama and various named individuals including the State Attorney General and the Warden of the Mt. Meigs Medical & Diagnostic Center (Mt. Meigs) as defendants. The original complaint chronicled examples of patient neglect transpiring at Mt. Meigs, one of several institutions in the APS. After granting the request of the United States to appear as amicus curiae and appointing counsel to appear on Newman’s behalf, the district court, in a pretrial order, extended the scope of the challenge registered from merely the shortcomings at Mt. Meigs to the inadequacies prevalent in the state system as a whole. In addition, it ordered further discovery procedures, pursuant to which a multitude of interrogatories and depositions were taken, and voluminous hospital records were subpoenaed. The facts recounted in this opinion are distilled from the information produced by these procedures and the evidentiary hearing at which this information was admitted into evidence. The APS contains 5 major prisons which house several thousand inmates: (1) Mt. Meigs with 331 prisoners; (2) Holman with 677 prisoners; (3) Atmore with 1,022 prisoners; (4) Draper with 867 prisoners; and (5) Julia Tutwiler with 117 female prisoners. Additionally, the state operates 13 prison road camps which house 737 prisoners, the state Cattle Ranch which houses 25 prisoners, and the Frank Lee Youth Correctional Center in which 73 prisoners are incarcerated. Each facility is beset by certain deficiencies, though to different degrees. The most critical infirmity, from which no institution has escaped, is insufficient staffing. Although a paragon of quality when compared to the other institutions, Mt. Meigs, which serves as the central receiving unit and the general hospital and diagnostic center for the entire system, was staffed only by 2 physicians whose consolidated efforts replaced one full-time physician, 3 registered nurses, 8 medical technical assistants (M.T.A’s), 1 lab and x-ray technician, and 1 pharmacist. It lacked a hospital administrator, a dietician, a medical records clerk, and a psychiatric consultant. Moreover, because the registered nurses worked a standard week, on the weekends and at night inmates would be attended only by M.T.A’s and inmate assistants, neither of which are technically qualified medical personnel. The personnel shortages at the other institutions were more severe. Draper, for example, was staffed only by 1 M.T. A. and inmate assistants. A licensed practical nurse worked a dayshift at Tut-wiler. Atmore was serviced by 3 M.T. A’s, a part-time dentist, and a contract physician who conducted sick call 5 days a week. Holman was similarly staffed by 3 M.T.A’s unavailable on weekends, a part-time dentist and a contract physician who made 3 visits per week for two hours at a time. Neither the road camps, the Cattle Ranch, nor the Youth Correctional Center was staffed by any medical personnel. The deleterious consequences predictably occasioned by these shortages can be summarized as follows. First, it is necessary that unsupervised inmate assistants administer treatment and medication, take x-rays, give injections, and perform suturing and minor surgery on patients. Second, medical records are incomplete, inaccurate and not standardized. Third, and in conjunction with the latter deficiency, lines of therapeutic responsibility, if any exist, are poorly organized with the result that both doctors and their subordinates are often unaware of their responsibilities with respect to particular patients. Finally, emergency patients at Mt. Meigs are, as the medical records of several inmates reveal, left unattended for protracted periods of time. Beyond staff deficiencies, the institutions suffer from unsanitary conditions. For example, although Mt. Meigs contains separate wards for tuberculosis and hepatitis patients, soiled linens and dishware from these wards are cleansed in the same area as the linens and dishware of the general ward population, a fact which heightens the potential for contagion. At one of the institutions, a whirlpool was discontinued due to a “lack of adequate material to clean [the] pool for staph infection.” Moreover, the physical plants of some of the facilities, particularly Draper and Julia Tutwiler, were in such a state of disrepair that sanitary conditions were jeopardized. Assessments of the quality and quantity of medical supplies varied from institution to institution. For example, Dr. Joseph Alderete, the Hospital Director for the U. S. Penitentiary Hospital in Atlanta, Georgia, who conducted a survey of medical care in the APS, maintained that the drug supply at Mt. Meigs was adequate although some of the drugs administered were obsolete. At other institutions, chronic shortages were claimed to exist. Moreover, one institution was known to have employed rags and towels in lieu of gauze, the supply of which had been depleted. The institutions generally also suffered from the existence of either ill-serviced or anachronistic equipment and medical procedures. For example, Tut-wiler, the women’s institution, employed drip ether as an anesthetic in delivery operations, despite estimates that this method had not been used after 1953. Dental equipment at several of the facilities was generally characterized as outmoded. Moreover, witnesses related instances of x-ray machines that were not monitored for leakage and hence were potential sources of radiation exposure. Witnesses identified numerous other foibles, including the absence of ambulances at the institutions, the lack of established procedures for fire emergencies, the existence of interminable delays in effecting medical referrals to Mt. Meigs and, in individual cases, in filling requests for eyeglasses and prosthetic devices, and the inadequacy of facilities for geriatric inmates. Finally, despite an estimate by Dr. Mracek, Medical Director of the Board of Corrections, that approximately one-third of the inmate population suffers from mental retardation, and an assessment by Dr. Alderete that 60 percent of the inmates are disturbed enough to require treatment, the APS provides only nominal assistance to mentally ill inmates. At the time this suit was filed, the Board of Corrections employed one clinical psychologist who devoted one afternoon per week to disturbed inmates at Mt. Meigs and spent an equally limited amount of time at Draper and Tut-wiler. No psychiatrists, social workers or counsellors were employed in the system. Additionally, obstreperous inmates were often placed in the general population and when finally removed, were left unattended in lockup cells not equipped with restraints. The record is replete with examples of inmates upon whom untold suffering was visited as a result of these deficiencies. These examples provide graphic testimony to the cumulative shortcomings which beset the APS. One inmate, a quadriplegic suffering from a maggot infested wound because of unchanged dressings, was forced to endure approximately 20 additional days after the problem was identified before the wound was cleaned and the dressings changed. Another patient, a geriatric rendered partially incontinent by a stroke, was required to sit day after day on a wooden bench beside his bed so that the bed would be kept clean. He reportedly fell from the bench and his legs, one of which was subsequently amputated, became blue and swollen. He died one day after the amputation. Because of the unavailability of a surgeon to attend an inmate who had sustained a serious head injury, a doctor was forced to employ towels and clamps to remove the inmate’s skull from his brain. One inmate, transferred to Mt. Meigs as an emergency case, was not seen by a doctor until after a lapse of two days. The record contains numerous other examples of inmates who were discharged from facilities as cured or who were dismissed as malingerers, and yet were subsequently discovered to be suffering from an infectious malady or a terminal disease. The district court found that the pitfalls inhering in the quality of medical care afforded inmates of the APS transgressed the interdictions of the cruel and unusual punishment clause of the eighth amendment. The ameliorative decree ordered that extensive relief be undertaken. In addition to enjoining the APS from, inter alia, failing to formulate plans detailing emergency evacuation procedures and sanitation measures to be implemented, failing to provide drugs, eyeglasses and prosthetic devices to inmates in need, and failing to place geriatric inmates in separate uncrowded quarters, the district court ordered the APS to take the following measures: (1) elevate the Mt. Meigs Medical & Diagnostic Center to a quality comparable to that envisioned in the United States Department of Health, Education & Welfare Proposed Revised Regulations for Participation of Hospitals in Medicare Programs; (2) formulate within 90 days a plan detailing the nature and extent of care to be provided at each infirmary facility, including the evaluation and modernization of equipment and medical techniques; (3) conduct a survey of staffing needs and file proposed minimum staffing requirements for each of the institutions; (4) adopt procedures which would facilitate the expeditious administration of treatment to emergency patients and inmates referred to Mt. Meigs, (5) circumscribe the functions unlicensed personnel could perform; and (6) ensure that needed medical care be provided to any afflicted inmate. II Although not raised by the parties below or in their briefs on appeal, this court, sua sponte, requested opposing counsel to address the issue of whether a three judge court should have been convened to adjudicate the merits of Newman’s claims. Since this issue is jurisdictional, we are. required to consider it, despite the failure of the parties to introduce it at any previous stage in the litigation. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452, 460 (1974); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153, 83 S.Ct. 554, 9 L.Ed.2d 644, 652 (1963); Sands v. Wainwright, 491 F.2d 417, 424 (5th Cir. 1973); Johnson v. Netterville, 488 F.2d 394, 395-396 (5th Cir. 1974). The relevant portion of the three judge court act, 28 U.S.C. § 2281, stipulates that a court of three judges must be convened when an injunction is sought against “enforcement or execution of such [state] statute or of an order made by an administrative board or commission acting under State statutes, Appellants point to two statutes which authorize the Alabama Board of Corrections to promulgate rules and regulations concerning the sanitation, health and hygiene of the general inmate population, and concerning inmates for whom long term medical confinement is necessary, see Code of Alabama, tit. 45, §§ 3, 4 (1959), as support for the conclusion that as in Sands v. Wainwright, supra, the state-wide practices under attack must be evaluated by a three judge court. This position, however, has only superficial appeal, and consequently we reject it. In Sands v. Wainwright, supra, the en banc court considered whether challenges to various prison practices, registered in four consolidated cases, were amenable to three judge court jurisdiction. In one of these cases, Baker v. Estelle, petitioners attacked two practices of the Texas Department of Corrections (TDC). Under the first, inmates claimed to have been subjected to solitary confinement and loss of good time without requisite due process guarantees, and under the second, prisoners attacked the TDC practice of reading and censoring attorney-inmate correspondence as transgressing the first amendment. Neither the 1953 TDC regulations nor those adopted in 1973 subsequent to the filing of the complaint condoned the specific practices deemed objectionable by Baker. Indeed, he vigorously contended that because of this fact, resort to a three judge court was unwarranted. This court concluded, however, that in the context before it, the distinction between practices and regulations was artificial. The incisive reasoning undergirding this conclusion was articulated by Judge Goldberg as follows: “The ‘practices’ whose enforcement the inmates seek to enjoin are, in reality, the Rules and Regulations of the Texas Department of Corrections, as applied. Plaintiffs claim that no particular paragraph or section of those Rules and Regulations — either the 1953 version in effect at the time this litigation was initiated, or the July 9, 1973, version currently in effect — is constitutionally offensive, and that no injunction is sought against any such paragraph or section. The entire thrust of plaintiffs’ argument, however, is that the Rules and Regulations, as a whole and as applied, are constitutionally deficient standing alone. More complete and more specific regulations must be mandated in order to assure that the present ‘practices’ will not be continued.” (Emphasis added) 491 F.2d at 428. Thus, the import of our disposition of the claims presented by Baker is that the complaint’s failure to explicitly challenge the constitutionality of a specific regulation will not vitiate the need to convene a three judge court, where the relief sought, if granted, would inexorably condemn those promulgated rules and regulations not spe-cifieally challenged. Adoption of the contrary view would have been tantamount to sanctioning the resort to se-mantical and legal artifices, a practice which should be steadfastly abjured. Contrary to appellants’ contention, however, the challenges levelled in this case are fundamentally different from those orchestrated in Baker v. Estelle, and hence the reasoning enunciated therein is inapposite here. Initially, we apprehend a salient qualitative distinction between the pre-punitive confinement disciplinary procedures and mail censorship practices attacked in Baker v. Estelle and the calibre of medical care attacked by inmates of the APS. The practices in Baker v. Estelle had in fact been ordained by the TDC, and, as witnessed by the regulations on administrative confinement at issue in Guajardo v. McAdams, one of the four consolidated cases, were amenable to codification in regulation form. In contrast, the APS is not governed by any uniform practice or procedure in the administration of medical care, beyond the purported uniform practices of neglectful treatment dispensed at the various prison locations throughout the state. Moreover, it is sheer sophistry to suppose that the Alabama Board of Corrections would undertake, for example, to prescribe statewide the supply of gauze and drugs available to inmates, or the hours during which licensed medical personnel would be available to render treatment, or to mandate the inordinate delays to which emergency patients would be subjected. In this respect, the medical conditions were not susceptible to codification in the form of regulations. A second difference between the case before us and that presented in Baker v. Estelle, is that here, unlike Baker, a decision granting the requested relief will not eviscerate any regulations governing medical care in the APS. Beyond the aforementioned Alabama statutes, which are only of remote significance, no codified statute or regulation will be affected by this litigation. A final distinction, which underscores the sanctity of the regulations or statutes which must be passed upon by a court of three j udges, flows from the axiom that three judge court status is to be determined from allegations appearing on the face of a complaint. And this axiom, in turn, presupposes that the existence vel non of a uniform statewide practice is likewise ascertainable from the pleading stages of the litigation. Thus, in Sands v. Wainwright, supra, and the three companion cases, the state conceded that the practices complained of were of state-wide effect and only disagreed with the assertions of constitutional infirmity. In the case before us, the state not only questions the constitutional significance of medical conditions alleged to pervade the APS, but also contests whether in fact any uniform practice exists. The decision in Sands v. Wainwright, supra, comported with what we characterized as a proclivity for a broad interpretation of the language “ ‘State statute. or. order made by an administrative board or commission acting under State statutes.’ ” 491 F.2d at 423. To countenance the application of Sands to the instant case would work an unprecedented expansion of the jurisdiction of three judge courts and would erode the customarily constrictive view of three judge court jurisdiction which the Supreme Court has mandated. See Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577, 591 (1974); Bd. of Regents v. New Left Education Project, 404 U.S. 541, 545, 92 S.Ct. 652, 30 L.Ed.2d 697, 702 (1972); Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 85 L.Ed. 800, 805 (1941). Accordingly, we conclude that this litigation was appropriately disposed of by a single judge district court. Ill In addition to challenging the district court’s conclusion that the quality of medical care violated the eighth amendment, appellants assign as error numerous evidentiary rulings rendered below. We have examined these rulings and find them to be compatible with F.R. Civ.Pro. 43(a) and the broad discretion extended in an equitable proceeding to a judge acting in his capacity as chancellor. Compare Castilleja v. Southern Pacific Co., 445 F.2d 183, 186 (5th Cir. 1971), and Butler v. Southern Pacific Co., 431 F.2d 77, 79 (5th Cir. 1970), cert. denied, 401 U.S. 975, 91 S.Ct. 1196, 28 L.Ed.2d 325 (1971), with Dallas County v. Commercial Union Assurance Co., 286 F.2d 388, 394-395 (5th Cir. 1961). Hence, we proceed to consider whether the finding of a constitutional violation can be sustained. As appellants vigorously maintain, and as the district court acknowledged, courts must be wary to avoid obtrusively monitoring the conduct of prison officials and thereby encumbering the administration of prison affairs. This court has been sedulously mindful of its circumscribed role, see, e. g., Campbell v. Beto, 460 F.2d 765, 767 (5th Cir. 1972); Sinclair v. Henderson, 435 F.2d 125, 126 (5th Cir. 1970); Schack v. State of Florida, 391 F.2d 593, 594 (5th Cir.), cert. denied, 392 U.S. 916, 88 S.Ct. 2080, 20 L.Ed.2d 1376 (1968), and the foundation to which this role is pinioned. The underpinnings of judicial deference were recently articulated in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224, 235 (1974) by Mr. Justice Powell: “Traditionally, federal courts have adopted a broad hands-off attitude toward problems of prison administration. In part this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions. More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree.” At the same time, however, this court has been cognizant of the fact that deference which shields officials engaging in intemperate action and which excuses judicial myopia is incompatible with our role as arbiters of the Constitution and hence cannot be countenanced. Thus, while obedient to our limited function in passing upon prison complaints, we have not been impervious to the need to fetter prison officials where constraints are constitutionally appropriate. For example, in Jackson v. Godwin, 400 F.2d 529, 535 (5th Cir. 1968), we remonstrated that once an individual is incarcerated, “any further restraints or deprivations in excess of that inherent in the sentence and in the normal structure of prison life should be subject to judicial scrutiny.” And we amplified these concerns in Campbell v. Beto, 460 F.2d 765, 768 (5th Cir. 1972) j observing that: “Whatever may be the outer contours of the ‘prison discipline rule’, it is apparent that the courts cannot close their judicial eyes to prison conditions which present a grave and immediate threat to health or physical well being. If ‘the deprivation of basic elements of hygiene’ has consistently been held violative of constitutional guarantees..., then certainly practices which result in the deprivation of basic elements of adequate medical treatment, particularly such deprivation as immediately threatens life and limb, would be equally vulnerable.” (citations omitted). Underlying the reasoning articulated in these two cases is the conviction that deference should be tendered only as to these necessary or essential concomitants of incarceration, see Sinclair v. Henderson, 435 F.2d 125, 126 (5th Cir. 1970); Edwards v. Duncan, 355 F.2d 993, 994 (4th Cir. 1966); Newkirk v. Butler, 364 F.Supp. 497, 501 (S.D.N.Y. 1973). While limited mobility, for example, may be endemic to confinement, forcing inmates to endure severe infirmities without treatment for the duration of confinement is not. In conjunction with this reasoning, there has been a proliferation of decisions in which the fact that incarceration disables an inmate from procuring aid and creates total dependency upon the state for treatment has been seized upon as a justification for judicial scrutiny of prison medical practices. E. g., Fitzke v. Shap-pell, 468 F.2d 1072, 1076 (6th Cir. 1972); Mills v. Oliver, 367 F.Supp. 77, 79 (E.D.Va.1973); Sawyer v. Sigler, 320 F.Supp. 690, 696 (D.Neb.1970); Ramsey v. Ciccone, 310 F.Supp. 600, 604-605 (W.D.Mo.1970); cf. United States ex rel. Fear v. Rundle, 364 F.Supp. 53, 61 (E.D.Pa.1973). Of course, neither the diminished need to defer on matters of inmate medical care to judgments of prison officials nor the heightened need to vouchsafe the interests of inmates can attenuate the requisite showing of a constitutional infirmity which triggers judicial disapprobation. The district court concluded that medical conditions in the APS transgressed the eighth amendment’s prohibition against cruel and unusual punishment. Numerous other courts have anchored their decisions to this provision. See, e. g., Nelson v. Heyne, 491 F.2d 352, 354-356 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); Martinez v. Mancusi, 443 F.2d 921, 924 (2d Cir. 1970); Holt v. Sarver, 442 F.2d 304, 308 (8th Cir. 1971), aff’g, 309 F.Supp. 362, 372-373 (E.D.Ark.1970); Coppinger v. Townsend, 398 F.2d 392, 393 (10th Cir. 1968); Ramsey v. Ciccone, supra, 310 F.Supp. at 605. An equally satisfactory constitutional repository is the due process clause. See Fitzke v. Shappell, supra; Inmates of Suffolk County Jail v. Eisenstadt, 360 F.Supp. 676, 688 (D.Mass.1973), aff’d, 494 F.2d 1196 (1st Cir. 1974). Under either of these rubrics, however, the challenge to the district court's conclusions of law cannot be sustained. As was noted, the most critical shortage in the APS is of qualified medical personnel. In Campbell v. Beto, supra, 460 F.2d at 769, we characterized as serious the allegation that the Texas Department of Corrections failed to provide a full-time doctor at the Wynn Unit and employed, instead, unlicensed individuals to diagnose ailments and prescribe medicines. See also United States ex rel. Fear v. Rundle, supra, 364 F.Supp. at 59; Gates v. Collier, 349 F. Supp. 881, 888, 894 (N.D.Miss.1972), aff’d, 501 F.2d 1291 (5th Cir. 1974). Clearly, under Campbell v. Beto, supra, the widespread use of inmate assistants and M.T.A.’s is suspect. Conversely, the limited availability of qualified personnel poses a problem of constitutional magnitude. The inexorable nonattention and delays in receiving treatment attributable to personnel shortages, the ill-conceived system for referrals of inmates to Mt. Meigs from other facilities, and the maladroitly operated “emergency” referral system also present grave constitutional problems. This court has repeatedly reversed dismissals of complaints alleging failure to treat or allowing a protracted period of time to elapse before rendering treatment. See Campbell v. Beto, supra, 460 F.2d at 767 (TDC’s refusal to permit inmate to see a doctor until 13th day of confinement in segregated status); Hutchens v. State of Alabama, 466 F.2d 507, 508 (5th Cir. 1972) (allegation of present lack of medical attention and medication, which produces intolerable pain and shortens life expectancy); Hughes v. Noble, 295 F.2d 495 (5th Cir. 1961) (refusal to give needed attention or allow plaintiff to call a physician for 13 hours after he was jailed for driving his car into a ditch, as a result of which he sustained a broken neck). See also Fitzke v. Shappell, supra; Blanks v. Cunningham, 409 F.2d 220 (4th Cir. 1969); Riley v. Rhay, 407 F.2d 496 (9th Cir. 1969); Mills v. Oliver, supra, 367 F.Supp. at 79; Sawyer v. Sigler, supra, 320 F.Supp. at 695; Talley v. Stephens, 247 F.Supp. 683, 687 (E.D.Ark.1965); McCollum v. Mayfield, 130 F.Supp. 112, 114-115 (N.D.Cal. 1955). Certainly, if the infirmity — lack of attention — is of constitutional magnitude, then the deficiency which spawns the infirmity — lack of available personnel, and ill-conceived emergency and referral procedures — can also be deemed to be of constitutional import. Accordingly, the referral and emergency procedures presently employed cannot withstand scrutiny. The record also revealed shortages in drug supplies, the unavailability of eyeglasses and prosthetic devices, and the employment of obsolete medical equipment and techniques. Courts will not tolerate serious shortages in medication. See Hutchens v. State of Alabama, supra, 466 F.2d at 508; Martinez v. Mancusi, 443 F.2d 921 (2d Cir. 1970). See also Thomas v. Pate, 493 F.2d 151, 158 (7th Cir. 1974). Since equally severe harm can be occasioned by the unavailability of eyeglasses and the use of anachronistic and precarious medical techniques and equipment, we should not be any less prone to disparage these deficiencies. A fourth debility under which the APS was found to labor was the presence of disorganized lines of therapeutic responsibility. An ineluctable by-product of this condition is that treatment prescribed by doctors is not administered by medical subordinates. Since the failure of prison officials to comply with doctors’ orders has occasioned judicial disapprobation, see Martinez v. Mancusi, supra-, Sawyer v. Sigler, supra, a medical organizational system pregnant with the possibility of noncompliance is similarly amenable to attack. Finally, the record revealed glaring unhygienic conditions, including the potential for contagion caused by nonsegregated sanitary facilities for the Mt. Meigs general ward population and hepatitis and tuberculosis ward populations, and the facilities in a state of disrepair at Draper and Tutwiler. This court has scrutinized sanitary conditions of facilities and demonstrated its unwillingness to condone the use of such facilities which jeopardize the life or health of inmates. See Anderson v. Nosser, 456 F.2d 835 (5th Cir. 1972) (en banc), aff’g in part and reversing in part, 438 F.2d 183 (5th Cir. 1971). See also Thomas v. Pate, supra; Wright v. McMann, 460 F. 2d 126, 131 (2d Cir. 1972); Gates v. Collier, supra 349 F.Supp. at 887, 894; Hamilton v. Schiro, 338 F.Supp. 1016 (E.D.La.1970); Jordan v. Fitzharris, 257 F.Supp. 674 (N.D.Cal.1966). We acknowledge that the inquiries of this court and the court below have not been free from difficulty. The challenge registered herein is unprecedented in scope. It evokes an evaluation of systemic medical deficiencies. Courts are not as readily equipped to quantify the suffering occasioned by pervasive shortcomings as they are to assess whether a particular inmate has been maltreated. Nevertheless, three factors coalesce, impelling us to conclude that the district court’s findings of constitutional inadequacy were not infirm. First, many of the shortcomings prevalent in the APS have been judicially acknowledged to raise the spectre of constitutional infirmity in cases brought by individual prisoners. Moreover, most of those deficiencies which have not been specifically addressed by other courts but which we deem egregious are causes of conditions which have been abjured. For example, in our view, the causes of non-treatment or delays in treatment should trigger disapproval as strident as that prompted by the fact of non-attention or delay. Second, the pitfalls identified are of such a nature as to render large-scale improvident treatment inevitable. The use of dangerously out-mod-ed equipment and medical techniques threatens the welfare of every inmate upon whom such equipment and techniques are employed. Third, and in conjunction with the latter point, the record is replete with countless examples of inmates who were subjected to incalculable discomfort and pain as a result of the lack of medical care or inadequacy in the treatment administered. These examples fortify the conclusion that deficiencies were not isolated and bespeak of callous indifference to the welfare of inmate-patients. Moreover, these examples also belie any suggestion that suffering resulted merely from legitimate discrepancies of opinion as to the proper treatment to be rendered. IV Despite laboring strenuously to comply with the district court’s mandates, appellants nevertheless challenge the remedy it devised. The relief ordained, appellants claim, prescribes specific standards of medical care and thereby transgresses the principle that courts should not intrude into matters related to prison administration. But whatever force this argument has derives largely from its generality. For the existence of constitutional infirmities deprives the prison deference rule of its indomitably insulating nature and dictates that the rule yield to the remedial power of a court. Moreover, far from being intrusive 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_r_state	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED TRANSPORTATION UNION, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Association of American Railroads, Intervenor. No. 88-1773. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 18, 1989. Decided Nov. 28, 1989. Gordon P. MacDougall, for petitioner. Evelyn G. Kitay, Atty., I.C.C., with whom Robert S. Burk, General Counsel, Henri F. Rush, Deputy General Counsel, I.C.C., James F. Rill, Asst. Atty. Gen., Catherine G. O’Sullivan, Atty., Dept, of Justice, Washington, D.C., were on the joint brief, for respondents. Kenneth P. Kolson, Vienna, Va. and Dennis W. Wilson were on the brief, for inter-venor. G. Paul Moates, Washington, D.C., David M. Levy and J. Thomas Tidd, Washington, D.C., also entered appearances for intervenor. Before RUTH BADER GINSBURG, SILBERMAN and D.H. GINSBURG, Circuit Judges. Opinion for the Court filed by Circuit Judge SILBERMAN. Opinion concurring in denying the petition for review filed by Circuit Judge RUTH BADER GINSBURG. SILBERMAN, Circuit Judge: This is a petition brought by the United Transportation Union (“UTU”), seeking review of the Interstate Commerce Commission’s (“ICC”) decision to adopt a rule that exempts the officers and directors of certain rail carriers from obtaining prior approval for interlocking directorates under 49 U.S.C. § 11322(a). See Exemption from 49 U.S.C. 11322(a) for Certain Interlocking Directorates, 5 I.C.C.2d 7 (1988). We hold that the petitioner lacks standing, and therefore dismiss the petition for review. I. In the Staggers Rail Act of 1980, Congress gave the ICC broad responsibilities for deregulating the nation’s railroads. One section of that Act, 49 U.S.C. § 10505, directs the ICC to exempt a transaction or class of transactions from regulation when the Commission finds that (1) regulation is not necessary to carry out the 15-factor national rail transportation policy (RTP) articulated in 49 U.S.C. § 10101a; and (2) either (a) the transaction is of limited scope, or (b) regulation is not needed to protect shippers from the abuse of market power. The legislative history of 49 U.S.C. § 10505 indicates that Congress expected the ICC to use its exemption authority to remove “as many as possible of the Commission’s restrictions on charges in prices and services by rail carriers... and... adopt a policy of reviewing carrier actions after the fact to correct abuses of market power.” H.R.Rep. No. 1430, 96th Cong., 2d Sess. 105, reprinted, in 1980 U.S.Code Cong. & Admin.News 3978, 4110, 4137. See also Illinois Commerce Comm’n v. ICC, 848 F.2d 1246, 1249 (D.C.Cir.1988), cert. denied, - U.S. -, 109 S.Ct. 783, 102 L.Ed.2d 775 (1989). Pursuant to that congressional direction, the ICC published, in April of 1988, a notice of proposed rulemaking that would exempt all interlocking directorates between two railroads — except those involving two “class I” railroads — from complying with the requirements of 49 U.S.C. § 11322(a). See Certain Interlocking Directorates; Exemption, 53 Fed.Reg. 12,443 (1988). Section 11322(a), originally enacted as part of the Transportation Act of 1920, ch. 91, § 439, 41 Stat. 496 (1920), prohibits any person from serving as a director or officer of more than one rail carrier unless the ICC has determined that “public or private interests will not be adversely affected.” The proposed rule — by replacing the case-by-case approval system with blanket approval — was designed to eliminate the expense and delay accompanying individual applications. Since the ICC had not rejected an application for an interlocking directorate in nearly twenty years and since no decision to approve an application had ever been challenged by any party, the ICC viewed prior approval as unnecessary. After receiving comments on the proposed rule, including those submitted by the petitioner, the Commission adopted the rule. See Exemption from 49 U.S.C. 11322(a) for Certain Interlocking Directorates, 5 I.C.C.2d 7 (1988). In its accompanying explanation, the Commission explained its determination that the rule satisfied the requirements for granting exemptions set out in 49 U.S.C. § 10505(a). It first asserted that the exemption promoted several of the fifteen factors that comprise the national rail transportation' policy, finding that the exemption “minimize[s] the need for federal regulatory control and expedite[s] regulatory decisions [49 U.S.C. § 10101a(2) ]; ensure[s] continuation of a sound rail system [49 U.S.C. § 10101a(4) ]; foster[s] sound economic conditions in transportation [49 U.S.C. § 10101a(5) ]; and encourage[s] honest and efficient management [49 U.S.C. § 10101a(10) ].” 5 I.C.C.2d at 11. The Commission also agreed with the comments that contended that, by enabling new carriers to recruit talented and experienced personnel from existing carriers, the exemption would reduce barriers to entry in the industry in furtherance of 49 U.S.C. § 10101a(7). Finally, it believed that none of the other policy goals listed in 49 U.S.C. § 10101a would be adversely affected by the rule. See id. at 12-13. The ICC then concluded that the rule satisfied both of the two alternative tests of § 10505(a)(2) — that the exemption is of limited scope and that the prior approval requirements of § 11322(a) are not needed to protect shippers from the abuse of market power. Its scope is “limited” because the exemption will not apply to interlocks between two class I carriers and the substantive provisions of § 11322(b), prohibiting certain actions by interlocking officers and directors, are not affected by the rule. And shippers do not need the protection of § 11322(a), according to the ICC, because the small size of class II and class III railroads and the vigorous competition present in the transportation industry made it “highly unlikely for any linkage to succeed in allowing one carrier to dominate or influence the other carrier contrary to the other rail carrier’s or shipper’s interests.” 5 I.C.C.2d at 12. The Commission noted that “no shippers chose to file comments” opposing the rule, thereby suggesting that they did not fear any abuse of market power from interlocking directorates. See id. at 14. The petitioner argues that the ICC’s decision is inconsistent with § 10505(a) and that it is arbitrary and capricious. The government challenges petitioner’s standing on both prudential and constitutional grounds. Our colleague — apparently of the view that the standing issue is too difficult to resolve — believes we should pass on to the merits without deciding whether we have the constitutional authority to hear the case. To be sure, this court has on occasion followed that course, although not often in recent times, but we are unaware of any case where a panel was criticized for not employing that technique; in other words, for assuming its constitutional obligation. Here the parties have briefed the standing issue and we have accordingly done our best to answer the jurisdictional question raised. It is hard to understand why, under these circumstances, it could be thought a judicial virtue not to do so. II. To satisfy the standing requirements of Article III, a complaining party must “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,... and that the injury fairly can be traced to the challenged action and is likely to be redressed by a favorable decision.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (internal quotes and citations omitted). “The injury alleged must be... distinct and palpable,... and not abstract or conjectural or hypothetical.” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984) (internal quotes and citations omitted). We are mindful that in analyzing standing issues, we “must accept as true all material allegations of the complaint,” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). This obligation, at least at first blush, might appear to be in tension with the Court’s further admonition that an allegation of injury or of redressability that is too speculative will not “suffice to invoke the federal judicial power.” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 44, 96 S.Ct. 1917, 1927, 48 L.Ed.2d 450 (1976); accord Warth, 422 U.S. at 507, 95 S.Ct. at 2209. We think this ostensible tension is reconciled by distinguishing allegations of facts, either historical or otherwise demonstrable, from allegations that are really predictions. When considering any chain of allegations for standing purposes, we may reject as overly speculative those links which are predictions of future events (especially future actions to be taken by third parties) and those which predict a future injury that will result from present or ongoing actions — those types of allegations that are not normally susceptible of label-ling as “true” or “false.” Our authority to reject as speculative allegations of future injuries is well-established. See Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). In Lyons, the Supreme Court reviewed the claim of an individual who alleged that he had been injured by an unjustified “choke-hold” administered to him by a Los Ange-les police officer and that he “justifiably fears that any contact he has with Los Angeles Police officers may result in his being choked and strangled to death...” 461 U.S. at 98, 103 S.Ct. at 1663. The Court dismissed on Article III grounds the complainant’s prayer for an injunction forbidding the use of such chokeholds by police officers, finding it unduly speculative that the complainant “was likely to suffer future injury from the use of the choke-holds by police officers.” Id. at 105, 103 S.Ct. at 1667. The Court asserted that, “to have a case or controversy with the City that could sustain [his claim for an injunction, the complainant] would have to credibly allege that he faced a realistic threat from the future application of the City’s policy.” Id. at 106-07 n. 7, 103 S.Ct. at 1667-68 n. 7 (emphasis added). On the other hand, we are much less free to reject allegations of existing conditions, of prior or ongoing actions (including intent). In addition, the extent to which we must credit allegations of the cause of injuries that are already sustained is unclear. But if courts were obligated to credit complainants’ predictions of future events or injuries, both the “redressability” prong and, in cases alleging prospective injury, the “fairly traceable” prong of the standing inquiry — which are, at bottom, predictions of cause and effect — would be reduced to mere pleading requirements. To decide this case we need not settle the uncertainty concerning our obligation to credit allegations of the cause of existing injuries since, unlike Simon and Warth, where the plaintiffs had already suffered an alleged injury-in-fact which they attempted to attribute to the official action in question, the alleged injury here is itself purely prospective — the petitioner makes no claim that the ICC’s exemption has hurt any union member yet. We must therefore reject any of the petitioner’s allegations that we determine to be overly speculative. Moreover, we note that any petitioner alleging only future injuries confronts a significantly more rigorous burden to establish standing. Although “[t]he fact that harm or injury may occur in the future is not necessarily fatal to a claim of standing[,]... [it can] lessen the concreteness of the controversy and thus mitigate [sic] against a recognition of standing.” Harrington v. Bush, 553 F.2d 190, 208 (D.C.Cir.1977). When a litigant alleges only future injury, he “must demonstrate a realistic danger of sustaining a direct injury...” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979). This petitioner’s allegation does not even approach this rigorous standard. The only allegation of injury that we can discern from the petitioner’s brief is that railroad workers “stand to be hurt” by the “unauthorized control and manipulation of carriers” and by “the financial wrecking of rail carriers” that will supposedly result from the exemption for interlocking directorates. Although not explicitly set forth, we can surmise that petitioner is asserting that the ICC’s new rule will lead to the creation of at least one interlocking directorate that would not have been created but for the exemption from § 11322(a), that one of those additional interlocking directorates will result in some anticompetitive behavior or a railroad bankruptcy that would not have occurred but for the interlocking directorate; and that a member of the United Transportation Union will thereby suffer an injury. We believe that this chain of allegations — no link of which is of the type that we must “accept as true” — is fatally speculative and therefore does not suffice to confer standing. In the first place, we see no reason — and the petitioner offers us none — to credit the proposition that an interlocking directorate involving a class II or class III railroad will damage, let alone lead to the “financial ruin” of, a carrier. If this allegation is aimed at the likelihood that an officer or director will act contrary to the interests of one of the carriers on whose board he sits, it is not just speculative, it is rather far-fetched. To assume that an officer or director will subvert his own firm or drive it into bankruptcy, even if he also has an interest in another carrier, requires us to assume unrealistically that a single officer or director has either the incentive or the power to destroy his own railroad. In addition, crediting this allegation also forces us to presume illegal activities on the part of the individual acting as an executive for more than one railroad. Any director that would, as petitioner fears, purposely steer one carrier into bankruptcy to bolster the competitive position of another or even sacrifice the interests of one of the carriers for the benefit of the other would almost certainly violate his fiduciary duties to the shareholders of the damaged carrier. Indeed, even if an officer or director had a strong incentive to destroy his own firm, it is preposterous to assume that any corporation — who would surely be aware of the executive’s other affiliation— would retain (or hire in the first place) an officer or director who had such an incentive, let alone allow that person to attack the firm from within. If the petitioner instead is alleging that workers will be injured because of possible anticompetitive collusion of carriers whose directorates are interlocked (which is the classic purpose of prophylactic measures such as § 11322(a)), we think that claim inadequate, primarily because it is wholly speculative whether decreased competition in the railroad industry will harm rather than help UTU members. Theoretically, the ultimate effect of reduced competition on railroad workers — as distinguished from shippers — is indeterminate. Reduced competition is often associated with decreased output, which could translate into fewer job opportunities and/or lower wages for employees. On the other hand, carriers facing less competitive pressure from other carriers will also face less pressure to cut their costs, including labor costs. See Associated Gen. Contractors v. California State Council of Carpenters, 459 U.S. 519, 539, 103 S.Ct. 897, 909, 74 L.Ed.2d 723 (1983) (“a union’s primary goal is to enhance the earnings and improve the working conditions of its membership; that goal is not necessarily served, and indeed may actually be harmed, by uninhibited competition among employers striving to reduce costs in order to obtain a competitive advantage over rivals.”) (footnote omitted); Adams v. Pan American World Airways, Inc., 828 F.2d 24, 27 (D.C.Cir.1987), cert. denied, 485 U.S. 934, 108 S.Ct. 1109, 99 L.Ed.2d 270 (1988). This indeterminacy is enough to defeat petitioner’s standing to claim that the exemption will harm union members by reducing competition — especially when it is considered alongside the other speculative aspects of the chain of allegations. Even if petitioner could pass over the above hurdles, we would also have to assume that the hypothetical interlocking directorate that facilitated the injurious behavior would not have been formed but for the rule removing the prior approval requirements of § 11322(a). Since the ICC has not rejected any application for the types of interlocking directorates covered by the rule in nearly twenty years, the prior approval procedure seems to have been primarily a nuisance — discouraging applications, if at all, on the basis of bother or expense. While it is possible that the exemption will result in a greater number of interlocking directorates, we see no reason to believe that any links formed after the ICC’s new rule are more likely to be mere subterfuges for collusive behavior than were the interlocking directorates formed under the old regime. Thus, even if a railroad with a newly formed interlocking directorate was sabotaged thereby, or if it engaged in collusion, the exemption challenged here might not even constitute “but for” causation. Not only might the interlocking directorate have been approved even without the ICC’s blanket exemption from § 11322(a), but whatever hypothetical harm that resulted might have occurred even without the interlocking directorate. Any one of the factors discussed above might be enough to place the petitioner’s allegation in the category of “unadorned speculation,” Simon, 426 U.S. at 44, 96 S.Ct. at 1927, and therefore to deny standing; taken together, petitioner’s claim of injury seems but a shadow in the mist. It fails all three prongs of the standing inquiry; it is highly unlikely that the petitioner will sustain any injury at all; even if an injury were sustained, it is unlikely that it could be fairly traced to the ICC’s exemption from the prior approval provisions of § 11322(a); and, since any hypothetical future injury could also occur even in the absence of the challenged ICC rule, a favorable decision from this court would not be “likely” to redress it, see Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979). Cf. Center for Auto Safety v. Thomas, 847 F.2d 843, 882 (D.C.Cir.1988) (en banc) (opinion of Silberman, J.) (noting that the injury in fact and causation inquiries often run together when the alleged injury is uncertain to occur at all). It is suggested nevertheless that the petitioner’s allegation must be credited for Article III purposes because Congress, in passing § 11322(a), expressed its belief that interlocking directorates would lead to the financial ruin of rail carriers. We are thus again confronted with an issue that this court has pondered in several recent cases but never definitively settled; what, if any, are the implications for Article III standing purposes of a congressional view of the likely effect of legislation? See Public Citizen v. FTC, 869 F.2d 1541, 1549-50 & n. 16 (D.C.Cir.1989); Dellums v. Nuclear Regulatory Comm’n, 863 F.2d 968, 978-79 (D.C.Cir.1988); id. at 984 (Ruth B. Ginsburg, J., dissenting as to standing). Decisions about Article III standing are decisions about the constitutional boundaries of the federal judicial power. While Congress indisputably may preclude the federal courts from hearing cases that they would be constitutionally permitted to hear, the Congress surely cannot expand the constitutional jurisdiction of the federal courts — in essence, amend the Constitution — merely by legislating. See Dellums, 863 F.2d at 978. Rather, the courts must resist expansion of their own constitutional boundaries and reject any congressional orders or suggestions that would take them beyond the strictures of Article III. As such, in analyzing Article III standing problems, we cannot be bound by Congress’ predictions or intentions as to the likely effect of legislation. That is not to suggest, of course, that courts should pay no attention to Congress’ predictions of the effect of legislation. “[A]s a matter of comity, it is unseemly for a federal court to ignore such legislative opinion.” Dellums, 863 F.2d at 978. But in assessing legislative judgments, courts should bear in mind that when Congress predicts that an injury is caused by a certain behavior or phenomenon and when it predicts the likely impact of legislation, it performs a task that is quite different from both the “fairly traceable” and “redressa-bility” portions of the Article III standing inquiry. Congress need not meet constitutional, or any other, causation standards before exercising legislative power. See Dellums, 863 F.2d at 979. When Congress considers a bill that would restrict interlocking directorates between railroads, members or a committee may assert that interlocking directorates between railroads cause bankruptcies and facilitate collusion, but there is no constitutional requirement that such predictions of causation be correct, or even likely, for Congress to legislate in reliance on them. Even if there is only one chance in 1000 that a problem Congress is addressing can be traced to a particular cause, Congress, as an exercise of legislative judgment, may decide to pass a law that is based on that possibility. A court’s causation inquiry is much more rigorous; before a court can constitutionally adjudicate a claim that relies on the allegation that future interlocking directorates will injure UTU members, it must determine that the causal nexus is firm. Otherwise, it misuses judicial power. Similarly, Congress’ analysis of the effectiveness of its product in remedying a perceived ill is necessarily less confined than a court’s re-dressability inquiry. Unlike a court, Congress is not “constitutionally obliged to demonstrate that its exercise of legislative power will have a foreseeable proximate effect on any specific individual” or group of individuals. See Dellums, 863 F.2d at 979. Even if a proposed bill has but one chance in 1000 of solving or even mitigating a certain problem, Congress is free to enact it. As we noted in Dellums, “Congress may and does pass legislation that seeks only approximately or imprecisely... to affect the behavior of men and nations.” Id. Our concurring colleague— who criticizes our standing analysis without offering her own — therefore mixes apples and oranges when she suggests that we should apply the same “rational basis” standard that we use to measure congressional adherence to constitutional limits on its power when we judge “congressional determinations that bear on standing....” Concurring Opinion at 920. We are in no sense reviewing Congress’ standing determination because Congress did not, by legislating, make one. As we have explained, Congress is not obliged constitutionally to ensure that its power is used only to decide “cases and controversies.” Therefore, an explicit or implicit legislative prediction which induces congressional action is never and can never be “reviewed” by the judiciary when the latter decides a standing issue. In light of those analytical differences, it is a difficult question whether we owe any deference to congressional predictions or assessments of cause and effect when we analyze a standing problem. Various members of this court have expressed different views on this subject. See, e.g., Public Citizen v. FTC, 869 F.2d 1541, 1549-50 & n. 16 (D.C.Cir.1989) (noting the “propriety” of judicial deference to congressional judgments of cause and effect relationships but stressing that deference “does not mean blind obedienee”); Dellums v. Nuclear Regulatory Comm’n, 863 F.2d 968, 978-79 (D.C.Cir.1988) (observing that “we have never as a court held that we are bound to accept a congressional appraisal of the effect of its product. Indeed, to do so would be to permit Congress, by legislation, to amend the Constitution.”); id. at 984 (Ruth B. Ginsburg, J., dissenting as to standing) (“[wjhen the redressability inquiry involves a question of predictive fact regarding matters outside the realm of judicial expertise,... courts should be reluctant to contradict the judgment of Congress, doing so only upon a showing that Congress’ judgment does not stand the test of rationality.”). We need not finally settle this dispute to decide the case before us since, even under the formulation that is most deferential to Congress — that we should defer to a rational congressional assessment — we should not defer here. Although the original congressional assessment of the impact of interlocking directorates on railroads may well have been a rational legislative judgment when it was made in 1914, it is too far out of date to serve as a basis for petitioner’s standing. The legislative history of the interlocking directorate provision, 49 U.S.C. § 11322(a) contains a few statements that arguably support the proposition that interlocking directorates may lead to railroad bankruptcies. First, a report submitted by the House Committee on Interstate and Foreign Commerce in May of 1914 stated that: Whether the necessity for this provision is so great as represented or not, and whether the anticipated benefits are exaggerated or not, there is a general impression that most of the wreck and ruin of railroads and consequent damage to public service and the public interest has been due to the machinations of men who managed different corporations and by the policies adopted for the different corporations constituting a system or about to be consolidated into a system wrought ruin to some or all of the carriers involved. H.R.Rep. No. 681, 63d Cong., 2d Sess. 3 (1914), reprinted in 51 Cong.Rec. 9598 (June 1, 1914) (emphasis added). In addition, there were three brief statements made during floor debates in the House in June of 1914 that asserted, in a conclusory fashion, that interlocking directorates were evil, the source of collusion, and an incentive for executives to sacrifice the interests of one carrier to those of another. Assuming therefore that Congress’ 1914 assessment as to the possible causal connections between interlocking directorates and railroad failures was rational as a legislative appraisal, and further assuming that a legislative appraisal of possible causation is entitled to deference when analyzing the causal element of standing, it would not be rational for us as a court to rely upon Congress’ assessment in this case. To do so would ignore the fact that this assessment was made 75 years ago about a transportation industry in which railroads held a far more dominant market share than they do today. Moreover, we simply cannot disregard a record showing that interlocking directorates among railroads were formed virtually at will over the past 40 years, despite § 11322(a), with absolutely no evidence of any railroad failure resulting therefrom. In these circumstances — leaving aside the question of whether or when we are ever obliged to defer to congressional assertions of cause and effect relationships — it would be irrational to defer to Congress’ 1914 pronouncements about the dangers of interlocking directorates among railroads in order to credit the allegation made by the petitioner here. III. One final issue merits discussion. In comments submitted to the ICC opposing the proposed rule, petitioner stated that, “[t]he Commission’s present procedure [requiring prior approval] is quite simple. Moreover, there is developed a public record as to the relationships, which better enables public protection.” And petitioner states in its brief to this court that: “The non-filing of a notice that the interlocking directorate exemption is being invoked requires UTU to seek review of the class exemption to prevent injury prior to a specific exercise of the exemption, since changed directors affect rail operations.” While we are somewhat puzzled as to what this means, even read generously to allege a procedural injury — that it will be more difficult for the union to challenge interlocking directorates in the future because it will not have prior notice of them — we do not think that it confers standing on the petitioner since it bears no plausible nexus to a “substantive” injury. It is beyond dispute that the federal courts may entertain suits alleging procedural injuries. See, e.g., McGarry v. Secretary of the Treasury, 853 F.2d 981, 984-85 (D.C.Cir.1988) (finding standing for a union challenging the failure of IRS to follow statutory procedure guaranteeing the union’s right to comment on a waiver of minimum payments to a benefit plan); National Wildlife Federation v. Hodel, 839 F.2d 694, 712 (D.C.Cir.1988) (standing based on losing the statutory right to have an environmental impact statement prepared that could be used to evaluate and oppose future mining operations). But before we find standing in procedural injury cases, we must ensure that there is some connection between the alleged procedural injury and a substantive injury that would otherwise confer Article III standing. See, e.g., McGarry, 853 F.2d at 984-85 (“[I]n a claim such as that which appellants bring here, procedural and substantive stakes are inextricably intertwined.... In bringing this action for access to the application, appellants are not seeking to vindicate a procedural right in vacuo.”). (citation omitted). Without such a nexus, the procedural injury doctrine could swallow Article III standing requirements. Consider, for example, what would happen if the ICC adopted a rule stating that any American could intervene in an ICC proceeding to challenge any interlocking directorate between two railroads, and then later repealed that rule. Would every American be entitled to sue alleging that he or she suffered a procedural injury when the right to intervene was revoked? Surely some showing that interlocking directorates would be likely to injure the complainant should be required. Indeed, if a procedural injury alone suffices to confer Article III standing, any American could sue any agency alleging that it is arbitrary and capricious not to have a procedure by which they can challenge agency action. Given the utter speculativeness of the petitioner’s allegation of substantive injury, any allegation of procedural injury fails as well. The procedural injury arguably alleged here is as tenuously connected to a potential substantive injury as the allegation we found overly speculative in Dimond v. District of Columbia, 792 F.2d 179 (D.C.Cir.1986). In Dimond, we held that a plaintiff challenging the constitutionality of the District of Columbia no-fault insurance law lacked standing to claim that the District of Columbia Council — by failing to read the bill twice in substantially the same form prior to enactment — violated the D.C. statute stating the procedural rules for passing a bill. Even though we had ruled that the plaintiff had alleged sufficient injury in fact — his inability to sue under the no-fault insurance bill — we found no plausible link between the alleged procedural irregularity and the plaintiffs alleged injury since there was no reason to believe that the bill would have been substantially different even if the Council had followed its established procedures. Similarly here, since we do not believe that there is any likelihood that interlocking directorates will harm railroad workers, we see no reason to allow petitioner to sue on a theory that the ICC’s exemption has made it marginally more difficult for the union to challenge interlocking directorates in the future. We therefore dismiss the petition for review. . This case was originally brought by Patrick Simmons, the Illinois Legislative Director of the UTU, under his own name. Since Simmons does not even have putative standing as an individual and since subsequent submissions indicate that he actually represents the UTU, we have changed the name of the case. . For a union to have standing to represent its members under Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 3441, 53 L.Ed.2d 383 (1977), it must show that (1) union members would otherwise have standing to sue in their own right; (2) that the interests being asserted are germane to the union’s purpose; and (3) that individual members' participation is not needed for the claim asserted or for the relief requested Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number. Answer:
songer_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 FARMERS BANK OF LOHMAN, MO., v. THOMPSON. No. 12528. Circuit Court of Appeals, Eighth Circuit. Dec. 24, 1943. Sam Bushman, of Jefferson City, Mo., for appellant. sam W. James, Jr., of Jefferson City, Mo., for appellee. Before STONE, THOMAS, and JOHN-SEN, Circuit Judges. THOMAS, Circuit Judge. This is an appeal from a judgment of the District Court sustaining a petition to review an order of a Conciliation Commissioner and remanding the cause in a proceeding under § 75, sub. s, of the Bankruptcy Act, 11 U.S.C.A. § 203, sub. s. See In re Thompson, D.C., 48 F.Supp. 557. Both secured and unsecured claims were filed and allowed against the debtor and his estate. The debtor retained possession of his property during the three-year stay period and deposited in court each year pursuant to an order of the Commissioner $665 rental, aggregating $1,995. After payment of taxes and upkeep of the mortgaged property, there remained a balance of rentals in the amount of $1,597.58 undistributed. At the end of the three-year period the debtor pursuant to an order of the Conciliation Commissioner, although objecting, paid into court the full amount of the reappraised value of his mortgaged property in the sum of $7,296.67, and the Commissioner entered an order turning over to him the mortgaged property free and clear of all encumbrances. The Commissioner ordered the distribution of the $7,-296.67 to the secured creditors, and they requested the confirmance of the order. The Conciliation Commissioner then entered an order that the balance of rentals deposited by the debtor in the sum of $1,-597.58, less administrative expenses, be distributed to the unsecured creditors. The debtor alone objected to this order, and upon review the court held that the net rentals after payment of taxes, upkeep and costs of administration should have been applied on the principal of the secured debts, thus reducing by an equal amount the $7,296.67 which the debtor was required to pay into court to redeem his mortgaged property. The court accordingly entered judgment remanding the case to the Commissioner and in effect directing him to refund the net rentals to the debtor. The Farmers Bank of Lohman, an unsecured creditor, appeals from this judgment. The judgment appealed from in this case was entered on December 4, 1942. Thereafter, on March 4, 1943, this court decided the case of Wilson v. Dewey, 8 Cir., 133 F.2d 962, involving the identical issue presented on this appeal. This court there held that no part of the rental payments made by a farmer-debtor after an adjudication in bankruptcy during the three-year period is deductible as “payments on principal” from the reappraised value of the mortgaged property which the debtor is required to pay under the Act to redeem from the mortgage. That decision is controlling in this case, and requires a reversal of the judgment appealed from. The judgment is, therefore, reversed, and the case remanded with instructions to enter judgment and to proceed in accordance with this opinion. 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_declarationuncon	C	What follows is an opinion from the Supreme Court of the United States. Your task is to indentify whether the Court declared unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance. Note that the Court need not necessarily specify in many words that a law has been declared unconstitutional. Where federal law pre-empts a state statute or a local ordinance, unconstitutionality does not result unless the Court's opinion so states. Nor are administrative regulations the subject of declarations of unconstitutionality unless the declaration also applies to the law on which it is based. Also excluded are federal or state court-made rules. JAMES, JUDICIAL ADMINISTRATOR, et al. v. STRANGE No. 71-11. Argued March 22, 1972 Decided June 12, 1972 Powell, J., delivered the opinion for a unanimous Court. Edward G. Collister, Jr., Assistant Attorney General of Kansas, argued the cause for appellants. With him on the brief were Vern Miller, Attorney General, and Matthew J. Dowd, Assistant Attorney General. John E. Wilkinson argued the cause and filed a brief for appellee. Marshall J. Hartman filed a brief for the National Legal Aid and Defender Association as amicus curiae. Mr. Justice Powell delivered, the opinion of the Court. This case presents a constitutional challenge to a Kansas recoupment statute, whereby the State may recover in subsequent civil proceedings counsel and other legal defense fees expended for the benefit of indigent defendants. The three-judge court below held the statute unconstitutional, finding it to be an impermissible burden upon the right to counsel established in Gideon v. Wainwright, 372 U. S. 335 (1963). The State appealed and we noted jurisdiction, 404 U. S. 982. The relevant facts are not disputed. Appellee Strange was arrested and charged with first-degree robbery under Kansas law. He appeared before a magistrate, professed indigency, and accepted appointed counsel under the Kansas Aid to Indigent Defendants Act. Appellee was then tried in the Shawnee County District. Court, on the reduced charge of pocket picking.. He pleaded guilty and received. a suspended sentence and three years’ probation. Thereafter, appellee’s counsel, applied to the State for payment for his services and received $500 from the Aid to Indigent Defendants Fund. Pursuant to Kansas’ recoupment statute, the Kansas Judicial Ad-' ministrator requested appellee to reimburse the State within 60 days or a judgment for the $500 would be docketed against him. Appellee contends this procedure violates his constitutional rights. I It is necessary at the outset to explain the terms and operation of the challenged statute. When the State provides an indigent defendant with counsel or other legal services, the defendant becomes obligated to the State for the amount expended in his behalf. Within 3Ó days of the expenditure, the defendant is notified of his debt and given 60 days to repay it. If the sum remains unpaid after the 60-day period, a judgment is docketed against defendant for the unpaid amount. Six percent annual interest runs on the debt from the date the expenditure was made. The debt becomes a lien on the real estate of defendant and may be executed by garnishment or in any other manner provided by the Kansas Code of Civil Procedure. The indigent defendant is not, however, accorded any of the exemptions provided by that code for other judgment debtors except the homestead exemption. If the judgment is not executed within five years, it becomes dormant and ceases to operate as a lien on the debtor’s real estate, but may be revived in the same manner as other dormant judgments under the code of civil procedure. Several features of this procedure merit mention. The entire program is administered by the judicial administrator, a public official, but appointed counsel are private practitioners. The statute apparently leaves to administrative discretion whether, and under what circumstances, enforcement of the judgment will be sought. Recovered sums do, however, revert to the Aid to Indigent Defendants Fund. The Kansas statute is but one of many state re-coupment laws applicable to counsel fees and expenditures paid for indigent defendants. The statutes vary' widely in their terms. Under some statutes, the indigent’s liability is to the county in which he is tried; in others to the State. Alabama and Indiana make assessment and recovery of an indigent’s counsel fees discretionary .with the court. Florida’s recoupment law-has no statute of limitations and the State is deemed to have a perpetual lien against the defendant’s real and personal property and estate. Idaho, on the other hand, has a five-year statute of limitations on the recovery of an “indigent’s” concealed assets at the time of trial and a three-year statute for the recovery of later acquired ones. In Virginia and West Virginia, the amount paid to court-appointed counsel is assessed only against convicted defendants as a part of costs, although the majority of state recoupment laws apply whether or not the defendant prevails. If is thus apparent that state recoupment laws and procedures differ significantly in their particulars. Given the wide differences in the features of these statutes, any broadside pronouncement on their general validity would be inappropriate. We turn therefore to the Kansas statute, aware that our reviewing function is a limited one. We do not inquire whether this statute is wise or desirable, or “whether it is based on assumptions scientifically substantiated.” Roth v. United States, 354 U. S. 476, 501 (1957) (separate opinion of Harlan, J.). Misguided laws may nonetheless be constitutional. It has been noted both in the briefs and at argument that only $17,000 has been recovered under the statute in its almost two years of operation, and that this amount is negligible compared to the total expended. Our task, however, is not to weigh this statute’s effectiveness but its constitutionality. Whether the returns under the statute justify the expense, time, and efforts of state officials is for the ongoing supervision of the legislative branch. . The court below invalidated this statute on the grounds that .it “needlessly encourages indigents to do without counsel arid consequently infringes on the right to counsel as explicated in Gideon v. Wainwright, supra.” 323 F. Supp. 1230, 1233. In Gideon, counsel had been denied an indigent defendant charged with a felony because his was not a capital case. This Court often has voided state statutes and practices which denied to accused indigents the means to present effective defenses, in courts of law. Douglas v. California, 372 U. S. 353 (1963); Draper v. Washington, 372 U. S. 487 (1963); Lane v. Brown, 372 U. S. 477 (1963); Griffin v. Illinois, 351 U. S. 12 (1956). Here, however, Kansas has enacted laws both to provide and compensate from public funds counsel for the indigent. There is certainly no denial of the right to counsel in the strictest sense. Whether the statutory obligations for repayment impermissibly deter the exercise of this right is a question we need not reach, for wé find the statute before us constitutionally infirm on other grounds. II Appellants have asserted in argument before this Court that the statute “has attempted to treat them [indigent defendants] the same as would any civil judgment debtor be treated in the State courts . . . .” Again, in their brief appellants assert that “[f]or all practical purposes the methods available for enforcement of the judgment are the same as those provided by the Code of Civil Procedures [sic] or any other civil judgment.” The challenged portion of the statute- thrice alludes to means of debt recovery prescribed by the Kansas Code of Civil Procedure. Yet the ostensibly equal treatment of indigent defendants with other civil judgment debtors recedes sharply as one examines the statute more closely. The statute stipulates that save for the homesteád, “[n]one of the exemptions provided for in the code of civil procedure shall apply to any such judgment . . . .” This provision strips from indigent defendants the array of protective exemptions Kansas has erectéd for other civil judgment debtors, including restrictions on the amount of disposable earnings subject to garnishment, protection of the. debtor from wage garnishment at times of severe personal or. family sickness, and exemption from attachment and execution on a debtor’s personal clothing, books, and tools of trade. For the head of a family, the exemptions afforded other judgment debtors becommore extensive, and cover furnishings, food, fuel, clothing, means of transportation, pension funds, and even a family burial plot or crypt. Of the above exemption^, none is more important to a debtor than the exemption of his wages from unrestricted garnishment. The debtor’s wages are his sustenance, with which he supports himself and his family. The average low income wage' earner spends nearly nine-tenths of those wages for items of immediate consumption. This Court has recognized the potential of certain garnishment proceedings to “impose tremendous hardshipsi on wage earners with families to support.” Sniadach v. Family Finance Corp., 395 U. S. 337, 340 (1969). Kansas has likewise perceived the burden to a debtor and his family when wages may be subject to wholesale garnishment. Consequently, under its code of civil procedure, the maximum which can be garnished is the lesser of 25% of a debtor's weekly disposable earnings or the amount by which those earnings exceed 30 times the federal minimum hourly wage. No one creditor may issue more than one garnishment during any one month, and no employer may discharge an employee because his earnings have been garnished for a single indebtedness. For Kansas to deny protections such as these to the once criminally accused is to risk denying him the means needed to keep himself and his family afloat. The indigent's predicament under this statute comes into sharper focus when compared with that of one who has hired counsel in his defense. Should the latter prove unable to pay and a judgment be obtained against him, his obligation would become enforceable, under the relevant provisions of the Kansas Code of Civil Procedure. But, unlike the indigent under the recoupment statute, the code’s exemptions would protect this judgment debtor. It may be argued that an indigent accused, for whom the State' has provided counsel, is in a different class-with respect to collection of his indebtedness than a judgment creditor whose obligaticn arose from a private transaction. But other Kansas statutes providing for recoupment of public assistance to indigents do not include the severe provisions imposed on indigent defendants in this case. Kansas has enacted, as have many other States, laws for state recovery of public welfare assistance- when paid to an ineligible recipient. Yet the Kansas welfare recipient, unlike the indigent defendant,' is not denied the customary exemptions. We recognize, of course, - that the State’s claim to reimbursement may take precedence, under appropriate circumstances, over the claims of private creditors and that enforcement procedures with respect to judgments need not be identical. This does not mean, however, that a State may impose unduly harsh or discriminatory • terms merely because the obligation is to the public treasury rather than to a private creditor. The State itself in the statute before us analogizes the judgment lien against the indigent defendant .to other “judgments under the code of civil, procedure.” But the statute then strips the indigent defendant of the very exemptions- designed primarily to benefit debtors of low and marginal incomes. The Kansas statute provides for recoupment whether the indigent defendant is acquitted or found- guilty. If acquitted, the indigent finds himself obligated to repay the State for a service the need for which resulted from the State’s prosecution. It is difficult to See why such a defendant, • adjudged to be innocent of the State’s charge, should be denied basic exemptions accorded all other judgment debtors. The indigent defendant who is found guilty is uniquely disadvantaged in terms of the practical operation of the statute. A criminal conviction usually limits employment opportunities. This is especially true where a prison sentence has been served. It is in the interest of society and the State that such a defendant, upon satisfaction of the criminal penalties imposed, be afforded a reasonable opportunity of employment, rehabilitation and return to useful citizenship. There is limited incentive to seek legitimate employment when, after serving a sentence during which interest has accumulated on the indebtedness for legal services, the indigent knows that his wages will be garnished without the benefit of any of the customary exemptions. Appellee in this case has now married, works for a modest wage, and has recently become a father. To deprive him of all protection for his wages and intimate personalty discourages the search for self-sufficiency which might make of the criminally accused a contributing citizen. Not only does this treatment not accord with the treatment of indigent recipients of public welfare or with that of other civil judgment debtors, but the Kansas statute also appears to be alone among re-coupment laws applicable to indigent defendants in expressly denying them the benefit of basic debtor exemptions. Ill In Rinaldi v. Yeager, 384 U. S. 305 (1966), the Court considered a situation comparable in some respects to the case at hand. Rinaldi involved a New Jersey statute which required only those indigent defendants who were sentenced to confinement in state institutions to reimburse the State the costs of a transcript on appeal. In Rinaldi, as here, a broad ground of decision was urged, namely, that the statute unduly burdened an indigent’s right to appeal. The Court found, however, a different basis for decision* holding that “[t]o fasten a financial burden only upon those unsuccessful appellants who are confined in state institutions ... is to make an invidious discrimination” in violation. of the Equal Protection Clause. Id., at 309. Rinaldi affirmed that the Equal Protection Clause “imposes a requirement of some rationality in the nature of the class singled out.” Id., at 308-309. This requirement is lacking where, as in the instant case, the State has subjected indigent defendants to such discriminatory conditions of repayment. This case, to be sure, differs from Rinaldi in that here all indigent defendants are treated alike. But to impose these harsh conditions on a class of debtors who were provided counsel as required by the Constitution is to practice, no less than in Rinaldi, a discrimination which the Equal Protection Clause proscribes. The Court assumed in Rinaldi, arguendo, “that, a legislature could validly provide for replenishing a county treasury from the pockets of those who have directly benefited from county expenditures.” Id., at 309. We note here also that the state interests represented by recoupment laws may prove important ones. Recoupment proceedings may protect the State from fraudulent concealment of assets and false assertions of indigency. Many States, moreover, face expanding criminal dockets, and this Court has required appointed counsel for indigents in widening classes of cases and stages of prosecution.' Such trends have heightened the burden on public revenues, and recoupment laws reflect legislative efforts to recover some of the added costs. Finally, federal dominance of the Nation’s major revenue sources haS encouraged state and local governments to seek new methods of conserving public funds, not only through the recoupment of indigents’ counsel fees but of other forms of public assistance as well. We thus recognize that state recoupment statutes may betoken legitimate state interests. But these interests are not thwarted by requiring more even treatment of indigent criminal defendants with other-classes of debtors to whom the statute itself repeatedly makes reference. State recoupment laws, notwithstanding the state interests they may serve, need not blight in such discriminatory fashion the hopes of indigents for self-sufficiency and self-respect. . The statute before us embodies elements of púnitiveness and discrimination which violate the rights of citizens to equal treatment under the law. The judgment of the court below is affirmed. The opinion of the three-judge court is reported in 323 F. Supp. 1230 (Kan. 1971). Kan. Stat. Ann. §§22-4501 to 22-4515 (Supp. 1971). Kan. Stat. Ann. §22 — 4513 (Supp. 1971). The statute reads as follows: “(a) Whenever any expenditure has been made from the aid to indigent defendants fund to provide counsel and other defense services to any defendant, as authorized by section 10, . . . such defendant shall be liable to the state of Kansas for a sum équal-to such expenditure, and such sum may be recovered from the defendant by the state of Kansas for the benefit of the fund to aid indigent defendants. Within thirty (30) days after such expenditure, the judicial administrator shall send a notice by certified mail to the person on whose behalf such expenditure was made, which notice shall state the amount of the expenditure and shall demand that the defendant pay said sum to'the state of Kansas for the benefit of the fund to aid indigent defendants within sixty (60) days after receipt of such notice. ' The notice shall state that such sum became due on the date of the^expenditure and that the sum demanded will bear interest at six perc.ent (6%) per annum from the due date until paid. Failure to receive any such notice shall not relieve the person to whom it is addressed from the payment of the sum claimed .and-, any interest due thereon. “Should the sum demanded remain unpaid at the expiration of sixty (60) days after mailing the notice, the judicial administrator shall certify an abstract of the total amount of the unpaid demand and interest thereon to the clerk of the district court of the county in which counsel was appointed or the expenditure- authorized by the court, and such clerk shall enter the total amount thereof on his judgment docket and said total amount, together with the interest thereon at the rate of six percent (6%) per annum, from the date of the expenditure thereof until paid, shall become a judgment in the same manner and to the same extent as any other judgment under the code of civil procedure and shall become a lien on real estate from and after the time of filing thereof. A transcript of said judgment may be filed in another county and become a lien upon real estate, located in such county, in the same manner as is provided in ease of other judgments. Execution, garnishment, or other proceedings in aid of execution may issue within the county, or to any other county, on said judgment in like manner as on judgments under the code of civil procedure. None of the exemptions prbvided for in the code of civil procedure shall apply to any - such judgment, but no such judgment shall be levied against a homestead. If execution shall not be sued out within five (5) years from the date of the entry of any such judgment, or’if five (5) years shall have’intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant and shall cease to operate as a lien on real estate of the judgment debtor. Such dormant judgment may be revived in like manner as dormant judgments under the code of civil procedure. “(b) Whenever any expenditure has been' made from the aid to indigent defendants fund to provide counsel, and other defense. services to' any defendant, as authorized by section 10, ... a sum equal to such expenditure' may be recovered by the state of Kansas for the benefit of the aid-to indigent defendants fund from any persons to whom the indigent defendant shall have transferred any of his property without adequate monetary consideration after the commission of the alleged crime, to the extent of the value of such transfer, and such persons are hereby made liable to reimburse the state of Kansas for such expenditures with interest at six percent (6%)'per annum. Any action to recover judgment for such expenditures shall be prosecuted by the attorney general, who may require the assistance of the county attorney of the county in which the action is to be filed, and such action shall be governed by the provisions of the code of civil procedure relating to actions for the recovery of money. No action shall be brought against any person under the provisions of this section to recover for sums expended ' on behalf of an indigent defendant, unless such ^action shall have been filed within two (2) years after the date of the expenditure from the fund to aid indigent defendants.” Failure to receive notice, however, does not relieve the person to whom it is addressed of the obligation. A dormant judgment may be revived within two years of the date on which the judgment became dormant. -IKan. Stat. Ann. §60-2404 (1964). There is also a federal reimbursement provision, 18 U. S. C. § 3006A (f): “Receipt of other payments. — Whenever the' United States magistrate or the court finds that funds are available for payment, from or on behalf of a person furnished representation, it may authorize or direct that such funds be paid to the appointed attorney, to the bar association or legal aid agency or community defender organization which provided the appointed attorney, to any person or organization authorized pursuant to subsection (e) to render investigative, expert, or other services, or to the court for deposit, in the Treasury as a .reimbursetnent to the appropriation, current at the time of payment, to carry out the provisions of this section. Except as so authorized or directed, no such person or organization may-request or accept any payment or promise of payment for representing a defendant.”. The board of county commissioners has discretion to compromise or' release the hen, however. Fla. Stat. Ann. § 27.56 (Supp. 1972-1973). State recoupment statutes, including those quoted above, are as follows: Ala. Code, Tit. 15, § 318 (12) (Supp. 1969); Alaska Stat. § 12.55.020 (1962); Fla. Stat. Ann. §27.56 (Supp. 1972-1973); Idaho Code § 19-858 (Supp. 1971); Ind. Ann. Stat. §9-3501 (Supp. 1970); Iowa Code Ann. §775.5 (Supp. 1972); Md. Ann. Code, Art. 26, § 12C (Supp. 1971); N. M. Stat. Ann. § 41-22-7 (Supp. 1971); N. D. Cent. Code §29-07-01.1 (Supp. 1971); Ohio Rev. Code Ann. §2941.51 (Supp. 1971); S. C. Code Ann. § 17-283 (Supp. 1971); Tex. Code Crim. Proc., Art. 1018 (1966); Va. Code Ann. § 14.1-184 (Supp. 1971); W. Va. Code Ann. §62-3-1 (Supp. 1971); Wis. Stat. Ann. §256.66 (1971). For fiscal 1971 $400,000 was appropriated to fund the program. See n. 2, supra. “Tr: of Oral Arg.. 9. The State concedes .that exemptions for other civil judgment debtors are broader than for indigent defendants, id., at 10, a matter we will address forthwith. . Brief for Appellants 7: See .Kan. Stat. Ann. §§ 60-701 to 60-724, 60-2401 to. 60-2419 (1964 and Supp. 1971). The exemptions in the civil code are set forth in Kan. Stat. Ann. §§60-2301 to 60-2311 (1964 and Supp. 1971). Kan. Stat. Ann. §§ 60-2304 and 60-2308 (1964 and Supp. 1971). Bureau of Labor Statistics, Handbook of Labor Statistics 281 (1968). Low-wage earners are defined as families with after-tax income of less than $5,000. The Court in Sniadach held that Wisconsin’s prejudgmént wage garnishment procedure, as a taking of property without notice and prior hearing, violated the Due Process Clause of the Fourteenth Amendment. Kan. Stat. Ann. §§ 60-2310 (b) and 60-2311 (Supp. 1971).' Section 60-2310 also provides further debtor protection from wage garnishment at a time of disabling personal sickness and from professional collecting agencies; See Kan. Stat. Ann. §§ 60-2310 (c) and (d) (Supp. 1971). See also Bennett, the 1970 Kansas Legislature in Review, 39 J. B. A. K. 107, 178 (1970), which points out that the State’s restrictions on garnishments have been made to conform to Tit. Ill of the federal Consumer Credit Protection Act, 82 Stat. 163. Kansas, however, provided significant wage exemptions from garnishment long before the federal Act was passed. Kan. Stat. Ann. §39-719b (1964); §59-2006 (Supp. 1971). Section 39-719b deals mainly with the recovery of assistance from an ineligible recipient. Yet, even when the welfare recipient is deemed to have defrauded the State, he still escapes the immediate interest accumulations and denial of exemptions imposed on indigent defendants: “§ 39-719b. Duty of recipient to report changes; action by board; recovery of assistance obtained by ineligible recipient. If at any time during the continuance of assistance to any person, the recipient thereof becomes possessed of any property or income in excess of the amount ascertained at the time of granting assistance, it shall be the duty of the recipient to notify, the county board of social welfare immediately of the receipt or possession of such property or income and said county board may, after investigation, cancel the assistance in accordance with the circumstances. “Any assistance paid shall be recoverable by the county board as a debt due to the state and the county in proportion to the amount of the assistance paid by each, respectively: If during the life or on the death of any person receiving assistance, it is found that the recipient was possessed of income or property in excess of the amount reported or ascertained at the time of granting assistance, and if it be shown that such assistance was obtained by an ineligible recipient,' the total amount of the assistance may be recovered by the state department of social welfare as a fourth class claim, from the estate of the recipient or in an action brought against the recipient while ■living.” There appears to be a. further discrimination against the indigent defendant as contrasted with the delinquent welfare recipient. The recoupment statute applicable to indigent defendants provides for the accumulation of 6% annual interest from the date expenditures are made for counsel or other legal defense costs. Kan. Stat. Ann. § 22-4513 (Supp. 1971). The interest build-up for the indigent defendant would not be insubstantial, In the five years before the judgment became dormant, interest accumulations could lift ap-pellee’s $500 debt to almost $670. If the dormant judgment is revived within the statutorily prescribed two years, the principal and interest might total over $750. (The interest presumably would run while the judgment was dormant since “[a] dormant judgment may be revived and have the same force and effect as if it had not become dormant . . . .” Kan. Stat. Ann. §60-2404 (Supp. 1971)). Kansas also has a statute providing that all judgments shall bear 8% interest from the day on which they are rendered. Kan. Stat. Ann. § 16-204 (Supp. 1971) (recently amended from 6%) . Presumably this statute would cover the “debts” of welfare recipients once they are reduced to judgment. The debt of the indigent defendant, however, runs from the date the assistance is granted, while any interest on the debt of a welfare, recipient would presumably run from the date of judgment. For example, Kansas does not extend its exemptions with respect to wage garnishment to any debt due for any state or federal tax, Kan. Stat. Ann. § 60-2310 (e) (3) (Supp. 1971). This type of public debt, however, differs from the instant case in representing a wrongful withholding from the State of a tax on assets in the actual possession of the taxpayer and not, as here, a debt contracted under circumstances of indigency. The statutes of various other States, e. g., Alaska, South Carolina, and West Virginia, provide, as does Kansas, for recovery against . indigent defendants in the same manner as on other judgments. Unlike Kansas, however, these States do not expressly subject indigents to conditions to which other civil judgment debtors are not liable. See n. 8, supra, for citations. See n. 8, supra, for citations. Gideon v. Wainwright, 372 U. S. 335 (1963); Douglas v. California, 372 U. S. 353 (1963); Argersinger v. Hamlin, ante, p. 25. Coleman v. Alabama, 399 U. S. 1 (1970); Mempa v. Rhay, 389 U. S. 128 (1967); United States v. Wade, 388 U. S. 218 (1967); Miranda v. Arizona, 384 U. S. 436 (1966). Question: Did the Court declare unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance? A. No declaration of unconstitutionality B. Act of Congress declared unconstitutional C. State or territorial law, regulation, or constitutional provision unconstitutional D. Municipal or other local ordinance unconstitutional Answer:
songer_opinstat	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. In re EUCLID DOAN CO. NATIONAL CITY BANK OF CLEVELAND v. EUCLID DOAN CO. (HARVEY, Intervener). No. 8018. Circuit Court of Appeals, Sixth Circuit. June 9, 1939. Clan Crawford, of Cleveland, Ohio (Squire, Sanders & Dempsey, H. J. Crawford, Paul J. Bickel, and Frank Harrison, all of Cleveland, Ohio, on the brief), for appellant. Morris Berick, of Cleveland, Ohio (Hal-le, Harris, Haber & Berick, of Cleveland, Ohio, on the brief), for appellees. Before HICKS, ALLEN, and HAMILTON, Circuit Judges. HICKS, Circuit Judge. This appeal involves an issue similar to those considered in Commissioner v. H. F. Neighbors Realty Co., 6 Cir., 81 F.2d 173, and in Commissioner v. F. & R. Lazarus & Co., 6 Cir., 101 F.2d 728, namely: The status of the transaction whereby a debtor raised money upon real estate by divesting itself of the fee, but retaining possession under a renewable ninety-nine year lease from the grantee, who as trustee, issued land trust certificates of equitable interests in the property to third parties. Those were tax cases. Here the controversy is ancillary to a proceeding for the reorganization of the debtor under Sec. 77B of the Bankruptcy Act, 11 U.S.C.A. § 207. On June 9, 1937, the day after the debt- or’s petition was approved, appellant, successor-trustee to The Guardian Trust Company, filed its ancillary petition in the nature of reclamation alleging that the debtor had defaulted in its payments provided in the lease and praying for an adjudication that the leasehold be terminated and for an injunction against the debtor from disturbing it in its possession of the premises. The debtor alleged in its answer that the whole transaction was intended to secure a loan, by conveyance of title to Guardian, and that if the loan should be paid off, title would revert to the debtor. It denied that the trustee was in possession. The Master found that the transaction was not intended as a sale, but was designed to secure a. loan, for which Guardian took title to the real property as security. The court confirmed these findings and denied relief. Hence this appeal. The debtor, since 1904, was in the business of owning and leasing contiguous properties in Cleveland. Its income was; derived from rentals, the tenants sometimes paying directly to it and sometimes to; the Euclid 105th Properties Company, a lessee. The buildings, which the debtor constructed, rested partly on land it owned and partly on leased premises, no attempt being made to conform the walls to the property lines. In 1922 the debtor placed a $2,000,000 first mortgage with Guardian on twelve lots, ten of which are here involved. In 1928 the bonds secured by this mortgage had seven or eight years to run but they were being paid as they became due. The mortgage then amounted to $1,200,000 with a second mortgage of $500,000. Harvey, a large stockholder of the debtor, testified that House, President of Guardian, not a. .witness, urged the debtor to convert the bonds into land trust certificates bearing 5% instead of the 6% then being paid as interest. “When the offer was made by Mr. House, I said we didn’t like to deed our property to The Guardian Trust Company, it looked as if we were parting with title. He said, no, that was just a paper title, that the real title still remained in yourself if you still made these yearly payments.” Harvey testified further that Goodman of the Properties Company, discussed the proposal with Whitcomb, attorney for Guardian, who also did not testify, and that Whitcomb finally convinced Goodman that it would lessen the interest rate and that “we were not parting with the property, and by these monthly or yearly payments in the course of thirty years would be back in our possession' again.” George F. Johnson, Vice-President of Guardian, in charge of securities and the only witness for appellant who testified touching the negotiations, said that he never told Harvey that a land trust certificate issue would be the same as a mortgage and never heard any one else do so, but he admitted that he was taking up some unma-tured bond issues and replacing them with a lower rate security and that land trust certificates were popular securities at that time. It was understood that they were non-taxable. Pursuant to these negotiations, the debt- or, on May 8, 1928, sold $1,375,000 of land trust certificates to Guardian and Union' Trust Company, underwriters, for $1,295,-000. It carried these certificates on its books as a debt. The certificates were afterwards sold to the investing public.. On the same day the debtor executed a warranty deed conveying the ten properties it owned in fee to Guardian for a stated consideration of $100. On May 24, 1928, Guardian, as trustee, leased the conveyed premises' to the debtor for ninety-nine years, renewable at the option of the debtor. The annual rental was fixed at $68,750; being $50 for each of the 1,375 land trust certificates resold by Guardian at $1,000 each and representing 1/1375 interest in the tracts conveyed. The debtor agreed to pay all the taxes, special assessments, etc., on the premises and to maintain the buildings in repair at its expense. In addition, it agreed to pay the trustee $1,-700 a year for its services, and to pay $6,- . 875 per annum until May 15, 1935, and $33,-750 annually thereafter into a depreciation fund until its accumulations should aggregate $1,000,000. the payments to be invested by the trustee as security for debtor’s performance. If the debtor exercised its option to purchase back the premises or any part thereof, the certificates could be purchased out of the fund at figures ranging from $1,416.25 prior to May 15, 1931, to $1,388.75 after May 15, 1938. The lease provided also that, if the debtor should elect to purchase a particular tract, the value' of the land and buildings remaining subject to the lease .should be equal to, or in excess of, 225% of the value of outstanding trust certificates. The Properties Company joined in the lease, making itself liable with the debtor for payment of the rents and performance of other covenants and conditions. Section 4 of Article V of the lease empowered the trustee, in event of default in payment of rents, depreciation fund, etc., over a period of sixty days, to give notice, specifying the default, and at the end of sixty days thereafter, to elect “to declare the term ended and to enter upon the * * premises and take immediate possession of the same together with all buildings and improvements thereon, with or without process of law, forcibly or otherwise, and to expel, remove or put out the Lessee * * * using all force and means that may be necessary for so doing. * * * ” Clause (a) of Article VI expressly declared that the property was conveyed and the Declaration of Trust executed “in connection with the payment or refinancing of indebtedness of Euclid-Doan Company. * * * ” On the same day, May 24, 1928, Guardian, as trustee, executed its Declaration of Trust dividing the equitable ownership and financial interest in the trust estate into 1,375 indivisible parts and issuing certificates of equitable ownership in evidence thereof. By its provisions, the trustee assumed the exclusive right to control the trust estate, free from all direction by the beneficiaries, to terminate the lease and sell the estate in event of default or to take such other action or exercise such other remedies as it might deem advisable. In aid of the sale of the certificates Guardian issued a prospectus based upon information supplied by the debtor to the effect that the property was favorably situated in the second largest retail business district in Cleveland and consisted of land appraised at $1,598,790 with buildings appraised at $825,000 and the value of the leasehold appraised at $325,000; that the net income from all the property available for the rental payments of $68,750 was $134,521.23 for the year 1927. About 1931 the Properties Company defaulted in its payments to the debtor, with consequent default of the debtor'to the trustee. Various arrangements were made to cut down expenses and collect as much as possible for the certificate holders. On March 29, 1935, about three months after its designation as successor-trustee, appellant addressed a joint letter to the debtor and Properties Company giving notice of the delinquencies in rent, tax ánd depreciation fund payments and proposing an arrangement whereby the Properties Company might continue to collect rents and deposit them but could not check them out without the countersignature of a representative of the trustee. In the early part of 1937 an attempt to revise the lease, and to write down the rentals, failed when the debtor was unable to make repairs on the property. By May 21, 1937, the debtor’s default for rents and depreciation fund payments was around $400,000. On that date apparently without giving any further notice than that we have recounted, appellant wrote letters to both companies, cancelling the lease, and attempted to enter upon the property and seize control of it. This met with opposition from the debtor; and although the appellant managed to open an office in one of the buildings, it did not gain undisputed possession. During this period, appellant and debtor each gave orders to service employees, and each attempted to collect rents from the tenants, with temporary demoralization to both. The debtor apparently prevailed, since Harvey testified that from May 21 to June 7, 1937, the collections were highest for a similar period in over three years and that when the books were closed in May there was less delinquency among the tenants by $2,000 than when the books were closed in April. We are not at liberty to overturn the concurrent findings of the Master and the Judge that the transactions of May, 1928, between the debtor and Guardian were not intended as a sale of the debtor’s property but were intended to secure a loan and that the deed of May 8 executed by the debtor to Guardian was intended to secure repayment of the loan and that the lease of May 24 by Guardian to the debtor was a part of the same transaction and for the same purpose. There is no showing of a clear mistake in the findings. The Master pointed out that the indicia of such intention were, among others, —(1) the prior debt of the debtor; (2) its financial embarrassment; (3) that Guardian was a money lender; (4) that the original intention of the debtor was to obtain a loan; (5) the inadequacy of the consideration for the deed; (6)’ the continued payment by debtor of the taxes; (7) that re-conveyance was to be made upon repayment of the precise amount of the consideration with interest; (8) payment by debtor in possession of rent equal to interest payable on the certificates; and (9) obligation to pay a definite amount. We fail to discover in the record any basis for a conclusion different from that arrived at. Equity has inherent jurisdiction to declare a deed to be a mortgage and the Bankruptcy Court is by statute vested with equity jurisdiction. We think the case must be aligned with the Neighbors and Lazarus cases. A restatement of the opinions in these cases would be surplusage. Finally, it is pressed upon us that by its representations in the prospectus above mentioned that the fee in the property was held by the trustee subject to a lease to the debtor, appellee was estopped from asserting that it was a mortgagor. Certainly this cannot be true as between appellant and appellee, else no deed could ever be declared to be a mortgage, as intended, between the parties. One may by his conduct exclude himself from asserting his title to lands but only upon clear and satisfactory grounds of both justice and equity. The party asserting estoppel must be able to show that he has been injured by the conduct of the other party and that he had no knowledge or means of knowledge of the truth. The decree is affirmed and the case remanded for further proceedings consistent herewith. Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:
songer_appfed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Helen C. BOYD; Roger E. Boyd; Veronica Lynn Boyd, by her parents and next friends, Helen Boyd & Roger E. Boyd, Plaintiffs-Appellees, v. R.A. BULALA, M.D., Defendant-Appellant, Association of Trial Lawyers of America; Virginia Trial Lawyers Association; Distressed Parents Together; Consumer Federation of America; Medical Society of Virginia, Amici Curiae. Helen C. BOYD; Roger E. Boyd; Veronica Lynn Boyd, by her parents and next friends, Helen Boyd & Roger E. Boyd, Plaintiffs-Appellees, v. COMMONWEALTH OF VIRGINIA; R.A. Búlala, M.D., Defendants-Appellants. Nos. 88-2055, 88-2056. United States Court of Appeals, Fourth Circuit. Submitted March 27, 1990. Decided June 12, 1990. Phillip C. Stone, Ronald D. Hodges, Wharton, Aldhizer & Weaver, Harrison-burg, Va., A.E. Dick Howard, Charlottes-ville, Va., Mary Sue Terry, Atty. Gen., Gregory E. Lucyk, Asst. Atty. Gen., Richmond, Va., for defendants-appellants. William O.P. Snead, III, Fairfax, Va., J. Randolph Parker, Tucker, Parker & Bes-kin, Charlottesville, Va., Rosemarie Annun-ziata, Dickstein, Shapiro & Morin, Vienna, Va., for plaintiffs-appellees. Bill Wagner, Tampa, Fla., Jeffrey R. White, Washington, D.C., Fred D. Smith, Jr., Minor & Smith, Richmond, Va., for amici curiae The Ass’n of Trial Lawyers of America, Virginia Trial Lawyers Ass’n, Consumer Federation of America, and Distressed Parents Together. Allen C. Goolsby, III, Patricia M. Schwarzschild, Robert Aeosta-Lewis, Timothy A. Hartin, Hunton & Williams, Richmond, Va., for amicus curiae The Medical Soc. of Virginia. J. Joseph Curran, Jr., Atty. Gen., Judson P. Garrett, Jr., Deputy Atty. Gen., Robert A. Zarnoch, Kathryn M. Rowe, Asst. Attys. Gen., Annapolis, Md., for amicus curiae State of Md. John R. Bolton, Asst. Atty. Gen., Robert S. Greenspan, Scott R. McIntosh, Civ. Div., U.S. Dept, of Justice, Washington, D.C., for amicus curiae U.S. Before HALL and PHILLIPS, Circuit Judges, and WINTER, Senior Circuit Judge. Judge Winter participated in oral argument and submission of this case back to the panel after certification to the Supreme Court of Virginia, but died prior to the time the decision was filed. The decision is filed by a quorum of the panel. 28 U.S.C. § 46(d). PER CURIAM: This medical malpractice action returns to us after certification of several questions to the Supreme Court of Virginia. See Boyd v. Búlala, 877 F.2d 1191 (4th Cir.1989). That court recently issued an opinion answering those questions, and we are now able to decide the remaining issues in the appeal. I The facts of the case and the course of proceedings leading to this appeal are fully set out in our earlier opinion and in the opinion of the Supreme Court of Virginia, see Búlala v. Boyd, 389 S.E.2d 670 (Va. 1990), and need not be repeated here. A brief summary will suffice for present purposes. This medical malpractice action was based on allegations of negligence by Dr. Búlala which resulted in the birth of Veronica Boyd with serious birth defects and injury to her mother, Helen Boyd, during the process of Veronica’s birth. The action included claims by Veronica Boyd for her personal injuries; by Helen Boyd, for her personal injury and emotional distress; by the father, Roger Boyd, for emotional distress; and by the parents jointly for Veronica’s anticipated medical expenses. Veronica and Helen Boyd’s claims were for both compensatory and punitive damages. A jury found Dr. Búlala liable on all the claims and, in separate verdicts, made the following damage awards: (1) For Veronica Boyd compensatory damages $1,850,000 punitive damages $1,000,000 (2) For Helen Boyd compensatory damages $1,575,000 punitive damages $1,000,000 (3) For Roger Boyd (emotional distress) $1,175,000 (4)For Helen and Roger Boyd jointly (medical expenses) $1,700,000 Total Awards $8,300,000 The district court first entered judgment on the verdicts as returned, but then reduced the judgment of each plaintiff proportionately to reflect an aggregate settlement of $650,000, which they had received in a state court action against the hospital involved. See Boyd v. Búlala, 877 F.2d 1191, 1193 n. 1 (4th Cir.1989). This appeal by Dr. Búlala followed. Dr. Bulala’s principal contention on appeal was that the district court erred in holding that Virginia’s then statutory “cap” of $750,000 on medical malpractice awards, Va.Code Ann. § 8.01-581.15 (1984), violated both state and federal constitutional provisions and so could not be applied to limit in any way the overall recovery against him. He also challenged the district court’s rulings and instructions to the jury that under Virginia law he could be found liable to the plaintiffs for the negligence of hospital nurses on a respondeat superior basis; that the father, Roger Boyd, might recover for his emotional distress in the absence of any physical injury to himself; that Veronica might recover compensatory damages for her loss of the enjoyment of life and, on the evidence adduced, for lost earning capacity; and that the evidence warranted awards of punitive damages against him. Finally, he challenged two critical procedural rulings: that Veronica’s death after verdict but before judgment did not require converting her claim into one for wrongful death, and that her death in that interval did not require relief from the judgment which reflected awards on the basis of a much more extended life expectancy. In our first opinion we decided several of these issues. Specifically, we held that Virginia’s $750,000 statutory cap on medical malpractice recoveries violated neither the state nor federal constitutional provisions relied on by Búlala. And we further held that under settled Virginia law and on the evidence adduced, Búlala properly could be found liable to the plaintiffs on a respondeat superior basis; that punitive damages on both Veronica’s and Helen Boyd’s claims properly could be awarded; and that Roger Boyd properly could recover for his emotional distress despite the lack of any personal injury to himself. But we thought that several further questions of Virginia law whose resolution was potentially required to decide the appeal were sufficiently unsettled to warrant their certification to the Supreme Court of Virginia to provide answers for our guidance. Accordingly, we requested that court to answer the following questions: 1. Where there are two or more plaintiffs entitled to recover damages arising from the same act or acts of medical malpractice, does § 8.01-581.15 apply individually to each plaintiff or overall to two or more such plaintiffs? If the statute does apply to all or any combination of plaintiffs’ claims, how is it to be apportioned among them? 2. Does § 8.01-581.15 apply to damages for the infliction of emotional distress arising from some act or acts of medical malpractice? 3. Does § 8.01-581.15 apply to an award of punitive damages for an act or acts of medical malpractice? 4. Does Virginia law allow recovery for the loss of enjoyment of life when death results from an act or acts of medical malpractice? 5. Does Virginia law allow Veronica Boyd to recover damages for her lost earning capacity based upon the evidence presented in this case? 6. What is the effect, under Va.Code Ann. §§ 8.01-21, 8.01-25, and 8.01-56, of Veronica Boyd’s death after verdict but before judgment in this case? See Boyd v. Bulala, 877 F.2d 1191, 1200 (4th Cir.1989). Accepting the certification, the Supreme Court of Virginia, in a comprehensive opinion, Búlala v. Boyd, 389 S.E.2d 670 (Va.1990), answered the questions as follows (in our paraphrase): (1), (2), and (3). The statutory cap sets a separate limit on the total damages recoverable for “any injury” to a single “patient,” regardless of the number of claims and claimants and theories of recovery related to that injury. Accordingly, the cap applicable to any single patient’s injury covers both compensatory and punitive damage claims of the patient and any claims by others that, by substantive law, are “derivative” of the patient’s claims. As applied to the facts found in this case, Veronica Boyd and her mother, Helen Boyd, were each “patients” of Dr. Búlala who suffered separate injuries from his negligence. On this basis, the cap applies separately as a limit upon all the damages, both compensatory and punitive, recoverable by anyone for the respective injuries of these two patients, i.e., as a $750,000 limit upon the total damages properly recoverable for Veronica Boyd’s injuries, and as a $750,000 limit upon the total damages properly recoverable for Helen Boyd’s injuries. Because both the claim of Roger Boyd for his emotional distress arising from Veronica’s injuries and the joint claim of Roger and Helen Boyd for medical expenses attributable to those injuries are “derivative” of Veronica’s claim, they are therefore subject to the cap applicable to that claim. Where, as here, the aggregate of the damage awards subject to a separate cap exceeds the cap, reduction of the awards, in whole or part, to reach the cap level (with any consequent apportionment between claimants) should occur in the following order of reduction: first, awards based on derivative claims of others than the patient; next, punitive damage awards to the patient; last, compensatory damage awards to the patient. On this basis, because the compensatory damage awards to each of the patients, Veronica Boyd and Helen Boyd, each exceeded $750,000, all of the further awards based upon the derivative claims of Roger Boyd and of Roger and Helen Boyd jointly, and the punitive damage awards to Veronica and Helen Boyd, respectively, must be annulled in toto. The remaining compensatory awards to Veronica and Helen Boyd, respectively, must then be reduced to the $750,000 cap, less a further reduction of each by $325,-000, representing one-half of the total $650,000 realized in the earlier settlement. (4). Virginia does not recognize as a separately compensable item of damages for personal injury the “loss of enjoyment of life.” (5). On the evidence adduced in this case, Virginia law would not permit recovery by Veronica Boyd of damages for “lost earning capacity.” Consequently, the district court’s submission of these to the jury as compensable items of damage in respect of Veronica Boyd’s claim was erroneous. (6). Under Virginia law, Veronica Boyd’s death after verdict did not require converting her claim into one for wrongful death. Va.Code Ann. § 8.01-21 directly so provides, by directing that in such cases, “judgment may be entered as if [death] had not occurred.” Sections 8.01-25 and 8.01-56 are not in conflict. They deal with the situation where death occurs before verdict. II The Virginia court’s careful answers, which we of course fully accept, allow us now to resolve the issues reserved in our earlier opinion and fully to decide the appeal. Resolution of the reserved issues would be flatly dictated by those answers save for one difficulty. It is that posed by the Virginia court’s advice that under Virginia law, the district court erred in allowing the jury to take into account loss of enjoyment of life and lost earning capacity in assessing Veronica Boyd’s compensatory damages. The problem is that we cannot know for sure whether the jury’s consideration of either or both of these items could have run their compensatory award above the $750,000 cap level. At $1,850,000, that award was of course over a million dollars in excess of the cap. We would therefore have to assume that more than a million dollars, an amount more than one-half of the award, was probably attributable to these two items in order to find a new trial on damages compelled. While the importance of these items, hence the weight probably attached to them by the jury, is obvious, we are yet doubtful that they could have had such a dominant impact on the total award. Whatever uneasiness we might feel on the point, however, is dispelled by the fact that over and above the compensatory award was an untainted punitive damage award of an additional $1,000,000 which could be applied to the recovery allowable under the cap. And even if we were to speculate that a new trial which yielded a reduced compensatory award would probably yield a commensurately reduced punitive award, we think the possibility that the two in combination could fail to reach the available cap level is too remote to warrant the expense and delay of a new trial on the damages issue. Under 28 U.S.C. § 2106, we have the power and obligation, sitting in appellate review, to take whatever action is “just under the circumstances.” Here, despite the existence of legal error in the jury instructions on compensatory damages as to Veronica Boyd’s claim, we think the circumstances do not warrant requiring a new trial on that issue. Given the substantial margin — in the range of two million dollars — by which the combined compensatory and punitive damage awards exceed the statutory cap, we think it would not be just to withhold judgment limited to the much lower cap figure. One further issue which we reserved pending the Virginia court’s response concerned the district court’s denial of Dr. Bulala’s motion under Fed.R.Civ.P. 60(b)(6) to be relieved of the judgment in favor of Veronica Boyd because of her intervening death. Dr. Bulala’s contention is that, if her claim was not required to be converted to one for wrongful death, her early death made it manifest that the jury award for her personal injuries, based as it necessarily was on the assumption of a much more extended life expectancy, was so substantially over-inflated as to provide the necessary “reason” under Rule 60(b)(6) for being relieved of the judgment. The district court denied that motion in an exercise of the broad discretion conferred by this residual relief provision of Rule 60(b). As we have recognized, "[t]he remedy provided by [this] Rule ... is extraordinary and is only to be invoked upon a showing of exceptional circumstances." Compton v. Alton Steamship Co., 608 F.2d 96, 102 (4th Cir.1979). Under all the provisions of Rule 60(b), a threshold condition for granting the relief is that the movant demonstrate that granting that relief will not in the end have been a futile gesture, by showing that she has a meritorious defense or claim. See generally 11 Wright & Miller, Federal Practice and Procedure: Civil § 2857, p. 161 (1973). Here, essentially for the same reasons that we found the granting of a new trial because of erroneous jury instructions not warranted, i.e., that a new trial on damages would not yield damages totalling less than the cap, we think the circumstance of this claimant's early death not an exceptional one warranting relief from that judgment. We therefore conclude that the district court did not abuse its discretion in denying the motion. III For the foregoing reasons, we remand the action to the district court with directions to vacate its present judgment and to enter judgment in favor of Veronica Boyd in the sum of $425,000, with interest and costs, and in favor of Helen Boyd in the sum of $425,000, with interest and costs. SO ORDERED. 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_stateclaim	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".The issue hereby considered also pertains to cases where the court concluded that there was no proper cause of action. Laverne SMOOT, as Executor of the Estate of Ruth M. Smoot, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. No. 88-2058. United States Court of Appeals, Seventh Circuit. Argued Nov. 30, 1988. Decided Dec. 27, 1989. David J. Duez, McDermott, Will & Emery, Chicago, Ill., Robert M. Bellatti, Bellat-ti & Barton, Springfield, Ill., for plaintiff-appellee. Linda A. Mosakowski, Gary R. Allen, William S. Rose, Jr., Asst. Atty. Gen., Seth G. Heald, David E. Carmack, Dept, of Justice, Tax Div., Appellate Section, Washington, D.C., Frances C. Hulin, Asst. U.S. Atty., Office of the U.S. Atty., Danville, Ill., for defendant-appellant. Before WOOD, Jr. and RIPPLE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge. FAIRCHILD, Senior Circuit Judge. For purposes of determining federal estate tax, the Internal Revenue Code allows farms to be valued according to use as farms, rather than at their fair market value, so long as the farm passes to a “qualified heir of the decedent,” that is, a member of the decedent’s family and, in certain circumstances, a member of the qualified heir’s family. 26 U.S.C. § 2032A (1979). In order to confine this tax benefit to cases where farm use and family ownership continue for a period of years, § 2032A(c)(l) imposes an additional estate tax (sometimes called a “recapture tax”) if, within fifteen years (later changed to ten) and “before the death of the qualified heir,” the “qualified heir” disposes of an interest other than to a member of his or her family, or ceases to use the property as a farm. In this case, an executor elected special use valuation, but the Internal Revenue Service, relying on a Treasury Regulation interpreting the statute, rejected the election. The estate paid the additional tax assessed, and filed suit in district court seeking a refund. The district court held the Treasury Regulation unreasonable in light of Congressional intent, and ordered the IRS to refund $46,638.28, including interest. The IRS appeals. 1. BACKGROUND The decedent, Ruth M. Smoot, died on November 19, 1980. She was survived by her husband, Laverne Smoot, who was then sixty-seven years old, and by three sons and four grandchildren. At the time she died, Mrs. Smoot owned interests in four tracts of farmland located in Vermilion County, Illinois. Mrs. Smoot devised her real estate to Mr. Smoot during his life, with power to appoint by his will to anyone except himself, his estate, or his creditors. If Mr. Smoot does not exercise his power, the remainder will be divided among Mrs. Smoot’s then surviving children and descendants of any deceased children. If no descendant of hers survives Mr. Smoot, one half will be distributed among Mr. Smoot’s heirs and one half among hers, the heirs being determined as of that time. Thus, it is possible that Mr. Smoot could die within fifteen years of Mrs. Smoot’s death, having exercised his power of appointment in favor of persons who were not members of the family of either Mr. or Mrs. Smoot. Mr. Smoot, as executor, claimed a special use valuation for the farmland on the estate’s tax return. The IRS disallowed special use valuation because Mrs. Smoot’s will, as written, left two possibilities that the farmland would pass out of her family members’ hands within fifteen years of her death. This could happen if Mr. Smoot dies within fifteen years and (1) exercises his testamentary power in favor of a nonfamily member, or (2) does not exercise the power and none of Mrs. Smoot’s descendants survive Mr. Smoot, since the remainder interest will pass under the will to persons who might not be qualified heirs (family members) under § 2032A(e) (1979). The IRS argued that special use valuation was not available because both possibilities violated a Treasury Regulation requiring that where the decedent had created successive interests, all such interests must be received by qualified heirs. 20 C.F.R. § 20.2032A-8(a)(2). The district court first held that because the probability was so minuscule that, within fifteen years of Mrs. Smoot’s death, part of the farmland would pass to non-qualified heirs by way of the will’s default clause, it was not a reasonable basis for denying special use valuation. The IRS does not challenge this ruling on appeal. The IRS also defended its denial of special use valuation based on the portion of Treasury Regulation § 20.2032A-8(a)(2) which says that remainder interests of qualified heirs which are subject to divestment in favor of non-qualified heirs are not treated as being received by qualified heirs. Since the remainder interests left to Mrs. Smoot’s descendants are subject to divestment by Mr. Smoot’s power of appointment, the farmland does not meet the regulation’s requirement that all successive interests be received by “qualified heirs.” The IRS argued that because Mr. Smoot might appoint a non-qualified heir within fifteen years of Mrs. Smoot’s death, the regulation reasonably advanced the purposes of § 2032A by denying special use elections when such a possibility exists. The district court decided that Congress intended a “wait and see” approach to the situation presented by Mrs. Smoot’s will, instead of denying the special use valuation based on a contingency: Given the legislative history indicating a Congressional intent to aid family operated farms and the specific inclusion of a recapture provision, the court believes that Congress intended that special use valuation be allowed as long as the property of the deceased remains in the hands of a qualified heir. Only when the property passes to a nonqualified heir should the IRS exercise its power granted under the recapture agreement in order to collect the additional tax from a qualified heir. Laverne Smoot, Executor v. United States, 88-1 U.S.T.C. 1118,748, 1987 WL 49387 (C.D.Ill.1987). The IRS challenges this decision. II. DISCUSSION Congress enacted § '2032A as part of the Tax Reform Act of 1976 as a means to provide “substantial relief” from federal estate taxes for “modest-sized estates, farms and other closely held businesses,” taxes which could threaten these family-based institutions’ very existence. H.R. Rep. No. 1380, 94th Cong., 2d Sess. at 3, 1976 U.S.Code Cong. & Admin.News at 3357 (“1976 Ways and Means Report”). [T]he estate tax can impose acute problems when the principal asset of the estate is equity in a farm or small business. Because assets are valued at their “highest and best use” rather than on the specific use to which the assets are being put and because these assets are illiquid, family members have been forced to sell farms and small businesses in order to pay the estate tax. 1976 Ways and Means Report at 5, 1976 U.S.Code Cong. & Admin.News at 3359. Congress also recognized that because the fair market value of property represents its “highest and best” use, such valuation often reflects pressure on prices from land speculation “to such a degree that the price of the land does not bear a reasonable relationship to its earning capacity.” Id. at 22, 1976 U.S.Code Cong. & Admin.News at 3376. By permitting farms and other family businesses to be valued according to their present use, often much lower than their “fair market value,” Congress “intended to preserve the family farm and other family businesses, two very important American institutions, both economically and culturally.” Id. at 5, 1976 U.S. Code Cong. & Admin.News at 3359. However, Congress realized that such a provision could also act to give an unintended windfall to devisees of specially valued property who later either quit the qualifying use or sell the property at its true market value. 1976 Ways and Means Report at 22, 1976 U.S.Code Cong. & Admin. News at 3376; 1976 Finance Report at 15, 1976 U.S.Code Cong. & Admin.News at 4041. Therefore, § 2032A included a provision enabling the IRS to recapture (in effect) the amount of tax avoided by electing the special use valuation (or, if less, the difference in property value) if, within fifteen years (now ten), the qualified heir disposes of the property to someone not a family member, or ceases the qualifying use. § 2032A(c) (1979). To elect the special use valuation, the executor must file an agreement signed by each person who has an interest in the property, consenting to the application of the recapture provision. § 2032A(d)(2). The statute sets several conditions to be met before property qualifies for the special use valuation; the one at issue here is the requirement that the property be “acquired from or passed from the decedent to a qualified heir of the decedent.” § 2032A(b)(l). Unfortunately, the phrasing of the statute suggests only the simple case where property passes from a decedent to one qualified heir in fee, and if that qualified heir continues to own and use it as a farm until his death, the election can be made again in his estate if the farm passes to a qualified heir. The legislative history clearly tells us, however, that Congress intended special use valuation to be available in an estate where concurrent or successive interests pass to two or more qualified heirs: [I]f the decedent leaves qualified real property for which special use valuation was elected to two or more qualified heirs with successive interests in the property, potential liability for the recapture tax is not diminished and none of the property is to be released from potential liability for the recapture tax until the death of the last of the qualified heirs (or, if earlier, upon the expiration of 15 years from the date of the death of the decedent). 1976 Ways and Means Report at 26, 1976 U.S.Code Cong. & Admin.News at 3380; 1976 Joint Committee Explanation at 542, 1976-3 Cum.Bull. (Vol. 2) at 554. See Estate of Clinard v. Commissioner, 86 T.C. 1180, 1184-84 (1986). Treasury Regulation § 20.2032A-8 was adopted to flesh out how § 2032A would apply to property passing in concurrent interests (such as tenants in common and joint tenants) or successive interests (such as life estates and remainders). Subsection (a)(2) requires that all successive interests must be held by qualified heirs for a property to qualify for special use valuation. Additionally, the regulation states that [w]here successive interests in specially valued property are created, remainder interests are treated as being received by qualified heirs only if (i) a qualified heir receives a present interest in that real property, (ii) all preceding interests in the property are vested absolutely in qualified heirs, and (iii) such remainder interests are not contingent upon surviving an alternate taker who is not a member of the decedent’s family or are not vested subject to divestment in favor of a non-family member. All relevant holders of interests in Mrs. Smoot’s farmland are qualified heirs under the terms of the statute. Regulation § 20.2032A-8(a)(2), however, would prevent Mr. Smoot, as executor, from electing special use valuation because the remainder interests created by Mrs. Smoot’s will are held “subject to divestment in favor of a nonfamily member,” on account of Mr. Smoot’s power of appointment. Although the Regulation treats two or more qualified heirs holding interests in unbroken succession as “a qualified heir” under the statute, it does not so treat them if there is a possibility that the succession could, though it may not, be interrupted in favor of a person who is not a qualified heir. Application of § 2032A-8(a)(2) in this case runs contrary to Congress’ general intent to provide family farms “substantial relief” from the burden of estate taxes. As we noted in Whalen v. United States, “[t]he intent of Congress was to provide special use valuation only for property which remained in the hands of the decedent’s family and which was being used for a qualified use both before and after the decedent’s death.” 826 F.2d 668, 670 (7th Cir.1987) (quoting S.Rep. No. 745, 95th Cong., 2d Sess. at 82 (1978)); accord, H.R. Rep. No. 700, 95th Cong., 1st Sess. at 69 (1977). In this case, the farmland has remained in the family since Mrs. Smoot’s death, and has continued to be farmed. Unless Mr. Smoot exercises his testamentary power in favor of a nonfamily member, the will ensures the farm will remain in the family after his death. The district court accepted Mr. Smoot’s statement that he does not intend to appoint the land to a nonfamily member, and moreover, according to the record there is a 35% probability that he will have no chance to do so within fifteen years of Mrs. Smoot’s death, even if he wanted to. The power of appointment creates only a possibility that a disqualifying transfer would happen, while denying the special valuation creates the certainty of a heavy burden on the farm: the farm’s fair market value at the time of Mrs. Smoot’s death was $682,000 — $452,000 more than its special value as a working farm. Denying the special use valuation has saddled the Smoot family with an additional $42,000 in estate taxes. Rules which produce undesirable results in specific cases may nevertheless be sensible in general; we are obliged to review Treasury regulations with deference. Only those failing to “implement the congressional mandate in some reasonable manner” are invalid. Rowan Cos. v. United States, 452 U.S. 247, 252, 101 S.Ct. 2288, 2292, 68 L.Ed.2d 814 (1981) (quoting United States v. Correll, 389 U.S. 299, 307, 88 S.Ct. 445, 449-50, 19 L.Ed.2d 537 (1967). When judging a regulation’s validity under the statute it is intended to implement, a court must “find that interpretation which can most fairly be said to be imbedded in the statute, in the sense of being most harmonious with its scheme and with the general purposes that Congress manifested.” Commissioner v. Engle, 464 U.S. 206, 217, 104 S.Ct. 597, 604, 78 L.Ed.2d 420 (1984) (quoting NLRB v. Lion Oil Co., 352 U.S. 282, 297, 77 S.Ct. 330, 338, 1 L.Ed.2d 331 (1957) (opinion of Frankfurter, J.). Thus, while we usually defer to a Treasury regulation which is not directly at odds with express language in the Internal Revenue Code, a regulation may be invalid if it is out of harmony with the spirit or purpose of the provision it purports to implement. See, e.g., Goodson-Todman Enterprises, Ltd. v. Commissioner, 784 F.2d 66, 74 (2d Cir.1986); Estate of Gresham v. Commissioner, 752 F.2d 518, 521 (10th Cir.1985); Lutheran Social Service of Minn. v. United States, 758 F.2d 1283, 1289 (8th Cir.1985); Estate of Lovett v. United States, 621 F.2d 1130, 1135, 224 Ct.Cl. 32 (1980). This regulation has recently been held invalid by a Court of Appeals in a case involving a similar possibility of divestment by power of appointment. Estate of Thompson v. Commissioner, 864 F.2d 1128 (4th Cir.1989). Accord, Estate of Clinard v. Commissioner, 86 T.C. at 1188-90. In Estate of Thompson, a decedent left a family farm in trust to his two daughters for life (except for a 2% interest given to a non-family member), with the remainders to go to their estates. Each was given a testamentary power of appointment which could be exercised in favor of non-qualified heirs. The Commissioner denied the estate’s election of special use valuation, and the Tax Court affirmed on the ground that the estate left a 2% concurrent interest to a non-qualified heir. A divided panel of the Fourth Circuit held that the 2% interest did not prevent the remaining 98% from receiving special use valuation, and went on to hold that neither did the existence of the daughters’ powers of appointment. 864 F.2d at 1135-36. Citing the district court’s decision in this case, the Fourth Circuit said: Common sense compels the conclusion that otherwise qualified real property remains eligible for the valuation even when the qualified heirs have the power to appoint their interest to non-qualified heirs. 864 F.2d at 1136. The system adopted by Congress permits the special use valuation when the estate tax is originally computed. This is so notwithstanding the possibility that the qualified heir may at any time convey to someone who is not a qualified heir, or may change the property’s use to one which is not qualified. Congress chose a “wait and see” approach concerning the qualified heir’s treatment of the property, satisfying itself that if such conveyance or change of use does occur within fifteen (now ten) years, the tax advantage could be recaptured. The qualified heir is always free to make a disqualifying transfer of his interest, or to quit the qualifying use, while the holder of a special testamentary power of appointment can only transfer the property at death. If Congress was satisfied to adopt a wait and see approach towards possible disqualification of the property by the qualified heir, we see no reason to assume that Congress intended to deny election of special use valuation outright to those estates subject to the possibility that an appointment power holder will make a transfer to someone not a family member. We agree with the Fourth Circuit that, given Congress’ willingness to wait and see as to the possibility of a conveyance or change of use, it is irrational to believe Congress intended that the provision for a power of appointment in the present circumstances would prevent the special use valuation without waiting to see whether and how it is exercised. See Estate of Thompson, 864 F.2d at 1136. The core of the IRS’s argument that its interpretation of § 2032A is reasonable lies in its narrow interpretation of the recapture provision, an argument not addressed by the Fourth Circuit in Estate of Thompson. The IRS seems to concede that if the recapture provisions were applicable so that Mr. Smoot would be liable for the tax if he appoints the property to a person not a qualified heir, “the result here would not be objectionable, but would strictly accord with Congressional intent.” Government Brief at 27. The IRS insists, however, that liability for the recapture tax would not arise in such a case, and so it is reasonable to deny election of special use valuation. Its argument rests upon a highly technical reading of two portions of the recapture provision, § 2032A(c). In both instances, however, we think the terms must be read so as to effectuate the intent of Congress. Both of the IRS’s concerns stem from the portions of the recapture provision we have italicized: (1) Imposition of additional estate tax. —If, within 15 years after the decedent’s death and before the death of the qualified heir— (A) the qualified heir disposes o/any interest in qualified real property (other than by a disposition to a member of his family) ... then, there is hereby imposed an additional estate tax. 2032A(c)(l) (1979). The IRS argues first, that since the exercise of a power of appointment is deemed to cause a transfer from the donor of the power rather than from the donee (citing federal tax statutes and Illinois cases), Mr. Smoot’s exercise of his power of appointment would not be a “disposition” by the qualified heir, and liability for the recapture tax would not arise. Such disposition is the triggering event specified in (1)(A). Second, the IRS points out that although the exercise of a testamentary power of appointment re: quires execution of a will before death, it does not take effect until death occurs. Thus the disposition would not be made “before the death” of the qualified heir. For that reason also, the IRS argues that recapture tax liability would not arise. Without questioning the IRS’s understanding of such concepts of property law, we believe it has allowed an unnecessarily technical construction of these terms to obscure the purpose of Congress’ plan. We think courts should adopt a common sense approach to' interpreting § 2032A, being sensitive to the overarching congressional concern with providing farms (and other small businesses) with estate tax relief. See Estate of Thompson, 864 F.2d at 1136; Estate of Clinard, 86 T.C. at 1190 (Hamblen, J., concurring). The terms employed permit a reading which effectuates the congressional purpose. The concept that a transfer under a special power of appointment is a transfer from the decedent rather than the power holder — the “relation back” doctrine — is a legal fiction, a theory which “has never been consistently followed,” subject to “fairly frequent and important departures in situations where the proprietary aspect of the power is most apparent.” Restatement of Property, Introductory Note at 1812. There is no compelling reason to read the recapture provision consistent with this fiction. The recapture provision was written for the purpose of recovering the tax advantage gained from the special use valuation when the qualified heirs ceased unreasonably soon to deserve it. The power holder is the person who controls the disposition of the property, and a commonsense reading of § 2032A(c) recognizes that such an appointment is a “disposition” by the power holder which gives rise to recapture tax liability if made within fifteen (now ten) years to a person not a family member. Viewing holders of a power of appointment as having an interest in the property is consistent with the very Treasury Regulation under review in this case: Regulation § 20.2032A-8(c)(2) treats power holders as having an interest in qualified property, and requires them to enter into an agreement to the applicability of the recapture provision. This would make little sense if the donee of the power could not be held liable for the tax. As the IRS notes, § 2032A(e)(9) provides that property shall be considered to have been “acquired from or to have passed from the decedent” if it is so considered under section 1014(b) (relating to basis of property acquired from a decedent). Section 1014(b) lists ten situations where property shall be considered to have been acquired from or to have passed from the decedent for the purpose of determining basis of the property in the hands of the person acquiring it — including property acquired through the exercise or non-exercise of a power of appointment. 26 U.S.C. § 1014(b) (1988). Apparently, under § 1014(a)(3), property valued in a decedent’s estate under § 2032A would have that value as a basis in the hands of any appointee, whether or not the appointee were a qualified heir. We do not think that the reference to § 1014(b) in § 2032A(c) was meant to exclude treatment under § 2032A(c) of an exercise of a special power of appointment by a qualified heir as a disposition for the purpose of imposing a recapture tax. Aside from the concept that in exercising his power of appointment, Mr. Smoot would be causing the title to pass directly from Mrs. Smoot to Mr. Smoot’s appointee, Mr. Smoot is in actual control of the disposition. If he does not exercise his power, exercises it in favor of a family member, or survives his wife by fifteen years, the conditions set by Congress for the special use valuation will be fulfilled. If we were to uphold the position of the IRS, a needless frustration of Congressional purpose would occur. Nor does § 2032A(e)(l)’s requirement that the disqualifying disposition be made “before the death of the qualified heir” mean that the exercise of the testamentary power of appointment at, rather than before, the death of Mr. Smoot would not give rise to recapture liability. This “before the death” language shows Congress’ willingness to forego recapture tax liability for a testamentary disposition to a nonfam-ily member by the qualified heir; only when the disqualifying event occurs before the qualified heir’s death does recapture liability attach. The recapture provision, like § 2032A generally, does not mention successive interests but consistently refers to “a” or “the” qualified heir, as if property is always devised to or inherited by one person in fee simple. However, the section’s legislative history makes it clear that Congress contemplated the decedent’s leaving property to two or more qualified heirs with successive interests, and that “none of the property is to be released from potential liability for the recapture tax until the death of the last of the qualified heirs,” (subject to earlier expiration at the end of fifteen (now ten) years). See 1976 Ways and Means Report at 26, 1976 U.S.Code Cong. & Admin.News at 3380; 1976 Joint Committee Explanation at 542, 1976-3 Cum. Bull. (Vol. 2) at 554. A willingness to read § 2032A(b)(l) broadly to promote Congress’ purpose to provide estate tax relief calls for an equal willingness to read the recapture provision, § 2032A(c), in a way to protect this goal. It is therefore sensible, and sensitive to Congressional intent, to read the “before the death” requirement in § 2032A(c) to mean “before the death of the last qualified heir holding an interest,” when successive interests are involved. In this case, the only possibility that Mr. Smoot’s appointment will not be “before the death” of “the qualified heir” is that all Mrs. Smoot’s descendants predecease him — the chances of which have been disregarded as minuscule. III. CONCLUSION In summary, this controversy concerns two provisions of § 2032A, one involving the availability of special use valuation, the other the imposition of an additional tax upon certain disqualifying events. The first, § 2032A(b)(l), defines “qualified real property,” and the critical terms are “real property ... which was acquired from or passed from the decedent to a qualified heir of the decedent.” The second, § 2032A(c)(l), imposes the recapture tax, and the critical terms are “If, ... before the death of the qualified heir ... the qualified heir disposes of any interest....” We think these terms can and must be read broadly in order to effectuate Congress’ remedial purpose. In § 2032A(b)(l) the term “a qualified heir” must embrace two or more qualified heirs holding successive interests, even when one of them holds a power of appointment which he might exercise to dispose of the remainder to persons who are not qualified heirs. The “wait and see” approach adopted by Congress elsewhere in § 2032A applies here also. In § 2032A(c), the term “the qualified heir,” must again embrace two or more qualified heirs. Where there are successive interests, the “death of the qualified heir” must mean the death of the last qualified heir holding an interest; where a qualified heir is a donee of a power of appointment, this heir’s exercise of the power “disposes” of the interest appointed. Exercising the power in favor of persons who are not qualified heirs would make the power holder liable for the recapture tax on the interests so appointed. See Estate of Clinard, 86 T.C. at 1188. The judgment appealed from is AfFIRMED. . A "family member” is defined as an individual's ancestor or lineal descendant or certain collateral relatives. 26 U.S.C. § 2032A(e). See footnote 7, below. Special use valuation is also available for certain closely-held business properties. Both the relevant statute and regulation have been amended. We apply the law as it stood at the time of the decedent’s death. . The district court had jurisdiction under 28 U.S.C. § 1346(a)(1), and our jurisdiction comes under 28 U.S.C. § 1291. . The parties stipulated that the probability, as of Mrs. Smoot’s death, that none of her descendants would survive Mr. Smoot to reach age twenty-five was .000,000,000,530 percent. The odds that Mr. Smoot will choose not to exercise his testamentary power (and thus allow the default clause to operate) are, of course, indeterminable. . See also S. Rep. 938 (Part II), 94th Cong., 2d Sess. at 15, 1976 U.S.Code Cong. & Admin.News at 4041 ("1976 Finance Report”); H.R.Rep. No. 1515, 94th Cong., 2d Sess. at 607, 1976 U.S.Code Cong. & Admin.News at 4246. . See also Staff of the Joint Committee on Taxation, General Explanation of the Tax Reform Act of 1976, 94th Cong., 2d Sess. at 536-37, (Comm. Print 1976), 1976-3 Cum. Bull. (Vol. 2) at 548-49 ("1976 Joint Committee Explanation”). . As noted, the district court decided (and the IRS no longer disputes in this case) that this requirement violates the purpose of § 2032A when used to deny special use valuation to properties passing by a will which creates future interests in non-qualified heirs with only extremely remote possibilities of becoming present interests. See also Estate of Davis v. Commissioner, 86 T.C. 1156 (1986). . In 1980, § 2032A(e) provided: (1) Qualified heir. — The term "qualified heir” means, with respect to any property, a member of the decedent’s family who acquired such property (or to whom such property passed) from the decedent. If a qualified heir disposes of any interest in qualified real property to any member of his [or her] family, such member shall thereafter be treated as the qualified heir with respect to such interest. (2) Member of family. — The term "member of the family” means, with re[s]pect to any individual, only such individual’s ancestor or lineal descendant, a lineal descendant of a grandparent of such individual, the spouse of such individual, or the spouse of any such descendant. For purposes of the preceding sentence, a legally adopted child of an individual shall be treated as a child of such individual by blood. . If a fee owner who is a qualified heir dies within fifteen (now ten) years, there is no recapture of the tax advantage, except that the property must be valued at fair market value in that estate, if there is a disqualifying transfer at the owner’s death. . The IRS also briefly defends its regulation by claiming that Congress approved of Regulation § 2032A-8(a)(2) when it amended § 2032A in 1984, and quotes a footnote from a report by the staff of the House conference committee which considered § 2032A, apparently hoping that we will find the regulation validated by the "legislative reenactment” doctrine. Staff of the Joint Committee on Taxation, General Explanation of the Deficit Reduction Act of 1984, 98th Cong., 2d Sess. at 1124 n. 23 (Comm. Print 1984) (available on Lexis). See also H.R.Rep. No. 861, 98th Cong., 2d Sess. at 1241 n. 1, 1984 U.S.Code Cong. & Admin.News at 1929 n. 1; Estate of Davis, 86 T.C. at 1167 fn. 5, 1176. In 1984, however, Congress was addressing a different problem, and decided to allow perfection of incomplete agreements under § 2032A(d). The footnote refers to the requirement of the regulation that all parties with any interest must be qualified heirs and must enter into the agreement. It does not refer to the portion of the regulation critical in this case — that remainder interests are not "treated as being received by qualified heirs” if "subject to divestment in favor of a nonfamily member.” The remarks of Senator Dixon, the sponsor of the 1984 amendment, hardly reflect legislative approval of the IRS’s approach to § 2032A: "There seem to be people at the IRS ... who are not interested in preserving family farms and small businesses, and who want to use the slightest technicality to prevent an estate from being valued under the provisions of section 2032A.” 130 Cong.Rec. S 4318 (1984). . In the event of a disqualifying testamentary appointment, it seems clear that Mr. Smoot would not be liable with respect to his interest as a life tenant, since that interest disappears at the time of appointment, his death. Likewise, it would be illogical and unfair to hold the remainder interest holders liable because their interests never become present or vested — they are destroyed upon appointment. Question: Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_const1	105	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Shirley BURTON, Petitioner-Appellee, Cross-Appellant, v. Sharon JOHNSON, Respondent-Appellant, Cross-Appellee. Nos. 90-2016, 90-2019. United States Court of Appeals, Tenth Circuit. Nov. 1, 1991. Charles H. Rennick, Asst. Atty. Gen. (Hal Stratton, Atty. Gen., with him, on the brief), Santa Fe, N.M., for respondent-appellant, cross-appellee. Tova Indritz, Federal Public Defender, Albuquerque, N.M., for petitioner-appellee, cross-appellant. Before McKAY, Chief Judge, ANDERSON, Circuit Judge, and BROWN, Senior District Judge. WESLEY E. BROWN, Senior District Judge. Appellant Sharon Johnson, Warden for the State of New Mexico, appeals the order of the United States District Court for the District of New Mexico, granting Shirley Burton’s petition for a writ of habeas corpus. Mrs. Burton cross-appeals from the order insofar as it denied some of the claims for relief contained in her federal petition. Shirley Burton admitted that in the early hours of August 14, 1983, she shot and killed her husband, Robert Burton, in Roswell, New Mexico. She claimed that she did so because she believed from his past actions that she and her children were in immediate danger of great bodily harm, sexual abuse and death at the hands of her husband. She presented evidence of Robert’s repeated physical, sexual and verbal assaults upon her and her two children, together -with evidence that she suffered from “battered woman’s syndrome,” which contributed to her belief that she had to kill her husband in order to protect her children and herself from continued abuse. The state introduced evidence that Robert did not abuse his family, and that Mrs. Burton, having carefully planned the murder in advance, did not act in defense of herself and children. The jury convicted Mrs. Burton of murder in the first degree, and she was sentenced to life imprisonment. The issues presented in this appeal concern the manner in which the state trial court conducted the voir dire of the jury panel, and the discovery after trial that one of the jurors who served on the case was the victim of mental and physical abuse by her husband, and that this juror’s children had also been abused by their father. Other issues involve the propriety of instructions and the claim that alleged cumulative error denied Mrs. Burton’s right to fair trial. The federal district court adopted the findings of the magistrate and found that Mrs. Burton’s right to an impartial jury had been denied because a woman who served on the jury had suffered abuse in her own family. In addition, the court found that inadequate voir dire proceedings denied Mrs. Burton’s right to an impartial jury and fair trial. The state elected not to retry Mrs. Burton within the 90 days allotted by the federal district court, she was released from custody, and is free pending this appeal. The circumstances of the voir dire and other state court proceedings relating to Mrs. Burton’s trial and conviction may be described as follows: Because of the nature of her defense, Mrs. Burton’s counsel filed a pretrial motion for individual, sequestered questioning of the jury panel on subjects pertaining to physical, emotional and sexual abuse of wives and children. Attached to this motion was an affidavit of an expert in group dynamics and the jury selection process which related to the hesitancy of people to speak about sensitive subjects when others are present. It was the opinion of this expert that “(i)n a trial with inflammatory issues and one in which potentially many of the members of the venire have attitudes or prejudices that could be hidden during the voir dire, the only possibility of obtaining a fair trial would be through extensive, open-ended, attorney-conducted, sequestered voir dire.” Vol. I, State Record, Page 100, Affidavit of Bennett. At a hearing on this motion, the defense presented expert testimony to the effect that in the area of sensitive topics, members of the venire tend to make socially acceptable statements, and that in order to inquire into such topics as sexual abuse and wife beating, each prospective juror should be questioned separately, outside the hearing of other prospective jurors. This expert testified that over 20% of the American adult population has personally encountered a sex abuse or wife-battering situation, and that such people are not able to evaluate evidence of similar situations in an objective manner because an abused person tends to blame herself, and thus would judge the defendant in this case more harshly than would a juror without such personal experience or exposure to an abusive situation. Tape 2, 7/19/84, State Record. The trial judge denied the defense motion to sequester and question each juror privately on sensitive matters. Instead, the court divided the jury panel into two groups, each to be voir dired as a whole, with a statement by the court advising that any juror could answer questions in private. Each party’s voir dire was to be limited to one hour, with a possible extension if the attorney used his time “diligently.” The defense request that the panel be required to complete a jury questionnaire was denied. The panel was divided into two groups with 29 prospective jurors in each. The court informed the first group that they could answer questions in private, but that he preferred answers in open court because inquiries in chambers were difficult. Tapes 1 and 2, 7/24/84, State Record. Any juror who had discussed the case was questioned in chambers. Defense counsel questioned this panel about their attitudes concerning child abuse and neglect, and asked the entire panel if any of them had seen the effects of child abuse. Four answered affirmatively and discussed their experiences. Wife abuse was also discussed and counsel sought juror’s opinions on self defense, etc. Defense counsel was stopped after one hour, and his request for more time to examine the panel about their knowledge of Robert Burton, potential witnesses and exposure to publicity was denied upon the ground that counsel had not been “diligent.” Tape 5, and Chambers Tapes C & D, 7/24/84. One of the jurors in this panel, Lisa Zoeller, told the court in chambers that she could not be an impartial juror because her father had abused her mother and the children, but her mother had not killed her father. Chambers Tape C. The juror Zoel-ler was excused by the court for “Cause.” Vol. II, State Record, p. 191. There was a similar voir dire of the second group, except that this time, the court asked more specific questions about publicity and their knowledge of prospective witnesses. Defense counsel told the members of this panel that any questions on sensitive subjects could be answered privately in chambers, and he then discussed child abuse, rape, wife beating, the reporting of violent acts against women and the subject of self-defense. Defense counsel specifically asked which jurors had personally seen the effects of child abuse. Carolyn Green answered that she had worked for a school where most of the staff and children had been abused in some way, describing the effects of child abuse which she had observed. Counsel then asked whether anyone else had “seen those kinds of, (sic), or had contact with child abuse or sexual abuse?”. There was no answer. Tape 8, State Record. Counsel again asked at a later time if there were “anybody else who has anything that they’d like to share either with the court individually or with me at this time in terms of the things we’ve talked about?... We’ve talked about child abuse. We’ve talked about battered wives and other things.” There was no response. No member of this panel discussed abuse in chambers. The defense challenged juror Green for cause upon the ground that she had experienced violence in her home, rape, and contact with abused children. The challenge for cause was granted, and Green was removed from the panel. Another juror in this panel, Mrs. Russell, was excused by the Court for cause because of her opinions about child abuse after having read an El Paso Times article. Vol. II, State Record, pp. 190 and 329. At trial Shirley Burton and other witnesses testified about the violent and abusive nature of Robert Burton. The jury heard evidence that during prior marriages, Burton had beaten two other wives and raped one of them, and had sexually molested a stepdaughter. Defendant Shirley Burton testified that during her marriage to Robert Burton she was beaten, raped and sodomized by her husband, and that he frequently beat their son, Gene, and her daughter, Elizabeth whom he had legally adopted. The children were beaten with fists, whips, rope, halter, belts, or whatever was handy. Mrs. Burton testified that she had tried to leave Robert several times, but had returned because of threats to her children, and that she had not contacted the police for protection because of his threats of retaliation if she did so. In January, 1983, Mrs. Burton learned that Robert had been sexually molesting Elizabeth and his son Gene for the past ten years. At trial, Elizabeth testified that her father had raped her twice and attempted to rape her on other occasions. Mrs. Burton obtained a gun and hid it under the mattress on her side of the bed, but Robert found it. The abuse continued. In May, 1983, Mrs. Burton returned home and found Robert attempting to rape Elizabeth. Mrs. Burton was then badly beaten and sodomized. In June, 1983, Robert cut Mrs. Burton with a knife and stitches were required. On August 12, 1983, Robert again attacked Elizabeth, and knocked her to the ground. On August 13, Mrs. Burton traveled 70 miles to Ruidoso and obtained a gun. She testified that her purpose was to stop Robert from hurting or killing her children and herself. She stopped on her way back home to Roswell and test-fired the gun. When she arrived in Roswell she parked three blocks from home, walked through the back gate, entered the patio door, and walked into the bedroom. She testified that Robert looked at her, said “If you’re going to use that thing, use it,” and rolled toward her. She fired several times, Robert jumped up and then fell, shouting obscenities. Mrs. Burton then ran out and drove back to her friends in Ruidoso. When police arrived at 3:00 a.m. on August 14, Robert was standing at the doorway. He told the police that it was too dark for him to see who shot him. He died later from three bullet wounds. The defense presented expert testimony concerning “battered woman’s syndrome” and the effects of long-term domestic violence. It was the experts’ opinions that Shirley Burton lived in constant fear for herself and children and that she believed her only recourse was to kill her husband. The jury returned its verdict of first-degree murder on August 9, 1984. On August 29, the defense filed a motion for new trial, complaining, among other grounds, of inadequate voir dire of the jury, which was conducted in groups too large for meaningful discussion, and of the failure to give the defense adequate time to inquire into serious issues. The affidavit of Michael L. Stout, attorney for Shirley Burton, which accompanied the motion for new trial, informed the court in this manner: (Vol. II, State Record, pp. 298-299) “I have contacted several jurors who sat during the trial of this cause and have discovered the following information: A. At least three of the jurors have been close to situations concerning abuse of some sort which was not discussed during jury selection, including Mr. Smoot and Ms. Gonzales, as shown by their affidavits. B. One juror, Ms. Townsend, stated that she had knowledge of abuse in a very “close relationship” to her. She stated that the person, though battered, is still alive and hasn’t killed anyone. As a result of her knowledge she believes that battered people can cope with the situation without resorting to violence. She believes that this knowledge served as a springboard to her opinion that Shirley Burton ‘could have handled’ her situation without killing. C. One juror stated that she has been the subject of long-standing abuse and is still married to the abuser, that the relationship is not as abusive as it once was, and that she did not wish to share the information in public for fear of harming her relationship or her family. Also her youngest child is presently seeing a counselor for emotional problems connected to the child’s observation of the abuse of the juror and her other children. I would prefer to give the juror’s name privately so as to not endanger her or her family.” The motion for new trial was denied on September 4, 1984. (Vol. II, State Record, p. 306). On September 5,1984, the defense filed a second motion for new trial, reiterating that “Persons who have had experiences relevant to the issues in this case and which affect their impartiality in a case of this nature served as jurors in this case,” in violation of Mrs. Burton’s right to trial by impartial jurors. Vol. II, State Record, pp. 308-309. In connection with this motion for new trial, the defense presented an affidavit filed October 1, 1984, from one juror, identified as “S.G.G.” or “Mrs. G,” who stated that she had “been the subject of wife abuse in the past and (is) presently subject to abuse to a lesser degree.” This juror stated that her husband had a violent temper and verbally and physically abused the family, at one time hitting his son across the back with a golf club, which resulted in the need for medical attention. One of her children was seeing a counselor for emotional difficulties related to the abuse. This juror requested that her name and testimony be kept secret because she feared her husband might abuse her and her children if he found out that she was making this statement. At this hearing in chambers “Mrs. G” testified that when the panel was asked about child abuse during voir dire, that she did not “connect” her own experiences with the discussion and that she tried not to think about her own situation. (Tape 1, 10/1/84). It is significant that in October, two months after the trial, Mrs. G still feared that her husband would find out about her testimony and would harm her or her family. The audiotape of this testimony in chambers reveals that even in that in camera setting the juror was struggling with fear and great emotional distress because of her own abusive situation. On October 9, the trial court denied the motion for new trial, finding that: (Vol. II, State Record, p. 837) “1. None of the jurors was incapable of performing his or her duties as a juror. “2. No juror, after being asked, withheld relevant information during voir dire.” Mrs. Burton’s conviction was affirmed by the Supreme Court of New Mexico. That court found that defendant was not denied the opportunity to ask all relevant questions of the jury panel and that the trial court did not abuse its discretion in refusing to permit extensive questioning by defense counsel. That court further found that defendant had failed to establish partiality on the part of the juror, Mrs. G, that “no evidence is presented to demonstrate any prejudice” to defendant, and that there was no error in denying a new trial. Mrs. Burton’s federal application for a writ of habeas corpus was reviewed by William W. Deaton, United States Magistrate for the District of New Mexico, and his findings were adopted by the district court. The magistrate found that under the evidence, the situation of the juror, Mrs. G, was such that it made her impliedly biased, no matter how impartial she professed to be, and that Mrs. Burton had been deprived of her right to an impartial jury. In addition, the magistrate found that the one-hour restriction on voir dire and the refusal to allow sequestered voir dire, deprived the petitioner of her right to due process and an impartial jury. The right to trial by an impartial jury is a fundamental concept of due process. That right, and the duty of strict inquiry into its application, were discussed in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), where it was found that pretrial publicity had tainted the jury panel: England, from whom the Western World has largely taken its concepts of individual liberty and of the dignity and worth of every man, has bequeathed to us safeguards for their preservation, the most priceless of which is that of trial by jury.... In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, “indifferent jurors.... “A fair trial in a fair tribunal is a basic requirement of due process.” _In the ultimate analysis, only the jury can strip a man of his liberty or his life. In the language of Lord Coke, a juror must be as “indifferent as he stands unsworn”_ His verdict must be based upon the evidence developed at the trial.” (366 U.S. at 1642, 81 S.Ct. at 721, 6 L.Ed.2d at 755). (citations omitted) While jurors need not be totally ignorant of the facts and issues involved, that fact does not foreclose inquiry into whether there has been a deprivation of due process of law. Irvin v. Dowd, supra, 366 U.S. at 723-24, 81 S.Ct. at 1642-43, 6 L.Ed.2d at 756. In a civil case tried in a federal district court, a juror’s son had sustained injury in an accident. The juror did not respond to a voir dire inquiry concerning “previous injuries... that resulted in any disability or prolonged pain or suffering” to a juror’s immediate family. The court of appeals found that the failure to respond had prejudiced plaintiffs’ right of peremptory challenge. On appeal, the Supreme Court found that the fact that a juror might have been peremptorily challenged was not alone sufficient to reverse a conviction, and that in order to be entitled to a new trial in such a situation, “a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” McDonough Power Equipment v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663, 671 (1984) (emphasis supplied). In Baca v. Sullivan, 821 F.2d 1480 (10th Cir.1987) the McDonough rule was applied in ruling on a habeas corpus petition filed by a state defendant who complained that a juror’s incorrect answers on a jury questionnaire and his failure to answer an oral question during voir dire, so prejudiced his right to exercise peremptory challenges that he was denied a fair trial. The jury questionnaire asked if any member of the juror’s family at present or in the past was or had been a member or employee of any law enforcement agency. Juror Beserra, who served as jury foreman, answered “no,” although his brother had recently retired after working more than 30 years as a police officer. On voir dire the panel was asked “Are there any persons on this panel who have either a relative or a close friend who might work for a police department either in Albuquerque or some other city?”. Eight people responded, but the juror Beserra remained silent, even though another juror mentioned that his brother was a retired military police chief. In Baca, a panel of this court found that defendant had “failed to demonstrate that Beserra was partial or that defendant was denied his constitutional right to be tried by an impartial jury.” 821 F.2d at 1483. In so doing, the court reviewed the state of the law in this manner: Although a prima facie showing of impairment of a party’s peremptory challenges may entitle that party to an evi-dentiary hearing.... “(t)he fact that (the) juror... might have been peremptorily challenged by defendant is not alone sufficient to reverse defendant’s conviction,” Williams v. United States, 418 F.2d 372, 377 (10th Cir.1969). In McDonough Power Equip., Inc. v. Greenwood,... the Supreme Court stated that “it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination.” “A party who seeks a new trial because of non-disclosure by a juror during voir dire must show actual bias.” United States v. Perkins, 748 F.2d 1519, 1532 (11th Cir.1984), either “by express admission or by proof of specific facts showing such a close connection to the circumstances at hand that bias must be presumed.” id. (quoting United States v. Nell, 526 F.2d 1223, 1229 (5th Cir.1976)). “(T)he remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.” Smith v. Phillips, 455 U.S. 209, 215 [102 S.Ct. 940, 945, 71 L.Ed.2d 78 (1982)]- “At such a hearing, evidence of dishonesty and the subject matter of the nondisclosed information are relevant to the inquiry into alleged partiality.” 821 F.2d at 1483. In finding that there had been no denial of a fair trial, since the defendant failed to demonstrate that Beserra was partial, the Baca court noted that defendant did not contend that he was not given a full, fair and adequate evidentiary hearing, that the trial court found that juror Beserra was not partial, a finding entitled to the presumption of correctness, and that this finding was in fact supported by the record. In this respect, the court observed that the oral question at voir dire was presented in the present tense, so that Beserra had no objective duty to respond since his brother was no longer in law enforcement. In the very recent case of United States v. Gillis, 942 F.2d 707 (10th Cir.1991), a federal defendant alleged that he had been denied a fair trial because members of the venire panel also sat on a panel in an earlier case in which he was tried on another narcotic charge, involving different conspirators. The defendant’s challenge of the entire panel for cause was denied and during voir dire, the trial judge did not inquire about knowledge gained from the first charge — instead, the jurors were asked generally if they knew “of any reason whatsoever” which could impair their impartiality. This court found that the “risk of a biased jury was significant,” that the trial court had failed to conduct an adequate examination “to negate the risk of prejudice,” and that a new trial was required. State court findings relating to juror bias “are factual determinations to which the presumption of correctness under 28 U.S.C.A. Section 2254(d) apply, although the constitutional standard of jury impartiality is a question of law.” Patton v. Yount, 467 U.S. 1025, 1037 n. 12, 104 S.Ct. 2885, 2891 n. 12, 81 L.Ed.2d 847, 857 n. 12 (1984); Lincoln v. Sunn, 807 F.2d 805, 815-816 (9th Cir.1987). In Lincoln, supra, the state prisoner alleged that he was denied a fair trial because of excessive pretrial publicity. While noting that a “preconceived notion as to the defendant’s guilt or innocence, without more, does not rebut a juror’s presumed impartiality, as long as the juror can lay aside his or her impression and render a verdict on the evidence,” the court observed that “a juror’s assertion of impartiality is not dispositive, if the defendant can demonstrate ‘the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.’ ” 807 F.2d at 815. In Lincoln, the circuit held that the district court had an independent duty to ascertain whether the presumption of correctness should attach to the state court factual findings, and remanded the case for this purpose. The state court finding that “No juror, after being asked, withheld relevant information during voir dire,” and that “None of the jurors was incapable of performing his or her duties as jurors,” is presumed to be correct unless “the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record.” 28 U.S.C.A. Section 2254(d)(8). Braley v. Shillinger, 902 F.2d 20 (10th Cir.1990), Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). In Smith, a juror who sat on the state jury which convicted Phillips of murder applied for a job as an investigator in the prosecutor’s office during the trial. The prosecutor withheld the information from the trial court and defense counsel until after the trial. Following a hearing, the trial judge found that the juror’s application was an “indiscretion,” but that it did not reflect a premature conclusion of guilt or prejudice against the defendant, “or an inability to consider the guilt or innocence” of the defendant based solely upon the evidence. In finding no merit to Phillips’ due process claim, the Supreme Court found the state trial court’s findings to be “presumptively correct” under 28 U.S.C.A. Section 2254(d), and not to be disturbed “unless the federal habeas court articulates some basis for disarming such findings of the statutory presumption that they are correct and may be overcome only by convincing evidence.” As to Phillips’ claim, the Supreme Court noted that neither the federal district court, nor the court of appeals took any issue with the findings of the state court. During the murder trial in the Braley case, supra, 902 F.2d 20, defense counsel received anonymous calls reporting that two jurors knew the victim’s father, and that the father had two of the jurors “in his pocket.” Affidavits were filed after trial indicating that the two jurors initially refused to vote for anything less than first-degree murder, and that these jurors eventually swayed the jury to a verdict of second-degree murder instead of manslaughter. At a hearing, the father and the two jurors testified and denied any contact or improper influence and the trial court denied the motion for new trial. The denial of habeas corpus relief was affirmed by a panel of this court upon a finding that the case was governed by the Smith decision, and that the petitioner had failed to establish any exception to the presumption provided by Section 2254(d). In Mrs. Burton’s case, the federal district court determined that the record did not support the conclusions of the state trial court. Our review of the record is in accord, and we here quote those findings in some detail, since they fairly summarize the state court proceedings: (Vol. II, Federal Record, Item 45, Magistrate’s Amended Proposed Findings and Recommended Disposition, pp. 7-9): 13. In this case, the juror testified that when asked about child abuse she did not connect her abusive experiences with the voir dire discussion and that she tried not to think of her own situation by pushing her thoughts of her abusive experiences to the edge of her consciousness. Tape 1 (Chambers Oct. 1, 1984). The trial court found that the juror had honestly (not consciously) failed to mention her family’s history of abuse during voir dire. The record, however, does not fairly support that finding of honesty. The voir dire centered around the topics of child and wife abuse. If so requested by a juror, the trial court permitted individual questioning on these sensitive topics. Yet the juror did not speak up at that time. Nonetheless, the juror was conscious of the fact that her family situation was abusive when she submitted an affidavit after the trial describing her situation. Affidavit of S.G.G. (filed Oct. 1, 1984). Under these circumstances, it is hard to believe that the juror honestly answered the abuse voir dire questions. Had the juror spoken up, she would have been dismissed for cause as two other jurors had been who had revealed substantial exposure to family abuse. Since the record does not fairly support a presumption of correctness of the trial court’s finding that the juror was honest, that presumption is overcome. Thus McDon-ough applies and petitioner is entitled to a new trial. Assuming that the juror had answered the voir dire question honestly, the record still would not have fairly supported the presumption of correctness of the trial court’s finding of juror impartiality under Baca. Although the juror did not admit to bias, the facts in her case show such a close connection to the petitioner’s that bias must be presumed. First, the juror’s affidavit stated that she has “been the subject of wife abuse in the past and (is) presently subject to abuse to a lesser degree.”... She also stated in her affidavit that her “youngest child is presently seeing a counselor for emotional difficulties which are related to the abuse that my other children and I have received and which he has witnessed.”... Moreover, the juror testified that her husband has a violent temper that results in his hitting and verbally abusing the family... For example, her husband at one time hit her son across the back with a golf club... The juror also indicated that she wanted her affidavit and testimony kept secret, because she feared her husband might do something bad to her and her children should he find out... Furthermore, a forensic psychologist testified that people exposed to abuse would almost always unfairly judge a case involving abuse. Whether a juror’s bias may be implied from the circumstances is a question of law for this court. Smith v. Phillips, 455 U.S. 209, 222, n, 102 S.Ct. 940, 949, n, 71 L.Ed.2d 78 (1982) (J. O’Connor, concurring); Cummings v. Dugger, 862 F.2d 1504, 1509 (11th Cir.1989). Doubts regarding bias must be resolved against the juror. United States v. Nell, 526 F.2d 1223, 1230 (5th Cir.1976), where the rule was so aptly expressed in this manner: We have no psychic calibers with which to measure the purity of the prospective juror; rather, our mundane experience must guide us to the impartial jury promised by the Sixth Amendment. Doubts about the existence of actual bias should be resolved against permitting the juror to serve, unless the prospective panelist’s protestation of a purge of preconception is positive, not pallid. We will not discuss at length the similarities of the experiences of Mrs. Burton and the juror, Mrs. G. It is sufficient to note that the abuse, both mental and physical, continued over a long period of time and that the juror, at the time of trial, was living in an abusive situation, fearing her husband’s violent temper even at the time she was testifying in chambers. Petitioner has presented a number of cases involving implied bias in situations which are similar to those we have here. In United States v. Eubanks, 591 F.2d 513, 517 (9th Cir.1979), the court found that the fact that a juror’s sons used heroin barred any inference that juror could be impartial in a case in which defendants were charged with distributing heroin; in Jackson v. United States, 395 F.2d 615 (D.C.Cir.1968), a juror was presumed to be biased because he had been a lover in a love triangle similar to the one involved in the case at issue; in United States v. Allsup, 566 F.2d 68, 71-71 (9th Cir.1977) and United States v. McCorkle, 248 F.2d 1 (3rd Cir.1957), cert. den. 355 U.S. 873, 78 S.Ct. 121, 2 L.Ed.2d 77, rehearing denied, 355 U.S. 908, 78 S.Ct. 329, 2 L.Ed.2d 263, (1957), jurors were found to be biased because of their banking ties and robbery experience in cases involving bank robberies; and in State v. LaRue, 722 P.2d 1039, 1042 (Hawaii 1986), it was found that a victim of child abuse could not be impartial in a case involving sexual abuse of a minor. Here, the record is clear that Mrs. G was dishonest in her response to questions on voir dire — this is true whether or not she simply did not, or could not respond properly because of her own emotional distress. This dishonesty, of itself, is evidence of bias. See U.S. v. Colombo, 869 F.2d 149, 152 (2d Cir.1989); Consolidated Gas & Equipment Co. of America v. Carver, 257 F.2d 111, 115 (10th Cir.1958); U.S. v. Scott, 854 F.2d 697, 699 (5th Cir.1988). We likewise find that Mrs. G’s failure to respond on voir dire denied Mrs. Burton a fair trial under the McDonough test, for it is clear that the juror did fail to answer a material question, and that a correct response would have provided a basis for a challenge for cause. Had Mrs. G responded honestly, she would have been excused for cause. That is exactly what happened to jurors Green and Zoeller who revealed their exposures to family and child abuse. We find that the record establishes that Mrs. G’s silence and the inherently prejudicial nature of her own family situation deprived Mrs. Burton of her right to a fair trial by an impartial jury, and that she is entitled to a new trial. Because of our finding on this issue, we need not and do not reach any other issues in the case. The judgment of the district court requiring a new trial is AFFIRMED. Honorable Wesley E. Brown, United States Senior District Judge, District of Kansas, sitting by designation. . Prior to trial, Mrs. Burton was offered a 7 year sentence in return for a plea of murder in the second degree. She declined this offer and proceeded to trial. See Exhibits to Item 49, Volume II Record, U.S. District Court. On this appeal, there are two volumes of records from the District Court of Chaves County, New Mexico and the New Mexico Supreme Court, and 121 audiotapes of trial proceedings in Chaves County. In addition, there are two volumes of records arising from the federal habeas corpus proceedings in the District Court for the District of New Mexico. These records will be referred to hereafter as "state records” or "federal records”. . This motion requested that the court order individual voir dire on issues of publicity, child abuse and battered wives; that voir dire on other subjects be conducted in groups of 6 prospective jurors; and that the voir dire process be sequestered so that no other prospective jurors would be present except those being questioned. . Vol. I, State Record, Motion for Supplemental Jury Questionnaire, filed 7/23/84. This questionnaire was designed to elicit general background information on each juror, so that during voir dire the defense counsel could concentrate his questions on wife and child abuse, and jurors’ attitudes towards justifiable homicide, etc. . As noted, there was a conflict in the evidence concerning Mrs. Burton’s motive in shooting her husband, and the state presented evidence that Robert Burton was a law-abiding, esteemed member of the community, without a reputation for violence. It should be noted that Mrs. Burton’s testimony regarding physical abuse of herself and her children was corroborated by several witnesses. The Court has summarized the evidence presented by the defense for the purpose of evaluating the claim of juror bias and lack of impartiality. . Dr. Jeffrey Collins, a psychiatrist, and Dr. Rap-paport, a clinical psychologist testified concerning Mrs. Burton’s state of mind at the time she killed her husband. . There is no audiotape in the record for the hearing held September 4, 1984. . Tapes relating to Mrs. G's testimony in chambers have been sealed to protect her anonymity. The trial court ordered that the following affidavits should be sealed and not opened unless by order of the District or Supreme Court of New Mexico: (Vol. II, State Record, p. 396) Four Jurors, filed 9-7-84 Michael L. Stout, filed 9-7-84 Beth Owens, filed 9-7-84 "One Juror”, filed 10-1-84 Michael L. Stout, filed 10-3-84 The affidavits of Beth Owens, Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:
songer_usc1	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. NORTHEAST AIRLINES, INC., Plaintiff, Appellee, v. NATIONWIDE CHARTERS AND CONVENTIONS, INC., et al., Defendants, Appellants. No. 7230. United States Court of Appeals First Circuit. June 11, 1969. Rehearing Denied July 16, 1969. Gael Mahony, Boston, Mass., with whom Joseph D. Steinfield and Hill & Barlow, Boston, Mass., were on brief, for appellants. Laurence S. Fordham, Boston, Mass., with whom John G. S. Flym and Foley, Hoag & Eliot, Boston, Mass., were on brief, for appellee. Before WOODBURY, Senior Circuit Judge, McENTEE and COFFIN, Circuit Judges. By Special Designation. WOODBURY, Senior Circuit Judge. This ease comes here for the third time. The facts are fully stated in previous reported opinions of this court and of the district court cited hereinafter. For present purposes a brief history of the litigation will suffice. Northeast Airlines, Inc., brought suit in the court below against World Airways, Inc., an authorized supplemental air carrier, its authorized sales agent, Nationwide Charters and Conventions, Inc., and Harold Low, its president, manager and sole stockholder, for an injunction to restrain the defendants from soliciting passengers for or operating charter flights in the East Coast-Florida market. The District Court, finding the charter operations of the defendants in violation of World’s authority and hence illegal, entered a preliminary injunction in broad and specific terms restraining them from soliciting passengers for and operating charter flights not only between Boston, New York, Philadelphia and Washington on the one hand and Florida on the other, but also between the above mentioned cities and the Hawaiian Islands. Northeast Airlines, Inc. v. World Airways, Inc., 237 F.Supp. 383 (D.C.Mass.1964). The defendants appealed. While this appeal was pending the District Court on the plaintiff’s motion for summary judgment supported by affidavits and exhibits, filed a decision with findings of fact and conclusions of law on the basis of which it entered a final judgment, reported 239 F.Supp. 528 (D.C.Mass.1965), making its previous preliminary injunction permanent. The defendants again appealed. These appeals were consolidated in this court which handed down a decision affirming in part and reversing in part. It affirmed the District Court insofar as its injunction applied to the defendants’ operations in connection with flights between the cities named above and Florida but it found the District Court’s injunetion too broad and unnecessarily specific and directed its narrowing and modification. This court reversed and remanded for specific findings as to whether Northeast had sufficient interest to give it standing to complain of the defendants’ charter flights to Hawaii. World Airways, Inc. v. Northeast Airlines, Inc., 349 F.2d 1007 (C.A. 1,1965). On this remand the District Court first modified its injunction to comply with the directions of this court and then, on the evidentiary materials already before it, found that Northeast had standing as a party in interest to complain of the defendants’ Hawaii operations, largely because the price of its charter trips to those islands was comparable to the cost of vacation trips to Florida utilizing scheduled airlines and comparable accommodations. On these findings it affirmed its permanent injunction as modified. The defendants again appealed and this court again remanded to the District Court directing it to take additional evidence as to whether Northeast could qualify as a party in interest with respect to the defendants’ Hawaii charter operations. 358 F.2d 691 (C.A. 1, 1966). In conformity with this mandate the District Court conducted an extensive hearing as a result of which it made full findings of fact. On the basis of detailed specific findings the court found as an operative fact that Northeast was a party in interest as to the defendants’ Hawaii operations basically because the bargain price of the defendants’ charter rate, $399 for a 15-day trip to Hawaii with all expenses paid except meals, made Hawaii, with its similar climatic appeal, competitive with Florida as a winter vacation area for residents of New England and the Middle Atlantic States, 286 F.Supp. 362 (D.C.Mass.1968). It therefore entered judgment again making its previous injunction permanent as against Nationwide and Low **and directing that the plaintiff’s security deposit be released and refunded to it. Nationwide and Low have taken this appeal. This ease was last before this court on appeal from a summary judgment entered on affidavits which this court did not find wholly convincing. It now comes up in quite different posture. Following remand the court below held a full hearing taking voluminous oral and written evidence on the basis of which it found facts in considerable detail which, of course, are not to be reversed by this court unless “clearly erroneous.” An examination of the voluminous record discloses no such error. The appellants undertake to support their basic contention that there is no substantial evidence in the record to support the District Court’s finding that Northeast is a “party in interest” with respect to their air charter tours to Hawaii by a detailed and rather complicated analysis of certain statistical data developed by Northeast’s expert witnesses to show that the testimony of those witnesses is both inaccurate and deceptive. The thrust of the argument is directed at the credibility of the witnesses. It would therefore be more appropriate in the District Court. No purpose would be served by discussing the argument here. It will suffice to say that whatever the errors may be in the statistics submitted by Northeast, the fact remains that there is substantial evidence from persons experienced in the travel agency business that under present travel conditions distance is a relatively minor consideration to tourists in the choice of a place for a winter vacation in comparison with price. And the testimony of these witnesses is not mere ultimate conclusions which are not only unsupported by but are contradictory to the subsidiary facts, see Naumkeag Theatres Co., Inc. v. New England Theatres, Inc., 345 F.2d 910, 913 (C.A. 1, 1965), cert. denied 382 U.S. 906, 86 S.Ct. 241, 15 L.Ed.2d 158, as the appellants argue. Their testimony was based on their years of experience in catering to the wants of tourists in the market for a winter vacation in a warm climate. Of course, in a broad sense there is “competition between all levels for the amusement dollar” as this court pointed out in its opinion in the last previous appeal. World Airways, Inc. v. Northeast Airlines, Inc., 358 F.2d 691, 692 (C.A. 1, 1966). Perhaps some people would hesitate to decide between taking a winter vacation in a warm climate and buying a color television set. And in a somewhat narrower but still broad sense Northeast’s Florida route might be considered “in competition” with trips to any vacation spot in the world offering a warm climate during our winter season such, for instance, as the south sea islands. But both Florida and Hawaii are within the United States and offer similar winter climate. To be sure one is 5,000 miles distant from northeastern United States and the other only 1,500 and they have somewhat different appeal to tourists. But comparable climate and particularly the same cost of the defendants’ illegal charter flight trips and a Florida vacation of the same length with like hotel accommodations make the vacation spots comparable in spite of the difference in distance. Moreover there is ample and persuasive evidence that because Nationwide’s Hawaii charter trips were so highly competitive in price with Northeast’s Florida service there was strong probability that Nationwide’s competition with Northeast would increase in the future. We cannot say on the record considered as a whole that the District Court’s finding that the defendants’ illegal Hawaii program was in direct competition with Northeast’s Florida flights during the 1964-1965 winter season is “clearly erroneous” within the meaning of Rule 52(a) Fed.R.Civ.P. From this it follows that Northeast is a “party in interest” entitled by 49 U.S.C. § 1487(a) to complain of the defendants’ Hawaii activities. We think the District Court erred, however, in ordering that the plaintiff’s security deposit be released and refunded. The purpose of the security required by Rule 65(c) Fed.R.Civ.P. to be furnished to obtain a preliminary injunction is in the words of the Rule “for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.” And in the first decision of this court in this case it was held that the defendants had been wrongfully enjoined or restrained by the preliminary injunction and the first permanent injunction in that they were too broad in their scope. We think the defendants are entitled to an opportunity to proceed against Northeast or its security for whatever damages, if any, they may be able to establish that they suffered by reason of the overbreadth of the preliminary injunction. The judgment of the District Court is affirmed except insofar as it orders that Northeast’s security deposit be returned and refunded to it and the case is remanded to that court for further consistent proceedings. . After the second decision of this court World and Northeast agreed to a judgment removing World from the case. . This court stated the test to determine Northeast’s standing to sue in its last prior opinion. We do not depart from that test and think the court below properly applied it. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
sc_caseorigin	083	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. SCHIAVONE et al. v. FORTUNE, aka TIME, INC. No. 84-1839. Argued February 26, 1986 Decided June 18, 1986 Blackmun, J., delivered the opinion of the Court, in which BRENNAN, Marshall, Powell, Rehnquist, and O’Connor, JJ., joined. Stevens, J., filed a dissenting opinion, in which Burger, C. J., and White, J., joined, post, p. 32. Morris M. Schnitzer argued the cause for petitioners. With him on the briefs were Theodore W. Geiser and Thomas S. Cosma. Peter G. Banta argued the cause and filed a brief for respondent. Justice Blackmun delivered the opinion of the Court. This case primarily concerns Rule 15(c) of the Federal Rules of Civil Procedure and its application to a less-than-precise denomination of a defendant in complaints filed in federal court near the expiration of the period of limitations. Because of an apparent conflict among the Courts of Appeals, we granted certiorari. 474 U. S. 814 (1985). I The three petitioners instituted this diversity litigation on May 9, 1983, by filing their respective complaints in the United States District Court for the District of New Jersey. Each complaint alleged that the plaintiff was libeled in a cover story entitled “The Charges Against Reagan’s Labor Secretary,” which appeared in the May 31, 1982, issue of Fortune magazine. The caption of each complaint named “Fortune,” without embellishment, as the defendant. See App. 8a. In its paragraph 2, each complaint described Fortune as “a foreign corporation having its principal offices at Time and Life Building, Sixth Avenue and 50th Street, New York, New York 10020.” Id., at 9a. “Fortune,” however, is only a trademark and the name of an internal division of Time, Incorporated (Time), a New York corporation. On May 20, petitioners’ counsel mailed the complaints to Time’s registered agent in New Jersey. They were received on May 23. The agent refused service because Time was not named as a defendant. On July 18, 1983, each petitioner amended his complaint to name as the captioned defendant “Fortune, also known as Time, Incorporated,” and, in the body of the complaint, to refer to “Fortune, also known as Time, Incorporated,” as a New York corporation with a specified registered New Jersey agent. See id., at 25a, 26a. The amended complaints were served on Time by certified mail on July 21. Time moved to dismiss the amended complaints. The District Court granted those motions. Id., at 96a, 98a, 100a. It ruled that the complaints, as amended, adequately named Time as a defendant, and therefore were not to be dismissed “for failure of capacity of defendant to be sued.” Supp. App. to Pet. for Cert. 18a. Under New Jersey law, however, see N. J. Stat. Ann. 2A:14-3 (West 1952), a libel action must be commenced within one year of the publication of the alleged libel. Supp. App. to Pet. for Cert. 18a. State law also provides that the “ ‘date upon which a substantial distribution occurs triggers the statute of limitations for any and all actions arising out of that publication,’” id., at 19a, quoting MacDonald v. Time, Inc., Civil No. 81-479 (DNJ Aug. 25, 1981). Supp. App. to Pet. for Cert. 19a. The court found it unnecessary, for purposes of the motion, to determine the precise date the statute of limitations had begun to run. Although Time acknowledged that the original filings were within the limitations period, it took the position that it could not be named as a party after the period had expired. Time contended that a party must be substituted within the limitations period in order for the amendment to relate back to the original fifing date pursuant to Rule 15(c). The District Court concluded that the amendments to the complaints did not relate back to the fifing of the original complaints because it had not been shown that Time received notice of the institution of the suits within the period provided by law for commencing an action against it. Supp. App. to Pet. for Cert. 23a. It therefore “with great reluctance” granted the motion to dismiss, noting that any dismissal of a claim based upon the statute of limitations “by its very nature is arbitrary.” Id., at 24a. The court also ruled that the “equities of this situation” did not demand that relief be afforded to petitioners. Ibid. The identity of the publisher of Fortune was readily ascertainable from the magazine itself. It rejected petitioners’ contention that Time deliberately misled them to believe that Fortune was a separate corporation. It observed that petitioners created the risk by filing their suits close to the end of the limitations period. Id., at 25a. Petitioners moved for reconsideration. By letter opinion filed January 12, 1984, the court adhered to its prior ruling. App. to Brief in Opposition la. On appeal to the United States Court of Appeals for the Third Circuit, the three actions were consolidated. That court affirmed the orders of the District Court. 750 F. 2d 15 (1984). It ruled that the New Jersey statute of limitations ran “on May 19, 1983, at the latest,” for a “substantial distribution” of the issue of May 31, 1982, had “occurred on May 19, 1982, at the latest.” Id., at 16. It regarded the language of Rule 15(c) as “clear and unequivocal.” 750 F. 2d, at 18. It also said: “While we are sympathetic to plaintiffs’ arguments, we agree with the defendant that it is not this court’s role to amend procedural rules in accordance with our own policy preferences.” Ibid. It further held that the period within which the defendant to be brought in must receive notice under Rule 15(c) does not include the time available for service of process. HH 1 — 1 It is clear, from what has been noted above, that the three complaints as originally drawn were filed within the limitations period; that service was attempted only after that period had expired; and that the amendment of the complaints, and the service of the complaints as so amended, also necessarily took place after the expiration of the limitations period. The District Court and the Court of Appeals so found, and we have no reason to disagree. The parties themselves do not dispute these facts. Instead, their dispute centers on whether Time was sufficiently named as the defendant in the original complaints so that the service that was attempted after the 1-year period but within the time allowed for service was effective, and on whether, in any event, the amendment of the complaints related back to the original filing and accomplished the same result. Petitioners argue that Rule 15(c)’s present form came into being by amendment in 1966 for the express purpose of allowing relation back of a change in the name or identity of a defendant when, although the limitations period for filing had run, the period allowed by Rule 4 for timely service had not yet expired. Brief for Petitioners 5. The Rule was effected, it is said, to ameliorate literal and rigid application of limitations periods to both claim and party amendments. It is urged that the Rules of Civil Procedure should be applied and construed to yield just determinations, that is, determinations on the merits, and that a procedural “double standard” that bars relation back for late notice to a new defendant when a like notice to the original defendant would be timely is unacceptable. Petitioners further argue that the original party named here and the party sought to be substituted had such commonality of interest that notice to one was in fact notice to the other. Therefore, it is said, where the intended defendant was misdesignated in form only, and knew or reasonably should have known that it was the true target and received the same notice it would have received had the form been flawless, “relation back should be a foregone conclusion.” Brief for Petitioners 6. Respondent, of course, takes issue with this approach. It claims that the language of Rule 15(c) is clear and that proper notice of the institution of these actions was not received by it within the period of limitations. It asserts that the equities do not support petitioners’ position, and that the interpretation of Rule 15(c) urged by petitioners in effect would be an impermissible rewriting of the Rule by this Court. f — H I — I I — I As amended, Rule 1 of the Federal Rules of Civil Procedure states: “These rules . . . shall be construed to secure the just, speedy, and inexpensive determination of every action.” Rule 8(f) says: “All pleadings shall be so construed as to do substantial justice.” And Justice Black reminded us, more than 30 years ago, in connection with an order adopting revised Rules of this Court, that the “principal function of procedural rules should be to serve as useful guides to help, not hinder, persons who have a legal right to bring their problems before the courts.” 346 U. S. 946, 946 (1954). This Court, too, in the early days of the federal civil procedure rules, when Rule 15(e), see n. 5, supra, consisted only of what is now its first sentence, announced that the spirit and inclination of the rules favored decisions on the merits, and rejected an approach that pleading is a game of skill in which one misstep may be decisive. Conley v. Gibson, 355 U. S. 41, 48 (1957). It also said that decisions on the merits are not to be avoided on the basis of “mere technicalities.” Foman v. Davis, 371 U. S. 178, 181 (1962). Despite these worthy goals and loftily stated purposes, we conclude that the judgments of the Court of Appeals in the present cases were correct. A The defendant named in the caption of each of the original complaints was “Fortune,” and Fortune was described in the body of the complaint as “a foreign corporation” having principal offices in the Time and Life Building in New York City. It also was alleged that Fortune was engaged in the publication of a magazine of that name. Attached to the complaint were a copy of the magazine’s cover for its issue of May 31, 1982, an artist’s depiction of an alleged payoff, and the text of parts of the article about which petitioners complained. The focus, as pleaded, was on Fortune. We cannot understand why, in litigation of this asserted magnitude, Time was not named specifically as the defendant in the caption and in the body of each complaint. This was not a situation where the ascertainment of the defendant’s identity was difficult for the plaintiffs. An examination of the magazine’s masthead clearly would have revealed the corporate entity responsible for the publication. Petitioners nonetheless rely on Fortune’s status as a division of Time to argue that institution of an action purportedly against the former constituted notice of the action to the latter, as a related entity. Some Courts of Appeals have recognized an “identity-of-interest” exception under which an amendment that substitutes a party in a complaint after the limitations period has expired will relate back to the date of the filing of the original complaint. The Court of Appeals in this case rejected that approach. The object of the exception is to avoid the application of the statute of limitations when no prejudice would result to the party sought to be added. Even if we were to adopt the identity-of-interest exception, and even if Fortune properly could be named as a defendant, we would be compelled to reject petitioners’ contention that the facts of this case fall within the exception. Timely filing of a complaint, and notice within the limitations period to the party named in the complaint, permit imputation of notice to a subsequently named and sufficiently related party. In this case, however, neither Fortune nor Time received notice of the filing until after the period of limitations had run. Thus, there was no proper notice to Fortune that could be imputed to Time. See Hernandez Jimenez v. Calero Toledo, 604 F. 2d 99, 102-103 (CA1 1979); Norton v. International Harvester Co., 627 F. 2d 18, 20-21 (CA7 1980). B The complaints as they were amended, of course, meet the identification standard. While the statement, “Fortune,. also known as Time, Incorporated, was and is a corporation of the state of New York,” is not a model of accuracy, it does focus on Time and sufficiently describes Time as the targeted defendant. The next question, then, is whether the amendment, made in July 1983, related back to the fifing on May 9, a date concededly within the period of the applicable New Jersey statute of limitations. Central to the resolution of this issue is the language of Rule 15(c). See n. 5, supra. Relation back is dependent upon four factors, all of which must be satisfied: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period. We are not concerned here with the first factor, but we are concerned with the satisfaction of the remaining three. The first intimation that Time had of the institution and maintenance of the three suits took place after May 19, 1983, the date the Court of Appeals said the statute ran “at the latest.” 750 F. 2d, at 16. Only on May 20 did petitioners’ counsel mail the complaints to Time’s registered agent in New Jersey. Only on May 23 were those complaints received by the registered agent, and then refused. Only on July 19 did each petitioner amend his complaint. And only on July 21 were the amended complaints served on Time. It seems to us inevitably to follow that notice to Time and the necessary knowledge did not come into being “within the period provided by law for commencing the action against” Time, as is so clearly required by Rule 15(c). That occurred only after the expiration of the applicable 1-year period. This is fatal, then, to petitioners’ litigation. We do not have before us a choice between a “liberal” approach toward Rule 15(c), on the one hand, and a “technical” interpretation of the Rule, on the other hand. The choice, instead, is between recognizing or ignoring what the Rule provides in plain language. We accept the Rule as meaning what it says. We are not inclined, either, to temper the plain meaning of the language by engrafting upon it an extension of the limitations period equal to the asserted reasonable time, inferred from Rule 4, for the service of a timely filed complaint. Rule 4 deals only with process. Rule 3 concerns the “commencement” of a civil action. Under Rule 15(c), the emphasis is upon “the period provided by law for commencing the action against” the defendant. An action is commenced by the filing of a complaint and, so far as Time is concerned, no complaint against it was filed on or prior to May 19, 1983. Any possible doubt about this should have been dispelled 20 years ago by the Advisory Committee’s 1966 Note about Rule 15(c). The Note specifically states that the Rule’s phrase “within the period provided by law for commencing the action” means “within the applicable limitations period”: “An amendment changing the party against whom a claim is asserted relates back if the amendment satisfies the usual condition of Rule 15(c) of ‘arising out of the conduct ... set forth ... in the original pleading,’ and if, within the applicable limitations period, the party brought in by amendment, first, received such notice of the institution of the action — the notice need not be formal — that he would not be prejudiced in defending the action, and, second, knew or should have known that the action would have been brought against him initially had there not been a mistake concerning the identity of the proper party” (emphasis supplied). Advisory Committee’s Notes on Fed. Rule Civ. Proc. 15, 28 U. S. C. App., p. 551; 39 F. R. D. 83. Although the Advisory Committee’s comments do not foreclose judicial consideration of the Rule’s validity and meaning, the construction given by the Committee is “of weight.” Mississippi Publishing Corp. v. Murphree, 326 U. S. 438, 444 (1946). The commentators have accepted the literal meaning of the significant phrase in Rule 15(c) and have agreed with the Advisory Committee’s Note. See 3 J. Moore, Federal Practice § 15.15[4.-2], p. 15-225 (2d ed. 1985) (“the Rule demands a showing that, within the period of limitations, the new party . . .”); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1498, p. 250 (Supp. 1986) (“in order for an amendment adding a party to relate back under Rule 15(c) the party to be added must have received notice of the action before the statute of limitations has run”). The linchpin is notice, and notice within the limitations period. Of course, there is an element of arbitrariness here, but that is a characteristic of any limitations period. And it is an arbitrariness imposed by the legislature and not by the judicial process. See Note: Federal Rule of Civil Procedure 15(c): Relation Back of Amendments, 57 Minn. L. Rev. 83, 85, n. 8 (1972). The judgments of the Court of Appeals are affirmed. It is so ordered. Compare, e. g., Cooper v. U. S. Postal Service, 740 F. 2d 714, 716 (CA9 1984), cert. denied, 471 U. S. 1022 (1985); Watson v. Unipress, Inc., 733 F. 2d 1386, 1390 (CA10 1984); Hughes v. United States, 701 F. 2d 56, 58 (CA7 1982); and Trace X Chemical, Inc. v. Gulf Oil Chemical Co., 724 F. 2d 68, 70-71 (CA8 1983), with Kirk v. Cronvich, 629 F. 2d 404, 408 (CA5 1980); Ingram v. Kumar, 585 F. 2d 566, 571-572 (CA2 1978), cert. denied, 440 U. S. 940 (1979); and Ringrose v. Engelberg Huller Co., 692 F. 2d 403, 410 (CA6 1982) (concurring opinion). No claim is made that Fortune is a separate legal entity with the capacity to be sued. • The cited New Jersey statute reads: “Every action at law for libel or slander shall be commenced within 1 year next after the publication of the alleged libel or slander.” The court noted that, despite the magazine’s cover date of May 31, 1982, the record “indicate[d]” that, for purposes of determining the limitations period, publication “occurred substantially before” May 31; that subscription copies were mailed May 12 and received by subscribers May 13-19; that newsstand copies went on sale May 17; that a press release was issued May 11; and that copies of the magazine were mailed to representatives of the press on that date. Supp. App. to Pet. for Cert. 19a. Rule 15(c) provides in pertinent part: “Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” The magazine’s very issue in question, that of May 31, 1982, p. 2, recites: “FORTUNE (ISSN 0015-8259), May 31, 1982, Vol. 105, No. 11. Issued biweekly by Time Inc., 3435 Wilshire Blvd., Los Angeles, Cal. 90010. . . . Principal offices: Time & Life Building, Rockefeller Center, New York, N. Y. 10020. . . . FORTUNE is a registered mark of Time Incorporated.” The parallel information set forth in current issues of Fortune magazine reads: “FORTUNE (ISSN 0015-8259). Published biweekly, with three issues in October, by Time Inc., 10880 Wilshire Blvd., Los Angeles, CA 90024-4193. Time Inc. principal office: Time & Life Building, Rockefeller Center, New York, NY 10020-1393. . . . FORTUNE is a registered mark of Time Inc.” See issue of June 9, 1986, p. 2; issue of May 26, 1986, p. 4; issue of May 12, 1986, p. 4. See, e. g., Travelers Indemnity Co. v. United States ex rel. Construction Specialties Co., 382 F. 2d 103 (CA10 1967); Montalvo v. Tower Life Building, 426 F. 2d 1135 (CA5 1970); Korn v. Royal Caribbean Cruise Line, Inc., 724 F. 2d 1397 (CA9 1984). Petitioners would garner support from Professor Clark Byse’s article, Suing the “Wrong” Defendant in Judicial Review of Federal Administrative Action: Proposals for Reform, 77 Harv. L. Rev. 40 (1963), cited in the Advisory Committee’s Note to the 1966 amendment of Rule 15, 28 U. S. C. App., p. 550; 39 F. R. D. 83. That study was critically directed at four Federal District Court decisions concerning “relation back” in suits against Government officers. In each of the cases, however, the Government within the period of limitations was on notice of the claim. Similarly, petitioners’ reliance upon Justice White’s footnote comment in dissent from the denial of certiorari in Cooper v. United States Postal Service, 471 U. S. 1022, 1025, n. 3 (1985), seems to us to be misplaced. Justice White, in fact, noted the inherent weakness of any such reliance (“Petitioner’s position is somewhat weak in this regard because, while the complaint was filed within the requisite 30 days, no party was served with process within that period”). Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. 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sc_jurisdiction	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ. ROSE, WARDEN v. CLARK No. 84-1974. Argued March 24, 1986 Decided July 2, 1986 Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, Rehnquist, and O’Connor, JJ., joined. Burger, C. J., filed a concurring opinion, post, p. 584. Stevens, J., filed an opinion concurring in the judgment, post, p. 585. Blackmun, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 590. W. J. Michael Cody, Attorney General of Tennessee, argued the cause for petitioner. With him on the briefs were Jerry L. Smith, Deputy Attorney General, and Kymberly Lynn Anne Hattaway, Assistant Attorney General. Paul J. Larkin, Jr., argued the cause for the United States as amicus curióte urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Trott, and Deputy Solicitor General Frey. Scott Daniel argued the cause and filed a brief for respondent. John K. Van de Kamp, Attorney General of California, Steve White, Chief Assistant Attorney General, and Ronald E. Niver and David D. Salmon, Deputy Attorneys General, filed a brief for the State of California as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Burt Neubome and Charles S. Sims; and for the National Association of Criminal Defense Lawyers et al. by Kim Robert Fawcett and Stephen A. Saltzburg. Justice Powell delivered the opinion of the Court. This case presents the question whether the harmless-error standard of Chapman v. California, 386 U. S. 18 (1967), applies to jury instructions that violate the principles of Sandstrom v. Montana, 442 U. S. 510 (1979), and Francis v. Franklin, 471 U. S. 307 (1985). — On December 30, 1978, Charles Browning and Joy Faulk were shot to death while they sat in Browning’s pickup truck in a remote area of Rutherford County, Tennessee. Respondent Stanley Clark, Faulk’s former boyfriend, was charged with the murders. The evidence introduced at trial showed that Browning, Faulk, and Faulk’s two young children (aged 6 and 3) had been driving in Rutherford County on the night of the murders. According to the older child, another vehicle followed Browning’s truck for about an hour. Browning pulled his truck into a private driveway, apparently to let the other ve-hide pass. The driver of the second vehide then pulled in behind Browning, thereby blocking any exit. The driver left his vehide, walked up to the cab of Browning’s truck, and fired four shots at point-blank range. One shot struck Browning in the head, two others struck Faulk in the head, and the fourth struck Faulk in the left shoulder. The killer left the scene in his vehicle. Both Browning and Faulk died. Faulk’s children, who had not been shot, went for help, telling a local resident that “Clicker” (the nickname by which the children knew respondent) had shot Browning and their mother. Earlier that night, police had seen respondent following Browning’s truck. Police soon located respondent, but apprehended him only after a high-speed chase. Police found the murder weapon, a .25-caliber pistol that respondent had borrowed from a friend, near respondent’s home. At trial, the State relied on the foregoing evidence and on evidence showing that respondent and Joy Faulk had a stormy love affair that Faulk ended in the fall of 1978. Several times after their breakup, respondent threatened to kill Faulk if he ever found her with another man. Respondent offered two lines of defense. First, he contended that Sam Faulk, Joy’s ex-husband, killed the victims because of a dispute concerning custody of the two Faulk children. The State rebutted this contention by introducing evidence that no such dispute existed, and that Sam Faulk was elsewhere when the murders were committed. Second, respondent argued that he was either insane or incapable of forming the requisite criminal intent. To support this argument, respondent introduced evidence that he was suffering from amnesia and could not remember the events of the night of the murders. In addition, some testimony suggested that respondent had been drinking heavily the entire day before the murders. Finally, two defense psychiatrists testified that respondent was legally insane at the time the murders were committed because his depression concerning his recent breakup with Joy Faulk made it impossible for him to conform his conduct to the law. At the close of trial, the court instructed the jury on the elements of both first- and second-degree murder. Under Tennessee law, first-degree murder requires proof of premeditation and deliberation, while second-degree murder requires proof of malice. The court’s instructions defined malice as “an intent to do any injury to another, a design formed in the mind of doing mischief to another.” App. 186. Malice did not require proof of planning or premeditation; a killing “upon a sudden impulse of passion” sufficed if committed with intent to harm another. Id., at 187. The court then charged the jury: “All homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption. Thus, if the State has proven beyond a reasonable . . . doubt that a killing has occurred, then it is presumed that the killing was done maliciously. But this presumption may be rebutted by either direct or circumstantial evidence, or by both, regardless of whether the same be offered by the Defendant, or exists in the evidence of the State.” Ibid. The jury found respondent guilty of first-degree murder for killing Faulk and of second-degree murder for killing Browning. The Tennessee Court of Criminal Appeals affirmed the convictions, rejecting respondent’s argument that the jury instructions had impermissibly shifted the burden of proof as to malice. Respondent then sought habeas corpus relief in the Middle District of Tennessee. The District Court held that the malice instruction had violated respondent’s right to have his guilt proved beyond a reasonable doubt, as that right was defined in Sandstrom v. Montana. The court went on to find that the error could not be deemed harmless because respondent had “relied upon a mens rea defense” in contesting his guilt. 611 F. Supp. 294, 302 (1983). The Court of Appeals for the Sixth Circuit affirmed. The court agreed that the malice instruction was unconstitutional under Sandstrom. Turning to the question whether the error was harmless, the court reasoned that because respondent contested malice at his trial, an erroneous burden-shifting instruction could not be harmless under governing precedent. App. to Pet. for Cert. A-5 (citing Engle v. Koehler, 707 F. 2d 241, 246 (CA6 1983), aff’d by an equally divided Court, 466 U. S. 1 (1984)). The court reached this conclusion “despite the substantial evidence of petitioner’s guilt,” and added: “Were we writing on a clean slate, we would direct our inquiry to that suggested by Justice Powell (dissenting) in Connecticut v. Johnson, 460 U. S. at 97 n. 5: “ ‘the inquiry is whether the evidence is so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.’ “If that were the question in this case ... we might be able to respond in the affirmative.” App. to Pet. for Cert. A-6. The court nevertheless affirmed the order granting habeas corpus relief. We granted certiorari limited to the question whether the Court of Appeals’ harmless-error analysis was correct. 474 U. S. 816 (1985). H-< A In Chapman v. California, 386 U. S. 18 (1967), this Court rejected the argument that errors of constitutional dimension necessarily require reversal of criminal convictions. And since Chapman, “we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U. S. 673, 681 (1986). That principle has been applied to a wide variety of constitutional errors. E. g., id., at 684 (failure to permit cross-examination concerning witness bias); Rushen v. Spain, 464 U. S. 114, 118 (1983) (per curiam) (denial of right to be present at trial); United States v. Hasting, 461 U. S. 499, 508-509 (1983) (improper comment on defendant’s failure to testify); Moore v. Illinois, 434 U. S. 220, 232 (1977) (admission of witness identification obtained in violation of right to counsel); Milton v. Wainwright, 407 U. S. 371 (1972) (admission of confession obtained in violation of right to counsel); Chambers v. Maroney, 399 U. S. 42, 52-53 (1970) (admission of evidence obtained in violation of the Fourth Amendment). See also Hopper v. Evans, 456 U. S. 605, 613-614 (1982) (citing Chapman and finding no prejudice from trial court’s failure to give lesser included offense instruction). Our application of harmless-error analysis in these cases has not reflected a denigration of the constitutional rights involved. Instead, as we emphasized earlier this Term: “The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, United States v. Nobles, 422 U. S. 225, 230 (1975), and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error. Cf. R. Traynor, The Riddle of Harmless Error 50 (1970) (‘Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it’).” Delaware v. Van Arsdall, supra, at 681. Despite the strong interests that support the harmless-error doctrine, the Court in Chapman recognized that some constitutional errors require reversal without regard to the evidence in the particular case. 386 U. S., at 23, n. 8, citing Payne v. Arkansas, 356 U. S. 560 (1958) (introduction of coerced confession); Gideon v. Wainwright, 372 U. S. 335 (1963) (complete denial of right to counsel); Tumey v. Ohio, 273 U. S. 510 (1927) (adjudication by biased judge). This limitation recognizes that some errors necessarily render a trial fundamentally unfair. The State of course must provide a trial before an impartial judge, Turney v. Ohio, supra, with counsel to help the accused defend against the State’s charge, Gideon v. Wainwright, supra. Compare Holloway v. Arkansas, 435 U. S. 475, 488-490 (1978), with Cuyler v. Sullivan, 446 U. S. 335, 348-350 (1980). Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, see Powell v. Alabama, 287 U. S. 45 (1932), and no criminal punishment may be regarded as fundamentally fair. Harmless-error analysis thus presupposes a trial, at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury. See Delaware v. Van Arsdall, supra, at 681 (constitutional errors may be harmless “in terms of their effect on the factfinding process at trial”) (emphasis added); Chapman, supra, at 24 (error is harmless if, beyond a reasonable doubt, it “did not contribute to the verdict obtained”) (emphasis added). Similarly, harmless-error analysis presumably would not apply if a court directed a verdict for the prosecution in a criminal trial by jury. We have stated that “a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict. . . regardless of how overwhelmingly the evidence may point in that direction.” United States v. Martin Linen Supply Co., 430 U. S. 564, 572-573 (1977) (citations omitted). Accord, Carpenters v. United States, 330 U. S. 395, 408 (1947). This rule stems from the Sixth Amendment’s clear command to afford jury trials in serious criminal cases. See Duncan v. Louisiana, 391 U. S. 145 (1968). Where that right is altogether denied, the State cannot contend that the deprivation was harmless because the evidence established the defendant’s guilt; the error in such a case is that the wrong entity judged the defendant guilty. We have emphasized, however, that while there are some errors to which Chapman does not apply, they are the exception and not the rule. United States v. Hasting, supra, at 509. Accordingly, if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis. The thrust of the many constitutional rules governing the conduct of criminal trials is to ensure that those trials lead to fair and correct judgments. Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed. As we have repeatedly stated, “the Constitution entitles a criminal defendant to a fair trial, not a perfect one.” Delaware v. Van Arsdall, 475 U. S., at 681; United States v. Hasting, 461 U. S., at 508-509. B Applying these principles to this case is not difficult. Respondent received a full opportunity to put on evidence and make argument to support his claim of innocence. He was tried by a fairly selected, impartial jury, supervised by an impartial judge. Apart from the challenged malice instruction, the jury in this case was clearly instructed that it had to find respondent guilty beyond a reasonable doubt as to every element of both first- and second-degree murder. See also n. 2, supra. Placed in context, the erroneous malice instruction does not compare with the kinds of errors that automatically require reversal of an otherwise valid conviction. We therefore find that the error at issue here — an instruction that impermissibly shifted the burden of proof on malice — is not “so basic to a fair trial” that it can never be harmless. Cf. Chapman, 386 U. S., at 23. The purpose behind the rule of Sandstrom v. Montana supports this conclusion. Sandstrom was a logical extension of the Court’s holding in In re Winship, 397 U. S. 358 (1970), that the prosecution must prove “every fact necessary to constitute the crime with which [the defendant] is charged” beyond a reasonable doubt. Id., at 364; see Sandstrom, 442 U. S., at 520, 523; Francis v. Franklin, 471 U. S., at 313. The purpose of that rule is to ensure that only the guilty are criminally punished. As the Court stated last Term in Francis v. Franklin, the rule “protects the ‘fundamental value determination of our society,’ given voice in Justice Harlan’s concurrence in Winship, that ‘it is far worse to convict an innocent man than to let a guilty man go free.’ ” Ibid., quoting Winship, supra, at 372 (Harlan, J., concurring). When the verdict of guilty reached in a case in which Sandstrom error was committed is correct beyond a reasonable doubt, reversal of the conviction does nothing to promote the interest that the rule serves. Nor is Sandstrom error equivalent to a directed verdict for the State. When a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt. Connecticut v. Johnson, 460 U. S. 73, 96-97 (1983) (Powell, J., dissenting). In many cases, the predicate facts conclusively establish intent, so that no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury. See, e. g., Lamb v. Jernigan, 683 F. 2d 1332, 1342-1343 (CA11 1982), cert. denied, 460 U. S. 1024 (1983). In that event the erroneous instruction is simply superfluous: the jury has found, in Winship’s words, “every fact necessary” to establish every element of the offense beyond a reasonable doubt. See Connecticut v. Johnson, supra, at 97 (Powell, J., dissenting); Jeffries & Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 Yale L. J. 1325, 1388, n. 192 (1979). No one doubts that the trial court properly could have instructed the jury that it could infer malice from respondent’s conduct. See Francis v. Franklin, supra, at 314-315; Ulster County Court v. Allen, 442 U. S. 140, 157-163 (1979). Indeed, in the many cases where there is no direct evidence of intent, that is exactly how intent is established. For purposes of deciding this case, it is enough to recognize that in some cases that inference is overpowering. See Hopper v. Evans, 456 U. S., at 613. It would further neither justice nor the purposes of the Sandstrom rule to reverse a conviction in such a case. We accordingly hold that Chapman’s harmless-error standard applies in cases such as this one. I — I H-t 1 — 4 Although the Court of Appeals acknowledged that Sand-strom error might in some cases be harmless, its analysis of the issue cannot square with Chapman. The court concluded that a Sandstrom error could never be harmless where a defendant contests intent. App. to Pet. for Cert. A-5. But our harmless-error cases do not turn on whether the defendant conceded the factual issue on which the error bore. Rather, we have held that “Chapman mandates consideration of the entire record prior to reversing a conviction for constitutional errors that may be harmless.” United States v. Hasting, 461 U. S., at 509, n. 7. The question is whether, “on the whole record . . . the error . . . [is] harmless beyond a reasonable doubt.” Id., at 510. See also Chapman, 386 U. S., at 24 (“[BJefore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt”); Connecticut v. Johnson, 460 U. S., at 97, n. 5 (Powell, J., dissenting) (in cases of Sandstrom error, “the inquiry is whether the evidence was so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption”). Thus, the fact that respondent denied that he had “an intent to do any injury to another,” App. 186, does not dispose of the harmless-error question. Although we “plainly have the authority” to decide whether, on the facts of a particular case, a constitutional error was harmless under the Chapman standard, we “do so sparingly.” United States v. Hasting, supra, at 510. The Court of Appeals has not yet applied Chapman to the facts of this case. We therefore remand to that court for determination of whether the error committed in this case was harmless beyond a reasonable doubt. IV The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. In Connecticut v. Johnson, 460 U. S. 73 (1983), the Court was equally divided on the question whether ordinary harmless-error analysis was appropriate in cases of Sandstrom error. Compare 460 U. S., at 84-87 (plurality opinion) (such error “is the functional equivalent of a directed verdict” on intent, and is therefore harmless only when the defendant concedes intent), with id., at 95-99 (Powell, J., dissenting) (Chapman standard applies to Sandstrom error). Cf. 460 U. S., at 88 (Stevens, J., concurring in judgment) (joining affirmance of state-court decision that Sandstrom error could not be harmless, but on the ground that the decision was actually one of state law). The Johnson plurality noted that state and federal courts were in conflict on this issue. 460 U. S., at 75, n. 1 (collecting cases). Due in part to the divided views in Johnson, that conflict has persisted. Compare, e. g., Tucker v. Kemp, 762 F. 2d 1496, 1501-1503 (CA11 1985) (en banc) (applying Chapman harmless-error analysis), cert. denied, post, p. 1022, with In re Hamilton, 721F. 2d 1189, 1190-1191 (CA9 1983) (holding that Sandstrom error would be harmless only if intent was not contested at trial). The Court of Criminal Appeals noted that, almost immediately following the “presumption” instruction, the judge charged: “The question of whether the alleged killing was done with malice is for you to determine from the entire case, and you should look to all of the facts and circumstances developed by the evidence to determine whether the State has . . . proven beyond a reasonable doubt the existence of malice. If you have a reasonable doubt as to whether the alleged killing was done with malice, then the Defendant cannot be guilty of murder in the second degree and you must acquit him of that offense.” App. 188. The Court of Criminal Appeals reasoned that this instruction adequately informed the jurors that the burden of proof on malice remained on the State at all times. App. to Pet. for Cert. A-37 to A-39. In Sandstrom we held that an instruction creating a presumption of malice that has the effect of shifting the burden of proof on intent to the defendant violates due process under the rule of In re Winship, 397 U. S. 358 (1970). Sandstrom v. Montana, 442 U. S., at 523-524. Sandstrom was decided shortly before respondent’s trial commenced. 611 F. Supp. 294, 296, n. 3 (1983). The Court of Appeals’ judgment is reported at 762 F. 2d 1006 (1985). The court’s opinion is unpublished. We thus do not consider whether, taken in context, the instructions were permissible under our decisions in Sandstrom and in Francis v. Franklin, 471 U. S. 307 (1985). For purposes of our harmless-error analysis, we assume that the Court of Appeals properly held that the instructions were unconstitutional. Each of the examples Chapman cited of errors that could never be harmless either aborted the basic trial process, Payne v. Arkansas, 356 U. S. 560 (1958) (use of coerced confession), or denied it altogether, Gideon v. Wainwright, 372 U. S. 335 (1963) (denial of counsel); Tumey v. Ohio, 273 U. S. 510 (1927) (biased adjudicator). Unlike errors such as judicial bias or denial of counsel, the error in this case did not affect the composition of the record. Evaluation of whether the error prejudiced respondent thus does not require any difficult inquiries concerning matters that might have been, but were not, placed in evidence. Cf. Holloway v. Arkansas, 435 U. S. 475, 490-491 (1978). Consequently, there is no inherent difficulty in evaluating whether the error prejudiced respondent in this case. See United States v. Frady, 456 U. S. 152, 171-174 (1982) (evaluating Sandstrom error for prejudice under the “cause and actual prejudice” standard of Wainwright v. Sykes, 433 U. S. 72 (1977)). “Because a presumption does not remove the issue of intent from the jury’s consideration, it is distinguishable from other instructional errors that prevent a jury from considering an issue.” Connecticut v. Johnson, 460 U. S., at 95, n. 3 (Powell, J., dissenting). Cf. Jackson v. Virginia, 443 U. S. 307, 320, n. 14 (1979) (suggesting that failure to instruct a jury as to the reasonable-doubt standard cannot be harmless). See Brooks v. Kemp, 762 F. 2d 1383, 1423 (CA11 1985) (Kravitch, J., concurring and dissenting) (emphasizing that juries are free to infer intent from conduct). In Hopper v. Evans, we held that States are not constitutionally required to instruct juries about lesser included offenses where such instructions are not warranted by the evidence. The defendant in that case claimed that the trial court should have instructed the jury as to unintentional homicide during the commission of a robbery. We concluded: “It would be an extraordinary perversion of the law to say that intent to kill is not established when a felon, engaged in an armed robbery, admits to shooting his victim in the back .... The evidence not only supported the claim that respondent intended to kill the victim, but affirmatively negated any claim that he did not intend to kill the victim. An instruction on the offense of unintentional killing during this robbery was therefore not warranted.” 456 U. S., at 613 (citation omitted). As Hopper suggests, it would defy common sense to conclude that an execution-style killing or a violent torture-murder was committed unintentionally. See Connecticut v. Johnson, 460 U. S., at 99, n. 7 (Powell, J., dissenting). It follows that no rational jury would need to rely on an erroneous presumption instruction to find malice in such cases. Id., at 97, and n. 5. We think the dissent, and not the Court, “asks and answers the wrong question” in this case. Post, at 596 (opinion of Blackmun, J.). We agree that the determination of guilt or innocence, according to the standard of proof required by Winship and its progeny, is for the jury rather than the court. See post, at 593. Harmless-error analysis addresses a different question: what is to be done about a trial error that, in theory, may have altered the basis on which the jury decided the case, but in practice clearly had no effect on the outcome? This question applies not merely to Sandstrom violations, but to other errors that may have affected either the instructions the jury heard or the record it considered — including errors such as mistaken admission of evidence, or unconstitutional comment on a defendant’s silence, or erroneous limitation of a defendant’s cross-examination of a prosecution witness. All of these errors alter the terms under which the jury considered the defendant’s guilt or innocence, and therefore all theoretically impair the defendant’s interest in having a jury decide his case. The dissent’s argument — that the Sixth Amendment forbids a reviewing court to decide the impact of a trial error on the outcome, post, at 593-594 — logically implies that all such errors are immune from harmless-error analysis. Yet this Court repeatedly has held to the contrary. E. g., Delaware v. Van Arsdall, 475 U. S. 673 (1986) (limitation on defendant’s cross-examination); United States v. Hasting, 461 U. S. 499 (1983) (improper comment on defendant’s failure to testify); Moore v. Illinois, 434 U. S. 220 (1977) (admission of improperly obtained witness identification). Indeed, Chapman v. California, 386 U. S. 18 (1967), the beginning of this line of cases, applied harmless-error analysis to an error that placed an improper argument before the jury. Id., at 24-25 (finding comment on defendant’s silence harmful). See also Hopper v. Evans, 456 U. S., at 613-614 (citing Chapman, and finding error in jury instructions harmless). These decisions, ignored by the dissent, strongly support application of harmless-error analysis in the context of Sandstrom error. The dissent contends that the jury’s decision to convict respondent of only one count of premeditated murder “aptly illustrate^] why harmless-error analysis is inappropriate” in cases where intent is at issue. Post, at 594 (opinion of Blackmun, J.). This argument is without merit. The jury determined that respondent was guilty beyond a reasonable doubt of “intend[ing] to take the life” of Joy Faulk “with cool purpose.” App. 185 (trial court’s charge defining premeditation). The jury then determined that respondent was guilty of the malicious, but not premeditated, murder of Charles Browning. The only alleged error in these instructions was the trial court’s instruction that the jury could presume malice from a killing. Respondent’s (and the dissent’s) theory is that a proper instruction on the burden of proof on malice might have led the jury to find neither malice nor premeditation as to Faulk’s killing. This argument is implausible on its face. We leave the question whether the error in this case was harmless beyond a reasonable doubt to the Court of Appeals on remand. We do suggest that the different verdicts for the two killings in no way support respondent’s contention that the Sandstrom error in this case was prejudicial. The parties disagree as to the scope of the relevant evidence that must be assessed under Chapman. In particular, petitioner argues that evidence of amnesia, of respondent’s drunkenness on the day of the murders, and of insanity is irrelevant to malice. Respondent disagrees. These are, of course, issues of Tennessee law in the first instance, and we need not resolve them here. Nor do we express any view as to whether, assuming all the evidence in question is relevant to malice, the error in this case was nevertheless harmless beyond a reasonable doubt. Question: What is the manner in which the Court took jurisdiction? A. cert B. appeal C. bail D. certification E. docketing fee F. rehearing or restored to calendar for reargument G. injunction H. mandamus I. original J. prohibition K. stay L. writ of error M. writ of habeas corpus N. unspecified, other Answer:
songer_state	14	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". UNITED STATES of America, Plaintiff-Appellee, v. Daniel Joseph KORD, a/k/a Daniel Kirkland and Daniel Allen, and Thomas David Mangum, a/k/a Steve Neal Kirby, Steven Neal Kirby, Allen Hamburger and Thomas David Riley, Defendants-Appellants. Nos. 86-1329, 86-1545. United States Court of Appeals, Seventh Circuit. Argued Sept. 12, 1986. Decided Jan. 12, 1988. Rehearing Denied in No. 86-1329 March 7, 1988. Spencer Lee Daniels, Michael E. Brandt, Peoria, Ill., for defendants-appellants. Lee Smith, Asst. U.S. Atty. (Gerald D. Fines, U.S. Atty.), Peoria, Ill., for plaintiff-appellee. Before POSNER and FLAUM, Circuit Judges, and CAMPBELL, Senior District Judge. The Honorable William J. Campbell, Senior District Judge of the Northern District of Illinois, is sitting by designation. WILLIAM J. CAMPBELL, Senior District Judge. A jury convicted defendants/appellants Daniel Joseph Kord and Thomas David Mangum of robbery and armed robbery of a federally insured savings and loan in violation of 18 U.S.C. §§ 2113(a) and 2113(d), respectively. Sentences were entered only on the armed robbery convictions, robbery being a lesser included offense of armed robbery. Sentences of twenty years and twenty-five years incarceration were given to Kord and Mangum, respectively, on the armed robbery convictions. The jury also convicted Mangum of carrying a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c) and possession of a firearm by a convicted felon in violation of 18 U.S. C. App.II § 1202(a) (repealed). Mangum received a sentence of five years without parole for the carrying of a firearm during the commission of a crime of violence conviction. The sentence runs consecutively with his armed robbery sentence and concurrently with a two year sentence for the possession of a firearm by a convicted felon conviction. As set forth below, we affirm the judgment of the district court. I. On August 6, 1985, two masked men robbed the federally insured Citizens Savings and Loan Association of Eureka, Illinois at approximately 1:30 p.m. They stole $19,844 including “bait” money from the teller drawers. One of the men was armed with a shotgun. He wore a brown print shirt and a baseball cap with a spotted camouflage design imprinted upon it. His accomplice was shorter and wore a similar style shirt and a White Sox baseball cap. The “Sox” cap and one nylon-stocking mask were dropped near the door of the savings and loan as the men fled the crime scene. Ruthanne Edgeton, a savings consultant for the savings and loan, testified that after the two men left the building she observed an unmasked man as he ran past a driveup teller window. She testified that the man she saw resembled defendant Kord. Larry Fritz testified that he saw two men running through an alley near the savings and loan soon after the robbery was committed. Fritz was driving near the crime scene and observed the two men flee in a yellow automobile. He wrote down that the yellow vehicle’s license plate number closely resembled GYI-2448. Sergeant Shoemaker of the Eureka Police Department testified that at approximately 4:45 p.m. on August 6, he drove to the Enchanted Gardens Trailer Court and saw several people standing around two vehicles — a yellow car and another small brown foreign car. The yellow car’s trunk was open. Shortly thereafter, the two vehicles left the trailer camp and Sergeant Shoemaker followed them as they drove southbound on Route 117. Illinois State Police Trooper James Cooper was in uniform and driving an unmarked squad car when he observed both vehicles at an intersection on Route 117 at approximately 5:15 p.m. on August 6. They were only a few miles south of Eureka. Cooper observed the yellow car's license plate number was GYI-824. An individual, later identified as defendant Man-gum, jumped out of the yellow vehicle and went up to the small brown car parked in front. Soon thereafter, Cooper followed both cars into a gas station. Cooper made eye contact with defendant Kord, the driver of the small brown automobile. At that point, Kord began to drive out of the gas station, motioning toward the state trooper’s direction as he passed defendant Mangum. Both vehicles left the gas station. State and local law enforcement officers stopped the yellow automobile in which Mangum was a passenger at approximately 5:45 p.m. The car’s owner and driver was Mangum’s girlfriend Judy Sniff. Mangum consented to the search of the vehicle and the officers found: a shotgun; a shirt similar to the one described by witnesses in the savings and loan robbery; a camouflage spotted baseball cap; and $9,404 including “bait” money in the automobile’s trunk. Gov’t Br. at 6. Mangum also possessed on his person approximately $2,030 which included more “bait” money. Subsequently, at 8:45 p.m. on August 6, law enforcement officers drove to Kord’s residence in the Enchanted Gardens Trailer Court. Kord’s wife signed a consent to search form and the officers searched the trailer and her small brown foreign automobile. Kord Br. at 14. The officers found approximately $6,870 which included “bait” money from the savings and loan robbery. This money was discovered in a small gray metal box in the Kord trailer. Cancelled checks and banking statements of Kord and his wife were also in the box. Kord’s neighbor, Adrien Gazelle, testified that on August 6, 1985 the Kords had three visitors, a couple and a little boy. Gazelle’s twelve year old son testified that he saw Mangum leave with Kord in a yellow car between noon and 12:15 p.m. on August 6. The boy saw them return on foot two or three hours later and Mangum left shortly thereafter. Adrien Gazelle testified that both couples left the trailer park in their respective vehicles at approximately 4:30 p.m. Gloria Patterson, an acquaintance of the Kord family, testified that she called the Kord residence on August 6 prior to the time of the savings and loan robbery. Mangum’s girlfriend, Judy Sniff, answered the telephone. After Mangum was taken into custody, FBI Agent Leuck interviewed him at the Woodford County Jail on August 6 at approximately 7:00 p.m. Agent Leuck introduced himself and told Mangum that he was under arrest for the robbery of the Citizens Savings and Loan Association of Eureka, Illinois which had occurred earlier that day. The defendant was asked if he could read, write and understand English. Mangum answered that he could do so. Mangum Br. at 8, 15. Agent Leuck then gave Mangum an Advice of Rights form to read. The defendant took a few minutes to read the form and when asked to sign the form Mangum stated, “No, I never sign anything.” Mangum Br. at 9. At this point, Agent Leuck told the defendant, “We want to make sure that you understand.” Leuck went on to caution him, “You have the right to remain silent; anything that you say may be used against you; make sure you understand.” The defendant was advised that an attorney would be appointed to represent him, if he could not afford to hire one. Furthermore, Agent Leuck told Mangum, if at any time he wanted to stop talking, Leuck would stop asking questions. Gov’t Br. at 25. Mangum was asked, “Would you like to go ahead and talk to us without signing the form?” The defendant admits that he replied, “Sure, why not.” Mangum Br. at 9. At that point Mangum gave an oral confession as to his involvement with the savings and loan robbery. In his statement, the defendant said that a person known only to him as “John” helped him commit the robbery. Mangum also confessed that he used the shotgun in the robbery as his accomplice jumped over the counter to get the money. Furthermore, he confessed that they fled the crime scene in a yellow automobile owned by his girlfriend, Judy Sniff. Agent Leuck testified that he and other law enforcement officers periodically checked the Kord trailer for several days following the robbery. No one answered the door on these visits. Kord’s wife had moved to Bloomington, Illinois. Ultimately on November 14, 1985, Kord surrendered to law enforcement officers in Phoenix, Arizona. II. A. Defendant Kord Defendant Kord raises five arguments on appeal. As a threshold matter, we note that our jurisdiction governing both defendants’ appeals is pursuant to 28 U.S.C. § 1291. Kord’s first argument is that a reasonable jury could not convict him based upon the evidence presented at trial. “It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); see also Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978); and United States v. Brack, 747 F.2d 1142, 1148 (7th Cir.1984). Defendant Kord’s neighbors testified that they observed Mangum and Kord together at Kord’s residence on August 6, 1985. The defendants were observed leaving Kord’s residence in a yellow automobile between noon and 12:15 p.m. The robbery of the Citizens Savings and Loan Association of Eureka, Illinois occurred at approximately 1:30 p.m. There was testimony from a savings and loan employee that one of the robbers resembled Kord. An eyewitness testified that the yellow getaway vehicle's license plate number closely resembled GYI-2448. The license plate number of the yellow automobile owned by Mangum’s girlfriend is GYI-824. A Kord family acquaintance testified that Man-gum’s girlfriend answered the telephone at the Kord residence on August 6. Furthermore, an Illinois state trooper observed Mangum and Kord together in a gas station a mere few hours after the robbery. Kord made eye contact with the uniformed officer and then motioned to Mangum about the officer’s presence. Law enforcement officers stopped Mangum’s vehicle shortly thereafter and after obtaining his consent to search the vehicle found a shotgun, $11,434 including “bait” money from the robbery and other incriminating evidence. When officers searched Kord’s residence pursuant to the consent of Kord's wife, $6,870 including “bait” money from the robbery was discovered with Kord’s personal papers. Kord’s wife moved to another town soon after the robbery and Kord turned himself in three months later in Phoenix, Arizona. We conclude that viewed in the light most favorable to the government, there is substantial evidence to uphold the jury’s conviction of Kord. Kord’s next argument is that the trial court erred in admitting evidence of his flight. “It is well-settled in this circuit that ‘evidence of flight and concealment is admissible to show consciousness of guilt, as well as guilt itself.’ ” United States v. Zabic, 745 F.2d 464, 471 (7th Cir.1984) citing United States v. Solomon, 688 F.2d 1171, 1176 (7th Cir.1982); and United States v. Jackson, 572 F.2d 636, 689 (7th Cir.1978). See also United States v. Lewis, 797 F.2d 358, 368 (7th Cir.1986). The probative value of flight as circumstantial evidence of guilt— depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. Jackson, 572 F.2d at 639. See also United States v. Myers, 550 F.2d 1036, 1049 (5th Cir.1977). In the present case, the degree of confidence with which the Kord jury could reasonably draw inferences from Kord’s behavior to an ultimate finding of his guilt is. substantial. Neutral witnesses observed Kord with co-defendant Mangum mere hours before and after the robbery at Kord’s residence. State Trooper James Cooper observed the defendants in a suspicious two car gas station rendezvous less than an hour before law enforcement officers found a shotgun, “bait” money and other incriminating evidence in Mangum’s vehicle and on his person. “Bait” money was also found in Kord’s residence on August 6. Kord’s wife moved shortly after the robbery and there was no evidence that defendant Kord was ever seen at the Enchanted Gardens Trailer Court residence after August 6. There is evidence, however, that Kord surrendered to police in Phoenix, Arizona on November 14, 1985. A jury was entitled to consider the inferences from such an absence and consider its weight to the actual guilt of the defendant as to the crime charged. Defendant Kord had ample opportunity to rebut the government’s charges that he was avoiding federal law enforcement officers. We conclude that the trial court’s ad mission of flight evidence regarding Kord was proper. Kord argues that the trial court erred in admitting Ruthanne Edgeton's identification evidence. At the government’s urging, witness Edgeton looked through- á courtroom window to see if she could identify either defendant. This was done contrary to a court order barring witnessés during the trial proceeding. The test we must apply to determine if a defendant’s procedural due process rights have been violated by an unconstitutionally suggestive identification procedure is a well settled two-part inquiry. United States ex rel. Kosik v. Napoli, 814 F.2d 1151, 1155 (7th Cir.1987). First, we must determine if the procedures used at the federal district court below were unduly suggestive. Second, if the procedures were unduly suggestive we must determine if an identification is so unreliable under the totality of the circumstances that it creates a very substantial likelihood of irreparable misidentification. Kosik, 814 F.2d at 1155; Manson v. Braithwaite, 432 U.S. 98, 109-14, 97 S.Ct. 2243, 2250-53, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 198-99, 93 S.Ct. 375, 382, 34 L.Ed. 2d 401 (1972). We believe the government’s conduct below was inappropriate and conclude that it was unduly suggestive. Our second inquiry is to determine if witness Edgeton’s identification of Kord was so unreliable under the totality of the circumstances that it created a very substantial likelihood of irreparable misidenti-fication. Witness Edgeton’s trial identification occurred several months after the robbery. She told law enforcement authorities at the robbery scene that after the two robbers left the building, she observed one of them as he went past the drive-up teller window. She saw his profile as he ran past the window and the man was not wearing a mask. When witness Edgeton testified, she stated that Kord resembled the man who ran past the teller window. Kord Br. at 7. Edgeton’s identification of the defendant at the trial below was not overwhelmingly different than her observations on the robbery date. She did not make a positive identification on August 6, 1985 nor at trial. She merely testified that Kord resembled one of the robbers. The jury was able to weigh her inability to make a positive identification with other evidence heard at the trial. We do not find that Edgeton’s identification was so unreliable under the totality of the circumstances that it created a very substantial likelihood of irreparable misidentification. In fact, the defendant’s trial counsel tried to use witness Edgeton’s inability to make a positive identification of Kord to the defendant’s advantage. In his closing argument, Kord’s trial counsel stated, “She saw a profile, and that profile resembled him [Kord]. And you are going to convict Daniel Kord on that?” Kord Br. at 17. Further, the reality is that there is substantial evidence beyond witness Edgeton’s testimony to conclude that a reasonable jury would convict defendant Kord. See our discussion supra. We reject any argument by Kord that the Edgeton identification testimony was the pivotal issue as to his conviction. There was no constitutional error in admitting the trial identification. Defendant Kord argues that pursuant to Fed.R.Crim.P. 14 the trial court erred when it did not allow his motion for severance. Kord stated in his motion that he thought co-defendant Mangum would submit testimony to the jury of Kord’s innocence. The defendant’s argument is based on a statement from Mangum to FBI Agent Leuck that an individual named “John” was his accomplice. Co-defendant Mangum used his Fifth Amendment privilege and never testified. In United States v. Bruun, 809 F.2d 397, 407 (7th Cir.1987) this Court held that, “A refusal to grant a severance will be disturbed on appeal only if it results in manifest and substantial prejudice; in other words, it is reviewable only for abuse of discretion.” The mere possibility of a co-defendant’s testimony has been found to be insufficient grounds for severance. See United States v. Pavelski, 789 F.2d 485, 491 (7th Cir.1986); see also United States v. Harris, 542 F.2d 1283, 1312-13 (7th Cir.1976). Substantial prejudice has not been advanced by Kord. Therefore, the defendant’s argument remains unsubstantiated. We see no abuse of discretion. Further, it appears Mangum’s testimony was exculpatory, further complicating Kord’s efforts to demonstrate that substantial prejudice occurred from a failure to sever. Defendant Kord’s final argument is that the trial court erred in refusing to ask particular questions proposed by defendant’s counsel for the voir dire. In United, States v. Thompson, 807 F.2d 585, 590 (7th Cir.1986), this Court held, The court is not required to ask any particular questions proposed by counsel, United States v. Verkuilen, 690 F.2d 648, 660 (7th Cir.1982), and is accorded broad discretion in conducting the voir dire. Ham v. South Carolina, 409 U.S. 524, 528, 93 S.Ct. 848, 851, 35 L.Ed.2d 46 (1973). As a general matter, voir dire ... need only provide “some basis for a reasonably knowledgeable exercise of the right of challenge whether for cause or peremptory.” (quoting United States v. Jackson, 542 F.2d 403, 413 (7th Cir.1976)). See also United States v. Hasting, 739 F.2d 1269, 1273 (7th Cir.1984). In the instant case, Kord’s counsel proposed that the following questions be asked during the voir dire: No. 22 Do any members of the jury panel think that the Defendant is guilty of the crime with which he is charged at this time? No. 24 Does any member of the panel feel that the Defendant must be guilty of something or he would not be on trial? We note the trial court did ask the jury if any members of the panel had formed any conclusions in their minds as to the guilt of the defendant which would take the presentation of evidence to remove. Gov’t Br. at 20. This question is not materially different from the language proposed in defense counsel’s questions Nos. 22 and 24. This court will not find a trial court abused its discretion in conducting voir dire where there is “sufficient questioning to produce, in light of the factual situation involved in the particular trial, some basis for a reasonably knowledgeable exercise of the right to challenge.” United States v. Hasting, 739 F.2d 1269, 1273 (7th Cir.1984) (citing United States v. Martin, 507 F.2d 428, 432 (7th Cir.1974)) (quoting United States v. Lewin, 467 F.2d 1132, 1137 (7th Cir.1972)). There was no deficiency in the questions posed in the instant case, since they clearly permitted the knowledgeable exercise of for cause or peremptory challenges. The trial court’s questions to the jury enunciated above addressed the same basic concerns as to bias as defendant’s proposed voir dire questions. We find no abuse of discretion. B. Defendant Mangum Defendant Mangum raises two issues on appeal. The first is that Man-gum’s oral confession was obtained in violation of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In Connecticut v. Barrett, — U.S. -, 107 S.Ct. 828, 831, 93 L.Ed.2d 920 (1987) the Supreme Court held, “The fundamental purpose of the Court's decision in Miranda was ‘to assure that the individual’s right to choose between speech and silence remains unfettered throughout the interrogation process.’ ” (quoting Miranda, 384 U.S. at 469, 86 S.Ct. at 1625 (emphasis in original)). See also Colorado v. Spring, — U.S. -, 107 S.Ct. 851, 856, 93 L.Ed.2d 954 (1987). The Court also held that, “Nothing in our decisions, ... or in the rationale of Miranda, requires authorities to ignore the tenor or sense of a defendant's response to [.Miranda ] ... warnings.” Barrett, 107 S.Ct. at 831. In Barrett, the defendant refused to give a written statement unless his attorney was present, even though he “had no problem in talking about the incident.” Id. at 830. The Supreme Court held that the defendant had not invoked his right to counsel for all purposes, and that he acquiesced to the oral interrogation. Id. at 832. In the present case, FBI Agent Leuck asked Mangum if he could read, write and understand English. The defendant replied affirmatively. Mangum was given a Miranda Advice of Rights form to read. After Mangum read the form he was asked to sign it. The defendant replied, “No, I never sign anything.” Mangum Br. at 9. Agent Leuck cautioned Mangum, “We want to make sure you understand.” Id. Leuck then went on to verbally explain all of Mangum’s Miranda rights. Gov’t Br. at 25. The defendant was then asked, “Would you like to go ahead and talk with us without signing the form?” Mangum admits he told Leuck, “Sure, why not.” Mangum Br. at 9. The defendant then gave an oral confession to his involvement in the robbery. We rule Mangum confessed voluntarily. The interviewing agent was not required to ignore the sense of defendant’s response to the Miranda warnings. Furthermore, we believe Mangum’s waiver was made with full awareness of both the nature of his rights to be abandoned and the consequences of his decision to abandon them. In Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986) the Supreme Court held, “Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979)). Mangum was informed about his Miranda rights both verbally and in writing. Furthermore, there is no evidence that he was “threatened, tricked or cajoled” into this waiver. Miranda, 384 U.S. at 476, 86 S.Ct. at 1628. See also Colorado v. Connelly, 479 U.S. -, -, 107 S.Ct. 515, 523-24, 93 L.Ed.2d 473 (1986). Miranda gives a defendant a right to choose between speech and silence and Mangum chose to speak. See Barrett, 107 S.Ct. at 832. In North Carolina v. Butler, 441 U.S. 369, 370-71, 99 S.Ct. 1755, 1756, 60 L.Ed.2d 286 (1979), the Supreme Court held that when an FBI agent had fully advised a suspect of his Miranda rights, gave him an Advice of Rights form to read and sign and told the suspect he neither had to speak nor sign the form, the suspect’s inculpatory remarks were admissible as evidence despite the suspect’s statement, “I will talk to you but I am not signing any form.” Butler, 441 U.S. at 371, 99 S.Ct. at 1756. See also United States v. Boon San Chong, 829 F.2d 1572, 1574 (11th Cir.1987). We find a similar situation in the case at bar. Mangum’s Miranda argument is without merit. Defendant Mangum’s final argument is that the trial court erred in admitting evidence of his prior conviction as proof of his guilt to the possession of a firearm by a convicted felon charge. The defendant relies upon Illinois case law which holds that the only proper manner to prove a prior conviction is through documents which, at minimum, contain the following: (1) a caption; (2) the entry showing the return of the indictment in open court by grand jury; (3) the indictment and record of arraignment; (4) the impaneling of the jury or waiver of the jury; (5) the jury verdict; and (6) the final judgment of the court. See People v. Novak, 343 Ill. 355,175 N.E. 551 (1931); see also People v. Robbins, 88 Ill.App.2d 447, 232 N.E.2d 302 (1967). Assuming arguendo that the defendant’s checklist were to be adopted by this Court, each “Certified Statement of Conviction” form offered by the government to the trial court satisfies the checklist requirements. Each statement includes: (a) a caption identifying Mangum as the defendant; (2) an entry showing return of a grand jury indictment on November 21, 1975; (3) arraignment before Judge Joseph A. Power on December 12, 1975; (4) a plea of guilty to armed robbery (thereby negating the need for a jury or jury verdict); and (5) the final judgment of Judge Frank J. Wilson on July 7,1976 and August 4,1976, respectively. Furthermore, each “Certified Statement of Conviction” form was signed by a person authorized to make certification; the Clerk of the Circuit Court of Cook County, Morgan M. Finley. Clerk Finley dated form numbers 75-7161 and 75-7162 on October 15, 1976. Mangum Br. appendix at 5-8. The signed forms were public records and pursuant to Fed.R. of Evid. 902(4) they were properly admitted by the trial court as evidence of Mangum’s prior conviction. There was no abuse of discretion by the trial court. Accordingly, the trial court’s decision is Affirmed. . Mangum is S'11" and Kord is 5'6". Kord Br. at 14, 17. . Defendant Mangum contends that the waiver of his Miranda rights was tainted because he was a drug abuser. The defendant admits, however, that Agent Leuck testified that Mangum told Leuck on August 6, 1985 that he had not used drugs in a day or so. Furthermore, Agent Leuck testified that the defendant did not appear to be under the influence of drugs. Man-gum Br. at 10. Sergeant Bill' Myers of the Woodford County Sheriff’s Department observed the Mangum interview and the defendant had ample opportunity to call him as a witness to substantiate his claim. Defendant Mangum chose not to do so and we find his allegation unconvincing. . The import of Mangum’s argument wanes upon noting that his two year sentence for possession of a firearm by a convicted felon runs concurrently with his twenty-five year armed robbery sentence. Nonetheless, Mangum’s argument is without merit. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_usc1	28	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. Jose MORALES SERRANO et al. Plaintiffs, Appellants, v. PLAYA ASSOCIATES, INC., et al. Defendants, Appellees. No. 6997. United States Court of Appeals First Circuit. March 7, 1968. Ivan Diaz de Aldrey, San Juan, P. R, with whom Charles Peter Adams, and Brown, Newsom & Cordova, San Juan, P. R, were on brief, for appellants. Victor House, Santurce, P. R, with whom Gonzalez, Jr, Gonzalez-Oliver & Novak, Santurce, P. R, was on brief, for appellees. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. ALDRICH, Chief Judge. This is an appeal from an order of the district court for the District of Puerto Rico refusing to pass upon a motion to remand, and staying further proceedings pending the outcome of another action between some of the parties. The present suit was commenced in the insular court by Jose Morales Serrano and wife, citizens of Puerto Rico, hereafter Morales in the singular, against Playa Associates, Inc, a New York corporation, Roth, a citizen of New York, and one Christiansen. Morales asserted the giving of an option to Christiansen to buy certain land, for which Christiansen had made a down-payment of $20,000, of which $10,000 was to be returned if the sale was not consummated. Christian-sen’s rights under the contract were allegedly assigned to Roth, and by him to Playa, and the option not having been exercised, Morales asked for a determination of which defendant was entitled to the $10,000 refund, deposited by him in court. Playa and Roth removed the action to the federal court. Christiansen did not join in the removal, but not having been served, this was of no consequence. Pullman Co. v. Jenkins, 1939, 305 U.S. 534, 540-541, 59 S.Ct. 347, 83 L.Ed. 334. Playa and Roth accompanied their answer with a counterclaim, alleging that the sale was not effected because of Morales’ default, and seeking substantial damages. In addition, Playa, alone, filed a separate federal district court action, hereafter Playa’s suit, against Morales, seeking the same relief. Morales moved to remand the present case on the ground that the amount in controversy did not exceed $10,000, and the further ground that it now appeared that Christiansen had also assigned part of his rights to Piedrahita Realty, Inc., a Puerto Rican corporation, which, accordingly, was an indispensable party whose presence would destroy diversity jurisdiction. By separate motion under F.R. Civ.P. 19 Morales sought to join Piedra-hita as a defendant. In declining to pass on these motions, and, instead, ordering a stay on June 12, 1967, the court said, “The allegations contained in Civil No. 167-67 [Playa’s suit] clearly set out the fundamental controversy between the parties herein. Resolution of that case will resolve the basic issues involved in this case, free of the many complex issues concerning jurisdictional amount, necessary or indispensable parties, and other aspects of federal-state court relations.” Morales’ appeal, although suggesting intricate questions, is without merit. In the first place, a district court’s order staying proceedings in a case before it does not normally attain the status of an interlocutory decision within 28 U.S.C. § 1292(a), and is therefore not appeala-ble. Ephraim Freightways, Inc. v. Red Ball Motor Freight, Inc., 10 Cir., 1967, 376 F.2d 40; Jackson Brewing Co. v. Clarke, 5 Cir., 1962, 303 F.2d 844; Ferguson v. Tabah, 2 Cir., 1961, 288 F.2d 665; International Nickel Co. v. Martin J. Barry, Inc., 4 Cir., 1953, 204 F.2d 583. To this Morales urges that failure to remand an action where federal jurisdiction is lacking is tantamount to the issuance of an injunction against further proceedings in the state court in violation of 28 U.S.C. § 2283, and is appeala-ble as such. The answer to this is that the hypothesis is wrong. The court has not enjoined Morales from proceeding in the insular court. He may start a new action there at any time, and the pendency of the federal case is not a matter in abatement. Hayes Industries, Inc. v. Caribbean Sales Associates, Inc., 1 Cir., 1967, 387 F.2d 498. The question comes whether we should treat the abortive appeal as a petition for mandamus, International Nickel Co. v. Martin J. Barry, Inc., supra. Passing the fact that on a petition for mandamus we cannot decide the issues extensively argued here on the merits, but can only require the district court to do so, In re Henneman, 1 Cir., 1943, 137 F.2d 627, a petition for mandamus is an extraordinary writ, rarely to be invoked. Bankers Life & Cas. Co. v. Holland, 1953, 346 U.S. 379, 74 S.Ct. 145, 98 L.Ed. 106. Even on the assumption that the district court’s stated reasons for its order of June 12 were erroneous, we cannot see how Morales has been substantially harmed by the order. It is just as open to him to move under Rule 19 to add Piedrahita as a party in Playa’s suit as it would be here were the court to consider it. Correspondingly, or alternatively, Morales can institute a new declaratory action in the insular court, this time naming Piedrahita as well as Playa and Roth, and if Piedrahita is, in fact, a vital party, there will not be complete diversity, and the other defendants should not be able to remove. While we make no final decision as to any of these matters, the merits, as we have already pointed out, not being before us, we are satisfied that Morales has in no way made the exceptional showing warranting the allowance of a petition for mandamus. We will not so treat the appeal, and the appeal itself is dismissed for lack of appellate jurisdiction. It is true that in this instance the $10,-000 deposit is now, presumably, in the district court. Defendants would seem to be in no position, however, to object to the voluntary dismissal of this suit if they continue to insist on its not being tried. If they do object, or if defendants remove a second action and ask to have it stayed, it will be time enough to consider whether the purpose and effect is to violate section 2283. 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_casesource	025	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. MORRIS v. McCOMB, WAGE AND HOUR ADMINISTRATOR. No. 7. Argued October 13, 1947. Decided November 17, 1947. George S. Dixon argued the cause and filed a brief for petitioner. Harold C. Nystrom argued the cause for respondent. With him on the brief were Solicitor General Perlman, Stanley M. Silverberg and William S. Tyson. Daniel W. Knowlton filed a brief for the Interstate Commerce Commission, as amicus curiae. Mr. Justice Burton delivered the opinion of the Court. This case requires further application of the principles stated in Levinson v. Spector Motor Service, 330 U. S. 649, and Pyramid Motor Freight Corp. v. Ispass, 330 U. S. 695. The first question is whether the Interstate Commerce Commission has the power, under § 204 of the Motor Carrier Act, 1935, to establish qualifications and maximum hours of service with respect to drivers and mechanics employed full time, as such, by a common carrier by motor vehicle, when the services rendered, through such employees, by such carrier, in interstate commerce, are distributed generally throughout the year, constitute 3% to 4% of the carrier’s total carrier services, and the performance of such services is shared indiscriminately among such employees and mingled with their performance of other like services for such carrier not in interstate commerce. The other question is whether, if the Commission has that power, the overtime requirements of § 7 of the Fair Labor Standards Act of 1938 apply to such employees in view of the exemption stated in § 13 (b) (1) of that Act. We hold that the Commission has the power in question and that the overtime requirements of § 7 of the Fair Labor Standards Act therefore do not apply to such employees. This action was brought March 26, 1942, in the United States District Court for the Eastern District of Michigan by the Administrator of the Wage and Plour Division, United States Department of Labor, under § 17 of the Fair Labor Standards Act, to enjoin the petitioner, James F. Morris, from violating § 15 (a) (1) and (2) of that Act through failure to pay his employees compensation for overtime in accordance with § 7 of that Act. After a trial based on the pleadings and stipulated facts, the complaint was dismissed September 26, 1945. In its unreported conclusions of law the court stated that neither the petitioner nor his employees were engaged “in the production of goods for commerce” within the meaning of the Fair Labor Standards Act and that, to the extent that they might be considered to be engaged “in commerce” within the meaning of that Act, the requirements of its § 7, as to compensation for overtime, did not apply to them. The Circuit Court of Appeals for the Sixth Circuit reversed this judgment May 29, 1946, and remanded the case for further proceedings. Walling v. Morris, 155 F. 2d 832. Because of its importance in interpreting the Motor Carrier Act and the Fair Labor Standards Act and because the question first stated above had not been passed upon in our decisions in the Levinson and Pyramid cases, supra, we granted certiorari, 330 U. S. 817, limited to the following question: “2. Where such employees [i. e., those of a common carrier for hire who conducts a general cartage business] during a minority of their time are engaged in the transportation of interstate traffic are they exempt under the provisions of Section 13 (b) (1) of the Act from the maximum hours provision of Section 7 of the Act as employees with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of Section 204 of the Motor Carrier Act, 1935 (49 U. S. C. sec. 301, et seq.)V’ In response to our invitation, the Interstate Commerce Commission filed a brief amicus curiae. The material facts are treated by the parties as being those shown by the record to have been in effect when the complaint was filed in 1942. They may be summarized as follows: The petitioner then was, and for the past 12 years had been, the sole owner and proprietor of the J. F. Morris Cartage Company which operated a general cartage business as a common carrier by motor vehicle in and about the metropolitan area of Detroit, Michigan, and all within three contiguous counties of that State. His operations were centralized at Ecorse, Michigan, at his garage and yard, used for a dispatching office, general maintenance and repair garage and storage space for equipment. His principal business was the transportation of steel. In the regular course of his business, in 1941, he generally employed about 60 persons, 40 as truck drivers, 14 as mechanics, painters, washers and repairmen in the garage, three as dispatchers and three as general office workers. His equipment consisted of about 50 trucks or tractors and 60 trailers. He was prepared to and did render general cartage service to the general shipping public. In 1941, he rendered such service to 47 consigning firms, but about 97 % of his revenue came from the Great Lakes Steel Corporation and the Michigan Steel Corporation, both in Ecorse. His general cartage services, in 1941, were made up of three intermingled types of service, generally classifiable as follows on the basis of the revenue derived from them: (1) 35%: Transportation of steel largely within steel plants. This was transported for further processing in those plants and an unsegregated portion of it was shipped ultimately in interstate commerce. (2) 61%: Transportation between steel mills and industrial establishments. These shipments consisted principally of bumper stock, fender stock and other types of steel used in connection with the manufacture of automobiles, a substantial portion of which entered interstate commerce. (3) 4%: Transportation of miscellaneous freight directly in interstate commerce, either as part of continuous interstate movements or of interstate movements begun or terminated in metropolitan Detroit. Ever since § 7 of the Fair Labor Standards Act took effect, October *24, 1938, petitioner’s employees, with the exception of his office workers, consistently worked enough hours to entitle them to additional compensation at the rate of one and one-half times their regular wages if such Section were applicable to them. They were, however, paid on the assumption that the Section did not apply to them and, therefore, for the most part, received only their regular rate of pay for such overtime. Accordingly, if it is found that § 7 is applicable to them, there is ground for an injunction against its further violation. No issue is presented here as to the office workers because there is no proof of overtime services having been rendered by them or being now in prospect. No issue is presented here as to the dispatchers. The Circuit Court of Appeals held that § 7 applies to them as employees engaged in the production of goods for interstate commerce and that they are not exempt as administrative employees. Those issues, however, are not within the limited grant of certiorari. As to the garagemen and laborers, including mechanics, painters, washers and repairmen, together with their superintendent of maintenance, there is no issue presented here, except to the extent that such classifications include mechanics doing the class of work defined as that of “mechanics” in Ex Parte No. MC-2, 28 M. C. C. 125, 132, 133, including the making of mechanical repairs directly affecting the safe operation of motor vehicles. All of the garagemen and laborers, except their superintendent of maintenance, were paid for their overtime work at “straight” or regular hourly rates. He was paid a weekly wage, and received no overtime pay, although he devoted approximately 25% of his time to the performance of routine physical tasks of the same general character as those of the employees working under his direction. The Circuit Court of Appeals held that the superintendent of maintenance was not exempt as an executive or administrative employee and should be classified in the same manner as the others in this group. There is nothing in the record showing the extent to which the respective garagemen and laborers devoted themselves to the several classes of work above mentioned and, if this were an action to recover overtime compensation for individual employees, it would be necessary to determine that fact. However, as this is an action only for an injunction relating to future practices, the situation can be met by limiting the injunction to the appropriate classifications of workers. On this basis, the injunction against violation of § 7 of the Fair Labor Standards Act may be issued as to those garagemen and laborers who are not “mechanics” as defined by the Interstate Commerce Commission, and the issue before us is limited to the proper application of such an injunction to such “mechanics.” The drivers are full-time drivers of motor vehicles well within the definition of that class of work by the Commission if the work is done in interstate commerce. From October 24, 1938, to August 1, 1940, the drivers received their “straight” or regular hourly rate of pay for all overtime work. Since August 1, 1940, their overtime work has been paid for in accordance with a collective bargaining agreement in force as to union drivers, throughout metropolitan Detroit, employed either in intrastate or interstate general cartage. From August 1, 1940, to August 1, 1941, these agreements required payment of overtime in excess of 52 hours a week at one and one-half times the regular rate. After August 1, 1941, as a concession to wartime conditions, this additional rate was applied only to overtime in excess of 54 hours a week. The statutory workweek which would be applicable under § 7 of the Pair Labor Standards Act at all times has been substantially shorter than those just mentioned. As to these drivers and these “mechanics” whose work affects safety of transportation, the first question here, as in the Levinson case, is whether the Commission has the power, under § 204 of the Motor Carrier Act, to establish qualifications and maximum hours of service with respect to them. The special situation presented is that, on the average, only about 4% of their time and effort has been, or is likely to be, devoted to services in interstate commerce. The issue would appear in its simplest form if each driver were required, each day, to devote 24 minutes (i. e., 4% of his allowable daily aggregate of ten hours of driving time) to driving in interstate commerce. The question then would be whether the Commission has the power to establish his qualifications and maximum hours of service in view of the relation of this driving to safety of operation in interstate commerce. Under the tests of the Commission’s power, as approved in both the majority and minority opinions in the Levinson case, and, under the analysis of that power developed by the Interstate Commerce Commission and cited in that case, it is “the character of the activities rather than the proportion of either the employee’s time or of his activities that determines the actual need for the Commission’s power to establish reasonable requirements with respect to qualifications, maximum hours of service, safety of operation and equipment.” It is beyond question that, under such circumstances, § 204 (a) (1) of the Motor Carrier Act has authorized the Commission to establish reasonable requirements with respect to qualifications and maximum hours of service of such drivers. The Fair Labor Standards Act, which was passed three years later, has recognized and does not restrict the Commission’s power over the safety of operation under the Motor Carrier Act. What is thus true for the driver is true also for the mechanic who repairs his truck. In the record before us, instead of 4% of the driving time of each driver being devoted each day to interstate commerce without relation to what the driver does at other times, the parties present the actual experience of the petitioner and his drivers throughout 1941. The printed record, together with an unprinted exhibit filed with the Clerk, classifies all of the 19,786 trips taken in 1941 by the 43 drivers who respectively drove motor vehicles for the petitioner during not less than eight weeks in that year. Only the “Pickup Trips” and “Boat Dock Trips” are counted as being in “interstate commerce.” These involved movements of goods to or from railroad freight houses, line haul motor carrier depots or the boat docks of the several steamship companies in Detroit. It was stipulated that the petitioner was “engaged as a common carrier for hire in the local transportation of property by motor vehicle,” was “engaged in a general cartage business and... [was] prepared to render such service to the general shipping public... Each driver appears to have been a full-time driver during each week that he worked. The tables show 464 “Pickup Trips” and 260 “Boat Dock Trips,” or a total of 724 made in interstate commerce, when and as required by petitioner’s consignors. These constituted 3.65% of the petitioner’s total trips. They were not distributed equally to each driver nor on the basis of 4% of his time each day. However, apparently in the normal operation of the business, these strictly interstate commerce trips were distributed generally throughout the year and their performance was shared indiscriminately by the drivers and was mingled with the performance of other like driving services rendered by them otherwise than in interstate commerce. These trips were thus a natural, integral and apparently inseparable part of the common carrier service of the petitioner and of his drivers. One or more such trips were taken by one or more drivers each week. The average number of drivers making one or more such trips in each week was nine drivers out of 37, or 24.4%. There were six weeks in which more than half of the drivers thus engaged directly in interstate commerce. The highest percentage of drivers making such trips in one week was 78.1%, when 25 drivers, out of the 32 then on duty, did so. As to the distribution of such trips, throughout the year, among the total of 43 drivers, every driver, except two, made at least one such trip with interstate freight. Each of the two who failed to make any such trip was employed for only about one-half the year and that was during the months when the trips in interstate commerce were the less frequent. On the other hand, one driver made 97 such trips in interstate commerce. Another made 52 and the average per driver was over 16. The greatest number of such trips made by a single driver in a single week was seven out of nine. In several other weeks he made six such trips out of a total of seven in the week. The net result is a practical situation such as may confront any common carrier engaged in a general cartage business, and who is prepared and offering to serve the normal transportation demands of the shipping public in an industrial metropolitan center. From the point of view of safety in interstate commerce, the hazards are not distinguishable from those which would be presented if each driver drove 4% of his driving time each day in interstate commerce. In both cases there is the same essential need for the establishment of reasonable requirements with respect to qualifications and maximum hours of service of employees. If the common carrier is required, by virtue of that status, to take this interstate business he must perform the required service in accordance with the requirements established by the Commission. The Commission has made no exception in these qualifications and maximum hours of service that would exempt the drivers of the petitioner from them as a class. The applicability of the Commission’s present requirements as to specific drivers during specific weeks is not the issue before us. We hold that the Commission has the power to establish qualifications and maximum hours of service, pursuant to the provisions of § 204 of the Motor Carrier Act, for the entire classification of petitioner’s drivers and “mechanics” and it is the existence of that power (rather than the precise terms of the requirements actually established by the Commission in the exercise of that power) that Congress has made the test as to whether or not § 7 of the Fair Labor Standards Act is applicable to these employees. Congress has gone out of its way to make this purpose clear in cases comparable to the one before us. It has done this by making the power of the Commission, under § 204 of the Motor Carrier Act, expressly applicable to motor vehicle pickup and delivery service within terminal areas to transportation in interstate commerce wholly within a metropolitan area, and to casual, occasional, or reciprocal transportation of property in interstate commerce by any person not engaged in transportation by motor vehicle as a regular occupation or business. It has made the Commission’s power over safety requirements expressly applicable to these operations, even though, at the same time, Congress has exempted them from general regulatory control. Congress furthermore has provided a special procedure by which, in an appropriate case, an intrastate motor carrier or any other party in interest, may secure the general exemption of such a carrier from compliance with the Motor Carrier Act even though such carrier does perform some interstate transportation. Congress, however, expressly has authorized the Commission, and not the courts, to decide when the case is an appropriate one for such a general exemption. It does not appear that any such certificate of exemption has been obtained or sought as to this petitioner. Having determined that the Commission has the power to establish qualifications and maximum hours of service for these drivers and “mechanics” under § 204 of the Motor Carrier Act, the question recurs as to whether, in the face of the exemption stated in § 13 (b) (1) of the Fair Labor Standards Act, the requirements of § 7 of that Act nevertheless apply to these employees. This issue as to the possible reconciliation of the language of these Acts so as to provide for concurrent jurisdiction was considered at length in the Levinson case and the conclusion was there reached that such a construction was not permissible. This discussion has proceeded on the basis of the facts which were stipulated to exist in 1942. This treatment, however, should not be interpreted as necessarily restricting the District Court to the present record if, for good cause, that court finds it advisable to consider additional evidence or to retry the case de novo. For these reasons, the judgment of the Circuit Court of Appeals is vacated and the cause is remanded to the District Court for further proceedings consistent with the opinion of the Circuit Court of Appeals, as here modified. It is so ordered. “Sec. 204 (a) It shall be the duty of the Commission— “(1) To regulate common carriers by motor vehicle as provided in this part, and to that end the Commission may establish reasonable requirements with respect to continuous and adequate service, transportation of baggage and express, uniform systems of accounts, records, and reports, preservation of records, qualifications and maximum hours of service of employees, and safety of operation and equipment....” 49 Stat. 546,49 U. S. C. § 304 (a) (1). “Sec. 7. (a) No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce — • (1) for a workweek longer than forty-four hours during the first year from the effective date of this section, (2) for a workweek longer than forty-two hours during the second year from such date, or (3) for a workweek longer than forty hours after the expiration of the second year from such date, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed....” 52 Stat. 1063, 29 U. S. C. § 207 (a). “Sec. 13.... “(b) The provisions of section 7 shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 204 of the Motor Carrier Act, 1935;....” 52 Stat. 1068, 29 U. S. C. § 213 (b) (1). “Sec. 17. The district courts of the United States... shall have jurisdiction, for cause shown, and subject to the provisions of section 20 (relating to notice to opposite party) of the Act entitled 'An Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes’, approved October 15, 1914, as amended (U. S. C., 1934 edition, title 28, sec. 381), to restrain violations of section 15.” 52 Stat. 1069,29 U. S. C. § 217. “Sec. 15. (a)..., it shall be unlawful for any person— (1) to transport, offer for transportation, ship, deliver, or sell in commerce, or to ship, deliver, or sell with knowledge that shipment or delivery or sale thereof in commerce is intended, any goods in the production of which any employee was employed in violation of section 6 or section 7, or in violation of any regulation or order of the Administrator issued under section 14; except that no provision of this Act shall impose any liability upon any common carrier for the transportation in commerce in the regular course of its business of any goods not produced by such common carrier, and no provision of this Act shall excuse any common carrier from its obligation to accept any goods for transportation; (2) to violate any of the provisions of section 6 or section 7, or any of the provisions of any regulation or order of the Administrator issued under section 14; 52 Stat. 1068, 29 U. S. C. § 215. See note 2, supra. This activity is described as follows: “C. Approximately three (3) per cent of the defendant’s operations consists of the transportation of freight between the plants of the Great Lakes Steel Corporation and the plants of the Michigan Steel Corporation on the one hand, and, on the other hand, interchange points, such as boat docks, railroad depots, freight terminals and truck terminals lying in the Detroit Metropolitan Area, wholly within the boundaries of the State of Michigan, involving the picking up of freight from or the delivery of freight to water carriers, railroad carriers and line haul motor carriers, which freight either has moved across the Michigan State lines or is about to move across the Michigan State lines in continuous transportation through connection between the defendant and such other interstate carriers. The defendant’s compensation for his portion of the through transportation service is in some instances paid to him by the interstate carrier, the compensation representing a division of the through rates on the transportation movement, and other instances being compensated by the shipper. “E. Approximately one (1) per cent of the defendant’s operations consists of the transportation of miscellaneous freight in general cartage service for hire and for shippers other than Great Lakes Steel Corporation or Michigan Steel Corporation. Cartage in this category is of the same physical character as that described in subparagraphs A, C, and D above, except that it is done on behalf of and for the account of shippers other than Great Lakes Steel Corporation and Michigan Steel Corporation.” “(I) Mechanics and other garage workers. — The evidence is clear that carriers that do not operate approximately 10 motor vehicles or more cannot economically employ mechanics to do repair work, and they do not do so.... “The larger carriers, however, do employ mechanics whose primary duties are to keep the motor vehicles in a good and safe working condition. They are required, for example, to keep the lights and brakes in such condition. They perform many other duties, of course, but these are sufficient to show clearly that the duties of these employees do affect safety of operation directly, as it is obvious that a large motor vehicle without the required lights or adequate brakes is a great potential hazard to highway safety. All witnesses testifying at the hearing agreed that the work of mechanics has such a direct and intimate relation to safety of operation, and no conflicting evidence was submitted. “Our conclusion is that mechanics devote a large portion of their time to activities which directly affect the safety of operation of motor vehicles operated in interstate or foreign commerce, and hence that we have power to establish qualifications and maximum hours of service for such employees under said section 204 (a). “There are other garage employees who do not perform work which affects safety of operation directly. Some carriers employ men who do nothing but paint vehicles. Others employ carpenters, and some few employ tarpaulin tailors. We find that the work done by none of these employees affects safety of operation. “It is possible, although the record does not clearly establish the fact, that some of the larger carriers employ men whose sole duty is to see that the motor vehicles are properly supplied with oil, gas, and grease, or to wash the vehicles. In the majority of cases, undoubtedly, the mechanics perform this work. However, if there be employees who do nothing but oil, gas, grease, or wash the motor vehicles, we find that they do not perform duties which directly affect the safety of operation and are not subject to our jurisdiction. To make our finding in this regard entirely clear, it is that mechanics are the only garage workers we find subject to our jurisdiction.” Ex Parte No. MC-2, 28 M. C. C. 125, 132, 133. Safety Regulations (Carriers by Motor Vehicle), 49 CFR Cum. Supp., Parts 190-193. See note 2, supra. Levinson v. Spector Motor Service, 330 U. S. 649, 674-675. “For, factually speaking, not the amount of time an employee spends in work affecting safety, but what he may do in the time thus spent whether it be large or small determines the effect on safety. Ten minutes of driving by an unqualified driver may do more harm on the highway than a month or a year of constant driving by a qualified one.” Id., dissenting opinion, at p. 687. See note 1, supra. “We recognize, as a practical matter, that private carriers transport property both in interstate and intrastate commerce. The same motor vehicle, operated by the same driver, on 1 or 2 days in a week may be engaged in transporting property in interstate commerce and the rest of the week may be engaged in intrastate commerce. In our opinion if a driver operates a motor vehicle in the transportation of interstate or foreign commerce on any day of a given week, such driver is subject to the weekly maximum herein prescribed. Likewise if a driver employed by a private carrier of property is engaged in interstate commerce during any one period of 24 consecutive hours, he is subject to the daily maximum herein prescribed. If such a driver does not drive or operate a truck in the transportation of property in interstate or foreign commerce for an entire week Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. 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South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:
sc_certreason	L	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. PINTO, PRISON FARM SUPERINTENDENT v. PIERCE. No. 284. Decided October 23, 1967. Thomas P. Ford, Jr., for petitioner. Per Curiam. Respondent was indicted by the grand jury of Essex County, New Jersey, on July 2, 1959, for the crime of robbery while armed. Following a plea of not guilty, he was tried before a jury, convicted and sentenced to a term of from 16 to 23 years in the New Jersey State Prison. On June 6, 1966, respondent filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. The District Judge determined from the transcript of respondent’s trial that the trial court had heard in the presence of the jury testimony regarding the voluntariness of an incriminating statement sought to be introduced by the' prosecution, held that under prior decisions of this Court this procedure violated respondent’s constitutional rights and granted the writ. The Court of Appeals for the Third Circuit affirmed, and petitioner, the Superintendent of the New Jersey State Prison Farm, seeks a writ of certiorari. The petition for certiorari is granted and the judgment is reversed. This Court has never ruled that all volun-tariness hearings must be held outside the presence of the jury, regardless of the circumstances. Jackson v. Denno, 378 U. S. 368 (1964), held that a defendant’s constitutional rights are violated when his challenged confession is introduced without a determination by the trial judge of its voluntariness after an adequate hearing. A confession by the defendant found to be involuntary by the trial judge is not to be heard by the jury which determines his guilt or innocence. Hence, because a disputed confession may be found involuntary and inadmissible by the judge, it would seem prudent to hold voluntariness hearings outside the presence of the jury. In this case, however, the confession was held voluntary and admitted as evidence suitable for consideration by the jury. In addition, there is no claim that because the hearing was held in the presence of the jury it was inadequate or had any other unfair consequences for the respondent. Finally, it is clear that the respondent in this case did not object to having the voluntariness of his admission considered in the presence of the jury. At his trial the court asked defense counsel whether there was any objection to the testimony being taken in the presence of the jury. Defense counsel replied, “None whatsoever.” The court continued, “As you know, it can be taken in their presence or outside of their presence, and that is a matter of discretion with the Court but I am inquiring of you if you have any objections. If you did I would hear you but I assume you have none.” Again counsel replied, “I have none.” The evidence regarding voluntariness, which included testimony by respondent, was then taken, after which the court ruled that the statement was voluntary. Since trial counsel consented to the evidence on vol-untariness being taken in the presence of the jury, and the judge found the statement voluntary, respondent was deprived of no constitutional right. The motion of respondent for leave to proceed in forma pauperis and the petition for certiorari are granted, the judgment is reversed and the case is remanded to the District Court with instructions to dismiss the writ of habeas corpus. Mr. Justice Black concurs in the result. The New Jersey Supreme Court has recently announced that from September 11, 1967, hearings on admissibility shall be outside the presence of the jury if the defendant so requests. See State v. Broxton, 49 N. J. 373, 386, n. 2, 230 A. 2d 489, 496, n. 2 (1967). In United States v. Carignan, 342 U. S. 36 (1951), relied upon by the trial court, reversal of a conviction was affirmed because the trial judge, after hearing some evidence concerning voluntariness with the jury present, refused to permit the defendant to testify on the subject. The other cases cited by the District Court granted writs of habeas corpus in cases in which trial judges had made no independent determination of voluntariness. See, for the citations to those eases, United States ex rel. Pierce v. Pinto, 259 F. Supp. 729, 731 (D. C N. J. 1966). 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_r_natpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. In re COORDINATED PRETRIAL PROCEEDINGS IN ANTIBIOTIC ANTITRUST ACTIONS. Appeal of UNITED STATES of America. UNITED STATES of America, Appellant, v. PFIZER INC., American Cyanamid Company, Bristol-Myers Company, Olin Corporation, Squibb, Inc., E. R. Squibb & Sons, Inc., and The Upjohn Company. Nos. 81-1067, 81-1068. United States Court of Appeals, Third Circuit. Argued Feb. 1, 1982. Decided Feb. 16, 1982. Richard J. Favretto, Deputy Asst. Atty. Gen., Barry Grossman, Marion L. Jetton (argued), Attys., Dept, of Justice, Washington, D. C., for appellant; Paul A. Owens, Edward S. Panek, Jr., Attys., Dept, of Justice, Washington, D. C., of counsel. Joseph A. Tate, George E. Rahn, Jr., David G. Battis, Philadelphia, Pa., Robert E. Cooper (argued), James P. Clark, Los Angeles, Cal., Thomas H. Shiah, Minneapolis, Minn., for appellee, Pfizer Inc.; Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., Gibson, Dunn & Crutcher, Los Angeles, Cal., of counsel. Richard A. Horgan, Stuart M. Reynolds, Jr., Winthrop, Stimson, Putnam & Roberts, Henry J. Zafian, Fish & Neave, New York City, for appellee, Bristol-Myers Co. Allen F. Maulsby, Cravath, Swaine & Moore, New York City, for appellees, Ohn Corp., Squibb, Inc., and E. R. Squibb and Sons, Inc. Charles E. Buffon, Covington & Burling, Washington, D. C., for appellee, The Upjohn Co. Samuel W. Murphy, Jr. (argued), Kenneth N. Hart, William J. T. Brown, Kenneth E. Newman, Eric J. Lobenfeld, Andrew J. Miller, Donovan, Leisure, Newton & Irvine, New York City, F. Hastings Griffin, Jr., Dechert, Price & Rhoads, Philadelphia, Pa., for appellee, American Cyanamid Co. K. Robert Conrad, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for appellees, Bristol-Myers Co., Olin Corp., Squibb, Inc., E. R. Squibb and Sons, Inc., and The Upjohn Co. Before GIBBONS, WEIS and GARTH, Circuit Judges. OPINION OF THE COURT GIBBONS, Circuit Judge: The United States appeals from a judgment in favor of defendants Pfizer, Inc. (Pfizer), American Cyanamid Co. (Cyanamid), Bristol-Myers Co. (Bristol), Olin Corporation (Olin), Squibb, Inc., E. R. Squibb & Sons, Inc. (collectively Squibb), and The Upjohn Company (Upjohn), in a multicount suit to cancel the Conover patent held by Pfizer on the antibiotic drug tetracycline and for civil damages under Section 4A of the Clayton Act. We conclude that the District Court’s findings were not clearly erroneous and we affirm. Tetracycline is a broad spectrum antibiotic, part of a generation of drugs that became available to the public shortly after the second world war. The first broad spectrum antibiotic, chlortetracycline, was discovered by Dr. Duggar and introduced in 1948 by Cyanamid under the name Aureomycin. An improved fermentation process was subsequently patented by Cyanamid— the Niedercorn process. Pfizer’s Dr. Conover, in June 1952, was able to produce tetracycline by dischlorinating Aureomycin — i.e. by substituting hydrogen for chlorine in chlortetracycline. On October 23, 1952 Pfizer applied for a patent on tetracycline and on the Conover process. On March 2, 1954, the Patent Office declared an “interference” involving Pfizer’s Conover, Cyanamid’s Minieri and Bristol’s Heinemann applications, the latter two having been filed after Pfizer’s application. On October 14, 1954, Hearing Examiner Lidoff, finding that tetracycline was not patentable, dissolved the interference. It appeared to Lidoff that tetracycline might have been produced by the prior art processes taught by Duggar and Niedercorn; the coproduction of tetracycline with Aureomycin might, therefore, deny Con-over’s invention the novelty prerequisite for obtaining a patent. The Conover application was formally rejected. On November 29,1954, Pfizer’s representatives Werner H. Hutz and Dr. Francis X. Murphy met with Examiner Lidoff to discuss his decision. At that meeting Pfizer made representations about the amount of tetracycline produced in processes used to manufacture Aureomycin. Lidoff, in turn, indicated his concerns about the patentability of tetracycline. Examiner Lidoff indicated that he would consider further evidence of tetracycline coproduction with Aureomycin. He discussed the type of evidence that would dispell his doubts. Pursuant to this meeting, Pfizer conducted tests to check coproduction and presented the results of those tests to Examiner Lidoff in the form of affidavits by Drs. Bogert and Tanner. (App. 2:376-88, 392-95). Lidoff, on the basis of Pfizer’s representations, allowed the Conover patent application on December 9, 1954. The patent issued January 11, 1955 and Cyanamid was licensed thereunder. Shortly thereafter, Pfizer sued Bristol, Squibb and Upjohn for patent infringement. That litigation ended in a settlement whereby Pfizer licensed Bristol to make, use and sell tetracycline; Squibb and Upjohn each received a license to use and to sell tetracycline. These licensees, in turn, dropped their challenge to the validity of the Conover patent. The present action was brought in 1969 by the United States on a three count complaint against Pfizer, Cyanamid, Bristol, Olin, Squibb and Upjohn. Count I seeks to cancel Pfizer’s Conover patent on tetracycline, alleging that its issue was effected through fraud on the Patent Office. It is the Government’s position that Pfizer made false and misleading representations and omissions to the Patent Office, specifically to Examiner Lidoff. Count II, which states a common law claim for deceit, was dismissed earlier and is not before us. Count III is an antitrust civil damages claim under Section 4A of the antitrust civil damages claim under Section 4A of the Clayton Act alleging that the defendants conspired to restrain trade in the broad spectrum antibiotics market in violation of the Sherman Act. Defendants allegedly used the fraudulently obtained Conover patent to foreclose competition. The Government seeks damages of $100,000,000 it allegedly incurred by paying artificially high non-competitive prices for tetracycline either as purchaser of drugs or as reimburser of the cost of purchases by others. Count I was tried without a jury in the Eastern District of Pennsylvania. The District Court determined that Pfizer’s dealings with the Patent Office were not tainted by a fraudulent intent and refused to cancel the Conover patent. Considering all the evidence, the court found that the Government had not discharged its burden of proving by clear and convincing evidence that Pfizer’s representatives — Hutz and Murphy — had a specific intent to defraud the Patent Office. The District Court, therefore, entered judgment on August 18, 1980 against the United States on Count I. On October 10, 1980 a final judgment in favor of all defendants on Count III of the Government’s complaint was entered. On this appeal, the United States asserts that the District Court committed clear error in finding that Pfizer thought Examiner Lidoff was interested in evidence only of “substantial” tetracycline coproduction in Aureomycin fermentation processes. It urges that Pfizer knew that Lidoff was interested in evidence of any amount of tetracycline production by pre-existing processes and that Pfizer acted with fraudulent intent in not telling Lidoff that its affidavit tests and prior research had indicated some tetracycline coproduction by the Duggar and Niedercorn processes. The Government also asserts that the District Court ignored evidence which independently established Pfizer’s alleged fraudulent intent. The nub of this contention is that the court’s opinion did not specifically consider and discuss evidence favorable to the Government. We find the appellant’s position without merit. The Government does not contend that the District Court applied the wrong legal standard in determining what kind of evidence will support a charge of fraud. We only review, therefore, the court’s factual finding that Pfizer had no fraudulent intent and our task is restricted to a determination of whether those findings are clearly erroneous. See Jackson v. United States Steel Corp., 624 F.2d 436 (3d Cir. 1980); Krasnov v. Dinan, 465 F.2d 1298 (3d Cir. 1972). This standard of review does not permit an appellate court to substitute its findings for those of the trial court. It allows only an assessment of whether there is enough evidence on the record to support those findings. That a different set of inferences could be drawn from the record is not determinative. It is sufficient that the District Court findings of fact could be reasonably inferred from the entire trial record. The findings of fact are not clearly erroneous. The trial judge credited the testimony of witnesses Hutz and Murphy. 498 F.Supp. at 34. These are credibility determinations well within the ambit of the court’s competence. Dr. Murphy testified for ten days and the court had ample opportunity to observe his demeanor. Hutz testified shortly after the 1955 patent issued in the Bristol infringement suit and in the FTC proceedings, when the relevant events viere fresh in his mind. Hutz stated: Mr. Lidoff indicated that he was not fully satisfied because he wanted to know whether if one followed the disclosures of the two patents, Duggar and Niedercorn, one could get these substantial amounts or concentrations of tetracycline which would make it possible for the recovery of a therapeutic product. He indicated that even though it were unrecognized, if it were true that you get a large proportion of tetracycline along with the Aureomycin and the effect of those earlier patents were [sic] that the products were antibiotics and people used them that way, that whether they knew it or not they would have the benefits of the tetracycline and he felt that he certainly wanted to have information as to just what occurred. (App. 10:3611) He also testified: The examiner [Lidoff] was interested in whatever practical, appreciable, substantial, useful quantities were in there, and he, for purposes of demonstration, said, “Well, let’s apply efficient present-day recovery procedures designed for the purpose of taking it out, not some elaborate detection device that would pick up a useless trace, but things that the art could apply to a broth and in a practical manner get tetracycline out of it.” That was his yardstick as to whether appreciable amounts were there, useful amounts. (App. 10:3705) Murphy in turn testified that Lidoff was interested in more than identifiable coproduction of tetracycline (App. 20:7445-50, 7451-52, 7486-87), and that Lidoff was “focusing on the possibility that Duggar and Niedercorn [Aureomycin processes] produced substantial proportions of tetracycline.” (App. 20:7431). Murphy testified that reference to recoverable or appreciable amounts of tetracycline meant “considerable, a good deal, a substantial amount.” (App. 20:7485, 7509). These witnesses’ statements regarding Lidoff’s actions and Pfizer’s representatives’ own state of mind were supported by an internal company memorandum from Hutz to Murphy analyzing the Examiner’s grounds for rejecting the tetracycline product claim. In that memorandum, Hutz indicated that he believed Lidoff’s concerns did not stem from the possible coproduction of small quantities of tetracycline that had gone unrecognized in the prior art, but were based instead on the presumption that substantial proportions of tetracycline were produced by the Duggar and Niedercorn (Aureomycin) process. Hutz’ memorandum is of special importance in its own right because it formed the basis for Pfizer’s presentations to Examiner Lidoff and there is no indication that Lidoff did anything to change Hutz’ and Murphy’s understanding of what was required of Pfizer. (App. 20:7445-48, 7451-52). The District Court also relied on the written record before the Patent Office concerning the Conover patent. In addition to the original application, this record contains written amendments and supporting affidavits (App. 2:368-69, 371-88; 392-95), as well as detailed summaries (the “Remarks”) of meetings that Pfizer’s representatives had with Examiner Lidoff. These amendments and additions, although submitted by Pfizer, became part of the record on which the Patent Office was required to rely exclusively in determining patentability. Examiner Lidoff was obligated to correct any misstatements or omissions, and since he took no such action, a presumption of accuracy attaches to the Remarks and amendments. The District Court properly held that the Remarks and amendments could not be contradicted by later testimony or by an attempted reconstruction of the earlier proceedings. 498 F.Supp. at 34; see generally, United States v. United States Gypsum Co., 333 U.S. 364, 395-96, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948). The Remarks indicate that Lidoff was interested in appreciable coproduction and not in the coproduction of small amounts of tetracycline (App. 2:369-70, 372, 374). Moreover, Lidoff did not ask nor expect Pfizer to conduct an elaborate research program in order to establish the existence of “trace” amounts of tetracycline that might be produced by prior art Aureomycin processes (App. 2:374). The Remarks also show that Pfizer’s representatives informed Lidoff of their fruitless attempts to discover appreciable amounts of tetracycline (App. 2:374, 377, 383, 393). The centerpiece of the Government’s case was the testimony of Examiner Lidoff that he had been troubled by the coproduction of any amount of tetracycline with Aureomycin and that he would not have granted the patent had he been aware that any tetracycline was produced by the Duggar and Niedercorn methods. The evidence consisted of Lidoff’s testimony given in 1966 before the FTC and of a 1972 deposition in this action. The passage of at least eleven years from the relevant facts in itself casts some doubt on the credibility of Lidoff’s uncredited testimony, but there is a more fatal flaw. Lidoff indicated that it was impossible for him to recollect the actual events that transpired in 1954, and he could only attempt, therefore, to recreate his frame of mind in that year. (App. 10:3442, 3502, 3518, 3456, 3481-82). Lidoff’s testimony is a post hoc reconstruction of what his position on the patentability of tetracycline would have been in 1954 based upon a reconstruction of his then current views on the general principles of patentability. This sort of evidence is quite indirect and removed from the underlying facts. The district judge refused to credit Lidoff’s testimony and we cannot say he committed clear error. In light of the Hutz and Murphy testimony, of the written record before the Patent Office in 1954, and of the rejection of Examiner Lidoff’s testimony, the District Court’s finding that Pfizer had no specific intent to defraud the Patent Office is not clearly erroneous. The Government contends that Pfizer, in checking for the tetracycline coproduction at the behest of Examiner Lidoff, performed tests which it knew could not yield tetracycline. Moreover, the Government alleges that the tests were not properly run, that ineffective recovery and identification techniques were employed, and that properly conducted tests would have produced quite different results. (See Brief of Appellant pp. 46-47). The Government also alleges that Pfizer acted recklessly in failing to determine what exactly Examiner Lidoff wanted, and that Pfizer should have reported whatever information it had on the coproduction of tetracycline to Examiner Lidoff and let him decide whether he deemed the discovered amounts substantial. Even assuming arguendo that specific intent required for fraud can be deduced from a reckless disregard for the truthfulness of information supplied to the Patent Office, there is no indication that Pfizer acted recklessly. Pfizer had no duty to deluge the Patent Office with data that was neither necessary nor requested. There is no evidence that Pfizer was aware of a possible difference in opinion between itself and Examiner Lidoff concerning the basis for the initial rejection of the Conover patent. Pfizer cannot be faulted for not resolving a difference that it did not know existed. In advancing these contentions the Government shows the trial record contains evidence pointing in an opposite direction from the trial court’s findings. What the argument establishes is that the findings were based on conflicting evidence. But a trier of fact faced with conflicting evidence must, of necessity, reject some of it. The Government cannot prevail under the clearly erroneous standard merely by exhibiting parts of the record which the trial court rejected. The judgment appealed from will be affirmed. . U.S. Patent No. 2,699,054. . The District Court decision on Count I appears at 498 F.Supp. 28 (E.D.Pa.1980). . The “broad spectrum” nomenclature is used to indicate a wide range of effectiveness against many types of microbes. . An earlier interference was declared between the Pfizer and the Cyanamid (Boothe-Morton) applications. This interference proceeding was ended when, pursuant to an offer of proof between the two companies, Cyanamid conceded priority to Pfizer and obtained from it a license to produce tetracycline. See In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 498 F.Supp. 28, 31 (E.D.Pa.1980). . The discussion at this meeting is summarized in “Remarks” prepared by the Pfizer representatives. (App. 2:369-75, 390-91). . There is no claim that the Conover process for manufacturing tetracycline, as distinguished from that product, is not patentable. . The Conover patent has also spawned an FTC unfair practice proceeding against Pfizer, Cyan-amid, Bristol, Squibb and Upjohn for providing false, misleading and incorrect information to the Patent Office, Charles Pfizer & Co. v. FTC, 401 F.2d 574 (6th Cir. 1968), cert. denied, 394 U.S. 920, 89 S.Ct. 1195, 22 L.Ed.2d 453 (1969), and a Justice Department criminal suit against Pfizer, Cyanamid and Bristol charging violation of the antitrust laws. United States v. Charles Pfizer & Co., 426 F.2d 32 (2d Cir. 1970), aff'd, 404 U.S. 548, 92 S.Ct. 731, 30 L.Ed.2d 721 (1972). . This action was originally filed in the District of Columbia. It reached the Eastern District of Pennsylvania via a circuitous path not relevant to our purposes. . United States v. Pfizer & Co., 560 F.2d 323, 326 (8th Cir. 1977). . The District Court decided in the alternative that, even if fraudulent intent were shown, the result would be unchanged because the alleged misrepresentations and omissions were not material and would not warrant cancelling the patent. 498 F.Supp. at 35. We do not pass on this alternate holding since we affirm on the basis that Pfizer did not defraud the Patent Office. . The trial judge indicated that his judgment on Count III in favor of all defendants other than Pfizer was based on his alternative holding of non-materiality in his August 18, 1980 opinion. We do not need to reach that alternate holding since we deem the Conover patent valid on the basis that no fraud was committed against the Patent Office. The resulting monopoly is therefore proper under the antitrust laws and defendants can not be held liable for any anticompetitive effects resulting from the Pfizer patent. The Government conceded, pri- or to the entry of the judgment dismissing Count III that it could not prove that count given the court’s decision on Count I. . “Note re Patentability of Tetracycline and its Hydrochloride Salt over Duggar and Niedercorn” (App. 4:1331). . Although the term “appreciable” may be open to various interpretations and the Government wishes us to read “appreciable” to mean “identifiable by research techniques,” Hutz’ and Murphy’s testimony, credited by the court, suggest that “appreciable” was meant to be read as “substantial.” (App. 2:369-75; 20:74859-87). . Some of the Government’s contentions are based on the alleged fact that Pfizer knew of the production of some tetracycline with Aureomycin (even in commercial batches) and that it was able to recover and identify that tetracycline using laboratory research techniques. The Government would have fraudulent intent bootstrapped on Pfizer’s not making such information available to the Patent Office. That position is without merit. The trial court decided that Pfizer believed that Examiner Li-doff was interested in the existence of substantial amounts of tetracycline — recoverable by the current commercial recovery techniques— by prior art processes. Information as to small tetracycline amounts recoverable by laboratory methods was not requested, and Pfizer cannot be held to have acted improperly in withholding unnecessary information from the Patent Office. Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_respond1_1_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". BLOOMFIELD FINANCIAL CORPORATION, Plaintiff-Appellee/Cross-Appellant, v. NATIONAL HOME LIFE ASSURANCE COMPANY, Defendant-Appellant/Cross-Appellee. Nos. 82-1316, 82-1326. United States Court of Appeals, Tenth Circuit. May 16, 1984. Miles C. Cortez, Jr., Englewood, Colo. (Phillip D. Barber and S. Kirk Ingebretsen, Denver, Colo., with him on the briefs) of Welborn, Dufford,' Cook & Brown, Denver, Colo., for plaintiff-appellee/cross-appellant Bloomfield Financial Corp. George J. Miller, Denver, Colo. (Christopher R. Hermann, Denver, Colo., with him on the briefs) of Dechert Price & Rhoads, Denver, Colo., for defendant-appellant/cross-appellee Nat. Home Life Assur. Co. Before BARRETT and LOGAN, Circuit Judges, and BOHANON, District Judge. Honorable Luther L. Bohanon, Senior United States District Judge for the District of Oklahoma, sitting by designation. LOGAN, Circuit Judge. In this diversity case an insurance sales agent, Bloomfield Financial Corporation (BFC), sued for breach of its agency contract with National Home Life Assurance Company (NHL). BFC claimed that NHL (1) failed to honor its agreement to pay BFC commissions equal to the highest percentage commission of any agency doing business with NHL, (2) breached its implied duty of good faith and fair dealing, and (3) unilaterally terminated the contract after notifying BFC that it would no longer distribute its policies through personal producing agents. BFC sought damages for the value.of the agency contract, including lost profits flowing from its impaired ability to recruit and retain agents because NHL paid higher percentage commissions to another agency. In addition, in a separate tort action BFC asked for compensatory and punitive damages based on NHL’s breach of its implied duty of good faith and fair dealing. The trial court granted NHL’s motion to dismiss the tort claim, reasoning that the Colorado Supreme Court probably would not recognize an independent tort action for breach of implied contractual duties. BFC’s three contract claims were submitted to the jury. After answering special interrogatories, the jury rendered a general verdict for BFC for $750,000. NHL asks us to grant a new trial on the award of contract damages, alleging that the trial court erred by (1) permitting proof of gross rather than net profits and failing to require the jury to reduce damages to present worth, (2) allowing the jury to assess damages without any evidence as to how much of the loss was caused by the breach of contract and how much by market forces, (3) excluding evidence on mitigation of damages and failing to properly instruct the jury on BFC’s duty to mitigate, (4) permitting prejudicial testimony of NHL’s acts which were actually done in conformance with the contract, and (5) admitting into evidence a memorandum prepared by NHL attributing a value to BFC’s contract because the memorandum was part of settlement negotiations. NHL also asserts that it was entitled to judgment notwithstanding the verdict (1) because the parties did not contemplate BFC’s loss when they negotiated the contract, (2) because NHL’s duty to deal in good faith could not be implied from any provision of the contract, and (3) because NHL was free at any time to cease marketing its products through outside sales agencies. BFC appeals the trial court’s dismissal of its tort claim, contending that the Colorado Supreme Court would recognize the concurrent tort and contract liability of a party that breaches its implied duty of good faith and fair dealing. I Before 1973 NHL marketed almost all of its insurance plans through the mail. Thomas Long and Kenneth Manley, the owners of BFC, approached the executive vice president of NHL, Robert Safford, about selling NHL insurance plans through a sales force of personal producing agents. NHL ultimately accepted the proposal and signed a standard agency sales contract in October 1973. After enjoying immediate success selling NHL products in Michigan, Long and Manley, on behalf of BFC, signed a second agreement with NHL in August 1974. This agreement provided that NHL could terminate its agency agreement with BFC only if BFC engaged in fraud or unethical practices, became bankrupt, or failed to satisfy an annual production quota. This provision appeared in all subsequent agreements between the two companies. During the term of a third agreement signed in 1976, BFC expanded its NHL sales operation to Colorado. BFC and NHL executed the final agreement on February 3, 1978. At this time and for the preceding years, BFC had produced more premiums for NHL than any other agency. The 1978 agreement was similar to the 1976 agreement and was, according to general counsel for NHL, the best contract the company had ever given a general agent. The contract declared that the commissions payable to BFC “with respect to any policy or plan of insurance shall at all times equal the highest percentage commission payable by the Company.” In addition, BFC was to receive an annual 5% vested bonus. Beginning in October 1978, NHL began paying higher commissions to the A.L. Williams agency than to BFC. BFC witnesses indicated that the Williams agency and its agents could make 52% more commission on a single sale than BFC and its agents, and up to 140% more commission if a rider (in essence, an additional policy for a family member of the insured) were sold with the policy. At least three of NHL’s senior officials admitted that payment of the higher commissions to the Williams agency breached its 1978 agreement with BFC. BFC officers testified that payment of higher commissions to the Williams agency made it difficult for BFC to recruit new agents and keep existing agents on the job. After BFC complained that they were receiving lower commissions than the Williams agency, NHL set up the “Long-Manley” committee to study the 1978 agreement. Stephen West, general counsel for NHL and chairman of the committee, concluded that NHL could not terminate the agreement except for nonproduction. West wrote in a memorandum opinion to NHL officers: “The draftor [sic] of [the 1978] Agreement has effectively tied up NHL to a degree that I see no viable means of terminating this Agreement unless we have a concerted plan to so alienate L/M [Long-Manley] as to cause them to cease writing business.” As a result NHL’s division of agency operations gave BFC’s business the lowest priority for processing, and NHL’s personnel consistently failed to return BFC’s phone calls. In July 1979 West sent a letter to BFC stating that BFC could only communicate with four persons at NHL and that the communication must be in writing. NHL officials stated that they had never heard of such a restriction, and one official testified that the restriction “in effect put them [BFC] out of business.” BFC was finally forced to close the Colorado office but was able to keep the 1978 agreement in force by producing enough first-year premiums to avoid termination. Nonetheless, NHL unilaterally terminated the agreement by a letter dated December 24, 1980. The letter stated, in pertinent part, “Effective February 1, 1981, National Home Life will no longer distribute its life and health products through personal producing general agents. This decision was made as a result of a prior management decision to withdraw the Company’s deposit term line of products. In as much as this line of products accounted for a substantial majority of the overall production, management has decided that distribution of the remaining products through personal producing general agents would not be cost effective.” Despite the letter NHL continued to market policies and plans of insurance through personal producing agents. Donald Williamson, NHL’s Senior Vice President of Personal Sales, testified that some of the 250 agents now with NHL were with NHL before the December 24, 1980, letter was sent. Many of the policies that NHL now sells through these agents NHL sold through BFC before NHL terminated the 1978 agreement. II NHL argues that a new trial should be granted on the issue of damages because the trial court permitted the jury to base its award on evidence of BFC’s loss of gross rather than net profits. BFC established its damages primarily through the testimony of Thomas McComb, a consulting actuary, who testified regarding the net value of NHL’s 1978 agreement at the time of the breach. McComb’s approach was to compute BFC’s net income loss in a single year based on the amount of premiums BFC would produce in an average year. Once McComb calculated this loss, he arrived at the total net present value of the 1978 agreement based on an assumed duration for the agreement and an assumed discount rate. See Massachusetts Bonding & Ins. Co. v. Johnston & Harder, Inc., 348 Pa. 512, 35 A.2d 721, 724 (1944) (under Pennsylvania law contract damages are measured by the value of the contract on the date of breach, taking into account the length of time the contract is assured of legal existence). McComb relied on information from BFC that the office expense allowance received from NHL covered all of BFC’s costs incurred in generating new first year premiums. NHL did not offer evidence that the office expense allowance failed to cover the cost of producing new business or that the damage calculations of McComb reflected anything other than loss of net revenues. Rather, relying upon BFC tax returns which show that BFC incurred other expenses, NHL asserts that the “office expense allowance was not comparable to all the costs of running the business.” Brief for Defendant-Appellee/Cross-Appellant at 13. We believe McComb’s testimony focused on the net profitability of the 1978 contract and hence was properly admitted. NHL further asserts that BFC failed to demonstrate how much income loss was caused by NHL’s breach and how much by market factors. However, BFC proved the amount of net profits it lost under the 1978 agreement because of NHL’s breach and called witnesses who discussed the impact of various market factors on BFC’s business. The evidence in the record adequately supports the jury’s verdict. III NHL argues that the trial court erroneously instructed the jury on BFC’s duty to mitigate damages and erroneously excluded evidence of the personal earnings of BFC’s owners, Long and Manley, following the breach. The court’s instruction on mitigation of damages was as follows: “You are instructed that a corporation has the duty to take such reasonable steps under the circumstances as will minimize its damages. Any damages resulting from a failure to take such reasonable steps cannot be recovered.” We find nothing wrong with this instruction. In Nelsen v. Farmers Mutual Auto Ins. Co., 4 Wis.2d 36, 90 N.W.2d 123 (1958), also a case involving termination of an insurance agency contract, the court approved an instruction directing the jury to determine the value of plaintiff’s contract and business on the date of defendant’s breach and not to deduct personal earnings of the plaintiff following the breach. The court quoted with approval this statement from the trial court's opinion: “ When the defendants deprived plaintiff of an asset he owned, the damages were determinable from the value of that asset at the time; they were not to be reduced by his personal earnings. The value of the asset was not to be determined by the wages earned by its owner. The plaintiff’s insurance business had value which was to be determined from its inherent worth; it was not to be found by computing how much its owner was able to earn from his personal services after the loss of such business.’ ” 90 N.W.2d at 137. The court also relied on the rule that the Wisconsin Supreme Court enunciated in Richey v. Union Central Life Ins. Co., 140 Wis. 486, 491, 122 N.W. 1030, 1032 (1909): “The point is made that the amount of damages so found should have been reduced by what the respondent earned outside of the contract employment after breach and before trial. The court properly refused this deduction. This is an action to recover the damages caused by the breach of the contract to respondent's agency business, built up under this agreement. When appellant terminated the agreement and destroyed the business, its liability became fixed. It was responsible for the value of the agency business as- it then existed, and which went out of existence by its illegal act.” The 1978 agreement did not limit BFC to marketing NHL policies nor did it require Long and Manley to personally oversee NHL agency business. While Long and Manley, the owners of BFC, were personally active in the business, they employed office personnel and many agents. Indeed, they had moved to Colorado, leaving the day-to-day management of the Michigan office to other BFC personnel. Under these circumstances, we believe the Pennsylvania courts would not impose a duty to offset earnings of BFC, Long, or Manley after the breach to deprive BFC of damages for NHL’s destruction of a BFC asset, the 1978 agreement. See Willred Co. v. Westmoreland Metal Mfg. Co., 200 F.Supp. 59, 63 (E.D.Pa.1961). The mitigation rule applicable in the case at bar is analogous to the damage rule applied in lost-volume sales cases. For example, when a buyer breaches a contract to purchase an automobile from a dealer, the dealer is entitled to the benefit of its bargain whether or not it ultimately resells the car intended for the breaching customer. This is so because in theory the dealer can supply as many new cars as there are buyers. The fact of resale demonstrates that two or more buyers exist and that the seller could expect to earn two profits once the original buyer agreed to make his purchase. See D. Dobbs, Remedies 889 (1973). Here the 1978 agreement did not limit BFC to marketing NHL policies. BFC could have performed similar services for other insurance companies. IV After examining the applicable Pennsylvania law on discounting damage awards for loss of future income, the trial court concluded that the Pennsylvania Supreme Court would apply the “total offset” rule in this case. The total offset rule assumes that the rate of inflation will cancel out the discount rate and thus does not permit any alteration of the damage award. NHL, citing Windle v. Davis, 275 Pa. 23, 118 A. 503 (1922), contends that the jury award in this case should have been discounted to present value. We disagree. In Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980), the Pennsylvania Supreme Court wrote: “[W]e find as a matter of law that future inflation shall be presumed equal to future interest rates with these factors offsetting. Thus, the courts of this Commonwealth are instructed to abandon the practice of discounting lost future earnings.” 421 A.2d at 1038-39. NHL contends that the rule in Kaczkowski is limited to wrongful death cases. The Kaczkowski court did note that it did not intend to fashion a general rule applicable to all awards and said that whether the total offset rule should be applied should be resolved on a case-by-case basis. 421 A.2d at 1036 n. 21. But after Kaczkowski the courts have extended the total offset rule to personal injury cases. Funston v. United States, 513 F.Supp. 1000, 1009 (M.D.Pa.1981); Barnes v. United States, 516 F.Supp. 1376, 1390 (W.D.Pa.1981), aff'd, 685 F.2d 66 (3d Cir.1982). The assumption that inflation will offset the interest earned on a lump sum award applies to lost future commissions just as it applies to other lost future income. We see no meaningful distinction between Kaczkowski and the ease at bar. The trial court did not err in concluding that the Pennsylvania Supreme Court would apply the total offset rule to the facts of this case. See Pfeifer v. Jones & Laughlin Steel Corp., 678 F.2d 453, 456 (3d Cir.1982) (discounting a lump sum award for lost future earnings is a practice effectively abolished in Pennsylvania). V Defendant argues that the trial court should have entered a directed verdict against BFC on its cause of action for unilateral termination of the 1978 agreement. The 1978 agreement provides that the only grounds for termination are BFC’s bankruptcy, fraudulent conduct, or lack of production. The contract could continue indefinitely. NHL asserts that Moore v. Security Trust & Life Insurance Co., 168 F. 496 (8th Cir.1909), cert. denied, 219 U.S. 583, 31 S.Ct. 469, 55 L.Ed. 346 (1910), indicates that a company cannot negotiate away its right to terminate a product line or sell its business. The Moore Court examined a claim arising from the defendant insurance company’s transfer of its business to a rival company. The court said that plaintiffs’ claim that the transfer breached its agency contract was “too feeble to withstand the compelling force of the presumption that the plaintiffs could not have intended to surrender control of their own business and services for life, and the defendant could not have intended to surrender its right or to limit the exercise of its right to manage, control, continue, or terminate its business of insurance at will.” 168 F. at 500. We believe Moore is inapplicable to the case at bar. NHL continues to market policies and plans of insurance through personal producing agents. Many of the products that NHL offers through these agents are the same products that NHL offered through BFC before termination of the 1978 agreement. Clearly, NHL’s unilateral termination violated the provision of the agreement giving BFC the right to market any policy NHL offers, especially since the evidence shows that NHL has continued to market insurance products through personal agents. The trial court properly denied NHL’s motion for a directed verdict. VI NHL makes a number of other arguments, including that (1) the trial court improperly admitted evidence of the difference in the percentage commission payable on riders; (2) the trial court erred in admitting an intra-corporate memorandum prepared by NHL attributing a value of $569,-000 to BFC’s “discounts and deferreds” because the memorandum was part of settlement negotiations; (3) BFC introduced no relevant evidence that would have permitted the jury to determine lost future profits; (4) BFC was not entitled to recover damages except for interest on the amount due BFC by reason of the higher commissions paid to the A.L. Williams agency; (5) BFC should not have received damages for the impairment of its ability to recruit new agents because this loss was not within the contemplation of the parties; and (6) NHL’s motion for judgment n.o.v. was improperly denied on BFC’s cause of action for breach of the implied duty of good faith and fair dealing because this implied duty cannot be implied from any provision in the contract. Some of these arguments are subsumed in the discussion above. We have examined all of the arguments and find them meritless. VII Finally, BFC appeals the dismissal of its tort claim for compensatory and punitive damages for breach of implied contractual duties. After noting that several jurisdictions now recognize an independent tort action based on “oppressive or willful and wanton breach of the implied duty of good faith and fair dealing,” the trial court concluded that the Supreme Court of Colorado would not recognize an independent tort action for breach of implied contractual duties. Colorado maintains a sharp distinction between tort and contract actions, defining tort as the breach of a legal duty arising by law, independent of contract. Newt Olson Lumber Co. v. School District Number Eight, 83 Colo. 272, 274, 263 P. 723, 724 (1928); see also Davis Cattle Co. v. Great Western Sugar Co., 393 F.Supp. 1165, 1196 (D.Colo.1975), aff'd, 544 F.2d 436 (10th Cir.1976), cert. denied, 429 U.S. 1094, 97 S.Ct. 1109, 52 L.Ed.2d 541 (1977). In Davis the plaintiff claimed that the defendant breached an implied contractual duty to deal in good faith in determining the highest practicable price to be paid for sugar beets. 393 F.Supp. at 1181. Despite expressly finding that defendant breached its contractual obligations in bad faith, the trial court denied recovery in tort. “The gravamen of plaintiff’s claim under ... which I have allowed recovery is ultimately founded on breach of contract — either outright breach of a specific covenant or a bad faith breach of a contractual duty to use good faith. Although I have imposed liability on defendant for its ‘fraud, or such gross mistake on (its) part (which implies) bad faith, or a failure to exercise an honest judgment,’ this is not equivalent to a finding of common law fraud. What I have ultimately found is bad faith or gross mistake on defendant’s part in disobeying its contractual obligations, and I have imposed liability on this ground. I have recognized no tort liability as such. That being true, exemplary damages cannot be awarded under the law of Colorado.” Id. at 1196. BFC would have us ignore such cases as Newt Olson and Davis Cattle because of Colorado’s alleged penchant for following new tort trends. The eases that BFC cites suggest that the Colorado Supreme Court has typically embraced only those new causes of action consistent with the Restatement (Second) of Torts and previously adopted by the courts of numerous other states, e.g., Towns v. Anderson, 195 Colo. 517, 579 P.2d 1163 (1978) (impact requirement abolished in cases of negligent infliction of emotional distress); those supported by strong policy considerations, e.g., Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971) (abolition of classification system to determine duty owed to person injured while on another’s property); or those in which the Colorado state legislature directed recognition, e.g., Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753 (1970) (recognition of tort action for invasion of right to privacy). None of these circumstances are present here. In fact, recovery in tort for breach of an implied contractual duty has been permitted only in a few jurisdictions, and generally only under extraordinary circumstances. See B.B. Walker Co. v. Ashland Chemical Co., 474 F.Supp. 651, 665 (M.D.N.C.1979) (punitive damages for tortious breach of contract should be assessed when defendant’s wrongdoing is intentional and deliberate and rises to a degree of outrageousness frequently associated with crime); National Homes Corp. v. Lester Industries, Inc., 336 F.Supp. 644, 647 (W.D.Va.1972) (recovery of exemplary damages for breach of contract limited to those exceptional cases in which the breach amounts to an independent, willful tort). But cf. Photovest Corp. v. Fotomat Corp., 606 F.2d 704, 729-30 (7th Cir.1979), cert. denied, 445 U.S. 917, 100 S.Ct. 1278, 63 L.Ed.2d 601 (1980) (court awarded punitive damages to a franchisee for multiple, oppressive, and intentional breaches when evidence showed that defendant sought to ruin plaintiff’s business and thereby force plaintiff to resell its franchises to the franchisor at a reduced rate). The trial court did not err in dismissing BFC’s tort action. AFFIRMED. . Both parties agree that because the 1978 agreement was negotiated and executed in Pennsylvania that state’s law applies to the interpretation of the contract’s provisions. . BFC concedes that it is not entitled to a second recovery of actual damages for NHL’s alleged tortious breach of contract. At stake in this appeal is whether NHL is entitled to a jury trial on the issue of punitive damages. . Both parties agree with the trial court that Colorado law governs BFC’s claim in tort. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
sc_caseorigin	101	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. ALSTATE CONSTRUCTION CO. v. DURKIN, SECRETARY OF LABOR. No. 296. Argued February 2-3, 1953. Decided March 9, 1953. Samuel A. Schreckengaust, Jr. argued the cause for petitioner. With him on the brief was Gilbert Nurick. Bessie Margolin argued the cause for respondent. With her on the brief were Solicitor General Cummings and William S. Tyson. Charles A. Horsky, W. Crosby Roper, Jr. and Amy Ruth Mahin filed a brief for the National Sand & Gravel Association, as amicus curiae, urging reversal. Mr. Justice Black delivered the opinion of the Court. Section 7 (a) of the Fair Labor Standards Act requires employers to pay each employee covered by the Act not less than one and one-half times his regular pay rate for every hour worked in excess of a forty-hour week; § 11 (c) requires employers to keep appropriate employment records. Employees covered are defined as those “engaged in commerce or in the production of goods for commerce.” We have held that employees repairing interstate roads or railroads are “engaged in commerce” within the meaning of that clause of § 7 (a). The question presented in this case is whether employees who work off such roads in the production of materials to repair them are engaged “in the production of goods for commerce” within the meaning of § 7 (a). The Wage and Hour Administrator sued in District Court to enjoin the petitioner Alstate Construction Company from violating the overtime and record-keeping provisions of the Act. The District Court found: Al-state is a Pennsylvania road contractor that reconstructs and repairs roads, railroads, parkways and like facilities in that state. The company also manufactures at three Pennsylvania plants a bituminous concrete road surfacing mixture called amesite made from materials either bought or quarried in Pennsylvania. Most of it is applied to Pennsylvania roads either by Alstate’s own employees or by Alstate’s customers. Eighty-five and one-half percent of Alstate’s work here involved was done on interstate roads, railroads, or for Pennsylvania companies producing goods for interstate commerce, and 14%% was done on projects that did not relate to interstate commerce. Alstate made no attempt to segregate payments to its employees on the basis of whether their work involved interstate or intrastate activities. The District Court held that all of Alstate’s employees were covered by the Afet and granted the injunction prayed. 95 F. Supp. 585. The Court of Appeals for the Third Circuit affirmed, holding that those employees of Alstate who worked on roads were “in commerce,” and that its “off-the-road” plant employees were producing road materials “for commerce.” 195 F. 2d 577. On similar facts, the Court of Appeals for the Eighth Circuit applied the Act to “off-the-road” employees. Tobin v. Johnson, 198 F. 2d 130. An opposite result was reached by the Tenth Circuit in E. C. Schroeder Co. v. Clifton, 153 F. 2d 385, and the Supreme Court of Pennsylvania in Thomas v. Hempt Bros., 371 Pa. 383, 89 A. 2d 776. To settle this question we granted certiorari in this and the Hempt Bros. case. 344 U. S. 895. Amesite is produced in Pennsylvania for use on Pennsylvania roads. None of it is manufactured with a purpose to ship it across state lines. For this reason, so Alstate contends, amesite is not produced “for commerce.” Obviously, acceptance of this contention would require us to read “production of goods for commerce” as though written “production of goods for transportation in commerce” — that is, across state lines. Such limiting language did appear in the bill as it passed the Senate, but Congress left it out of the Act as passed. Of course production of “goods” for the purpose of shipping them across state lines is production “for commerce.” But we could not hold — consistently with Overstreet v. North Shore Corp., 318 U. S. 125, and Pedersen v. Fitzgerald Construction Co., 318 U. S. 740 — that the only way to produce goods “for commerce” is to produce them for transportation across state lines. In the Overstreet and Pedersen cases, supra, we had to decide whether employees engaged in repairing interstate roads and railroads were “in commerce.” In Over-street we pointed out that interstate roads and railroads are indispensable “instrumentalities” in the carriage of persons and goods that move in interstate commerce. We then held that because roads and railroads are in law and in fact integrated and indispensable parts of our system of commerce among the states, employees repairing them are “in commerce.” Consequently he who serves interstate highways and railroads serves commerce. By the same token he who produces goods for these indispensable and inseparable parts of commerce produces goods for commerce. We therefore conclude that Al-state’s off-the-road employees were covered by the Act because engaged in “production of goods for commerce.” It is contended that we should not construe the Act as covering the “off-the-road” employees because it was given a contrary interpretation by its administrators from 1938 until 1945. During these first years after the Act’s passage the administrator did take such a position. But more experience with the Act together with judicial construction of its scope convinced its administrators that the first interpretation was unjustifiably narrow. He therefore publicly announced that off-the-road employees like these were protected by the Act. The new interpretation was reported to congressional committees on a number of occasions. Interested employers severely criticized the administrator’s changes. Specific amendments were urged to neutralize his interpretation. Such neutralizing amendments were suggested to congressional committees by the National Sand and Gravel Association which has filed a brief before us as amicus curiae. Instead of adopting any of the suggestions to undermine the administrator’s interpretation, Congress in a 1949 amendment to the Fair Labor Standards Act provided that all past orders, regulations and interpretations of the administrator should remain in effect “except to the extent that any such order, regulation, interpretation, . . . may be inconsistent with the provisions of this Act, or may from time to time be amended, modified, or rescinded by the Administrator . ...” We decline to repudiate an administrative interpretation of the Act which Congress refused to repudiate after being repeatedly urged to do so. There is an objection to the scope of the injunction, but we are satisfied with the Court of Appeals’ treatment of this contention. Affirmed. 52 Stat. 1060, as amended, 63 Stat. 910, 912-913, 29 U. S. C. §§ 207 (a), 211 (c). Overstreet v. North Shore Corp., 318 U. S. 125; Pedersen v. Fitzgerald Construction Co., 318 U. S. 740, reversing 288 N. Y. 687, 43 N. E. 2d 83, on the authority of Overstreet v. North Shore Corp., supra. 81 Cong. Rec. 7957. Fleming v. Atlantic Co., 40 F. Supp. 654, affirmed sub nom. Atlantic Co. v. Walling, 131 F. 2d 518; Lewis v. Florida Power & Light Co., 154 F. 2d 751; Southern United Ice Co. v. Hendrix, 153 F. 2d 689; Chapman v. Home Ice Co., 136 F. 2d 353. See for illustration Hearings before Subcommittee No. 4 of House Committee on Education and Labor on H. R. 40, 80th Cong., 1st Sess. 1374-1375. 63 Stat. 910, 920. Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:
sc_petitioner	028	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. CALIFORNIA v. HURST. No. 45. Decided June 7, 1965. Stanley Mosk, Attorney General of California, Doris H. Maier, Assistant Attorney General, and Edsel W. Haws, Deputy Attorney General, for petitioner. Per Curiam. The motion of respondent for leave to proceed in forma pauperis is granted. The petition for writ of certiorari is granted and the judgment is reversed. Linkletter v. Walker, ante, p. 618. Mr. Justice Black and Mr. Justice Douglas dissent for the reasons stated in their dissenting opinion in Link-letter v. Walker, ante, at 640. 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_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. Edgar QUAN-GUERRA, Defendant-Appellant. No. 90-10074. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 14, 1991. Decided April 4, 1991. Robert J. McWhirter, Asst. Federal Public Defender, Phoenix, Ariz., for defendant-appellant. Stanley Patched, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee. Before TANG, BOOCHEVER and NOONAN, Circuit Judges. OVERVIEW TANG, Circuit Judge: Edgar Quan-Guerra was found guilty of possessing a weapon in prison. The district court fined Quan-Guer-ra $500. Quan-Guerra appeals his fine. We affirm. FACTUAL AND PROCEDURAL HISTORY Edgar Quan-Guerra was serving time in prison when he was found in possession of a shank. After the jury convicted him for this unlawful possession, the district court sentenced him according to the Sentencing Guidelines. The court found that Quan-Guerra was “financially unable to pay a fine within the guideline range, but that he would be financially able to pay a lesser fine.” The court fined Quan-Guerra $500. Quan-Guerra informed the probation officer, in connection with the presentence report, that he had no assets or liabilities. He also informed the probation officer that his income was limited to his salary from prison employment. On September 25, 1989, Quan-Guerra filled out a financial affidavit to secure the services of the public defender. In it he stated he had no assets, no debts, and was not employed. Quan-Guerra argues that the district court erred in assessing a $500 fine. STANDARD OF REVIEW We review the legality of a criminal sentence de novo. United States v. Rafferty, 911 F.2d 227, 229 (9th Cir.1990). However, we “give due deference to the district court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e); United States v. Howard, 894 F.2d 1085, 1087 (9th Cir.1990). We review the district court’s findings of fact for clear error. Howard, 894 F.2d at 1087. DISCUSSION Quan-Guerra argues that the fine is inappropriate because no evidence on the record demonstrates his ability to pay the fine. When the record demonstrates unequivocally that the defendant is indigent, the district court is required to determine whether the defendant has the ability to pay any fine which might be imposed. United States v. Seminole, 882 F.2d 441, 443 (9th Cir.1989). Where the record is silent as to the defendant’s earning capacity, this court will remand to the district court for this determination. Id. Further, our precedent and the Sentencing Guidelines establish that the defendant has the burden of proof to demonstrate that he cannot pay the fine imposed by the court. United States v. Rafferty, 911 F.2d at 232. Here, the district court found that Quan-Guerra does not have the ability to pay the $3,000 to $30,000 fine mandated by the Sentencing Guidelines. The district court found that Quan-Guerra will be able to pay a lesser fine of $500. Evidence in the record supports this finding. The presen-tence report establishes that Quan-Guerra has no debts and has prison employment. No impediment to his earning capacity is shown. Quan-Guerra presented no evidence that he would not be able to pay a $500 fine whereas the district court’s decision is supported by the record. He did not meet his burden of proving that he could not pay the fine ordered or is likely to become unable to pay, over a period of time, the fine ordered. The district court did not err in assessing the $500 fine. Relying on United States v. Walker, 900 F.2d 1201, 1206 (8th Cir.1990), Quan-Guerra asserts that the district court must make findings on the record which demonstrate that the sentencing court has taken into account all the factors that, in assessing a fine, the court is required to take into consideration under the Guidelines. Our review of the record satisfies us that the district court considered all required factors in evaluating Quan-Guerra’s ability to pay this fine. See Guideline § 5E1.2(d). Moreover, Quan-Guerra has failed to meet his burden of establishing his inability presently to pay the fine or that he is likely to become unable to pay all or part of the fine over a period of time. See Guideline § 5E1.2(f). CONCLUSION The district court made the required finding that Quan-Guerra had the ability to pay the $500 fine imposed. That finding is supported by the record. The judgment of the district court is AFFIRMED. . Quan-Guerra erroneously focuses solely on the current state of his assets. However, Quan-Guerra’s future earning capacity is relevant to the district court’s inquiry as to his ability to pay the fine. See Guideline §§ 5E1.2(d)(2) and 5E1.2(f). Quan-Guerra has not established that his future income will be insufficient to pay the fine of $500. 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_appel1_3_3	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DIGITAL PAGING SYSTEM OF TOLEDO, INC., Respondent. No. 80-1470. United States Court of Appeals, Sixth Circuit. Sept. 17, 1981. Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., Bernard Levine, Director, Region 8, N. L. R. B., Cleveland, Ohio, for petitioner. Ward Summerville, Spengler, Nathanson, Heyman, McCarthy & Durfee, Toledo, Ohio, for respondent. Before KEITH and MARTIN, Circuit Judges, and PECK, Senior Circuit Judge. ORDER The National Labor Relations Board is applying to the Court under § 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), to enforce its order against the Digital Paging Systems of Toledo, Inc., issued on April 29, 1980, to cease and desist from unfair labor practices, to reinstate an employee and to bargain with the Union. The Company filed an answer to the application. The application has been referred to a panel of this Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure. In August, 1978, the Company demoted Carol Van Tuinen from the position of manager to salesperson in the Toledo office. She and the only two other employees in the bargaining unit became concerned over the security of their jobs and contacted a union agent. The three signed union authorization cards. The union agent met with the new manager to demand recognition. The manager began to interrogate Ms. Van Tuinen and the others about their knowledge of the union. On September 19, 1978, Company officials learned of the demand and two days later Ms. Van Tuinen was discharged. The Company thereafter refused to bargain with the Union, which then filed unfair labor charges against the Company. As a result of the charges, the National Labor Relations Board held a hearing before an Administrative Law Judge. He found that the Company had unlawfully interrogated employees about union activity, improperly discharged Ms. Van Tuinen and refused to bargain with the Union in violation of § 8(a)(5) and (1). The ALJ recommended, inter alia, an order be issued requiring the Company to bargain with the Union. The Company filed exceptions to the latter two findings. The Board affirmed the ALJ’s decision and adopted his recommendations. That decision is reported at 249 NLRB No. 15 (1980). The standard of review in Board cases is whether the Board’s determination is supported by substantial evidence on the record as a whole. 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Conflicts in the evidence are for the Board to resolve and, if supported by substantial evidence, such resolutions must be accepted by this Court. NLRB v. Pinkerton's Inc., 621 F.2d 1322, 1324 (6th Cir. 1980). The same is true for determinations of credibility. NLRB v. Cement Transport, Inc., 490 F.2d 1024, 1029 n.5 (6th Cir.), cert. denied, 419 U.S. 828, 95 S.Ct. 47, 42 L.Ed.2d 52 (1974). Upon review, the Court has examined the record, including portions of the hearing held before the Administrative Law Judge. We find substantial evidence in the record to support the Board’s findings of the unfair labor practices listed above. We also find the Board properly applied the guidelines of NLRB v. Gissell Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969) in ordering the Company to bargain with the Union. Accordingly, enforcement of the Board’s order of April 29, 1980, is hereby granted. Rule 9(d)3, Rules of the Sixth Circuit. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant? A. Food & Drug Administration B. General Services Administration C. Government Accounting Office (GAO) D. Health Care Financing Administration E. Immigration & Naturalization Service (includes border patrol) F. Internal Revenue Service (IRS) G. Interstate Commerce Commission H. Merit Systems Protection Board I. National Credit Union Association J. National Labor Relations Board K. Nuclear Regulatory Commission Answer:
sc_caseorigin	099	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. PERKINS v. STANDARD OIL CO. OF CALIFORNIA No. 1507. Decided June 23, 1970 Together with No. 1556, Perkins v. Standard Oil Co. of California, on petition for writ of certiorari to the same court. Per Curiam. Following his success in this Court in Perkins v. Standard Oil Co., 395 U. S. 642, the petitioner filed in the District Court for the District of Oregon an application for allowance of attorneys’ fees, pursuant to § 4 of the Clayton Act, for legal services performed during the appellate stages of that litigation, both in the Court of Appeals and in this Court. The District Court denied the application, ruling that § 4 did not authorize the allowance of attorneys’ fees for services performed in connection with appellate proceedings. Petitioner appealed this decision to the Court of Appeals and simultaneously filed in that court two separate applications for attorneys’ fees for legal services performed there and in this Court. The Court of Appeals denied the latter application, believing that our mandate in Perkins, by not mentioning attorneys’ fees, was intended to preclude an award of such fees. The District Court was in error in holding that § 4 does not authorize the award of counsel fees for legal services performed at the appellate stages of a successfully prosecuted private antitrust action. Both the language and purpose of § 4 make that construction untenable. See American Can Co. v. Ladoga Canning Co., 44 F. 2d 763, cert. denied, 282 U. S. 899. The amount of the award for such services should, as a general rule, be fixed in the first instance by the District Court, after hearing evidence as to the extent and nature of the services rendered. See, e. g., Osborn v. Sinclair Refining Co., 207 F. Supp. 856, 864. The Court of Appeals was also in error in interpreting our mandate as precluding the award of such fees for services performed in connection with the litigation in this Court. Our failure to make explicit mention in the mandate of attorneys’ fees simply left the matter open for consideration by the District Court, to which the mandate was directed. The petitions for certiorari are granted and the judgments are vacated. No. 1556 is remanded to the District Court, and No. 1507 to the Court of Appeals, for further proceedings consistent with this opinion. It is so ordered. Mr. Justice Harlan took no part in the consideration or decision of these cases. That section provides in pertinent part as follows: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States . . . and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” 38 Stat. 731, 15 U. S. C. § 15. Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:
songer_r_subst	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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. TELEPHONE ANSWERING SERVICE, INC., Defendant, Appellant, v. Arthur J. GOLDBERG, Secretary of the United States Department of Labor, Plaintiff, Appellee. No. 5677. United States Court of Appeals First Circuit. May 9, 1961. Robert E. Schneider, Jr., San Juan, P. R., for appellant. Bessie Margolin, Asst. Sol., Washington, D. C., with whom Harold C. Ny-strom, Acting Sol., Robert E. Nagle, Atty., Washington, D. C., and Kenneth P. Montgomery, Regional Atty., United States Department of Labor, San Juan, P. R., were on the brief, for appellee. Before MARIS, HARTIGAN and ALDRICH, Circuit Judges. MARIS, Circuit Judge. This is an appeal from a judgment of the United States District Court for the District of Puerto Rico, entered upon the suit of the Secretary of Labor of the United States as plaintiff, enjoining the defendant, Telephone Answering Service, Inc., from violating section 15 (a) (2) of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.A. § 215(a) (2). The following stipulated facts were found by the district court: The defendant is engaged in a telephone answering service in Santurce, Puerto Rico. It employs five switchboard operators who answer telephone calls to its various subscribers during the times specified by each subscriber, take messages left by callers, give callers whatever information the subscriber has instructed be given and later report all calls and messages to the subscriber. This service is accomplished by means of extensions from the subscribers’ telephones, which by arrangement with the Porto Rico Telephone Company are connected with the two switchboards operated by the defendant. Among the defendant’s 104 subscribers are three airlines, Delta, Caribbean Atlantic, and Iberia, each of which provides flights between Puerto Rico and overseas points. After the close of the airlines’ normal work day, the defendant’s switchboard operators answer all their calls giving information to individual inquirers and to travel bureaus on such matters as flight schedules, flight numbers, destinations of flights, times of departure and arrival and the number of seats available on the next day’s flights. All information received by the operators is later reported to the airlines. The defendant’s switchboard operators thus enable the three airlines to provide continuous tele- • phone answering service to the public •outside the normal work day. The defendant’s subscribers also include commission merchahts, manufacturers’ representatives, wholesalers, insurance companies and law and accounting firms. Its services for them include the receiving of overseas cables, which are read to the defendant's operators over the telephone by the cable companies, as well as calls from airlines, steamship and trucking companies regarding incoming and outgoing shipments of merchandise. The defendant’s operators also receive overseas calls for its subscribers, and in the case of station-to-station calls the operators may talk with the exchange operator at the point of origin, although they do not communicate directly with the person originating the call. In the representative month of August 1957, the defendant’s operators answered a total of 14 calls originating from outside Puerto Rico, which number represented 0.32% of all calls answered by them during that month. Of the total of 4,437 calls answered during that month by the defendant’s operators for its subscribers, 136 were calls to the airlines, 1,081 to commission merchants, manufacturers’ representatives and wholesalers; 117 to insurance companies, agents and adjusters; 239 to certified public accountants and the remaining calls were to miscellaneous subscribers, including lawyers, doctors, dentists, government agencies, engineers and publicity agencies. The defendant conceded that the wages paid its switchboard operators were less than those required under section 6 of the Act, 29 U.S.C.A. § 206, but contended that the operators do not come within the scope of the Act in that they are not engaged in commerce within the meaning of the Act. The defendant further contended that, even if its operators are held to be engaged in commerce its services nonetheless come within the exemption provided for a retail 'or service establishment under section 13(a) (2) of the Act, 29 U.S.C.A. § 213(a) (2). After a trial the district court found that the defendant’s switchboard operators are engaged in commerce within the meaning of the Act and that the retail or service establishment exemption does not apply to the defendant’s business. Accordingly, a judgment was entered enjoining violation of the wage and hour provisions of the Act. 183 F. Supp. 607. This appeal followed. On appeal the defendant contends that the district court erred in finding (1) that its switchboard operators are engaged in commerce within the meaning of the Act and (2) that its business is not a retail or service establishment within the exception provision. We consider first whether the district court erred in its conclusion that the defendant’s switchboard operators are employees engaged in commerce as that term is used in the Act. The Supreme Court has on many occasions observed that in considering this question there are no exact lines drawn nor precise formulas for the courts to follow and that in determining whether an employee is engaged in commerce within the meaning of the Act the activities of the individual employee and not the business of the employer is the controlling factor. Thus, in considering its scope in relation to a particular phase of industrial activity, the Act puts upon the courts the independent responsibility of applying the general terms of the statute to an infinite variety of complicated industrial situations. The test in determining whether an employee is engaged in commerce is not whether the employee’s activities affect or indirectly relate to interstate commerce but whether they are so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it rather than an isolated local activity. An employee is entitled to the protection of the Act even though his duties are partly intrastate and, therefore, only partly interstate for Congress has made no distinction on the basis of volume of business. The defendant argues that in finding that its switchboard operators were engaged in commerce in answering the calls for the three airlines the district court was wrong because the duties of the operators did not include other services rendered by the airlines. The defendant conceded, however, that its switchboard operators enabled the airlines to provide continuous telephone answering service to the public outside the normal work day. The fact that these duties were limited does not change their character. Surely no one could question that telephone operators working directly for these airlines are engaged in commerce In this regard the defendant’s operators perform a duty which is directly and vitally related to the functioning of these interstate carriers. The defendant also urges that the district court erred in concluding that the work of the operators, in handling cables and overseas calls for commission merchants, manufacturers’ representatives, wholesalers and insurance firms, was of such a character that it also was directly concerned in the practical operation of interstate commerce. We think that the court was right in so holding. It is settled that a telephone operator, in performing duties involving calls to steamship companies relating to goods ordered in the interstate business of the employer is engaged in commerce. The few courts which have had occasion to deal with the classification of employees of telephone answering services have held that these employees are engaged in commerce within the purview of the Act. The fact that the amount of work performed by the operators which was within the purview of the Act was small in relation to the total amount of their work does not mean that it may be disregarded as de minimis. For the operators performed in full in the regular course of business all the work of this nature which the defendant had undertaken to perform for its subscribers. The fact that the services thus rendered formed only a small part of the defendant’s total business is not determinative. Nor is there substance to the defendant’s argument that the operators’ activities in taking the overseas calls and cables for subscribers other than the airlines are not in commerce because the operators do not answer the calls but merely relay them to the subscribers who themselves make the calls or answer the cables. We think that the situation is somewhat analagous to that of a warehouse in which the movement of goods in interstate commerce pauses when the goods are on their way to the recipients. So here, while the delivery of the message is temporarily interrupted by the defendant’s operator, her activity assures its ultimate delivery to the desired recipient. Thus commerce is directly facilitated. We conclude that the district court did not err in finding the switchboard operators were engaged in commerce within the meaning of the Act. We come, then, to the defendant’s second contention, namely, that even if the Act does apply to its switchboard operators as employees engaged in commerce, nonetheless, section 13(a) (2) of the Act as amended, 29 U.S.C.A. § 213(a) (2), which exempts certain retail or service establishments, is applicable to its business operations. Section 13 (a) (2), which is referred to by the Supreme Court in Arnold v. Ben Kanowsky, Inc., 1960, 361 U.S. 388, 391, 80 S.Ct. 453, 4 L.Ed.2d 393, as a “three-part definition” provides in effect that any employee employed by a “retail or service establishment” is to be exempt (1) if more than 50% of the establishment’s annual dollar volume of sales of goods or services is made within the State, (2) if 75% of its annual volume of sale of goods or services is not for resale and (3) if 75% of its annual volume of sales of goods or services is recognized in the particular industry as retail sales or services. In the Arnold case the Supreme Court cautioned that: “We have held that these exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit. The three conditions of § 13(a) (2) are explicit prerequisites to exemption, not merely suggested guidelines for judicial determination of the employer’s status.” 361 U.S. 388, 392, 80 S.Ct. 453, 456. With respect to the type of service establishment contemplated by section 13(a) (2) it was said in Fleming v. A. B. Kirschbaum Co., 3 Cir., 1941, 124 F.2d 567, 572-573, affirmed Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638: “ * * * it is fair to infer that the type of establishment meant is that which has the ordinary characteristics of a retail establishment except that it sells services instead of goods. In other words it is an establishment the principal activity of which is to furnish service to the consuming public. Typical retail establishments are grocery stores, drug stores, hardware stores and clothing shops. In Wood v. Central Sand & Gravel Co., D.C.W.D. Tenn.1940, 33 F.Supp. 40, 47, the court suggested as illustrations of what Congress meant by service establishments ‘barber shops, beauty parlors, shoe-shining parlors, clothes pressing clubs, laundries, automobile repair shops.’ We think these illustrations apt.” Considering this problem in a different factual situation this court in Aetna Finance Company v. Mitchell, 1 Cir., 1957, 247 F.2d 190, 192, stated that “in a broad sense, every business might be said to perform a ‘service’, yet * * no one would seriously urge that all types of businesses were eligible to be exempt as ‘service establishments’ under § 13(a) (2).” We reviewed the restrictive interpretation given section 13 (a) (2) by the Administrator of the Wage and Hour Division and his observation that “one should be cautious in attempting to stretch the exemptions of section 13(a) (2) so as to cover cases which were not patently intended to be included or which could have been designated easily and accurately in a specific exemption.” The conclusions reached in the Aetna case were upheld by the Supreme Court in Mitchell v. Kentucky Finance Co., 1959, 359 U.S. 290, 79 S.Ct. 756, 3 L.Ed.2d 815. In the present case the district court found that the evidence, while not clear, tended to support the defendant’s contentions in respect to the first two conditions and that finding is not controverted here. The court found, however, that the preponderance of the evidence did not support the defendant’s contention that it also qualified under the third requirement, namely, industry recognition of its services as retail services. The defendant argues that the district court erred in this regard because, as the defendant contends, it had established by a preponderance of un-contradicted expert testimony that it is recognized in the telephone answering industry as rendering a retail service, and that its classification by the municipality as a local business which is subject to municipal license tax, 21 L.P. R.A. § 622, is further evidence of its character. To prove that its services are recognized as retail the defendant called three witnesses who testified that on the basis of their experience and opinion they would classify the defendant’s service business as retail. The plaintiff called one witness who testified that, on the basis of his opinion and the use of the term “retail” in an industrial classification, telephone answering services are within the category of services traditionally considered to be lacking in any retail concept. As we have said, the district court found that the preponderance of this evidence did not support the defendant’s contention. The court had the witnesses before it, observed their demeanor and evaluated their testimony. We cannot say that the conclusion to which it came was clearly erroneous. The case of Mahoney v. Mahoney, D.C. Tenn.1960, 186 F.Supp. 636, which was decided subsequently to the decision of the district court in the case before us, and which also involved a telephone answering service, is distinguishable on its facts. For in that case the only witness produced testified that a telephone answering service is recognized in the industry as being comparable to retail sales. Largely on the basis of that evidence the court felt compelled to conclude that the defendant’s business was an exempt service establishment. The evidence in the present case does not compel that conclusion. The defendant further contends that the classification by the municipality of its business as local for license tax purposes is persuasive evidence that it should be considered one of the class of establishments which renders a retail service. The district court took this fact into consideration but did not find it so. We agree with the district court. It is well settled that an enterprise is not free from federal regulation simply because it may be subject to taxation by a State or its subdivisions. But a classification made by a State or its subdivisions for such purposes is not binding upon Congress and, indeed, in this instance cannot affect the classification which that body has itself made for wholly different purposes. We are satisfied that the court did not err in holding that the defendant’s business is not entitled to exemption from the Act as a service establishment. The judgment of the district court will be affirmed. . The pertinent provisions of § 3 of the Fair Labor Standards Act are: “(b) ‘Commerce’ means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof.” 29 U.S.C.A. § 203(b). . Kirschbaum Co. v. Walling, 1942, 316 U.S. 517, 524, 62 S.Ct. 1116, 86 L.Ed. 1638; Walling v. Jacksonville Paper Co., 1943, 317 U.S. 564, 571-572, 63 S.Ct. 332, 87 L.Ed. 460; Mitchell v. C. W. Vollmer & Co., 1955, 349 U.S. 427, 429, 75 S.Ct. 860, 99 L.Ed. 1196; Mitchell v. Lublin, McGaughy & Ass’n, 1959, 358 U.S. 207, 211-212, 79 S.Ct. 260, 3 L.Ed. 2d 243. . Kirschbaum Co. v. Walling, 1942, 316 U.S. 517, 523, 62 S.Ct. 1116, 86 L.Ed. 1638. . Compare McLeod v. Threlkeld, 1943, 319 U.S. 491, 497, 63 S.Ct. 1248, 87 L.Ed. 1538; 10 East 40th St. Co. v. Callus, 1945, 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806; Borden Co. v. Borella, 1945, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865; Mitchell v. C. W. Vollmer & Co., 1955, 349 U.S. 427, 429, 75 S.Ct. 860, 99 L.Ed. 1196; Mitchell v. H. B. Zachry Co., 1960, 362 U.S. 310, 80 S.Ct. 739, 4 L.Ed.2d 753. . Mabee v. White Plains Pub. Co., 1946, 327 U.S. 178, 181, 66 S.Ct. 511, 90 L.Ed. 607. . Compare Airlines Transp. v. Tobin, 4 Cir., 1952, 198 F.2d 249. . Durkin v. Joyce Agency, D.C.Ill.1953, 110 F.Supp. 918, 923, affirmed Mitchell v. Joyce Agency, 1955, 348 U.S. 945, 75 S.Ct. 436, 99 L.Ed. 740; Sucrs. de A. Mayol & Co. v. Mitchell, 1 Cir., 1960, 280 F.2d 477, 481, certiorari denied 364 U.S. 902, 81 S.Ct. 235, 5 L.Ed.2d 195. . Schmidt v. Peoples Telephone Union of Maryville, Mo., 8 Cir., 1943, 138 F.2d 13; Tobin v. Lambert, D.C.Utah 1952, 22 Labor Cases par. 67, 129; Bloemer v. Ezell, D.C.Ky.1953, 112 F.Supp. 814; Mitchell v. Bearden, D.C.Tenn.1957, 32 Labor Cases par. 70, 538; Elsis v. Evans, 1958, 157 Cal.App.2d 399, 417, 321 P.2d 514, 526; Mahoney v. Mahoney, D.C.Tenn.1960, 186 F.Supp. 636, 637. . Mabee v. White Plains Pub. Co., 1946, 327 U.S. 178, 181, 66 S.Ct. 436, 99 L.Ed. 740; Skidmore v. John J. Casale, Inc., 2 Cir., 1947, 160 F.2d 527, certiorari denied 331 U.S. 812, 67 S.Ct. 1205, 91 L.Ed. 1832; Crook v. Bryant, 4 Cir., 1959, 265 F.2d 541. . Walling v. Jacksonville Paper Co., 1943, 317 U.S. 564, 567-568, 63 S.Ct. 332, 87 L.Ed. 460; Sucrs. de A. Mayol & Co. v. Mitchell, 1 Cir., 1960, 280 F.2d 477, 480, certiorari denied 364 U.S. 902, 81 S.Ct. 235, 5 L.Ed.2d 195. . “Exemptions “Sec. 13. (a) The provisions of sections 6 and 7 shall not apply with respect to * * * (2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located. A retail or service establishment shall mean an establishment 75 per centum of whose annual dollar volume of sale of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry; * * 29 U.S. O.A. § 213(a) (2). . The Kirschbaum case involved section 13(a) (2) as it stood before its amendment by the Act of October 26, 1949, sec. 11, 63 Stat. 917. We think it is equally applicable to the meaning of “service establishment” in the section as amended, however. . Kirschbaum v. Walling, 1942, 316 U.S. 517, 521, 62 S.Ct. 1116, 86 L.Ed. 1638; Overstreet v. North Shore Corp., 1943, 318 U.S. 125, 132, 63 S.Ct. 494, 87 L.Ed. 656. Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number. Answer:
songer_counsel1	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party UNITED STATES of America, Petitioner, v. Jack B. WEINSTEIN, United States District Judge, Respondent. No. 609, Docket 74-2595. United States Court of Appeals, Second Circuit. Argued Jan. 6, 1975. Decided Jan. 30, 1975. Edward R. Korman, Chief Asst. U. S. Atty. (David G. Trager, U. S. Atty. for the Eastern District of New York, Brooklyn, N. Y., of counsel), for petitioner. Louis Lusky, New York City, for respondent. Michael E. Tigar, Washington, D. C. (Williams, Connolly & Calif ano, Washington, D. C., of counsel), amicus curiae urging denial. Before KAUFMAN, Chief Judge, and FEINBERG and MANSFIELD, Circuit Judges. MANSFIELD, Circuit Judge: Pursuant to 28 U.S.C. § 1651 the Government seeks a writ of mandamus directing United States District Judge Jack B. Weinstein (“respondent”) to vacate orders entered by him in November 1974, United States v. Lockwood, 386 F.Supp. 734 (E.D.N.Y.) requiring the Government to produce the Selective Service files of 23 delinquent registrants who have failed to appear in criminal proceedings pending against them. Judge Weinstein ordered that the files be made available for discovery and inspection by an attorney appointed by him to represent the fugitive defendants without their authority and by another attorney appearing as amicus curiae. Since the purpose of the court-initiated discovery was to determine whether motions might be made by the court-appointed representative for dismissal of the indictments, the Government also seeks an order barring respondent from entertaining such motions. We agree with the Government that the respondent lacks the power to order the Government to make the discovery directed by him and that, absent consent by the defendants, the court-appointed counsel lacks authority to represent them. Accordingly, the petition is granted. On September 10, 1974, respondent on his own initiative entered an order declaring that the defendants in some 26 Selective Service criminal cases pending before him were allegedly fugitives without representation. He took judicial notice that the President and Congress were considering some form of amnesty for fugitives in such cases, which might affect their rights. Without notice to the Government or to the defendants he thereupon appointed Professor Louis Lusky of the Columbia University School of Law to represent the defendants. Upon learning of the order the Government advised the court that, if the fugitive defendants should return to the United States, it would be willing to cooperate in the handling of the charges against them in a manner consistent with the formulation of new guidelines for such cases, but that in its opinion the court’s order was invalid. Following a short stay, respondent held a hearing and within a few hours filed a memorandum decision and order upholding his earlier ex parte order. His memorandum decision took the view that fugitive cases were artificially inflating the caseload of the court and the prosecutor. In order to guarantee “prompt disposition” of these cases he proposed to call them up in accordance with the practice followed by him in the handling of fugitive cases, which was to determine whether the Government was making reasonable efforts to apprehend the fugitives, whether the public or the defendants were being prejudiced by the delay, and whether the indictments should not be dismissed. Respondent did not state the manner in which the fugitive defendants (or, for that matter, anyone else) might be prejudiced by the pendency of the Selective Service indictments other than to suggest that the President’s Amnesty Proclamation, characterized by respondent as a “pretrial diversion or deferred prosecution scheme,” might present an unfair choice to guiltless defendants since some of the indictments might turn out to be “invalid” and the President’s proposal might subject innocent defendants to pressure to accept the Amnesty Plan “alternative service” rather than face trial. However, respondent did not suggest that, if a fugitive should return to the jurisdiction, he could not obtain a fair trial in which, if the Government should fail to prove its case beyond a reasonable doubt, the defendant would be acquitted. Respondent therefore proposed to “screen” the Selective Service cases in question to determine whether some or all might be dismissed on the basis of defenses disclosed by the Selective Service files. Toward that end, notwithstanding the defendants’ absence as fugitives from the jurisdiction and their failure to authorize any such action to be made on their behalf, respondent denied the Government’s motion to set aside his September 10, 1974, order. In proposing to proceed without the presence or authorization of the defendants to decide motions that might be made by respondent’s appointee on their behalf, respondent relied upon decisions upholding the court’s power, pursuant to Rule 12(b)(2), F.R.Cr.P., sua sponte to dismiss an indictment appearing insufficient on its face and to dispense with the defendants’ presence upon hearing pretrial motions. However, no authority was cited for the proposition that a trial court might, without a defendant’s presence or consent, make an evidentiary disposition of a criminal case upon motion of an attorney acting without the defendant’s knowledge or consent. Having appointed Professor Lusky to represent the fugitive defendants, respondent proposed to entertain motions on their behalf to dismiss the indictments on the ground that the defendants had been denied a prompt trial in violation of the defendants’ Sixth Amendment rights, even though prompt trials had been rendered impossible by the defendants having fled the jurisdiction and their never having sought a trial. When the Government submitted affidavits attesting to the fugitive status of 23 of the defendants and the Government’s good faith efforts to locate and arrest them, respondent denied the motions of his appointed representative, Professor Lusky, to dismiss the indictments for lack of a speedy trial. However, while apparently unable to find the indictments defective on their face, respondent accepted the suggestion of an amicus curiae, Michael Tigar, Esq., that Professor Lusky be permitted to inspect the defendants’ Selective Service files with a view to determining whether motions might lie to dismiss the indictments on the basis of defenses appearing in the files. When the Government objected on the ground that the court lacked the power to direct such discovery, respondent ordered that the files be turned over to him so that he might make copies available to Professor Lusky and Mr. Tigar. The Government, while refusing to turn over the files for inspection by Messrs. Lusky and Tigar, advised respondent that it was willing to provide a copy of each defendant’s file to the defendant or his authorized representative. On November 26, 1974, respondent granted the Government’s request for a 14-day stay pending its filing of the present petition, which was lodged on December 9, 1974. DISCUSSION The extraordinary writ of mandamus, which is rarely granted in civil cases, is even less frequently issued in criminal proceedings, principally because of policy reasons based upon the defendant’s rights under the Speedy Trial and Double Jeopardy provisions of the Constitution. Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967). Use of the writ as a substitute for appeal or as a means of circumventing the Criminal Appeals Act is barred. Id. pp. 96-97, 88 S.Ct. 269; United States v. Weinstein, 452 F.2d 704 (2d Cir. 1971), cert. denied sub nom. Grunberger v. United States, 406 U.S. 917, 92 S.Ct. 1766, 32 L.Ed.2d 116 (1972). However, in the unusual case where a district judge has clearly exceeded his powers the petition for a writ of mandamus may be granted, see, e. g., United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947); Ex parte United States, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283 (1932); Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916); United States v. Mayer, 235 U.S. 55, 35 S.Ct. 16, 69 L.Ed. 129 (1914); United States v. Dooling, 406 F.2d 192, 198-199 (2d Cir.), cert. denied sub nom. Persico v. United States, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969); United States v. Lasker, 481 F.2d 229 (2d Cir. 1973), cert. denied, 415 U.S. 975, 94 S.Ct. 1560, 39 L.Ed.2d 871 (1974); United States v. Weinstein, supra, even with respect to an interlocutory procedural order, United States v. Carter, 493 F.2d 704 (2d Cir. 1974); Hilbert v. Dooling, 476 F.2d 355 (2d Cir.) (en banc), cert. denied, 414 U.S. 878, 94 S.Ct. 56, 38 L.Ed.2d 123 (1973). We believe this to be one of those rare, sui generis cases in which unique circumstances require that the writ be granted. For reasons noted below, we are satisfied that the district judge has clearly exceeded his powers. Issuance of the writ will not affect any defendant’s constitutional right to a speedy trial, since each is a long-time fugitive who has not sought trial but, on the contrary, by fleeing the jurisdiction, has prevented his case from being brought promptly to trial. Should the indictments be dismissed for failure to comply with the discovery order, the Government is not assured of the right to appeal under 18 U.S.C. § 3731. Indeed such an appeal would probably not lie with respect to those cases in which the indictment was filed prior to January 2, 1971, when § 3731 in its present form was enacted, see United States v. Apex Distrib. Co., 270 F.2d 747 (9th Cir. 1959) (en banc), and there is the risk that the Government might be precluded on double jeopardy grounds from appealing dismissals based on' facts not appearing on the face of the indictments, see United States v. Jenkins, 490 F.2d 868 (2d Cir. 1973), cert. granted, 417 U.S. 908, 94 S.Ct. 2603, 41 L.Ed.2d 211 (1974); United States v. Velazquez, 490 F.2d 29 (2d Cir. 1973) (dissenting opinion of Chief Judge Kaufman); Note, Government Appeals of “Dismissals” in Criminal Cases, 87 Harv. L.Rev. 1822 (June 1974). Turning to the merits, we are satisfied that respondent lacks statutory or inherent power to enter the order challenged by the Government. None of the rules relied upon by respondent supports his action. Rule 16(b), F.R.Cr.P., is unavailing since it authorizes discovery of documentary evidence only upon the defendant’s motion and no fugitive defendant in the present case has authorized Professor Lusky to act as his counsel, much less to file such a motion on his behalf. Similarly Rule 17 permits the issuance of a subpoena only upon the request of a “party,” which has not been made here. Rule 12(b)(2), which authorizes the court to notice “lack of jurisdiction or the failure of the indictment or information to charge an offense,” is limited in scope. See, e. g., Hughes v. Thompson, 415 U.S. 1301, 94 S.Ct. 829, 39 L.Ed.2d 93 (1974). It does not authorize action of the type undertaken by respondent, such as a court-initiated discovery designed to uncover evidence of non-jurisdictional defenses not appearing on the face of the indictment, which might then become the subject of unauthorized motions to dismiss, even though such defenses may be waived if not raised by the defendants, see, e. g., United States v. Sisson, 399 U.S. 267, 301, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1969); United States v. Sandbank, 403 F.2d 38, 40 (2d Cir. 1968), cert. denied, 394 U.S. 961, 89 S.Ct. 1301, 22 L.Ed.2d 562 (1969). Assuming that the Selective Service files were introduced as exhibits before the Grand Jury which filed indictments against the fugitive defendants, Rule 6(e), F.R.Cr.P., which permits disclosure of matters occurring before the Grand Jury “only when so directed by the court,” was not designed as an authorization for pretrial discovery. Its purpose, on the contrary, is to protect the secrecy of the Grand Jury proceedings by restricting disclosure to the exceptional case where a particularized need is shown. Since Selective Service files are confidential in nature, see United States v. Weintraub, 429 F.2d 658, 661 (2d Cir. 1970), cert. denied, 400 U.S. 1014, 91 S.Ct. 572, 27 L.Ed.2d 627 (1971); United States v. Strayhorn, 471 F.2d 661, 665 n.4 (2d Cir. 1972); 32 C.F.R. § 1608.-2, they should not be disclosed to persons other than the government officials concerned or to the defendant or his authorized representative. Neither Prof. Lusky nor Mr. Tigar has been authorized by the defendants to inspect their respective files. In any event the indictments are “not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence.” United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974). Nor can support for respondent’s action be found in Rule 48(b), which permits the court on its own motion to dismiss an indictment, information or complaint “if there is unnecessary delay in bringing a defendant to trial.” Aside from the fact that the delay here is attributable to the defendants’ flight, the Selective Service files would not be probative on the issue of a delay that must necessarily have occurred after the action taken by the local Selective Service hoards. Lastly respondent’s action cannot be analogized to the appointment of counsel to represent absent or legally incompetent persons in civil proceedings. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In such proceedings the judgment of the court is binding on the absent or incompetent party, provided due process requirements are satisfied, whereas in a criminal proceeding any action taken by the court at the behest of a representative appointed without the defendant’s knowledge or consent could not bind the fugitive defendant. While a defendant may waive his own presence at a hearing of pretrial motions in a criminal case, see Rule 43, F.R.Cr.P., the attorney moving on his behalf must at least have been authorized by the defendant to act as his counsel in the case. None of the decisions cited by respondent supports the proposition that the court may act upon a motion by an unauthorized attorney appointed by the court itself. The absence of any statutory or inherent authority for district court action of the type taken by respondent is not surprising. The challenged orders violate a fundamental premise underlying our method of administering justice. Ours is essentially an adversarial, not an inquisitorial, system. Whatever may be the judge’s role in countries governed by a system of Civil Law, where the judge may by custom engage in investigative or prosecutorial activities, we have chosen to administer justice through courts which are limited to the adjudication of cases and controversies in an adversarial setting. See Art. III, U. S. Constitution; Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). With rare exceptions a federal court is not authorized to act sua sponte; an adversarial interest is essential. Jenkins v. McKeithen, 395 U.S. 411, 423, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). Although district judges possess the power to issue writs “in aid of their respective jurisdictions and agreeable to the usages and principles of law,” 28 U.S.C. § 1651, no usage or custom exists that permits a judge to appoint himself or a stranger as the representative of a defendant who has fled the jurisdiction in order to avoid facing criminal charges, at least without the fugitive’s authority or consent. Indeed, controlling precedent is to the contrary. The flight of a defendant for the purpose of avoiding prosecution or punishment “disentitles [him] to call upon the resources of the Court for determination of his claims,” Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 499, 24 L.Ed.2d 586 (1970); see Bonahan v. Nebraska, 125 U.S. 692, 8 S.Ct. 1390, 31 L.Ed. 854 (1887); United States v. Sperling, 506 F.2d 1323 (2d Cir. 1974), Slip Opin. 5637, 5673 n.33; Dawkins v. Mitchell, 141 U.S.App.D.C. 213, 437 F.2d 646 (1970); People v. Genet, 59 N.Y. 80 (1874). Moreover, at one time the penalty for failure to appear could be an order outlawing the defendant. See Chitty, A Practical Treatise on the Criminal Law (1819 ed.), p. 284. The administration of justice is not served by the court’s unilateral effort to activate the defense of a criminal case in which prosecution has been frustrated by the defendant’s flight from the jurisdiction. In the present cases, for instance, the dormant files are mere statistics which do not preclude the active prosecution of hundreds of other pending viable criminal cases against persons located within the jurisdiction. Nor should the pendency of indictments against fugitives who may be innocent inhibit them from returning to the jurisdiction or coerce them into the performance of alternate service under an amnesty plan. The remedy of a guiltless fugitive, assuming some of the defendants may be so classified, is to avail himself of his Sixth Amendment right to a speedy and public trial, with all the constitutional guarantees associated with it. The Government’s failure to prove guilt beyond a reasonable doubt will then lead to his acquittal. In the meantime, no public interest is served by proceeding without his consent or authorization. For the foregoing reasons the petition is granted. A writ will accordingly issue directing respondent (1) to vacate the orders entered by him on November 1, 21 and 26, 1974, ordering that the Selective Service files of each of the above-named 23 fugitive defendants be made available for disclosure to and inspection by Professor Louis Lusky and Michael E. Tigar, Esq., without authority from the defendant whose file is sought, and (2) to cease entertaining motions on behalf of any of the 23 defendants raising non-jurisdictional defenses to the indictments against such defendants, without authority from the defendant or defendants to act on their behalf. We should make it clear that we do not intend to preclude Judge Weinstein from entertaining motions on behalf of fugitive defendants who have agreed that Professor Lusky or any other attorney represent them. Compare In re Federal Public Defender (D.Ore.1974) (tentative appointment of lawyer under Criminal Justice Act for fugitive Selective Service defendants, subject to their agreement to be represented and their showing of eligibility under the Act). . United States v. David Arthur Lidov — 68 Cr. 67; United States v. Michael Rosenbaum — 68 Cr. 204; United States v. Barry Lawrence Friedman —69 Cr. 54; United States v. Alan Stephen Dorn — 69 Cr. 57; United States v. Arthur Marc Campus — 69 Cr. 182; United States v. Maurice A. Henry — 71 Cr. 1338; United States v. James Ralph Blumer — 72 Cr. 478; United States v. Thomas Martin Austin — 72 Cr. 494; United States v. Ronald Edward Territo— 72 Cr. 622; United States v. Paul Parker — 72 Cr. 739; United States v. Sidney E. Salzmann — 72 Cr. 740; United States v. Charles Penn Sleeth — 72 Cr. 757; United States v. Alvin Marris Higgs — 72 Cr. 780; United States v. Robert Richard Perez. — 11 Cr. 803; United States v. Albert Antonio Martinez— 72 Cr. 810; United States v. Edward James Luerssen— 72 Cr. 824; United States v. Michael David Frazier — 72 Cr. 834; United States v. Thomas John Collura — 72 Cr. 1028; United States v. James Thomas Bezousek— 72 Cr. 1290; United States v. Paul Estremera — 72 Cr. 1291; United States v. Lester Patrick Nolan — 73 Cr. 41; United States v. Michael David Powers — 73 Cr. 126; United States v. Kenneth Paul Albanese— 73 Cr. 132. On January 27, 1975, the Government advised that it no longer seeks relief with respect to defendant Paul Estremera, 72 Cr. 1291, for the reason that, upon being extradited to the United States on other charges, Estremera appointed Jesse Berman, Esq., to represent him in lieu of Professor Lusky, and the Government proposed to turn over his Selective Service file to Mr. Berman for review. . One of the 26 cases in which respondent’s orders were entered has beén terminated by reason of the defendant’s death (United States v. Lockwood, Cr. 43456 (1954)). The Government has moved to dismiss two others, one because of the inadvertent destruction of the defendant’s Selective Service file (United States v. Wilson, 69 Cr. 155) and the other because the defendant’s induction order had been improperly accelerated on account of his failure to complete and return a form claiming conscientious objector classification (United States v. Dewey, 66 Cr. 456). Thus the number of cases was reduced to 23 by the time the present petition was filed. . Although Judge Weinstein did say “Efficiency rather than fairness may result in the ‘relaxation of standards of evidence and a presumption of guilt.’ See R. W. Balch, Deferred Prosecution: The Juvenilization of the Criminal Justice System, 38 Federal Probation 46, 50 (June 1974),” we do not construe this as meaning that the Government would be relieved of its usual burden of proof. . The Government has supplied Professor Lusky and Mr. Tigar with the last known addresses of each of the defendants. Upon oral argument Professor Lusky advised that he had communicated with the defendants and expected to be retained by some of them. . In any event it is questionable whether Rule 6(e) applies to documents marked as exhibits before the Grand Jury. Cf. United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960). . Section 1608.2 provides in pertinent part that the “records in a registrant’s file and the information contained in such records shall be confidential.” The regulation appears to have the force and effect of law, see Paul v. United States, 371 U.S. 245, 255, 83 S.Ct. 426, 9 L.Ed.2d 292 (1963); United States v. Short, 240 F.2d 292, 298 (9th Cir. 1956). . Molinaro was presaged by Justice Frankfurter’s dissenting opinion in Eisler v. United States, 338 U.S. 189, 192, 69 S.Ct. 1453, 93 L.Ed. 1897 (1949), to the effect that Eisler’s flight from the United States deprived the Court of jurisdiction. “Since the Court is without power effectively to decide against him, it is without power to decide at all.” . Respondent erroneously suggests that, because a large proportion of Selective Service indictments have been dismissed, the indictments which are the subject of his orders may be vulnerable to dismissal on the ground that they “will not be supported by the record.” However, the vast majority of such dismissals are attributable to the Government s adherence to a policy of consenting to dismissal upon a defendant s compliance with an order to report for induction or alternative civil work. Hearings before Subcommittee on Administrative Practice and Procedure of the Committee on the Judiciary, 92nd Cong., 2d Sess. p. 396 (1972). The percentage of dismissals because of such compliance with induction orders in the Eastern District of New York is estimated at 85-90%. . indeed, should a defendant’s Selective Service file reveal undisputed facts constituting a valid defense to a charge of failure to report for induction, he might seek a dismissal or judgment of acquittal by moving under Rule 12(b)(4), F.R.Cr.P. Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_procedur	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. B. SIEGEL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 80-1557. United States Court of Appeals, Sixth Circuit. Argued Dec. 17, 1981. Decided Jan. 28, 1982. Timothy K. Carroll, Dykema, Gossett, Spencer, Goodnow, & Trigg, Detroit, Mich., for petitioner. Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., James Callear, Bernard Gottfried, Director Region 7, N.L.R.B., Detroit, Mich., for respondent. Before MERRITT and MARTIN, Circuit Judges, and PHILLIPS, Senior Circuit Judge. PER CURIAM. The B. Siegel Company petitions for review of a National Labor Relations Board order directing it to bargain with the Retail Store Employees’ Union, Local 876, United Food and Commercial Workers International Union, AFL-CIO-CLC. The NLRB cross-petitions for enforcement of its bargaining order and bargaining unit certification. The principal issues before us concern the appropriateness of the bargaining unit certified by the NLRB, and accordingly, whether B. Siegel’s refusal to bargain with its employee certified representative violates sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. The company operates seven retail women’s apparel shops in Detroit, Michigan. In June and July of 1979, the union filed three election petitions with the Board, asking for separate elections at the company’s Dear-born, Livernois, and Woodward Avenue stores. The petitions called for three distinct bargaining units, consisting of all full- and part-time employees at each store. The company opposed the petitions, contending that an appropriate bargaining unit must include all seven stores and the company’s central office. After a hearing and a refusal to reconsider, the Board approved the single-store bargaining units and directed three elections. The union won these elections, and the company has refused to bargain with the certified union. The company now appeals, contending that the Board abused its discretion by certifying three separate bargaining units. The company argues that the Board disregarded facts which compel recognition of a company-wide bargaining unit. First, the company points to the geographic proximity of its stores. All seven stores and the central office are within an eighteen-mile radius. Second, the company’s organizational structure is highly centralized. Management at the central office controls all aspects of merchandising, shipping and receiving, credit and accounting, advertising, data processing, and personnel and employee benefits throughout the network of stores. All supplies are purchased and distributed centrally. Each store must report to the central office daily. Representatives visit each store frequently, often unannounced. Third, authority over matters of personnel and labor relations rests exclusively with Mr. Levine, the company’s Personnel Director. He controls the number of employees in each store, while the Controller establishes the maximum number of man-hours permitted. Individual store managers have no authority to hire personnel: hiring is the concern of the central office only. Similarly, no store manager has the authority to fire an employee. Although a store manager may suggest initial wage rates, the central office ultimately decides the wage each new employee will receive. All raises or salary adjustments are subject to Mr. Levine’s review and approval. New employees are first trained by Levine’s staff. Finally, the central office establishes all fringe benefits, which apply uniformly to all stores. Fourth, the company relies on a history of employee transfers from store to store. Company records indicate that 32 current employees have transferred from one store to another at least once. The company frequently transfers employees between stores temporarily, for special sales, holidays, and inventory compilation. The selection of an appropriate bargaining unit lies largely within the Board’s discretion. Our review is limited to the question whether the Board’s determination was arbitrary or capricious. It is not our responsibility to determine whether the Board certified the best bargaining unit possible. The Union Savings and Trust Co. v. N.L.R.B., 643 F.2d 1249 (6th Cir. 1981); Meijer, Inc. v. N.L.R.B., 564 F.2d 737 (6th Cir. 1977). However, in Wayne Oakland Bank v. N.L.R.B., 462 F.2d 666 (6th Cir. 1972), we recognized that we would not hesitate to disapprove a single store bargaining unit in a retail context if the evidence showed centralized control over the principal aspects of operations and employee relations. In our view, the evidence supports the NLRB’s findings that the separate stores are sufficiently autonomous to comprise individual bargaining units. The store managers are more closely involved in employees’ daily work than are central office personnel. The manager schedules working hours, and handles schedule complaints. The manager enforces all company rules and policies, and reports infractions. The local manager also evaluates employees and recommends wage increases and promotions. The record convinces us that store managers have discretion to act unilaterally in areas of daily importance to employees. Reviewing the facts as the Board did, we conclude that substantial evidence supports its findings. The company has no history of collective bargaining, and no other union seeks broader representation. On this basis, we find N.L.R.B. v. Chicago Health & Tennis Clubs, Inc., 567 F.2d 331 (7th Cir. 1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978), distinguishable. The Board did not abuse its discretion by concluding that separate stores are appropriate bargaining units. The company has admitted that it refused to bargain with the union. It therefore violated sections 8(a)(5) and (1) of the Act. We find no merit in the other contentions raised. Accordingly, we grant enforcement of the Board’s order in full. . The Board’s opinion is found at 250 N.L.R.B. No. 112. 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_constit	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. Daniel UNTERMYER, Plaintiff-Appellant, v. Donald HELLBUSH, San Mateo County Probation Officer, Defendant-Appellee. No. 72-2422. United States Court of Appeals, Ninth Circuit. Jan. 2, 1973. Paul K. Robertson, Palo Alto, Cal., for plaintiff-appellant. Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Robert R. Grannuchi, Karl S. Meyer, Deputy Attys. Gen., San Francisco, Cal., for defendant-appellee. Before HAMLEY, KOELSCH, and WRIGHT, Circuit Judges. PER CURIAM: Appellant sought a writ of habeas corpus, attacking his conviction in the California state court for possession of marijuana. The district court denied the petition and, on this appeal, we affirm that disposition. Appellant was given a suspended sentence by the state court judge and is now on probationary status. Appellant was stopped in a motor vehicle by a local police officer in Ather-ton, California. Marijuana was discovered in the vehicle, the officer seeing it in plain view. Untermyer here contests only the constitutionality of the initial stop, contending that the marijuana subsequently discovered should have been suppressed as the fruit of that stop. Late in November, at 11:00 p.m., the police officer was patrolling in a residential area in which burglaries had recently been committed. He saw a small foreign car, darkened, parked in front of a darkened home. Appellant was walking from the house to the car. As the officer approached, appellant entered on the passenger side of the vehicle, and the car drove ahead 25 to 30 feet before the headlights were turned on. After following in his patrol car for a quarter of a mile, the officer stopped appellant’s car. The reason given by the officer for the stop was that his suspicions had been aroused by the circumstances related above and he stated that his intention was to identify the occupants of the vehicle. On these facts, the district court determined that the police stop of the car did not constitute arbitrary or harassing action. The court correctly stated the rule in this circuit: “The standard applicable under the Fourth Amendment to vehicle ‘stops’ by police for investigatory purposes, as distinguished from the more rigorous probable cause standard applicable to an arrest, is whether the ‘stop’ is based on a founded suspicion.” Our statement of the rule in Wilson v. Porter, 361 F.2d 412, 415 (9th Cir. 1966) has since been reaffirmed since the Supreme Court’s decisions in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). The Supreme Court has concluded that the Terry standard is no different from our own. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). In that case, the Court said: “A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Adams at 146, 92 S.Ct. at 1923. The unusual circumstances and appellant’s unusual conduct were such as to lead the local police officer “reasonably to conclude in light of his experience that criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). Affirmed. Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant? A. Issue not discussed B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant D. The resolution of the issue had mixed results for the appellant and respondent Answer:
songer_respond2_7_5	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). SILVER SPRINGS PARADISE CO. v. RAY et al. No. 6120. Circuit Court of Appeals, Fifth Circuit. June 1, 1931. Rehearing Denied July 6, 1931. Henry P. Adair, of Jacksonville, Fla., Robert L. Anderson, Jr., of Ocala, Fla., and John M. MeNatt, of Jacksonville, Fla. (R. L. Anderson, Jr., of Ocala, Fla., H. P. Adair, of Jacksonville, Fla., Anderson & Anderson, of Ocala, Fla., and Knight, Adair, Cooper & Osborne, of Jacksonville, Fla., on the brief), for appellant. H. L. Anderson, of Jacksonville, Fla., and H. M. Hampton, of Ocala, Fla., for appel-lees. Before FOSTER, HUTCHESON, and WALKER, Circuit Judges. WALKER, Circuit Judge. By this suit the appellees asserted the claims that, by reason of their ownership of land beneath the waters of Silver Springs, a body of water located in Marion county, Fla., and of an established business of operating glass-bottom boats for the purpose of carrying persons for hire over those waters and showing the waters and bed of Silver Springs, they have the exclusive right to operate such boats over those waters for hire and for the purpose mentioned, and the light to prevent the appellant, which owns a tract of land on Silver Springs river or run, the outlet of Silver Springs, about three-fourths of a mile east or southeast of the head of Silver Springs, on which is located appellant’s place of business, called Paradise, from maintaining at the intersection of the Ocala and Day-tona Highway with the road leading to the place known as Paradise, signboards or signs containing the word or words “Silver Spring” or “Silver Springs,” and from using the name “Silver Springs” as a part of its name in advertising it's place of business at Paradise. Following a hearing on the bill, answer, and exhibits, affidavits, photographs, and other documents, on application of appellees for a temporary injunction, the court sustained the above-mentioned claims asserted by the appellees by a decree granting such an injunction, and by a deeree denying a motion to dissolve that injunction. The case is before us on appeals from those decrees. Thei’e is no dispute as to the facts which we consider to be controlling in the determination of the questions raised by the record. At the above-mentioned location in Marion county, Fla., there is a large natural basin containing a number of springs which create the body of water called Silver Springs, which discharges through Silver Springs run or river into the Oklawaha river, a tributary of the St. Johns river, which discharges into the Atlantic Ocean. The stream so formed in its natural and ordinary condition is susceptible of being used for commerce, over which trade or travel may be conducted in the customary modes of trade and travel on water from its head or source as a highway by water craft of all kinds having not exceeding six feet draft, and continuously has been susceptible of being so used. The water over the springs which feed that body of water called Silver Springs varies in depth up to eighty feet, and that water is clear, transparent, and beautiful. The bed of that body of water, the caverns and crevices from which the contributing springs issue, the rock formations in the bed, the vegetation growing thereon, and living creatures clearly visible in the waters, are beautiful and interesting, with a result that the place is attractive to visitors. .Pursuant to provisions of an act of Congress passed in 1823 (3 Stat. 754), publie lands including the territory in which Silver Springs is located were surveyed and opened to sale. That act contained the provision: “That all the navigable rivers and waters in the districts of East and West Florida shall be, and forever remain, publie highways.” Section 12. Under the survey and plat made of publie lands, Silver Springs is partly in the northeast quarter of the southeast quarter of section 6, in township 15 south of range 23 east, in the district of land which was subject to sale at Newnansville, Fla., and partly in the southeast quarter of that quarter section, and the two land subdivisions which include Silver Springs contain seventy-nine acres and one-hundredth of an acre. About ten acres included in those two subdivisions are permanently covered by the waters of Silver Springs, the flow from which amounts to more than three hundred millions gallons of water a day. On February 24, 1845, while Florida was . a territory, James Rogers made a cash entry of the above-mentioned subdivisions of land and paid therefor the sum of $98.75 for seventy-nine acres and one-hundredth of an acre at $1.25 per acre, and received the receiver’s receipt showing such payment for that land. On July 1, 1848, after Florida became a state, a patent for that land was issued to James Rogers. By mesne conveyances appellees succeeded to the title so acquired by James Rogers. For many years appellees’ predecessors in title and appel-lees have paid taxes on the land described in said patent including the part thereof which is beneath the waters of Silver Springs. For many years appellees and their predecessors in title have operated glass-bottom boats over Silver Springs, by means of which Silver Springs and what is beneath the surface of that body! of water, including the living creatures .therein, are displayed for hire. Ap-pellees have extensively advertised that business, and derive a substantial profit from it. A short time before the date of the filing of the bill in this case, the appellant acquired the above-mentioned tract of land on which it located its place of business called Paradise, and began the operation of a rival glass-bottom boat business, showing for hire Silver Springs and part of the stream into which the waters of Silver Springs are discharged and what is beneath the surface of those waters. For many years prior to 1925 boats carrying passengers and freight were operated from and to points on the Oklawaha and St. Johns rivers to and from the head of Silver Springs, where there were warehousing and docking facilities. At or near the head of Silver Springs is a settlement, also called Silver Springs, at which the United States maintains the Silver Springs post office. Under above-indicated undisputed evidence it is not open to question, and it is conceded by counsel for appellees, that the body of water ealle.d Silver Springs, including the water which submerges part of the ladd included in the description contained in the land patent under which appellees deraign title, is navigable from its head or source. United States v. Holt State Bank, 270 U. S. 49, 56, 46 S. Ct. 197, 70 L. Ed. 465; United States v. Utah, 51 S. Ct. 438, 497, 75 L. Ed.-, April 13, 1931. The parties advance conflicting contentions as to whether the appellees, as successors in title to James Rogers, the patentee, did or did not acquire any title to that part of the land included in the description contained in the patent which is submerged by the waters of Silver Springs; it being contended in behalf of the appellees that the patent was effective to convey title to all the land included by the description contained therein, and counsel for the appellant contending that, because, at the time of the entry and purchase in pursuance of which that patent was issued, the United States held in trust for the state to be created the title to the beds of all navigable waters within the territory which became the state of Florida, the patent was not effective to convey to the patentee, an ordinary purchaser of public land for private use, any title to or estate in that part of the land described in the patent which is under the navigable' waters of "Silver Springs. United States v. Holt State Bank, supra; Shively v. Bowlby, 152 U. S. 1, 47, 48, 14 S. Ct. 548, 38 L. Ed. 331. The United States, at the time of the patentee’s entry and payment for the land described in the patent, being vested, as to that land, with the rights and power of both sovereign and proprietor, it seems that the patent conveyed to the patentee some title to or right of ownership in the part of that land which is covered by navigable water. Goodtitle v. Kibbe, 9 How. 471, 478, 13 L. Ed. 220; Shively v. Bowlby, supra; Brewer-Elliott Oil & Gas Co. v. United States, 260 U. S. 77, 43 S. Ct. 60, 67 L. Ed. 140; United States v. Holt State Bank, supra; Kneeland v. Korter, 40 Wash. 359, 82 P. 608, 1 L. R. A. (N. S.) 745; Hewitt-Lea Lumber Co. v. King County, 113 Wash. 431, 194 P. 377, 21 A. L. R. 201. But if the title, if any, so conveyed must have been sueh a one as could furnish no support for any claim asserted by this suit, with the result that the decision of the questions raised by the record would be the same, whether that title did or did not exist, it is not material to determine whether the patent did or did not convey to the patentee any title to the submerged part of the land included in the description contained in the patent. As the statute under which the patented land was offered for sale and sold contained the above set out provision as to all navigable waters being and forever remaining public highways (that provision being to the same effect as one contained in 43 USCA § 931), it is to be inferred that it was intended that no patent issued under that statute should' affect the right of the public to use as a highway navigable waters covering lands included in the description contained in the patent. St. Paul & P. Railroad Co. v. Schurmeier, 7 Wall. 272, 289, 19 L. Ed. 74. Even in the abseneec of such a statutory provision the title which an owner of highland contiguous to a navigable stream or body of water may have in land covered by such water is at best a qualified or restricted one. “Whatever the nature of the interest’ of a riparian owner in the submerged lands in front of his upland bordering on public navigable water, his title is not as full and complete as his title to fast land which has no direct connection with the navigation of such water. It is a qualified title, a bare technical title, not at his absolute disposal, as is his upland, but to be held at all times subordinate to sueh use of the submerged lands and the waters flowing over them as may be consistent with or demanded by the public right of navigation.” Scranton v. Wheeler, 179 U. S. 141, 163, 21 S. Ct. 48, 57, 45 L. Ed. 126; United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 64, 33 S. Ct. 667, 57 L. Ed. 1063; Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 U. S. 82, 89, 33 S. Ct. 679, 57 L. Ed. 1083; United States v. Cress, 243 U. S. 316, 37 S. Ct. 380, 61 L. Ed. 746. It follows that if appellant, in operating for hire glass-bottom boats on and over the navigable waters of Silver Springs, was exercising the publie right of navigation, and the maintenance of the asserted claim of the appellees that they had the exclusive right of operating for hire such boats on and over those waters would be inconsistent with the exercise by appellant of the public right of navigation, it is not material to determine whether appellees do or do not possess such qualified or limited title to land covered by those waters as is capable of being acquired in private ownership. The public right of navigation entitles the public generally to the reasonable use of navigable waters for all legitimate purposes of travel or transportation, for boating or sailing for pleasure, as well as for carrying persons or property gratuitously or for hire, and in any kind of water craft the use of which is consistent with others also enjoying the right possessed in’common. As to that right a riparian owner, though he also has a qualified or bare technical title to the soil covered by the navigable water opposite his upland, is entitled to no preference or priority, his right in that regard being only concurrent with that of other members of the public, and to be exercised in a way not inconsistent with the enjoyment of the same right by others. He cannot, any more than can one who has no title to riparian or submerged land, acquire an exclusive right to use navigable water opposite his upland for travel or navigation for purposes of business or of pleasure or diversion. Merrill-Stevens Co. v. Durkee, 62 Fla. 549, 57 So. 428; Ferry Pass. I. & S. Ass’n v. White River I. & S. Ass’n, 57 Fla. 399, 48 So. 643, 22 L. R. A. (N. S.) 345; Broward v. Mabry, 58 Fla. 398, 50 So. 826, 828; Apalachicola Land & D. Co. v. McRae, 86 Fla. 393, 98 So. 505; Lamprey v. State, 52 Minn. 181, 53 N. W. 1139, 18 L. R. A. 670; 38 Am. St. Rep. 541, 551; State v. Columbia Water Power Co., 82 S. C. 181, 63 S. E. 884, 22 L. R. A. (N. S.) 435, 129 Am. St. Rep. 876, 882, 17 Ann. Cas. 343; Heyward v. Farmers’ Mining Co., 42 S. C. 138, 19 S. E. 963, 20 S. E. 64, 28 L. R. A. 42, 46 Am. St. Rep. 702; Smart v. Aroostook Lumber Co., 103 Me. 37, 68 A. 527, 14 L. R. A. (N. S.) 1083; Monroe Mill Co. v. Menzel, 70 L. R. A. note, 277; Sanborn v. People’s Ice Co., 82 Minn. 43, 84 N. W. 641, 51 L. R. A. 829, 83 Am. St. Rep. 401; 45 C. J. 447, 559; Farnham on Waters, 130, 131. In operating glass-bottom boats on the navigable waters of Silver Springs the appellees exercised, not a right which accrued to them by reason of their ownership of upland contiguous to those waters or of land beneath them, but the right of navigation which they possessed concurrently with the public generally. Having no exclusive right to use those waters for travel or transportation, appellees were not entitled to prevent the use of them by appellant in any way in which the public right of navigation reasonably may be exercised. In carrying passengers for hire in glass-bottom boats over those waters appellant exercised the public right of navigation, and by so doing did not violate any right possessed by the appellees. Having the right to use the waters of Silver Springs for purposes of travel for business or pleasure, and to transport persons thereon for or without compensation, the appellant and those transported by it had, as an incident of the right so to travel, the right to view the waters traversed and what was visible beneath the surface of those waters; and appellant was at liberty to provide facilities, to which others had no exclusive right, for displaying to persons carried the waters traversed, the vegetable growths and living creatures therein and the submerged land. The appellant was none the less engaged in exercising the public right of navigation by reason of the fact that it used glass-bottom boats and received pay from passengers for the sight-seeing advantages incident to travel in such boats. The faet that the waters of Silver Springs are navigable keeps the ap-pellees from being entitled to the monopoly or exclusive right they claim. Appellees’ bill as it was amended contained allegations as to signboards erected and maintained by appellant at or near the intersection of the Ocala and Daytona Highway, which passes near the head of Silver Springs, and the road leading from that highway to Paradise, appellant’s location; and appellant’s original answer contained allegations as to signboards erected and maintained by the appellees: It was disclosed that all the signs above referred to were removed while the suit was pending and before the hearing on the above-mentioned motion to dissolve the injunction granted by the court. An amendment of appellant’s answer, after alleging that all said signs had been removed, alleged: “And this "defendant, unless enjoined and restrained by order of this Court, will install and thenceforward maintain at or near the intersection of said Paradise road with said Ocala-Daytona Highway, one or more signs bearing substantially the following words and figures, or words and figures of similar import, to-wit: “Turn Right for Paradise Landing “On Silver Springs River or Run. “There take Glass Bottom Boat Trip up the Run to its Head and over all of the Silver Springs.” It is to be inferred that appellant has abandoned any claim of right to nse the name or words “Silver Springs” otherwise than as indicated by the just setout allegations. Silver Springs and Silver Springs run or river being the geographical names of a body of water and of the stream into which it discharges, those names are not subject to be exclusively appropriated as trade-names or as designations of one’s business or products. The words “Silver Springs,” - used in connection with the locality in question, constitute merely geographical names of a body of water, .of the stream which is its outlet, and of a particular settlement and post office. Names which axe merely geographical axe not subject to be exclusively appropriated as trade-marks or trade-names. Baglin v. Cusenier Co., 221 U. S. 580, 593, 31 S. Ct. 669, 55 L. Ed. 863; Wyatt v. Mammoth Cave Development Co. (C. C. A.) 26 F.(2d) 322. Appellees are not entitled to have another or others forbidden to use those words to designate the thing's the names of which, in whole or in part,' are “Silver Springs.” The injunction granted in effect forbids the appellant to call a body of water, a stream, and a settlement by the identifying names by which they are known and designated, though in using such names appellant does- nothing to mislead any one or in any way to misrepresent facts. The use by the appellant in its name or business of the merely geographical name “Silver Springs” would not properly be subject to complaint by appellees, if in so using that name appellant or its business were so identified as to be readily distinguishable from appellees or their business, so that no confusion or deception could be caused. No right of the appellees would be infringed by the erection and maintenance of a sign containing directions as to the route to be taken to reach appellant’s location on Silver Springs run or river, that sign containing nothing calculated to deceive any one into believing that in patronizing appellant he was patronizing the appellees. The injunction granted is not sustainable, as it forbade the doing by the appellant of’ things it was entitled to do. The decision that the court erred in decreeing that defendant (appellant here) be enjoined from maintaining, at the intersection of the Ocala and Daytona Highway with the road mentioned, signboards or other signs containing the name or words Silver Springs or Silver Spring, and from using the name Silver Springs as a part of its name in, advertising its business at Paradise, is not to be understood as having the effect of approving the use by the appellant of the name Silver Springs in any way that would be calculated to cause deception or confusion, or to induce anyone to believe that appellant’s sight-seeing excursion is the one advertised by the appellee. Because of the above-indicated error, the decrees appealed from are reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed, Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
songer_respond1_5_2	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant. Roger Lee McQUEEN, Appellant, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Appellee. No. 76-1926. United States Court of Appeals, Eighth Circuit. Submitted June 14, 1977. Decided Aug. 23, 1977. Rehearing Denied Sept. 26, 1977. Michael A. Gross, Clayton, Mo., argued and on brief for appellant. Neil MacFarlane, Asst. Atty. Gen. (argued), and John D. Ashcroft, Atty. Gen., Jefferson .City, Mo., on brief, for appellee. Before BRIGHT, STEPHENSON and HENLEY, Circuit Judges. STEPHENSON, Circuit Judge. In McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974) (McQueen I), we held that appellant McQueen, a state prisoner, had been denied the effective assistance of counsel constitutionally required because of the failure of his counsel to make an adequate investigation prior to appellant’s trial for murder. We remanded for a determination of whether that failure prejudiced appellant’s defense to the extent that his conviction must be vacated. The district court, after conducting an evidentiary hearing, ultimately found that “the ineffective assistance of counsel rendered petitioner, did not prejudice his right to a fair trial,” and ordered the dismissal of McQueen’s application for a writ. We conclude that the district court’s finding is clearly erroneous and reverse. After conducting the evidentiary hearing, the district court initially remanded this case to the Supreme Court of Missouri with the suggestion that the original Missouri trial judge, then retired, be appointed to serve as a special master to review the entire state and federal record and make findings with respect to whether defendant was denied a fair trial, these findings to be reviewable on appeal if unacceptable to either party. McQueen thereafter made application for writ of mandamus to compel the district court to render a final determination of his pending application for a writ of habeas corpus. This court denied the petition for writ of mandamus holding it was within the discretion of the district court to send this case back to the state court for an initial determination of whether lack of investigation was harmless. United States ex rel. McQueen v. Wangelin, 527 F.2d 579 (8th Cir. 1975) (McQueen II). Subsequently, the district court on January 14, 1976, entered the following order: It is now the directive of this Court that the State of Missouri commence appropriate proceedings to ascertain whether or not McQueen’s trial counsel was ineffective, and whether or not said ineffectiveness, if same existed, denied petitioner a fair trial. If the State of Missouri fails to make this inquiry and come to conclusion concerning this allegation, within six months from the date of this Order, then the judgment and conviction of petitioner is vacated. Respondent-appellee Swenson appealed from the above order. This court' then ordered the district court to make factual findings based upon the evidence presented at the January 20, 1975, hearing and enter an appropriate order. The district court on August 16, 1976, filed the memorandum which is the subject of the instant appeal. In substance the court found that appellant had failed to establish the existence of admissible evidence which his counsel could have uncovered, which would have proven helpful to the defendant in his original trial. More specifically, that: The shoe horn allegedly used by the deceased in his purported attack on McQueen, turned out to be a flimsy, metallic, combination shoe horn and hair brush, which “weapon” was hardly needed by an alleged assailant some sixty-five pounds heavier than his target. It had no “carving knife handle” as alleged by petitioner in his state court trial. [2] The police report introduced at the hearing presented nothing that this Court found startlingly novel or helpful to defense. [3] The coroner’s report, introduced by petitioner, impressed this Court as being actually detrimental to petitioner’s cause. It revealed that the death of George Francis, the homicide victim of McQueen, was caused by three thirty-eight caliber gunshot wounds, any one of which could have been fatal. McQueen v. Swenson, 425 F.Supp. 373, 374 (E.D.Mo.1976) (emphasis added). In addition the district court discussed the reputation of McQueen’s trial counsel as a skilled criminal practitioner; counsel’s admitted failure to interview state witnesses because he was fearful of being accused of “tampering;” the somewhat common practice for skilled practitioners not to take state criminal witnesses’ depositions; trial tactics in waiting for the prosecutor to put on his case and not alerting him as to the defense; and finally, the strength of the state’s case against McQueen and the weakness of McQueen’s defense. Following the foregoing discussion the district court “makes an express finding that the ineffective assistance of counsel rendered petitioner, did not prejudice his right to a fair trial, and more certainly, did not reach constitutional inadequacy.” McQueen v. Swenson, supra, 425 F.Supp. at 376. In McQueen I we stated, “In the circumstances of this case, we hold the lack of pretrial investigation amounts to ineffective assistance of counsel.” 498 F.2d at 213. That issue was closed in this case. We held, however, that a second determination must be made as to whether the failure to investigate prejudiced McQueen’s defense. See discussion, 498 F.2d 218-20. We remanded to the district court for a hearing on the issue of whether or not prejudice flowed from the failure of counsel to make a reasonable investigation of this case. The petitioner, as we have already stated, must shoulder the initial burden of showing either prejudice or, alternatively, changed circumstances which would justify placing on the state the burden of proving the absence of prejudice. 498 F.2d at 220. We further stated: We ought not to intervene in the criminal process unless and until it can be shown that the alleged error itself prejudiced the' petitioner in obtaining a fair trial. But this is not to say that, on remand, petitioner must prove his innocence even by so much as a preponderance of the evidence; nor should we be understood to suggest that the Court may trespass upon what properly would have been the jury’s province of weighing the truth or falsity of this evidence at the original trial. What we are saying is that, here, the petitioner must shoulder an initial burden of showing the existence of admissible evidence which could have been uncovered by reasonable investigation and which would have proved helpful to the defendant either on cross-examination or in his case-in-ehief at the original trial. Once this showing is made, a new trial is warranted unless the court is able to declare a belief that the omission of such evidence was harmless beyond a reasonable doubt. Cf. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). 498 F.2d at 220. We are satisfied from our review of the testimony and exhibits produced at the hearing conducted by the district court pursuant to our remand that its findings that errors of counsel were not prejudicial are clearly erroneous. Rice v. Wolff, 513 F.2d 1280, 1293 (8th Cir. 1975), reversed on other grounds sub nom., Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); Parnell v. Wainwright, 464 F.2d 735, 737 (5th Cir. 1972); Shultz v. State of Nebraska, 353 F.2d 81, 82 (8th Cir. 1965). A brief review of the specific items mentioned by the district court will demonstrate the existence of admissible evidence which appellant’s counsel could have uncovered by reasonable investigation and which would have proved helpful to McQueen either on cross-examination or in his case-in-chief. Shoehorn McQueen testified at trial that he shot the deceased, George Francis, as the latter made an assault on him with a long metal shoehorn approximately two feet in overall length. Several police officers who had investigated the scene at the deceased’s apartment testified in rebuttal that in searching the area they found no such shoehorn. The importance of this rebuttal testimony was recognized by us in McQueen I, 498 F.2d at 210. See also McQueen v. State of Missouri, 475 S.W.2d 111, 120-24 (Mo. 1971) (Seiler, J., dissenting). Appellee concedes the shoehorn would have been discovered by a reasonable investigation by appellant’s defense counsel, but contends it would not have been helpful because (1) the shoehorn produced did not fit the description given by appellant and thus was inadmissible; (2) even if admitted, it was cumulative of appellant’s version and would not have affected the jury’s decision; and (3) most importantly, the evidence indicates the shoehorn was hanging on the door at all times. The shoehorn produced is substantially identical, except for the “carving knife handle,” to the description given by appellant at his trial. It is about two feet long, has a shoehorn on one end, and is constructed primarily of metal. Although not a lethal weapon in itself, in the hands of the deceased it could have been a formidable weapon and thus is corroborative of appellant’s , trial testimony. We cannot agree that the omission of this evidence was harmless beyond a reasonable doubt. Police report The district court found nothing in the police report “startlingly novel or helpful to the defense.” McQueen v. Swenson, supra, 425 F.Supp. at 374. We cannot agree. The police report indicates that Donald Cole, a homosexual partner of the deceased for two years who spent the night preceding the murder with deceased at the apartment, left the next morning. He related that he could not say whether another white visitor who arrived during the night remained in the apartment when Cole left. He stated that he and deceased had not been drinking that night but could not account for the nearly empty bottle of vodka in the bedroom. As a frequent visitor he undoubtedly knew about the shoehorn and possibly the identity or at least a description of the visitor. He was also subject to impeachment because of conflicts with his trial testimony. More importantly, the police report indicated that Conrad Zoeller originally told the police that his car had been stolen approximately two months prior to the homicide, at which time some of his shirts were missing. Zoeller’s explanation at trial was that some of his shirts were taken from his sister’s (Mary Zoeller’s) car. The state’s theory at trial was that appellant stole the murder weapon from Mary Zoeller’s car and used Zoeller’s shirts as corroboration. One shirt was in appellant’s possession and the other in the apartment. See McQueen I, 498 F.2d at 209. Appellant had told his counsel that the dentist, Conrad Zoeller, and deceased were acquainted. If Zoeller frequénted deceased’s apartment it may well have been that he left the weapon there. See McQueen v. State, supra, 475 S.W.2d at 122. It can be argued that this is speculation but attorney Brown after being informed by appellant of Zoeller’s acquaintanceship with deceased, McQueen I, 498 F.2d at 211, could have obtained information that would have made further inquiry fruitful. Instead at trial when Zoeller denied acquaintanceship with deceased that ended attorney Brown’s inquiry in this regard. The police report further revealed that Christian Massey, who was deceased’s stepbrother and discovered the body at approximately 8:00 p. m. on October 23, originally stated to the police that he had seen deceased that morning about 8:00 a. m. in his mother’s apartment (just below deceased’s apartment). Massey later stated that he had not seen deceased at all that day before discovering the body. He gave no explanation for the change in his statement. Donald Cole and Christian Massey were not available for the remand hearing. Coroner’s report That part of the coroner’s report which included the pathologist’s examination indicating three bullet wounds were found in the body contained nothing new or helpful. We recognize, as did the district court, that as a matter of strategy it was perfectly proper for appellant’s counsel to concentrate on the state’s lack of eyewitnesses and its doubtful ability to make a prima facie case. We suggest that some investigation revealing the existence of the shoehorn and the questionable circumstances with respect to Dr. Zoeller’s shirts being in the apartment and the possibility of the homicide gun being there would have lessened the strength of the state’s case-in-chief. In any event, attorney Brown testified that he knew there was a possibility that it would be necessary for appellant to testify and rely on his claimed self-defense. Some investigation, particularly with respect to the matters revealed to counsel by appellant, would have revealed the existence of admissible evidence which could have been uncovered by reasonable investigation and which would have proved helpful to appellant either on cross-examination or in his case-in-chief. The hearing on our remand confirms this. We cannot say that the omission of such evidence was harmless beyond a reasonable doubt. Appellant’s proof of prejudice should not be defeated by the district court’s low opinion of the credibility of relevant and admissible testimony. This is for the jury. Thomas v. Wyrick, supra, 535 F.2d 407, 417. We therefore reverse and remand this case and direct the district court to issue the writ of habeas corpus discharging appellant, subject to the state, if it wishes to do so, to try him on the indictment here involved within 90 days of the issuance of our mandate. Reversed and remanded. . Appellant was found guilty by a jury of second-degree murder and sentenced to life imprisonment. The history of appellant’s appeals in state proceedings is set out in McQueen I, 498 F.2d at 208 n.1. . This procedure for review was previously suggested by a dissenting judge of the Supreme Court of Missouri in McQueen v. State, 475 S.W.2d 111, 119-20 (Mo.1971) (Donnelly, J., dissenting). . We note that this issue was foreclosed by McQueen I, 498 F.2d 207, which held that McQueen had been denied the effective assistance of counsel. . We note that since our holding in McQueen I, 498 F.2d 207, the Ninth Circuit has joined the Sixth Circuit in holding that once ineffective assistance of counsel has been established harmless error tests do not apply. Cooper v. Fitzharris, 551 F.2d 1162, 1164-65 (9th Cir. 1977); Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974). We have continued to require a showing of prejudice where counsel’s failure to perform an essential duty has been established. United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976); Thomas v. Wyrick, 535 F.2d 407, 414 (8th Cir. 1976). . The parties stipulated that the victim’s aunt, if called would testify that her residence was the same as that of the deceased, and that the day before the shooting the shoehorn was hanging on the back of a door in the victim’s apartment, and that when she returned a few days later the shoehorn again was on the back of the door. It was also argued that the deceased’s mother would testify in a similar fashion. Appellant’s trial attorney, Hale Brown, testified that appellant gave him the name of a woman to call about the shoehorn and that he had called but the person was reluctant to talk and “that was the end of it.” . Appellee raises a question as to whether the various police reports attached to the coroner’s report up to a few days before trial were available before trial. The district court made no finding with respect to the issue of availability. The evidence indicates that several police reports were .included in the coroner’s file, each ..police report showing on the face of it that the coroner was on the distribution list. The coroner’s file was available for inspection by appellant’s counsel but he made no attempt to examine it before trial. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant? A. legislative B. executive/administrative C. bureaucracy providing services D. bureaucracy in charge of regulation E. bureaucracy in charge of general administration F. judicial G. other Answer:
songer_usc2sect	917	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 11. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". In re MANSION HOUSE CENTER SOUTH REDEVELOPMENT COMPANY, Mansion House Center North Redevelopment Company, and Mansion House Center Redevelopment Company, Appellants. No. 80-1907. United States Court of Appeals, Eighth Circuit. Submitted Sept. 17, 1981. Decided Oct. 27, 1981. Rehearing Denied Dec. 2, 1981. Thomas S. Martin, Acting Asst. Atty. Gen., Washington, D. C., Robert D. Kings-land, U. S. Atty., St. Louis, Mo., David Epstein, J. Christopher Kohn (argued), Attys., Dept, of Justice, Washington, D. C., for appellee. James F. Gunn, Gunn & Gunn, St. Louis, Mo., for appellants; Norman S. Altman (argued), Krooth & Altman, Washington, D. C., Richard Lieb, Kronish, Lieb, Shainswit Weiner & Heilman, New York City, of counsel. Before BRIGHT, HENLEY and ARNOLD, Circuit Judges. ARNOLD, Circuit Judge. Section 517 of the Bankruptcy Act of 1938, codified until 1978 as 11 U.S.C. § 917, provides as follows: Nothing contained in this chapter[] shall be deemed to affect or apply to the creditors of any debtor under a mortgage insured pursuant to the National Housing Act and Acts amendatory thereof and supplementary thereto; nor shall its provisions be deemed to allow extension or impairment of any secured obligation held by Home Owners’ Loan Corporation or by any Federal Home Loan Bank or member thereof. The appellants, as petitioning debtors, commenced a proceeding for a real-property arrangement under the chapter (XII) which contains this provision. Appellants’ land is encumbered by a mortgage held by the appellee United States, which had previously instituted suit to foreclose the mortgage. The mortgage, before its assignment to the United States, had been held by private lenders who had advanced funds to the former owners of the land, the petitioning debtors’ predecessors in title. The mortgage had been insured by the Department of Housing and Urban Development under Section 220 of the National Housing Act, 12 U.S.C. § 1715k, having to do with urban redevelopment. It is undisputed that Section 517 of the Bankruptcy Act, quoted above, would not have prevented the private lenders from foreclosing the insured mortgage. (Chapter XII proceedings generally operate as an automatic stay of such creditors’ remedies.) But in this case the mortgage had been assigned to the United States, acting through the insuring agency, the Department of Housing and Urban Development. The insurance had therefore determined, in the sense that the insured private lenders had been paid off, and premiums were no longer being paid. The question presented in this case is whether a mortgage that has been thus assigned to the United States is still a “mortgage insured pursuant to the National Housing Act” within the meaning of Section 517. If it is, the foreclosure suit may proceed, and Chapter XII is no obstacle. The District Court held for the United States that the mortgage remains a “mortgage insured” for Section 517 purposes. We agree and affirm. I. We have little to add to the clear discussion of the controlling issue in the District Court’s opinion, and the reader is invited to refer to it for a full analysis. See In re Mansion House Center South Redevelopment Co., 5 B.R. 826 (E.D.Mo.1980). In addition, after the District Court decided this case, but before the oral argument in this Court, the Seventh Circuit decided In re Thornhill Way I, 636 F.2d 1151 (7th Cir. 1980), holding that Section 517 continues to permit foreclosure after assignment of an insured mortgage to HUD. In the main, we agree with the reasons advanced by the Seventh Circuit. Its holding is the only appellate authority in point. Accord, United States v. Mansion House Center North Redevelopment Co., 594 F.2d 653, 656 n.5 (8th Cir.) (dictum), cert. denied, 444 U.S. 835, 100 S.Ct. 69, 62 L.Ed.2d 45 (1979). We also agree with the District Court that the United States has not been estopped by its conduct to raise the bar of Section 517 in this case. II. What has been said is sufficient to dispose of the appeal, and ordinarily we would not encumber the books with more writing on the subject. In this case, however, we deem it appropriate to discuss in brief compass some of the objections the appellant-debtors have argued so well, even elegantly, in their briefs before us. 1. Appellants point out that the Seventh Circuit in Thornhill Way I, supra, 636 F.2d at 1155, relies on United States v. Bristol Hills Apartments, 461 F.Supp. 1179 (E.D. Mich.1978), and in particular quotes the following paragraph from Bristol Hills: Not only is this the most reasonable way to read the section concerned, but it is also a good rule. If the law were otherwise, a private mortgagee would have the power, by either assigning or refusing to assign its rights under the mortgage to the government, to determine whether the benefits of Chapter 12 will be available to the mortgagor. What would undoubtedly happen if this were the law is that the government would make sure not to accept assignments until foreclosure proceedings had already been effectuated. This would force some investors to hesitate to finance needed projects for fear of being a party to foreclosure proceedings because the government would not let them out by accepting an assignment. 461 F.Supp. at 1181. Appellants correctly point out that part of this statement is mistaken. It is not true that “the government would make sure not to accept assignments until foreclosure proceedings had already been effectuated,” because under Section 207(g) of the National Housing Act, as added by the Act of Feb. 3, 1938, § 3, 52 Stat. 8, 18-19, 12 U.S.C. § 1713(g), the mortgagee has the option whether to institute a foreclosure suit on its own, or assign the mortgage to the United States and receive the benefits of the insurance. Thus, if the mortgagee decides to assign the mortgage to HUD, the agency cannot reject the assignment. To the extent that Thornhill Way I and Bristol Hills are based on the premise that construing Section 517 not to be a bar to Chapter XII proceedings would induce HUD not to accept assignments, and thus make investment in insured mortgages less attractive to private lenders, the reasoning of those cases is pro tanto weakened. We note, however, that the paragraph quoted above is not the only, not even the predominant, reason given by the Thornhill Way I and Bristol Hills courts for their holding. And it remains true that if the bar of Section 517 is removed by assignment of an insured mortgage to the United States, and if (as appellants argue and we have agreed) an insured mortgagee may at its option make such an assignment whether HUD wants it to or not, then the statute would give the private lender power by its own unilateral act to confer on the debtor the otherwise unavailable protection of Chapter XII. Appellants urge in addition, Brief 29 n.*, that “HUD, by offering to pay 100% of the insurance, can require the mortgage to be assigned rather than foreclosed.” But why would HUD ever choose to do so, when the consequence of its choice, under appellants’ view of the statute, would be to make the mortgage unenforceable as against a Chapter XII petition? 2. Appellants also claim that the courts holding against them have misused the maxim of statutory construction, in pari materia. Both the District Court, In re Mansion House Center South Redevelopment Co., supra, 5 B.R. at 828-29, and the Seventh Circuit in Thornhill Way I, supra, 636 F.2d at 1154 n.9, point out that the National Housing Act uses the terms “mortgage insured” and “insured mortgage” to refer to mortgages after they have been assigned to HUD. Section 207(k) of the National Housing Act, added by the Act of Feb. 3, 1938, § 3, 52 Stat. 8, 20, 12 U.S.C. § 1713(k), provides: The Secretary is authorized either to (1) acquire possession of and title to any property, covered by a mortgage insured under this section and assigned to him, by voluntary conveyance in extinguishment of the mortgage indebtedness, or (2) institute proceedings for foreclosure on the property covered by any such insured mortgage and prosecute such proceedings to conclusion. This provision quite clearly uses the term “insured mortgage” to refer to a mortgage held by HUD as assignee, at which point the insurance, in the sense of a continuing contractual obligation owed by HUD as insurer to the private lender as insured, must necessarily have terminated. Clause (2) of § 1713(k), moreover, uses the term “insured mortgage” in the context of a foreclosure proceeding instituted by HUD, which is exactly what we have here. Appellants point out that the provision being construed here, Section 517, is part of the Bankruptcy Act, not the National Housing Act. They say the rule of in pari materia should be used to refer only to other portions of the same statute being interpreted, or at least a related statute with the same purposes, not to a different statute with different purposes. The purposes of the Bankruptcy Act are different from those of the Housing Act, the argument runs, and therefore it is not proper for a court to refer to the latter for aid in interpreting the former. The trouble with this argument is that it exalts a rule of construction into a rule of law. Canons of construction are useful in some contexts, but they are not to be inflexibly applied according to some rigid definition having no regard to the particular situation before the court. See Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand.L.Rev. 395 (1950). The important point here is that Section 517 refers in terms to the National Housing Act in describing the “mortgage insured” to which Chapter XII shall not apply. Congress necessarily decided that the general policy of the Bankruptcy Act, within the boundaries of Section 517, should yield to that of the National Housing Act. Since a question has arisen as to the meaning of the phrase “mortgage insured pursuant to the National Housing Act,” it is only common sense to look at the National Housing Act to see what Congress meant when it said “mortgage insured.” Indeed, that is all canons of statutory construction are — statements embodying a particular application of common sense. A maxim of interpretation, if taken beyond that limited function, becomes a legal mutant, not a natural growth. 3. Appellants stress that what is now Section 517 began life before the Chandler Act of 1938. Section 517 was first enacted as an amendment to Section 77B(n) of the Bankruptcy Act of 1898, codified before 1938 as 11 U.S.C. § 207(n). The Act of August 20, 1935, 49 Stat. 664, amended Section 77B(n) to read in part as follows: (n) Nothing contained in this section' [§77B, relating to corporate reorganization] shall be construed or be deemed to affect or apply to the creditors of any corporation under a mortgage insured pursuant to the National Housing Act and Acts amendatory thereof and supplementary thereto .... When this statute first became law, the Federal Housing Administration, HUD’s predecessor agency, was incapable of receiving assignments of mortgages. See National Housing Act, Act of June 27, 1934, 48 Stat. 1246. It could acquire property from an insured lender only after the lender itself had successfully instituted and completed foreclosure. The term “mortgage insured” could not, therefore, have referred to a HUD-held mortgage in 1935, when the predecessor of Section 517 was enacted. The reenactment of Section 517 as part of the Bankruptcy Act of 1938 was only a codification, appellants say, and codifications are not ordinarily held to work substantive changes. It follows that the term “mortgage insured” can no more refer to HUD-held mortgages today than it did in 1935. The answer, we think, is that the original version of Section 517, like the current version, does not refer to “the National Housing Act” simpliciter, but to “the National Housing Act and Acts amendatory thereof and supplementary thereto.” The Act of Feb. 3, 1938, 52 Stat. 8, referred to several times already in this opinion, was entitled the “National Housing Act Amendments of 1938.” It was an act “amendatory [of] and supplementary” to the National Housing Act. The term “mortgage insured” in the 1935 amendment to the Bankruptcy Act is properly construed not only in the light of the then-existing National Housing Act of 1934, but also in the light of the later-enacted National Housing Act Amendments of 1938. And this would be so even if the 1935 bankruptcy provision had not been reenacted in 1938 after the amendment of the National Housing Act. When the 1938 Housing Act Amendments were enacted, moreover, Congress made an explicit cross-reference to what was then Section 77B(n) of the Bankruptcy Act. Section 11 of the National Housing Act Amendments of 1938, 52 Stat. 26, 12 U.S.C. § 1733, added a new Section 514 to the National Housing Act, providing, in part, as follows: The provisions of . . . subsection (n) of Section 77B of the Bankruptcy Act, as amended (49 Stat. 664) . . . and all other provisions of law establishirig rights under mortgages insured in accordance with the provisions of the National Housing Act, shall be held to apply to such Act, as amended. We hold, therefore, that the rights conferred by then Section 77B(n) on private lenders holding insured mortgages under the original National Housing Act of 1934, were extended to HUD as a mortgage-holder under the National Housing Act Amendments of 1938. 4. Appellants object that such a reading of Section 517 in effect changes the phrase “mortgage insured” to “mortgage uninsured.” As we have noted, the insurance is no longer outstanding after the mortgage is assigned to HUD. But it does not follow that the United States is therefore not a “creditor of a debtor under a mortgage insured pursuant to the National Housing Act.” The word “insured” does not have to mean “insured at the time the Chapter XII proceeding is brought.” As a matter of the English language, it can just as well mean “which had been insured before assignment to the United States.” English is not highly inflected. It does not have distinct one-word forms for present passive participles (“then being insured”) and past passive participles (“having been insured”). The word “insured” is broad enough to bear either meaning. For the reasons we have given, we think the preferable reading is to include mortgages first insured by and later assigned to HUD. The judgment is affirmed. . The Bankruptcy Act of 1938, also known as the Chandler Act, Act of June 22, 1938, 52 Stat. 840, codified until 1978 as 11 U.S.C. §§ 1 et seq., was repealed by § 401(a) of the Bankruptcy Reform Act of 1978, Act of Nov. 6, 1978, 92 Stat, 2549, 2682. The effective date of the new Bankruptcy Code was October 1, 1979, see § 402(a) of the Bankruptcy Reform Act, 92 Stat. 2682, 11 U.S.C. prec. § 101 note, but under § 403(a) of the Bankruptcy Reform Act, 92 Stat. 2683, 11 U.S.C. prec. § 101 note, cases commenced under the Bankruptcy Act of 1938 shall continue to be conducted and determined under that Act. This proceeding was commenced on July 11, 1979, before the effective date of the new Act. . The reference is to Chapter XII of the Bankruptcy Act of 1938, formerly 11 U.S.C. §§ 801-926. The Chapter is entitled “Real Property Arrangements by Persons Other Than Corporations.” The appellant debtors, who commenced this proceeding for a real-property arrangement, are limited partnerships. . The Hon. John F. Nangle, United States District Judge for the Eastern District of Missouri. 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 11? Answer with a number. Answer:
sc_issue_12	C	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. LYON, SUPERINTENDENT OF BANKS, v. SINGER. NO. 512. Argued April 18-19, 1950. Decided June 5, 1950. Edward Feldman argued the cause for Lyon, Superintendent of Banks. With him on the briefs was Daniel Gersen. Albert R. Connelly argued the cause for Singer. With him on the brief was George S. Collins. Allen T. Klots argued the cause for Banque Mellie Iran. With him on the brief were Peter H. Kaminer and Merrill E. Clark, Jr. By special leave of Court, James L. Morrisson argued the cause for the United States, as amicus curiae, supporting petitioner in Nos. 512 and 513, urging reversal or modification of the judgment in No. 512, and affirmance in No. 527. With him on the briefs were Solicitor General Perlman and Harold I. Baynton. Per Curiam. Certiorari was granted in these cases to review federal issues respecting the administration of frozen alien property. 339 U. S. 902. The cases arose from suits brought by claimants Singer and Banque Mellie Iran to collect from a statutory bank liquidator claims allegedly entitled to a preference under New York Banking Law § 606, arising from transactions with a Japanese corporation, blocked under Executive Orders Nos. 8389, 5 Fed. Reg. 1400; 8832, 6 Fed. Reg. 3715. The New York Court of Appeals held that the transactions gave rise to a preferred claim in the liquidation but that payment by the liquidator must await specific licensing by the Alien Property Custodian of the transactions underlying the claims. Singer v. Yokohama Specie Bank, Ltd., 293 N. Y. 542, 58 N. E. 2d 726, 299 N. Y. 113, 85 N. E. 2d 894; Banque Mellie Iran v. Yokohama Specie Bank, Ltd., 299 N. Y. 139, 85 N. E. 2d 906. Those opposed to the judgments urge that, as a matter of federal law, the freezing order prevented the creation of any claim recognizable under § 606 of the New York Banking Law. Oral argument and study of the record have convinced us that the judgments of the New York Court of Appeals are not inconsistent with the First War Powers Act of 1941, § 301, 55 Stat. 839, or the above Executive Orders. We accept the New York court’s determination that under New York law these claims arose from transactions in New York and were entitled to a preference. Since the New York court conditioned enforcement of the claims upon licensing by the Alien Property Custodian, federal control over alien property remains undiminished. Our decision in Propper v. Clark, 337 U. S. 472, does not require a contrary conclusion. There the liquidator claimed title to frozen assets adversely to the Custodian, and sought to deny the Custodian’s paramount power to vest the alien property in the United States. No such result follows from the New York court’s judgments in the present cases. Since we further agree that, at the time the New York judgments were entered, no licenses had been issued to these claimants, we affirm the judgments below. Affirmed. Mr. Justice Frankfurter is of the opinion that since the federal question in Nos. 513 and 528 has been eliminated by the license granted by the Director, Office of Alien Property, no jurisdiction to review remains in this Court. Therefore, the writs of certiorari in these two cases should be dismissed. Question: What is the issue of the decision? A. federal taxation, typically under provisions of the Internal Revenue Code B. federal taxation of gifts, personal, business, or professional expenses C. priority of federal fiscal claims: over those of the states or private entities D. miscellaneous federal taxation (cf. national supremacy: state tax) 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". Robert W. HERRON, Appellant, v. MARYLAND CASUALTY COMPANY, Appellee. No. 21269. United States Court of Appeals Fifth Circuit. June 8, 1965. Roy Maughan, Maughan & Bankston, Baton Rouge, La., for appellant. John S. White, Jr., Kennon, White & Odom, Baton Rouge, La., for appellee. Before RIVES and WISDOM, Circuit Judges, and MORGAN, District Judge. PER CURIAM. The plaintiff below appeals from the district court’s granting of the defendant’s motion for a directed verdict under Rule 50 of the Federal Rules of Civil Procedure. The plaintiff alleged in his complaint that he was seriously injured on November 20, 1961, when an employee of R. H. Harris Construction Company drove a truck into the front end of a caterpillar tractor, which the plaintiff was operating, which jarred the tractor and caused a large clod of earth to fall upon him from the front-end loader of the tractor. At the close of the plaintiff’s case, the district court granted the defendant’s motion for a directed verdict. The trial judge may grant a directed verdict only when there is no evidence which, if believed, would authorize a verdict against the movant. The trial judge must draw against the movant all reasonable inferences most favorable to 1 the party opposing the motion. A corollary to this controlling principle is that the case should be submitted to the jury if the evidence is of such a character • that reasonable men in an impartial exercise of their judgment may reach different conclusions. Drawing all reasonable inferences most favorable to the plaintiff, the following facts are established. From eleven until four-thirty o’clock on the day he was injured, the plaintiff was in the process of loading trucks with wet earth. The operation required the plaintiff to drive the caterpillar tractor into a pile of wet earth in order to fill a large bucket on the front of the tractor, raise the bucket and swing around and dump the wet earth into trucks which would pull under the upraised bucket. The loading operation occurred on an incline. The position of the caterpillar when the plaintiff dumped the earth into the trucks was down the incline from the trucks. The trucks pulled off the street to be loaded. The routine for loading the trucks, as described by the plaintiff, was that “I would go in [to the pile of earth] to get a load and I’d hit the hoist and shift it and then I am coming out, fighting the brake pedals, coming around and loading it on the truck.” As the plaintiff proceeded towards the street to meet the truck, he gradually lifted this bucket of earth. At the occasion of the accident, the plaintiff had moved over to the place where he met the trucks and stopped at full hoist “and the truck was coming under, and when he was coming under, that is the last thing that I remember.” The plaintiff sustained serious injuries when a large clod of wet earth fell on him from the full, upraised bucket. The force of the blow rendered him unconscious. When he regained consciousness, he saw that the arm of the end loader was “sitting down on the truck” and that one of the planks which had been placed around the truck’s bed, to increase the load capacity, had been broken by contact with the arm of the end loader. In answer to the question of whether he thought the truck had hit the front of the caterpillar, the plaintiff answered that “I wouldn’t say for sure or nothing, but I do believe from the depth of my heart, Roy, that the truck did hit the end loader; but I wouldn’t go to oath with it.” We agree with the district court that the plaintiff has failed to prove that the truck driver negligently struck the caterpillar. In Louisiana, as elsewhere, the mere occurrence of an accident does not give rise to a presumption of negligence. In an action in tort in Louisiana the plaintiff has the burden to prove negligence as an affirmative fact. The mere statement of plaintiff’s belief does not support a reasonable inference that the truck struck the tractor. Certainly the plaintiff has not supplied facts which show that the truck driver negligently struck the tractor. The judgment is therefore Affirmed. . The plaintiff also alleged that his injuries resulted through the negligent design or manufacture of the caterpillar tractor or its appurtenances. However, the jury returned a verdict for the defendant, Aetna Casualty and Surety Company, and against the plaintiff on this claim. . Turner v. Atlantic Coast Line R. R., 5 Cir. 1961, 292 F.2d 586, 587. . Minton v. Continental Ins. Co., La.Ct. App.1959, 110 So.2d 789, 797. . Sumrall v. Aetna Cas. & Sur. Co., La. Ct.App. 1960, 124 So.2d 168, 174. It does not appear that evidence of the driver’s negligence may be supplied by the doctrine of res ipsa loquitur since the accident might have happened as the result of one of two causes: the plaintiff was on an incline and his tractor “rared back a little.” See Minton v. Continental Ins. Co., La.Ct.App.1959, 110 So.2d 789, 792, 796. 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_majvotes	2	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. MID-CONTINENT PIPE LINE CO. et al. v. HARGRAVE. No. 2415. Circuit Court of Appeals, Tenth Circuit. March 24, 1942. Rehearing Denied July 14, 1942. I. L. Lockewitz and C. A. Kothe, both of Tulsa, Okl. (J. C. Denton, R. H. Wills, J. H. Crocker, and J. P. Greve, all of Tulsa, Okl., on the brief), for appellants. H. W. Carver, of Wewoka, Okl. (Geo. C. Crump, of Wewoka, Okl., on the brief), for appellee. Before BRATTON, HUXMAN, and MURRAH, Circuit Judges. BRATTON, Circuit Judge. Hubert Hargrave, as agent for fifty-six named persons, instituted this action in the district court of Seminole County, Oklahoma, against Mid-Continent Petroleum Corporation, herein called the petroleum company, and Cosden Pipe Line Company, now Mid-Continent Pipe Line Company, herein called the pipe line company, to recover overtime compensation, liquidated damages, and attorneys’ fees, under the provisions of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. §§ 201-219. The cause was removed to the United States Court for Eastern Oklahoma and there tried without a jury; three of the persons disclaimed during the trial; findings of fact and conclusions of law were made in which it was found and concluded that forty-four of the claimants were entitled to overtime compensation and liquidated damages in respective specified sums, and that attorneys’ fees in the lump sum of $750 should be allowed. Judgment was rendered in favor of plaintiff for $1,295.92, the aggregate amount of the overtime compensation and liquidated damages, and for the attorneys’ fees. Both companies appealed. It is contended that the services rendered were of such nature that the claimants are not entitled to any of the benefits of the Fair Labor Standards Act. The petroleum company was engaged in the business of producing, refining and marketing oil and gas products. It owned oil wells in Seminole County, and it owned and operated a refinery at Tulsa. Its refined products consisted of gasoline, lubricating oil, naphtha, kerosene, distillate, road oil, asphalt, wax and grease. These products were sold to jobbers, dealers and consumers; and a large part of them were shipped into twelve or fourteen other states. The pipe line company was a common carrier of crude oil by pipe line, it transported oil for the petroleum company from Seminole County to the refinery, and it transported oil for others, all in Oklahoma. A strike was in progress and violence to the properties of both companies was being committed or threatened. About four hundred persons including the claimants were employed as watchmen to guard the wells, pipe lines, and other property and equipment against depredation, injury or destruction. Section 3(b) of the act defines “commerce” to mean trade, commerce, transportation, transmission, or communication among the several states or from any state to any place outside thereof; and section 3(j) defines “produced” to mean produced, manufactured, mined, handled, or in any other manner worked on in any state, and provides that for the purposes of the act an employee shall be deemed to have engaged in the production of goods if he was employed in producing manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any state. It is manifest that the act specifically requires that in order for an employee to come within its provisions, the nature of his services must be such that he is engaged in commerce or in the production of goods for commerce. Fleming v. A. B. Kirschbaum Co., 3 Cir., 124 F.2d 567. But in order to be engaged in the production of goods for commerce, it is not requisite that he come in actual, physical contact with the goods produced. It suffices if his services are useful and essential in a process or occupation necessary to the production of goods for commerce. Fleming v. A. B. Kirschbaum Co., supra; Fleming v. Arsenal Building Corporation, 2 Cir., 125 F.2d 278, certiorari granted 62 S.Ct. 801, 86 L.Ed.-. Here the petroleum company was clearly engaged in interstate commerce, and injury or destruction of the wells, pipe lines, and other property and equipment would have impeded, hindered and perhaps destroyed that commerce. The services of the watchmen to protect the property were deemed to be and were essential to the production of the goods for commerce along with the services of the employee who operated the pump, the employee who operated the booster station, the employee who repaired the machinery, and the employee who operated the gadgets which refined the crude oil into gasoline, lubricating oil, or kerosene. The claimants were engaged in the production of goods for commerce within the meaning of the act. Fleming v. A. B. Kirschbaum Co., supra; Cf. Fleming v. Arsenal Building Corporation, supra. Next it is urged with emphasis that under no theory are the watchmen employed by the pipe line company entitled to claim benefits under the act for the reason that the business of that company was solely and exclusively the transportation of crude oil in intrastate commerce. Manifestly it was contemplated from the outset that the crude oil produced from the wells of the petroleum company in Seminole County would be transported by the pipe line company from the wells to the refinery, that it would be there processed, and that much of the refined products would then be shipped in interstate ■commerce to jobbers, dealers, and consumers. The stop at the refinery was not intended as the end of the journey, but merely as an interruption for the purpose of being processed into the refined products. And the transportation of the crude oil in the pipe lines was an essential incident or part in the preparation of the goods for commerce. It seems clear that the watchmen who guarded the pipe lines and other property of the pipe line company used in connection with the transportation of such crude oil for that purpose were engaged in the preparation of goods for commerce, as defined in the act. It is further contended that since the contracts pursuant to which the several watchmen were employed specified a wage in excess of the minimum provided by the act, and since such wage was established prior to the employment of the watchmen and was accepted by them, the claimants are not entitled to further compensation. The basis of the employment at the start was $5 per day of twelve hours, and seven days per week. The hours were later reduced to eight but the compensation per day and the days per week continued without change. Section 6 of the act provides that every employer shall pay to each of his employees engaged in commerce or in the production of goods for commerce not less than 25 cents per hour during the first year from the effective date of the section, not less than 30 cents per hour during the next six years, and not less than 40 cents per hour after the expiration of seven years from such date; and section 7 provides that a workweek shall not exceed forty-four hours during the first year after the effective date of the act, shall not exceed forty-two hours during the next year, and shall not exceed forty hours after the expiration of the second year, and that compensation for overtime shall be not less than one and one-half times the regular rate. The act applies and exacts in mandatory terms the payment of minimum wages and overtime compensation computed on the basis of sections 6 and 7, even where the contract of employment calls for compensation in excess of the minimum wages prescribed in the act. Bumpus v. Continental Baking Co., 6 Cir., 124 F.2d 549; William H. Missel v. Overnight Motor Transportation Company, Inc., 4 Cir., 126 F.2d 98. The judgment is attacked on the additional ground that there was no evidence which showed that during the period of the employment of these watchmen any of the oil produced and refined by the petroleum company moved or was intended to be moved in interstate commerce. No evidence was submitted affirmatively showing that on the very days these employees worked as watchmen any of the oil produced and refined by the petroleum company actually moved in interstate commerce. But there was evidence showing generally that the petroleum company was engaged in the business of producing crude petroleum, refining it, and selling and shipping a large part of the refined products in interstate commerce. And there was no suggestion in the course of cross-examination or otherwise that any cessation or change occurred during the period in question. The evidence was abundantly sufficient to establish a prima facie showing that the oil produced and refined during such period moved or was intended to be moved in interstate commerce. Next comes the contention that since it was established by the evidence that the two companies were separate and distinct corporate entities and that each acted separately from the other in respect to the employment of the watchmen, the joint judgment resulted in an unwarranted increase in the amount of the recovery. The court found in substance that the two companies were acting jointly when any of the claimants were said to have been employed for a time by one of the companies during the period in question and for a time by the other. The companies acted separately in issuing checks in payment of the wages of the claimants. But there was testimony that both companies employed a single person to hire the watchmen, that he worked for both in employing them, that they were employed to guard die properties of both, that they worked part of the time under the employ of one and part under the employ of the other, and that sometimes they worked for both at the same time. The evidence and the fair inferences to be drawn from it support the finding. It therefore must stand on appeal. Rule of Civil Procedure 52(a), 28 U.S.C.A. following section 723c. And certainly if the two companies acted jointly in the premises a joint judgment against them wás warranted. The award of attorneys’ fees is challenged on the ground of being excessive. While the aggregate sum sought for overtime compensation and liquidated damages was not large, there were more than fifty separate claimants and most of them recovered. Plaintiff moved to remand the action, and the companies moved to dismiss it on jurisdictional grounds. In addition to the time consumed in the trial, the attorneys for the claimants prepared and presented to the trial court two written briefs, one in opposition to the motion to dismiss and the other on the merits; and at the time of fixing the amount of the fees it seemed fairly apparent to the court that an appeal would be taken which would require the attorneys to brief and argue the case in this court, and they have done so. In view of all the facts and circumstances, the amount awarded cannot be regarded as objectionably excessive. The final contention is that plaintiff was not the real party in interest, that the action was not maintainable in his name in the state court, and that on removal to the United States Court it could not be maintained in that manner. The several claimants signed a written instrument in which it was recited that they employed plaintiff to represent them in the collection of the overtime from the two companies, gave him authority to represent them in or out of court, and appointed him as their agent. Section 16(b) of the act, supra, provides inter alia that an action for the recovery of overtime compensation and liquidated damages may be maintained in any court of competent jurisdiction in the name of the employee or employees in interest or in the name of a designated agent; and Title 12, section 223, Oklahoma Statutes 1941, provides inter alia that a person expressly authorized by statute may bring an action without joining with him the person for which benefit it is prosecuted. State and federal courts are vested with concurrent jurisdiction of suits of a civil nature arising under the laws of the United States, except where Congress has expressly limited jurisdiction to the federal courts. In the absence of such an express limitation, a state court of general jurisdiction will enforce a right of civil recovery arising under an act of Congress and susceptible of adjudication conformably to the prevailing rules of procedure. Grubb v. Public Utilities Commisssion of Ohio, 281 U.S. 470, 50 S.Ct. 374, 74 L.Ed. 972. Instead of Congress limiting to the federal courts jurisdiction of an action for the recovery of overtime compensation and liquidated damages under the act, it expressly provided that such an action may be maintained in any court of competent jurisdiction. And the distinct courts in Oklahoma are courts of general jurisdiction. Section 16(b), supra, and Title 12, section 223, supra, construed together, clearly authorized the maintenance of the action in the state court in the name of the agent, and it was likewise maintainable in that manner after removal. The judgment is affirmed. Question: What is the number of judges who voted in favor of the disposition favored by the majority? 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. Jack MANNING and Clara Ann Manning, Plaintiffs-Appellees, v. ALTEC, INC., Defendant-Appellant. Jack MANNING and Clara Ann Manning, Plaintiffs-Appellees, v. MOBILE AERIAL TOWERS, INC., Defendant-Appellant. Jack MANNING and Clara Ann Manning, Plaintiffs-Appellants, v. MOBILE AERIAL TOWERS, INC., and Altec, Inc., Defendants-Appellees. Nos. 73-1219 to 73-1221. United States Court of Appeals, Sixth Circuit. Argued Oct. 9, 1973. Decided Dec. 5, 1973. William N. Groover, Knoxville, Tenn., for Altec, Inc.; Cheek, Taylor & Groover, Knoxville, Tenn., of counsel. George^ D. Montgomery, Knoxville, Tenn., for Mobile Aerial Towers, Inc.; Kennerly, Montgomery, Howard & Finley, Knoxville, Tenn., of counsel. W. Zane Daniel, Knoxville, Tenn., J. D. Lee, Madisonville, Tenn., for Jack Manning and Clara Ann Manning. Before WEICK, EDWARDS and LIVELY, Circuit Judges. LIVELY, Circuit Judge. A diversity action in the district court has resulted in three appeals which were consolidated and heard together in this court. Jack Manning, an employee of the Knoxville Utility Board, was seriously injured while at work on July 1, 1970. At the time the injury occurred Manning was working in a bucket elevated above the ground by a crane or boom to which the bucket is attached, this equipment being commonly referred to as a “cherry picker.” He and another lineman had been lifted in the bucket to a position near a group of electric wires from which they intended to remove a dead line. Manning’s shoulder came into contact with an energized line and the resulting injury required that both hands and a portion of both arms be amputated. Clara Ann Manning joined in the complaint seeking damages for loss of consortium and services. The jury returned a verdict of $450,000 in favor of Jack Manning and $75,000 in favor of Clara Ann. Manning. The district court, on its own motion, remitted $100,000 of the Jack Manning verdict and $45,000 of the Clara Ann Manning verdict and entered judgment for $350,000 and $30,000 respectively. The plaintiffs accepted these remittiturs under protest and have appealed in No. 73-1221. The defendants in the action in the district court were the manufacturer, Mobile Aerial Towers, Inc. (Mobile) and Altec, Inc. (Altec), the distributor of the “cherry picker” equipment. It was stipulated that the equipment had been purchased by Manning’s employer on July 1, 1966 and had been put in operation on July 27, 1966. At an informal pretrial conference held in chambers immediately before the jury trial began, attorneys for the plaintiffs stated that the case would be tried as a products liability action under Section 402A of the Restatement of Torts and that the only negligence to be proven was that the equipment left the hands of the manufacturer with a defective servo valve. Although Jack Manning could remember nothing about the accident and there were no eye witnesses, his theory was that the bucket in which he was working tilted and this resulted in his body being thrown against the “hot” wire. The Liability Issue Both defendants made motions for a directed verdict and for judgment notwithstanding the verdict, contending there was no evidence of negligence. Jack Manning and other employees of the Knoxville Utility Board testified that the bucket on the particular piece of equipment in question had tilted on previous occasions, beginning in the period one month to six weeks after the equipment was delivered to the employer and continuing to the morning of Manning’s injury. A fellow worker who was on the ground testified as to Manning’s position with respect to the energized wire immediately before the accident which he described as the normal position for the work he was doing and was permitted, on the basis of 17 years experience, to testify that in his opinion the injury was caused by a sudden movement of the bucket. Each side produced expert testimony on the function of the servo valve and the effect of a defective servo valve on the stability of the bucket. The expert for the plaintiffs characterized the servo valve as the heart of the system which keeps the bucket steady in a vertical position as the boom raises and lowers it. He stated that if the servo valve leaks the bucket would have a tendency to rock or tilt. In answer to a hypothetical question he said the only thing which could cause the unit to tilt would be a malfunction of the servo valve. Although there was testimony from the experts produced by the defendants which contradicted that of the plaintiffs’ witness, this conflict only made a jury issue. Altec further contended that it was entitled to a directed verdict because the servo valve was sealed inside of the equipment and it had no opportunity to inspect the valve and was really nothing more than a conduit between the manufacturer and the purchaser of the equipment. However, there was evidence that the servo valve was accessible for inspection and repair and that all that was required to inspect it was the simple removal of a small plate. The court was justified in refusing to treat the servo valve as a product in a sealed container. Cf. Walker v. Decora, Inc., 225 Tenn. 504, 471 S.W.2d 778 (1971). Mobile asserted that it should be relieved of liability because the servo valve had been overhauled and was not in substantially the same condition as when it left Mobile’s hands. However, the evidence concerning repairs to the equipment was not sufficiently clear to justify this conclusion. An examination of all of the evidence in the case convinces us that the court correctly submitted the issue of liability to the jury. This was not a case where only one possible verdict could have been reached by a reasonable jury, and therefore it would have been improper to have granted a directed verdict or judgment notwithstanding the verdict. Reeves v. Power Tools, Inc., 474 F.2d 375 (6th Cir. 1973). On appeal Altec complains that it was denied due process of law by the refusal of the trial judge to permit its counsel to cross-examine a witness produced by the co-defendant Mobile. The trial court ruled that the questions which counsel for Altec attempted to ask the witness were repetitive and stated that both defendants were in the same position in the case. Counsel for Altec did not challenge this ruling by the court and made no attempt to show that the witness would give different answers to his questions nor did he offer to the court an avowal concerning questions which he proposed to ask the witness and the answers he expected to receive. Any error by the trial court in this respect was waived by Altec. After the verdict was rendered Altec made a motion for judgment over against Mobile on the theory that it was entitled to indemnity for the full amount of the verdict under the evidence in this case. The court properly denied the motion since no cross-claim had been filed by Altec against Mobile. Both defendants argued in the district court and in this court that Clara Ann Manning’s cause of action for loss of consortium was barred by the applicable Tennessee statute of limitations. The right of a wife to recover damages for loss of consortium is created by statute in Tennessee. Tennessee Code Annotated (TCA) § 25-109. The general statute of limitations for personal tort actions, TCA § 28-304, has previously been construed to require the commencement of products liability actions within one year after the date of purchase of defective equipment rather than the date of injury. Jackson v. General Motors Corp., 223 Tenn. 12, 441 S.W.2d 482, cert. denied, 396 U.S. 942, 90 S.Ct. 376, 24 L.Ed.2d 243 (1969). As noted hereafter TCA § 28-304 has been amended since this decision was rendered. A second statutory provision, TCA § 50-914, provides that limitations do not begin to run in an employee’s action for personal injuries against some person other than his employer until the date of the injury. This provision applies to the claim of Jack Manning. Dobbins v. Terrazzo Machine and Supply Co., Tenn., 479 S.W.2d 806 (1972). The district court held that Clara Ann Manning’s claim for loss of consortium was derivative from Jack Manning’s claim for personal injuries and that the same statute of limitations should apply to both claims. On April 4, 1972 the Tennessee General Assembly enacted an amendment to TCA § 28-304 to provide that no person shall be deprived of his right to maintain an action in a products liability case until one year from the date of his injury. The history of legislative amendments of TCA § 28-304 in response to Jackson v. General Motors Corp., supra, leads us to the conclusion that it would be against the public policy of Tennessee to hold that the right of action of Clara Ann Manning was barred by limitations because she did not file suit within one year after her husband’s employer purchased the equipment even though she filed within one year after the date of his injury. Bradley v. General Motors Corp., 463 F.2d 239 (6th Cir. 1972). The district court correctly held that the action of Clara Ann Manning was timely filed. The Remittitur Issue Although constitutional objections have been raised, it is now settled that a trial court which deems a jury’s award of damages excessive may order the plaintiff to remit a portion of the verdict or suffer a new trial. Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935). In diversity cases from the district courts in Tennessee this court has approved the Tennessee practice of permitting a plaintiff to accept remittitur under protest and then appeal the trial court's ruling. Mooney v. Henderson Portion Pack Co., Inc., 334 F.2d 7 (6th Cir. 1964). In the second appeal of the Mooney case this court discussed the underlying rationale of the practice of remittitur, holding that it is . . ancillary to ... [the] right of the trial judge to grant a new trial because of the excessiveness of the jury verdict.” Mooney v. Henderson Portion Pack Co., Inc., 339 F.2d 64, 66 (6th Cir. 1964). Since the action of a trial court in granting a new trial on the ground that a verdict is excessive is subject to review only for abuse of discretion, the same standard is applied to an order of remittitur. In order to determine whether there has been an abuse of discretion it is necessary to examine the evidence on damages and the considerations which led the trial judge to order remission of a portion of the verdict. It is undisputed that Jack Manning is totally and permanently disabled. At the time of the accident he was 39 years old, in good health and had been employed as a journeyman lineman for approximately 20 years. His earnings for the three years immediately preceding the accident and for the first half of 1970 were as follows: 1967 ..................$8,785.47 1968 .................. 9,531.63 1969 .................. 9,954.11 Jan.-June 30, 1970 ____ 5,512.14. The mortality tables in the Tennessee Statutes which were admitted and upon which a proper instruction was given, indicated a life expectancy for a person 41 years of age (his age at the time of trial) of 31.29 years. In addition to lost future wages, a loss of earnings in the amount of $21,750 was shown between the date of the accident and the trial. Medical expenses of $22,570.27 were proven and the undisputed testimony of a manufacturer of prosthetic devices was that Jack Manning will be required to expend $24,500 for artificial limbs during the remainder of his life. The plaintiff spent 56 days in a hospital in Knoxville and 90 days at specialized medical facilities in New Jersey. Although the stumps of his arms healed well, Manning has complained of recurring phantom arm pain which has required medical treatment. It was shown that Manning had built the home in which he and his family lived with very little outside help and possessed skills which enabled him to maintain his property. It has been his practice to work in his spare time around the house and at the church where he was active. Although he had achieved some proficiency with artificial limbs at the time of the trial, which was more than two years after the injury, he was still unable to care for himself. It was necessary that his wife brush his teeth, comb his hair, and shave him and assist him in dressing and at the table. He was unable to care for himself in the bathroom and needed the aid of his wife there. Because of his severe incapacity, Manning felt that he and his wife should not have any more children and a bilateral vasectomy was performed to sterilize him. The very sparse evidence on Mrs. Manning’s claim for loss of consortium and services is set forth in full: Q What has been his health over the years, has he been a good healthy person ? A Yes. Q And over the years has he been healthy and working around the house as much as can be expected of him? A Yes. He has done everything around the house. He built the house we live in and he has taken care of everything that is needed to be taken care of around the house. And also he has done my mother’s work and built her house. My father is deceased. Q When you. say he built the house, does that mean the carpentry work and masonry work ? A All the carpentry work and he mixed cement for the brick mason and he helped the plumbers. Q So he did have some help but pretty much he did a lot of it himself? A Yes. Q Now in addition to his work there has he performed work and helped out on other jobs or helped other people around ? A Yes. He, like I say, worked for my mother and he does a lot of work in church, anything needs to be done. Q Has he been a very active person over the years ? A Yes. In his Memorandum filed in response to the various posttrial motions of the defendants, the trial judge set forth his reasons for granting remittitur as follows: Another difficulty is that these verdicts are substantially higher than those rendered in similar actions under similar circumstances in recent years. Mr. Manning proved medical expenses and lost wages of approximately $69,000.00. Assuming that he continued to earn at the rate of $11,000.00 per year and retired at age sixty-five, the value of his future earnings, capitalized at 6%, is approximately $199,000.00. Thus, his total proven economic loss is around $268,000.00. Proof of damages is lacking in Mrs. Manning’s action for loss of consortium. Consortium has been defined as: “ . . . the conjugal fellowship of husband and wife, and the right of each to the company, cooperation, affection and aid of the other in every conjugal relation.” We charged the jury in this ease as to that definition and further charged them that loss of consortium is a right of action separate from that of the husband for his damages, that loss of services is a part of the loss of consortium, and that both loss of services and loss of consortium must be proven by the wife. It is to be observed from this definition that there are two main elements of damage in this cause of action. First is the loss of conjugal relations. Mrs. Manning experienced this loss for the few weeks Mr. Manning was in the hospital and, perhaps, for a comparatively short time thereafter. These relations were resumed some time ago, and Mr. Manning underwent a vasectomy. The damages from this loss are not great. The second element of damage is loss of services. There is evidence in the record that Mr. Manning did the usual things husbands are expected to do, namely, mow the grass, wash the dishes and sweep the floors. As the Court recalls there is no proof in the record to show the value of these services in monetary terms. This value could not be large, and, in no case, could it be said to amount to $75,000.00. Joint Appendix, pp. 10a-lla. If the calculations by the trial judge of direct economic loss were correct, the reduced verdict would include damages for physical pain and mental anguish of $82,000. No universally accepted standard has been found for testing the application of remittitur. In Gorsalitz v. Olin Matheson Chemical Corp., 456 F.2d 180 (5th Cir.), cert. denied, 407 U.S. 921, 92 S. Ct. 2463, 32 L.Ed.2d 807, rehearing denied, 409 U.S. 899, 93 S.Ct. 108, 34 L. Ed.2d 159 (1972), the court held that the correct standard for determining ex-cessiveness of a verdict is “ . the amount which, under the evidence in the case, was the maximum that the jury reasonably could find to be compensatory for appellant’s loss.” Id. at 181. In the opinion Judge Godbold referred to the job of applying this rule in a personal injury case in which there are pain, suffering, and disfigurement as a “Solomonic task.” Of course, this task first falls upon the jury and becomes a responsibility of the judge only if the jury fails to stay within limits drawn by the evidence in the case. The District of Columbia Circuit follows the same rule which obtains in this circuit that the granting of a motion for a new trial based on excessiveness of the jury’s verdict is reviewable only for abuse of discretion. In Taylor v. Washington Terminal Company, 113 U.S. App.D.C. 110, 409 F.2d 145, cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85 (1969), a case involving remittitur, the court made the following observation, with which we agree: Where the jury finds a particular quantum of damages and the trial judge refuses to disturb its finding on the motion for a new trial, the two factors press in the same direction, and an appellate court should be certain indeed that the award is contrary to all reason before it orders a remit-titur or a new trial. However, where, as here, the jury as primary fact-finder fixes a quantum, and the trial judge indicates his view that it is excessive by granting a remittitur, the two factors oppose each other. The judge’s unique opportunity to consider the evidence in the living courtroom context must be respected. But against his judgment we must consider that the agency to whom the Constitution allocates the fact-finding function in the first instance — the jury — has evaluated the facts differently. Id. at 148. The test adopted by the court is that it will “ . . . reverse the grant of a new trial for excessive verdict only where the quantum of damages found by the jury was clearly within ‘the maximum limit of a reasonable range.’ ” (emphasis in original). Id. at 149. In view of the nature and extent of Jack Manning’s injuries and the substantial direct economic loss which he suffered as a direct consequence of his injuries, we believe that the jury’s award of $450,000 was clearly within the “maximum limit of a reasonable range” of compensation for his loss. Accordingly, it was an abuse of discretion to direct the remittitur of $100,000 of the damages awarded him. There was no direct evidence of the value of the loss of consortium and services claimed by Clara Ann Manning and the verdict of the jury was based solely on inferences to be drawn from the facts in evidence, concerning her husband’s injuries. We believe that the trial judge’s view that this verdict is outside the maximum range deserves greater deference than the verdict of the jury under the particular circumstances of this case. Accordingly, we find no abuse of discretion in the action of the trial court in granting a remittitur of $45,000 of the damages awarded Mrs. Manning. The judgment of the district court in Nos. 73-1219 and 73-1220 is affirmed. In No. 73-1221 the judgment of the district court is affirmed with respect to the appeal of Clara Ann Manning and reversed and remanded with respect to the appeal of Jack Manning with directions to restore the verdict in favor of Jack Manning to the amount awarded by the jury. Costs will be taxed to the defendants. . The district court’s opinion is reported at 359 F.Supp. 211 (E.D.Tenn.1972). . Sec. 402A. Special Liability of the Seller of Product for Physical Harm to User or Consumer (1) One who sells any product in a defective condition unreasonably dangerous to the user or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. 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_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". AUDITOR OF PUBLIC ACCOUNTS OF ILLINOIS v. IZATT. No. 10810. United States Court of Appeals Seventh Circuit. July 1, 1953. Latham Castle, Atty. Gen., and William C. Wines, Asst. Atty. Gen., Raymond S. Sarnow, A. Zola Groves and Edward M. White, Asst. Attys. Gen., of counsel, for appellant. Maurice J. Walsh and Morris A. Haft, Chicago, Ill., for appellee. Before DUFFY, FINNEGAN and SWA1M, Circuit Judges. FINNEGAN, Circuit Judge. On February 19, 1952, The Auditor of Public Accounts of the State of Illinois, for the use of the People of the State of Illinois, filed suit in the United States District Court for the Northern District oí Illinois, Eastern Division, against Dearborn Packing Company, an Illinois Corporation, and Russell A. Izatt, its president, Julius Lopin, its treasurer, and Alvin Rubens, its secretary. The plaintiff-appellant sought to recover damages for overcharges paid by the State of Illinois to certain of the defendants, under the provisions of the Defense Production Act of 1950, Title 4, sec. 409(c), 64 Stat. 811, 50 U.S.C.A.Appendix, § 2109 (c). Each of the individual defendants moved for the dismissal of the counts in the complaint seeking recovery against him upon the following grounds: “A — The complaint does not disclose in any manner, shape or form any right in the plaintiff to maintain its action herein, nor does the complaint show or allege any obligation or duty (owed) by this defendant to the plaintiff.” “B — The action was not commenced within one year from the date of the occurrence of the alleged violations set forth in plaintiff’s complaint; that section 2109 title 50 United States Code Annotated (App.) paragraph (c) restricts a plaintiff entitled to bring an action under such section to the commencement of a good cause of action within one year from the date of the occurrence of the alleged violation of such act.” “C — This defendant moves the court pursuant to the general law, to dismiss the complaint filed herein against him on the ground that said complaint is substantially insufficient in law on its face.” On November 25, 1952, the trial court allowed the motions of the individual defendants to dismiss the complaint and ordered that they be dismissed from the action. The plaintiff prosecutes this appeal to reverse such finding and order. The cause is still pending in the District Court against the corporate defendant, Dearborn Packing Company. It is sufficient for the purposes of this appeal to say that the complaint charged that the defendant corporation acting through the individual defendants, as its officers and agents, agreed to sell and .actually did sell to the State of Illinois meat and meat products, and that the State bought and paid overceiling prices for such products to be used and consumed by inmates of State institutions. The sole question presented by this record is: Are the officers, of the corporation that makes sales at overceiling prices, and who actually participate in and bring about such sales, liable as individuals, with the corporate seller, under the Defense Production Act of 1950 ? The section of the Defense Production Act of 1950 involved in this proceeding is subsection (c) sec. 409 of the Act of September 8, 1950, 64 Stat. 811, as amended, 50 U.S.C.A.Appendix, § 2109(c). It now reads as follows: “If any person selling any material or service violates a regulation or order prescribing a ceiling or ceilings, the person who buys such material or service for use or consumption other than in the course of trade or business may, within one year from the date of the occurrence of the violation, except as hereinafter provided, bring an action against the seller on account of the overcharge. In any action under this subsection, the seller shall be liable for ■reasonable attorney’s fees and costs as determined by the court, plus whichever of the following sums is greater: (1) such amount not more than three times the amount of the overcharge, or the overcharges, upon which the action is based as the court in its discretion may determine, but in no event shall such amount exceed the amount of the overcharge, or the overcharges, plus $10,000 or (2) an amount not less than $25 nor more than $50 as the court in its discretion may determine: Provided, however, That such amount shall be the amount of the overcharge or overcharges if the defendant proves that the violation of the regulation or order in question was neither willful nor the result of failure to take practicable precautions against the occurrence of the violation. For the purposes of this section the word ‘overcharge’ shall mean the amount by which the consideration exceeds the applicable ceiling.” The legislative history of the cited provision of Defense Production Act of 1950 will be of material assistance in the solution of the problem presented by this proceeding. The subsection (c) finds its origin in and is taken from the Emergency Price Control Act of June 30, 1942, 56 Stat. 34, Title [I, sec. 205, subsection (e) of that Act provides that if any person selling a commodity violated a regulation prescribing a maximum price the person who buys such commodity for use or consumption, other than in the course of trade or business may bring an action either for $50 or for treble the amount by which the consideration exceeded the applicable maximum price, whichever is greater, plus reasonable attorney’s fees and costs as determined by the court. “For the purposes of this section the payment or receipt of rent for defense-area housing * * * shall be deemed the buying or selling of a commodity”. We have italicized the provisions authorizing the buyer to bring an action in order to emphasize the fact that as originally written the subsection did not designate positively the person or persons against whom the buyer might proceed in his action. The inference, of course, was plain that the action should be against the person or persons who sold the commodity in violation of the regulation prescribing the maximum price. On June 30, 1944, Title II, sec. 205, subsection (e) of the Emergency Price Control Act of 1942 was amended so as to read: “If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may, within one year from the date of the occurrence of the violation, except as hereinafter provided, bring an action against the seller on account of the overcharge. “In such action the seller shall be liable for reasonable attorney’s fees and costs as determined by the court plus whichever of the following sums is the greater (1) such amount not more than 3 times the amount of the overcharge or the overcharges upon which the action is based as the court in its discretion may determine, or (2) an amount not less than $25 nor more than $50 as the court in its discretion may determine: Provided, however, that such amount shall be the amount of the overcharge or overcharges or $25 whichever is greater if the defendant proves that the violation of the regulation order or price schedule in question was neither wilful nor the result of failure to take practicable precautions against the occurrence of the violation. “For the purposes of this section the payment or receipt of rent for defense area housing accommodations shall be deemed the buying or selling of a commodity as the case may be, and the word ‘overcharge’ shall mean the amount by which the consideration exceeds the applicable maximum price.” 58 Stat. 640. We have again italicized portions of the subsection to emphasize that this amendment of 1944 pointed out that the suit of the overcharged buyer should be brought “against the seller on account of the overcharge.” On September 8, 1950, the Defense Production Act of 1950, as heretofore cited, was passed, 64 Stat. 798, et seq., 50 U.S.C.A. Appendix, § 2061, et seq. The former subsection (e), sec. 205, title II of the Emergency Price Control Act of 1942 was placed therein as sec. 409, subsection (c) of title IV, 50 U.S.C.A.Appendix, § 2109(c). It was amended on July 31, 1951, 65 Stat. 136, by striking therefrom the provisions limiting the recovery in a suit by an overcharged purchaser to the amount of the overcharge plus $10,000, and also by adding subsections (d) and (e). These additions are immaterial to the consideration of the question presented by this record. The foregoing resume of the history of the legislative enactment known as title IV, sec. 409, subsection (c), of the Defense Production Act of 1950, 50 U.S.C.A. Appendix, § 2109(c) establishes in our opinion that since the Act of June 30, 1944, the buyer of a commodity, for which a maximum price has been prescribed, who has been overcharged in his purchase thereof, may bring a civil action for damages for such violation of the prescribed maximum price against the seller of the commodity and against the seller alone. The subsection does not give such a purchaser the right to sue the clerk or other agent of the seller. In' the case at bar, the purchaser, The State of Illinois, having purchased the meat and meat products involved for use and consumption by the patients or inmates of State institutions, and having paid a price over and above the prescribed maximum for such commodity, is entitled under the terms of the subsection to sue the Dear-born Packing Company, the seller, for the damages provided, for in the Defense Production Act. The agents and officers of the seller are not, under the terms of the statute, liable to respond for s.uch damages in such an action. This precise question, so far as we are able to determine, has not been passed upon by any federal court of appellate jurisdiction. However, cases in the District Courts of the United States in New York, California and Missouri have also reached our conclusion. See Bowles v. Cardinal Cutlery Corp., D.C.N.Y., 69 F.Supp. 435; Porter v. Schaefer, D.C.Cal., 69 F.Supp. 1013; and United States v. Koch Bros., Mo., 109 F.Supp. 540. Compare also the opinion in Cochran v. Nelson, 1946, 26 Wash.2d 82, 17-3 P.2d 769, where the point is considered and passed upon. In our historical resume we have included the provisions of the Emergency Price Control Act of .1942, 56 Stat. 34, and its amendment in June 1944, 58 Stat. 640, in reference to' suits for treble damages arising from the payment or receipt of excess rent for defense area housing accommodations. Such provisions are not found in the Defense Production Act of 1950, because on June 30, 1947, 61 Stat. 193, 50 U.S.C.A.Appendix, § 1881 et seq. an act relating to maximum rent on housing accommodations was passed by Congress which embodied the provisions of the Emergency Price- Control Act, as amended in 1944. The Act of 1947, 61 Stat. 199, provides that any person who demands, accepts or receives any rent payment in excess of the maximum prescribed under the Act snail be liable to the person from whom he demands, accepts or receives such rent, etc. In other words, the language of the act is very different from that used in reference to the purchase of commodities above ceiling prices in the Emergency Price Control Act. Anyone who demands, accepts or receives rent in excess of the prescribed maximum is liable to the person from whom he demands, accepts or receives the excess rent. On the other hand, as we have heretofore pointed out, the purchaser of a commodity for a price in excess of the maximum prescribed may recover in a civil action for damages against only the seller of such commodity. Consequently, cases involving treble damages for rent violations have been disregarded as having no decisive value in the solution of the problem presented by this record. The judgment of the District Court is affirmed. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_appel1_7_5	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). Sylvester GAVIN, Petitioner-Appellant, v. H. Gary WELLS, Respondent-Appellee. No. 87-1864. United States Court of Appeals, Sixth Circuit. Sept. 19, 1990. Sylvester Gavin, Muskegon, Mich., pro se. Edgar L. Church, Jr., Asst. Atty. Gen., Corrections Div., Lansing, Mich., for respondent-appellee. Before MILBURN and BOGGS, Circuit Judges, and CELEBREZZE, Senior Circuit Judge. BOGGS, Circuit Judge. This case is before the court on remand from the Supreme Court of the United States. — U.S. -, 109 S.Ct. 2425, 104 L.Ed.2d 983. This court originally affirmed the district court’s denial of Gavin’s habeas corpus petition, which attacked judgments of conviction in 1955 for breaking and entering and in 1970 for first degree murder. He is presently incarcerated for the 1970 conviction. The Supreme Court remanded for us to consider the case in light of its opinion in Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). We have reviewed that decision and received supplemental briefs of the parties. Gavin raises three primary contentions on appeal, none of which has merit in light of Maleng. First, he asserts that his 1955 conviction violated the United States Constitution. This conviction, however, was fully served prior to Gavin’s filing of this habeas corpus petition. We therefore have no jurisdiction to consider this argument. Maleng, 109 S.Ct. at 1926. Second, Gavin suggests that his 1955 conviction enhanced the sentence imposed for his 1970 first degree murder conviction. We disagree. Michigan law applicable to Gavin’s first degree murder conviction provided for a mandatory sentence of life imprisonment. MCL 750.316. Given the mandatory nature of the 1970 sentence, his 1955 conviction cannot in any sense have “enhanced” this sentence. Only an actual enhancement of the 1970 sentence based on the 1955 conviction would implicate the question left unanswered in Maleng: “the extent to which [an earlier] conviction ... may be subject to challenge in the attack upon [later] sentences which it was used to enhance.” 109 S.Ct. at 1927. Accordingly, Gavin may not attack the 1970 conviction for which he is presently incarcerated by means of a challenge to the 1955 conviction. See Crank v. Duckworth, 905 F.2d 1090, 1091 (7th Cir.1990). Third, Gavin asserts that the parole board’s consideration of his allegedly invalid 1955 conviction resulted in the assignment of a discretionary parole review date five years later than would have been assigned without consideration of his conviction. It is clear that state prisoners have no federal constitutional right to parole. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103-04, 60 L.Ed.2d 668 (1979). At most, Gavin asserts that the state parole board violated a state procedural rule in considering his allegedly invalid 1955 conviction, a claim that does not rise to federal constitutional proportions. See Wallace v. Turner, 695 F.2d 545, 549 (11th Cir.1983). Thus, we AFFIRM the decision of the district court dismissing Gavin’s petition for a writ of habeas corpus. . Technically, this review is not for the purpose of granting parole, but rather is a review for the purpose of deciding whether to recommend to the Governor that he commute the sentence. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
songer_abusedis	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 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". GIRARD TRUST CO. et al. v. COMMISSIONER OF INTERNAL REVENUE. No. 7500. Circuit Court of Appeals, Third Circuit June 27, 1941. CLARK, Circuit Judge, dissenting. Shippen Lewis, of Philadelphia, Pa., and E. F. Colladay, of Washington, D. C, D. C. Colladay and Wilton H. Wallace, both of Washington, D. C. (Colladay, McGarraghy, Colladay & Wallace, of Washington, D. C., of counsel), for petitioners. Joseph M. Jones, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and J. Louis Monarch, Sp. Asst, to the Atty. Gen., on the brief), for respondent. Before BIGGS, MARIS, CLARK, JONES, and GOODRICH, Circuit Judges. GOODRICH, Circuit Judge. This case, as it comes to us presents one problem. That problem is the correctness of the conclusion of the Board of Tax Appeals which disallowed a deduction from the estate tax of a bequest by a testatrix to the Board of Temperance, Prohibition and Public Morals of the Methodist Episcopal Church. The testatrix, Ida Simpson, died in 1933. The statute applicable is the Revenue Act of 1926, c. 27, 44 Stat. 9, § 303(a) (3), 26 U.S.C.A. Int.Rev.Acts, page 234, which authorizes the deduction from the value of the gross estate of “The amount of all bequests * * * to * * * any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes * * .” The beneficiary in question was incorporated in 1917 in the District of Columbia under the statute dealing with “benevolent, charitable, educational, * * religious, or missionary” societies. D.C.Code 1929, T. 5, § 121 et seq. The objects stated in the certificate of incorporation are: “To promote the cause of temperance by every legitimate means; to prevent the improper use of drugs and narcotics; to render aid to such causes as in the judgment of the board of trustees, tend to advance the public welfare.” While the Commissioner suggests significance in the fact that the Board of Temperance is separately organized, any possible significance disappears when it is seen (as is shown) that its relation to the General Conference of the Church is the same as that of such bodies as its Board of Foreign Missions and Board of Home Missions. In determining whether the bequest to the Board of Temperance qualifies for deduction the Board’s relationship to the Methodist Episcopal Church is relevant. So, also, is the position of the governing body of the Church with regard to both the use and sale of intoxicating liquor. It appears that the General Conference is the sole law making body of the Church and each of its Boards and also constitutes its Supreme Court. The first General Conference of the Methodist Church was held in 1784. In the first General Rules there are statements dealing with and condemning the liquor traffic. This attitude has remained unchanged. The General Rules state the expectation that those subject to the discipline of the Church shall continue to evidence their desire of salvation by avoiding evil, such as “drunkenness, buying or selling spirituous liquors or drinking them, unless in cases of extreme necessity”. Paragraph 74 of the Discipline declares the Church’s policy: “We therefore regard voluntary total abstinence from all intoxicants as the obligation of the citizen and the complete legal prohibition of the traffic in alcoholic drinks as the duty of civil government.” The Board of Temperance has never adopted any by-laws and operates under the Articles of Discipline of the General Conference. We do not understand that either the Commissioner or our dissenting brother would question the application of the deduction here if the purpose of the activity of the Board of Temperance stopped short of any possible attempt to influence or otherwise affect legislation. Reference to the law of charitable trusts we believe in point, as does the dissent, although counsel for neither side has pressed the analogy. It is clear that a trust for the advancement of religion is charitable. Scott on Trusts, § 371. It is clear, too, from the facts of this case that the Methodist Episcopal Church has, since its organization in 1784, regarded personal practices of its members with regard to the use of intoxicating liquors as an inherent part of its religious practices. It is not the business of the court either to approve or disapprove of such inclusion or exclusion so long as no violation of secular law is involved. The law is well settled, also, that while a charitable trust cannot be created for a purpose which is illegal, Scott on Trusts, § 377, the object of the trust does not have to be the advancement of a majority view. It must not, of course call for violation of the law nor must it be “irrational”. It is only when the court is convinced that the purpose of the trust can serve no rational object that the court will declare it invalid. Restatement, Trusts, § 374; Scott on Trusts, § 370.4. Indeed, aside from the added point of the prohibition of the use of intoxicants as a religious practice, numerous cases have upheld, as a charitable trust, one for the promotion of temperance in the use of intoxicating liquors. Directly upon the point, a contribution to the World League Against Alcoholism was held deductible from gross income under a clause in the Revenue Act of 1928 similar to that here in question. Cochran v. Commissioner of Internal Revenue, 4 Cir., 1935, 78 F.2d 176. The difficult part of this case comes with regard to that part of the activity of the Board of Temperance which has to do with the attempt to influence legislation. A bright line between that which brings conviction to one person and its influence on the body politic cannot be drawn. Mr. Justice Holmes forcefully puts it: “If you * * * want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition”. Religion includes a way of life as well as beliefs upon the nature of the world and the admonitions to be “Doers of the word and not hearers only” (James 1:22) and “Go ye therefore, and teach all nations, * * *” (Matthew 28:19) are as old as the Christian Church. The step from acceptance by the believer to his seeking to influence others in the same direction is a perfectly natural one, and it is found in countless religious groups. The next step, equally natural, is to secure the sanction of organized society for or against certain outward practices thought to be essential. Thus we had Sunday observance laws long before prohibition of alcohol became an important issue. The advocacy of such regulation before party committees and legislative bodies is a part of the achievement of the desired result in a democracy. The safeguards against its undue extension lie in counter-pressures by groups who think differently and the constitutional protection, applied by courts, to check that which interferes with freedom of religion for any. Nor has the law sought to draw such a bright line between the exercise of private and public influence. Judge Hand has pointed out that the promoters of a charity are not unclassed when the charity seeks a special charter or when a society to prevent cruelty to children seeks positive support of law to accomplish its ends or when a university seeks legislation to provide its appropriations. Surely a church would not lose its exemption as a religious institution if, pending a proposal to repeal Sunday observance laws, the congregation held a meeting on church property and authorized a committee to appear before a legislative body to protest against the repeal. The majority of the charitable trust cases recognize the validity of a gift to prohibit or minimize manufacture and sale of intoxicating liquor. They are not directly controlling, of course. But they furnish a strong analogy. The activities of the Board fell within the type which have been regarded as religious by the Methodist Church for a century and a half. A limitation, if any, upon the deduction granted in general terms of bequests to religious bodies is for Congress to make and Congress has since made it in the 1934 statute. Such limitation not having been imposed by legislation, it is not for a court or administrative officer to impose it. The decision of the Board of Tax Appeals is reversed. The Act was amended in 1934, 26 U. S.O.A. Int.Rev.Acts, page 230, by the addition of the phrase “and no substantial part of 'the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation”. Treasury Regulations 80, promulgated under the Act of 1826 so amended provided : “Art. 45. Religious, charitable, scientific, and educational corporations. — A corporation or association to which such a transfer was made must meet four tests: (1) It must be organized and operated for one or more of the specified purposes ; (2) it must be organized and operated exclusively for such purpose or purposes ; (3) no part of its net earnings shall inure to the benefit of private stockholders or individuals; and (4) no substantial part of its activities shall be carrying on propaganda, or otherwise attempting, to influence legislation.” Article 478 of the Discipline of 1932, under which the Board was operating at the time of the death of the decedent in this ease provides: “Section 2. Article 1. The object of this Board is to promote voluntary total abstinence from all intoxicants and narcotics, to promote observance and enforcement of all existing constitutional provisions and statutory enactments that suppress the liquor traffic and the traffic in narcotic drugs, to promote the speedy enactment of such legislation throughout the world, and to defend and maintain established civil and religious liberties.” Mr. Scott points out: “It is true that the Statute of Charitable Uses made no mention of this purpose in its enumeration of charitable purposes, the only reference to religion in any form being ‘repair of bridges, forts, havens, causeways, churches, seabanks and highways.’ Indeed, Sir Francis Moore, the draftsman of the act, explained that religious purposes were omitted intentionally ‘lest the gifts intended to be employed upon purposes grounded upon charity, might, in change of times (contrary to the minds of the givers) be confiscate into the King’s treasury. For religion being variable, according to the pleasure of succeeding princes, that which at one time is held for orthodox, may at another, be accounted superstitious, and then such lands are confiscate.’ ” Scott on Trusts § 374.1 and authorities cited. From bis dissenting opinion in Abrams v. United States, 1919, 250 U.S. 616, 40 S.Ct. 17, 22, 63 L.Ed. 1173. Slee v. Commissioner of Internal Revenue, 2 Cir., 1930, 42 F.2d 184, 72 A.L.R. 400. This case which involved a gift to the American Birth Control League had no connection with a religious purpose. See collections of authorities in Scott on Trusts § 374.1, 73 A.L.R. 1361. 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:
sc_petitioner	113	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. BINKS MANUFACTURING CO. v. RANSBURG ELECTRO-COATING CORP. No. 501. Argued May 3-4, 1961. Decided May 8, 1961. W. Donald McSweeney and Charles F. Meroni argued the cause for petitioner. With them on the briefs were Otto R. Krause and John B. Robinson, Jr. Elbert R. Gilliom argued the cause for respondent. With him on the briefs were James P. Hume and Harry T. Ice. Solicitor General Cox, Assistant Attorney General Loevinger and Richard A. Solomon filed a brief for the United States, as amicus curiae. Per Curiam. After hearing oral argument and fully examining the record, we conclude that the totality of circumstances as the record makes them manifest did not warrant bringing the case here. Accordingly, the writ is dismissed. Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
sc_adminaction_is	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. FREEMAN, TRUSTEE, v. HEWIT, DIRECTOR OF GROSS INCOME TAX DIVISION. No. 3. Argued November 8, 1944. Reargued October 14, 1946.— Decided December 16, 1946. Gath P. Freeman argued the cause for appellant and filed a brief on the original argument, and also filed a brief on the reargument. Harry T. Ice reargued the cause and filed a brief for appellant. Winslow Van Horne, Deputy Attorney General of Indiana, argued the cause on the original argument for ap-pellee. With him on the brief were James A. Emmert, Attorney General, John J. McShane, Deputy Attorney General, Robert Hollowell, Jr., Cleon H. Foust, John H. Fetterhoff and Fred C. McClurg. John J. McShane, Deputy Attorney General, reargued the cause for appellee. With him on the brief were James A. Emmert, Attorney General, John H. Fetterhoff and Fred C. McClurg, Deputy Attorneys General. Mr. Justice Frankfurter delivered the opinion of the Court. This case presents another phase of the Indiana Gross Income Tax Act of 1933, which has been before this Court in a series of cases beginning with Adams Mfg. Co. v. Storen, 304 U. S. 307. The Act imposes a tax upon “the receipt of the entire gross income” of residents and dom-iciliaries of Indiana but excepts from its scope “such gross income as is derived from business conducted in commerce between this state and other states of the United States ... to the extent to which the State of Indiana is prohibited from taxing such gross income by the Constitution of the United States.” Indiana Laws 1933, pp. 388, 392, as amended, Laws 1937, pp. 611, 615, Burns’ Ind. Stat. Anno. § 64-2601 et seg. Appellant’s predecessor, domiciled in Indiana, was trustee of an estate created by the will of a decedent domiciled in Indiana at the time of his death. During 1940, the trustee instructed his Indiana broker to arrange for the sale at stated prices of securities forming part of the trust estate. Through the broker’s New York correspondents the securities were offered for sale on the New York Stock Exchange. When a purchaser was found, the New York brokers notified the Indiana broker who in turn informed the trustee, and the latter brought the securities to his broker for mailing to New York. Upon their delivery to the purchasers, the New York brokers received the purchase price, which, after deducting expenses and commission, they transmitted to the Indiana broker. The latter delivered the proceeds less his commission to the trustee. On the gross receipts of these sales, amounting to $65,214.20, Indiana, under the Act of 1933, imposed a tax of 1%. Having paid the tax under protest, the trustee brought this suit for its recovery. The Supreme Court of Indiana, reversing a court of first instance, sustained the tax on the ground that the situs of the securities was in Indiana. 221 Ind. 675, 51 N. E. 2d 6. The case is here on appeal under § 237 (a) of the Judicial Code, 28 U. S. C. § 344 (a), and has had the consideration which two arguments afford. The power of the States to tax and the limitations upon that power imposed by the Commerce Clause have necessitated a long, continuous process of judicial adjustment. The need for such adjustment is inherent in a federal government like ours, where the same transaction has aspects that may concern the interests and involve the authority of both the central government and the constituent States. The history of this problem is spread over hundreds of volumes of our Reports. To attempt to harmonize all that has been said in the past would neither clarify what has gone before nor guide the future. Suffice it to say that especially in this field opinions must be read in the setting of the particular cases and as the product of preoccupation with their special facts. Our starting point is clear. In two recent cases we applied the principle that the Commerce Clause was not merely an authorization to Congress to enact laws for the protection and encouragement of commerce among the States, but by its own force created an area of trade free from interference by the States. In short, the Commerce Clause even without implementing legislation by Congress is a limitation upon the power of the States. Southern Pacific Co. v. Arizona, 325 U. S. 761; Morgan v. Virginia, 328 U. S. 373. In so deciding we reaffirmed, upon fullest consideration, the course of adjudication unbroken through the Nation’s history. This limitation on State power, as the Morgan case so well illustrates, does not merely forbid a State to single out interstate commerce for hostile action. A State is also precluded from taking any action which may fairly be deemed to have the effect of impeding the free flow of trade between States. It is immaterial that local commerce is subjected to a similar encumbrance. It may commend itself to a State to encourage a pastoral instead of an industrial society. That is its concern and its privilege. But to compare a State’s treatment of its local trade with the exertion of its authority against commerce in the national domain is to compare incomparables. These principles of limitation on State power apply to all State policy no matter what State interest gives rise to its legislation. A burden on interstate commerce is none the lighter and no less objectionable because it is imposed by a State.under the taxing power rather than under manifestations of police power in the conventional sense. But, in the necessary accommodation between local needs and the overriding requirement of freedom for the national commerce, the incidence of a particular type of State action may throw the balance in support of the local need because interference with the national interest is remote or unsubstantial. A police regulation of local aspects of interstate commerce is a power often essential to a State in safeguarding vital local interests. At least until Congress chooses to enact a nation-wide rule, the power will not be denied to the State. The Minnesota Rate Cases, 230 U. S. 352, 402 et seq.; S. C. Hwy. Dept. v. Barnwell Bros., 303 U. S. 177; Union Brokerage Co. v. Jensen, 322 U. S. 202, 209-12. State taxation falling on interstate commerce, on the other hand, can only be justified as designed to make such commerce bear a fair share of the cost of the local government whose protection it enjoys. But revenue serves as well no matter what its source. To deny to a State a particular source of income because it taxes the very process of interstate commerce does not impose a crippling limitation on a State’s ability to carry on its local function. Moreover, the burden on interstate commerce involved in a direct tax upon it is inherently greater, certainly less uncertain in its consequences, than results from the usual police regulations. The power to tax is a dominant power over commerce. Because the greater or more threatening burden of a direct tax on commerce is coupled with the lesser need to a State of a particular source of revenue, attempts at such taxation have always been more carefully scrutinized and more consistently resisted than police power regulations of aspects of such commerce. The task of scrutinizing is a task of drawing lines. This is the historic duty of the Court so long as Congress does not undertake to make specific arrangements between the National Government and the States in regard to revenues from interstate commerce. See Act of July 3, 1944, 58 Stat. 723; H. Doc. 141, 79th Cong., 1st Sess., “Multiple Taxation of Air Commerce”; and compare 54 Stat. 1059, 4 U. S. C. § 13 et seq. (permission to States to extend taxing power to Federal areas). Considerations of proximity and degree are here, as so often in the law, decisive. It has been suggested that such a tax is valid when a similar tax is placed on local trade, and a specious appearance of fairness is sought to be imparted by the argument that interstate commerce should not be favored at the expense of local trade. So to argue is to disregard the life of the Commerce Clause. Of course a State is not required to give active advantage to interstate trade. But it cannot aim to control that trade even though it desires to control its own. It cannot justify what amounts to a levy upon the very process of commerce ■ across States lines by pointing to a similar hobble on its local trade. It is true that the existence of a tax on its local commerce detracts from the deterrent effect of a tax on interstate commerce to the extent that it removes the temptation to sell the goods locally. But the fact of such a tax, in any event, puts impediments upon the currents of commerce across the State line, while the aim of the Commerce Clause was precisely to prevent States from exacting toll from those engaged in national commerce. The Commerce Clause does not involve an exercise in the logic of empty categories. It operates within the framework of our federal scheme and with due regard to the national experience reflected by the decisions of this Court, even though the terms in which these decisions have been cast may have varied. Language alters, and there is a fashion in judicial writing as in other things. This case, like Adams Mfg. Co. v. Storen, supra, involves a tax imposed by the State of the seller on the proceeds of interstate sales. To extract a fair tithe from interstate commerce for the local protection afforded to it, a seller State need not impose the kind of tax which Indiana here levied. As a practical matter, it can make such commerce pay its way, as the phrase runs, apart from taxing the very sale. Thus, it can tax local manufacture even if the products are destined for other States. For some purposes, manufacture and the shipment of its products beyond a State may be looked upon as an integral transaction. But when accommodation must be made between state and national interests, manufacture within a State, though destined for shipment outside, is not a seamless web so as to prevent a State from giving the manufacturing part detached relevance for purposes of local taxation. American Mfg. Co. v. St. Louis, 250 U. S. 459; Utah Power & L. Co. v. Pfost, 286 U. S. 165. It can impose license taxes on domestic and foreign corporations who would do business in the State, Cheney Brothers Co. v. Massachusetts, 246 U. S. 147; St. Louis S. W. Ry. v. Arkansas, 235 U. S. 350, 364, though it cannot, even under the guise of such excises, “hamper” interstate commerce. Western Union Tel. Co. v. Kansas, 216 U. S. 1; Pullman Co. v. Kansas, 216 U. S. 56 (particularly White, J. concurring at p. 63); Henderson, The Position of Foreign Corporations in American Constitutional Law (1918) 118-23, 128-31. It can tax the privilege of residence in the State and measure the privilege by net income, including that derived from interstate commerce. U. S. Glue Co. v. Oak Creek, 247 U. S. 321; cf. Atlantic Coast Line v. Daughton, 262 U. S. 413. And where, as in this case, the commodities subsequently sold interstate are securities, they can be reached by a property tax by the State of domicil of the owner. Virginia v. Imperial Sales Co., 293 U. S. 15, 19; and see Citizens National Bank v. Durr, 257 U. S. 99. These illustrative instances show that a seller State has various means of obtaining legitimate contribution to the costs of its government, without imposing a direct tax on interstate sales. While these permitted taxes may, in an ultimate sense, come out of interstate commerce, they are not, as would be a tax on gross receipts, a direct imposition on that very freedom of commercial flow which for more than a hundred and fifty years has been the ward of the Commerce Clause. It is suggested, however, that the validity of a gross sales tax should depend on whether another State has also sought to impose its burden on the transactions. If another State has taxed the same interstate transaction, the burdensome consequences to interstate trade arq undeniable. But that, for the time being, only one State has taxed is irrelevant to the kind of freedom of trade which the Commerce Clause generated. The immunities implicit in the Commerce Clause and the potential taxing power of a State can hardly be made to depend, in the world of practical affairs, on the shifting incidence of the varying tax laws of the various States at a particular moment. Courts are not possessed of instruments of determination so delicate as to enable them to weigh the various factors in a complicated economic setting which, as to an isolated application of a State tax, might mitigate the obvious burden generally created by a direct tax on commerce. Nor is there any warrant in the constitutional principles heretofore applied by this Court to support the notion that a State may be allowed one single-tax-worth of direct interference with the free flow of commerce. An exaction by a State from interstate commerce falls not because of a proven increase in the cost of the product. What makes the tax invalid is the fact that there is interference by a State with the freedom of interstate commerce. Such a tax by the seller State alone must be judged burdensome in the context of the circumstances in which the tax takes effect. Trade being a sensitive plant, a direct tax upon it to some extent at least deters trade even if its effect is not precisely calculable. Many States, for instance, impose taxes on the consumption of goods, and such taxes have been sustained regardless of the extra-State origin of the goods, or whether a tax on their sale had been imposed by the seller State. Such potential taxation by consumer States is but one factor pointing to the deterrent effect on commerce by a superimposed gross receipts tax. It has been urged that the force of the decision in the Adams case has been sapped by McGoldrick v. Berwind-White Co., 309 U. S. 33. The decision in McGoldrick v. Berwind-White was found not to impinge upon “the rationale of the Adams Manufacturing Co. ease,” and the tax was sustained because it was “conditioned upon a local activity, delivery of goods within the state upon their purchase for consumption.” 309 U. S. at 58. Compare McLeod v. Dilworth Co., 322 U. S. 327. Taxes which have the same effect as consumption taxes are properly differentiated from a direct imposition on interstate commerce, such as was before the Court in the Adams case and is now before us. The tax on the sale itself cannot be differentiated from a direct unapportioned tax on gross receipts which has been definitely held beyond the State taxing power ever since Fargo v. Michigan, 121 U. S. 230, and Philadelphia Steamship Co. v. Pennsylvania, 122 U. S. 326. See also, e. g., Galveston, H. & S. A. R. Co. v. Texas, 210 U. S. 217; Kansas City, Ft. S. & M. R. Co. v. Kansas, 240 U. S. 227, 231; Puget Sound Co. v. Tax Commission, 302 U. S. 90, 94; and compare Wallace v. Hines, 253 U. S. 66. For not even an “internal regulation” by a State will be allowed if it directly affects interstate commerce. Robbins v. Shelby Taxing District, 120 U. S. 489, 494. Nor is American Mfg. Co. v. St. Louis, 250 U. S. 459, or Harvester Co. v. Dept. of Treasury, 322 U. S. 340, any justification for the present tax. The American Mfg. Co. case involved an imposition by St. Louis of a license fee upon the conduct of manufacturing within that city. It has long been settled that a State can levy such an occupation tax graduated according to the volume of manufacture. In that case, to lighten the manufacturer’s burden, the imposition of the occupation tax was made contingent upon the actual sale of the goods locally manufactured. Sales in St. Louis of goods made elsewhere were not taken into account in measuring the license fee. That tax, then, unlike this, was not in fact a tax on gross receipts. Cf. Cornell v. Coyne, 192 U. S. 418. And, if words are to correspond to things, the tax now here is not “a tax on the transfer of property” within the State, which was the basis for sustaining the tax in Harvester Co. v. Dept. of Treasury, supra, at 348. There remains only the claim that an interstate sale of intangibles differs from an interstate sale of tangibles in respects material to the issue in this case. It was by this distinction that the Supreme Court of Indiana sought to escape the authority of Adams Mfg. Co. v. Storen, supra. Latin tags like mobilia seguuntur personam often do service for legal analysis, but they ought not to confound constitutional issues. What Mr. Justice Holmes said about that phrase is relevant here. “It is a fiction, the historical origin of which is familiar to scholars, and it is this fiction that gives whatever meaning it has to the saying mobilia sequuntur personam. But being a fiction it is not allowed to obscure the facts, when the facts become important.” Blackstone v. Miller, 188 U. S. 189, 204. Of course this is an interstate sale. And constitutionally it is commerce no less and no different because the subject was pieces of paper worth $65,214.20, rather than machines. Reversed. Mr. Justice Black dissents. Compare Report of the (Australian) Royal Commission on the Constitution (1929) pp. 260, 322-24, and Report of the (Canadian) Royal Commission on Dominion-Provincial Relations (1940), bk. II, pp. 62-67, 111-21, 150-62, 216-19. See Australia, Act No. 1, 1946, repealing Act No. 20, 1942, and Act No. 43, 1942; South Australia v. Commonwealth, 65 C. L. R. 373; also Proposals of the Government of Canada, Dominion-Provincial Conference on Reconstruction, pp. 47-49; Proceedings of the Dominion-Provincial Conference (1945) passim, particularly the statement of Prime Minister Mackenzie King, p. 388, and the discussion following. And see Maxwell, The Fiscal Impact of Federalism in the United States (1946) cc. II, XIII, XIV. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
sc_petitioner	029	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. FORMAN v. UNITED STATES. No. 43. Argued November 19, 1959. Decided February 23, 1960. Solomon J. Bischoff argued the cause for' petitioner. With him on the brief was George W. Mead. Abbott M. Sellers argued the cause for the United States. On the brief were Solicitor .General Rankin, Assistant Attorney General Rice and Meyer Rothwacks. Mr. Justice Clark delivered the opinion of the Court. In this criminal conspiracy case, petitioner raises questions of double jeopardy. Petitioner and one Seijas, his former partner in the pinball business, were convicted of conspiracy to commit the offense of willfully attempting to evade the individual income taxes of Seijas and his wife, in violation of § 145 (b) of the Internal Revenue Code of 1939, and of furnishing false books, records, and financial statements. to officers and employees of the Treasury Department for the purpose of Concealing the true income tax liabilities of Seijas and his wife, in violation of 18 U. S. C. § 1001. The trial was prior to our decision in Grunewald v. United States, 353 U. S. 391 (1957). The petitioner requested, and the trial judge included in his charge, language similar to that given in the charge in the Grünewald prosecution directing that petitioner should be acquitted unless the jury found that the partners entered into a subsidiary conspiracy, continuing to within six years of the indictment, to conceal their conspiracy to attempt to evade Seijas’ and his wife’s taxes, At the time of the appeal, our Grünewald opinion had come down. Citing Grünewald, the Court of Appeals reversed petitioner’s conviction and remanded the case with instructions to enter a judgment of acquittal. 259 F. 2d 128. On''rehearing, however, the Court of Appeals decided that “the case might have been tried” on an “alternative theory,” namely, that “certain of the overt acts listed in the indictment and charged to have occurred in 1948, 1951 and 1952, involving false statements, could well have been in furtherance of and during a conspiracy, having as its objective not the concealment of the conspirators’ conspiracy but tax evasion.” 261 F. 2d 181, 183. If modified its original order for an acquittal and ¿ntered one directing a new trial. Petitioner then contended that having once ordered his acquittal, the Court of Appeals, by directing a new trial, violated the command of the Fifth Amendment that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” Petitioner’s motion for rehearing was denied. 264 F. 2d 955. We granted certiorari. 359 U. S. 982. We affirm the order directing a new trial. The facts are detailed in the original opinion of - the Court of Appeals, 259 F. 2d 128, and it is sufficient here merely to summarize them. In 1941 petitioner and Seijas, a lawyer, formed a partnership to engage in the operation of pinball machines in Kitsap County, Washington. Receipts, less expenses, from the individual machines, were to be divided equally between the partners and the location owners. Beginning in 1942 and continuing until • December 1945, however, the partners robbed the machines by extracting “holdout” money from those located at the more profitable locations. These sums, without being split with the location owners, were divided between the partners. None of these amounts were entered on the books of the partnership, nor were they included in its tax returns. Seijas maintained diaries and kept a record of the amount of “holdout” income that he received, but he paid no tax on it. During this period, tax returns omitting the “holdout” income were filed each year. The Court of Appeals found that “there was abundant proof” of petitioner’s participation in a conspiracy to “evade Seijas’ income taxes for the years 1942 through 1945” through concealment of the “holdout” income during that period. It also found that “numerous false statements” were made by both Forman and Seijas in furtherance of. this conspiracy and within the six-year period immediately prior to the indictment. The record shows, as the Court of Appeals indicated, that the concealment of the “holdout” income continued until soon before the indictment, at which time Seijas' turned over to the agents his diaries covering the receipt of this income for the years 1942-1945. The Court of Appeals, on the original submission, however, found that the case was submitted to the jury on the theory of Grünewald as expounded in 233 F. 2d 556, namely, that a subsidiary conspiracy to conceal the main conspiracy to attempt to evade Seijas’ tax may be implied from circumstantial evidence showing that the latter conspiracy was kept a secret. This subsidiary conspiracy would make the prosecution timely under the applicable statute of limitations. But the Court of Appeals pointed out that the reversal of that case by this Court soon after the trial of petitioner gave it “an advantage . . . that the trial court did not have” and required the conviction to be reversed and the case' remanded “with directions to enter judgment for the appellant” Forman. On rehearing,- as here, the Government contended that the essence of the conspiracy charged in the indictment filed November 19, 1953, was. to evade the tax on the “holdout” income and that at least five overt acts were committed within six years of the return of the indictment for the purpose of furthering that conspiracy to evade. Contrary to what the trial court found, the Government said that the conspiracy did not end with the filing of the false income tax returns in the years 1943 through 1946, but embraced the subsequent efforts, made during the years 1947 through 1952, to evade those taxes. The only flaw in the record to the contrary, it claimed, was the erroneous “subsidiary conspiracy” instruction, which it now points out was injected therein by the petitioner himself. The Government concluded that the interests of justice required the entry of an order directing a new trial rather than a judgment of acquittal. Although finding that the Government conceded “that the case was submitted to the jury on an impermissible theory,” the Court of Appeals read the indictment as alleging that the conspiracy was one “ 'to .violate . . . § 145 (b) of the Internal Revenue Code . . . by furnishing officers and employees of the Revenue Department false books and records and false financial statements, and by making false statements to such officers and employees, for the purpose of concealing from the Treasury Department their share ' of the unreported [holdout]. income . . . and for the purpose of concealing . . the true income tax liability of Amador A. Seijas.’ ” 261 F. 2d, at 182. It held that “the conspiracy continued past the filing of the returns” and “that certain of the overt acts listed in the indictment and charged to have occurred in . 1948,1951 and 1952, involving false statements, could well have been in furtherance of and during a conspiracy having for its objective not the concealment of the conspirators’ conspiracy but tax evasion.” Id., at 183. It, therefore, ' modified its opinion “so as to provide that the judgment is reversed and the cause remanded for a new trial!” Ibid. The petitioner then raised his plea of former jeopardy, which is the basis of his petition here. He says that the trial court correctly found that the conspiracy ended with the fifing of the last false income tax return in 1946.. Since there was no direct evidence of the existence of a subsidiary conspiracy to conceal the crime of attempting to evade, the trial court, he concludes, should have sustained his motion to acquit, on that ground. When the Court of Appeals held that the trial court erred in failing to grant the motion, petitioner argues that it gave him a vested right to an acquittal, which matured at the time he so moved in the trial court. . A new trial, he contends, would therefore place him in double jeopardy. The Government now says that through “inadvertence” it allowed the case to be submitted to the jury on the “impermissible theory” condemned in our Grünewald opinion, 353 U. S., at 399-406; and that the trial judge was led into error by the request of the petitioner for an instruction on the “subsidiary conspiracy” theory, which error was compounded by the failure of the Government to object thereto. This resulted, it maintains, in a Grünewald instruction being saddled onto a correct charge. In view of this complication, it concludes that the. jury might well have based its conviction on either theory, and a new trial was therefore appropriate and would not place petitioner in double jeopardy. I. We believe that there was a misconstruction of the scope of the alleged conspiracy and its duration in both Grünewald and the present case. In Grünewald the indictment charged a conspiracy “to fix” criminal tax cases and to conceal the acts of the conspirators. That case was submitted to the jury on the theory that “the indictment alleges that the conspiracy comprehended within it a conspiracy to conceal the true facts from investigation . . . .” Did the conspiracy end when the “no prosecution” rulings were issued, the Court charged, “or was a part of the conspiracy a continuing agreement to conceal the acts done pursuant thereto?” The effect of the charge was that if there was such a continuing agreement, then the prosecution was timely. .It appeared to us that the case should have been submitted to the jury on the theory that the central object of the conspiracy was not merely to obtain the “no prosecution” rulings, but rather to immunize the taxpayers completely from prosecution for tax evasion. The evidence supported such a theory. We said, however, that, since this theory was not adequately submitted to the jury, the case should be remanded for a new trial rather than affirmed. In petitioner’s case the indictment charged him and Seijas with conspiracy, extending from 1942 to 1953, to attempt to evade the income taxes of Seijas and his wife for the period 1942-1945. Unlike Grünewald, the indictment did not allege that one of the objects of the conspiracy was to conceal the acts of the conspirators. The indictment specifically alleged that the conspiracy extended from 1942 to 1953 and, of the 33 overt acts charged, some were committed as late as 1953, the year of the indictment. This language, it must be admitted, certainly lends strong support to the Government’s theory of the case. The petitioner says that the theory on which the case was submitted to the jury was that the conspiracy to attempt to evade the taxes “was consummated” when the income tax returns for 1945 were filed and that, unless the jury found “a subsidiary conspiracy” to conceal the conspiracy to attempt to evade the taxes, the “verdict would have to be not guilty.” That was the theory he requested, but the charge differs little from the Grünewald one. In fact it appears to have been patterned after the Grünewald charge. The correct theory, we believe, was indicated by the indictment, i. e., that the conspiracy was a continuing one extending from 1942 to 1953 and its principal object was to evade the taxes of Seijas and his wife for 1942-1945, inclusive, by concealing their “holdout” income. This object was not attained when the tax returns for 1945 concealing the “holdout” income were filed. As was said in Grünewald, this was but the first step in the process of evasion. The concealment of the “holdout” income must continue if the evasion is to succeed. It must continue until action thereon is barred and the evasion permanently effected. In this regard, the indictment alleged that the conspiracy to attempt such evasion actually did continue until 1953, when Seijas revealed the “holdout” income for the first time. It therefore appears that the “subsidiary conspiracy” theory covered by petitioner’s requested charge had no place in the case and should not have been given. There was no such conspiracy alleged or proven. In view of the possible confusion resulting, it was entirely appropriate for a new trial to be ordered. Petitioner’s raising this ground on appeal, rather than specifically asserting it in his motion for new trial, had no effect on the power of the Court of Appeals to correct the error. Petitioner insists, however, that the fatal difference between the Grünewald charge and the one here is that here the “alternative theory” was not submitted to the j ury. Even if we agreed with .this point, we do not believe that it would be relevant to our conclusion. The indictment was based on one continuing conspiracy to evade Seijas’ tax. The evidence supported it and, if the petitioner had not injected the infected language into the charge, this clearly would have been the theory submitted to the jury. Its inclusion did make the charge ambiguous and the Court of Appeals, having power to direct “such further proceedings to be had as may be just under the circumstances,” believed a new trial “appropriate,” 28 U. S. C. § 2106, and so ordered. Petitioner concedes that this would have been appropriate if such action had been taken by the Court of Appeals upon original submission ; but he says that, once having ordered the entry of an acquittal judgment, it lost power to amend that direction on rehearing and order a new trial. This would subject him, he says, to double jeopardy. We think not. II. It is elementary in our law that a person can be tried a second time for an offense when his prior conviction for that same offense has been set aside by his appeal. United States v. Ball, 163 U. S. 662, 672 (1896). See also Green v. United States, 355 U. S. 184, 189 (1957), which expressly affirmed the principle of the Ball case. Petitioner says that he does not come under that rule because he moved for a judgment of acquittal on the basis of a lack of evidence, and that his. right to acquittal “matured” at that time. A new trial, however, was one of petitioner’s remedies. As we said in Bryan v. United States, 338 U. S. 552, 560 (1950), where one seeks reversal of his conviction, “assigning a number of alleged errors on appeal, including denial of his motion for judgment of acquittal . . . ‘there is no double jeopardy upon a new trial.’ ” Even though petitioner be fight in his claim that he did not request a new trial with respect to the portion of the charge dealing with the statute of limitations, still his plea of double jeopardy must fail. Under 28 U. S. C. § 2106, the Court of Appeals has full power to go beyond the particular relief sought. See Ball and other cases, supra. Nor does Sapir v. United States, 348 U. S. 373 (1955), require a different conclusion, as petitioner claims. The Court of Appeals there, holding the evidence insufficient to convict, had first reversed and remanded with instructions to dismiss the indictment, and later, on the Government’s motion, had remanded instead for a new trial on the ground of newly discovered evidence. This Court held that the original order directing the indictment to be dismissed was the correct one, and refused to pass on questions presented by the order directing a new trial. While petitioner contends that here the action of the Court of Appeals on rehearing was based on new evidence, as in Sapir, this is incorrect. Here there was no lack of evidence in the record. As the Court of Appeals pointed out, “The jury was simply not property instructed.” 264 F. 2d, at 956. On the other hand, the order to dismiss in Sapir was based on the insufficiency of the evidence, which could be cured only by the introduction of new evidence, which the Government assured the court was available. Moreover, Sapir made no motion for a new trial in the District Court, while here petitioner filed such a motion. That was a decisive factor in Sapir’s case. See concurring opinion, 348 U. S., at 374. Furthermore, the power of the Court of Appeals to revise its.original judgment and order the new trial on .rehearing was not questioned in Sapir. We believe petitioner overlooks that, when he opened up the case by appealing from his conviction, he subjected himself to the power of the appellate court to direct such “appropriate” order as it. thought “just under the circumstances.” Its original direction was subject to revision on rehearing. The original opinion was entirely interlocutory and no mandate was ever issued thereon. It never became final and was subject to further action on rehearing. Department of Banking v. Pink, 317 U. S. 264 (1942). In Pink, we said that the petition on rehearing “operates to 'suspend the finality of the . . . court’s judgment, pending the court’s further determination whether the judgment should be modified so as to alter its adjudication of the rights of the parties.” 317 U. S., at 266. To hold otherwise would deprive the Government of the right to file, a petition for certiorari here in criminal cases decided favorably to the defendant in the Court of Appeals, for such a petition might be, attacked as a prohibited appeal by the Government on a motion for a new trial. It would be tantamount to a verdict of acquittal at the hands of the jury, not subject to review by motion for rehearing, appeal, or certiorari in this Court. We cannot subscribe to such a theory. , „ 7 Affirmed. Seijas pleaded guilty and testified for the Government. “Sec. 145. Penalties. . . . (b) Failure to Collect and Pay Over Tax, or Attempt to Defeat or Evade Tax. — Any person required under this chapter to collect, account for, and pay over any tax imposed by this chapter, who willfully fails to collect or truthfully account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution.” “Sec. 1001. STATEMENTS OR ENTRIES GENERALLY. Whoever, in any matter within the jurisdiction of any department or agency of the- United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses .any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.” Although petitioner contends that the petition for rehearing was in -fact a motion for a new trial, this is not true. The purpose of a petition for rehearing is to point out error in the original judgment. Here the Government pointed out that the Court of Appeals applied the wrong theory (the Grünewald theory instead of the continuing conspiracy theory). Petitioner also argues that there is insufficient evidence in the record to support a conviction based upon the “alternative theory.” He urges that Grünewald established that, regardless of the nature of the charge, there must be “direct evidence ... to show . .'. an express original agreement among the conspirators to continue to act in concert in order to cover up, for their own self-protection, traces of the crime after its commission.”' 353 U. S., at 404. (Emphasis supplied.). This statement, however, had reference to a subsidiary conspiracy to conceal, not to a continuing one'. In Grünewald we were not required to decide whether a conviction under a proper charge could be supported where the only evidence during the' period within the statute of limitations was independent acts of concealment, since more was present there. See 353 U. S., at 409, n. 23. Nor is that necessary here, since the Court of Appeals’ determination that the evidence of record could sustain a conviction under a correct instruction was based upon evidence in addition to independent acts of concealment. See 259 F. 2d, at 132-134, and 261 F. 2d, at 183. We cannot say that this determination was .erroneous. Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
sc_lcdisposition	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. GENERAL PROTECTIVE COMMITTEE FOR THE HOLDERS OF OPTION WARRANTS OF THE UNITED CORPORATION v. SECURITIES AND EXCHANGE COMMISSION et al. No. 184. Argued December 2, 1953. Decided January 4, 1954. John Mulford argued the cause for petitioner. With him on the brief were Henry S. Drinker, Thomas Reath and M. Quinn Shaughnessy. William H. Timbers argued the cause for the Securities and Exchange Commission, respondent. With him on the brief were Acting Solicitor General Stern and Alexander Cohen. Richard Joyce Smith argued the cause and filed a brief for the United Corporation, respondent. Randolph Phillips, respondent, argued the cause pro se. Joseph B. Hyman was with him on the brief for Downing et al., respondents. Mr. Justice Douglas delivered the opinion of the Court. The United Corporation is a holding company registered under the Public Utility Holding Company Act of 1935, 49 Stat. 803, 15 U. S. C. § 79 et seq. Section 11 (b) of that Act requires each holding company, with exceptions not material here, to limit the operations of the holding-company system of which it is a part to a single integrated public-utility system and to businesses reasonably incidental or economically necessary or appropriate to that system. Section 11 (e) allows a registered holding company to submit a plan to the Commission which will enable it to comply with § 11 (b). United controlled, directly or indirectly, various gas and electric utility companies in the East. It submitted a plan to the Commission which, it claimed, would complete its compliance with § 11 (b). The Commission rejected United’s plan. 13 S. E. C. 854, 898-899. The Commission, however, withheld issuance of a dissolution order so as to afford United an opportunity to comply with the Act by divesting itself of control over its subsidiaries and by transforming itself into an investment company. Id., p. 899. The Commission accordingly directed that United cease to be a holding company and limit its corporate structure to a single class of stock, namely, common stock. No review of that order was sought. Thereafter United retired its preference stock by exchanging it for underlying portfolio securities and for cash. Other portfolio securities were disposed of through market sales and dividend distributions. As of December 31, 1950, United had outstanding 14,529,491.5 shares of common stock, and option warrants entitling the holders to purchase 3,732,059 shares of common stock at any time at a price of $27.50 per share. As of December 31, 1950, United’s assets consisted approximately of $57,000,000 of securities and $2,000,000 in cash and government bonds, which was equivalent to $4.12 per share of common stock. The securities, which consisted of common stocks of utility operating and holding companies, included 11.9 percent of the voting stock of Niagara Mohawk Power Corp., 28.3 percent of South Jersey Gas Co., 5.8 percent of the United Gas Improvement Co., 5.5 percent of the Columbia Gas System, Inc., and voting stocks of other companies in amounts less than 5 percent of the total outstanding. United submitted a further plan which provided in essential part as follows: First. The sale by United of all of its South Jersey common stock and of sufficient amounts of its stock-holdings in the other utility companies so that within one year its resultant holdings would not exceed 4.9 percent of the voting stock of any of those companies. Second. An offer to United’s stockholders who wanted to withdraw from the company. Holders of 100 or more shares of United’s common stock were offered common stock of Niagara Mohawk that United had in its portfolio ; holders of smaller blocks of United’s common stock were offered cash. These offers were on a voluntary basis. Third. Cancellation of the option warrants without any compensation to the holders. Fourth. Amendments to the charter and bylaws of United (without a vote of stockholders) to provide for cumulative voting in the election of directors and a 50 percent quorum at stockholders meetings. The Commission approved the plan with modifications not material to the issues presented in this case. Holding Company Act Releases Nos. 10614, 10643. First. The method of transforming United from a holding company into an investment company was approved. Second. Offers to those stockholders who wanted to withdraw from the enterprise were held to be fair both to them and to those who chose to remain as investors in United. Third. The holders of the option warrants were denied any participation in the reorganization on the ground that there was no reasonable expectation that the market price of the common stock would increase to the extent needed to give the warrants a recognizable value and that continuance of the warrants would be inherently deceptive to investors and perpetuate useless and unnecessary complexities in the corporate structure. Fourth. The changes as respects cumulative voting and quorum requirements were approved. The Commission in its order of approval stated that the provisions of the plan relating to the cancellation of the warrants and the amendment of the charter and bylaws would not be operative “until an appropriate United States District Court shall, upon application thereto, enter an order enforcing said provisions.” Holding Company Act Release No. 10643, p. 3. No such provision was made as respects the other provisions of the plan. Some of the common stockholders thereupon filed a petition for review in the Court of Appeals for the District of Columbia under § 24 (a) of the Act. They challenged the First and Second provisions of the plan, which we have described above. They also asked that the Third and Fourth provisions, the ones which were made subject to approval by the District Court, be approved by the Court of Appeals. The petitioner in this Court is a protective committee representing holders of the option warrants. It moved to intervene in the review proceedings in the Court of Appeals, claiming that forfeiture of the warrants was not justified. The Commission and United opposed the intervention on the ground that by reason of the Commission’s order and § 11 (e) of the Act only the District Court had jurisdiction to review the provisions of the plan respecting the elimination of the warrants and the amendments to the charter and bylaws. The Court of Appeals allowed petitioner to intervene. It held that so long as the Commission had not applied to a District Court under § 11 (e) to enforce a plan, the Court of Appeals had exclusive jurisdiction on petition of an aggrieved person under § 24 (a) to review the entire plan, including those provisions which the Commission made enforceable by the District Court. The Court of Appeals further held that if it affirmed or modified an order of the Commission approving a plan and the Commission thereafter applied to the District Court to obtain enforcement, the District Court would have no function except to enforce, since the ruling by the Court of Appeals on the fairness of the plan would be binding on the District Court. Accordingly the Court of Appeals reviewed the entire plan, found it fair and equitable in all respects, and affirmed the Commission’s order. 92 U. S. App. D. C. 172, 203 F. 2d 611. The case is here on certiorari limited to the question of jurisdiction. 346 U. S. 810. The question is not whether there is judicial review of orders of the Commission. The question is which orders are reviewable in the District Court, which in the Court of Appeals. The first reading of the Act may leave the impression that there is conflict between § 24 (a) and § 11 (e). Section 24 (a) gives review in the Court of Appeals of “an order” of the Commission and grants the Court of Appeals “exclusive jurisdiction to affirm, modify, or set aside such order, in whole or in part.” This is clearly broad enough to include an order of the Commission under § 11 respecting a plan of a holding company seeking compliance with § 11 (b). Section 11 (e), however, provides in some instances for review of such plans on application by the Commission to the District Court. Moreover, the Commission by virtue of § 18 (f) may apply to the District Court for enforcement of any of its orders where it appears that someone is about to commit a violation. We are tendered several alternatives: 1. That the Court of Appeals having first acquired jurisdiction can and should review the entire plan. 2. That the District Court can and should review all phases of the plan in an enforcement proceeding and, pending application for enforcement, no review of any phase of the plan should be entertained by the Court of Appeals. 3. That a so-called split review is permissible where as here the Commission has reserved for enforcement proceedings in the District Court only certain provisions of the plan, the Court of Appeals being restricted under § 24 (a) to those not so reserved. We have concluded that the so-called split review is permissible under the circumstances here present and that the Court of Appeals had jurisdiction under § 24 (a) to review all questions tendered it, except those pertaining to the elimination of the option warrants and the amendments to the charter and bylaws. In result we affirm in part and reverse in part the Court of Appeals on the jurisdictional question to which we restricted the grant of the petition for certiorari. It should be noted to begin with that the Act marks out two paths to compliance by a registered holding company with the requirements of the Act. One is the procedure under § 11 (b) whereby the Commission by order may require that designated steps be taken by the holding company. Failing that, the Commission may apply to a District Court for enforcement of its orders under § 11 (d). See Commonwealth & Southern Corp. v. Securities & Exchange Commission, 134 F. 2d 747. We are not concerned here with that method of bringing holding companies into compliance with the Act. We deal here with the second method of compliance — the voluntary reorganization which the company itself submits under the broad discretion Congress left to management to determine how to bring their systems into compliance with the Act. Our problem starts under § 11 (e) with the provision that a holding company “may . . . submit a plan to the Commission for the divestment of control, securities, or other assets, or for other action . . . enabling such company ... to comply with the provisions of subsection (b).” We turn then to problems involved in the efforts of registered holding companies voluntarily to meet the requirements of the Act. The Congress contemplated that under this Act some holding companies might satisfy the requirements of § 11 by divesting themselves of control and converting themselves into investment companies. See S. Rep. No. 621, 74th Cong., 1st Sess., p. 13. If in anticipation of that step a holding company desired to give its security holders an opportunity to withdraw from the enterprise and with the approval of the Commission made them an offer to exchange their securities for securities in its portfolio, there would be no doubt that the fairness of that offer would be reviewable by the Court of Appeals under § 24 (a) on petition of. a security holder. Two cases drawn from United’s program of compliance with the Act are illustrative. After the Commission ordered United to simplify its capital structure and cease to be a holding company, United proposed a plan for eliminating its preference stock by making an offer to exchange on a voluntary basis securities of subsidiaries and cash for the preference stock. The Commission approved; and review of that plan was had in the Court of Appeals under the procedure of § 24 (a) of the Act. Phillips v. Securities & Exchange Commission, 153 F. 2d 27. Later United proposed the pro rata distribution of shares of a subsidiary to holders of its common stock. The Commission approved; and review of that plan was had under § 24 (a) in the Court of Appeals. Phillips v. Securities & Exchange Commission, 87 U. S. App. D. C. 380, 185 F. 2d 746. If, therefore, United had offered its common stockholders cash or portfolio securities for their common stock and had put the offer in a separate plan, not making it physically a part of a more comprehensive plan, and the Commission had approved the exchange, there can be no doubt that that plan could have been reviewed by the Court of Appeals under § 24 (a). We are unable to see why the mere fact that the offer is not in isolation but one of several proposals joined together for presentation to the Commission and approved by the Commission at the time it approves the other proposals should make a difference for purposes of judicial review. Mr. Justice Rutledge writing for the Court in Securities & Exchange Commission v. Central-Illinois Corp., 338 U. S. 96, pointed out that the difference between § 11 (e) and § 24 (a) is not essentially in the scope of judicial review. Rather, it is in the function which the two systems of review perform. As he said, § 11 (e) serves “to mobilize the judicial authority in carrying out the policies of the Act.” Id., p. 125. The full import of that statement can be understood only if § 11 (e) and the functions it performs are appreciated. Section 11 (e) applies to a plan which a holding company submits to the Commission for purposes of complying with the Act. In other words, it applies to what traditionally has been known in the field of business and finance as voluntary reorganizations, that is to say, reorganizations designed by the management, not those imposed on a company from without. The holding company proposes the voluntary reorganization; the Commission, after hearing, approves, if it finds the plan “necessary to effectuate the provisions of subsection (b) and fair and equitable to the persons affected by such plan.” If § 11 (e) ended there, it would be plain that judicial review would be had either under § 24 (a) on a petition by an “aggrieved” person or under § 18 (f) if and when the Commission brought an action to enforce compliance with its order approving a plan. Section 11 (e), however, has its own enforcement procedure, somewhat peculiarly worded. It gives a registered holding company the standing to ask that the enforcement machinery of the Act be placed behind its voluntary plan of reorganization. Section 11 (e) provides, “The Commission, at the request of the company, may apply to a court, in accordance with the provisions of subsection (f) of section 18, to enforce and carry out the terms and provisions of such plan.” (Italics added.) The Commission may or may not accede to the company’s suggestion. Section 11 (e) does not make it mandatory for the Commission to do so. It only says that the Commission “may” do so. That implies the exercise of discretion. The company might request, as here, that only some of the terms and provisions of a plan be submitted to the enforcement proceedings of the Act; or it might ask that each and every proposal be so treated. The Commission might refuse the request or it might grant it in whole or in part. The considerations governing the exercise of the Commission’s discretion would embrace a variety of factors. It may be necessary to eliminate one class of stock; an exchange on a voluntary basis may not be possible because some security holders object. Therefore a compulsory retirement of the stock may be necessary. One step in United’s program of compliance involved that procedure, as is shown by In re United Corp., 82 F. Supp. 196. United proposed a plan for the compulsory retirement of preference stock; the Commission approved and applied to the District Court for enforcement. An enforcement decree on one phase of a voluntary plan of reorganization may be an appropriate and convenient means (if not a necessary one) to modify a certificate of incorporation. Thus in Delaware the corporation statute directs the Secretary of State to accept a decree of a federal court enforcing a provision of a plan which modifies, alters, or repeals the bylaws of a Delaware corporation or amends its certificate of incorporation. 8 Del. Code Ann., 1953, § 245. Illustrations could be multiplied. But those we have given indicate that a holding company may not be able to carry through without some degree of compulsion all phases of the voluntary plan it submits, that it may need the force of a judicial decree behind the Commission’s order in order to put through its reorganization. On the other hand, the holding company might conclude that market conditions were so favorable, its own financial situation so strong, the terms of the voluntary reorganization so attractive that it would need no help from any source to effectuate the plan, once the Commission approved. That is the reason Congress left the choice — the right to ask for enforcement help — to the holding company. Conceivably the Commission might refuse to give the help requested unless other phases of the plan were also put through enforcement proceedings. That conclusion might be reached where the several aspects of the plan were so closely and intimately related one to the other that the fairness of one turned on the fairness of the other. No such issue arises here, for the question whether the common stockholders who want to withdraw from United have been offered enough Niagara Mohawk stock or enough cash has nothing to do either with the elimination of the option warrants or the changes in the charter and bylaws to govern stockholders who do not withdraw from the enterprise. We have said enough to indicate some of the considerations confronting the Commission when it decides, in connection with a voluntary reorganization plan under § 11 (e), whether it will “mobilize the judicial authority in carrying out the policies of the Act,” to use the words of Mr. Justice Rutledge in the Central-Illinois Corp. case, supra. The Commission may send only one provision of a plan of voluntary reorganization into enforcement proceedings and let all others go the route of § 24 (a) should an aggrieved person desire to take them there. Here as in other fields (Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 194) the relation of remedy to policy is peculiarly for the administrative agency. See American Power Co. v. Securities & Exchange Commission, 329 U. S. 90, 112. We cannot say that the Commission abused its discretion in the present case, for, as we have already observed, the amendments of the charter and bylaws and the fairness of the elimination of the option warrants have no apparent relevancy to the manner in which the common stockholders, who sought review in the Circuit Court under § 24 (a), say they have been treated. It may be, as some argue, that it would be a better scheme to have all or none of a plan go into enforcement proceedings under § 11 (e). If the entire plan were presented in the enforcement proceedings, all parties would be notified and heard at one time. But Congress in its wisdom has provided differently. The problem relates, as we have said, only to voluntary reorganizations, that is to plans submitted by the companies themselves to bring their operations into compliance with the Act. The history of voluntary recapitalizations, readjustments, and reorganizations may well have suggested that the litigious issues would not be numerous, that overall judicial review of the total plan need not be made mandatory, that only select phases and aspects of voluntary reorganization need be put through enforcement proceedings. Certainly one who has an isolated point of objection, whose protest relates only to a single phase of a plan has an advantage in the review accorded him by § 24 (a). He can bring suit in the Court of Appeals in the circuit where he resides or has his principal place of business, or in the District of Columbia. He can sue at once in his own bailiwick and not have to await institution of an enforcement proceeding perhaps in some faraway place. He can have a hearing on his own personal grievance without running the risk that his case may be lost in the large shuffle of an enforcement proceeding where many parties and many interests are involved. There is nothing strange or irrational in routing the common stockholders in this case to the Court of Appeals and the option warrant holders to the District Court. Each will have his day in court. Nothing that one court does will impinge on the other. Each court will be performing a different function. Whether a better procedure could be devised is not for us to determine. It is sufficient that the procedure indicated is permissible under the Act, and that the Commission in selecting certain phases of a plan for submission to enforcement proceedings did not, to borrow a phrase from the Court of Appeals for the Third Circuit, lose “sight of the law.” We accordingly affirm the Court of Appeals in taking jurisdiction over the controversy insofar as it related (1) to the sale by United of its holdings and (2) to the offers it made to its stockholders who wanted to withdraw. We reverse the Court of Appeals in taking jurisdiction over the provisions of the voluntary plan of reorganization which the Commission in its order made operative on enforcement by the District Court. So ordered. Section 11 (b) places on the Commission the duty to require registered holding companies and their subsidiaries not only to limit, with specified exceptions, their operations to a single integrated public-utility system but also to simplify their capital structures. Section 24 (a) provides: “Any person or party aggrieved by an order issued by the Commission under this title may obtain a review of such order in the circuit court of appeals of the United States within any circuit wherein such person resides or has his principal place of business, or in the United States Court of Appeals for the District of Columbia, by filing in such court, within sixty days after the entry of such order, a written petition praying that the order of the Commission be modified or set aside in whole or in part. A copy of such petition shall be forthwith served upon any member of the Commission, or upon any officer thereof designated by the Commission for that purpose, and thereupon the Commission shall certify and file in the court a transcript of the record upon which the order complained of was entered. Upon the filing of such transcript such court shall have exclusive jurisdiction to affirm, modify, or set aside such order, in whole or in part. No objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission or unless there were reasonable grounds for failure so to do. The findings of the Commission as to the facts, if supported by substantial evidence, shall be conclusive. If application is made to the court for leave to adduce additional evidence, and it is shown to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for failure to adduce such evidence in the proceeding before the Commission, the court may order such additional evidence to be taken before the Commission and to be adduced upon the hearing in such manner and upon such terms and conditions as to the court may seem proper. The Commission may modify its findings as to the facts by reason of the additional evidence so taken, and it shall file with the court such modified or new findings, which, if supported by substantial evidence, shall be conclusive, and its recommendation, if any, for the modification or setting aside of the original order. The judgment and decree of the court affirming, modifying, or setting aside, in whole or in part, any such order of the Commission shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in sections 239 and 240 of the Judicial Code, as amended (U. S. C., title 28, secs. 346 and 347).” Section 11 (e) provides: “In accordance with such rules and regulations or order as the Commission may deem necessary or appropriate in the public interest or for the protection of investors or consumers, any registered holding company or any subsidiary company of a registered holding company may, at any time after January 1, 1936, submit a plan to the Commission for the divestment of control, securities, or other assets, or for other action by such company or any subsidiary company thereof for the purpose of enabling such company or any subsidiary company thereof to comply with the provisions of subsection (b). If, after notice and opportunity for hearing, the Commission shall find such plan, as submitted or as modified, necessary to effectuate the provisions of subsection (b) and fair and equitable to the persons affected by such plan, the Commission shall make a,n order approving such plan; and the Commission, at the request of the company, may apply to a court, in accordance with the provisions of subsection (f) of section 18, to enforce and carry out the terms and provisions of such plan. If, upon any such application, the court, after notice and opportunity for hearing, shall approve such plan as fair and equitable and as appropriate to effectuate the provisions of section 11, the court as a court of equity may, to such extent as it deems necessary for the purpose of carrying out the terms and provisions of such plan, take exclusive jurisdiction and possession of the company or companies and the assets thereof, wherever located; and the court shall have jurisdiction to appoint a trustee, and the court may constitute and appoint the Commission as sole trustee, to hold or administer, under the direction of the court and in accordance with the plan theretofore approved by the court and the Commission, the assets so possessed.” Section 18 (f) provides: “Whenever it shall appear to the Commission that any person is engaged or about to engage in any acts or practices which constitute or will constitute a violation of the provisions of this title, or of any rule, regulation, or order thereunder, it may in its discretion bring an action in the proper district court of the United States, the [district court of the United States for] the District of Columbia, or the United States courts of any Territory or other place subject to the jurisdiction of the United States, to enjoin such acts or practices and to enforce compliance with this title or any rule, regulation, or order thereunder, and upon a proper showing a permanent or temporary injunction or decree or restraining order shall be granted without bond. The Commission may transmit such evidence as may be available concerning such acts or practices to the Attorney General, who, in his discretion, may institute the appropriate criminal proceedings under this title.” In speaking of plans of voluntary reorganization under § 11 (e) the Court in Commonwealth & Southern Corp. v. Securities & Exchange Commission, 134 F. 2d 747, 751, said: “If the plan is one which can be carried out by the sole action of the parties thereto no further proceedings are needed. If not, the subsection authorizes the Commission, at the request of the company proposing the plan, to make application to a district court to enforce and carry out the plan. In this proceeding the court, if it finds the plan fair, equitable and appropriate, may direct it to be carried out, taking possession of the company and its assets if necessary to that end. . . . “It will thus be seen that the congressional purpose is to leave open to the holding companies a broad area of discretion in determining just how they are to bring their systems into compliance with the required standards. . . . “It is obvious that in many cases the desired result may be reached in more than one way. Congress evidently intended to permit the Commission to leave to the company involved the initiative in suggesting from among the available alternative methods that one which it deems most appropriate. This seems clear in the light of the fact that under section 11 (e) the company is not restricted to proposing a plan of compliance which it is in a position to carry out itself but it may also propose a plan affecting the rights of third persons which it may, through the Commission, request a court to enforce against the opposition of those third persons. It is only if the company does not propose a plan which the Commission and the court approve that the Commission under section 11 (d) itself may propose and seek enforcement of a plan against the opposition of the company.” See In re Standard Gas & Electric Co., 151 F. 2d 326, 331. Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:
songer_procedur	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. 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: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_adminaction	117	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. ALGOMA PLYWOOD & VENEER CO. v. WISCONSIN EMPLOYMENT RELATIONS BOARD. No. 216. Argued November 18, 1948. Decided March 7, 1949. Roger C. Minahan argued the cause for petitioner. With him on the brief was Malcolm K. Whyte. Beatrice Lampert, Assistant Attorney General of Wisconsin, argued the cause for respondent. With her on the brief were Grover L. Broadfoot, Attorney General, and Stewart G. Honeck, Deputy Attorney General. David Previant filed a brief on behalf of the United Brotherhood of Carpenters and Joiners of America, A. F. of L., as amicus curiae, urging reversal. Mr. Justice Frankfurter delivered the opinion of the Court. The Algoma Plywood & Veneer Co. manufactures in Kewaunee County, Wisconsin, the products for which it is named. Ninety-five per cent of its output is sold in interstate commerce. In 1942 the National Labor Relations Board held an election at the plant, the outcome of which was the certification of Local 1521 of the Carpenters and Joiners Union as bargaining representative for all production employees, about 650 in number. In 1943, under pressure from the Department of Labor and the War Labor Board, Algoma agreed to a maintenance-of-membership clause in its contract with Local 1521. That clause was carried over from year to year and was part of the contract effective for the year following April 29,1946. One Victor Moreau refused to pay dues, and on Jan. 7, 1947, the Union notified him that unless he paid up by Jan. 13, he would be discharged. On Jan. 14,1947, in the presence of representatives of the Company and the Union, he said that he would rather quit than pay dues to the Union. And so the Vice-President of the Company told him to collect his pay and go home. On Jan. 27, 1947, Moreau filed with the Wisconsin Employment Relations Board a complaint charging the Company with an unfair labor practice under Wis. Stat. § 111.06 (1) (c) 1, which provides: “It shall be an unfair labor practice for an employer... to encourage... membership in any labor organization... by discrimination in regard to hiring, tenure or other terms or conditions of employment; provided, that an employer shall not be prohibited from entering into an all-union agreement with the representatives of his employes in a collective bargaining unit, where at least two thirds of such employes voting... shall have voted affirmatively by secret ballot in favor of such all-union agreement in a referendum conducted by the board... ” No referendum had been conducted at the Algoma plant. The Board, accordingly, on April 30, 1947, ordered the Company to cease and desist from giving effect to the maintenance-of-membership clause, to offer Moreau reinstatement, and to make him whole for any loss of pay. The Company and the Union petitioned the Wisconsin Circuit Court of Kewaunee County for review of the order, and the Board petitioned for its enforcement. In its judgment of Nov. 21, 1947, the Circuit Court modified the order by striking the award of back pay, but otherwise affirmed it. On May 11, 1948, the Wisconsin Supreme Court affirmed the judgment of the Circuit Court insofar as it sustained the jurisdiction of the Board to issue its cease and desist order and to require an offer of reinstatement but directed enforcement of the back-pay award. 252 Wis. 549, 32 N. W. 2d 417. At every stage of the proceedings the Company and the Union contested the jurisdiction of the Employment Relations Board on the ground of the exclusive authority of the National Labor Relations Board under § 10 (a) of the National Labor Relations Act, 49 Stat. 453, 29 U. S. C. § 160 (a), and asserted the repugnancy of Wis. Stat. § 111.06 (1) (c) 1 to § 8 (3) of the National Labor Relations Act, 49 Stat. 452, 29 U. S. C. § 158 (3). We granted certiorari under 28 U. S. C. § 1257 (3) because of the important bearing of these issues upon the distribution of power in our federal system. 335 U. S. 812. The discharge of Moreau and the orders of the Wisconsin Board preceded the Labor Management Relations Act, 1947, colloquially known as the Taft-Hartley Act, 61 Stat. 136, 29 U. S. C. § 141 et seg. The judgments of the Circuit Court for Kewaunee County and the Supreme Court of Wisconsin were rendered after it came into force. If the National Labor Relations Act gave affirmative protection to the employer in discharging an employee under a union-security agreement for failure to maintain union membership, it would be necessary to decide whether adoption of the Taft-Hartley Act retroactively removed that protection and whether it equally gave effect to a reinstatement order, an award of back pay, and a cease and desist order which would previously have been invalid. Since, however, we do not find conflict between the Wisconsin law under which the orders were issued and either the National Labor Relations Act or the Taft-Hartley Act, we are relieved from defining the respective applicability of the federal Acts. In seeking to show that the Wisconsin Board had no power to make the contested orders, petitioner points first to § 10 (a) of the National Labor Relations Act, which is set forth in the margin. It argues that the grant to the National Labor Relations Board of “exclusive” power to prevent “any unfair labor practice” thereby displaced State power to deal with such practices, provided of course that the practice was one affecting commerce. But this argument implies two equally untenable assumptions. One requires disregard of the parenthetical phrase “(listed in section 8)”; the other depends upon attaching to the section as it stands, the clause “and no other agency shall have power to prevent unfair labor practices not listed in section 8.” The term “unfair labor practice” is not a term of art having an independent significance which transcends its statutory definition. The States are free (apart from pre-emption by Congress) to characterize any wrong of any kind by an employer to an employee, whether statutorily created or known to the common law, as an “unfair labor practice.” At the time when the National Labor Relations Act was adopted, the courts of many States, at least under some circumstances, denied validity to union-security agreements. See 1 Teller, Labor Disputes and Collective Bargaining § 170 (1940). Here Wisconsin has attached conditions to their enforcement and has called the voluntary observance of such a contract when those conditions have not been met an “unfair labor practice.” Had the sponsors of the National Labor Relations Act meant to deny effect to State policies inconsistent with the unrestricted enforcement of union-shop contracts, surely they would have made their purpose manifest. So far as appears from the Committee Reports, however, § 10 (a) was designed, as its language declares, merely to preclude conflict in the administration of remedies for the practices proscribed by § 8. The House Report, after summarizing the provisions of the section, adds, “The Board is thus made the paramount agency for dealing with the unfair labor practices described in the bill.” H. R. Rep. No. 969, 74th Cong., 1st Sess. 21. See also the identical language of H. R. Rep. No. 972, 74th Cong., 1st Sess. 21 and H. R. Rep. No. 1147, 74th Cong., 1st Sess. 23. And the Senate Report describes the purpose of the section as “intended to dispel the confusion resulting from dispersion of authority and to establish a single paramount administrative or quasi-judicial authority in connection with the development of the Federal American law regarding collective bargaining.” S. Rep. No. 573, 74th Cong., 1st Sess. 15. The contention that § 10 (a) of the Wagner Act swept aside State law respecting the union shop must therefore be rejected. If any provision of the Act had that effect, it could only have been § 8 (3), which explicitly deals with membership in a union as a condition of employment. We now turn to consideration of that section. Section 8 (3) provides that it shall be an unfair labor practice for an employer “By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this Act... or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization... to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in section 9 (a), in the appropriate collective bargaining unit covered by such agreement when made.” It is argued, therefore, that a State cannot forbid what § 8 (3) affirmatively permits. The short answer is that § 8 (3) merely disclaims a national policy hostile to the closed shop or other forms of union-security agreement. This is the obvious inference to be drawn from the choice of the words “nothing in this Act... or in any other statute of the United States,” and it is confirmed by the legislative history. The Senate Report on the bill which was to become the National Labor Relations Act has this to say about §8(3): “The proviso attached to the third unfair-labor practice deals with the question of the closed shop. Propaganda has been wide-spread that this proviso attaches special legal sanctions to the closed shop or seeks to impose it upon all industry. This propaganda is absolutely false. The reason for the insertion of the proviso is as follows: According to some interpretations, the provision of section 7 (a) of the National Industrial Recovery Act, assuring the freedom of employees ‘to organize and bargain collectively through representatives of their own choosing’, was deemed to illegalize the closed shop. The committee feels that this was not the intent of Congress when it wrote section 7 (a); that it is not the intent of Congress today; and that it is not desirable to interfere in this drastic way with the laws of the several States on this subject. “But to prevent similar misconceptions of this bill, the proviso in question states that nothing in this bill, or in any other law of the United States, or in any code or agreement approved or prescribed thereunder, shall be held to prevent the making of closed-shop agreements between employers and employees. In other words, the bill does nothing to facilitate closed-shop agreements or to make them legal in any State where they may be illegal; it does not interfere with the status quo on this debatable subject but leaves the way open to such agreements as might now legally be consummated....” S. Rep. No. 573, 74th Cong., 1st Sess. 11-12. The House Report contains similar language: “The proviso to the third unfair labor practice, dealing with the making of closed-shop agreements, has been widely misrepresented. The proviso does not impose a closed shop on all industry; it does not give new legal sanctions to the closed shop. All that it does is to eliminate the doubts and misconstructions in regard to the effect of section 7 (a) upon closed-shop agreements, and the possible repetition of such doubts and misconstructions under this bill, by providing that nothing in the bill or in section 7 (a) or in any other statute of the United States shall illegalize a closed-shop agreement between an employer and a labor organization, provided such organization has not been established, maintained, or assisted by any action defined in the bill as an unfair labor practice and is the choice of a majority of the employees, as provided in section 9 (a), in the appropriate collective bargaining unit covered by the agreement when made. The bill does nothing to legalize the closed-shop agreement in the States where it may be illegal; but the committee is confident that it would not be the desire of Congress to enact a general ban upon closed-shop agreements in the States where they are legal. And it should be emphasized that no closed shop may be effected unless it is assented to by the employer.” H. R. Rep. No. 969, 74th Cong., 1st Sess. 17. See also the identical language in H. R. Rep. No. 972, 74th Cong., 1st Sess. 17, and H. R. Rep. No. 1147, 74th Cong., 1st Sess. 19-20. In his major speech to the Senate in support of the bill, Senator Wagner said: “While outlawing the organization that is interfered with by the employer, this bill does not establish the closed shop or even encourage it. The much-discussed closed-shop proviso merely states that nothing in any Federal law shall be held to illegalize the confirmation of voluntary closed-shop agreements between employers and workers.” 79 Cong. Rec. 7570. The Senator went on to explain the purpose of the section as dispelling misunderstanding of § 7 (a) of the National Industrial Recovery Act, 48 Stat. 198, denied either advocacy or disapproval of the closed shop, then added: “The virulent propaganda to the effect that this bill encourages the closed shop is outrageous in view of the fact that in two respects it actually narrows the now-existing law in regard to the closed-shop agreement.” Ibid. Later, during discussion of proposed amendments, Senator Wagner answered a question from the floor about the effect of the proviso in the following words: “The provision will not change the status quo. That is the law today; and wherever it is the law today that a closed-shop agreement can be made, it will continue to be the law. By this bill we do not change that situation.” Id. at 7673. Equally conclusive is the answer by Representative Connery, manager of the bill in the House, to a statement by Representative Taber in support of an amendment which would have entirely stricken the proviso. Representative Taber charged that the proviso would make it possible for 51 % of the employees of any organization to bring about the discharge of the other 49%. Representative Connery said: “Mr. Chairman, I merely rise to say this in opposition: The closed-shop proposition in this bill does not refer to any State which has any law forbidding the closed shop. It does not interfere with that in any way.” Id. at 9726. No ruling by the courts or the National Labor Relations Board, the agency entrusted with administration of the Wagner Act, has adopted a construction of § 8 (3) in disregard of this legislative history. It is suggested, however, that the interpretation given the section by the War Labor Board supports petitioner’s position. The Board, it is true, in view of the practical desirability of the maintenance-of-membership clause in settling wartime disputes over union security found authority to order contracts containing such clauses despite inconsistent State law. It found such authority, however, not in § 8 (3) but in the conclusion that “its power to direct the parties to abide by the maintenance-of-membership provision in such a case as this one stems directly from the war powers of the United States Government.” Greenebaum Tanning Co., 10 War Lab. Rep. 527, 534. The Supreme Court of Wisconsin itself acknowledged the supremacy of the war power in a decision suspending an order directing the reinstatement of an employee discharged under a maintenance-of-membership clause ordered by the War Labor Board. International Brotherhood of Papermakers v. Wisconsin E. R. Board, 245 Wis. 541, 15 N. W. 2d 806. When the orders of the Wisconsin Board in the present case were entered, the War Labor Board had ceased to exist, Exec. Order No. 9672, 11 Fed. Reg. 221, and, with the occasion that had called it into being, the necessity for suppression of State law had also come to an end. Since we would be wholly unjustified, therefore, in rejecting the legislative interpretation of § 8 (3) placed upon it at the time of its enactment, it is not even necessary to invoke the principle that in cases of concurrent power over commerce State law remains effective so long as Congress has not manifested an unambiguous purpose that it should be supplanted. See, e. g., Sinnot v. Davenport, 22 How. 227; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613. Nor need we, if Congress in enacting § 8 (3) did not mean to enlarge the right to bargain for union security, consider contentions based on Hill v. Florida, 325 U. S. 538, to the effect that in guaranteeing the right to collective bargaining the National Labor Relations Act also guaranteed the right to contract upon any terms which are commonly the subject of collective bargaining. We come now to the question whether the Taft-Hartley Act expresses a policy inconsistent with § 111.06 (1) (c) 1 of the Wisconsin Employment Peace Act. Section 10 (a) of the Taft-Hartley Act, which is set forth in the margin, contains important changes, but none requiring modification of the conclusions we have reached as to the corresponding section of the National Labor Relations Act. One phrase, however, reinforces those conclusions; that is the phrase “inconsistent with the corresponding provision of this Act.” These words must mean that cession of jurisdiction is to take place only where State and federal laws have parallel provisions. Where the State and federal laws do not overlap, no cession is necessary because the State’s jurisdiction is unimpaired. This reading is confirmed by the purpose of the proviso in which the phrase is contained: to meet situations made possible by Bethlehem Steel Co. v. New York S. L. R. B., 330 U. S. 767, where no State agency would be free to take jurisdiction of cases over which the National Board had declined jurisdiction. See H. R. Rep. No. 245, 80th Cong., 1st Sess. 40; S. Rep. No. 105, Minority Views, Part 2, 80th Cong., 1st Sess. 38. Other provisions of the Taft-Hartley Act make it even clearer than the National Labor Relations Act that the States are left free to pursue their own more restrictive policies in the matter of union-security agreements. Because § 8 (3) of the new Act forbids the closed shop and strictly regulates the conditions under which a union-shop agreement may be entered, § 14 (b) was included to forestall the inference that federal policy was to be exclusive. It reads: “Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.” It is argued, however, that the effect of this section is to displace State law which “regulates” but does not wholly “prohibit” agreements requiring membership in a labor organization as a condition of employment. But if there could be any doubt that the language of the section means that the Act shall not be construed to authorize any “application” of a union-security contract, such as discharging an employee, which under the circumstances “is prohibited” by the State, the legislative history of the section would dispel it. See S. Rep. No. 105, 80th Cong., 1st Sess. 5-7; H. R. Rep. No. 245, 80th Cong., 1st Sess. 9, 34, 40, 44; H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess. 60; 93 Cong. Rec. 3554, 3559, 4904, 6383-84, 6446; H. R. 3020, 80th Cong., 1st Sess., as reported, § 13. It remains to consider whether certification of the Union by the National Labor Relations Board in 1942 thereby forever ousted jurisdiction of the Wisconsin Board to enjoin practices forbidden by Wisconsin law. Since the enumeration by the Wagner Act and the TaftHartley Act of unfair labor practices over which the National Board has exclusive jurisdiction does not prevent the States from enforcing their own policies in matters not governed by the federal law, such freedom of action by a State cannot be lost because the National Board has once held an election under the Wagner Act. The character of activities left to State regulation is not changed by the fact of certification. Certification, it is true, makes clear that the employer and the union are subject to federal law, but that is not disputed. So far as the relationship of State and national power is concerned, certification amounts to no more than an assertion that as to this employer the State shall not impose a policy inconsistent with national policy, Hill v. Florida, 325 U. S. 538, or the National Board’s interpretation of that policy, Bethlehem Steel Co. v. New York S. L. R. B., 330 U. S. 767; La Crosse Telephone Corp. v. Wisconsin E. R. B., 336 U. S. 18. Indeed, the express disclaimer in § 8 (3) of the National Labor Relations Act of intention to interfere with State law and the permission granted the States by § 14 (b) of the Taft-Hartley Act to carry out policies inconsistent with the Taft-Hartley Act itself, would be practically meaningless if so easily avoided. For these provisions can have application, obviously, only where State and federal power are concurrent; it would have been futile to disclaim the assertion of federal policy over areas which the commerce power does not reach. Since, therefore, the effect given the Wisconsin Employment Peace Act by the judgment below does not conflict with the enacted policies of Congress, that judgment is Affirmed. Mr. Justice Murphy and Mr. Justice Rutledge concur in the result. Mr. Justice Black, with whom Mr. Justice Douglas joins, dissenting. The decision just rendered holds that the State of Wisconsin can compel the petitioner to pay unearned back wages to an employee found to have been discharged by petitioner under the terms of a collective bargaining agreement which required such discharge. The petitioner had originally entered into the agreement in response to irresistible pressure by the United States Government. 252 Wis. 549, 559, 32 N. W. 2d 417. The circumstances under which the contract was made were these: From 1938 to 1943 the company and the union were in an almost constant wrangle. The chief bone of controversy throughout this five-year period was the union’s demand for a “closed shop.” Petitioner resolutely fought for an “open shop.” In 1938 the union took its cause to the National Labor Relations Board. After a long hearing of which the closed shop issue was a prominent phase, that Board in 1940 ordered petitioner to bargain with the union on the pending issues. Algoma Plywood Co., 26 N. L. R. B. 975, 980, 1002 (1940). The Court of Appeals, referring to the closed shop question as the “main stumbling block” between petitioner and the union, refused to enforce the order on the ground that it was not clear that the union represented a majority of petitioner’s employees. Labor Board v. Algoma Plywood Co., 121 F. 2d 602, 606, 611. Thereafter, early in 1942, petitioner appealed to the Wisconsin Employment Relations Board to conduct an election. The union went to the National Board; petitioner withdrew its state board application; the National Board conducted an election; the union won, and the old closed shop controversy was renewed with increased intensity. The union appealed to the National War Labor Board to settle the closed shop dispute. That Board, in collaboration with the United States Department of Labor, put pressure on petitioner to yield to the union’s demands. Petitioner was informed that unless it agreed to a maintenance of membership clause, which was at the time forbidden by Wisconsin law, the clause “would be put in by the War Labor Board anyhow” since inclusion of such provisions was a part of that Board’s national policy. Thus fired at from one side by the state and from the other side by powerful federal agencies, petitioner had to flee to one side or the other. Neither side offered a safe sanctuary. In weighing the conflicting considerations, petitioner not unreasonably found the scales tipped on the United States’ side. Had petitioner refused the demands of the federal agency, the Government could and might have seized and operated its plants. Furthermore, petitioner’s employees might have stopped work. In response to its best judgment, though contrary to its own strong desires, petitioner finally yielded to the Federal Government’s demands and agreed to the union’s terms. January 23, 1943, a collective bargaining agreement was executed which contained the controversial maintenance of union membership clause and an automatic extension clause. This contract was approved by the War Labor Board. The controversial clause was extended automatically from year to year and was in effect when the alleged discharge took place. The Court apparently concedes that this clause of the collective bargaining contract was valid when petitioner entered into it under federal compulsion. In my judgment it was equally valid when the employee was discharged under it. It seems at least a questionable interpretation of federal statutory policy for this Court — a federal tribunal — to hold that a state is free to impose a money penalty on this company for acting in obedience to a contract which a federal agency validly compelled it to make. I. The Court’s concession that the contract was valid when made rests on the premise that the statute creating the War Labor Board stemmed from the war power of Congress and that under this power the War Labor Board could, as it did, force petitioner to make the contract. Greenebaum Tanning Co., 10 War Lab. Rep. 527. But, says the Court, when Wisconsin entered the back-pay order, the War Labor Board had ceased to exist and on its dissolution on January 4, 1946, Wisconsin became possessed of the power to order petitioner to break his contract. In other words, the holding seems to be that the discontinuance of the War Labor Board automatically and instantly empowered the states to impair and nullify all collective bargaining contracts entered into under authority of the supreme federal policy embodied in the National War Labor Board Act. For several reasons, I cannot agree. 1. The termination of the War Labor Board was accomplished by Executive Order of the President, No. 9672. 11 Fed. Reg. 221. But there is nothing in that Executive Order that indicates a purpose to authorize invalidation of contracts made under the Board’s directions. A contrary purpose is indicated. The Executive Order established the National Wage Stabilization Board. As the name of that Board indicates, it was established to exercise functions in connection with wage disputes which might adversely affect the national economy. For the limited purposes enumerated in the Order the new Board was vested with all the “powers, functions, and responsibilities of the National War Labor Board....” While scope for operation of these powers was within more narrow limits than had been the scope of the War Labor Board’s powers, the creation of this new Board negatives any possible contention that dissolution of the War Labor Board showed an intention to permit states to invalidate previously executed legal contracts approved by the War Labor Board in the interests of industrial peace. And far from indicating a presidential belief that wage stabilization and industrial peace were no longer essential in the war emergency period, the new Executive Order, as had the old, rested on the war power and the statutes that had stemmed from it. The War Labor Board was created to implement a congressional war policy expressed in part in the War Labor Disputes Act. 57 Stat. 163. The Board’s dissolution could not detract from the force of the statute or from the congressional war power. See Kelly v. Washington, 302 U. S. 1, 14. This Executive Order recognized the continued existence of conditions that called for the further exercise of war powers. It was promulgated January 4, 1946. The last automatic extension of the compelled contract was April 4,1946. This automatically extended contract was the basis for the discharge. Under the foregoing circumstances I cannot agree that dissolution of the War Labor Board authorized Wisconsin to punish petitioner for its continued observance of the contract. 2. That the President correctly assumed the continued existence of war powers after the cessation of hostilities seems beyond question in the light of this Court’s holding in Ludecke v. Watkins, 335 U. S. 160, 166-170. The holding in the Ludecke case was that the war had not at that time officially ended and that the congressional war power still existed in May, 1947. This was long after the dissolution of the War Labor Board and the employee’s discharge. In light of the 1947 Ludecke holding it seems odd that dissolution of the War Labor Board should now be held an adequate reason for permitting a state in 1947 to invalidate contracts previously entered into in obedience to federal commands made under a valid federal law rooted in the war power. It seems to me that the Court’s holding today can be justified if at all only by adopting the holding of the Wisconsin Supreme Court in this case. That court supported the state penalty imposed on petitioner by concluding that the National War Labor Board’s action was ultra vires. Its reasoning was that national war powers had “ended” in 1946. 252 Wis. at 560, 32 N. W. 2d 522. But in the Ludecke case this Court held those powers still existed in 1947. The result here is all the more inexplicable when it is considered that wholesale invalidation of those federally authorized contracts could result in serious industrial conflicts at a time when industrial relationships were extremely strained due to the transition from a war to a peace economy. Woods v. Miller Co., 333 U. S. 138, 144. 3. I suppose it cannot be denied that congressional authority to force contracts under the war power carries with it authority to provide that (at least during the existence of the war power) the obligations assumed under those contracts should be faithfully observed and that the contracts should be invulnerable to state attack. In this view after the War Labor Board ceased to exist and before peace had been officially declared, Congress under the war power doubtless could have made it possible under enumerated contingencies for states to invalidate contracts such as this one. But no suggestion has been made that any statutory language of Congress can be stretched far enough to find such congressional intent. Since no such intent has been manifested, it seems fair to assume that Congress intended that such contracts should remain immune from state attack and continue in force unless terminated under their valid provisions. I would therefore hold that petitioner was obligated to continue to observe the terms of the contract until terminated according to its provisions. The contract had not terminated when the War Labor Board ceased to exist. It had been given continued vitality under its own original terms, terms which must be interpreted under controlling federal law authorizing the contract’s creation. I may assume at this point that the contract was invulnerable to state impairment or nullification only because of congressional authority stemming from the war power. Even so and despite the dissolution of the War Labor Board, I think the state was without power to penalize petitioner for observance of the contract, at least during the period in which the war had not officially ended. II. It is apparent that the Wisconsin statute as here applied deprives petitioner and his employees of a substantial federal right if § 8 (3) of the National Labor Relations Act authorized union membership maintenance agreements without regard to contrary state policies. For given that interpretation of § 8 (3), the Question: What is the agency involved in the administrative action? 001. Army and Air Force Exchange Service 002. Atomic Energy Commission 003. Secretary or administrative unit or personnel of the U.S. Air Force 004. Department or Secretary of Agriculture 005. Alien Property Custodian 006. Secretary or administrative unit or personnel of the U.S. Army 007. Board of Immigration Appeals 008. Bureau of Indian Affairs 009. Bureau of Prisons 010. Bonneville Power Administration 011. Benefits Review Board 012. Civil Aeronautics Board 013. Bureau of the Census 014. Central Intelligence Agency 015. Commodity Futures Trading Commission 016. Department or Secretary of Commerce 017. Comptroller of Currency 018. Consumer Product Safety Commission 019. Civil Rights Commission 020. Civil Service Commission, U.S. 021. Customs Service or Commissioner or Collector of Customs 022. Defense Base Closure and REalignment Commission 023. Drug Enforcement Agency 024. Department or Secretary of Defense (and Department or Secretary of War) 025. Department or Secretary of Energy 026. Department or Secretary of the Interior 027. Department of Justice or Attorney General 028. Department or Secretary of State 029. Department or Secretary of Transportation 030. Department or Secretary of Education 031. U.S. Employees' Compensation Commission, or Commissioner 032. Equal Employment Opportunity Commission 033. Environmental Protection Agency or Administrator 034. Federal Aviation Agency or Administration 035. Federal Bureau of Investigation or Director 036. Federal Bureau of Prisons 037. Farm Credit Administration 038. Federal Communications Commission (including a predecessor, Federal Radio Commission) 039. Federal Credit Union Administration 040. Food and Drug Administration 041. Federal Deposit Insurance Corporation 042. Federal Energy Administration 043. Federal Election Commission 044. Federal Energy Regulatory Commission 045. Federal Housing Administration 046. Federal Home Loan Bank Board 047. Federal Labor Relations Authority 048. Federal Maritime Board 049. Federal Maritime Commission 050. Farmers Home Administration 051. Federal Parole Board 052. Federal Power Commission 053. Federal Railroad Administration 054. Federal Reserve Board of Governors 055. Federal Reserve System 056. Federal Savings and Loan Insurance Corporation 057. Federal Trade Commission 058. Federal Works Administration, or Administrator 059. General Accounting Office 060. Comptroller General 061. General Services Administration 062. Department or Secretary of Health, Education and Welfare 063. Department or Secretary of Health and Human Services 064. Department or Secretary of Housing and Urban Development 065. Administrative agency established under an interstate compact (except for the MTC) 066. Interstate Commerce Commission 067. Indian Claims Commission 068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 069. Internal Revenue Service, Collector, Commissioner, or District Director of 070. Information Security Oversight Office 071. Department or Secretary of Labor 072. Loyalty Review Board 073. Legal Services Corporation 074. Merit Systems Protection Board 075. Multistate Tax Commission 076. National Aeronautics and Space Administration 077. Secretary or administrative unit or personnel of the U.S. Navy 078. National Credit Union Administration 079. National Endowment for the Arts 080. National Enforcement Commission 081. National Highway Traffic Safety Administration 082. National Labor Relations Board, or regional office or officer 083. National Mediation Board 084. National Railroad Adjustment Board 085. Nuclear Regulatory Commission 086. National Security Agency 087. Office of Economic Opportunity 088. Office of Management and Budget 089. Office of Price Administration, or Price Administrator 090. Office of Personnel Management 091. Occupational Safety and Health Administration 092. Occupational Safety and Health Review Commission 093. Office of Workers' Compensation Programs 094. Patent Office, or Commissioner of, or Board of Appeals of 095. Pay Board (established under the Economic Stabilization Act of 1970) 096. Pension Benefit Guaranty Corporation 097. U.S. Public Health Service 098. Postal Rate Commission 099. Provider Reimbursement Review Board 100. Renegotiation Board 101. Railroad Adjustment Board 102. Railroad Retirement Board 103. Subversive Activities Control Board 104. Small Business Administration 105. Securities and Exchange Commission 106. Social Security Administration or Commissioner 107. Selective Service System 108. Department or Secretary of the Treasury 109. Tennessee Valley Authority 110. United States Forest Service 111. United States Parole Commission 112. Postal Service and Post Office, or Postmaster General, or Postmaster 113. United States Sentencing Commission 114. Veterans' Administration or Board of Veterans' Appeals 115. War Production Board 116. Wage Stabilization Board 117. State Agency 118. Unidentifiable 119. Office of Thrift Supervision 120. Department of Homeland Security 121. Board of General Appraisers 122. Board of Tax Appeals 123. General Land Office or Commissioners 124. NO Admin Action 125. Processing Tax Board of Review Answer:
sc_certreason	L	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. RUMSFELD, SECRETARY OF DEFENSE, et al. v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC., et al. No. 04-1152. Argued December 6, 2005 Decided March 6, 2006 Solicitor General Clement argued the cause for petitioners. With him on the brief were Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, Deputy Assistant Attorney General Katsas, Irving L. Gornstein, and Douglas N. Letter. E. Joshua Rosenkranz argued the cause for respondents. With him on the brief were Sharon E. Frase and Warrington S. Parker III Briefs of amici curiae urging reversal were filed for the State of Texas et al. by Greg Abbott, Attorney General of Texas, R. Ted Cruz, Solicitor General, Barry R. McBee, First Assistant Attorney General, Edward D. Burbach, Deputy Attorney General, and Joel L. Thollander and Adam W. Aston, Assistant Solicitors General, and by the Attorneys General for their respective States as follows: Troy King of Alabama, John W. Suthers of Colorado, M. Jane Brady of Delaware, Charles J. Crist, Jr., of Florida, Steve Carter of Indiana, Phill Kline of Kansas, Michael A. Cox of Michigan, Lawrence E. Long of South Dakota, Mark L. Shurtleff of Utah, and Darrell V. McGraw, Jr., of West Virginia; for the American Civil Rights Union by Peter Ferrara; for the American Legion by Robert P. Parker and Philip B. Onderdonk, Jr.; for the Boy Scouts of America by George A. Davidson, Carla A. Kerr, Scott H. Christensen, and David K. Park; for the Center for Individual Rights et al. by Gerald Walpin; for the Christian Legal Society et al. by Gregory S. Baylor and Steven H. Aden; for the Claremont Institute Center for Constitutional Jurisprudence by John C. Eastman and Edwin Meese III; for the Eagle Forum Education & Legal Defense Fund by Andrew L. Schlafly; for the Judge Advocates Association by Gregory M. Huckabee and Brett D. Barkey; for Law Professors et al. by Andrew G. McBride, William S. Consovoy, Daniel Polsby, and Joseph Zengerle; for the National Legal Foundation by Barry C. Hodge; for Charles S. Abbot et al. by Martin S. Kaufman, Joe R. Reeder, Philip R. Sellinger, and John P. Einwechter; and for Congressman Richard Pombo et al. by William Perry Pendley and Joseph F. Becker. Briefs of amici curiae urging affirmance were filed for the American Association of University Professors by Kathleen M. Sullivan, Donna R. Euben, Ann D. Springer, and David M. Rabban; for the American Civil Liberties Union et al. by Kenneth Y Choe, Steven R. Shapiro, Matthew A. Coles, and James D. Esseks; for the Association of American Law Schools by Paul M. Smith, William M. Hohengarten, and Daniel Mach; for Bay Area Lawyers for Individual Freedom et al. by Beth S. Brinkmann, Seth M. Galanter, and Ruth N. Borenstein; for the Cato Institute by Gregory S. Coleman; for Columbia University et al. by Seth P. Waxman, Randolph D. Moss, James J. Mingle, Ada Meloy, and Wendy S. White; for NALP (the National Association for Law Placement) et al. by Sam Heldman and Hilary E. Ball; for the National Lawyers Guild by Zachary Wolfe; for the National Lesbian and Gay Law Association et al. by Jonathan L. Hafetz and Lawrence S. Lustberg; for the Servieemembers Legal Defense Network by Linda I Coberly, Tyler M. Paetkau, Sharra E. Greer, Kathi S. Westcott, and Gene C. Schaerr; for the Student/Faculty Alliance for Military Equality by Carmine D. Boccuzzi, Jr.; for William Alford et al. by Walter Dellinger and Pamela Harris; for Robert A. Burt et al. by Paul M. Dodyk and David N. Rosen; and for 56 Columbia Law School Faculty Members by Jonathan D. Schiller and David A. Barrett. John H. Findley and Harold E. Johnson filed a brief for the Pacific Legal Foundation as amicus curiae. Chief Justice Roberts delivered the opinion of the Court. When law schools began restricting the access of military recruiters to their students because of disagreement with the Government’s policy on homosexuals in the military, Congress responded by enacting the Solomon Amendment. See 10 U. S. C. § 983 (2000 ed. and Supp. IV). That provision specifies that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds. The law schools responded by suing, alleging that the Solomon Amendment infringed their First Amendment freedoms of speech and association. The District Court disagreed but was reversed by a divided panel of the Court of Appeals for the Third Circuit, which ordered the District Court to enter a preliminary injunction against enforcement of the Solomon Amendment. We granted certiorari. I Respondent Forum for Academic and Institutional Rights, Inc. (FAIR), is an association of law schools and law faculties. App. 5. Its declared mission is “to promote academic freedom, support educational institutions in opposing discrimination and vindicate the rights of institutions of higher education.” Id., at 6. FAIR members have adopted policies expressing their opposition to discrimination based on, among other factors, sexual orientation. Id., at 18. They would like to restrict military recruiting on their campuses because they object to the policy Congress has adopted with respect to homosexuals in the military. See 10 U. S. C. §654. The Solomon Amendment, however, forces institutions to choose between enforcing their nondiscrimination policy against military recruiters in this way and continuing to receive specified federal funding. In 2003, FAIR sought a preliminary injunction against enforcement of the Solomon Amendment, which at that time— it has since been amended — prevented the Department of Defense (DOD) from providing specified federal funds to any institution of higher education “that either prohibits, or in effect prevents” military recruiters “from gaining entry to campuses.” § 983(b). FAIR considered the DOD’s interpretation of this provision particularly objectionable. Although the statute required only “entry to campuses,” the Government — after the terrorist attacks on September 11, 2001 — adopted an informal policy of “ ‘requiring] universities to provide military recruiters access to students equal in quality and scope to that provided to other recruiters.’” 291 F. Supp. 2d 269, 283 (NJ 2003). Prior to the adoption of this policy, some law schools sought to promote their nondiscrimination policies while still complying with the Solomon Amendment by having military recruiters interview on the undergraduate campus. Id., at 282. But under the equal access policy, military recruiters had to be permitted to interview at the law schools, if other recruiters did so. FAIR argued that this forced inclusion and equal treatment of military recruiters violated the law schools’ First Amendment freedoms of speech and association. According to FAIR, the Solomon Amendment was unconstitutional because it forced law schools to choose between exercising their First Amendment right to decide whether to disseminate or accommodate a military recruiter’s message, and ensuring the availability of federal funding for their universities. The District Court denied the preliminary injunction on the ground that FAIR had failed to establish a likelihood of success on the merits of its First Amendment claims. The District Court held that inclusion “of an unwanted periodic visitor” did not “significantly affect the law schools’ ability to express their particular message or viewpoint.” Id., at 304. The District Court based its decision in large part on the determination that recruiting is conduct and not speech, concluding that any expressive aspect of recruiting “is entirely ancillary to its dominant economic purpose.” Id., at 308. The District Court held that Congress could regulate this expressive aspect of the conduct under the test set forth in United States v. O’Brien, 391 U. S. 367 (1968). 291 F. Supp. 2d, at 311-314. In rejecting FAIR’S constitutional claims, the District Court disagreed with “the DOD’s proposed interpretation that the statute requires law schools to ‘provide military recruiters access to students that is at least equal in quality and scope to the access provided other potential employers.’ ” Id., at 321. In response to the District Court’s concerns, Congress codified the DOD’s informal policy. See H. R. Rep. No. 108-443, pt. 1, p. 6 (2004) (discussing the District Court’s decision in this case and stating that the amended statute “would address the court’s opinion and codify the equal access standard”). The Solomon Amendment now prevents an institution from receiving certain federal funding if it prohibits military recruiters “from gaining access to campuses, or access to students... on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.” 10 U. S. C. § 983(b) (2000 ed., Supp. IV). FAIR appealed the District Court’s judgment, arguing that the recently amended Solomon Amendment was unconstitutional for the same reasons as the earlier version. A divided panel of the Court of Appeals for the Third Circuit agreed. 390 F. 3d 219 (2004). According to the Third Circuit, the Solomon Amendment violated the unconstitutional conditions doctrine because it forced a law school to choose between surrendering First Amendment rights and losing federal funding for its university. Id., at 229-243. Unlike the District Court, the Court of Appeals did not think that the O’Brien analysis applied because the Solomon Amendment, in its view, regulated speech and not simply expressive conduct. 390 F. 3d, at 243-244. The Third Circuit nonetheless determined that if the regulated activities were properly treated as expressive conduct rather than speech, the Solomon Amendment was also unconstitutional under O’Brien. 390 F. 3d, at 244-246. As a result, the Court of Appeals reversed and remanded for the District Court to enter a preliminary injunction against enforcement of the Solomon Amendment. Id., at 246. A dissenting judge would have applied O’Brien and affirmed. 390 F. 3d, at 260-262 (opinion of Aldisert, J.). We granted certiorari. 544 U. S. 1017 (2005). II The Solomon Amendment denies federal funding to an institution of higher education that “has a policy or practice... that either prohibits, or in effect prevents” the military “from gaining access to campuses, or access to students... on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.” 10 U. S. C. § 983(b) (2000 ed., Supp. IV). The statute provides an exception for an institution with “a longstanding policy of pacifism based on historical religious affiliation.” § 983(c)(2) (2000 ed.). The Government and FAIR agree on what this statute requires: In order for a law school and its university to receive federal funding, the law school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access. Certain law professors participating as amici, however, argue that the Government and FAIR misinterpret the statute. See Brief for William Alford et al. as Amici Curiae 10-18; Brief for 56 Columbia Law School Faculty Members as Amici Curiae 6-15. According to these amici, the Solomon Amendment’s equal access requirement is satisfied when an institution applies to military recruiters the same policy it applies to all other recruiters. On this reading, a school excluding military recruiters would comply with the Solomon Amendment so long as it also excluded any other employer that violates its nondiscrimination policy. In its reply brief, the Government claims that this question is not before the Court because it was neither included in the questions presented nor raised by FAIR. Reply Brief for Petitioners 20, n. 4. But our review may, in our discretion, encompass questions “‘fairly included’” within the question presented, Yee v. Escondido, 503 U. S. 519, 535 (1992), and there can be little doubt that granting certiorari to determine whether a statute is constitutional fairly includes the question of what that statute says. Nor must we accept an interpretation of a statute simply because it is agreed to by the parties. After all, “[o]ur task is to construe what Congress has enacted.” Duncan v. Walker, 533 U. S. 167, 172 (2001). We think it appropriate in the present ease to consider whether institutions can comply with the Solomon Amendment by applying a general nondiscrimination policy to exclude military recruiters. We conclude that they cannot and that the Government and FAIR correctly interpret the Solomon Amendment. The statute requires the Secretary of Defense to compare the military’s “access to campuses” and “access to students” to “the access to campuses and to students that is provided to any other employer(Emphasis added.) The statute does not call for an inquiry into why or how the “other employer” secured its access. Under amici’s reading, a military recruiter has the same “access” to campuses and students as, say, a law firm when the law firm is permitted on campus to interview students and the military is not. We do not think that the military recruiter has received equal “access” in this situation — regardless of whether the disparate treatment is attributable to the military’s failure to comply with the school’s nondiscrimination policy. The Solomon Amendment does not focus on the content of a school’s recruiting policy, as the amici would have it. Instead, it looks to the result achieved by the policy and compares the “access... provided” military recruiters to that provided other recruiters. Applying the same policy to all recruiters is therefore insufficient to comply with the statute if it results in a greater level of access for other recruiters than for the military. Law schools must ensure that their recruiting policy operates in such a way that military recruiters are given access to students at least equal to that “provided to any other employer.” (Emphasis added.) Not only does the text support this view, but this interpretation is necessary to give effect to the Solomon Amendment’s recent revision. Under the prior version, the statute required “entry” without specifying how military recruiters should be treated once on campus. 10 U. S. C. § 983(b) (2000 ed.). The District Court thought that the DOD policy, which required equal access to students once recruiters were on campus, was unwarranted based on the text of the statute. 291 F. Supp. 2d, at 321. Congress responded directly to this decision by codifying the DOD policy. Under amici’s interpretation, this legislative change had no effect — law schools could still restrict military access, so long as they do so under a generally applicable nondiscrimination policy. Worse yet, the legislative change made it easier for schools to keep military recruiters out altogether: Under the prior version, simple access could not be denied, but under the amended version, access could be denied altogether, so long as a nonmilitary recruiter would also be denied access. That is rather clearly not what Congress had in mind in codifying the DOD policy. We refuse to interpret the Solomon Amendment in a way that negates its recent revision, and indeed would render it a largely meaningless exercise. We therefore read the Solomon Amendment the way both the Government and FAIR interpret it. It is insufficient for a law school to treat the military as it treats all other employers who violate its nondiscrimination policy. Under the statute, military recruiters must be given the same access as recruiters who comply with the policy. Ill The Constitution grants Congress the power to “provide for the common Defence,” “[t]o raise and support Armies,” and “[t]o provide and maintain a Navy.” Art. I, §8, els. 1, 12-13. Congress’ power in this area “is broad and sweeping,” O’Brien, 391 U. S., at 377, and there is no dispute in this case that it includes the authority to require campus access for military recruiters. That is, of course, unless Congress exceeds constitutional limitations on its power in enacting such legislation. See Rostker v. Goldberg, 453 U. S. 57, 67 (1981). But the fact that legislation that raises armies is subject to First Amendment constraints does not mean that we ignore the purpose of this legislation when determining its constitutionality; as we recognized in Rostker, “judicial deference... is at its apogee” when Congress legislates under its authority to raise and support armies. Id., at 70. Although Congress has broad authority to legislate on matters of military recruiting, it nonetheless chose to secure campus access for military recruiters indirectly, through its Spending Clause power. The Solomon Amendment gives universities a choice: Either allow military recruiters the same access to students afforded any other recruiter or forgo certain federal funds. Congress’ decision to proceed indirectly does not reduce the deference given to Congress in the area of military affairs. Congress’ choice to promote its goal by creating a funding condition deserves at least as deferential treatment as if Congress had imposed a mandate on universities. Congress’ power to regulate military recruiting under the Solomon Amendment is arguably greater because universities are free to decline the federal funds. In Grove City College v. Bell, 465 U. S. 555, 575-576 (1984), we rejected a private college’s claim that conditioning federal funds on its compliance with Title IX of the Education Amendments of 1972 violated the First Amendment. We thought this argument “warranted] only brief consideration” because “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept.” Id., at 575. We concluded that no First Amendment violation had occurred— without reviewing the substance of the First Amendment claims — because Grove City could decline the Government’s funds. Id., at 575-576. Other decisions, however, recognize a limit on Congress’ ability to place conditions on the receipt of funds. We recently held that “The government may not deny a benefit to a person on a basis that infringes his constitutionally protected... freedom of speech even if he has no entitlement to that benefit.’ ” United States v. American Library Assn., Inc., 539 U. S. 194, 210 (2003) (quoting Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 674 (1996) (some internal quotation marks omitted)). Under this principle, known as the unconstitutional conditions doctrine, the Solomon Amendment would be unconstitutional if Congress could not directly require universities to provide military recruiters equal access to their students. This case does not require us to determine when a condition placed on university funding goes beyond the “reasonable” choice offered in Grove City and becomes an unconstitutional condition. It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. See Speiser v. Randall, 357 U. S. 513, 526 (1958). Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds, A The Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds. See Tr. of Oral Arg. 25 (Solicitor General acknowledging that law schools “could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests”). As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do — afford equal access to military recruiters — not what they may or may not say. Nevertheless, the Third Circuit concluded that the Solomon Amendment violates law schools’ freedom of speech in a number of ways. First, in assisting military recruiters, law schools provide some services, such as sending e-mails and distributing flyers, that clearly involve speech. The Court of Appeals held that in supplying these services law schools are unconstitutionally compelled to speak the Government’s message. Second, military recruiters are, to some extent, speaking while they are on campus. The Court of Appeals held that, by forcing law schools to permit the military on campus to express its message, the Solomon Amendment unconstitutionally requires law schools to host or accommodate the military’s speech. Third, although the Court of Appeals thought that the Solomon Amendment regulated speech, it held in the alternative that, if the statute regulates conduct, this conduct is expressive and regulating it unconstitutionally infringes law schools’ right to engage in expressive conduct. We consider each issue in turn. 1 Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say. In West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), we held unconstitutional a state law requiring schoolchildren to recite the Pledge of Allegiance and to salute the flag. And in Wooley v. Maynard, 430 U. S. 705, 717 (1977), we held unconstitutional another that required New Hampshire motorists to display the state motto — “Live Free or Die” — on their license plates. The Solomon Amendment does not require any similar expression by law schools. Nonetheless, recruiting assistance provided by the schools often includes elements of speech. For example, schools may send e-mails or post notices on bulletin boards on an employer’s behalf. See, e. g., App. 169-170; Brief for NALP (National Association for Law Placement) et al. as Amici Curiae 11. Law schools offering such services to other recruiters must also send e-mails and post notices on behalf of the military to comply with the Solomon Amendment. As FAIR points out, these compelled statements of fact (“The U. S. Army recruiter will meet interested students in Room 123 at 11 a.m.”), like compelled statements of opinion, are subject to First Amendment scrutiny. See Brief for Respondents 25 (citing Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 797-798 (1988)). This sort of recruiting assistance, however, is a far cry from the compelled speech in Barnette and Wooley. The Solomon Amendment, unlike the laws at issue in those cases, does not dictate the content of the speech at all, which is only “compelled” if, and to the extent, the school provides such speech for other recruiters. There is nothing in this case approaching a Government-mandated pledge or motto that the school must endorse. The compelled speech to which the law schools point is plainly incidental to the Solomon Amendment’s regulation of conduct, and “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 502 (1949). Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading “White Applicants Only” hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct. See R. A. V. v. St. Paul, 505 U. S. 377, 389 (1992) (“[W]ords can in some circumstances violate laws directed not against speech but against conduct”). Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto “Live Free or Die,” and it trivializes the freedom protected in Barnette and Wooley to suggest that it is. 2 Our compelled-speech cases are not limited to the situation in which an individual must personally speak the government’s message. We have also in a number of instances limited the government’s ability to force one speaker to host or accommodate another speaker’s message. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 566 (1995) (state law cannot require a parade to include a group whose message the parade’s organizer does not wish to send); Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 20-21 (1986) (plurality opinion); accord, id., at 25 (Marshall, J., concurring in judgment) (state agency cannot require a utility company to include a third-party newsletter in its billing envelope); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 258 (1974) (right-of-reply statute violates editors’ right to determine the content of their newspapers). Relying on these precedents, the Third Circuit concluded that the Solomon Amendment unconstitutionally compels law schools to accommodate the military’s message “[b]y requiring schools to include military recruiters in the interviews and recruiting receptions the schools arrange.” 390 F. 3d, at 240. The compelled-speech violation in each of our prior cases, however, resulted from the fact that the complaining speaker’s own message was affected by the speech it was forced to accommodate. The expressive nature of a parade was central to our holding in Hurley. 515 U. S., at 568 (“Parades are... a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest marches’’). We concluded that because “every participating unit affects the message conveyed by the [parade’s] private organizers,” a law dictating that a particular group must be included in the parade “alter[s] the expressive content of th[e] parade.” Id., at 572-573. As a result, we held that the State’s public accommodation law, as applied to a private parade, “violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Id., at 573. The compelled-speech violations in Tornillo and Pacific Gas also resulted from interference with a speaker’s desired message. In Tornillo, we recognized that “the compelled printing of a reply... tak[es] up space that could be devoted to other material the newspaper may have preferred to print,” 418 U. S., at 256, and therefore concluded that this right-of-reply statute infringed the newspaper editors’ freedom of speech by altering the message the paper wished to express, id., at 258. The same is true in Pacific Gas. There, the utility company regularly included its newsletter, which we concluded was protected speech, in its billing envelope. 475 U. S., at 8-9. Thus, when the state agency ordered the utility to send a third-party newsletter four times a year, it interfered with the utility’s ability to communicate its own message in its newsletter. A plurality of the Court likened this to the situation in Tornillo and held that the forced inclusion of the other newsletter interfered with the utility’s own message. 475 U. S., at 16-18. In this case, accommodating the military’s message does not affect the law schools’ speech, because the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade organizer’s choice of parade contingents, a law school’s decision to allow recruiters on campus is not inherently expressive. Law schools facilitate recruiting to assist their students in obtaining jobs. A law school’s recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper; its accommodation of a military recruiter’s message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school. The schools respond that if they treat military and nonmilitary recruiters alike in order to comply with the Solomon Amendment, they could be viewed as sending the message that they see nothing wrong with the military’s policies, when they do. We rejected a similar argument in PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980). In that case, we upheld a state law requiring a shopping center owner to allow certain expressive activities by others on its property. We explained that there was little likelihood that the views of those engaging in the expressive activities would be identified with the owner, who remained free to disassociate himself from those views and who was “not... being compelled to affirm [a] belief in any govern-mentally prescribed position or view.” Id., at 88. The same is true here. Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies. We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy. Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 250 (1990) (plurality opinion); accord, id., at 268 (Marshall, J., concurring in judgment); see also Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 841 (1995) (attribution concern “not a plausible fear”). Surely students have not lost that ability by the time they get to law school. 3 Having rejected the view that the Solomon Amendment impermissibly regulates speech, we must still consider whether the expressive nature of the conduct regulated by the statute brings that conduct within the First Amendment’s protection. In O’Brien, we recognized that some forms of “‘symbolic speech’” were deserving of First Amendment protection. 391 U. S., at 376. But we rejected the view that “conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” Ibid. Instead, we have extended First Amendment protection only to conduct that is inherently expressive. In Texas v. Johnson, 491 U. S. 397, 406 (1989), for example, we applied O’Brien and held that burning the American flag was sufficiently expressive to warrant First Amendment protection. Unlike flag burning, the conduct regulated by the Solomon Amendment is not inherently expressive. Prior to the adoption of the Solomon Amendment’s equal access requirement, law schools “expressed” their disagreement with the military by treating military recruiters differently from other recruiters. But these actions were expressive only because the law schools accompanied their conduct with speech explaining it. For example, the point of requiring military interviews to be conducted on the undergraduate campus is not “overwhelmingly apparent.” Johnson, supra, at 406. An observer who sees military recruiters interviewing away from the law school has no way of knowing whether the law school is expressing its disapproval of the military, all the law school’s interview rooms are full, or the military recruiters decided for reasons of their own that they would rather interview someplace else. The expressive component of a law school’s actions is not created by the conduct itself but by the speech that accompanies it. The fact that such explanatory speech is necessary is strong evidence that the conduct at issue here is not so inherently expressive that it warrants protection under O’Brien. If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into “speech” simply by talking about it. For instance, if an individual announces that he intends to express his disapproval of the Internal Revenue Service by refusing to pay his income taxes, we would have to apply O’Brien to determine whether the Tax Code violates the First Amendment. Neither O’Brien nor its progeny supports such a result. Although the Third Circuit also concluded that O’Brien does not apply, it held in the alternative that the Solomon Amendment does not pass muster under O’Brien because the Government failed to produce evidence establishing that the Solomon Amendment was necessary and effective. 390 F. 3d, at 245. The Court of Appeals surmised that “the military has ample resources to recruit through alternative means,” suggesting “loan repayment programs” and “television and radio advertisements.” Id., at 234-235. As a result, the Government — according to the Third Circuit— failed to establish that the ‘statute’s burden on speech is no greater than essential to furthering its interest in military recruiting. Id., at 245. We disagree with the Court of Appeals’ reasoning and result. We have held that “an incidental burden on speech is no greater than is essential, and therefore is permissible under O’Brien, so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” United States v. Albertini, 472 U. S. 675, 689 (1985). The Solomon Amendment clearly satisfies this requirement. Military recruiting promotes the substantial Government interest in raising and supporting the Armed Forces — an objective that would be achieved less effectively if the military were forced to recruit on less favorable terms than other employers. The Court of Appeals’ proposed alternative methods of recruiting are beside the point. The issue is not whether other means of raising an army and providing for a navy might be adequate. See id., at 689 (regulations are not “invalid simply because there is some imaginable alternative that might be less burdensome on speech”). That is a judgment for Congress, not the courts. See U. S. Const., Art. I, §8, els. 12-13; Rostker, 453 U. S., at 64-65. It suffices that the means chosen by Congress add to the effectiveness of military recruitment. Accordingly, even if the Solomon Amendment were regarded as regulating expressive conduct, it would not violate the First Amendment under O’Brien. B The Solomon Amendment does not violate law schools’ freedom of speech, but the First Amendment’s protection extends beyond the right to speak. We have recognized a First Amendment right to associate for the purpose of speaking, which we have termed a “right of expressive association.” See, e. g., Boy Scouts of America v. Dale, 530 U. S. 640, 644 (2000). The reason we have extended First Amendment protection in this way is clear: The right to speak is often exercised most effectively by combining one’s voice with the voices of others. See Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984). If the government were free to restrict individuals’ ability to join together and speak, it could essentially silence views that the First Amendment is intended to protect. Ibid. FAIR argues that the Solomon Amendment violates law schools’ freedom of expressive association. According to FAIR, law schools’, ability to express their message that discrimination on the basis of sexual orientation is wrong is significantly affected by the presence of military recruiters on campus and the schools’ obligation to assist them. Relying heavily on our decision in Dale, the Court of Appeals agreed. 390 F. 3d, at 230-235. In Dale, we held that the Boy Scouts’ freedom of expressive association was violated by New Jersey’s public accommodations law, which required the organization to accept a homosexual as a scoutmaster. After determining that the Boy Scouts was an expressive association, that “the forced inclusion of Dale would significantly affect its expression,” and that the State’s interests did not justify this intrusion, we concluded that the Boy Scouts’ First Amendment rights were violated. 530 U. S., at 655-659. The Solomon Amendment, however, does not similarly affect a law school’s associational rights. To comply with the statute, law schools must allow military recruiters on campus and assist them in whatever way the school chooses to assist other employers. Law schools therefore “associate” with military recruiters in the sense that they interact with them. But recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students — not to become members of the school’s expressive association. This distinction is critical. Unlike the public accommodations law in Dale, the Solomon Amendment does not force a law school “ To accept members it does not desire.’ ” Id., at 648 (quoting Roberts, supra, at 623). The law schools say that allowing military recruiters equal access impairs their own expression by requiring them to associate with the recruiters, but just as saying conduct is undertaken for expressive purposes cannot make it symbolic speech, see supra, at 66, so too a speaker cannot “erect a shield” against laws requiring access “simply by asserting” that mere association “would impair its message.” 530 U. S., at 653. FAIR correctly notes that the freedom of expressive association protects more than just a group’s membership decisions. For example, we have held laws unconstitutional that require disclosure of membership lists for groups seeking anonymity, Brown v. Socialist Workers ’74 Campaign Comm. (Ohio), 459 U. S. 87, 101-102 (1982), or impose penalties or withhold benefits based on membership in a disfavored group, Healy v. James, 408 U. S. 169, 180-184 (1972). Although these laws did not directly interfere with an organization’s composition, they made group membership less Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:
sc_issuearea	H	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. SUN OIL CO. v. FEDERAL POWER COMMISSION. No. 321. Argued April 26, 1960. Decided June 27, 1960. Leo J. Hoffman argued the cause for petitioner. With him on the brief were Martin A. Row, Robert E. May and Omar L. Crook. Howard E. Wahrenbrock argued the cause for respondent. With him on the brief were Solicitor General Rankin, Assistant Attorney General Doub, Samuel D. Slade, Willard W. Gatchell and Peter H. Schiff. Mr. Justice Brennan delivered the opinion of the Court. This case presents many of the same issues as Sunray Mid-Continent Oil Co. v. Federal Power Comm’n, ante, p. 137. Petitioner, Sun Oil Company, is an independent producer making sales of natural gas to transmission companies in interstate commerce for ultimate resale to the public. In 1947 it entered into a contract with the Southern Natural Gas Company, a transmission company, for the sale of natural gas which petitioner controlled in the Gwinville Gas Field in Jefferson Davis and Simpson Counties, Mississippi. The term of the contract was 10 years and the sales price was roughly eight cents per Mcf. After this Court’s decisions in Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, on June 7, 1954, the Commission, in a series of orders, required independent producers engaging in jurisdictional sales on or after the date of the decision to apply for certificates of public convenience and necessity pursuant to § 7 (c) of the Natural Gas Act. Under protest, petitioner applied for a certificate “authorizing the sale of natural gas in the circumstances . . . described” in its application. The described circumstances consisted simply of a reference to its contract with Southern Natural, which was at the same time submitted by petitioner as its rate schedule. In an abbreviated and consolidated proceeding disposing of over 100 separate docket certificate applications from 40-odd independent producers, scattered from Colorado and New Mexico to West Virginia, the Commission on May 28, 1956, ordered issued to petitioner and each of the other applicants a certificate of public convenience and necessity, in the terms set out in the margin. Petitioner’s contract-rate-schedule was accepted as its FPC Gas Rate Schedule No. 55. The 1947 contract between petitioner and Southern Natural expired on August 26, 1957. The parties however entered into a new 20-year contract for continued sale of gas from the same field, commencing on September, 3, 1957. The contract called for an initial price increase of roughly 150 per cent, to 20 cents per Mcf. Petitioner took the view that the certificate it had received in 1956 was limited in term to the duration of the old contract. It accordingly filed an application for a new certificate covering the new contract, and filed the new contract as an initial rate schedule under the new certificate, pursuant to § 5 of the Act. The Commission, in a letter order of September 12, 1957, rejected the certificate application as duplicative of petitioner’s existing certificate to make sales from the field in question, and rejected the rate-schedule filing on the ground that the purported initial rate schedule was actually a change in its existing Schedule No. 55. A motion for reconsideration was later denied; and at the same time the Commission ordered suspended, under § 4 (e) of the Act, the effectiveness of the rates in the new contract, which petitioner had, after their rejection as an initial rate schedule, filed under protest, as rate changes pursuant to § 4 (d). 18 F. P. C. 609, 611. After an application for rehearing of the suspension order was rejected, petitioner petitioned for review of all these orders of the Commission in the Court of Appeals for the Fifth Circuit. That court affirmed, by a divided vote. 266 F. 2d 222. We granted certiorari. 361 U. S. 880. Petitioner’s contention here, as it was below, is that the initial certificate it obtained in 1956 was to remain in effect only during the life of the 1947 contract. This in its view would leave it free to discontinue interstate sales after the 1957 expiration of the contract, or to apply for a new certificate for new sales, and, not unimportantly, file the new sales contract as an initial rate schedule thereunder rather than as a rate change. We reject this contention and affirm the judgment of the Court of Appeals. First. The major part of petitioner’s argument is based on a want of authority in the Commission, over objection, to grant an independent producer a certificate for a longer duration than the term of a sales contract which its application seeks permission to fulfill. To be sure, if the Commission had no such authority, we might take pains to read the petitioner’s application as seeking a certificate so limited in time, though, as compared with Sunray’s in the companion case, it is highly inexplicit as to its desire that only a term certificate be issued. But we have held today in the Simmy case, ante, p. 137, that in these circumstances the Commission has authority to tender a permanent certificate under an application for a term certificate; and accordingly this keystone of petitioner's argument falls. Second. Of course, if, despite its authority to grant a permanent certificate, the Commission had in 1956 actually granted a term certificate to petitioner, petitioner would after the term have been free to apply for a new certificate to authorize the sale under the new contract. But we agree with the Commission that the 1956 certificate was a permanent one. The application itself, under the construction we have given the statute in Sunray, did not with any explicitness ask for a limited certificate. It asked for one “authorizing the sale of natural gas” under the 1947 contract; but as we said in Sunray, a permanent certificate would do that. See, ante, p. 149. And the certificate issued makes no reference to any limitation of time. This is in contrast' with explicit references to the limitation in those instances where the Commission had previously issued term certificates. The Commission’s order, which blanketed the many applications before it in the mass proceeding, is no more explicit about limitation than the application, and refers, in fact, to the certificate as both “authorizing the sale” of natural gas, and authorizing a “service,” which accords with our construction of § 7 (e) in Sunray. Under these circumstances we would hardly see any basis for overturning the Commission’s view that no limitation as to time was implied. Cf. Andrew C. Nelson, Inc., v. United States, 355 U. S. 554, 560. Moreover, if there were any doubt as to the matter, it would be removed by the fact that the batch of certificates containing petitioner’s was issued at a time when the Commission was asserting that it lacked even the power to issue a term certificate. The certificate in question was issued May 28, 1956. The Commission had taken the position that it lacked such authority on July 25, 1955, in Sunray Oil Corp., 14 F. P. C. 877. It was not until October 29, 1956, that judicial rejection of the Commission’s position occurred. Sunray Mid-Con tinent Oil Co. v. Federal Power Comm’n, 239 F. 2d 97, reversed on other grounds, 353 U. S. 944. Nothing in petitioner’s application shows an attempt to take issue with that conception of the Commission, which of course would mean that every certificate granted under its influence would be intended to be permanent. It would surpass belief to say that under these circumstances the Commission tendered and the applicants received these certificates under the assumption that they were limited in time to the terms of the contracts on which the applications were based. [For opinion of Mr. Justice Frankfurter, concurring in Mr. Justice Harlan’s dissenting opinion, see ante, p. 159.] [For dissenting opinion of Mr. Justice Harlan, joined by Mr. Justice Frankfurter, Mr. Justice Whittaker and Mr. Justice Stewart, see ante, p. 159.] Affirmed. The pertinent provisions of § 7 (c) are set forth in our opinion in the Sunray case, ante, p. 149, n. 15. “The Commission ORDERS: “(A) A certificate of public convenience and necessity be and is hereby issued, upon the terms and conditions of this order/ authorizing the sale by Applicant of natural gas in interstate commerce for resale, together with the operation of any facilities, subject to the jurisdiction of the Commission, used for the sale of natural gas in interstate commerce, as hereinbefore described and as more fully described in the application and exhibits in this proceeding. “(B) The certificate issued herein shall be deemed accepted and of full force and effect, unless refused in writing and under oath by Applicant within 30 days from issuance of this order. “(C) The certificate is not transferable and shall be effective only so long as Applicant continues the acts or operations hereby authorized in accordance with the provisions of the Natural Gas Act, and the applicable rules, regulations and orders of the Commission. “(D) The grant of the certificate herein shall not be construed as a waiver of the requirements of Section 4 of the Natural Gas Act, or of Section 154 of the Commission’s Rules and Regulations thereunder requiring the filing of rate schedules for the service herein authorized, and is without prejudice to any findings or orders which have been or may hereafter be made by the Commission in any proceeding now pending or hereafter instituted by or against the Applicant. Further, our action in this proceeding shall not foreclose nor prejudice any future proceedings or objection relating to the operation of any price or related provision in the gas purchase contracts herein involved.” There are slight discrepancies in comparison between the old and new rates, due to the fact that they are computed on somewhat different pressure bases. The Commission states that giving effect to the difference would somewhat increase the spread between the old and the new rates. For the pertinent provisions, see the Sunray opinion, ante, p. 144, n. 11. For the provisions, see the Sunray opinion, ante, p. 145, n. 13. The Commission takes the position that an order suspending a rate change under § 4 (e) is not directly reviewable in the Court of Appeals. But since the very same issues are presented in this case by the Commission’s rejection of the application for a new certificate, and its rejection of the filing of the 1957 contract rate as an initial rate under § 4 (e), which orders are concededly reviewable in the Court of Appeals, all the contested issues raised before the Commission were properly subject to review in.the proceedings below and here, as the Commission concedes. If the Commission was in error in rejecting the application for a new certificate and the purported initial rate filing, the § 4 (e) rate change filing, which the petitioner made under protest, doubtless would be withdrawn. See, e. g., Louisiana-Nevada Transit Co., 2 F. P. C. 546, 549 (10 years); Ray Phebus, 2 F. P. C. 1044, 1045 (8 years); Southern Natural Gas Co., 8 F. P. C. 688, 689 (1 year). While the Court of Appeals there affirmed the Commission’s order on other grounds from those on which it had proceeded — for which action the Court of Appeals’ judgment was reversed here — the Commission had, before the Court of Appeals, maintained its position that it was without authority to grant a limited term certificate. 239 F. 2d, at 100, n. 7. It abandoned that position when application for certiorari was made here. 353 U. S. 944. 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_respond2_1_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". SHILMAN v. UNITED STATES et al. No. 69, Docket 20737. Circuit Court of Appeals, Second Circuit. Dec. 4, 1947. Writ of Certiorari Denied Feb. 16, 1948. See 68 S.Ct. 608. William L. Standard, of New York City (Louis R. Harolds and Herman Rosenfeld, both of New York City, of counsel), for libellant-appellant. John F. X. McGohey, U.S.Atty., of New York City (Martin J. Norris, of New York City, of counsel), for respondents-appellees. Before L. HAND, AUGUSTUS N. HAND, and FRANK, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge. The libellant sues in admiralty to recover $200 wages earned by him as a member of the crew of the merchant vessel Eli Whitney. The vessel was owned by the United States and operated by Grace Line, Inc., as agent, pursuant to the usual General Agency Agreement. The libellant was employed on the vessel as a wiper and while so employed earned the sum of $406.86 as wages between May 25, 1943, and August 1, 1943. On or about July 31, 1943, while the vessel was in the Port of Tunisia, North Africa, then an active theatre of war, the libellant was arrested by personnel of the United States Army on the charge that he had violated the 93rd Article of War because he had unlawfully taken an adding machine from the office of the French Navy on July 25, 1943. On August 2, 1943, he was arraigned and tried in Tunisia upon this charge before a Special Court Martial, found guilty and sentenced to pay a fine of' $200 to the United States and to be confined at hard labor for three months. He served his prison sentence, but never paid the fine. On November 16, 1943, he received from the respondent Grace Line, Inc., $206.86, the amount of his wages, less the fine of $200, to recover which he filed a libel in admiralty both against the United States and Grace Line, Inc. The respondents filed an answer denying any right of recovery because of libellant’s indebtedness for the unpaid fine to an amount equivalent to the balance of his wages. The District Judge sustained this defense and rendered an opinion dismissing the libel as against each respondent. From the decree entered •on' this decision the libellant appeals. We think the decree should be reversed as .against the United States, but affirmed as •.to the Grace Line, Inc. It seems clear from the statutes applicable to seamen’s wages that the United States cannot lawfully withhold any part ■of a seaman’s wages because of such a fine ns was imposed upon the libellant in the case at bar. A seaman making foreign voyages is entitled to his pay within twenty-four hours after the cargo is discharged, or within four days after the seaman is discharged, whichever happens first. Failure to pay without sufficient cause subjects the master or owner to an extra payment of double wages for each day’s delay. 46 U.S.C.A. § 596. In port, a seaman is entitled to demand one-half of his unpaid wages, and when his employment is at an end, he must receive the remainder of the wages due. So important did Congress feel this provision was, that the section was expressly made applicable not only to American seamen, but also to foreign vessels in United States harbors. 46 U.S.C.A. § 597. Except as expressly provided by law, a seaman cannot give up any right to wages, or any remedy for the recovery of same, even by agreement. 46 U.S.C.A. § 600. His wages are not subject to attachment or arrestment, even by court action, except that a court is given the limited power to order wages withheld, only for the support of a wife and minor children; and no advance assignment of wages is valid, except for payment of an allotment to a relative, made out in the manner authorized and prescribed by law. 46 U.S.C.A. § 601. Section 682, 46 U.S.C.A., provides that where a seaman is discharged in a foreign port, it must be in the presence of the United States Consul, and, even' before the actual signing off, the master must make “payment of the wages which may then' be due said seaman.” Section 683, 46 U.S.C.A., provides that if the consul fails to require all the wages to be paid to the seaman when there is to be a discharge in a foreign port, the consul himself becomes liable to the United States “for the full amount thereof.” Section 685, 46 U.S.C.A. requires the consul to make sure that there is paid at the time of discharge all wages which are due (plus extra wages, in the event of certain violations of the seaman’s contract). The above sections look towards payment to the seaman by his employer, at the termination of the employment, of all of his earned wages, without any deductions except those which are expressly authorized by statute. The section prohibiting “attachment or arrestment” of seaman’s wages came before the Supreme Court for consideration in Wilder v. Inter-Island Navigation Co., 211 U.S. 239, 29 S.Ct. 58, 61, 53 L.Ed. 164, 15 Ann.Cas. 127. There a judgment had been rendered against a seaman in a local court of Hawaii and it was sought to reach his wages in proceedings in aid of an execution upon the judgment which had been returned unsatisfied. The Supreme Court in an opinion by Mr. Justice Day, after discussing the authorities, held that the act applied and that the wages could not be seized under the statute of the Territory. In reaching this conclusion the Justice said: “But we are of opinion that this statute is not to be too narrowly construed, but rather to be liberally interpreted with a view to effecting the protection intended to be extended to a class of persons whose improvidence and prodigality have led to legislative provisions in their favor, and which has made them, as Mr. Justice Story declared, ‘the wards of the admiralty.’ Harden v. Gordon, Fed.Cas. No. 6,047, 2 Mason 541. “We think, too, that the section is to be construed in the light of and in connection with the other provisions of the Title of which it is a part. * * * “Section 4536 therefore has the effect of not only securing the wages of the seaman from direct attachment or arrestment, but further prevents the assignment or sale of his wages, except in the limited cases we have mentioned, and makes the payment of such wages valid notwithstanding any ‘attachment, incumbrance or arrestment thereon.’ “It seems to be clearly inferable from these provisions that wages which have thus been carefully conserved to the seaman were not intended to be subject to seizure by attachment, either before or after judgment. * * * * * * “We think that these provisions, read in connection with § 4536, necessitate the conclusion that it was intended not only to prevent the seaman from disposing of his wages by assignments or otherwise, but to preclude the right to compel a forced assignment, by garnishee or other similar process, which would interfere with the remedy in admiralty for the recovery of his wages by condemnation of the ship. These provisions would be defeated if the seaman’s wages, to be recovered at the end of the voyage, could be at once seized by an execution or attachment after judgment in an action at law. The evident purpose of the Federal statutes, that the seaman shall have his remedy in admiralty, would be defeated, and the seaman, in many cases, be turned ashore with nothing in his pocket, because of judgments seizing his wages, rendered, it may be, upon improvident contracts, from which it was the design and very purpose of the admiralty law to afford him protection.” While it is the general rule that a seaman discharged in a foreign port is entitled to receive his wages “without any deduction whatever” of claims against him whether of his employer or of third parties, there are exceptions recognized by the maritime law and now embodied in* statutes. For example when a seaman refuses without reasonable cause to join his vessel, or absents himself therefrom without leave, the expense of hiring a substitute may be deducted from his wages. 46 U.S.C.A. § 701(2). Where a seaman wilfully damages his vessel, or embezzles, or wilfully damages any of the stores or cargo, the loss sustained may be deducted, 46 U.S.C.A. § 701(7) ; where he is convicted of smuggling and loss is occasioned to the master or owner, a sufficient amount of his wages may be retained to satisfy the loss. 46 U.S.C.A. § 701(8). Other special grounds of forfeiture of wages have been provided by statute such as unjustifiable complaints of unseaworthiness of the vessel and her provisions, in which cases the expense occasioned by a survey may be deducted, 46 U.S.C.A. §§ 659 and 663. Similarly certain deductions for expenditures during the voyage for clothing for the benefit of seamen from the ship’s so-called “slop chest” are allowable both under the maritime law and the existing Act of Congress. 46 U.S.C.A. § 670. The cases cited by the appellees in support of a set off of $200 all fall within the category of expenses incurred on behalf of the ship in connection with the voyage. Sometimes they have related to hiring a substitute for a deserting seaman or for securing his return; sometimes for making the vessel good out of a seaman’s wages for medical expenses occasioned by his assault on a member of the crew; at other times they have been deductions for a smuggling of goods which subjected the vessel to jeopardy, or for allowing a stowaway to be on board. Swanson et al. v. Torry et al., 4 Cir., 25 F.2d 835; The Ellen Little, D. C. Mass., 246 F. 151; The W. F. Babcock, 2 Cir., 85 F. 978; The T. F. Whiton, D.C.S.D.N.Y., Fed.Cas.No. 13,849; Snell et al. v. The Independence, D.C.E.D.Pa., Fed.Cas. No.13,139; Scott v. Russell, D.C.S.D.N.Y., Fed.Cas.No.12,546; Magee v. The Moss, D.C.E.D.Pa., Fed.Cas.No.8944. In the case at bar the respondents are not seeking to recover any expenditure caused during the course of the voyage, or for the benefit of the ship, but to avoid payment to a seaman on his discharge of the wages he had earned which the statute says must be then paid. There is no evidence that the ship or her owner suffered any loss by reason of the stealing of the adding machine from the French Authorities which indeed, according to the statement made at the time of the argument of the appeal, was returned to the owner on the same day. It seems evident that under the statutes the libellant was entitled to the payment of the full amount of the wages he had earned on August 1, 1943 when his employment terminated and that no authority existed which justified withholding any part of the wages in' anticipation of a court martial fine which was subsequently imposed, or. to assert a set off in the present suit for the balance of libellant’s wages. The contention of the respondents that under 31 U.S.C.A. § 227 a set off is permitted of the fine of $200 imposed by the ■court martial is clearly unsound. In the first place that section in' terms would only apply if the fine had been reduced to a judgment. Hines v. United States, 70 App.D.C. 206, 105 F.2d 85. In addition to this, the specific statutes, safeguarding seamen’s wages to which we have already referred, would preclude the application of the general provisions of 31 U.S.C.A. § 227 even if the claim of the United States had been reduced to judgment. We must also take into account the broad language of 50 U.S. C.A. War, Appendix, § 1291 which is a still further muniment of seamen and reads as follows: “ * * * members of crews * * * employed on United States or foreign flag vessels as employees of the United States through the War Shipping Administration shall, with respect to * * * (3) collection of wages * * * have all of the rights, benefits, exemptions, privileges, and liabilities, under law applicable to citizens of the United States employed as seamen on privately owned and operated American vessels.” In view of the foregoing we think that the libellant is entitled to recover the balance of his wages from the United States without the deduction of a set off and that the decree dismissing his claim as again'st the latter must be reversed accordingly. His claim against Grace Line, Inc. stands however on a different footing and was properly dismissed because it arose out of a contract of employment by the United States as a disclosed principal and therefore may not be asserted against its agent Grace Line, Inc. The Shipping Articles are the basis of the contract of the libellant for his wages. They were signed by the master and the seamen. The printed form containing the particulars of the engagements of the crew recited the name of the ship, her official number, her registry and tonnage and set forth “War Shipping Administration,” and on the line below “Grace Line, Agents,” under the printed designation of “Registered Managing Owner or Manager.” All these descriptive terms were printed under the words “Articles oe Agreement Between Master and Seamen in the Merchant Service oe the United States” set out in bold type. There can be no doubt that such an agreement if made with another than the United States would not render the agent for a disclosed principal individually liable. Restatement Agency, Section 320, provides that: “Unless otherwise agreed, a person making or purporting to make a contract with another as agent for a disclosed principal, does not become a party to the contract.” The General Agency Agreement between the United States acting through the Administrator, War Shipping Administration, and Grace Line, Inc., provided in Article 1 that: “The United States appoints the General Agent as its agent and not as an independent contractor, to manage and conduct the business of vessels assigned to it by the United States from time to time.” We can discover no reason for attributing the liability of a principal to Grace Line, Inc. under such an' “Agency Agreement.” But it is said that the libellant was an employee of the Grace Line under the ruling of the Supreme Court in Hust v. Moore-McCormack Lines, 328 U. S. 707, 66 S.Ct. 1218, 90 L.Ed. 1534. That decision was rendered in an action to recover under the Jones Act 46 U.S.C.A. § 688, damages arising from negligence imputed to the operating agent. In Caldarola v. Eckert, 332 U.S. 155, 67 S.Ct. 1569, a stevedore who sued the general agent in the New York Courts for injuries caused by a defective boom on the vessel on which he was working was denied recovery from the agent. In neither the Hust nor the Caldarola decisions did a majority of the court hold the agent to be owner of the vessel pro hac vice. In the first case he was only held to be subject to the obligations of an employer so as to be liable to seamen in tort for acts of negligence connected with the operation of the vessel. In each case the court was highly divided but in neither did it decide that the agent was so far the employer as to be liable to the seamen for their wages or other contractual obligations. Decree dismissing the libel is reversed as 'to the United States and affirmed as to Grace Line, Inc. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_exhaust	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it would not hear the appeal for one of the following reasons: a) administrative remedies had not been exhausted; or b) the issue was not ripe for judicial action?" 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". Oliver Lee KIRKLAND and Elizabeth Smith, Appellants, v. Paul H. PRESTON and Luke Moore, Appellees. No. 20334. United States Court of Appeals District of Columbia Circuit. Argued Jan. 10, 1967. Decided by Judgment Entered Jan. 19, 1967. Opinion Rendered Sept. 14, 1967. Mr. William J. Garber, Washington, D. C., for appellants. Mr. Roger A. Pauley, Atty., Dept, of Justice, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker and Thomas Lumbard, Asst. U. S. Attys., were on the brief, for appellees. Mr. James A. Strazzella, Asst. U. S. Atty., also entered an appearance for appellees. Before Edgerton, Senior Circuit Judge, and Fahy and Wright, Circuit Judges. Circuit Judge Fahy became Senior Circuit Judge on April 13, 1967. arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.” J. SKELLY WRIGHT, Circuit Judge. On June 1, 1966, the Chief Judge of the District Court, acting in the role of chief executive for the District of Columbia pursuant to 23 D.C.Code § 401(a) (1961), issued warrants for the arrest of Oliver Lee Kirkland and Elizabeth Maria Smith with a view toward their extradition to the State of Florida. Before him at that time were various papers submitted by the Governor of Florida. These consisted of the affidavit of John Dowda of the Miami, Florida, Police Department, sworn to before a justice of the peace; an arrest warrant issued by the same justice of the peace; and a requisition form initialed by the Governor certifying the authenticity of the accompanying documents and formally demanding appellants’ arrest and delivery up to Florida officials. The police officer's affidavit read, in pertinent part, as follows: “* -x- * [0]n the '23rd day of July A.D., 1965, in the County and District aforesaid [Dade County] one Oliver Lee Kirkland & Elizabeth Maria Smith DID THEN AND there: unlawfully, wilfully, maliciously and feloniously set fire to and burn or cause to be burned a certain building, to wit: The Hut Bar, located at 2280 S.W. 32nd Avenue, City of Miami, Dade County, Florida, a further and more particular description of said bar being to the affiant unknown, the said bar being the property of one Fredrich Ritter.” Apart from the filling in of date, place and ownership, this language mirrors with its alternative clauses the text of the Florida second-degree arson statute. 3 It is clear that affidavits framed like this one in the conelusory statutory language and lacking any identification of sources do not show probable cause under the Fourth Amendment. See United States v. Ventresca, 380 U.S. 102, 108-109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). In the course of the brief extradition hearing which followed appellants’ arrest, the Chief.Judge, over appellants’ objection based on lack of probable cause, ruled: “I do not go into the matter of probable cause here.” Concluding that appellants had been “substantially charged,” he ordered them bound over for extradition. Appellants then pursued their habeas corpus remedy in the District Court which ruled that the affidavit was “sufficient” and discharged the writ. This appeal followed. On January 19, 1967, a week after argument before this court, we entered our judgment, indicating that an opinion would follow. Stating in the judgment that the officer’s affidavit “does not allege sufficient evidence of probable cause to justify arrest,” we ordered that, unless the defective affidavit was successfully cured by February 2, the habeas writ should be made absolute. No further documents were received from Florida, and on February 6 appellants were released from custody. I 23 D.C.Code § 401(a) defines the procedures for extradition from the District of Columbia “[i]n all cases where the laws of the United States provide that fugitives from justice shall be delivered up,” thus cross-referencing to 18 U.S.C. § 3182 (1964), the basic federal statute on interstate extradition enacted by the Second Congress in 1793, 1 Stat. 302. Since then Section 3182, which incorporates most of the language from the Extradition Clause of the Constitution, has not been altered or amended in significant respects. Under its provisions extradition is dependent on submission to the asylum jurisdiction of “an indictment found or an affidavit made before a magistrate * * , charging the person demanded with having committed treason, felony, or other crime.” Appellants were not indicted, and hence authority for extradition, if any, must derive from the affidavit provision of Section 3182. Whether a police officer’s affidavit supports extradition when it merely repeats the language of the criminal statute allegedly violated is a question relating to the proper construction of Section 3182. We hold that, for purposes of extradition, the Section 3182 “affidavit” does not succeed in “charging” a crime unless it sets out facts which justify a Fourth Amendment finding of probable cause. “A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.” II Before Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), made the Fourth Amendment applicable to the states through the Fourteenth, and Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), made it enforceable against them by the same sanctions and by application of the same constitutional standards as prohibit unreasonable searches and seizures by the federal government, the quantum of evidence needed for arrest in the individual states was not a matter of federal concern. Though a pre-Wolf constitutional law of arrest could perhaps have been developed directly from the Fourteenth Amendment’s “deprivation of liberty” clause, it apparently was not. And, in fact, only developments since Wolf and Mapp have made it clear that what those cases applied to the states was the whole of the Fourth Amendment, thereby transmuting the federal standard of probable cause into a minimal and uniform requirement of a valid arrest by state officers. Even before Wolf and Mapp were decided, we find a brace of federal and state cases indicating that in extradition proceedings the Section 3182 affidavit from the charging state had to show “probable cause,” though not necessarily in the constitutional sense. Yet this court, after once indicating that a probable cause finding was a prerequisite in Section 3182 proceedings generally, Blevins v. Snyder, 57 App.D.C. 300, 22 F. 2d 876 (1927), in another pr e-Wolf case, Riley v. Colpoys, 66 App.D.C. 116, 85 F.2d 282 (1936), apparently approved a Section 3182 affidavit framed in the conclusory language of the demanding state’s criminal statute. Even in Riley, however, this court was careful to point out that the affidavit submitted was adequate to effect an arrest under the law of the demanding state, Michigan. The Supreme Court’s deepest judicial inquiry into the qualities of the “affidavit * * charging” requirement of Section 3182 was in Matter of Strauss, 197 U.S. 324, 25 S.Ct. 535, 49 L.Ed. 774 (1905), decided long before Wolf. There the court rejected the claim that under the Extradition Clause a suspect is not charged with a crime until his case is actually pending in a court of competent jurisdiction. Instead the Court ruled: ' * * [D]oubtless the word ‘charged’ was used in its broad signification to cover any proceeding which a state might see fit to adopt by which a formal accusation was made against an alleged criminal. In the strictest sense of the term a party is charged with crime when an affidavit is filed, alleging the commission of the offense, and a warrant is issued for his arrest, and this is true whether a final trial may or may not be had upon such charge. * * * ” 197 U.S. at 331, 25 S.Ct. at 537. (Emphasis added.) Though Strauss indicates that an arrest warrant from the demanding state must accompany the affidavit, Section 3182 has never explicitly required that the magistrate before whom the affidavit is sworn issue such a warrant and the courts since Strauss have not found such a requirement by implication. Nevertheless Strauss as well as Riley and almost all other pre-Wolf decisions indicate quite clearly that the Section 3182 affidavit should report or summarize enough evidence to justify issuance of an arrest warrant in the accusing state. It then follows that now, since Wolf and Mapp, the Section 3182 affidavit must also present facts sufficient to establish a showing of probable cause under the federal Fourth Amendment standards. For apprehension of a fugitive under Section 3182 is plainly a criminal arrest since it deprives him of his liberty for the purpose of insuring his presence at a criminal trial. See Strauss, supra, 197 U.S. at 333, 25 S.Ct. 535. There is no reason why the Fourth Amendment, which governs arrests, should not govern extradition arrests. Under its familiar doctrine arrests must be preceded by a finding of probable cause. When an extradition demand is accompanied by an indictment, that document embodies a grand jury’s judgment that constitutional probable cause exists. But when the extradition papers rely on a mere affidavit, even where supported by a warrant of arrest, there is no assurance of probable cause unless it is spelled out in the affidavit itself. Thus Fourth Amendment considerations require that before a person can be extradited on a Section 3182 affidavit the authorities in the asylum state must be satisfied that the affidavit shows probable cause. Ill The law appreciates the hardship which extradition can involve: not only the suspension of one’s liberty, but his deportation from the state in which he lives into another jurisdiction which may be hundreds of miles from his home. The law accordingly surrounds the accused with considerable procedural protection to stave off wrongful rendition. It is consistent with this concern for the accused’s just treatment to recognize his right to require official confirmation of probable cause in the asylum state before extradition. This right to probable cause confirmation seems especially appropriate in view of the fact that the accused will have no access to an evidentiary preliminary hearing on probable cause until he finally arrives in the accusing jurisdiction. In addition, the interests of the asylum state are advanced by its own probable cause determination. For it would be highhanded to compel that jurisdiction to lend its coercive authority, and the processes of its law, against even its own citizens in aid of an enterprise the key details of which remain in the dark. If, as here, it turns out that the prosecution against the fugitive is unfounded, the asylum state will have expended its resources and given the legitimizing stamp of its judiciary to a cause which is at best futile, at worst arbitrary. Recognizing a probable cause requirement in Section 3182, moreover, conflicts with no compelling interests elsewhere in the legal system. If the demanding state does have probable cause data, it will be no real inconvenience to record this evidence in the extradition papers. Documenting probable cause in an affidavit is what the policeman in many jurisdictions, including the District of Columbia, must do if he is to secure an ordinary warrant for an arrest or search. And governors, or habeas corpus judges, will hardly be significantly burdened by having to study written submissions for probable cause in extradition cases. From all these considerations the court draws the conclusion that the terms of 18 U.S.C. § 3182 are not met unless the affidavit indicates to the asylum state executive that there is probable cause for believing the accused guilty and that habeas corpus is the appropriate remedy to test the validity of his judgment. Since the Florida Section 3182 affidavit was insufficient and this defect was not cured in the time provided by the court, release of the prisoners was mandatory. . 23 D.C.Code § 401(a), in pertinent part, reads: “In all cases where the laws of the United States provide that fugitives from justice shall be delivered up, the Chief Judge of the United States District Court for the District of Columbia shall cause to be apprehended and delivered up such fugitive from justice who shall be found within the District, in the same manner and under the same regulations as the executive authorities of the several States are required to do by the provisions of sections 5278 and 5279, title 66, of the Revised Statutes of the United States * * . Fla.Stat.Ann. § 806.02, in pertinent part, reads: “Any person who wilfully and maliciously sets fire to, burns or causes to be burned * * * any building or structure * * * whether the property of himself or of another, not included or described in the preceding section, shall be guilty of arson in the second degree * * . U.S.Const., Art. IV, § 2, cl. 2: . In recodification in 1948 the word “District” was twice inserted to make it clear that the District of Columbia was subject to § 3182 obligations. Act of June 25, 1948, c. 645, 62 Stat. 822. This had earlier been assumed. E.g., Riley v. Colpoys, 66 App.D.C. 116, 85 F.23 282 (1936). . “Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District 'or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be . Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). . United States ex rel. McCline v. Meyering, 7 Cir., 75 F.2d 716 (1934); Raftery ex rel. Huie Fong v. Bligh, 1 Cir., 55 F. 2d 189 (1932); Ex parte Hart, 4 Cir., 63 F. 249, 260 (1894); Ex parte Morgan, W.D.Ark., 20 F. 298 (1883). Although state cases are in considerable disarray, something like probable cause is a prerequisite for extradition under § 3182 from Colorado and perhaps New York, and also from New Jersey and Ohio. Henry v. McArthur, 122 Colo. 474, 223 P.2d 621 (1950); compare People ex rel. DeMartini v. McLaughlin, 243 N.Y. 417, 153 N.E. 853 (1926); Ex parte Fritz, 137 N.J.Eq. 185, 44 A.2d 414 (1945); In re Powell, 2 Ohio Supp. 222, 10 Ohio O. 54, 25 O.L.A. 417 (1937). And see In re Cooper, 53 Cal.2d 772, 3 Cal.Rptr. 140, 349 P.2d 956 (1960), construing like provision of the Uniform Criminal Extradition Act. Of the several federal and state cases which could be cited in opposition, e.g., Collins v. Traeger, 9 Cir., 27 F.2d 842 (1928), it can justly be said that they bear on probable cause by implication only; the court’s research has uncovered no ease authority which in terms states that probable cause is not necessary. R. Hurd, Habeas Corpus 605 (1858), finds that the affidavit must show probable cause; J. Scott, The Law of Interstate Rendition (1917), though basically contra, id. at 150-152, finds a probable cause rule “humane and reasonable,” id. at 234. . Only a single objection, however, was directed at that affidavit — that it was based exclusively on information and belief. No objection was framed in probable cause terms. Moreover, included in the Riley extradition papers was the affiant’s additional follow-up affidavit detailing facts and sources undoubtedly sufficient to supply probable cause had the court directly confronted the question. It would have been permissible to read the two affidavits together. See Raftery ex rel. Huie Fong v. Bligh, supra Note 7. Compare Ex parte Hart, supra Note 7. . 66 App.D.C. at 118, 85 F.2d at 284. . The Supreme Court in Pierce v. Creecy, 210 U.S. 387, 28 S.Ct. 714, 52 L.Ed. 1113 (1908), declined close inspection of a demanding state’s indictment, and indicated in dictum that this would be true of the affidavit as well. This case, however,1 was decided long before Wolf and Mapp made state arrests a subject of federal court focus. . See the opinion of the first Attorney General, Edmund Randolph, a representative to the Constitutional Convention: “[T]his term [‘charged’] is sufficiently technical to exclude any wanton or unauthorized accusation from becoming the basis of the demand.” J. Scott, supra Note 7, at 27-28. . Application of Williams, 76 Idaho 173, 279 P.2d 882 (1955); Ex parte Riccardi, 68 Ariz. 180, 203 P.2d 627 (1949); People ex rel. Gates v. Mulcahy, 392 Ill. 498, 65 N.E.2d 21 (1946) ; State ex rel. Covington v. Hughes, 157 La. 652, 102 So. 824 (1925). See Fowler v. Ross, 90 U.S.App.D.C. 305, 312 n. 3, 196 F.2d 25, 31 n. 3 (1952). Compare § 3 of the Uniform Criminal Extradition Act, which asks that if an arrest warrant is issued it be included in the extradition papers. 9 U.L.A. 274 (1957). Undoubtedly Strauss would be satisfied if the magistrate officially accepted or recorded the affidavit under some procedure equivalent to issuance of an arrest warrant. See Compton v. State of Alabama, 214 U.S. 1, 14, 29 S.Ct. 605, 53 L.Ed. 885 (1909); Collins v. Traeger, 9 Cir., 27 F.2d 842, 844 (1928). . Unless the “affidavit” clause of § 3182 is construed at least to require that the affidavit report or summarize enough evidence to justify issuance of an arrest warrant in the accusing state, the statute strays far beyond the constitutional text it has always been supposed to be implementing. See Com. of Kentucky v. Dennison, 65 U.S. (24 How.) 66, 105, 16 L.Ed. 717 (1861). It is not clear whether this alone would endanger § 3182 constitutionally. The Extradition Clause is often read as securing a demanding state’s right to have a defendant extradited if its conditions are met, not the accused person’s right to avert extradition when they have not been satisfied. See Note, 39 Corn.L.Q. 326 (1954). Moreover, this interpretation of the “affidavit * * * charging” language of § 3182 is in harmony with common legal usage, for in many jurisdictions arrest warrants must issue exclusively on the basis of affidavits or complaints which themselves make out the evidentiary case for arrest. E.g., Rule 4(a), Fed.R. Ckim.P., applied in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Idaho Gen. Laws Ann. §§ 19-504 to 19-506 (1950); Nev.Bev.Stat. §§ 171.120 to 171.130 (1957); Okla.Stat., Title 22, § 171 (1937); Wis.Stat.Ann. § 954.02 (1958). In other jurisdictions, including Florida, the complaint can be supplemented by the magistrate’s personal examination of the complainant or others. B.g., Fla. Stat. §§ 901.01-901.02, F.S.A. (1944); Ill.Ann.Stat. 38, § 107-9 (1964); Ariz. B.Crim.Proc. 1, 2, 17 A.B.S. (1956). In these states, therefore, an affidavit can be sufficient to launch the process leading to arrest, yet not itself show probable cause. . It has never been suggested that the Extradition Clause of the Constitution affirmatively authorizes extradition arrests on a lesser basis than Fourth Amendment probable cause. Bather, this court has said that the Clause does not conflict with basic constitutional rights. Johnson v. Matthews, 86 U.S.App.D.C. 376, 381, 182 F.2d 677, 682, cert. denied, 340 U.S. 828, 71 S.Ct. 65, 95 L.Ed. 608 (1950). . See People of State of New York v. O’Neill, 359 U.S. 1, 12-18, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959) (dissenting opinion of Mr. Justice Douglas). Modern transportation and communication facilities have, of course, reduced the inconvenience of interstate travel. Note, however, that under § 2 of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings — upheld in O’Neill — those compelled to travel between states are recompensed at the rate of $5 a day and $.10 per mile. 9 U.L.A. 93 (1957). There is no comparable provision in the extradition statute. . Principally, the factual finding implicit in the accused state’s affidavit, or even indictment, that the accused was within the accusing state on the date of the crime has been held not conclusive; prior to placing the accused under extradition arrest, the asylum state executive must make his own confirming determination on the “fugitivity” question, Hyatt v. People ex rel. Corkran, 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed. 657 (1903), and the accused can freely relitigate the issue in the course of his habeas corpus hearing, though there he must carry the burden of proof. See Moncrief v. Anderson, 119 U.S.App.D.C. 323, 342 F.2d 902 (1964), and 122 U.S.App.D.C. 289, 353 F.2d 460 (1965). The other litigable issue in habeas corpus is, of course, identity. See Annot., 98 A.L.B.2d 964 (1964). . In many, if not all, jurisdictions the right of the unindicted suspect, arrested with or without a warrant, to such a hearing has been firmly secured, e■ g., Alaska R.Crim.Proc. 5 (1963); Ariz. R.Crim.Proc. 16 (1956); W.Va.Code § 62-1-8 (1966), the underlying principle being that defendants should not be subjected to serious inconvenience or prolonged detention absent careful judicial confirmation of the fact that probable cause for that detention exists. . Since “sufficient evidence of probable cause to justify arrest” was not forthcoming from Florida in the time allowed after our judgment of January 19, 1967, resulting in appellants’ release, we assume that Florida had no additional evidence of probable cause to offer. . Analogies supporting a probable cause construction for the § 3182 affidavit come from Rule 40(b) (3), Fed.R.Crim.P., governing removal of a suspect from one to another federal district, and 18 U.S.C. § 3184 (1964), defining procedures for international extradition. Under the former’s terms if an unindicted suspect for whom an arrest warrant has in fact been issued in one district is found in another district which lies in another state and more than 100 miles away, before removal he must be given a hearing before a judge or commissioner at which the issue is whether “there is probable cause to believe that the defendant is guilty of the charge.” Pursuant to § 3184, extradition “may” be ordered, but only upon a proper sworn “complaint” and after a hearing, also before a judge or commissioner, exploring “evidence of criminality,” this construed to mean probable cause. Glucksman v. Henkel, 221 U.S. 508, 31 S.Ct. 704, 55 L.Ed. 830 (1911); United States ex rel. Petrushanky v. Marasco, 2 Cir., 325 F.2d 562 (1963). True, each of the three situations — interstate rendition, federal removal and international extradition — has its own ideological characteristics. But as the Note of the Advisory Committee on Federal Rules makes clear, the general intention of Rule 40 is a practical one — to strike a just compromise between the valid conflicting interests of an accused and a distant prosecuting agency: “The purpose of removal proceedings is to accord safeguards to a defendant against an improvident removal to a distant point for trial. On the other hand, experience has shown that removal proceedings have at times been used by defendants for dilatory purposes * * . The object of the rule is adequately to meet each of these * * situations.” And the Supreme Court has already advised us that on the question of the quantum of evidence needed for extradition the international and interstate rules are in “general harmony.” Strauss, supra, 197 U.S. at 333, 25 S.Ct. 535. Question: Did the court determine that it would not hear the appeal for one of the following reasons: a) administrative remedies had not been exhausted; or b) the issue was not ripe for judicial action? A. No B. Yes C. Mixed answer D. Issue not discussed 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. Mrs. Louise Bisbey STEWART et al., Appellants, v. UNITED STATES of America et al., Appellees. No. 16124. United States Court of Appeals, Fifth Circuit. March 1, 1957. Rehearing Denied April 5, 1957. Albert J. DeLange, Houston, Tex., De Lange, Hudspeth & Pitman, C. M. Hudspeth, Eugene J. Pitman, Houston, Tex., for appellants. Richard C. Peet, Atty., Dept, of Justice, Washington, D. C., Perry W. Morton, Asst. Atty. Gen., S. Billingsley Hill, Atty., Dept, of Justice, Washington, D. C., Malcolm R. Wilkey, U. S. Atty., Houston, Tex., Arthur L. Moller, Asst. U. S. Atty., Houston, Tex., Roger P. Marquis, Atty., Dept, of Justice, Washington, D. C., for the United States. Before RIVES, TUTTLE and CAMERON, Circuit Judges. CAMERON, Circuit Judge. Mrs. Louise Bisbey Stewart et al., claiming to be the owners of mineral interests in lands situated in Galveston County, Texas, brought this action against the United States, Charles E. Wilson, Secretary of Defense, Charles S. Thomas, Secretary of the Navy, Douglas McKay, Secretary of the Interior, and Edward Woozley, Director of Land Management, Department of Interior, all nonresidents of the State of Texas, to quiet title to said mineral interests and to cancel certain clouds on their title, and to recover damages for trespass upon said mineral interests. The complaint alleged that the United States had attempted condemnation of the land, but that, for reasons there set forth, the proceedings did not vest title to the oil, gas and other minerals in the United States, and that, if title thereto ever entered the United States, it had been abandoned; but that, notwithstanding said lack of title, the United States, through the individual defendants, was committing trespasses upon said mineral interests and was advertising for bids with the view of selling mineral rights to others. Summons was served on the United States Attorney and mailed to the Attorney General, and a summons was served on each of the individual defendants by the United States Marshal in Washington, D. C. The United States moved to dismiss the action because of lack of jurisdiction, and each of the individual defendants moved to quash the service and return of the summons served respectively upon him and to dismiss the suit. Briefs were filed and the Court below entered an order dismissing as to the United States, and quashing the service and return of process on each of the individual defendants, but overruling their motions to dismiss. The order also granted leave to plaintiffs to amend. An amended complaint was filed against the same defendants and, in addition, against the Placid Oil Company, a corporation under the laws of Delaware, authorized to do business in Texas. It was alleged that the original defendants had executed oil and gas leases to the Placid Oil Company, and that said oil company had entered or was about to enter upon the property to drill for, remove and convert to its own use, oil and gas from said land. The amended complaint asked the issuance and service of process on the oil company and a letter to the clerk made a like request, but the record does not disclose whether summons was ever issued or served on the Placid Oil Company and no appearance has been made for it. The amended complaint prayed that title to the described mineral interests be quieted in plaintiffs, that all clouds and encumbrances be cancelled, that the condemnation proceedings be reviewed and corrected, that the oil and gas leases be cancelled and declared void, and that the parties be enjoined from performing them. The complaint also prayed for the recovery of damages against each of the defendants growing out of the trespasses committed on said property. With the amended complaint was filed a motion for an order for service on the named government officials under 28 U.S.C.A. § 1655 and Rule 4 of the Federal Rules of Civil Procedure, 28 U.S. C.A. Without the filing of any pleadings to the amended complaint on behalf of any of the defendants, the Court rendered a memorandum opinion upon which judgment was entered, denying the motion for issuance of process under said § 1655, and dismissing the action as against all defendants. Plaintiffs appeal from said order as it relates to each of the defendants, claiming that the Trial Court erred in each and all of the rulings above set forth. The order appealed from was manifestly right in dismissing the action against the United States. It has not consented to suit in this character of proceeding, and the Court was without jurisdiction and correctly dismissed the suit as far as it sought any judgment against the United States. State of Minnesota v. United States, 1939, 305 U.S. 382, 59 S.Ct. 292, 82 L.Ed. 235; United States v. Shaw, 1940, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; United States v. United States Fidelity & Guaranty Co., 1940, 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894; and Larson v. Domestic & Foreign Commerce Corp., 1949, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628. It is equally plain that the Court’s original action was correct in quashing the service and return on each summons as it was sought to be served on each of the government officials. The process of the Court below could be served only in the State of Texas, Rule 4(f), F.R.C.P., and the attempted service in Washington, D. C. was without effect and was properly quashed. Plaintiffs insist that the Court ought to grant them relief of the nature recognized in such cases as United States v. Lee, 1882, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171, and Land v. Dollar, 1947, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209, directed towards control of the acts of the individuals assuming to act for the United States. That question might well be before us if the Court had acquired jurisdiction over the individual defendants; but in the absence of such jurisdiction we cannot consider it. Inasmuch as the rights of the defendants, other than the United States, who may be asserting any title or possessory interest in the lands came through the United States, it is an indispensable party to any relief which might be sought based upon or affecting title to the lands or any interest therein. Leiter Minerals, Inc., v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267, and Anderson v. United States, 5 Cir., 1956, 229 F.2d 675. It is well settled under the decisions of this Court that no decree can be entered affecting the title to property or cancelling any cloud thereon unless all of the parties interested in the title or in the particular cloud and who will be directly affected by any judgment that may be rendered are properly before the Court. Hudson v. Newell, 5 Cir., 1949, 172 F.2d 848, and cases cited; Mackintosh v. Marks’ Estate, 5 Cir., 1955, 225 F.2d 211, and Estes v. Shell Oil Co., 5 Cir., 1956, 234 F.2d 847. Since the United States is so interested and can not be brought before the Court, no suit can be maintained which seeks to quiet plaintiffs’ asserted title or to cancel any asserted cloud thereon. This holding disposes also of the contention that the Court erred in not ordering the individual non-resident defendants to be brought in by service under the provisions of 28 U.S.C.A. § 1655. That statute provides, by its terms, for bringing in absent defendants only in proceedings in rem, such as suits to remove clouds upon title to real or personal property. It cannot be invoked to aid service upon absent defendants sued in personam. Since the in rem features of this suit may not be pursued because of the absence of an indispensable party, the statute has no application. It does not appear that Placid Oil Company was before the District Court by service of process or by appearance, nor that it is a party to this appeal. See 2 Am.Jur., Appeal and Error, § 241 and 4 C.J.S., Appeal and Error, § 398, p. 863. Nothing herein said, therefore, shall be construed to affect the rights or remedies of the plaintiffs, appellants, if any, as against Placid Oil Company. As respects all other named parties, the judgment is Affirmed. . The amended complaint was filed February 7th and the Court rendered the memorandum opinion March 2nd. Certain phases of the merits were adverted to, but the dismissal was not on the merits but for lack of jurisdiction. . Plaintiffs claim that such consent is given in 28 U.S.C.A. § 2410, but a reading of that statute shows that it applies only to suits relating to government liens. And cf. Jones v. Tower Production Co., 10 Cir., 1943, 138 F.2d 675 and United States v. Goltra, 1941, 312 U. S. 203, 61 S.Ct. 487, 85 L.Ed. 776. . Trueman Fertilizer Co. v. Larson, 5 Cir., 1952, 196 F.2d 910; and cf. Appalachian Elec. Power Co. v. Smith, 4 Cir., 1933, 67 F.2d 451, certiorari denied 1934, 291 U.S. 674, 54 S.Ct. 458, 78 L.Ed. 1063; and Blackmar v. Guerre, 1952, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534. 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_opinstat	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. MARTINEZ v. SANCHO, Treasurer. No. 3505. Circuit Court of Appeals, First Circuit. Jan. 10, 1940. F. Fernandez Cuyar and Carlos D. Vazquez, both of San Juan, P. R., for appellant. William Cattron Rigby, of Washington, D. C. (B. Fernandez Garcia, of San Juan, P. R., and Nathan R. Margold, of Washington, D. C., on the brief), for appellees. Before WILSON and MAGRUDER, Circuit Judges, and McLELLAN, District Judge. PER CURIAM. The plaintiff, appellant, bought a farm on which taxes for prior years had not been paid. Concededly when he bought the land, it was subject to a lien for the unpaid taxes for the current year and the three prior years, this by virtue of legislation by the Puerto Rican Legislature. Later, the defendants caused the property to be attached for these prior taxes and other taxes on the farm. Having paid or tendering taxes which had not become more “than three years old at the time of the attachment, the appellant sought an injunction against the attachment and sale of the land for the older taxes. Such an injunction against the defendants was ob-. tained in the District Court. The Supreme Court of Puerto Rico reversed the District Court and dismissed the complaint. The basic question was and is one involving local laws and the construction of statutes enacted by the Insular Legislature. No provision of the Constitution of the United States, no Act of the Congress, no Treaty was discussed or considered by the Supreme Court of Puerto Rico. None of these is directly involved in this appeal. There is no substantial Federal question to support our jurisdiction. The amount of the taxes here at issue is less than two hundred dollars. The value in controversy is far less than the jurisdictional $5,'000. Our right to hear and determine the appeal rests upon the provisions contained in U.S.Code, Title 28, Section 225, 28 U.S.C.A. § 225, reading, so far as here applicable, as follows: “§ 225. Appellate jurisdiction. “(a) Review of final decisions. The circuit courts of appeal shall have appellate jurisdiction to review by appeal final decisions. * * * “Fourth. In the Supreme Courts of the Territory of Hawaii and of Puerto Rico, in all cases, civil or criminal, wherein the Constitution or a statute or treaty of the United States or any authority exercised thereunder is involved; in all other civil cases wherein the value in controversy, exclusive of interests and costs, exceeds $5,-000, and in all habeas corpus proceedings.” The case at bar is not within the statute. The appeal is dismissed for want of jurisdiction. Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:
songer_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. BUKTA v. ZURBRICK. No. 5833. Circuit Court of Appeals, Sixth Circuit. June 11, 1931. H. A. Behrendt, of Detroit, Mich., for appellant. W. G-. Comb, of Detroit, Mich., for appel-lee. Before DENISON, HICKS, and HICK-ENLOOPER, Circuit Judges. HICKS, Circuit Judge. Appeal from an order dismissing a writ of habeas corpus. The purpose of the writ was to test the validity of a warrant which directed the deportation of appellant to Hungary upon the grounds: (1) That he had entered the United States without inspection; (2) that he had entered for an immoral purpose; and (3) that he had admitted the commission of a crime involving moral turpitude, to wit, perjury, prior to his entry. The evidence is sufficient to sustain the first ground and we need not therefore consider the second and third. Appellant is a native of Hungary. In' 1922 while yet in Hungary he and one Jolan ■Gal began living together as common-law husband and wife. In company with her he left Hungary on November 25,1924, destined for Canada, and they arrived at St. Johns, New Brunswick, about December 12, 1924. While living at Windsor, Canada, appellant aided the United States Immigration Service in an effort to apprehend smugglers and in consideration of such services the Immigration Inspector at Detroit issued to appellant and thewoman, J oían Gal, a temporary visa permitting them to commute daily between Windsor and Detroit for the purpose of employment. It fairly appears that appellant permitted this visa to expire without reporting to the immigration authorities but upon apprehension he was allowed to return to Canada voluntarily. Erom the confused record it is' difficult to determine clearly just what occurred after appellant’s return to Canada. Appellant claims that he again procured a visa from the American Consul at Windsor and that upon the authority thereof he and Jolan Gal again entered the United States about December 18, 1925. This was his last entry. The matter is not entirely clear, but it is fair to assume that appellant did have some color of permission to enter, possibly a temporary-visa indorsed upon his passport, or whatever document he may have had in the nature of a passport. Appellant again overstayed his temporary visa, if in fact he had it, and was arrested at Detroit upon a warrant of the Department of Labor issued October 19, 1928. This warrant of arrest exhibited the same charges finally carried into the deportation warrant. Even a visa could not of itself authorize appellant to enter. Section 2 (g) of the Immigration Act of 1924 (tit. 8, see. 202 (g) U. S. C. (8 USCA § 202 (g). Although aimed with it he may not enter elsewhere than at a designated port or without inspection or at any time other than that designated by the immigration officials. Sections 16 and 19 of the Immigration Act of 1917 (tit. 8, see. 152,155 U. S. C. (8 USCA §§ 152, 155). These se'etions apply to any and all aliens.,' Visa holders are not excepted. If appellant entered without inspection be was deportable under section 19, supra. See also United States ex rel. Natali v. Day, 45 F.(2d) 112 (C. C. A. 2); United States ex rel. Fanutti v. Flynn (D. C.) 17 F.(2d) 432; Singh v. U. S., 243 F. 557 (C. C. A. 9). It avails appellant nothing that his entry was a re-entry. Lewis v. Frick, 233 U. S. 291, 297, 34 S. Ct. 488, 58 L. Ed. 967; Zurbrick v. Borg, 47 F.(2d) 690, decided by this court, March 6, 1931; U. S. v. Day, supra; Cahan v. Carr, 47 F.(2d) 604, 605 (C. C. A. 9). Section 23 of the Immigration Act of 1924 (tit. 8, sec. 221 U. S. C. [8 USCA § 221]) placed upon appellant the burden of showing that he had entered lawfully. He failed to carry this burden. His claim that he thought he had permission to stay is beside the point. He introduced-no evidence tending to show that he underwent inspection upon his last entry. Upon the other hand, it substantially appears that he did not. There is no substantial evidence that he paid the head tax required by the Immigration Act of Feb. 5, 1917, see. 2 (tit. 8, sec. 132, U. S. C. [8 USCA § 132]), or that he ever presented himself at the designated port. He testified: “I paid the man who brought me across $100.00.” This is of course inconsistent with any other than a surreptitious entry. Upon his examination he was asked touching his last entry: “Were you at that time properly examined by the immigration officer and legally admitted to the United States?”. His answer was, “No, not in Detroit.” We have no doubt of the validity of the deportation warrant and the order denying the writ of habeas corpus is therefore affirmed. However, we think the deportation should have been to Canada. Appellant was destined for Canada upon his voyage from Hungary and lived both at Toronto and Windsor. The case will therefore be remanded with diréetions to allow the warrant to be amended so as to order deportation to Canada or in the alternative if that country refuses to receive him or imposes any condition upon his re-entry then to Hungary. Tit. 8, see. 156 U. S. C. (8 USCA § 156); Gorcevich v. Zurbrick (C. C. A. decided April 7, 1931) 48 F.(2d) 1054; United States v. Curran, 16 F.(2d) 958 (C. C. A. 2). 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_authoritydecision	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. GROPPI v. WISCONSIN No. 26. Argued December 7, 1970— Decided January 25, 1971 Stewart, J., delivered the opinion of the Court, in which Douglas, HarlaN, BrennaN, White, and Marshall, JJ., joined. Black-mun, J., filed a concurring opinion, in Which Burger, C. J., joined, post, p. 512. Black, J., filed a dissenting opinion, post, p. 515. Elizabeth B. Dubois argued the causé for appellant. With her on the briefs were Jack - Greenberg, Michael Meltsner, Anthony G. Amsterdam, Thomas M. Jacobson, and Robert E. Sutton. Sverre O. Tinglum, Assistant Attorney General of Wisconsin, argued the cause for appellee. With him on the brief wére Robert W. Warren, Attorney General, and Roy G. Mita, Assistant Attorney General. Mr. Justice Stewart delivered .the opinion of the Court. On. August 31, 1967, during a period of civil disturbances in Milwaukee, Wisconsin, the appellant,- a Roman Catholic priest, was arrested in that city on a charge of resisting arrest. Under Wisconsin law that offense is a misdemeanor, punishable by a fine of not more than $500 or imprisonment in the county jail for not more than one year, or both. After a senes of continuances, the appellant was brought to trial before a jury in a Milwaukee County court on February 8, 1968. The first morning of the trial was occupied with qualifying the jurors, during the course of which the appellant exhausted all of his peremptory challenges. The trial then proceeded, and at its conclusion the jury convicted the appellant as charged. Prior to the trial, counsel for the appellant filed a motion for a change of venue from Milwaukee County “to a county where community prejudice against this defendant does not exist and where an impartial jury trial can be had.” The motion asked the court to take judicial notice of “the massive coverage by all news media in this community of the activities of this defendant,” or, in the alternative, that “the defendant be permitted to offer proof of the nature and extent thereof, its effect upon this community and on the right of defendant to an impartial jury trial.” The trial judge denied the motion, making clear that his ruling was based exclusively on his view that Wisconsin law did not permit a change of venue in misdemeanor cases. On appeal, the Supreme Court of Wisconsin affirmed the conviction. 41 W,is. 2d 312, 164 N. W. 2d 266. It held that the trial judge had been correct in his understanding that a Wisconsin statute foreclosed thé possibility of a change of venue in a misdemeanor prosecution. It further held that this state law was constitutionally valid, pointing out that “it would be extremely unusual for a community as a whole to prejudge the guilt of any person charged with a misdemeanor.” 41 Wis. 2d, at 317, 164 N. W. 2d, at 268. The court also noted that a defendant in a Wisconsin misdemeanor prosecution has a right to ask for continuances and to challenge prospective jurors on voir dire, and if “these measures are still not sufficient to provide an impartial jury, the verdict can be set aside after trial based on the denial of a fair and impartial trial.” 41 Wis. 2d, at 321, 164 N. W. 2d, at 270. Two members of the court dissented, helieving that the state statute did not absolutely forbid a change of venue in a misdemeanor prosecution, and that if the statute did contain such a prohibition it was constitutionally invalid. 41 Wis. 2d, at 325, 164 N. W. 2d, at 272. This appeal followed, and we noted probable jurisdiction. 398 U. S. 957. As the case reaches us we must, of course, accept the construction that the Supremq Court of Wisconsin has put upon the state statute. E. g., Kingsley Pictures Corp. v. Regents, 360 U. S. 684, 688. The question before us, therefore, goes to the constitutionality of a state law that categorically prevents a change of venue for a criminal jury trial, regardless of the extent of local prejudice against the defendant, on the sole ground that the charge against him is labeled a misdemeanor. We hold that this question was answered correctly by the dissenting justices in' the Supreme Court of Wisconsin. The issue in this case is not whether the Fourteenth Amendment requires a State to accord a jury trial to- a defendant on a charge such as the appellant faeed here. The issue concerns, rather, the nature of the jury trial that the Fourteenth Amendment commands, when trial, by jury is what the State has purported to accord. We had occasion to consider this precise question almost 10 years ago in Irvin v. Dowd, 366 U. S. 717. There we found that an Indiana conviction could not constitutionally stand because the jury had been infected by community prejudice before the trial had commenced. What the Court said in that case is wholly relevant here: “In essence, the right to jury .trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors. The failure to. accord an accused a fair hearing violates even the minimal standards of due process. In re Oliver, 333 U. S. 257; Tumey v. Ohio, 273 U. S. 510. ‘A fair trial' in a fair tribunal is a basic requirement of due process.’ In re Murchison, 349 U. S. 133, 136. In the ultimate analysis, only the jury can strip a man of his liberty .or his life. In the language of Lord Coke, a juror must be as ‘indifferent as he stands unsworne.’ Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial. Cf. Thompson v. City of Louisville, 362 U. S. 199. This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. It was so written into our law as early as 1807 by Chief Justice Marshall in 1 Burr’s Trial 416 . . . .” 366 U. S., at 722. . There are many ways- to try to assure the kind of impartial jury that the Fourteenth Amendment guarantees. In Sheppard v. Maxwell, 384 U. S. 333, the Court enumerated many of the procedures available, particularly in the context of a jury threatened by the poisonous influence of prejudicial publicity during the course of the trial itself. 384 U. S., at 357-363. Here we are concerned with the methods available to assure an impartial ■ jury in a situation where, because of prejudicial publicity or for some other reason, the community from which the jury is to be drawn may already be permeated with hostility toward the defendant. The problem is an ancient one. Mr. Justice Holmes stated no more than a commonplace when, two generations ago, he noted that “[a]ny judge who has sat with juries knows that in spite of forms they are extremely likely to be impregnated by the environing atmosphere.” Frank v. Mangum, 237 U. S. 309, 349 (dissenting opinion). One way to try to meet the problem is to grant a continuance of the trial in the hope that in the course of time, the fires of prejudice will cool. But this hope may not be realized, and continuances, particularly if they are repeated, work against the important values implicit in the constitutional guarantee of a. speedy trial. Another way is to provide a method of jury qualification that will promote, through the exercise of challenges to the ve-nire — peremptory and for cause — the exclusion of prospective jurors infected with the prejudice of the community from which they come. But this protection, as Irvin v. Dowd, supra, shows, is not always adequate to effectuate the constitutional guarantee. Oh at least one occasion this Court has explicitly held that only a change of venue was constitutionally , sufficient to assure the kind of impartial jury that is guaranteed by the Fourteenth Amendment. That was. in the case of Rideau v. Louisiana, 373 U. S. 723. We held that, “it was a denial of due process, of law to refuse the request for a change of venue, after the people óf Calcasieu Parish had been exposed repeatedly and in depth” to the prejudicial pretrial publicity there involved. 373 U. S., at 726. Ridedu was not decided until 1963, but its message echoes more than 200 years of human experience in the endless quest for the fair administration of criminal justice. It is doubtless true, as the Supreme Court of Wisconsin said, that community prejudice is not often' aroused against a man accused only of a misdemeanor. But under the Constitution a defendant must be given an opportunity to show that a change of venue is required in his case. The Wisconsin statute wholly denied that opportunity to the appellant. Accordingly, the judgment is vacated, and the case is remanded to the Supreme Court of Wisconsin for further proceedings not inconsistent with this opinion. It is so ordered. “Whoever knowingly resists or obstructs an officer while such officer is doing any act in his official capacity and with lawful authority, may be fined not more than $500 or imprisoned not more than one year in countv i,.il or both.” Wis. Stat. § 946.41 (1) (1967). Apparently no transcript was made of the voir dire proceedings. The court: “So, therefore, the change of venue as asked for in_the motion for a change of venue will be denied; it not being provided for in the Wisconsin Statutes. . . . No, I’m denying the motion for a change of venue because this is a misdemeanor case and not a felony. And the Wisconsin Statute does not provide for a change of venue in a misdemeanor matter.” The relevant statute in effect at the time of the appellant’s trial was Wis. Stat. §956.03 (3) (1967), which provided: “If a defendant who is charged with a felony files his affidavit that an impartial trial cannot be had in the county, the court may change the venue of the action to any county where an impartial trial can be had. Only one change may be granted under this subsection.” Wis. Stat. § 971.22, effective July 1) 1970, now permits a change of venue in all criminal cases. See Wis. Laws 1969, c. 255, p. 650. We reject the suggestion that the appellant is not in a position to attack the statute because he made an insufficient showing of community prejudice. His motion for a change of venue explicitly asked in the alternative that he be permitted to “offer proof” of the nature and extent of the local prejudice against him. His motion was denied in its entirety, thus foreclosing any opportunity to produce evidence of a prejudiced community. The trial court’s ruling was, of course, wholly consistent with its view that it was powerless to grant a change of venue under Wisconsin law, regardless of what showing of local prejudice might have been made. Accord, Pamplin v. Mason, 364 F. 2d 1 (CA5); State ex rel. Ricco v. Biggs, 198 Ore. 413, 255 P. 2d 1055. That question was answered affirmatively in Baldwin v. New York, 399 U. S. 66. Wisconsin grants a. right to trial by jury in all misdemeanor cases. See State ex rel. Murphy v. Voss, 34 Wis. 2d 501, 505, 149 N. W. 2d 595, 597; State ex rel. Sauk County District Attorney v. Gollmar, 32 Wis. 2d 406, 410, 1145 N, W. 2d 670, 672. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ttf . . . an impartial jury . . . .” (Emphasis added.) See Klopfer v. North Carolina, 386 U. S. 213; Smith v. Hooey, 393 U. S. 374; Dickey v. Florida, 398. U. S. 30; id., at 39 (BrenNan, J., concurring). . See generally Broeder, Voir Dire Examinations: An Empirical Study, 38 S. Cal. L. RSv. 503 (1965). See Rex v. Harris, 3 Burr. 1330, 1333, 97 Eng. Rep. 858, 859 (K. B. 1762): “Notwithstanding the locality of some sorts of actions, or of informations for misdemeanors, if the matter can not be tried at all, or can not be fairly and impartially, tried in the proper county, it shall be tried in the next adjoining county.” (Lord Mansfield.) See also Crocker v. Justices of the Superior Court, 208 Mass. 162, 178-179, 94 N. E. 369, 376-377 (1911): “This review demonstrates that the great .weight of authority ■ supports .the view that courts, which by statute or .custom, possess a jurisdiction like that of the Kings Bench before our revolution, have the right to change the place of trial, when justice requires it, to a county; where an impartial trial may be had. •“. . . There can be no justice in a trial by jurors inflamed by passion, warped by prejudice, awed by violence, menaced by the virulence of public opinion or manifestly biased by any influences operating either openly or insidiously to such an extent as to poison the judgment and prevent the freedom of fair action. Justice cannot be assured in a trial where other considerations enter the minds of those who are to decide than the single desire to ascertain and •declare the truth according to the law and the evidence. A court of general jurisdiction ought not to be left powerless under the law to do within reason all that the conditions of society and human nature permit to provide an unprejudiced panel for a jury trial.” See also, e. g., State v. Albee, 61 N. H. 423, 60 Am. Rep. 325 (1881). Whether corrective relief can be afforded the appellant short of a new trial will be for the Wisconsin courts to determine in the first instance. Cf. Coleman v. Alabama, 399 U. S. 1, 10-11. 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_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 George C. GILMORE, Appellee, v. Bill ARMONTROUT, Appellant. George C. GILMORE, Appellant, v. Bill ARMONTROUT, Appellee. Nos. 88-1378, 88-1517. United States Court of Appeals, Eighth Circuit. Submitted June 14, 1988. Decided Nov. 10, 1988. Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, Mo., for appellant. Kevin L. Collins, Kansas City, Mo., for appellee. Before ARNOLD, Circuit Judge, FLOYD R. GIBSON and HENLEY, Senior Circuit Judges. HENLEY, Senior Circuit Judge. The State of Missouri appeals and petitioner George C. Gilmore cross-appeals from the district court’s order granting Gilmore’s 28 U.S.C. § 2254 petition for writ of habeas corpus upon the basis of two of the nine grounds set forth therein, and ordering a new trial in the punishment phase of Gilmore’s state capital murder trial, or in the alternative, alleviation of the death sentence imposed. For reasons to be stated, we conclude that Gilmore’s challenges to his conviction and sentence do not warrant habeas corpus relief. Accordingly, we reverse the district court’s order and reinstate the original sentence. I. Gilmore is a state prisoner currently incarcerated at the Missouri State Penitentiary in Jefferson City, Missouri. In March, 1982 he was convicted by jury of capital murder and sentenced to death in connection with the slaying of an elderly woman, Mary Luella Watters. Gilmore’s conviction and sentence were affirmed by the Missouri Supreme Court on direct appeal. State v. Gilmore, 661 S.W.2d 519 (Mo.1983) (en banc), cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984). Gilmore then filed a motion for state post-conviction relief pursuant to Missouri Supreme Court Rule 27.26, which was denied after an evidentiary hearing. The denial of the motion was affirmed by the Missouri Court of Appeals. Gilmore v. State, 712 S.W.2d 438 (Mo.Ct.App.1986). Thereafter, Gilmore commenced the present action for federal habeas corpus relief. In an amended petition filed June 1, 1987, after the appointment of counsel, Gilmore advanced the claims that: (1) his conviction was obtained in violation of the sixth amendment because he was not represented by counsel at his arraignment and plea; (2) he was forced to wear leg irons in the presence of the jury, in violation of the fifth amendment; (3) his trial attorney rendered ineffective assistance; (4) the state trial court’s action of unilaterally striking a juror denied Gilmore a trial by a jury chosen from a cross-section of the population, in violation of the sixth amendment; (5) the prosecuting attorney made improper remarks during his closing argument in the punishment phase of the trial; (6) during the punishment phase of the trial, the jury was improperly permitted to view Gilmore’s videotaped confession in two unrelated crimes; (7) the imposition of the death penalty constitutes cruel and unusual punishment, in violation of the eighth amendment; and (8) the imposition of the death penalty is arbitrary and excessive, and disproportionate to the sentence imposed in other similar cases. Finally, in a second amended petition filed July 23,1987, Gilmore advanced the additional claim that during the guilt phase of the trial, the jury was improperly permitted to consider evidence concerning the impact of the crime upon the victim’s relatives. After supplemental briefing by both parties, the district court entered an order dated February 26, 1988, directing that Gilmore be given a new trial in the penalty phase of the proceedings or, in the event that the State elected not to give Gilmore a new trial, that he be relieved of the sentence of death and confined for fifty years without parole. Gilmore v. Armontrout, 681 F.Supp. 632, 641 (W.D.Mo.1988). The district court concluded that the challenged portion of the prosecuting attorney’s closing statement was improper and “blatantly prejudicial,” depriving Gilmore of a fair trial. The court determined that its consideration of this claim was not pre-eluded despite Gilmore’s attorney’s failure to object at trial because the prosecutor’s statements constituted plain error under Missouri Supreme Court Rule 30.20 and Gilmore’s attorney’s failure to object was “so grossly negligent that it falls completely outside the standards of Wainwright v. Sykes [433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed. 2d 594 (1977)]....” 681 F.Supp. at 637. Similarly, although acknowledging that Gilmore presented the claim in his Rule 27.26 motion but did not include it on appeal from the denial thereof, the court concluded that the claim had been exhausted and was not subject to a state procedural default barring review because Gilmore no longer had an available state remedy, and should not be held to the Wainwright standard as a result of his attorney’s failure to advance the claim on appeal from the denial of the Rule 27.26 motion, or the trial court’s failure to prohibit the argument sua sponte. Using the same analysis, the court determined that Gilmore’s claim concerning the jury’s allegedly improper consideration of evidence of the impact of the crime upon the victim’s relatives was not procedurally barred. The court then concluded that this claim stated a basis for relief pursuant to the principles enunciated in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). 681 F.Supp. at 641. The court dismissed Gilmore’s remaining claims on the merits, and both parties appealed. For reversal, the State of Missouri argues that the district court erred in granting Gilmore’s petition because the claim concerning the prosecuting attorney’s closing argument is subject to a procedural default barring review and does not rise to the level of a constitutional violation. Similarly, the State contends that Gilmore’s claim concerning the allegedly improper admission of evidence is barred by Gilmore’s default, does not rise to the level of a constitutional violation, and in any event constitutes harmless error. In his cross-appeal, Gilmore argues that the district court erred in dismissing his claims that his sixth amendment rights were violated because he did not have counsel at arraignment; his fifth amendment rights were violated when he was forced to wear leg irons during the trial; the trial court’s dismissal of a prospective juror resulted in the violation of his sixth amendment rights; and that during the sentencing phase, the jury was improperly permitted to view his videotaped confession to two unrelated crimes. We consider each of these arguments in turn. II. A. Prosecuting Attorney’s Closing Argument in Punishment Phase. As indicated, the State first contends that the district court erred in granting Gilmore habeas corpus relief upon the basis of his claim concerning the prosecuting attorney’s closing argument because the claim is barred by a procedural default and does not rise to the level of a constitutional violation. A brief discussion of the procedural history of Gilmore’s claim must precede our consideration of the State’s contention that the claim suffers from a procedural default barring federal review. As noted by the district court, despite the applicability of Missouri’s contemporaneous objection rule, see State v. Hayes, 624 S.W.2d 16, 20 (Mo.1981), Gilmore’s trial attorney did not object to the prosecutor’s closing argument, nor did he raise the issue of the propriety of the closing argument on direct appeal. In his Rule 27.26 motion Gilmore did present the claims that the prosecutor’s closing argument was impermissible under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), and that his trial attorney rendered ineffective assistance in failing to lodge an objection. Neither of these claims, however, was advanced on appeal from the denial of the motion. Ordinarily, a federal court reviewing a state conviction in a 28 U.S.C. § 2254 proceeding may consider only those claims which the petitioner has presented to the state court in accordance with state procedural rules. See Engle v. Isaac, 456 U.S. 107, 125, 135, 102 S.Ct. 1558, 1570, 1575, 71 L.Ed.2d 783 (1982). This requirement implicates consideration of both the question whether the petitioner has exhausted all remedies available in the courts of the state at the time the federal habeas corpus petition is filed, see Humphrey v. Cady, 405 U.S. 504, 516, 92 S.Ct. 1048, 1055, 31 L.Ed.2d 394 (1972), and whether he has preserved his claims for federal habeas corpus review by complying with state procedural rules governing their presentation. Engle v. Isaac, 456 U.S. at 125, 126 n. 28, 102 S.Ct. at 1570, 1571 n. 28. In the instant case, the State does not contest the district court’s conclusion that Gilmore has exhausted available state remedies with respect to his claim concerning the propriety of the prosecutor’s closing argument. See Gilmore v. Armontrout, 681 F.Supp. at 637 (“Because [Gilmore] no longer has any remedy available to exhaust this claim, the requirement of exhaustion should not be applied inflexibly to bar this Court’s consideration of [the] claim.”). This court has previously observed that Missouri courts strictly construe the provision in Missouri Supreme Court Rule 27.26 that a successive motion to vacate a sentence shall not be entertained when the grounds presented therein could have been raised in the original Rule 27.26 motion. Lindner v. Wyrick, 644 F.2d 724, 726-27 (8th Cir.), cert. denied, 454 U.S. 872, 102 S.Ct. 345, 70 L.Ed.2d 178 (1981). Because Gilmore advanced his claim concerning the prosecuting attorney’s closing argument in his original Rule 27.26 motion, the record clearly indicates that the claim was available to him when the motion was filed. In these circumstances, we agree with the district court that the filing of a successive Rule 27.26 motion advancing this claim would be futile, and that Gilmore has exhausted state remedies with respect to this claim. Employing this same rationale, we also conclude that Gilmore has exhausted state remedies with regard to his claim that his trial attorney rendered ineffective assistance by failing to object to the prosecutor’s closing argument. Gilmore did not comply with Missouri procedural rules, however, when he failed to advance these claims on appeal from the denial of his Rule 27.26 motion. See Stokes v. Armontrout, 851 F.2d 1085, 1092 (8th Cir.1988) (Missouri petitioner’s failure to raise claim on appeal from the denial of his state post-conviction motion erected a procedural bar to federal habeas review); see also Benson v. State, 611 S.W.2d 538, 541 (Mo.Ct.App.1980) (Missouri procedure requires presentation of a claim “at each step of the judicial process” in order to avoid default). Hence, federal habeas review of these claims is precluded unless Gilmore can demonstrate cause for his default and actual prejudice resulting from the alleged constitutional violation. Wainwright v. Sykes, 433 U.S. at 84, 97 S.Ct. at 2505. The district court declined to undertake the cause and prejudice analysis in light of its determination that Wainwright was inapplicable. With due respect, we find the district court’s reasoning in this regard contrary to existing Supreme Court precedent. In particular, we note that in Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2650, 91 L.Ed.2d 397 (1986), the Court indicated that the cause and prejudice showing must be made in order to surmount a procedural default except “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent....” See also Engle v. Isaac, 456 U.S. at 135, 102 S.Ct. at 1576 (in appropriate cases, the requirement of a showing of cause and ¡prejudice “must yield to the imperative of correcting a fundamentally unjust incarceration”). To date, no extraordinary case of this nature has been found, 17A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4266.1 (1988), nor does Gilmore urge that this is such a case. In addition, in Engle v. Isaac, the Supreme Court explicitly declined to adopt a plain error inquiry in federal habeas review of state convictions, reasoning, “[w]e remain convinced that the burden of justifying federal habeas relief for state prisoners is ‘greater than the showing required to establish plain error on direct appeal.’ ” 456 U.S. at 134-35, 102 S.Ct. at 1575 (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977)). Finally, in Smith v. Murray, 477 U.S. 527, 538, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1986), the Court rejected any “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.” Turning now to a determination of whether Gilmore has met his burden of demonstrating cause and prejudice, we conclude after a careful review of the record that nothing therein purports to suggest a cause for Gilmore’s failure to present, on appeal from the denial of his Rule 27.26 motion, either of the claims at issue. Although Gilmore argues that the alleged ineffective assistance of the attorney representing him at trial and on direct appeal constitutes cause, we reiterate our earlier conclusion that Gilmore’s failure to advance the claims in question in his post-conviction appeal functions as an adequate and independent procedural default. Although our inquiry need continue no further, we note that Gilmore’s underlying claims are without merit. Gilmore’s reliance upon Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), in support of his assertion that the prosecutor’s remarks warrant habeas relief, is misplaced. Caldwell condemns state-induced comments that “mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision.” Darden v. Wainwright, 477 U.S. 168, 184 n. 15, 106 S.Ct. 2464, 2473 n. 15, 91 L.Ed.2d 144 (1986). The comments in the case at hand, supra n. 4, did not mislead the jury; rather, they accurately apprised it of the potential consequences of its sentencing alternatives. Moreover, the comments in no way tended to diminish the jury’s role in the sentencing determination; on the contrary, a fair reading of the prosecutor’s closing argument leads one to conclude that the remarks at issue underscored the importance of the jury’s decision. Furthermore, in California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), the Supreme Court held that a California law which required a trial judge to inform the jury that a sentence to life imprisonment without parole may be commuted to a sentence including the possibility of parole, when given in the penalty phase of a capital murder trial, did not violate the eighth and fourteenth amendments. Id. at 1013, 103 S.Ct. at 3459. In so holding, the Court expressly rejected the arguments that such an instruction invited an unacceptable level of speculation and unreliability, that the instruction deflected the jury from its task of basing its sentencing decision upon the specific facts of the case, and that the instruction misled the jury by failing to inform it that a sentence of death may also be commuted. Id. at 1001-1012, 103 S.Ct. at 3453-3459. Although we recognize that Ramos concerned the constitutionality of a state statute, and we are aware of the Supreme Court’s statement in Ramos that states remain free to prohibit a capital sentencing jury from considering the governor’s power to commute, id. at 1013, 103 S.Ct. at 3459, we believe the Court’s conclusion that the commutation instruction did not violate the federal Constitution is apropos and instructive in this federal habeas corpus proceeding. Finally, an important component of the Court’s decision in Caldwell was the fact that the trial judge “not only failed to correct the prosecutor’s remarks, but in fact openly agreed with them; he stated to the jury that the remarks were proper and necessary, strongly implying that the prosecutor’s portrayal of the jury’s role was correct.” Caldwell, 472 U.S. at 339, 105 S.Ct. at 2644. By contrast here, the trial court submitted an instruction informing the jury that the arguments of counsel are not evidence, thus reducing any likelihood that the jury was substantially influenced by counsel’s comments. While we make no comment as to whether the submission of such an instruction would have been sufficiently curative if a Caldwell violation had in fact occurred, we believe the instruction underscores our conclusion that no impropriety was committed in the matter sub judice. In light of the foregoing, it is clear that Gilmore’s ineffective assistance claim lacks merit. Gilmore has not established either that his trial attorney’s failure to object or to raise the issue on direct appeal “fell below an objective standard of reasonableness,” nor has he demonstrated a reasonable probability that but for counsel’s alleged error “the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984). B. Victim-impact Evidence. The State next challenges the district court’s conclusion that the admission of victim-impact evidence violated Gilmore’s eighth amendment rights as established by the Supreme Court’s decision in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). As a preliminary matter, the State contends that (1) Gilmore has waived his Booth claim by failing to address, in his traverse, the State’s argument that the claim is proeedurally barred; and (2)Gilmore committed certain state procedural defaults which erect an adequate and independent bar to consideration of the Booth claim. The State correctly observes that pursuant to 28 U.S.C. § 2248, “[t]he allegations... of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true.” Gilmore did not respond to the State’s procedural default argument in his traverse, nor did he allege in his habeas petition that his Booth claim was not proeedurally barred. Nevertheless, because it is apparent that the State’s waiver argument was not presented to, nor considered by, the district court, we believe it improvident to conclude that the State’s contentions must be accepted as true. Moreover, a review of the record discloses that Gilmore may not have defaulted with respect to all of the transcript references cited in support of his Booth claim. Gilmore objected to the questions propounded at page 357 of the transcript on the grounds of relevancy and prejudice, and requested that the questions be stricken or that a mistrial be declared. Furthermore, Gilmore advanced a claim on direct appeal challenging these questions. Thus, we are reluctant to say that default has occurred. Gilmore did, however, clearly default with respect to the testimony on pages 354 and 361 of the transcript. He did not object to the testimony on either of these pages on the grounds of relevancy or prejudice; rather, the stated bases for his objections were merely that the witness’s answers were nonresponsive. Missouri law requires that during trial the complaining party make a specific objection upon the grounds advanced on appeal. See Lawson v. Cooper, 475 S.W.2d 442, 447 (Mo.Ct.App.1972). Furthermore, on direct appeal, Gilmore did not raise a claim challenging the testimony on page 354 of the transcript, nor did he request additional relief after his objections to the testimony on both pages were sustained. Under Missouri procedure, “where, as here, a litigant objects to a trial event, invokes specific relief and is granted the full request, he cannot complain that the trial court did not do more.” State v. Johnson, 663 S.W.2d 265, 266 (Mo. Ct.App.1983). In summary, then, we will review the merits of Gilmore’s claim challenging the questions propounded on page 357 of the transcript. Since Gilmore clearly has not demonstrated cause for his procedural default with respect to the other transcript references, nor has he shown prejudice as defined under Wainwright, our consideration of these items is proeedurally barred. On the merits, we conclude that a considerable extension of Booth would be required to render the challenged transcript references to be considered in the case at hand violative of the Booth decision. In Booth, the Supreme Court invalidated a Maryland statute which required a capital sentencer to consider information contained in a victim-impact statement (VIS) prepared by the Maryland State Director of Parole and Probation. The VIS in Booth described the personal characteristics of the victims, an elderly couple; contained a detailed recitation of the emotional impact of the crime upon the victims’ family members; and set forth the family members’ opinions as to the crime and the characteristics of the defendants. The Supreme Court held that such information is irrelevant to the capital sentencing decision and creates a constitutionally impermissible risk that the jury may impose a sentence of death in an arbitrary and capricious manner. Booth, 107 S.Ct. at 2533. The transcript references in the present case are not of the same nature as the evidence condemned in Booth. Here, the prosecutor asked Audrey Watters how Mary Luella Watters occupied herself and what her spirits were like. Both questions were objected to before the witness’s answers. One need only peruse the VIS appended to the Booth decision to appreciate the qualitative difference of the evidence presented in that case and its indelible impact upon a jury. The same risk of inflaming the jury and diverting it from its responsibility of making a sentencing determination based upon the individual characteristics of the defendant and the particular circumstances of the crime did not exist in the present case. Accordingly, we conclude that the district court erred in holding that Gilmore is entitled to habeas corpus relief upon the basis of his Booth claim. C. Failure to Provide Counsel at Arraignment. Cross-appealing, Gilmore first argues that the district court erred in rejecting his claim that the failure to provide counsel at arraignment renders his conviction violative of the sixth amendment. Gilmore alleges that without the presence or advice of counsel, he entered a plea of not guilty at his August 11, 1981 arraignment. It is undisputed that Gilmore had not waived the presence of counsel. Counsel was not appointed until fifteen days later. In March of 1982, when Gilmore’s appointed attorney attempted to assert a defense of mental disease or defect pursuant to Mo.Rev.Stat. § 552.030, the State objected on the ground that the defense was barred by the ten-day limitation provided in Mo.Rev.Stat. § 552.030(2). The trial court disallowed formal assertion of the defense. Gilmore contends that the absence of counsel at arraignment and his subsequent inability to assert a Chapter 552 defense resulted in a violation of his sixth amendment rights. The sixth amendment right to counsel applies to those “critical stages” of a criminal prosecution “where the results might well settle the accused’s fate and reduce the trial itself to a mere formality.” United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149 (1967). Hence, the sixth amendment has been held applicable to certain pretrial proceedings including interrogation activities conducted “at or after the initiation of adversary criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information or arraignment,” Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972), and to that type of arraignment or preliminary hearing itself at which rights of the accused may be lost or sacrificed. Hamilton v. Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 158, 7 L.Ed.2d 114 (1961); see also Coleman v. Alabama, 399 U.S. 1, 9, 90 S.Ct. 1999, 2003, 26 L.Ed. 2d 387 (1970). Significantly, “[t]he question whether arraignment signals the initiation of adversary proceedings... is distinct from whether the arraignment itself is a critical stage requiring the presence of coun-sel_” Michigan v. Jackson, 475 U.S. 625, 630 n. 3, 106 S.Ct. 1404, 1407 n. 3, 89 L.Ed.2d 631 (1986). The test for determining whether a particular proceeding is itself a critical stage is “whether the presence of... counsel is necessary to preserve the defendant’s basic right to a fair trial....” United States v. Wade, 388 U.S. at 227, 87 S.Ct. at 1932. In undertaking this inquiry, a reviewing court must “analyze whether potential substantial prejudice to [the] defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.” Coleman v. Alabama, 399 U.S. at 7, 90 S.Ct. at 2002; United States v. Wade, 388 U.S. at 227, 87 S.Ct. at 1932. Resolution of this question turns principally upon the State’s treatment of the defendant’s actions at the proceeding in issue. See Hamilton v. Alabama, 368 U.S. at 53, 54 & n. 4, 82 S.Ct. at 158 & n. 4. Thus, a defendant has been held entitled to counsel at an arraignment where, under state law, defenses not then raised are considered abandoned, id. at 53, 82 S.Ct. at 156, but not at an arraignment proceeding governed by a state law which provided that any uncounselled plea or waiver of rights was subject to withdrawal after the appointment of counsel. Vitoratos v. Maxwell, 351 F.2d 217, 221 (6th Cir.1965), cert. denied, 383 U.S. 105, 86 S.Ct. 718, 15 L.Ed.2d 618 (1966). Applying these principles, this court held in McClain v. Swenson, 435 F.2d 327, 330 (8th Cir.1970), that in Missouri, the absence of counsel at arraignment is not per se a violation of the sixth amendment unless there is a showing that “by reason of the absence of counsel the appellant lost [a] right or privilege or the [S]tate gained some advantage.” See also Collins v. Swenson, 443 F.2d 329, 332 (8th Cir.1971) (“under Missouri law the arraignment proceeding is not a critical phase of the state criminal procedure when no prejudice arises from it”); Parks v. State, 518 S.W. 2d 181, 184 (Mo.Ct.App.1974) (same). Our review of the record in the case at hand persuades us that Gilmore did not lose any right or privilege, nor did the State gain any advantage, as a result of the fact that Gilmore was not represented by counsel at his arraignment. Gilmore’s failure to raise a Chapter 552 defense within the ten-day period set forth in Mo.Rev. Stat. § 552.030(2) did not foreclose assertion of the defense, but required only that Gilmore demonstrate good cause for his untimeliness. Moreover, unlike the arraignment procedure in Hamilton v. Alabama, under the Missouri scheme, a trial court’s refusal to accept an untimely request to raise the defense is reviewable. Thus, available defenses are not “irretrievably lost” if not raised at a Missouri arraignment. Cf. Hamilton, 368 U.S. at 54, 82 S.Ct. at 158. Finally, the Missouri Court of Appeals’ decision in Parks v. State, 518 S.W.2d at 184, indicates that where there is no evidence of a mental disease or defect, no prejudice can be demonstrated as the result of the absence of counsel at arraignment and the subsequent inability to assert a Chapter 552 defense. In Gilmore’s direct appeal, the Missouri Supreme Court not only found that no good cause had been shown for Gilmore’s failure to timely assert a Chapter 552 defense, but additionally stated that the trial court “with the evidence of [Gilmore’s] mental condition before it... did not abuse its discretion in disallowing formal assertion of such defense.” State v. Gilmore, 661 S.W.2d at 524. Gilmore has never challenged this conclusion, nor has he set forth any evidence in opposition to the Missouri Supreme Court’s finding that the state trial court considered evidence of his mental condition before denying his request to formally assert a Chapter 552 defense. See id. In these circumstances, we conclude that the absence of counsel at Gilmore’s arraignment did not violate his sixth amendment rights, and we affirm the district court’s dismissal of this claim. D. Leg Irons. Gilmore next contends that the district court erred in rejecting his claim that his fifth amendment rights were violated when he was forced to wear leg irons at trial. Both the district court and the Missouri Supreme Court dismissed Gilmore’s claim on the dual grounds that (1) the trial court did not abuse its discretion in restraining Gilmore for security purposes; and (2) the jurors were unable to observe the restraints. Gilmore v. Armontrout, 681 F.Supp. at 636; State v. Gilmore, 661 S.W.2d at 525. We agree that in these circumstances, the presumption of innocence afforded to Gilmore, as a criminal defendant, was not abridged, and that no constitutional violation occurred. The Supreme Court has characterized the use of shackles as “inherently prejudicial,” Holbrook v. Flynn, 475 U.S. 560, 568, 106 S.Ct. 1340, 1345, 89 L.Ed.2d 525 (1986), noting both that “the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant,” and that “the use of [shackles] is itself something of an affront to the very dignity and decorum of judicial proceedings.” Id. (quoting Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970)). See also People v. Roman, 35 N.Y.2d 978, 979, 324 N.E.2d 885, 886, 365 N.Y.S.2d 527, 528 (1975) (per curiam) (“A defendant is presumed innocent and he is entitled to appear in court with the dignity and the self-respect of a free and innocent man.”). Consequently, shackling is subject to close judicial scrutiny in order to ascertain whether it was necessary for the furtherance of an essential state interest. See Holbrook v. Flynn, 475 U.S. at 568, 106 S.Ct. at 1345. In ordering Gilmore to wear leg irons, the trial court expressly found that Gilmore presented a security threat because he had been charged with several other capital murders and, in one instance, had been tried and convicted. Clearly, the safety of a state’s courtrooms is an essential state interest justifying the use of restraints. See id. Furthermore, federal courts have repeatedly recognized that a trial court’s decision concerning courtroom security is accorded broad discretion and will not be reversed absent a showing of abuse. See, e.g., Wilson v. McCarthy, 770 F.2d 1482, 1484 (9th Cir.1985); Harrell v. Israel, 672 F.2d 632, 636 (7th Cir.1982); Payne v. Smith, 667 F.2d 541, 544 (6th Cir.1981), cert. denied, 456 U.S. 932, 102 S.Ct. 1983, 72 L.Ed.2d 449 (1982). There is no evidence that the trial court abused its discretion in the present case. Of equal importance, we reiterate the findings of both the district court and the Missouri Supreme Court that Gilmore’s legs were under the counsel table and that the jury at no time was able to observe the restraints. In this connection, the record further reflects that the trial court ordered that Gilmore not be moved in the presence of the jury. Relatedly, the record discloses that the court recessed prior to Gilmore’s testimony, permitting Gilmore to approach the witness stand outside the presence of the jury. In these circumstances, we have little difficulty concluding that the jury did not observe anything “so prejudicial as to pose an unacceptable threat to [Gilmore’s] right to a fair trial.” Holbrook v. Flynn, 475 U.S. at 572, 106 S.Ct. at 1347. Furthermore, we note that Gilmore never objected to the use of restraints. See Estelle v. Williams, 425 U.S. 501, 512-18, 96 S.Ct. 1691, 1696-97, 48 L.Ed.2d 126 (1976) (failure to object to being tried in prison attire is sufficient to negate a constitutional violation). Accordingly, we conclude that the district court committed no error in rejecting this claim. E. Dismissal of Prospective Juror. Next, Gilmore argues that the district court erred in dismissing his claim that the trial court’s sua sponte dismissal of a prospective juror deprived him of his sixth amendment right to a jury chosen from a cross-section of the population. The basic facts underlying this claim are undisputed. Prior to the trial, the presiding judge excused Robert Knoll, an individual scheduled as a venireman, because Knoll, a former police officer, indicated that he wanted to bring a gun to the trial. Thereafter, Gilmore moved for a mistrial On the ground that the prospective panel included fifty-eight rather than sixty persons. Gilmore challenged the sua sponte excusal of Knoll, and a hearing was held. At that proceeding, the county sheriff and an associate circuit judge testified to the effect that Knoll had stated that he was frightened, that in their opinion Knoll was biased against the defense, and that they feared Knoll would poison the jury by discussing his personal knowledge of the case. The trial court concluded that Knoll had been excused for a reasonable purpose, and denied Gilmore’s mistrial motion. On direct appeal, the Missouri Supreme Court held that the trial court did not abuse its discretion in excusing Knoll, noting in particular that Gilmore had not demonstrated that he was prejudiced or his interests adversely affected by the trial court’s action. State v. Gilmore, 661 S.W. 2d at 523. The district court agreed, see Gilmore v. Armontrout, 681 F.Supp. at 639-40, as do we. In Missouri, a “trial court has the authority to strike prospective jurors on its own motion.” State v. Marshall, 571 S.W.2d 768, 772 (Mo.Ct.App.1978). Although the trial court’s reason for excusing Knoll is not listed among the statutory justifications for excuse, see Mo.Rev.Stat. § 494.031, it is well settled in Missouri that “the statute is merely discretionary and [a defendant] must show that he has been prejudiced or that his interests have been adversely affected by failure to strictly observe these statutory provisions in alleging error on the part of the [trial] judge.” 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_const1	114	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. JONES v. COMMONWEALTH OF KENTUCKY. No. 7978. Circuit Court of Appeals, Sixth Circuit. June 8, 1938. Perry B. Miller, of Louisville, Ky. (Perry B. Miller, of Louisville, Ky., and Arthur Rhorer, of Middlesboro, Ky., .on the brief), for appellant. A. E. Funk, of Frankfort, Ky. (Hubert Meredith, of Greenville, Ky., and A. E. Fu'nk, of Frankfort, Ky., on the brief), for appellee. Before HICKS, SIMONS, and ALLEN, Circuit Judges. SIMONS, Circuit Judge. The appellant was convicted of murder and sentenced to death by a Kentucky court. Having exhausted local remedies by way of petition for new trial, appeal, petitions for writ of habeas corpus and for writ of coram nobis, he challenged the manner of conviction as impairment of his right to due process under the Constitution of the United States (Amendment 14) by petition for writ of habeas corpus in the United States District Court. The Attorney General of Kentucky, after “giving the matter more than ordinary consideration,” is “strongly inclined to the view that Tom Jones was convicted on perjured testimony.” The Court of Appeals of Kentucky, suppressing “sympathy for him, because of his unfortunate predicament,” relegated him to his last and final remedy of an appeal for clemency, although we are told, without contradiction, that it is public information that the Governor of the Commonwealth conceives himself bound by a pledge not to exercise the pardoning power. The United States District Judge, now a judge of this court, seemingly convinced that appellant’s constitutional rights were impaired and that his conviction was procured by perjured testimony, questioned the power and propriety of a single district judge to reverse the decision of the highest court of the state, and with commendable restraint, contented himself with the issuance of a certificate of probable cause to permit decision by a court clothed with greater authority. And so, unless there is power here to relieve the appellant from a result the injustice of which is so strongly suggested, and impairment of constitutional rights is so clear as to call for its exercise, the man must die. The appellant was indicted November 4th on the charge of murder for the killing of his wife with a pistol on October 30th. On Friday, November 8th, he was arraigned, pleaded not guilty, counsel was appointed for him, and trial was set for Tuesday, November 12th. Though the case was not reached until Thursday, November 14th, counsel was obliged to remain in court subject to call.' Excluding Sunday, November 10th, three days were thus left for the preparation of the defense. Motion for a ten-day continuance, supported by affidavits, was denied. No one had seen the shooting. The principal witnesses for the commonwealth were a six year old girl, who testified as to a threat of killing by the appellant, and a woman of ill repute, who testified to the slain woman’s dying declaration. The defense was that the pistol was discharged in a scuffle for its possession when the wife threatened her own life. Newly discovered evidence offered to the state courts, in support of the several petitions thereto addressed, casts grave doubt upon the competency and freedom from duress of one and upon the veracity of both of the prosecution’s principal witnesses. The court below, and the Attorney General of Kentucky, who cross-examined the witnesses on the first habeas corpus petition, were obviously impressed by the new evidence. The statement of the latter to the Court of Appeals of Kentucky is printed at length in the margin. Thrice in this court does he repeat his doubt of the justice of the judgment. The Kentucky court did not directly pass upon the newly discovered evidence, basing its denial of the writs of habeas corpus and coram nobis on jurisdictional grounds. Jones v. Commonwealth, 267 Ky. 465, 102 S.W.2d 345; Id., 269 Ky. 772, 108 S.W.2d 812; Id., 269 Ky. 779, 108 S.W.2d 816. It is clear from the record below that none of the new evidence was known to the appellant or his counsel at the time of the trial, and it is likewise clear that much of it would have been discovered had a reasonable continuance been granted for the purpose of preparing a defense and had the trial been held in the division of the judicial district where the crime was alleged to have been committed and where the appellant lived. The writ of habeas corpus in the present case was presented to the court below in pursuance of section 453, T. 28, U.S.C., 28 U.S.C.A. § 453, and the appeal from its denial is entertained under section 466 of the same title, 28 U.S.C.A. § 466. We are not insensible to the extraordinary nature of the writ and the caution that must be exercised in granting it where, as here, the petitioner has been denied relief by the courts of the state. Frank v. Mangum, 237 U.S. 309, 326, 35 S.Ct. 582, 59 L.Ed. 969; Ashe v. United States, 270 U.S. 424, 425, 46 S.Ct. 333, 334, 70 L.Ed. 662; Bard v. Chilton, 6 Cir, 20 F.2d 906. It is not a substitute for appeal, Knewel v. Eagan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036, and errors of law upon the trial are not through it subject to review. Frank v. Mangum, supra. But the complaint here is not the commission of mere error, “but of a wrong so fundamental that it [must make] the whole proceeding a mere pretense of a trial and [render] the conviction and sentence wholly void.” Brown v. Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 465, 80 L.Ed. 682; Moore v. Dempsey, 261 U.S. 86, 91, 43 S.Ct. 265, 67 L.Ed. 543. It is true that the trial court recognized its duty to assign counsel as a necessary requisite of due process of law. But “that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.” Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158, 84 A.L.R. 527 (the first Scotts-boro case). It is likewise true that three days were available to counsel within which to make an investigation and to prepare for defense. But when we take into consideration that this was a capital case, that the defendant was in jail and unable to himself give assistance, that the trial was to be held at a distance from the place where the crime was committed, and that counsel brought to the attention of the court by motion and supporting affidavits his inability to properly prepare for trial within the time, we think it must be concluded that the constitutional right of the defendant to be heard by counsel as a necessary requisite of due process of law had not been preserved to him. It is, of course, perfectly true, as noted in Powell v. Alabama, supra, that great and inexcusable delay in the enforcement of the criminal law has been a serious evil of the times and has brought the administration of the criminal laws into disrepute. But we progress little if freeing the administration of justice from one evil we permit it to become enmeshed in a second, and in our effort to achieve promptness go forward with such haste as to close the door upon the “calm spirit of regulated justice.” Nor are constitutional safe-guards maintained or respect for the judicial process promoted by convictions secured on perjured testimony. If the new evidence offered in the present case is to be given any credence, and credible it appeared to the chief law officer of Kentucky, who had opportunity to cross-examine the witnesses, and to the United States District -Judge, there' is reason to believe that the conviction here assailed was so secured. This is not in criticism of the Attorney General, for its infirmity was not disclosed to him until after the conviction, though it might well have been discovered had reasonable opportunty for investigation been accorded the defendant and his counsel. The concept of due process as it has become crystallized in the public mind and by judicial pronouncement, is formulated in Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341, 342, 79 L.Ed. 791, 98 A.L.R. 406. Its requirement in safe-guarding the liberty of the citizen against deprivation through the action of the state embodies those “fundamental conceptions of justice which lie at the base of our civil and political institutions,” referred to in Hebert v. Louisiana, 272 U.S. 312, 316, 317, 47 S.Ct. 103, 71 L.Ed. 270, 48 A.L.R. 1102. This requirement cannot be satisfied “By mere notice and hearing^ if a state has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a state to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.” If it be urged that the concept thus formulated but condemns convictions obtained by the state through testimony known by the prosecuting officers to have been perjured, then the answer must be that the delineated requirement of due process in the Mooney 'Case embraces no more than the facts of that case require, and that “the fundamental conceptions of justice which lie at the base of our civil and political institutions” must with equal abhorrence condemn as a travesty a conviction upon perjured testimony if .later, but fortunately not too late, its falseness is discovered, and that the state in the one case as in the other is required to afford a corrective judicial process to remedy the alleged wrong, if constitutional rights are not to be impaired. „ The judicial processes of the state have here been vainly invoked. The court below stayed its hand until they had been given full opportunity to function. Even then it was thought wiser to have the clearly indicated relief sanctioned by a three judge reviewing court than to have responsibility for setting aside a state court judgment assumed by a single judge of an inferior Federal court. Considerations of delicacy and propriety need no longer deter amelioration. The appellant is not to be sacrificed upon the altar of a formal legalism too literally applied when those who from the beginning sought his life in effect confess error, when impairment of constitutional right may be perceived, and the door to clemency is closed. The order dismissing the writ is set aside, and the cause is remanded to the District Court with instructions to discharge the appellant from custody, without prejudice to the right of the commonwealth to take such other proceedings according to law as are consistent herewith. Reversed. “Hyperteehnical reasons for overruling the petition for rehearing in the instant case might be found and urged with considerable plausibility were we disposed to restrict our inquiry to the narrow bounds of purely technical considerations. With all the difficulty we have experienced in this case, and realizing that a human life is involved, we do not feel disposed to ask for a strict application of narrow and technical rules, but request rather that the ease be considered from the broad standpoint of right and justice. We have been constrained to take this position primarily upon the doubt that we entertain concerning Tom Jones’ guilt which has arisen upon a careful consideration of newly discovered evidence. If this newly discovered evidence is to be believed, then Tom Jones was convicted by perjured testimony. There is no logic or rule of law known to us whereby the infliction of the death penalty, or in fact any other punishment, upon perjured testimony can be justified. It will be remembered that one of the two witnesses whom it is claimed gave manufactured, or perjured, testimony was an infant who contradicted herself in her version of the affair and whom the newly discovered evidence convicted to perjury. “The other was a woman of ill repute and who was not present and did not know of any of the things she testified to, according to the newly discovered evidence. We have found nothing in the record that indicates that the persons who made the affidavits and gave the newly discovered evidence were biased or interested or telling an untruth. They at least stand as fair as the two witnesses whom they contradicted and convict of giving perjured testimony at the trial. Their testimony was' sufficient to convince Judge Hamilton that Tom Jones had been convicted on perjured testimony. Having the knowledge of the record, and the high regard for Judge Hamilton that we have, we are strongly inclined to the view that Tom Jones was convicted on perjured testimony. We may be in error, but this is our feeling after giving the matter more than ordinary consideration; and, feeling this way, we cannot ask the court to let the judgment of conviction stand or to allow the judgment to be carried into execution.” Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:
songer_usc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. Yanci DUPREE, Appellant, v. Burtell JEFFERSON, et al. No. 79-1847. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 4, 1980. Decided Oct. 6, 1981. Dennis Hart, Washington, D. C., with whom Kenneth Michael Robinson, Washington, D. C., was on the brief, for appellant. Richard B. Nettler, Asst. Corp. Counsel, Washington, D. C., with whom Judith W. Rogers, Corp. Counsel, and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., were on the brief, for appellees. Before ROBINSON, Chief Judge, WALD, Circuit Judge, and JUNE L. GREEN, District Judge. Of the United States District Court for the District of Columbia, sitting by designation pursuant to 28 U.S.C. § 292(a) (1976). Opinion for the Court filed by Chief Judge ROBINSON. SPOTTSWOOD W. ROBINSON, III, Chief Judge: This is an appeal from an order of the District Court dismissing appellant’s action against the District of Columbia, its Chief of Police, and numerous named police officers as barred by the statute of limitations. The issue presented is whether, under District of Columbia law, the statute is tolled during pendency of a suit ultimately dismissed involuntarily without prejudice — a question not yet resolved by the District of Columbia courts. Concluding that those courts would hold that the running of the statute is not arrested, we affirm the order of dismissal. I Appellant’s controversy with the District’s Metropolitan Police Department has been before the courts, in one form or another, for eight years. On August 10, 1973, appellant filed Civil Action No. 1602-73 in the District Court against the Chief of Police, several police officers, and the District of Columbia, alleging that she had been deprived of constitutional rights and had suffered physical injury, pain, mental anguish, and loss of freedom as a result of numerous encounters with police officers during 1972 and 1973. Specifically, the complaint averred that on August 30, 1972, appellant was arrested twice for “incommoding the sidewalk,” and on the second of these occasions was physically and verbally abused. The complaint further charged that subsequent to the August 30 incident, she was followed without reason and stopped or arrested, the last time on July 28, 1973. In her prayer for relief, appellant sought to have two statutes declared unconstitutional, both facially and as applied. She also demanded injunctive relief, and compensatory and punitive damages. On June 6, 1975, appellant moved to dismiss the claims for injunctive and declaratory relief on terms the parties had previously stipulated. The District Court, in an order dated June 30, 1975, granted that motion and further ordered that, for the monetary consideration agreed to by the parties, appellant’s damage claims be dismissed with prejudice. Shortly thereafter, on July 10, appellant moved to vacate the dismissal order, stating that the motion requesting it had been filed without her knowledge or assent. The record does not reflect a ruling on this motion. However, on October 31, 1975, appellees moved to enforce a settlement agreement allegedly entered into with appellant on March 17. Appellees stated that appellant had repudiated their earlier monetary settlement and had refused to execute releases. The District Court, on February 27, 1976, granted this motion as to injunctive and declaratory relief, and denied it as to damages. Appellant filed a notice of appeal but apparently abandoned it. More than a year later, on September 8, 1977, appellant filed what was termed a “supplemental complaint.” In addition to the allegations set forth in the 1973 complaint, the supplemental complaint charged that, as part of a continuing course of misconduct by the Police Department, appellant had been stopped, harassed, and physically and verbally abused on December 10, 1975. On September 26, 1978, the District Court sua sponte dismissed this complaint without prejudice for failure to prosecute. Appellant’s subsequent motions for reconsideration of that dismissal were denied by the court. Undaunted, the appellant filed a new suit, Civil Action No. 79-1917, on March 29, 1979. Following the District Court’s order for briefing on the question whether further pursuit of the cause of action was foreclosed by the statute of limitations, on May 29, 1979, the court dismissed the action as so barred. It is an appeal from this dismissal that is now before us. Appellant argues that, under District of Columbia law, statutes of limitation are suspended during pendency of an action subsequently involuntarily dismissed, and that the District Court therefore erred in not excluding from its computation of the limitation period the time during which the first lawsuit remained on the court’s docket. We believe appellant has misapprehended the substantive District of Columbia law on this point, and accordingly we affirm the order under review. II* The question, then, is whether appellant’s initial action, which as to damages ultimately was involuntarily dismissed without prejudice, tolled the running of the statute of limitations while it remained pending. The parties say unanimously that District of Columbia law controls, and we approach the problem on that basis. The issue presented, however, has not yet been resolved by the District of Columbia courts; indeed, decision thereon has specifically been reserved by the District of Columbia Court of Appeals. Our task is thus to decide the question as we believe those courts would. As enunciated by the Supreme Court, the general rule on the subject is that “if a plaintiff mistakes his remedy, in the absence of any statutory provisions saving his rights, or where from any cause . . . the action abates or is dismissed, and, during the pendency of the action, the limitation runs, the remedy is barred.” So pervasive is this principle that the District of Columbia courts presumably would adopt it; that would dictate that there be no tolling in the instant situation. Appellant urges, however, that the rule is discretionary, and therefore need not govern the question of tolling when dismissal of the earlier action was involuntary. As we have noted, the courts of the District of Columbia have not yet ruled definitively on this issue. The District of Columbia Court of Appeals, however, has considered the question of tolling in a slightly different context. In York & York Construction Co. v. Alexander, that court held that the pendency of an action voluntarily dismissed without prejudice does not interrupt the running of the statute of limitations. In so concluding, the York Court cited both the Supreme Court opinion quoted above and several opinions from federal courts of appeals. Because the court relied upon these cases without further discussion, it is to them that we must now look for guidance in resolving the question presented on this appeal. Each of those cases held, as did the York Court, that a statute of limitations is not tolled during pendency of an action voluntarily dismissed without prejudice. Without exception, the decisions cited by York reasoned that a dismissal without prejudice does not operate as an adjudication upon the merits, and thus leaves the situation the same as if suit had never been brought. In effect, therefore, there was nothing to suspend the operation of the limitation period. Thus, as the Sixth Circuit has aptly declared, “[i]n the absence of a statute to the contrary a party cannot deduct from the period of the statute of limitations the time during which the action ... dismissed [without prejudice] was pending.” The District Court for the Middle District of Pennsylvania, adopting this reasoning, held in DiSabatino v. Mertz that the Pennsylvania statute of limitations for personal injury actions was not tolled during pendency of an earlier action involuntarily dismissed for lack of venue. The DiSabatino court emphasized, not that the dismissal was involuntary, but rather that it was without prejudice, and therefore did not operate as an adjudication upon the merits. We think the court identified the crucial consideration, and that the pivotal question is whether the dismissal was with or without prejudice, not whether it was voluntary or involuntary. We conclude, then, that the rule against tolling set forth by the District of Columbia Court of Appeals in York applies with equal force to nonprejudicial dismissals, be they voluntary or involuntary. We therefore hold, as we believe the District of Columbia courts would hold, that under District of Columbia law the pendency of an action involuntarily dismissed without prejudice does not operate to toll the running of the statute of limitations. In the case at bar, whatever the limitation period applicable, it was not arrested during pendency of appellant’s first action which was involuntarily dismissed without prejudice for want of prosecution. Because the complaint in the instant case was not filed until March 29, 1979, more than three years — the outermost limit — after the last wrongful act alleged, the action was barred by the statute, and the order of the District Court dismissing it is accordingly Affirmed. . Complaint, Dupree v. Wilson, Civ. No. 1602-73 (D.D.C.) (filed Aug. 10, 1973). The District Court record in Civil Action No. 1602-73 will hereinafter be cited as 73-R. In addition to Jerry C. Wilson, the former Chief of the Metropolitan Police Department, the complaint named as defendants a dozen members of the Department: Burtell Jefferson, Donald Randall, John Sherman, John Nichols, R. R. Ramey, S. R. Cooley, R. W. Hudson, J. C. White, Frank Martin, Winston Robinson, Harvey Lee, and Howard Dublin. The record in Civil Action No. 1602-73 is not part of the record on appeal in this case, but we refer to it pursuant to our authority to judicially notice related proceedings in other courts. See Gomez v. Wilson, 155 U.S.App.D.C. 242, 247 n.28, 477 F.2d 411, 416 n.28 (1973); Stradley v. Cortez, 518 F.2d 488, 494 n.8 (3d Cir. 1975); United States v. Verlinsky, 459 F.2d 1085, 1089 (5th Cir. 1972). . Complaint, 73-R., % 8; see D.C.Code § 22-1107 (1973). . Complaint, 73-R., UK 9-14. . Id. UK 15-19. . D.C.Code §§ 22-1107, 22-1121(2) (1973). . Complaint, 73-R., j\|K 26, 27. . Id. K 28. Appellant requested a permanent injunction prohibiting appellees from interfering with her rights, and an order requiring Chief of Police Wilson to submit a proposed directive to the Police Department implementing the court-ordered relief. . Id. 1HI 30-32. . Motion of Plaintiff to Dismiss Claims for Injunctive and Declaratory Relief, 73-R. (filed June 6, 1975). . Order, 73-R. (filed June 30, 1975). This order called upon the Police Department to implement a- program of instruction, supervision and evaluation relative to enforcement of §§ 22-1107 and 22-1121(2) of the District of Columbia Code. Id. . Motion of Plaintiff to Vacate Order of June 30, 1975, 73-R. (filed July 10, 1975). This motion also stated that the attorney who had filed the June 6 motion had been previously informed that appellant had obtained other counsel. Id. . Motion of Defendants to Enforce the Settlement Agreement, 73-R. (filed Oct. 31, 1975). . Id. . Order, 73-R. (filed Feb. 27, 1976). . Notice of Appeal by Plaintiff From Order of February 27, 1976, 73-R. (filed Mar. 26, 1976). . Supplemental Complaint (Supp. Complaint), 73-R. (filed Sept. 8, 1977). This complaint was filed with the District Court’s leave pursuant to Fed.R.Civ.P. 15(d). Order, 73-R. (filed Oct. 5, 1977). The complaint added the following individual members of the Metropolitan Police Department as defendants: Maurice C. Cullinane, Thomas N. Chamberlain, Vernon N. Jones, Norman A. Walker, Donald R. Exium and Jerome M. Fremeau. . Supp. Complaint, 73-R., Iffl 21-22. . Order, 73-R. (filed Sept. 26, 1978). . See Motion and Memorandum of Law by Plaintiff in Support of Motion for Reconsideration of Order Dismissing Case, 73-R. (filed Oct. 3, 1978); Order, 73-R. (filed Oct. 18, 1978); Motion of Plaintiff for Reconsideration of Order Dismissing Case or in the Alternative for Hearing Before the Court on Matter, 73-R. (filed Jan. 30, 1979); Order, 73-R. (filed Feb. 13, 1979). . Complaint, Dupree v. Jefferson, Civ. No. 79-1847 (D.D.C.), Doc. No. 1 (filed Mar. 29, 1979). The District Court record in Civil Action No. 79-1847, the instant case, will hereinafter be cited as 79-R. At the time the complaint therein was filed, Burtell Jefferson had replaced Jerry C. Wilson as Chief of the Metropolitan Police Department. With this minor exception in the parties named, the 1979 complaint was identical to the supplemental complaint filed in 1977. Compare id. with Supp. Complaint, 73-R. . Order, 79-R., Doc. 4 (filed May 1, 1979). . Order, 79-R., Doc. No. 7 (filed May 29, 1979). This, order did not cite a specific statutory limitation period. . Brief for Appellant at 5. . See Brief for Appellee at 2. Appellant stated at oral argument that the statute-of-limitations question is covered by local “jurisdictional” caselaw. A rationale for application of the local statute to this constitutional cause of action was not advanced by the parties, either in briefs or at oral argument. For this reason, we decline to address the question ourselves. Rather we take the case as we find it, and proceed for purposes of this appeal on the parties’ common premise that District of Columbia law does control. See Trailmobile Co. v. Whirls, 331 U.S. 40, 48, 50, 67 S.Ct. 982, 986, 987, 91 L.Ed. 1328, 1335, 1336 (1947); United States v. White, 454 F.2d 435, 439 (7th Cir. 1971), cert. denied, 406 U.S. 962, 92 S.Ct. 2070, 32 L.Ed.2d 350 (1972); Pedicord v. Swenson, 431 F.2d 92, 93 (8th Cir. 1970); Hernandez v. City of Los Angeles, 624 F.2d 935, 937 n.2 (9th Cir. 1980); cf. Miller v. Aviron, 127 U.S.App.D.C. 367, 369-370, 384 F.2d 319, 321-322 (1967). . At oral argument, appellees cited Harris v. Pennsylvania R.R., 106 U.S.App.D.C. 399, 273 F.2d 524 (1959), and contended that Harris decided the precise question of local law presented herein. Although we today reach the same result that Harris did, that case is distinguishable. In Harris, this court affirmed a District Court order dismissing as time-barred an action duplicating one previously filed and dismissed for want of prosecution. Id. at 400, 273 F.2d at 526. As such, the Harris opinion not indicating otherwise, the dismissal presumably was with prejudice. See Fed.R.Civ.P. 41(b). A dismissal with prejudice operates as an adjudication upon the merits, and consequently operates to bar a later action. . See York & York Constr. Co. v. Alexander, 296 A.2d 710, 712 (D.C.App.1972). . Willard v. Wood, 164 U.S. 502, 523, 17 S.Ct. 176, 181, 41 L.Ed. 531, 540 (1896). . See, e.g., Walko v. Burger Chef Systems, Inc., 281 Md. 207, 378 A.2d 1100, 1102 (1975); Swallows v. Albuquerque, 61 N.M. 265, 298 P.2d 945, 948 (1956); Royal-Globe Ins. v. Hauck Mfg. Co., 233 Pa.Super. 248, 335 A.2d 460, 462 (1975). . Brief for Appellant at 5, 7. . Supra note 26. . 296 A.2d at 712. . Id. at 712 n.1, citing Willard v. Wood, supra note 27; Kington v. United States, 396 F.2d 9 (6th Cir.), cert. denied, 393 U.S. 960, 89 S.Ct. 396, 21 L.Ed.2d 373 (1968); Bomer v. Ribicoff, 304 F.2d 427 (6th Cir. 1962); Humphreys v. United States, 272 F.2d 411 (9th Cir. 1959). . Kington v. United States, supra note 32, 396 F.2d at 10; Bomer v. Ribicoff, supra note 32, 304 F.2d at 429; Humphreys v. United States, supra note 32, 272 F.2d at 412. . Kington v. United States, supra note 32, 396 F.2d at 10; Bomer v. Ribicoff, supra note 32, 304 F.2d at 428; Humphreys v. United States, supra note 32, 272 F.2d at 412. . Bomer v. Ribicoff, supra note 32, 304 F.2d at 429; accord, Enos v. Kaiser Indus. Corp., 443 F.Supp. 798, 802 (D.D.C.1978). . 82 F.Supp. 248 (M.D.Pa.1949). . Id. at 249. . Id. . York & York Constr. Co. v. Alexander, supra note 26, 296 A.2d 710. . As was noted above, see note 22 supra, the District Court did not specify which statutory limitation period barred the action. Appellees argued that the action is barred by D.C.Code § 12-301(4) (1973), which provides a one-year period for actions for assault, battery, malicious prosecution, false arrest, and false imprisonment. Brief for Appellees at 2; see D.C. Code § 12-301(4) (1973). Appellant has not cited a statutory provision, either before the District Court or on this appeal. At oral argument, however, appellant seem to suggest that the complaint included causes of action for harassment and loss of reputation, either or both of which might be covered by the three-year catch-all period set forth in § 12-301(8). See D.C.Code § 12-301(8) (1973). We need not reach the question of which of the two sections controls, because the action is time-barred under either. See text infra at note 42. . See note 40 supra. . See Complaint, 79-R., Doc. No. 1, j\| 24. . Because appellant summoned the District Court to exercise its legal and equitable jurisdiction concurrently in the present case, the District of Columbia statute of limitations operates to bar her claims for both legal and equitable relief. See Cope v. Anderson, 331 U.S. 461, 464, 67 S.Ct. 1340, 1341, 91 L.Ed. 1602, 1607 (1947); Angelo-Colombian Dev. Co. v. Stapleton, 57 App.D.C. 209, 211 (1927); Chiswell v. Johnston, 55 App.D.C. 3, 5, 7 (1924); Washington Loan & Trust Co. v. Darling, 21 App.D.C. 132, 140 (1903). Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_direct1	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. ATLAS BROADCASTING COMPANY, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. No. 16252. United States Court of Appeals District of Columbia Circuit- Argued Sept. 25, 1961. Decided Oct. 6, 1961. Mr. Mark E. Fields, Washington, D. C., with whom Mr. Samuel Miller, Washington, D. C., was on the brief, for appellant. Mrs. Ruth Y. Reel, Counsel, Federal Communications Commission, Washington, D. C., with whom Messrs. Max D. Paglin, Gen. Counsel, Federal Communications Commission, and Daniel R. Ohlbaum, Asst. Gen. Counsel, Federal Communications Commission, Washington, D. C., were on the brief, for appellee. Before Fahy, Bastían and Burger, Circuit Judges. PER CURIAM. The appeal is from a decision and order of the Federal Communications Commission denying the application of standard broadcast station WMAX, Grand Rapids, Michigan, for authority to increase its operating power from 1 kilowatt to 5 kilowatts. The order denying rehearing is also included in the appeal. There is no contention the issues designated for hearing on the application were not adequate, or that the hearing and resulting findings of the Hearing Examiner, adopted by the Commission in its decision and order, were not factually supported by the evidence, or that any procedural defects afflict the hearing or other proceedings leading to the decision and order. The complaint is that the conclusion of the Commission, like that of the Examiner, was so unreasonable that we should set it aside. The Commission found that the appellant had failed to demonstrate a need for its proposed new service which would outweigh the loss of service caused to station WIOS by the resulting interference. Accordingly, the Commission concluded that the proposed application for service was not in the public interest and therefore should be denied. We think the Commission’s conclusion was within the discretion available to it under the standards applicable to judicial views. As to the refusal of the Commission to defer action on appellant’s petition for rehearing pending disposition of the WIOS application for a change of frequency, this also was within the permissible range of the Commission’s discretion. See Greenwich Broadcasting Corp. v. Federal Communications Comm., 111 U.S. App.D.C. -, 294 F.2d 913. Affirmed. . Appellant, Atlas Broadcasting Company, became the licensee of station WMAX on October 24, 1960, pursuant to Commission approval of tbe assignment of the license from WMAX, Inc. . 47 C.F.R. § 3.24(b) (Supp.1961). Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_genapel1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. DONNELLY v. CONSOLIDATED INV. TRUST et al. No. 3322. Circuit Court of Appeals, First Circuit. Sept. 27, 1938. Edward C. Park, of Boston, Mass. (Lothrop Withington, of Boston, Mass., on the brief), for appellant. William T. Snow, of Boston, Mass, ficharles S. Maddock and Gaston, Snow, Hunt, Rice & Boyd, all of Boston, Mass., on the brief), for appellee Consolidated Inv. Trust. Charles P. Curtis,’Jr., of Boston, Mass. (John L. Hall, Philip H. Rhinelander, Rodgers Donaldson, and Choate, Hall & Stewart, all of Boston, Mass., on the brief), for appellee Dumaines. Before WILSON and MORTON, Circuit Judges, and MAHONEY, District Judge. MORTON, Circuit Judge. This is an appeal in a bankruptcy case. The principal question presented concerns the right of Dumaine and Winsor to purchase and hold shares of the Amoskeag Company and the Amoskeag Manufacturing Company and to receive certain liquidating dividends on ■ the Manufacturing Company stock. There is also a question as to the appellant’s standing to appeal. The facts are stated in very condensed form in the Referee’s certificate. The'Amoskeag Company was a holding company in the form of a Massachusetts trust. It rested on an agreement or declaration of trust, and the beneficial interests were represented by transferable shares,— a common form of business organization,. Such organizations are for purposes of taxation regarded as corporations which they much resemble, the trustees being analogous to directors and the shareholders to corporate stockholders. The shares of the Amoskeag Company were listed and dealt in on the Boston Stock Exchange. Both Dumaine and Winsor were trustees of it. The trust instrument is not before us nor is there any finding as to their duties under it. Presumably they were to hold and manage the property of the trust for the benefit of the certificate holders. The property consisted of all the shares of the Amoskeag Manufacturing Company, which was also a Massachusetts trust of similar character. It operated large textile and finishing mills in Manchester, New Hampshire, and had substantial assets. In the summer of 1927 an offer was made by outside parties to purchase the assets of the Amoskeag Company, i. e., the shares of the Amoskeag Manufacturing Company at a price which would realize for the common shares of the holding company $90 each. This was substantially more than they were then selling for in the market. The avowed purpose of the buyers was complete liquidation of the properties. Dumaine, who was a trustee of the Manufacturing Company and treasurer of it, opposed the sale. Winsor, who was also one of the trustees and was a partner in the bankifig house of Kidder, Peabody & Co., caused letters to be sent by his firm to all shareholders in the Amoskeag Company, saying that Kidder, Peabody & Co. regarded the shares as worth more than the then market-value and advised shareholders not to sell. About this time, — the date is not stated, — what may be regarded as^ a counter-plan was formulated by Dumaine and Winsor and other trustees acting with them. It contemplated partial, not- complete, liquidation of the property. If adopted it would make the shares worth substantially more than the existing ’market price of them. After this counter-plan was formulated but before any public announcement of it, Dumaine and Winsor begqn purchasing in the open market enough shares of the Amoskeag Company to secure voting control and the adoption of their own plan. Their purpose, as found by the Referee, in formulating their counter-plan and in endeavoring to put it through, was “First, to give timid stockholders a chance to get their money out of the textile business. Second, to avoid the possibility of control by an outside group whose sole purpose was to liquidate.” (Referee’s Certificate.) The Kidder, Peabody letter to shareholders was sent before any of the Dumaine and Winsor purchases were made. Some of their purchases were made before and some after the counter-plan had been formulated and made public. Dumaine and Winsor bought “all the stock they wanted at figures well below the $90 offered by the outsiders and well below the figures which they knew the stock would command in their own plan of liquidation. They obtained all the stock they needed to secure the adoption of the trustees’ plan and assured themselves a substantial profit at the same time.” (Referee’s Certificate.) Soon after the purchases in question were completed the trustees’ plan for partial liquidation was adopted and each shareholder was offered $42 in cash, a bond of the Manufacturing Company “worth $40.-00”, and a share of the latter, stock for each share in the holding company. Dumaine and Winsor accepted this offer as did many other shareholders. They real7 ized enough in cash and on the sale of the bonds to cover all expenses of the purchase of the stock. “They gained at least the value of the stock in the operating trust. (Referee’s Certificate.) The stock in the operating trust so acquired by Dumaine and Winsor was in turn passed on by them to Consolidated Investment Trust, the appellee in this case, and to “Dumaines,” a similar trust. These trusts are subject to any disability which affected Winsor and Dumaine personally. The Manufacturing Company petitioned for reorganization under section 77B, Bankr.Act, 11 U.S.C.A. § 207. After all direct claims had been paid a surplus remained distributable to its shareholders, and the Referee made the order which is appealed from. It is called “a first dividend in liquidation” “at the rate of $2.00 per share.” The trustees in liquidation are directed to pay a stated sum to the debtor to be distributed by it through its agent, the Old Colony Trust Co. Detailed provisions are made with respect to the presentation and endorsement of certificates and other formal matters. Under this order the shares purchased by Dumaine and Winsor as above stated are entitled to participate. It is the contention of the appellant, Donnelly, that by reason of Dumaine’s and Winsor’s positions as trustees they could not rightfully purchase stock of the Amoskeag Company, nor receive any distributions or dividends upon it. Donnelly’s only interest in the matter is as one of the shareholders in the original trust who, by exchange of shares under the trustees’ plan, received stock in the debtor. He contends that the Dumaine and Winsor shares should be regarded as cancelled, and that the amounts payable upon them in the liquidation, at least to the extent to which they represented profits, should be apportioned among the other shareholders. Both the Referee and the District Judge rejected the contention. The District Judge permitted an appeal in the name of the trustees; otherwise it is quite clear” that Donnelly would have no standing either on a direct appeal under section 25, 11 U.S. C.A. § 48, or on an appeal by allowance under section 24(a), 11 U.S.C.A. § 47(a). There is doubt as to the effect- of the District Judge’s order allowing him to appeal in the name of the trustees. We pass by these questions because we think it easier and more satisfactory to dispose of the case on the merits. A trustee may not legally take or hold any interest or position in conflict with the trusts which he has undertaken, nor may he make a personal profit out of transactions made on account of the trust. Familiar examples of this are buying from or selling to the trust by a trustee in such a way that he makes a profit directly or indirectly. Jackson v. Smith, 254 U.S. 586, 41 S.Ct. 200, 65 L.Ed. 418. This principle, on which the appellant relies, has no application in the present case. The trust was not a party to the contracts by which Dumaine and Winsor acquired their stock; nor was it affected by these transactions except that one shareholder was substituted for another. The only persons affected by such contracts were the parties to them. Dumaine’s and Winsor’s purchases of Amoskeag shares did not in the least affect Donnelly’s interest as a shareholder; the number of shares was not altered nor the amount payable on each share, and it did not matter to him who the other owners of shares were. The purchases were not as he contends utterly illegal and void; no authority is cited in support of this position, and we are aware of none. The disability of a trustee is against profiting personally at the expense of his trust; and this disability will be rigidly enforced. Nothing of that sort occurred here as to Donnelly. Whether there was improper profiting on the part of Dumaine and Winsor at the expense of the shareholders who sold to them is a distinctly different question, not presented by this appeal, on which the complete facts are not before us, and on which we express no opinion. The order appealed from is affirmed with costs in both courts. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_caseorigin	041	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. SAMSUNG ELECTRONICS CO., LTD., et al. v. APPLE INC. No. 15-777. Supreme Court of the United States Argued Oct. 11, 2016. Decided Dec. 6, 2016. Kathleen M. Sullivan, New York, NY, for Petitioners. Seth P. Waxman, Washington, DC, for Respondent. Brian H. Fletcher for the United States as amicus curiae, by special leave of the Court. Michael T. Zeller, B. Dylan Proctor, Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, CA, Victoria F. Maroulis, Brett J. Arnold, Quinn Emanuel Urquhart & Sullivan, LLP, Redwood Shores, CA, Kathleen M. Sullivan, William B. Adams, David M. Cooper, Cleland B. Welton II, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Petitioners. Harold J. McElhinny, Rachel Krevans, Erik Olson, Nathan B. Sabri, Christopher L. Robinson, Morrison & Foerster LLP, San Francisco, CA, William F. Lee, Mark C. Fleming, Lauren B. Fletcher, Eric F. Fletcher, Sarah R. Frazier, Steven J. Horn, Wilmer Cutler Pickering, Hale and Dorr LLP, Boston, MA, Seth P. Waxman, Wilmer Cutler Pickering, Hale and Dorr LLP, Washington, DC, for Respondent. Justice SOTOMAYOR delivered the opinion of the Court. Section 289 of the Patent Act provides a damages remedy specific to design patent infringement. A person who manufactures or sells "any article of manufacture to which [a patented] design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit." 35 U.S.C. § 289. In the case of a design for a single-component product, such as a dinner plate, the product is the "article of manufacture" to which the design has been applied. In the case of a design for a multicomponent product, such as a kitchen oven, identifying the "article of manufacture" to which the design has been applied is a more difficult task. This case involves the infringement of designs for smartphones. The United States Court of Appeals for the Federal Circuit identified the entire smartphone as the only permissible "article of manufacture" for the purpose of calculating § 289 damages because consumers could not separately purchase components of the smartphones. The question before us is whether that reading is consistent with § 289. We hold that it is not. I A The federal patent laws have long permitted those who invent designs for manufactured articles to patent their designs. See Patent Act of 1842, § 3, 5 Stat. 543-544. Patent protection is available for a "new, original and ornamental design for an article of manufacture." 35 U.S.C. § 171(a). A patentable design "gives a peculiar or distinctive appearance to the manufacture, or article to which it may be applied, or to which it gives form." Gorham Co. v. White, 14 Wall. 511, 525, 20 L.Ed. 731 (1872). This Court has explained that a design patent is infringed "if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same." Id., at 528. In 1885, this Court limited the damages available for design patent infringement. The statute in effect at the time allowed a holder of a design patent to recover "the actual damages sustained" from infringement. Rev. Stat. § 4919. In Dobson v. Hartford Carpet Co., 114 U.S. 439, 5 S.Ct. 945, 29 L.Ed. 177 (1885), the lower courts had awarded the holders of design patents on carpets damages in the amount of "the entire profit to the [patent holders], per yard, in the manufacture and sale of carpets of the patented designs, and not merely the value which the designs contributed to the carpets." Id., at 443, 5 S.Ct. 945. This Court reversed the damages award and construed the statute to require proof that the profits were "due to" the design rather than other aspects of the carpets. Id., at 444, 5 S.Ct. 945 ; see also Dobson v. Dornan, 118 U.S. 10, 17, 6 S.Ct. 946, 30 L.Ed. 63 (1886) ("The plaintiff must show what profits or damages are attributable to the use of the infringing design"). In 1887, in response to the Dobson cases, Congress enacted a specific damages remedy for design patent infringement. See S. Rep. No. 206, 49th Cong., 1st Sess., 1-2 (1886); H.R. Rep. No. 1966, 49th Cong., 1st Sess., 1-2 (1886). The new provision made it unlawful to manufacture or sell an article of manufacture to which a patented design or a colorable imitation thereof had been applied. An act to amend the law relating to patents, trademarks, and copyright, § 1, 24 Stat. 387. It went on to make a design patent infringer "liable in the amount of" $250 or "the total profit made by him from the manufacture or sale ... of the article or articles to which the design, or colorable imitation thereof, has been applied." Ibid. The Patent Act of 1952 codified this provision in § 289. 66 Stat. 813. That codified language now reads, in relevant part: "Whoever during the term of a patent for a design, without license of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit, but not less than $250...." 35 U.S.C. § 289. B Apple Inc. released its first-generation iPhone in 2007. The iPhone is a smartphone, a "cell phone with a broad range of other functions based on advanced computing capability, large storage capacity, and Internet connectivity." Riley v. California, 573 U.S. ----, ----, 134 S.Ct. 2473, 2480, 189 L.Ed.2d 430 (2014). Apple secured many design patents in connection with the release. Among those patents were the D618,677 patent, covering a black rectangular front face with rounded corners, the D593,087 patent, covering a rectangular front face with rounded corners and a raised rim, and the D604,305 patent, covering a grid of 16 colorful icons on a black screen. App. 530-578. Samsung Electronics Co., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC (Samsung), also manufacture smartphones. After Apple released its iPhone, Samsung released a series of smartphones that resembled the iPhone. Id., at 357-358. Apple sued Samsung in 2011, alleging, as relevant here, that various Samsung smartphones infringed Apple's D593,087, D618,677, and D604,305 design patents. A jury found that several Samsung smartphones did infringe those patents. See id., at 273-276. All told, Apple was awarded $399 million in damages for Samsung's design patent infringement, the entire profit Samsung made from its sales of the infringing smartphones. See id., at 277-280, 348-350. The Federal Circuit affirmed the design patent infringement damages award. In doing so, it rejected Samsung's argument "that the profits awarded should have been limited to the infringing 'article of manufacture' "-for example, the screen or case of the smartphone-"not the entire infringing product"-the smartphone. 786 F.3d 983, 1002 (2015). It reasoned that "limit[ing] the damages" award was not required because the "innards of Samsung's smartphones were not sold separately from their shells as distinct articles of manufacture to ordinary purchasers." Ibid. We granted certiorari, 577 U.S. ---- (2016), and now reverse and remand. II Section 289 allows a patent holder to recover the total profit an infringer makes from the infringement. It does so by first prohibiting the unlicensed "appli[cation]" of a "patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale" or the unlicensed sale or exposure to sale of "any article of manufacture to which [a patented] design or colorable imitation has been applied." 35 U.S.C. § 289. It then makes a person who violates that prohibition "liable to the owner to the extent of his total profit, but not less than $250." Ibid. "Total," of course, means all. See American Heritage Dictionary 1836 (5th ed. 2011) ("[t]he whole amount of something; the entirety"). The "total profit" for which § 289 makes an infringer liable is thus all of the profit made from the prohibited conduct, that is, from the manufacture or sale of the "article of manufacture to which [the patented] design or colorable imitation has been applied." Arriving at a damages award under § 289 thus involves two steps. First, identify the "article of manufacture" to which the infringed design has been applied. Second, calculate the infringer's total profit made on that article of manufacture. This case requires us to address a threshold matter: the scope of the term "article of manufacture." The only question we resolve today is whether, in the case of a multicomponent product, the relevant "article of manufacture" must always be the end product sold to the consumer or whether it can also be a component of that product. Under the former interpretation, a patent holder will always be entitled to the infringer's total profit from the end product. Under the latter interpretation, a patent holder will sometimes be entitled to the infringer's total profit from a component of the end product. A The text resolves this case. The term "article of manufacture," as used in § 289, encompasses both a product sold to a consumer and a component of that product. "Article of manufacture" has a broad meaning. An "article" is just "a particular thing." J. Stormonth, A Dictionary of the English Language 53 (1885) (Stormonth); see also American Heritage Dictionary, at 101 ("[a]n individual thing or element of a class; a particular object or item"). And "manufacture" means "the conversion of raw materials by the hand, or by machinery, into articles suitable for the use of man" and "the articles so made." Stormonth 589; see also American Heritage Dictionary, at 1070 ("[t]he act, craft, or process of manufacturing products, especially on a large scale" or "[a] product that is manufactured"). An article of manufacture, then, is simply a thing made by hand or machine. So understood, the term "article of manufacture" is broad enough to encompass both a product sold to a consumer as well as a component of that product. A component of a product, no less than the product itself, is a thing made by hand or machine. That a component may be integrated into a larger product, in other words, does not put it outside the category of articles of manufacture. This reading of article of manufacture in § 289 is consistent with 35 U.S.C. § 171(a), which makes "new, original and ornamental design[s] for an article of manufacture" eligible for design patent protection. The Patent Office and the courts have understood § 171 to permit a design patent for a design extending to only a component of a multicomponent product. See, e.g., Ex parte Adams, 84 Off. Gaz. Pat. Office 311 (1898) ("The several articles of manufacture of peculiar shape which when combined produce a machine or structure having movable parts may each separately be patented as a design ..."); Application of Zahn, 617 F.2d 261, 268 (C.C.P.A.1980) ( "Section 171 authorizes patents on ornamental designs for articles of manufacture. While the design must be embodied in some articles, the statute is not limited to designs for complete articles, or 'discrete' articles, and certainly not to articles separately sold ..."). This reading is also consistent with 35 U.S.C. § 101, which makes "any new and useful ... manufacture ... or any new and useful improvement thereof" eligible for utility patent protection. Cf. 8 D. Chisum, Patents § 23.03[2], pp. 23-12 to 23-13 (2014) (noting that "article of manufacture" in § 171 includes "what would be considered a 'manufacture' within the meaning of Section 101 "). "[T]his Court has read the term 'manufacture' in § 101... to mean 'the production of articles for use from raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations, whether by hand-labor or by machinery.' " Diamond v. Chakrabarty, 447 U.S. 303, 308, 100 S.Ct. 2204, 65 L.Ed.2d 144 (1980) (quoting American Fruit Growers, Inc. v. Brogdex Co., 283 U.S. 1, 11, 51 S.Ct. 328, 75 L.Ed. 801 (1931) ). The broad term includes "the parts of a machine considered separately from the machine itself." 1 W. Robinson, The Law of Patents for Useful Inventions § 183, p. 270 (1890). B The Federal Circuit's narrower reading of "article of manufacture" cannot be squared with the text of § 289. The Federal Circuit found that components of the infringing smartphones could not be the relevant article of manufacture because consumers could not purchase those components separately from the smartphones. See 786 F.3d, at 1002 (declining to limit a § 289 award to a component of the smartphone because "[t]he innards of Samsung's smartphones were not sold separately from their shells as distinct articles of manufacture to ordinary purchasers"); see also Nordock, Inc. v. Systems Inc., 803 F.3d 1344, 1355 (C.A.Fed.2015) (declining to limit a § 289 award to a design for a " 'lip and hinge plate' " because it was "welded together" with a leveler and "there was no evidence" it was sold "separate[ly] from the leveler as a complete unit"). But, for the reasons given above, the term "article of manufacture" is broad enough to embrace both a product sold to a consumer and a component of that product, whether sold separately or not. Thus, reading "article of manufacture" in § 289 to cover only an end product sold to a consumer gives too narrow a meaning to the phrase. The parties ask us to go further and resolve whether, for each of the design patents at issue here, the relevant article of manufacture is the smartphone, or a particular smartphone component. Doing so would require us to set out a test for identifying the relevant article of manufacture at the first step of the § 289 damages inquiry and to parse the record to apply that test in this case. The United States as amicus curiae suggested a test, see Brief for United States as Amicus Curiae 27-29, but Samsung and Apple did not brief the issue. We decline to lay out a test for the first step of the § 289 damages inquiry in the absence of adequate briefing by the parties. Doing so is not necessary to resolve the question presented in this case, and the Federal Circuit may address any remaining issues on remand. III The judgment of the United States Court of Appeals for the Federal Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Samsung raised a host of challenges on appeal related to other claims in the litigation between Apple and Samsung. The Federal Circuit affirmed in part-with respect to the design patent infringement finding, the validity of two utility patent claims, and the design and utility patent infringement damages awards-and reversed and remanded in part-with respect to trade dress dilution. Only the design patent infringement award is at issue here. In its petition for certiorari and in its briefing, Samsung challenged the decision below on a second ground. It argued that 35 U.S.C. § 289 contains a causation requirement, which limits a § 289 damages award to the total profit the infringer made because of the infringement. Samsung abandoned this theory at argument, and so we do not address it. See Tr. of Oral Arg. 6. As originally enacted, the provision protected "any new and original design for a manufacture." § 3, 5 Stat. 544. The provision listed examples, including a design "worked into or worked on, or printed or painted or cast or otherwise fixed on, any article of manufacture" and a "shape or configuration of any article of manufacture." Ibid. A streamlined version enacted in 1902 protected "any new, original, and ornamental design for an article of manufacture." Ch. 783, 32 Stat. 193. The Patent Act of 1952 retained that language. See § 171, 66 Stat. 813. 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. 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sc_partywinning	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO., dba AT&T MICHIGAN No. 10-313. Argued March 30, 2011 Decided June 9, 2011 John J. Bursch, Solicitor General of Michigan, argued the cause for petitioners in both cases. With him on the briefs in No. 10-329 were Bill Schuette, Attorney General, B. Eric Restuccia, Deputy Solicitor General, Steven D. Hughey, and Anne M. Uitvlugt, Assistant Attorney General. On the briefs in No. 10-313 was Susan C. Gentz. Eric D. Miller argued the cause for the United States as amicus curiae in support of petitioners. With him on the brief were Acting Solicitor General Katyal, Deputy Solicitor General Stewart, Austin C. Schlick, Richard K. Welch, and Maureen K. Flood. Scott H. Angstreich argued the cause for respondent in both cases. With him on the brief were Brendan J. Crim-mins, Scott K. Attaway, Gary L. Phillips, Christopher M. Hermann, John T. Lenahan, Mark R, Ortlieb, and Cynthia F. Malone. Together with No. 10-329, Isiogu et al. v. Michigan Bell Telephone Co., dba AT&T Michigan, also on certiorari to the same court. Briefs of amici curiae urging reversal in both cases were filed for the California Public Utilities Commission by Frank R. Lindh, Helen M. Michiewicz, and Laura E. Gasser; for COMPTEL by Mary C. Albert; and for Sprint Nextel Corp. by Kannon K. Shanmugam and George W. Hicks, Jr. Briefs of amici curiae urging affirmance in both cases were filed for Administrative Law Professors by G. Frederick Beckner III; for Century-Link, Inc., et al. by John M. Devaney, Robert B. McKenna, and John E. Benedict; for United States Telecom Association et al. by Megan L. Brown, Bennett L. Ross, and Jonathan B. Banks; and for Verizon by Heather M. Zachary and Michael E. Glover. Justice Thomas delivered the opinion of the Court. In these cases, we consider whether an incumbent provider of local telephone service must make certain transmission facilities available to competitors at cost-based rates. The Federal Communications Commission (FCC or Commission), as amicus curiae contends that its regulations require the incumbent provider to do so if the facilities are to be used for interconnection: to link the incumbent provider’s telephone network with the competitor’s network for the mutual exchange of traffic. We defer to the Commission’s views and reverse the judgment below. I The Telecommunications Act of 1996 (1996 Act), 110 Stat. 56, imposed a number of duties on incumbent providers of local telephone service in order to facilitate market entry by competitors. AT&T Corp. v. Iowa Utilities Bd., 525 U. S. 366, 371 (1999). The incumbent local exchange carriers (LECs) owned the local exchange networks: the physical equipment necessary to receive, properly route, and deliver phone calls among customers. Verizon Communications Inc. v. FCC, 535 U. S. 467, 490 (2002). Before the 1996 Act, a new, competitive LEC could not compete with an incumbent carrier without basically replicating the incumbent’s entire existing network. Ibid. The 1996 Act addressed that barrier to market entry by requiring incumbent LECs to share their networks with competitive LECs in several ways, two of which are relevant here. First, 47 U. S. C. § 251(c)(3) requires incumbent LECs to lease “on an unbundled basis” — i. e., a la carte — network elements specified by the Commission. This makes it easier for a competitor to create its own network without having to build every element from scratch. In identifying which network elements must be available for unbundled lease under § 251(c)(3), the Commission is required to consider whether access is “necessary” and whether failing to provide access would “impair” a competitor’s provision of service. § 251(d)(2). Second, § 251(c)(2) mandates that incumbent LECs “provide ... interconnection” between their networks and competitive LECs’ facilities. This ensures that customers on a competitor’s network can call customers on the incumbent’s network, and vice versa. The interconnection duty is independent of the unbundling rules and not subject to impairment analysis. It is undisputed that both unbundled network elements and interconnection must be provided at cost-based rates. See § 252(d)(1); Brief for Petitioner in No. 10-313, p. 28; Brief for Petitioners in No. 10-329, p. 7; Brief for Respondent 4. These cases concern incumbent LECs’ obligation to share existing “entrance facilities” with competitive LECs. Entrance facilities are the transmission facilities (typically wires or cables) that connect competitive LECs’ networks with incumbent LECs’ networks. The FCC recently adopted a regulation specifying that entrance facilities are not among the network elements that § 251(c)(3) requires incumbents to lease to competitors on an unbundled basis at cost-based rates. See 47 CFR §51.319(e)(2)(i) (2005). The Commission noted, however, that it “d[id] not alter the right of competitive LECs to obtain interconnection facilities pursuant to section 251(e)(2).” In re Unbundled Access to Network Elements, 20 FCC Red. 2533, 2611, ¶ 140 (2005) (Triennial Review Remand Order). The specific issue here is whether respondent, Michigan Bell Telephone Company, d/b/a AT&T Michigan (AT&T), must lease existing entrance facilities to competitive LECs at cost-based rates. The FCC interprets its regulations to require AT&T to do so for the purpose of interconnection. We begin by reviewing the Commission’s recent actions regarding entrance facilities and then explain the particular dispute that is before us today. A In 2003, the FCC decided, contrary to its previous orders, that incumbent LECs were not obligated to provide cost-based unbundled access to entrance facilities under § 251(c)(3). In re Review of Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, 18 FCC Red. 16978, 17202-17205, ¶¶ 365-367 (2003) (Triennial Review Order). Explaining that its previous approach had been “misguided” and “overly broad,” id., ¶¶ 366, 365, the Commission concluded that entrance facilities were not subject to the unbundling requirement because they are not network elements at all. See id., ¶ 366 (entrance facilities “exist outside the incumbent LEC’s local network”). The Commission therefore did not conduct an impairment analysis. The FCC emphasized, however, the limits of this ruling. Entrance facilities are used for two purposes: interconnection and baekhauling. It expressly “d[id] not alter” an incumbent LEC’s obligation under § 251(c)(2) to provide “facilities in order to ‘interconnect with the incumbent LEC’s network.’” Id., ¶366 (brackets omitted). Thus, although the Commission specified that § 251(c)(3) did not require any unbundled leasing of entrance facilities, it determined in practical effect only that “incumbent LECs [were not obligated] to unbundle [entrance facilities] for the purpose of baekhauling traffic.” Id., ¶ 365. On direct review, the D. C. Circuit questioned the Commission’s determination that entrance facilities are not network elements under § 251(c)(3), but found the agency rulemaking record insufficient and remanded to the Commission for further consideration. See United States Telecom Assn. v. FCC, 359 F. 3d 554, 586, cert, denied, 543 U. S. 925 (2004). The court noted that if entrance facilities were in fact “ ‘network elements,’ ” then “an analysis of impairment would presumably follow.” 359 F. 3d, at 586. In 2005, the Commission responded. See Triennial Review Remand Order ¶ ¶ 136-141. The Commission retreated from its view that entrance facilities are not network elements but adhered to its previous position that cost-based unbundled access to them need not be provided under § 251(c)(3). Id., ¶¶ 137-138. Treating entrance facilities as network elements, the Commission concluded that competitive LECs are not impaired without access to them. Ibid. The Commission again emphasized that it “d[id] not alter the right of competitive LECs to obtain interconnection facilities pursuant to section 251(c)(2).” Id., ¶ 140. B In the wake of the Triennial Review Remand Order, AT&T notified competitive LECs that it would no longer provide entrance facilities at cost-based rates for either back-hauling or interconnection, but would instead charge higher rates. Competitive LECs complained to the Michigan Public Service Commission (PSC) that AT&T was unlawfully abrogating their right to cost-based interconnection under § 251(c)(2). The Michigan PSC agreed with the competitive LECs and ordered AT&T to continue providing entrance facilities for interconnection at cost-based rates. AT&T challenged the Michigan PSC’s ruling in the District Court, which, relying on the Triennial Review Remand Order, ruled in AT&T’s favor. The Michigan PSC and several competitive LECs, including petitioner Talk America, Inc., appealed. The Court of Appeals for the Sixth Circuit affirmed over a dissent. Michigan Bell Telephone Co. v. Covad Communications Co., 597 F. 3d 370 (2010). At the court’s invitation, the FCC filed a brief as amicus curiae, arguing that the Triennial Review Remand Order did not change incumbent LECs’ interconnection obligations, including the obligation to lease entrance facilities for interconnection. The Sixth Circuit declined to defer to the FCC’s views, 597 F. 3d, at 375, n. 6, and also expressly disagreed with the Seventh and Eighth Circuits, id., at 384-386 (discussing Illinois Bell Tel. Co. v. Box, 526 F. 3d 1069 (2008), and Southwestern Bell Tel., L. P. v. Missouri Pub. Serv. Comm’n, 530 F. 3d 676 (2008)). We granted certiorari, 562 U. S. 1104 (2010), and now reverse. II Petitioners contend that AT&T must lease its existing entrance facilities for interconnection at cost-based rates. We agree. A No statute or regulation squarely addresses whether an incumbent LEC must provide access to entrance facilities at cost-based rates as part of its interconnection duty under § 251(e)(2). According to the statute, each incumbent LEC has: “The duty to provide, for the facilities and equipment of any requesting telecommunications carrier, interconnection with the local exchange carrier’s network— “(A) for the transmission and routing of telephone exchange service and exchange access; “(B) at any technically feasible point within the carrier’s network; “(C) that is at least equal in quality to that provided by the local exchange carrier to itself or to any subsidiary, affiliate, or any other party to which the carrier provides interconnection; and “(D) on rates, terms, and conditions that are just, reasonable, and nondiscriminatory, in accordance with the terms and conditions of the agreement and the requirements of this section and section 252 of this title.” Nothing in that language expressly addresses entrance facilities. Nor does any regulation do so. See Brief for United States as Amicus Curiae 22, n. 6. AT&T contends that the statute makes clear that an incumbent LEC need not provide access to any facilities— much less entrance facilities — to provide interconnection. The company points out that § 251(c)(2) does not mention incumbent LECs’ facilities, but rather mandates only that incumbent LECs provide interconnection “for the facilities and equipment of any [competing] carrier.” In contrast, AT&T notes, § 251(e)(3) requires that incumbent LECs provide unbundled “access to [their] network elements.” We do not find the statute so clear. Although § 251(c)(2) does not expressly require that incumbent LECs lease facilities to provide interconnection, it also does not expressly excuse them from doing so. The statute says nothing about what an incumbent LEC must do to “provide . . . interconnection.” § 251(c)(2). “[T]he facilities and equipment of any [competing] carrier” identifies the equipment that an incumbent LEC must allow to interconnect, but it does not specify what the incumbent LEC must do to make the interconnection possible. Ibid. B In the absence of any unambiguous statute or regulation, we turn to the FCC’s interpretation of its regulations in its amicus brief. See, e. g., Chase Bank USA, N. A. v. McCoy, 562 U. S. 195, 207 (2011). As we reaffirmed earlier this Term, we defer to an agency's interpretation of its regulations, even in a legal brief, unless the interpretation is “ ‘plainly erroneous or inconsistent with the regulation[]’ ” or there is any other “ ‘reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.’” Id., at 208, 209 (quoting Auer v. Robbins, 519 U. S. 452, 461, 462 (1997)). The Commission contends that its regulations require AT&T to provide access at cost-based rates to its existing entrance facilities for the purpose of interconnection. The Commission’s interpretation proceeds in three steps. First, an incumbent LEC must lease “technically feasible” facilities for interconnection. Second, entrance facilities are among the facilities that an incumbent must make available for interconnection, if technically feasible. Third, it is technically feasible to provide access to the particular entrance facilities at issue in these cases. 1 The Commission first contends that an incumbent LEC must lease, at cost-based rates, any requested facilities for obtaining interconnection with the incumbent LEC’s network, unless it is technically infeasible to do so. Section 251(c)(2) mandates that an incumbent LEC provide interconnection, at cost-based rates, “at any technically feasible point within the carrier’s network.” The FCC has long construed § 251(c)(2) to require incumbent LECs to provide, at cost-based rates, “any technically feasible method of obtaining interconnection ... at a particular point.” 47 CFR § 51.321(a) (2010). The requirement in § 51.321(a) to provide a “method of obtaining interconnection,” the Commission argues, encompasses a duty to lease an existing facility to a competing LEC. When the Commission originally promulgated § 51.321(a), it explained that incumbent LECs would be required to “adapt their facilities to interconnection” and to “accept the novel use of, and modification to, [their] network facilities.” In re Implementation of Local Competition Provisions in the Telecommunications Act of 1996, 11 FCC Red. 15499, 15605, ¶ 202 (1996) (Local Competition Order). Since then, as AT&T and its amici concede, incumbent LECs have commonly leased certain facilities at cost-based prices to accommodate interconnection. See Brief for Respondent 28-29; Brief for United States Telecom Association et al. as Amici Curiae 33-35. As additional support for its assertion that incumbent LECs are obligated to lease facilities, the FCC highlights the examples in § 51.321(b) of “[t]echnically feasible methods of obtaining interconnection,” which include “[m]eet point interconnection arrangements.” In a meet-point arrangement, an incumbent LEC “accommodat[es]” interconnection by building a transmission facility from its network to a designated point, where it connects with the competitor's corresponding transmission facility. Local Competition Order ¶ 553. Compared to that requirement, the Commission argues, the obligation to lease existing facilities for interconnection is quite modest. 2 Next, the Commission contends that existing entrance facilities are among the facilities that an incumbent LEC must lease for interconnection. According to the FCC, the Triennial Review Remand Order adopted a regulatory definition that reestablished that entrance facilities are part of an incumbent LEC’s network. See ¶ 137; see also 47 CFR § 51.319(e). The end of every entrance facility is therefore a “point within [an incumbent] carrier’s network” at which a competing LEC could request interconnection, 47 U. S. C. § 251(c)(2), and each entrance, facility potentially provides a “technically feasible method of obtaining interconnection,” 47 CFR § 51.321(a). 3 Finally, the FCC contends that providing access to the entrance facilities here for interconnection purposes is technically feasible. Under the Commission’s regulations, an incumbent LEC bears the burden of showing that a requested method or point of interconnection is technically infeasible. See 47 CFR §§ 51.305(e), 51.321(d); see also §§ 51.305(d), 51.321(e) (previously successful interconnection is “substantial evidence” of technical feasibility). AT&T does not dispute technical feasibility here. C The FCC’s interpretation is not “plainly erroneous or inconsistent with the regulation[s].” Auer, supra, at 461 (internal quotation marks omitted). First, we disagree with AT&T’s argument that entrance facilities are not a part of incumbent LECs’ networks. Indeed, the Commission’s view on this question is more than reasonable; it is certainly not plainly erroneous. The Triennial Review Remand Order responded to the D. C. Circuit’s decision questioning the Commission’s earlier finding that entrance facilities are not network elements. It revised the definition of dedicated transport — a type of network element — to include entrance facilities. Triennial Review Remand Order ¶¶ 136-137; see 47 CFR § 51.319(e)(1) (defining dedicated transport to include “incumbent LEC transmission facilities . . . between wire centers or switches owned by incumbent LECs and switches owned by [competing] carriers”). Given that revised definition, it is perfectly sensible to conclude that entrance facilities are a part of incumbent LECs’ networks. Second, we are not persuaded by AT&T’s argument that the Commission’s views conflict with the definition of interconnection in §51.5. That regulation provides: “Interconnection is the linking of two networks for the mutual exchange of traffic. This term does not include the transport and termination of traffic.” AT&T focuses on the definition’s exclusion of “transport and termination of traffic.” An entrance facility is a transport facility, AT&T argues, and it makes no sense to require an incumbent LEC to furnish a transport facility for interconnection when the definition of interconnection expressly excludes transport. We think AT&T reads too much into the exclusion of “transport.” The regulation cannot possibly mean that no transport can occur across an interconnection facility, as that would directly conflict with the statutory language. See § 251(c)(2) (requiring “interconnection ... for the transmission and routing of [local] telephone exchange service”). The very reason for interconnection is the “mutual exchange of traffic.” 47 CFR § 51.5; see also Competitive Telecommunications Assn. v. FCC, 117 F. 3d 1068, 1071-1072 (CA8 1997) (“[T]he transmission and routing of telephone exchange service” is “what the interconnection, the physical link, would be used for” (internal quotation marks omitted)). The better reading of the regulation is that it merely reflects that the “transport and termination of traffic” is subject to different regulatory treatment than interconnection. Compensation for transport and termination — that is, for delivering local telephone calls placed by another carrier’s customer — is governed by separate statutory provisions and regulations. See 47 U. S. C. §§ 251(b)(5), 252(d)(2); 47 CFR § 51.701. The Commission explains that a competitive LEC typically pays one fee for interconnection — “just for having the link” — and then an additional fee for the transport and termination of telephone calls. Tr. of Oral Arg. 28; see also Brief for United States as Amicus Curiae 3, n. 1. Entrance facilities, at least when used for the mutual exchange of traffic, seem to us to fall comfortably within the definition of interconnection. See 597 F. 3d, at 388 (Sutton, J., dissenting) (noting that entrance facilities are “designed for the very purpose of linking two carriers’ networks” (internal quotation marks omitted)). In sum, the Commission’s interpretation of its regulations is neither plainly erroneous nor inconsistent with the regulatory text. Contrary to AT&T’s assertion, there is no danger that deferring to the Commission would effectively “permit the agency, under the guise of interpreting a regulation, to create defacto a new regulation.” Christensen v. Harris County, 529 U. S. 576, 588 (2000). D Nor is there any other “reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.” Auer, 519 U. S., at 462. We are not faced with a post-hoc rationalization by Commission counsel of agency action that is under judicial review. See ibid.; see also Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 168-169 (1962) (“The courts may not accept appellate counsel’s post hoc rationalizations for agency action; [SEC v.] Chenery [Corp., 332 U. S. 194 (1947),] requires that an agency’s discretionary order be upheld, if at all, on the same basis articulated in the order by the agency itself”). And although the FCC concedes that it is advancing a novel interpretation of its longstanding interconnection regulations, novelty alone is not a reason to refuse deference. The Commission explains that the issue in these eases did not arise until recently — when it initially eliminated unbundled access to entrance facilities in the Triennial Review Order. Until then, the Commission says, a competitive LEC typically would elect to lease a cost-priced entrance facility under § 251(c)(3) since entrance facilities leased under § 251(c)(3) could be used for any purpose — i. e., both interconnection and backhauling — but entrance facilities leased under § 251(c)(2) can be used only for interconnection. We see no reason to doubt this explanation. AT&T suggests that the Commission is attempting to require under § 251(c)(2) what courts have prevented it from requiring under § 251(c)(3) and what the Commission itself said was not required in the Triennial Review Remand Order. Tr. of Oral Arg. 50 (“[T]his is a rear guard effort to preserve [cost-based] pricing for things that the [Commission has said should no longer be available ... at [such] pricing”). We do not think that AT&T is correct. 1 To begin with, AT&T’s accusation does not square with the regulatory history. The Commission was not compelled to eliminate the obligation to lease unbundled entrance facilities at cost-based rates. It is true that, prior to the Triennial Review orders, the Commission twice unsuccessfully attempted to impose sweeping unbundling requirements on incumbent LECs. See Local Competition Order ¶ 278; In re Implementation of Local Competition Provisions of the Telecommunications Act of 1996, 15 FCC Red. 3696, 8771-3904, ¶¶ 162-464 (1999); see also 47 CFR § 51.319 (1997); § 51.319 (2000). Each time, the Commission’s efforts were rejected for taking an unreasonably broad view of “impair[ment]” under § 251(d)(2). See Iowa Utilities Bd., 525 U. S., at 392; United States Telecom Assn. v. FCC, 290 F. 3d 415, 421-428 (CADC 2002), cert, denied, 538 U. S. 940 (2003). In the Triennial Review Order, the Commission once again reinterpreted the “impair” standard and revised the list of network elements that incumbents must provide unbundled to competitors. The Commission’s initial decision to eliminate the obligation to unbundle entrance facilities, however, was not a result of the narrower view of impairment mandated by this Court and the D. C. Circuit. Instead, the Commission determined that entrance facilities need not be provided on an unbundled basis under § 251(c)(3) on the novel ground that they are not network elements at all — something no court had ever suggested. Moreover, since its initial decision to eliminate the un-bundling obligation for entrance facilities, the Commission has been committed to that position. When the D. C. Circuit questioned the Commission’s finding that entrance facilities are not network elements, the Commission responded by observing that the court “did not reject our conclusion that incumbent LECs need not unbundle entrance facilities, only the analysis through which we reached that conclusion.” Triennial Review Remand Order ¶ 137. The Commission then found another way to support that same conclusion. 2 More importantly, AT&T’s characterization of what the Commission has done, and is doing, is inaccurate. The Tri ennial Review orders eliminated incumbent LECs’ obligation under § 251(c)(3) to provide unbundled access to entrance facilities. But the FCC emphasized in both orders that it “d[id] not alter” the obligation on incumbent LECs under § 251(c)(2) to provide facilities for interconnection purposes. Triennial Review Order ¶366; Triennial Review Remand Order ¶ 140. Because entrance facilities are used for backhauling and interconnection purposes, the FCC effectively eliminated only unbundled access to entrance facilities for backhauling purposes — a nuance it expressly noted in the first Triennial Review order. Triennial Review Order ¶ 365. That distinction is neither unusual nor ambiguous. In these cases, the Commission is simply explaining the interconnection obligation that it left undisturbed in the Triennial Review orders. We see no conflict between the Triennial Review orders and the Commission’s views expressed here. We are not concerned that the Triennial Review Remand Order did not expressly distinguish between backhauling and interconnection, though AT&T makes much of that fact. AT&T argues that the Commission’s holding in the Triennial Review Remand Order is broader than that in the Triennial Review Order. In AT&T’s view, the Commission concluded in the Triennial Review Remand Order that competitors are not impaired if they lack cost-based access to entrance facilities for backhauling or interconnection. There are two flaws with AT&T’s reasoning. First, as we have discussed, the Triennial Review Remand Order reinstated the ultimate conclusion of the Triennial Review Order and changed only “the analysis through which [it] reached that conclusion.” Triennial Review Remand Order ¶ 137. Second, unlike §251(c)(3)’s unbundling obligation, § 251(c)(2)’s interconnection obligation does not require the Commission to consider impairment. As the dissent below observed, it would be surprising indeed if the FCC had taken the novel step of incorporating impairment into interconnection without comment. 597 F. 3d, at 389 (opinion of Sutton, J.). * * * The FCC as amicus curiae has advanced a reasonable interpretation of its regulations, and we defer to its views. The judgment of the United States Court of Appeals for the Sixth Circuit is reversed. It is so ordered. Justice Kagan took no part in the consideration or decision of these cases. The Solicitor General, joined by counsel for the FCC, represents that the amicus brief for the United States filed in this Court reflects the Commission’s considered interpretation of its own rules and orders. Brief for United States 31. We thus refer to the Government’s arguments in these cases as those of the agency. See, e. g., Chase Bank USA, N. A. v. McCoy, 562 U. S. 195, 203 (2011). Although the parties and their amici disagree over the precise definition of baekhauling, they all appear to agree that baekhauling is important to competitive LECs and occurs when a competitive LEC uses an entrance facility to transport traffic from a leased portion of an incumbent network to the competitor’s own facilities. Baekhauling does not involve the exchange of traffic between incumbent and competitive networks. See, e. g., Brief for Petitioners in No. 10-329, p. 25; Brief for United States Telecom Association et al. as Amici Curiae 82. It thus differs from interconnection — “the linking of two networks for the mutual exchange of traffic.” 47 CFR §51.5 (2010). The Ninth Circuit has since joined the Seventh and Eighth Circuits. Pacific Bell Tel. Co. v. California Pub. Util. Comm’n, 621F. 3d 836 (2010). These eases concern only existing entrance facilities, and the Commission expressly declines to address whether it reads its regulations to require incumbent LECs to build new entrance facilities for interconnection. Brief for United States as Amicus Curiae 25, n. 7. The Commission suggests here, as it has before, that additional considerations of cost or reasonableness might be appropriate if a competitive LEC were to request that an incumbent LEC build new entrance facilities for interconnection. Ibid, (noting that the Commission’s Wireline Competition Bureau has declined to require an incumbent LEC to bear the entire cost of building new entrance facilities); see also Local Competition Order ¶ 553 (explaining with respect to meet-point arrangements that “the parties and state commissions are in a better position than the Commission to determine the appropriate distance that would constitute the required reasonable accommodation of interconnection”). We express no view on the matter. There is no merit to AT&T’s assertion that the FCC is improperly amending the list of “[t]echnically feasible methods of obtaining interconnection” set forth in 47 CFR § 51.321(b). By its own terms, that list is nonexhaustive. See § 51.321(b) (“[technically feasible methods of obtaining interconnection . . . include, but are not limited to,” the listed examples); see also § 51.321(a) (“[A]n incumbent LEC shall provide . . . any technically feasible method of obtaining interconnection” (emphasis added)). The Commission has long recognized that a single facility can be used for different functions and that its regulatory treatment can vary depending on its use. Unbundled network elements, for example, may not be used for the exclusive provision of mobile wireless or long-distance services. 47 CFR § 51.309(b) (2010). Similarly, interconnection arrangements may be used for local telephone service but not for long-distance services. § 51.305(b). The parties and their amici dispute whether an incumbent LEC has any way of knowing how a competitive LEC is using an entrance facility. This technical factual dispute simply underscores the appropriateness of deferring to the FCC. So long as the Commission is acting within the scope of its delegated authority and in accordance with prescribed procedures, it has greater expertise and stands in a better position than this Court to make the technical and policy judgments necessary to administer the complex regulatory program at issue here. 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_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 R. VAN GEMERT, et al., Plaintiffs-Appellants, v. The BOEING COMPANY, Defendant-Appellee. Nos. 866, 1077 and 1078, Dockets 83-7843, 83-7851 and 83-7853. United States Court of Appeals, Second Circuit. Argued April 9, 1984. Decided June 29, 1984. Norman Winer, Joseph Sternberg, New York City (Kass, Goodkind, Wechsler & Labaton, New York City on the brief), for plaintiffs-appellants. Henry L. King, New York City (Carolyn Curtis, and Davis, Polk & Wardwell, New York City on the brief), for defendant-appellee. Allan E. Kirstein, Asst. Atty. Gen. of the State of New York, New York City (Robert Abrams; Atty. Gen., Daniel L. Kurtz, Asst. Atty. Gen. In Charge Charities, Trusts and Estates Bureau, and Jonathan J. Silbermann, Asst. Atty. Gen., New York City, on the brief), for State of New York, proposed intervenor-appellant, amicus curiae. Before TIMBERS and PRATT, Circuit Judges, and METZNER, Senior District Judge, Southern District of New York, sitting by designation. TIMBERS, Circuit Judge: Appellants class members and proposed intervenor, the State of New York, appeal from an order entered September 12, 1983 in the Southern District of New York, Irving Ben Cooper, District Judge, distributing to defendant, The Boeing Company, the unclaimed portion of a class action judgment fund, subject to the conditions that Boeing publish notice of the availability of the fund in its annual report and that Boeing stand ready to pay valid claims against, the fund in perpetuity. For the reasons stated below, we affirm. I. This is the latest, and probably not the last, of numerous appeals during the course of the eighteen years of this extensive litigation. We assume familiarity with the prior opinions and decisions referred to below — of the Supreme Court, of our Court, and of the District Court. We shall briefly summarize only those facts and pri- or proceedings believed necessary to an understanding of our ruling on the narrow question presented on the instant appeal. In March 1966, Boeing called for redemption of certain convertible debentures. Boeing announced the call by mailing notices to those investors who had registered their debentures. Pursuant to the terms of the Indenture Agreement, Boeing published in two national newspapers notices of its intention to call. In the notices, March 29, 1966 was set as the deadline for the debenture holders to exercise their conversion rights. After this deadline, holders of debentures with a face value of $1,544,300 (7.2% of the total) had not converted and were left only with the less attractive right to redeem. The debenture holders thus were faced with two choices: either deliver the debentures for conversion by March 29 and receive two shares of Boeing common stock worth a total $316.25 for each $100 principal amount or deliver the debentures for redemption at any time and receive $103.25 for each $100 principal amount. Rational investors, aware of this choice, presumably would have opted for conversion and the $216.25 conversion premium rather than redemption and the corresponding $3.25 call premium. Under the judgment of the district court filed July 6, 1977, there are two categories of class members: first, those who have neither converted nor redeemed their debentures, and, second, those who redeemed. Van Gemert and several other nonconverting debenture holders commenced a class action in the district court, contending that Boeing had violated the federal securities laws as well as state law, by failing to give the class members adequate and reasonable notice of its decision to redeem. The court dismissed the complaint, holding that Boeing had given the notice required by the Indenture Agreement. On appeal, we held that under state law Boeing had an implied duty to provide reasonable notice of its intention to redeem the debentures; that that duty had not been satisfied by the notice actually given; and accordingly that Boeing was liable despite its compliance with the notice provisions of the Indenture Agreement. We remanded the case for determination of damages. Van Gemert v. Boeing Co., 520 F.2d 1373 (2 Cir.) (Van Gemert I), cert. denied, 423 U.S. 947 (1975). On remand pursuant to Van Gemert I, the court calculated damages based on the difference between the redemption price and the market value of the shares of common stock that would have resulted from conversion on March 29, 1966. The total dollar amount was $3,289,359. The court, however, declined to award prejudgment interest. On appeal, we affirmed the damage calculation, but held that plaintiffs were entitled to prejudgment interest. Van Gemert v. Boeing Co., 553 F.2d 812 (2 Cir.1977) (Van Gemert II). We also held that the plaintiff class members should not share in the unclaimed portion of the judgment fund, since that would constitute a form of fluid class recovery in contravention of Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2 Cir.1973), vacated and remanded on other grounds, 417 U.S. 156 (1974). Since Boeing could have a right to the unclaimed money, we rejected the proposal that the claiming class members use the unclaimed portion to defray their legal expenses, for such a proposal might shift fees to the losing party in violation of the American rule. On remand pursuant to Van Gemert II, the court entered judgment on July 6, 1977, assessing damages, as it had before, in amount of $3,289,359, but this time adding prejudgment interest from March 29, 1966, the date of the breach. The court ordered Boeing to deposit in a bank account the total amount plus accrued postjudgment interest. The court further ordered that each individual debenture holder who recovered should bear his proportionate share of the fees, expenses, and disbursements. The court appointed a Special Master to administer the judgment and to pass on the validity of individual claims. Boeing appealed from the judgment of July 6, 1977, claiming that under Van Gemert II the attorneys for the class members should be paid only from the claimed portion of the judgment fund. A panel of our Court agreed in substance. We reversed and remanded, holding that class members could not be treated collectively; since non-claiming class members had not received any benefit from the attorneys’ services, they should not be required to pay. Van Gemert v. Boeing Co., 573 F.2d 733 (2 Cir.) (Van Gemert III), rev’d en banc, 590 F.2d 433 (2 Cir.1978) (Van Gemert IV). In our en banc opinion, we affirmed the judgment of the district court, holding that non-claiming class members had received a benefit within the meaning of the common fund doctrine. Van Gemert v. Boeing Co., 590 F.2d 433 (2 Cir. 1978) (Van Gemert IV). The Supreme Court affirmed Van Gemert IV. Boeing Co. v. Van Gemert, 444 U.S. 472 (1980). For an illuminating discussion of the common fund doctrine in the context of the instant case, see Note, Attorney’s Fees, Unclaimed Funds, and Class Actions: Application of the Common Fund Doctrine, 48 Fordham L.Rev. 370 (1979). Since the entry of the district court’s judgment of July 6, 1977 on remand from Van Gemert II, the Special Master has attempted to locate non-claiming class members entitled to payments from the fund. The amount of the fund has been decreased by the payment of fees to plaintiffs’ attorneys, administrative expenses of managing the fund, and payments to class members who have filed valid claims. For example, in July 1981, $3,348,545.71 was paid to plaintiffs’ attorneys; and, in June 1982, payments totalling $3,916,197.12, including interest, were made to the majority of claiming class members. On the other hand, the fund has been increased by interest resulting from investment of the fund. On September 22, 1982, Boeing moved for an order releasing the unclaimed funds to Boeing. In an order dated October 7, 1982, the court relieved the first Special Master and appointed a second Special Master to recommend how to deal with the unclaimed funds. The states of New York and Illinois filed motions to intervene and stated their positions to the second Special Master. On July 20, 1983, the Special Master recommended that Boeing’s motion be granted upon certain conditions, and that the motions of New York and Illinois to intervene be denied but with leave to file briefs as amicus curiae. On September 12, 1983, the court confirmed the Special Master’s report and recommendations. Specifically, the court denied the motions of New York and Illinois to intervene, but ordered that their briefs and papers be considered on an amicus curiae basis. The court further ordered that the undisbursed balance of the judgment fund be returned to Boeing, subject to the conditions that Boeing publish notice of the availability of the fund in its annual report for the next ten years and that Boeing pay in perpetuity any valid future claims by debenture holders who had not yet received payment. . The Special Master reported that, of the 7.2% of debentures outstanding after the March 29, 1966 conversion deadline, 59.4% had been paid. In a letter to this Court dated April 9, 1984, counsel for .Boeing advised that the amount remaining in the judgment fund returned to Boeing was $2,710,272. From this fund, the remaining class members are entitled to $1,317,948 in damages, plus prejudgment interest at the statutory rate and legal interest from the date of judgment to the date of payment. The question before us on the instant appeal is whether the district court’s distribution plan for the unclaimed’portion of the fund is proper. On previous appeals, we did not express any views as to how to disburse the unclaimed portion of the fund. Van Gemert III, supra, 573 F.2d at 737; Van Gemert IV, supra, 590 F.2d at 440 n. 17. Likewise, the Supreme Court declined to express any opinion on the matter. Boeing Co. v. Van Gemert, supra, 444 U.S. at 482 n. 8. For the reasons stated below, we hold that the district court’s plan is proper. II. Although we hold that the plan of distribution adopted and approved by the district court is fair and equitable, we nevertheless shall discuss in the balance of this opinion the claims of the respective appellants. We turn first to 28 U.S.C. §§ 2041 and 2042 (1982) to determine their legal applicability-to the facts and procedural history of this case. Their applicability in an equitable context will be considered in Section III of this opinion, infra. The statutory provisions referred to are as follows: 28 U.S.C. § 2041. Deposit of moneys in pending or adjudicated cases ■ “All moneys paid into any court of the United States, or received by the officers thereof, in any case pending or adjudicated in such court, shall be forthwith deposited with the Treasurer of the United States or a designated depositary, in the name and to the credit of such court. This section shall not prevent the delivery of any such money to the rightful owners upon security, according to agreement of parties, under the direction of the court.” 28 U.S.C. § 2042. Withdrawal “No money deposited under section 2041 of this title shall be withdrawn except by order of court. In every case in which the right to withdraw money deposited in court under section 2041 has been adjudicated or is not in dispute and such money has remained so deposited for at least five years unclaimed by the person entitled thereto, such court shall cause such money to be deposited in the Treasury in the name and to the credit of the United States. Any claimant entitled to any such money may, on petition to the court and upon notice to the United States attorney and full proof of the right thereto, obtain an order directing payment to him.” Appellants represented by the Kass firm and the proposed intervenor-appellant, the State of New York, argue that, since the court ordered that the fund be paid into a commercial bank account under the supervision of the Special Master, the fund constituted “moneys paid into ... court”. As such, they argue, §§ 2041 and 2042 require that the fund be deposited in the Treasury of the United States. In essence, appellants contend that, at the moment the court-ordered and Special Master-supervised fund was created, the unclaimed portion of the fund was destined to be deposited in the Treasury. Appellants cite several cases which they say demonstrate the applicability of §§ 2041 and 2042 to the instant case. In most of these cases, however, the issue was whether a judgment debtor had sustained its burden of proving a claim to portions of funds already on deposit with the Treasury under § 2042. For example, in Pennsylvania Railroad Co. v. United States, 98 F.2d 893 (3 Cir.1938), the railroad, which had issued bonds, sought to recover the unclaimed portion of a judgment fund. Ten years earlier, however, the unclaimed portion of the fund had been transferred from the registry of the court to the Treasury pursuant to a predecessor to § 2042. Id. at 894. The holding — that the judgment debtor had failed to sustain its burden of proving its right to the fund — is of doubtful value in analyzing whether §§ 2041 and 2042 require creation of a Treasury fund in the instant case. Likewise, In re Vulcan & Reiter Co., 80 F.Supp. 286 (S.D.N.Y.1948), and Hansen v. United States, 340 F.2d 142 (8 Cir.1965), are of no help in our analysis of this issue because in those cases funds already had been created. In Hodgson v. Wheaton Glass Co., 446 F.2d 527 (3 Cir.1971), the court observed that, while one provision of the Fair Labor Standards Act (29 U.S.C. § 216(c)) allowed a court to direct payment of unclaimed back wages to the Treasury, there was' no corresponding provision in 29 U.S.C. § 217 —the section upon which the disputed district court judgment was based. The court concluded, however, that a court of equity in a § 217 case has authority to order that unclaimed funds be deposited in the Treasury under 28 U.S.C. §§ 2041 and 2042. Id. at 535. We believe Wheaton Glass to be inapposite because on the instant appeal no one questions the court’s authority to use §§ 2041 and 2042 for unclaimed funds in an appropriate case. See also Hodgson v. YB Quezada, 498 F.2d 5, 6 (9 Cir.1974). Appellants rely heavily on Panhandle Eastern Pipe Line Co. v. Federal Power Commission, 179 F.2d 896 (8 Cir.1949) (en banc). Such reliance strikes us as misplaced. In Panhandle, a judgment debtor utility petitioned the Eighth Circuit for reimbursement of fund administration costs that it had ordered the utility to pay. The Federal Power Commission and several states argued that § 2042 compelled the deposit of all unclaimed money in the Treasury. The Eighth Circuit, however, reasserted its authority to reimburse the judgment debtor at a time prior to creation of the bank account for the overpayment fund and concluded that “nothing has since occurred to deprive the Court of jurisdiction to make any modification of the order which equitably ought to be made.” Id. at 901. While the court used §§ 2041 and 2042 to dispose of the bulk of the fund, the partial reimbursement to the utility strikes us as analogous to payment to Boeing in the instant case because it was made on the condition that in the future the utility would have to restore to the fund any portion of the reimbursement that might become necessary to enable the court to pay valid claims. We believe that Panhandle supports Boeing’s position. It reinforces our view that a court of equity may dispose of funds fairly — without being compelled to utilize §§ 2041 and 2042. Finally, appellants have dug deep to come up with a 170 year old case where the court considered money deposited in a bank account pursuant to a judgment to be money deposited with the court. Ex parte Prescott, 19 Fed.Cas. 1283 (C.C.N.H. 1814) (No. 11,388). Prescott was one of many cases where the issue was whether a court clerk, who statutorily was entitled to a commission on “money deposited in court”, was entitled to a commission on funds not directly paid into the registry of the court. True, Prescott does seem to interpret “money deposited in court” so broadly as to include any money deposited anywhere subject to the order of the court. Other cases, however, have interpreted the phrase more narrowly. For exampié, going back only 89 years, in Northwestern Mutual Life Insurance Co. v. Quinn, 69 F. 462 (C.C.W.D.Mich.1895), the court rejected a clerk’s argument that he was entitled to a commission on funds which a special master received and then paid out to plaintiffs under order of the court. The Quinn court, holding that the money never actually passed through the clerk’s hánds, rejected the clerk’s claim that the decree of the ordering court was void because in contravention of the predecessor of § 2041. The court stated: “In the absence of a direction to make some other disposition of the proceeds, a special master should comply with the statute, and pay the proceeds of sale to the designated depositary of the United States, to the credit of the court. To have done so in this instance would have been to disregard the decree, which explicitly ordered him to make the very disposition of the proceeds which he did make. The question as to whether the decree was inadvertently made was not for the master to quibble about. The provisó to the section cited seems to leave it within the power of the parties, under direction of the court, to have the fund disbursed by the master to those entitled, as a delivery on security satisfactory to those interested. No reason appears for construing this section of the statute as depriving the court of authority to make such special order as is deemed wise and prudent with regard to the special case, leaving the statute to cover cases where no disposition of the fund is made by decree.” Id. at 464. We agree with the reasoning of Quinn. We hold that § 2041 does not limit the discretion of the district court to control the unclaimed portion of a class action judgment fund. Whether the money has been paid into court or whether an alternative method of administering payment is used, the money held is within the court's jurisdiction and subject to the court’s order. Establishing a bank account to collect funds does not strip a court of authority to dispose of the unclaimed portion of the fund in a manner it deems wise and prudent. Sections 2041 and 2042 will control when a court so orders or when the court fails to make any disposition of this type of fund. The statutes referred to do not control when a court fashions a plan for distributing unclaimed funds. In short, we refuse to put the legal shackles of §§ 2041 and 2042 on the hands of a court which strives to do equity. In view of our holding that § 2041 does not limit the court’s authority in this case, we find it neither necessary nor appropriate to reach Boeing’s argument that, even if § 2041 does apply, § 2042 does not apply because the disposition of the unclaimed funds is in dispute and open to adjudication. III. Appellants and the proposed intervenorappellant, anticipating our holding that §§ 2041 and 2042 do not require as a matter of law that the unclaimed judgment fund be deposited in the Treasury, argue alternatively that other schemes for distribution of the unclaimed fund would be more equitable than the plan ordered by the district court. We shall consider the other proposed schemes seriatim. (A) The scheme advocated by appellants represented by Attorney Winer and those represented by the Kass firm is that there should be a pro rata distribution of the unclaimed portion of the fund among class members who have come forward. In Van Gemert II, based on-our holding in Eisen v. Carlisle & Jacquelin, supra, we rejected this contention. Van Gemert II, supra, 553 F.2d at 815. We believe that the reasoning of Van Gemert II is sound. The Winer appellants argue that Van Gemert II was overruled by Van Gemert IV. They misread the case because in Van Gemert IV we approved the holding of Van Gemert II. Van Gemert IV, supra, 590 F.2d at 440. Furthermore, we have explicitly differentiated Van Gemert II from Van Gemert III. E.g., Van Gemert IV, supra, 590 F.2d at 436 n. 9. The Winer appellants also argue that further distribution to claiming class members is appropriate to offset the costs of litigation and inflation. In Van Gemert II, we rejected the proposal for reimbursement of attorneys’ fees for claiming class members. Van Gemert II, supra, 553 F.2d at 816. We now reject appellants’ argument that due to inflation the claiming class members are entitled to further distributions. The result they seek is essentially no different than the previously rejected pro rata distribution proposal. Both proposals would give unclaimed funds to claiming class members. Both proposals, moreover, would seriously jeopardize the superior equitable interests of the non-claiming class members and both are contrary to our reasoning in Eisen. (B) The State of New York argues that the court incorrectly applied equitable principles in returning a judgment fund to a defendant who had been adjudicated liable for improper conduct. While it does not explicitly say so, the State apparently contends that the court should have applied §§ 2041-2042 in equity. Presumably New York and other claiming states eventually then could assert claims under state abandoned property laws. The Special Master found that there were three distinct equitable choices for distribution of the unclaimed funds: return the funds to Boeing, apply the cy pres doctrine, or apply §§ 2041 and 2042. Application of the cy pres doctrine would have produced the same result as applying §§ 2041-2042 but in a more direct fashion. No appellant urges this alternative before us now. After observing that there was a dearth of authority dealing with equitable disposition of an unclaimed judgment fund, the Special Master examined several equitable factors he believed to be dispositive. First, the Special Master considered the fact that the case is a private action. In reaffirming our holding as to Boeing’s liability, we made it clear that Boeing had breached private contractual duties to the indenture holders. Van Gemert II, supra, 553 F.2d at 815. Cf. SEC v. Golconda Mining Company, 327 F.Supp. 257, 259-60 (S.D.N.Y.1971) (No return of unclaimed funds allowed to defendant in an action commenced by Securities and Exchange Commission in the public interest to enforce the federal securities laws. “This litigation is not a private affair involving those with whom the defendant had the transactions.”). The Special Master concluded that, in a private action such as the instant one, a defendant should not be obligated to pay more than the amount claimed. The private nature of the action also was the reason he did not recommend that the unclaimed funds be turned over to the State of New York and others, which would be the result if §§ 2041-2042 were applied. The Special Master reasoned that in this private action the fact that certain private plaintiffs had failed to come forward to collect on their judgment should not entitle the states to a windfall. Second, the Special Master considered the nature of the wrong committed. He recognized our holding with respect to the inadequacy of Boeing’s notice to the debenture holders, but he pointed out that during each step of the process Boeing had acted without malice, without bad faith and relied on the advice of others before taking each step. For example, Boeing sought and received the advice of two outside law firms before concluding that it was bound by the terms of the Indenture and legally unable to convert debentures tendered after the expiration of the conversion privilege. Appellants argue that, since Boeing’s technical adherence to the notice requirements was found to be insufficient in Van Gemert I, to allow a return of the unclaimed fund would reward Boeing for its failure to deal with investors in good faith. They claim that the district court’s decision adopting the Special Master’s recommendation sanctions Boeing’s wrongful conduct and undermines the deterrent value of this class action. We find this argument to be unpersuasive. The proposition that a court of equity never can distribute unclaimed funds to a judgment debtor is untenable in our view. Appellants cite no authority in support of such a rule in essentially private actions such as the instant one. The Special Master placed significant emphasis on the fact that Boeing complied with the letter of the then existing law and could not have anticipated that it would have had notice duties beyond those in the Indenture. We agree. (C) Although the Winer-Kass proposal to distribute the . unclaimed fund to claiming class members is unacceptable for the reasons stated above, the proposal to apply §§ 2041-2042 in equity to this portion of the fund presents a closer question. The critical determining factor here, however, is that trial courts are given broad discretionary powers in shaping equitable decrees. “[Ejquitable remedies are a special blend of what is necessary, what is fair, and what is workable.” Lemon v. Kurtzman, 411 U.S. 192, 200 (1973) (footnotes omitted). Appellate review is narrow. Id. We believe that this principle should apply to equitable decrees involving the distribution of any unclaimed class action fund. As the Panhandle court stated: “To what .extent, if at all, the applicant should be reimbursed out of the earnings and the undistributable residue of the fund, will depend, we think, upon the circumstances of the particular case, and must be left largely to the sound judgment and discretion of the court which is charged with the distribution.” Panhandle Eastern Pipe Line Co. v. Federal Power Commission, supra, 179 F.2d at 902. Although under certain circumstances a court of appeals may be called upon to make the initial decision regarding the equitable distribution of an unclaimed fund, e.g., Panhandle, supra, 179 F.2d at 898-900, in the instant case that is not our function as a reviewing court. Reasonable minds may differ on whether the plan recommended by the Special Master and adopted by the district court was the most equitable. Based on the facts, procedural history and conduct of the parties disclosed by this record, however, we cannot say that the court abused its discretion in formulating this distribution plan. The Special Master correctly concluded that the superior equitable interest is that of the non-claiming class members. The court’s plan preserves that interest. IV. The State of New York also appeals from the court’s denial of its motion to intervene. A similar motion by the State of Illinois was denied. Illinois has not appealed. New York contends that the unclaimed judgment fund should be deposited with the Treasury. The state then could claim the fund by escheat at a later time, pursuant to federal statutory and case law and New York escheat law. The right to intervene is set forth in Fed.R.Civ.P. 24(a)(2) which provides in pertinent part: “Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” The court adopted the Special Master’s recommendation that the motion to intervene be denied because (1) New York’s motion was not timely, (2) New York did not have a significantly protectable interest, (3) New York was not so situated that as a practical matter its ability to protect its interest may be impaired or impeded, and (4) New York's interest was adequately represented by existing parties. Since we find that New York’s interest was adequately represented in the district court and since this factor is dispositive of New York’s appeal, we believe that it is neither necessary nor appropriate for us to reach the court’s findings with respect to the other requirements of Rule 24(a)(2). United States Postal Service v. Brennan, 579 F.2d 188, 191 (2 Cir.1978). The Special Master found that New York seeks to have the fund placed in the Treasury pursuant to §§ 2041-2042 and that this is what the appellants represented by the Kass firm argued is the correct disposition of the unclaimed fund. New York contends that, although the arguments advanced by the Kass firm are similar, they are not congruent with those of New York. According to New York, Kass has urged that the unclaimed fund be distributed to claiming plaintiffs — a proposition inconsistent with New York’s interest. It strikes us that this latter argument was advanced by Kass only as a last resort alternative to giving the money to Boeing. Clearly, the main thrust of the Kass argument was that the Treasury should receive the. fund pursuant to §§ 2041-2042. The Court adopted the Special Master’s recommendation that the interests of the State of New York were more than adequately represented by the arguments urged by the existing parties. Since this ruling cannot be characterized as an abuse of discretion, we affirm it. United States Postal Service v. Brennan, supra, 579 F.2d at 191; Rios v. Enterprise Association Steamfitters Local Union # 638, 520 F.2d 352, 355 (2 Cir.1975). Moreover, New York’s arguments set forth in its amicus curiae brief were thoroughly considered by the Special Master and the district court. We also have carefully considered the claims of New York in our Court as set forth by its counsel in oral argument and its briefs which we have treated as those of an amicus curiae. We affirm the order of the district court in all respects, with costs to appellee in this Court. Affirmed. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_appel2_7_5	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). James A. HEACKER and wife Marie Heacker, Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellees. No. 17623. United States Court of Appeals Fifth Circuit. Sept. 25, 1959. Edward J. Dees, Dallas, Tex., for appellants. Donald K. King, Whitney R. Harris, Dallas, Tex., Grover Sellers, Sulphur Springs, Ark., for appellees. Before RIVES, Chief Judge, and CAMERON and JONES, Circuit Judges. CAMERON, Circuit Judge. Appellant James A. Heacker, individually and in behalf of his wife, Marie Heacker, instituted this action for damages in the district court alleging negligence of the agents, servants and employees of the appellee Southwestern Bell Telephone Company resulting in injuries to Marie Heacker when she fell on the ice-covered sidewalk along the front of the appellee’s premises in Greenville, Texas. This is an appeal from a summary judgment granted by the court below in favor of defendant-appellee. The determinant questions presented are whether appellant Marie Heacker, at the time of the accident, was within the scope of her employment, and whether the filing of a claim for Workmen’s Compensation, receipt of medical expenses and other compensation' thereunder, constitutes an election of remedies or estops the appellant from maintaining a common law action. We think the facts involved in these questions are uncontroverted and are revealed clearly by the pleadings, the deposition of Marie Heacker (attached to the motion for summary judgment), and statements and argument of counsel before the district court which appear in the record. Marie Heacker was a career employee of Southwestern Bell Telephone Company employed in 1935, assigned to the telephone exchange in Dennison, Texas in 1943. In the latter part of January, 1956, having attained the position of service assistant, she was temporarily assigned on an expense account covering meals, lodging and travel, to the exchange in Greenville, Texas, there to instruct the local operators in problems which would arise in connection with the pending conversion to the dial system. After arrival in Greenville, Mrs. Heacker found accommodations in a local hotel situated several blocks from the telephone exchange. The injury involved in this case was suffered a few minutes before 8:00 a. m. on' Feb. 3rd. Mrs. Heacker, on that morning, left the hotel at approximately 7:40 a. m. with another employee and began walking to the telephone office, as she had done on two or three previous mornings. It was a cold and icy day and the sidewalks between the hotel and the exchange were, for the most part, difficult of travel due to the accumulation of ice and snow thereon. Because of the treacherous condition of the sidewalk, the two employees of Southwestern chose to walk in the streets a substantial portion of the journey between the hotel and the exchange building. Upon arrival at a point directly in front of the Southwestern Building, the two ladies crossed the street and, after Mrs. Heacker had stepped from the street onto the sidewalk running across the front of the exchange building, she attempted to take a second step on the sidewalk, slipped and fell on the icy surface, fracturing the radius and ulna bones of her right wrist. Within a short period of time after her injury, she was taken to a local clinic and placed under the care of an orthopedist. Three days later she was visited by two representatives of Southwestern, at which time she signed a completed printed form entitled “Notice of Injury and Claim for Compensation, Texas Workmen’s Compensation,” in which she gave notice of her injury, filed a claim for compensation due under the Workmen’s Compensation Law of Texas, and requested that the Industrial Accident Board take action on her claim as soon as possible. On the basis of this claim, the Texas Compensation Insurance Company paid to Mrs. Heacker $1,810.71, which sum represents compensation due from the date of the injury until the time of her return to work on June 23, 1957, computed at the rate of $25 per week for a total of seventy-two weeks and three days. Medical expenses based upon this claim in the amount of $1,467.64 were also paid by the Texas Compensation Insurance Company. Later surgery was performed January 14, 1957. On June 24, 1957, Mrs. Heacker resumed her duties with the appellee. During her absence from work she had received full pay for the first year, and half pay thereafter. This action was brought by her husband on Feb. 3, 1958. The complaint alleges that Southwestern and those acting in its behalf were guilty of negligence with respect to Marie Heacker relating generally to the condition of the sidewalk in front of the premises of said company at Greenville, Texas on the day of the accident and that Marie Heacker, because of said negligence and the injury resulting therefrom, was permanently incapacitated from performing her usual duties of employment and suffered damages in the amount of $50,500. Southwestern filed its answer denying the charge of negligence and disclaiming any liability to plaintiff by reason of the accident and injuries. Southwestern thereafter filed its motion for a summary judgment upon the grounds (1) that the exclusive remedy of the employee in this controversy for the accidental injury was under the Workmen’s Compensation Law of Texas against the insurance carrier of Southwestern Bell Telephone Company, and (2) that by filing her claim for compensation with the Industrial Accident Board and accepting compensation thereunder, Marie Heacker elected to pursue her remedy under the Workmen’s Compensation Law of Texas, and is thereby precluded from maintaining this common law action against her employer. Generally, the question of whether an employee was acting within the scope of his employment is an issue of fact to be resolved by the jury. Texas Indemnity Insurance Co. v. Hubbard, Tex.Civ.App.1940, 138 S.W.2d 626; New Amsterdam Casualty Co. v. Hosch, Tex. Civ.App.1935, 78 S.W.2d 633. Where, however, as here, the relevant evidence is so indisputed and so conclusive that reasonable minds cannot reach different conclusions, the question becomes one of law. See Croswell v. Commercial Standard Ins. Co., Tex.Civ.App.1933, 56 S.W.2d 918; Maryland Casualty Co. v. Williams, Tex. Civ.App.1932, 47 S.W.2d 858; Texas Employers’ Insurance Association v. Sewell, Tex.Civ.App.1930, 32 S.W.2d 262. Out of the phenomenal industrial growth of this century arose the conviction among the public that the common law rules of liability were unsuitable to afford adequate relief to the countless number of persons sustaining injury in their employment. The belief became widespread that the burden of employment-connected deaths and injuries should rest with employers. Workmen’s Compensation statutes have been quite generally enacted whereunder compensation is paid without regard to common law rules of liability to those injured in the course of their employment. 58 American Jurisprudence, Workmen’s Compensation, § 2, p. 575. Either by statute or by court decision, it is generally established that such statutes should be liberally construed as to coverage. This is true in Texas whose law governs. Hooper v. Great American Indemnity Co., 5 Cir., 1939,102 F.2d 739; Federal Surety Co. v. Ragle, Tex.Civ. App.1930, 25 S.W.2d 898; Vernon’s Annotated Texas Statutes, Article 8306 et seq. While there are many cases from Texas courts denying coverage to employees while going to and from the place of their employment, there are many holding the other way and this case, in our opinion, falls within the latter group. It is clear that under the Texas Statute, injuries are compensable which result from risks inherent in, or incident to, the conduct of the employer's business without regard to the time or place the accident occurred. In National Surety Corp. v. Bellah, 5 Cir., 1957, 245 F.2d 936, we held that an employee injured in a restaurant on the company premises during her lunch period was entitled to compensation notwithstanding the fact that the injury occurred outside of her normal hours of service and that she was not discharging any specific duties connected with her employment at the time of the accident. In Federal Surety Co. v. Ragle, supra, the employee was injured while attempting to crank an automobile in which he was to ride home after work. The Texas Commission of Appeals, in affirming the action of the Court of Civil Appeals in granting compensation, said: “Since it was not required * * * that Ragle should spend the nights or time not at work at the well * * * it was necessary * * * that he leave the well and go somewhere for rest and sleep and return thereto for duty. Whatever dangers or perils he encountered in leaving or approaching the premises were encountered in the usual and customary manner that he might perform the duties imposed by his contract of service.” And later, in the same opinion: “It is also equally well established that all dangers and perils incident to the usual and customary methods of entrance to and retirement from employer’s premises or zone of employment were perils incident to and ‘arising out of employment,’ as provided for under article 8309 R.S. 1925.” In Ragle, the Commission dealt at length with Texas cases on the subject of whether injuries sustained going to and from work were compensable and leaned heavily upon the Supreme Court case of Cudahy Packing Co. of Nebraska v. Par-ramore, 1923, 263 U.S. 418, 426, 44 S.Ct. 153, 155, 68 L.Ed. 366. That case, in the words of the Commission, “involved the construction of a similar statute enacted by the state of Utah.” There, the customary method of ingress and egress to the Cudahy Packing Plant was down a road and across some railroad tracks. Parramore, an employee of Cudahy was killed at this crossing on his way to work one morning. The Supreme Court, in holding that the accident resulting in the death of Parramore arose out of the course of his employment, made the following observation: “Here the location of the plant was at a place so situated as to make the customary and only practical way of immediate ingress and egress one of hazard. Parramore could not, at the point of the accident, select his way. He had no other choice than to go over the railway tracks in order to get to his work; and he was in effect invited by his employer to do so and this he was obliged to do regularly and continuously as a necessary concomitant of his employment, resulting in a degree of exposure to the common risk beyond that to which the general public was subjected. The railroad over which the way extended was not only immediately adjacent to the plant, but, by means of switches, was connected with it, and in principle it was as though upon the actual premises of the employer. “We attach no importance to the fact that the accident happened a few minutes before the time Parra-more was to begin work, and was therefore, to that extent, outside the specific hours of employment. The employment contemplated his entry upon and departure from the premises as much as it contemplated his working there, and must include a reasonable interval of time for that purpose.” [263 U.S. 426, 44 S.Ct. 155.] In the case before us, the hazards of the snow and ice were perils confronting the public in general. Persons utilizing the streets and sidewalks in the ordinary course of their day’s activities were free, as was Mrs. Heacker most of the distance between the hotel and the Southwestern Building, to choose the routes they would take, avoiding those areas which in their judgment appeared to be impassable. In her deposition, Mrs. Heacker stated that on several occasions between the hotel and the exchange, it was necessary to walk in the street to avoid particularly dangerous areas. It appears from her deposition that this power of selection terminated upon her arrival in front of appellee’s premises. In order to reach the premises where her employment required her to be, she was required to negotiate the icy sidewalk in front of the Southwestern Building. It was a hazard or peril incident to her employment on the day of the accident. In Texas Employers Insurance Association v. Cobb, 1938, 118 S.W.2d 375, the Texas Court of Civil Appeals declared that where an employee, whose duties required that he travel from place to place collecting accounts, was asphyxiated in a motel on a Sunday night, the accident causing his death was within the coverage envisioned by the Texas Workmen’s Compensation Statute. The court, in that case, concluded that the duty imposed upon him by the character of his employment to go from place to place at the instance of his employer formed a causal connection between the accident and the employment. The responsibilities and duties imposed upon Marie Heacker by virtue of her employment required that she travel from Dennison, Texas to Greenville, to ñnd lodging in the latter city and to pass back and forth between her chosen place of lodging and the telephone exchange building. On the day of the accident, the weather was cold and the sidewalks covered with snow and ice, but the responsibilities of Marie Heacker remained the same. It is not necessary for us to decide whether an injury resulting from an accident occurring a block or more away could be said to have arisen from her employment. The place of accident was, for all practical purposes, a part of the premises of the appellee. Marie Heacker had no alternative but to attempt to- cross the hazardous sidewalk fronting these premises. Her employment contemplated her doing just that before the hour on which her duties would commence. In our view, the danger inherent in any attempt of Marie Heacker to cross the ice-bound sidewalk in front of appellee’s premises on her way to work cannot be other than a peril or hazard incident to or connected with her employment, and we hold that the injury was within the coverage of the Texas statute. Under Article 8306, § 3, Vernon’s Texas Civil Statutes, employees injured within the scope of their employment and their representatives have no right of action against their employer, and their sole remedy is under the Workmen’s Compensation Statute of Texas. It is, therefore, clear that the court below did not err in granting the motion of the company for a summary judgment. The judgment is, therefore, Affirmed. . Cf. Republic Underwriters v. Terrell, Tex.Civ.App.1939, 126 S.W.2d 752. . Federal Surety Co. v. Ragle, Tex.Com. App.1931, 40 S.W.24 63, 64; and Federal Surety Co. v. Ragle, Tex.Civ.App.1930, 25 S.W.2d 898. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
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". Horst VON HENNIG, Ancillary Executor of the Estate of Carlo von Wedekind, Deceased, Appellant, v. Robert F. KENNEDY, Attorney General of the United States, as Successor to the Alien Property Custodian, Appellee. Robert F. KENNEDY, Attorney General of the United States, as Successor to the Alien Property Custodian, Appellant, v. Horst VON HENNIG, Ancillary Executor of the Estate of Carlo von Wedekind, Deceased, Appellee. Nos. 16199, 16201. United States Court of Appeals District of Columbia Circuit. Argued May 15, 1961. Decided Oct. 19, 1961. Petition for Rehearing Denied Dec. 11, 1961. Petition for Rehearing En Banc Denied En Banc Dec. 11, 1961. Mr. James H. Mann, Washington, D. C., with whom Mr. John W. Pehle, Washington, D. C., was on the brief, for appellant in No. 16,199 and appellee in No. 16,201. - Mr. Irving Jaffe, Atty., Dept, of Justice, with whom Mrs. Mary P. Clark, Atty., Dept, of Justice, was on the brief, for appellee in No. 16,199 and appellant in No. 16 201 Before EDGERTON, WASHINGTON, and BASTIAN, Circuit Judges. PER CURIAM. The plaintiff executor of Carlo von Wedekind has appealed from a judgment of the District Court dismissing on the merits an action to recover certain property vested by the Alien Property Custodian on the ground that plaintiff’s decedent was not authorized by Section 9 (a) of the Trading with' the Enemy Act of 1917, 40 Stat. 419, as amended, 50 U.S.C.A.Appendix, § 9(a), to claim the vested property because he was resident outside the United States (in Switzerland) and doing business in Italy during the war years, and was an “enemy” as defined in Section 2(a) of the Act, 50 U.S.C.A.Appendix, § 2(a). The District Court’s findings of fact and conclusions of law are reported at 1960, 187 F.Supp. 914. We bave viewed with care the record and aPPebant s contentions. We are unabIe to sa^that the District Court clearly erred in its findings or was wrong in its conclusions. There is abundant evidence that planitiff’s decedent, the original plaintiff, exercised exclusive supervision for himself and the other owner over the firm of Carlo Wedekind & Company, a societa, in name collettivo doing business in Italy, though he may not have followed in detail the operations of the business. In addition to the matters referred to by the District Court, the record shows that he fixed the remuneration of Mueller, the firm’s manager in Italy, and insofar as ? “volved a monthly bonus of 200 Swiss francs’ Paid jt himself (apparently all d”mg tbe war years? through Fides a °W1SS firm which he dominated and controlled. As late as 1940 he advanced needed funds to the Italian firm; Mueller received instructions pr direetives for running the firm only from him; prior to the outbreak of the war in Europe, he made frequent visits to Italy to confer with Mueller about the firm’s business. It seems also that he must bave retained continuing power to revoke the authority delegated to Mueller and to aPPoint a new manager. The original Plaintiff s active supervision of the business Pperi to the war was dearly sbown exdst> and although during the war period his visits to Italy ceased and his correspondence with Mueller was perhaps more limited, he did not show that his powers of supervision over the business were materially changed. And he admittedly had unlimited personal liability for the firm’s debts, malting his identity with its business even clearer. We think that under all the circumstances the original plaintiff could properly be found to be doing business in Italy during wartime, and hence to be an “enemy” under the Act. Cf. The William Bagaley, 1866, 5 Wal. 377, 72 U.S. 377, 18 L.Ed. 583. The judgment ia Affirmed. . The Government filed a protective cross-appeal with respect to the District Court’s bolding that the original plaintiff was not doing business in Germany during the war years. In view of our conelusion on the principal appeal, it is unnecessary to decide the questions raised in tbe cross-appeal No. 16,201. . The record contains two letters from Mueller to plaintiff written in 1940, one written in 1941, one written in 1942, and one written in 1943. It also contains a letter from plaintiff to Mueller written in 1941. These letters refer to others which are not in evidence. . Compare Uebersee Finanz-Korporation v. Brownell, D.C.D.C.1955, 133 F.Supp. 615, 620, affirmed sub nom. von Opel v. Brownell, 100 U.S.App.D.C. 341, 244 F.2d 789, certiorari denied, 1957, 355 U.S. 878, 78 S.Ct. 141, 2 L.Ed.2d 108. . A societa 'in name collettivo■ — such 'as the firm here involved — is neither a partnership nor a corporation under Italian-law, according to the testimony of the ' expert witnesses; in addition to provi- . sion for it, Italian law provides for gen- . eral partnerships, corporations limited in shares (or closely held corporations), and general stock' corporations. As the District Court pointed out, the societa has some characteristics of corporations under American law concepts, but because of its unlimited personal liability feature, it- is 'far more analogous to a partnership. "• ' ■ 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_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. In re Ira Laurence HUNTER, Debtor. Edwin SCHWEIG, Plaintiff-Appellant, v. Ira Laurence HUNTER, Defendant-Appellee. No. 85-5105. United States Court of Appeals, Eleventh Circuit. Jan. 30, 1986. See also, Bkrtcy., 32 B.R. 140. Kenny Nachwalter & Seymour, P.A., Thomas H. Seymour, Miami, Fla., for plaintiff-appellant. Ian M. Comisky and Russell S. Bohn, West Palm Beach, Fla., for defendant-ap-pellee. Before HATCHETT and CLARK, Circuit Judges, and ALLGOOD , District Judge Honorable Clarence W. Allgood, Senior U.S. District Judge, Northern District of Alabama, sitting by designation. ALLGOOD, Senior District Judge: Ira Laurence Hunter was the manager of a Miami, Florida branch office of Thomson McKinnon Securities, Inc., a securities broker. Hunter was also an account executive, engaged in retail sales for Thomas McKinnon, and managed the account of Edwin Schweig. In January, 1982 Hunter contacted Schweig about obtaining a personal loan in the amount of $168,000. Hunter suggested that Schweig open a margin account with Thomson McKinnon in order to facilitate the transfer of funds. Schweig placed 24,000 shares of stock pledged to Thomson McKinnon into the account. Thomson McKinnon then issued Schweig a check for $168,000, which he endorsed and delivered to Hunter in exchange for a promissory note in that amount. Schweig never questioned Hunter about his financial condition — personal or otherwise. Schweig also did not ask for a financial statement or run a credit check before making the loan. Hunter ultimately defaulted on the note after partially repaying it by depositing funds in the margin account. In June, 1982 Hunter left Thomson McKinnon and in July, 1982 was suspended as a registered representative of the New York Stock Exchange. On October 5, 1982 Hunter filed a petition in the United States Bankruptcy Court for the Southern District of Florida. On April 6, 1983, Schweig filed a complaint asking for a determination on the dischargeability of the debt. Schweig contended that Hunter had been heavily engaged in a variety of gambling activities for a number of years, and that Hunter’s failure to disclose his gambling activities and his past embezzlement of funds from customers’ accounts amounted to fraud. He therefore contends that the debt owed him by Hunter is non-dischargeable under 11 U.S.C. § 523(a)(2)(A). The Bankruptcy Court found that the facts alleged by Schweig, if proven, would be insufficient to establish fraud that would preclude a discharge in bankruptcy. Accordingly, the complaint was dismissed with prejudice and relief from the automatic stay was denied. The District Court affirmed and this appeal followed. On appeal, the appellant contends that the District Court erred in: (1) finding that Hunter’s scheme did not as a matter of law constitute fraud, .and (2) in declining to order the Bankruptcy Court to lift the automatic stay so that Schweig could bring an action in state or federal court for common law fraud. Because of the very nature and philosophy of the Bankruptcy law the exceptions to dischargeability are to be construed strictly, Gleason v. Thaw, 236 U.S. 558, 35 S.Ct. 287, 59 L.Ed. 717 (1915), and the burden is on the creditor to prove the exception. Danns v. Household Finance Corp., 558 F.2d 114 (2d Cir.1977). Schweig failed to allege any express, affirmative misrepresentations. The basis of his complaint was that Hunter had a duty to voluntarily disclose his gambling debts and unstable financial conditions and his failure to do so amounted to obtaining funds through false pretenses, a false representation, or actual fraud thus making the debt not dischargeable. In order to preclude the discharge of a particular debt because of a debtor’s false representation, a creditor must prove that: the debtor made a false representation with the purpose and intention of deceiving the creditor; the creditor relied on such representation; his reliance was reasonably founded; and the creditor sustained a loss as a result of the representation. See, In re Lange, 40 B.R. 554 (D.C. Ohio 1984); In re McGrath, 7 B.R. 496 (D.C.N.Y.1980); In re Hunt, 30 B.R. 425 (M.D.Tenn.1983). The debtor must be guilty of positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, and not implied fraud, or fraud in law, which may exist without the imputation of bad faith or immorality. Neal v. Clark, 95 U.S. 704, 5 Otto 704, 24 L.Ed. 586 (1887); Gabellini v. Rega, 724 F.2d 579 (7th Cir.1984); In re Pedrazzini, 644 F.2d 756 (9th Cir.1981); Massachusetts v. Hale, 618 F.2d 143 (1st Cir.1980); In re Preston, 47 B.R. 354 (E.D.Va.1984); In re Byrd, 4 C.B.C. 205, 9 B.R. 357 (D.D.C.1981); [1978] U.S.Code Cong. & Ad.News, 6453. The burden is on the creditor to prove the debt- or’s culpability by clear and convincing evidence. In re O’Karma, 46 B.R. 422 (D.C. Pa.1984); In re Schwartz, 45 B.R. 354 (S.D. N.Y.1985); In re Browning, 31 B.R. 995 (S.D.Ohio 1983); In re Musser, 24 B.R. 913 (W.D.Va.1982); In re Colasante, 12 B.R. 635 (E.D.Pa.1981). In spite of Schweig’s protestations to the contrary, Davison-Paxon Co. v. Caldwell, 115 F.2d 189 (5th Cir.1941), cert. denied 313 U.S. 564, 61 S.Ct. 841, 85 L.Ed. 1523 (1941), remains the law of this circuit on failure to disclose and states that “not making full disclosure ... is not within the exception.” The court was clear that there must be actual overt false pretense or representation to come within the exception. The absence of explicit representations concerning financial conditions by the bankrupt, requires a holding that there have been no false pretenses or false representations. Id. The' Bankruptcy Court correctly noted that: ... Bankruptcy law does not mandate that a debtor voluntarily disclose, without solicitation by a creditor, his personal habits, tendencies, welfare and life style, such as marital and family reláted problems, alcoholism, compulsive gambling and current state of physical and mental health, all of which may affect, directly and indirectly, the debtor’s ability to satisfy his debts and obligations to disclose such matters to Schweig, unless Schweig requested information of this nature. To require such a myriad of unbounded unsolicited disclosures by a debtor can only lead to confusion in the minds of debtors as to the information which he may be required to reveal to a creditor. Schweig further contends that Hunter was his stockbroker which placed him in a special fiduciary relationship and which required application of securities law to this case. The Bankruptcy Judge found that Schweig and Hunter contemplated and consummated a personal loan. The record certainly supports that conclusion. The above statement of facts reveals an example of misplaced trust and failure to investigate creditworthiness or to ferret out ordinary credit information. This court does not believe the circumstances surrounding the failure to use ordinary precautionary measures prior to making a sizable loan warrant finding that the debtor was bound to volunteer or confess his transgressions, and concludes that the District Court’s decision to affirm the decision of the Bankruptcy Court must likewise be AFFIRMED. . 11 USCS § 523(a)(2)(A) as codified by the Bankruptcy Code of 1978 provides: § 523. Exceptions to discharge (a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— (2) for obtaining money, property, services, or an extension, renewal, or refinance of credit, by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider’s financial condition; or (B) use of a statement in writing— (i) that is materially false; (ii) respecting the debtor's or an insider’s financial condition; (iii) on which the creditor to whom the debtor is liable for obtaining such money, property, services, or credit reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive; Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_casetyp1_7-3-5	I	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits". SAVANNAH RIVER ELECTRIC CO. v. FEDERAL POWER COMMISSION. No. 5606. Circuit Court of Appeals, Fourth Circuit. Nov. 10, 1947. Harllee Branch, Jr., of Atlanta, Ga., (Dan MacDougald and R. S. Sams, both of Atlanta, Ga., Julian J. Willingham and Inman Curry, both of Augusta, Ga., and MacDougald, Troutman, Sams & Branch, of Atlanta, Ga., on the brief), for petitioner. Willard W. Gatchell, Principal Atty., Federal Power Commission, of Washington, D. C. (Bradford Ross, Gen. Counsel, and John C. Mason, Atty., Federal Power Commission, both of Washington, D. C., on the brief), for respondent. David W. Robinson, of Washington, D. C. (Edgar A. Brown, of Barnwell, S. C., on the brief), for Clark’s Hill Authority of South Carolina, intervenor. Before PARKER, SOPER and DOBIE, Circuit Judges. PARKER, Circuit Judge. This is a petition by the Savannah River Electric Company to review a decision of the Federal Power Commission which dismissed an application by the company for a license to construct a dam and hydro-electric power project at Clark Hill on t’he Savannah River in South Carolina and Georgia. The company filed application on August 28, 1946, for a license to construct the Clark Hill project. The commission heard evidence and found the facts, most if not all of which were matters of public record of which the court will take judicial notice, and on January 14, 1947, entered an order dismissing the application. A petition for rehearing was thereupon filed by the company again asking that it be granted a license, and this was denied on February 11th. On its petition before us the company contends that upon its application for license the commission should have made findings as to whether it was in the public interest for the project to be constructed by the company, instead of by the government, and should have made a report of such findings to Congress instead of dismissing the petition. We think that the petition is entirely without merit. The facts are that in the year 1928 the company applied for and secured from the commission a license to construct this project. Construction was never commenced by the company, however, and in 1932, with the approval of the commission, the license was surrendered. In 1939 the commission directed a letter to the President of the United States indorsing the project and recommending its early construction by the United States; and in 1944 it directed a letter to the Chief of Engineers, United States Army, in which it expressed agreement with the report of a board of engineers that the project constituted a desirable initial step in the development of the Savannah River. This last letter was before Congress at the time of the passage of the Flood Control Act of 1944, as a part of House Document No. 657, 78th Congress, 2nd Session. The Flood Control Act of 1944, 58 Stat. 887, authorized the construction of the Clark Hill project by the United States as the commission had recommended. That act adopted a number of projects for construction under the general provisions of the act, among others the Clark Hill project, the language with respect to which was as follows (58 Stat. at p. 894) : “Savannah River Basin. The general plan for the comprehensive development of the Savannah River Basin for flood control and other purposes recommended by the Chief of Engineers in House Document Numbered 657, Seventy-eighth Congress, second session, is approved and the construction of the Clark Hill Reservoir on the Savannah River in South Carolina and Georgia, is hereby authorized substantially in accordance with the recommendations of the Chief of Engineers in that report at an estimated cost of $35,300,OCX).” Following the passage of the Flood Control Act of 1944, Congress passed the Deficiency Appropriations Bill of 1946, 59 Stat. 632, under which a lump sum appropriation included $1,000,000, which had been budgeted to Clark Hill; and.the War Department Civil Appropriations Act approved May 2, 1946, 60 Stat. 160, under which another lump sum appropriation included $4,500,000 budgeted to this purpose. This $5,500,000 was allocated to the project by the Chief of Engineers of the Army and $1,021,000 had been expended and $991,000 committed on outstanding contracts at the time of the commission’s hearing in October 1946. At that time the engineering design and the plans and specifications had been completed, arrangement had been made to advertise in November, December, and January, for construction bids on important phases of the project, and construction had been begun on the access railway and was 42% completed. Since the hearing before the commission the order of the President freezing funds allocated to (construction projects, so as to make the funds unavailable, has been modified to permit the army engineers to make additional contracts on this project up to the original allocation of $5,500,-000 by the Chief of Engineers, proceedings have been commenced to condemn lands for the project and Congress has appropriated additional funds for flood control, $5,000,000 of which has been allocated under the budget to Clark Hill. While these matters occurred after the hearing before the commission, all are matters of public record of which we can take judicial notice, except the condemnation suits, which are admitted in briefs of counsel. They are proper subjects for our consideration in passing upon the 'company’s petition; for they show indubitably that Congress is actively supporting the project and is continuing to appropriate funds for its construction notwithstanding the rise in construction costs, upon which plaintiff chiefly relies for the position it takes. One circumstance in connection with the last appropriation by Congress deserves special comment. The lump sum appropriation of the bill as introduced in the House was based upon an allocation of only $1,481,000 to the Clark Hill project. During the debate in the House, an amendment was offered to reduce the appropriation by the amount of the allocation and argument was made specifically against the Clark Hill project in support of the amendment. The amendment was rejected, however, and the Senate amended the bill so as to justify the allocation of $5,000,000 to the project, and this was agreed to by the House. In the course of a hearing before a subcommittee of the Senate Committee on Appropriations, the Assistant Chief of Engineers for Civil Work gave testimony in support of the project showing that the access railway had been completed, that the west embankment had been practically completed and construction started on the east embankment, the division channel, the coffer dam, the sluice gates and liners and that contracts had been let for other construction. The commission adverted to the fact that the President of the United States had placed a ceiling on the amount that the Secretary of War might spend on flood control projects during the years 1947 and 1948 but found that there was nothing to indicate that the Clark Hill project would not be constructed as authorized, saying: “There is no evidence in the record to indicate that the Clark Hill project will not be constructed by the United States as authorized, but instead the evidence indicates that the project will go forward under the usual procedure of appropriating funds from year to year as required by the Chief of Engineers, United States Army, for completing the project.” And in holding that the application should be dismissed without further recommendation to Congress, the Commission said: “The commission’s recommendations that the Clark Hill project be undertaken by the United States having already been before Congress, no further recommendations need be made to Congress pursuant to section 7(b) of the Federal Power Act, and since the project has been authorized by Congress for construction and work has been started, the pending application should be dismissed.” Under the facts as stated, there is grave doubt whether there was jurisdiction in the commission to entertain an application for a private license or make recommendations to Congress as to the development of the project. It is true that section 4(e) of the act authorizes the commission to issue licenses for the construction of hydro-electric power projects in streams or other bodies of water over which Congress has jurisdiction, and section 7(b) provides that it shall not approve an application for license where, in its judgment, the development should be undertaken by the United States itself but shall submit its findings and recommendations to Congress. These provisions of the statute, however, are to be given a reasonable construction; and it could hardly have been intended that under them the commission should have jurisdiction, in the case of projects which Congress had expressly taken over for the United States and upon which work was going forward under appropriations made by Congress, to entertain applications for license from a private corporation or to make reports to Congress as to the relative merits of private and public construction. It is not reasonable to assume that Congress intended that, in such a case, the commission should interfere with the public project by granting a license to a private company to construct the same project or that the commission should make recommendations to Congress with respect to a matter that Congress had already decided. See United States v. Kirby, 7 Wall. 482, 19 L.Ed. 278; Holly Trinity Church v. United States, 143 U.S. 457, 459-462, 12 S.Ct. 511, 36 L.Ed. 226; Hawaii v. Mankichi, 190 U.S. 197, 212-214, 23 S.Ct. 787, 47 L.Ed. 1016; Jacobson v. Massachusetts, 197 U.S. 11, 39, 25 S.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765; Sorrells v. United States, 287 U.S. 435, 446-448, 53 S.Ct. 210, 77 L. Ed. 413, 86 A.L.R. 249. As said in the case first cited: “All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over the letter.” Assuming, without deciding, however, that the commission had jurisdiction to entertain the application for license and to make further recommendations to Congress, there can be no doubt that it was acting well within the limits of its discretion in granting no license in this case and in dismissing the petition without making any further recommendations to Congress with respect to the matter. The company had been granted a license and had surrendered it. The commission had recommended to the President and the Chief of Engineers that the United States construct the project; and Congress had accepted its recommendation and had acted upon it. Public money had been spent upon the project and the work was going forward. The commission would have stultified itself if, in this posture of affairs, it had granted a license to a private company to construct the project or, in denying the license, had offered unsolicited advice to Congress with respect to the merits of private as against public construction, or viceversa. If Congress desired further advice from the commission as to the project which it had undertaken on the commission’s recommendation, it knew how to get that advice; and it was manifestly not incumbent upon the commission to make further recommendations merely because a private company had made application for a license. The action of the commission in dismissing the petition will be affirmed. Affirmed. 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_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". GLICKER v. MICHIGAN LIQUOR CONTROL COMMISSION. No. 10185. Circuit Court of Appeals, Sixth Circuit. Feb. 12, 1947. HICKS, Circuit Judge, dissenting. Arnold F. Zeleznik, of Detroit, Mich., for appellant. Charles M. A. Martin, of Detroit, Mich. (Foss O. Eldred, of Ionia, Mich., and Edmund E. Shepherd, of Detroit, Mich., on the brief), for appellee. Before HICKS, McALLISTER and MILLER, Circuit Judges. MILLER, Circuit Judge. The plaintiff-appellant, Anna Glicker, appeals from an order of the District Court which sustained a motion of the defendant-appellee, Michigan Liquor Control Commission, and dismissed her complaint filed therein for failure to state a cause of action. The complaint alleges that the appellant was a citizen of the State of Michigan and was the owner of a Class C license under state law to sell liquor in Detroit; that the license after notice and hearing was suspended by one of the members of the Michigan Liquor Control Commission because appellant had sold liquor to minors in violation of the state law; that on appeal to the full Commission appellant’s license was unlawfully and illegally revoked by the Commission; that said action on the part of the Commission was intentional and deliberate discrimination against her on account of political reasons and was done deliberately for the purpose of treating the appellant in a different manner than any other owner of a Class C liquor license, and was in violation of her rights under the Fourteenth Amendment to the Constitution of the United States and Section 1979 of the Revised Statutes of the United States, Title 8 U.S.C.A. § 43. The appellant prayed for an order directing the defendant to renew her Class C license. The order of the District Court dismissing the petition is not accompanied by any opinion and does not refer to any authorities upon which the ruling is based. From a reading of appellee's brief herein in support of the order we assume that the District Judge based his ruling upon the principle that the right to sell liquor in the State of Michigan was not a privilege or immunity of a citizen of the United States within the meaning of Section 1 of the Fourteenth Amendment to the Constitution of the United States, and that therefore appellant’s rights under that Amendment had not been abridged. So much of Section 1 of the Fourteenth Amendment as is material provides as follows: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Section 1979 Revised Statutes of the United States gives enforcement to the Amendment by the following provisions: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” It is settled that the District Courts of the United States are given jurisdiction by Title 28 U.S.C.A. § 41(14), over suits brought under the provisions of this Act without the allegation or proof of' any jurisdictional amount. Douglas v. City of Jeannette, 319 U.S. 157, 161, 63 S.Ct. 877, 87 L.Ed. 1324. We agree with the appellee’s contention and the District Court’s ruling that the appellant has no cause of action under that portion, of the Fourteenth Amendment whjch prohibits a state from - enforcing any law which abridges the privileges or immunities of citizens of the United States. “The protection extended to citizens of the United States- by the privileges and immunities clause includes those rights and privileges which, under the laws and Constitution of the United States, are incident to citizenship of the United States, but does not include rights pertaining to state citizenship and derived solely from the relationship of the citizen and his state established by State law. In re Slaughter-House Cases, 16 Wall. 36, 74, 79, 21 L.Ed. 394; Maxwell v. Bugbee, 250 U.S. 525, 538, 40 S.Ct. 2, 5, 63 L.Ed. 1124; Prudential Insurance Co. v. Cheek, 259 U.S. 530, 539, 42 S.Ct. 516, 520, 66 L. Ed. 1044, 27 A.L.R. 27; Madden v. Kentucky, 309 U.S. 83, 90-93, 60 S.Ct. 406, 409, 410, 84 L.Ed. 590, 125 A.L.R. 1383.” Snowden v. Hughes, 321 U.S. 1, Page 6, 64 S.Ct. 397, 400, 88 L.Ed. 497. The right to a license to sell intoxicating liquor is not a natural or fundamental right, nor a privilege incident to national citizenship. The regulation of the liquor traffic in any state is exclusively under the police power of that particular state. Crowley v. Christensen, 137 U.S. 86, 91, 11 S.Ct. 13, 34 L. Ed. 620; Giozza v. Tiernan, 148 U.S. 657, 661, 662, 13 S.Ct. 721, 37 L.Ed 599; Cronin v. Adams, 192 U.S. 108, 114, 24 S.Ct. 219, 48 L.Ed. 365; Sherlock v. Stuart, 96 Mich. 193, 196, 55 N.W. 845, 21 L.R.A. 580; Compare: Emmons v. Smitt, et al., 6 Cir., 149 F.2d 869, 872. Under its police power the State of Michigan has enacted what is .popularly called the Michigan Liquor Control Statute, by which the Michigan Liquor Control Commission is authorized to issue licenses to sell intoxicating liquor. Act No. 8 of Public Acts of 1933, as amended; Terre Haute Brewing Co., Inc. v. Liquor Control Commission, 291 Mich. 73, 288 N.W. 339. Accordingly, appellant’s right to a license to sell liquor in Michigan is not protected by the privileges and immunities clause of the Fourteenth Amendment. The Fourteenth Amendment, however, does not stop with protecting the privileges or immunities of citizens of the United States. In the next succeeding clause it also prohibits any state from depriving any person of life, liberty, or property without due process of law, and then following that, in a third entirely separate and independent provision it prohibits any state from denying to “any person within its jurisdiction the equal protection of the laws.” The equal protection clause of the Fourteenth Amendment is a right in itself, separate and independent from the rights protected by the privileges and immunities clause of the Fourteenth Amendment. The privileges and immunities clause is restricted to citizens of'the United States; the equal protection clause extends its protection to “any person” within the jurisdiction of the state. In Truax v. Corrigan, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed. 254, 27 A.L.R. 375, the Supreme Court considered this separate and independent protection given by the equal protection clause, discussing the matter at some length beginning in 257 U.S. at the bottom of page 331, 42 S.Ct. 129, 66 L. Ed. 254, 27 A.L.R. 375 of the opinion. The Court said — -“The guaranty was aimed at undue favor and individual or class privilege, on the one hand, and at hostile discrimination or the oppression of inequality, on the other. It sought an equality of treatment of all persons, even though all enjoyed the protection of due process.” In Hartford Steam Boiler Inspection & Insurance Company v. Harrison, 301 U.S. 459, 57 S.Ct. 838, 839, 81 L.Ed. 1223, the Court pointed out that while the Fourteenth Amendment allows reasonable classification of persons* yet it forbids unreasonable or arbitrary classification or treatment, and wrote — “it may be said generally that the equal protection clause means that the rights of all persons must rest upon the same rule under similar circumstances * * * and that it applies to the exercise of all the powers of the state which can affect the individual or his property, including the power of taxation.” In Sunday Lake Iron Company v. Township of Wakefield, 247 U.S. 350, 38 S.Ct 495, 62 L.Ed. 1154, the Court said at page 352 of 247 U.S., at page 495 of 38 S.Ct., 62 L.Ed. 1154 — “The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its 'improper execution through duly constituted agents.” (Emphasis added.) The rule that intentional discrimination by a state against a person within its jurisdiction violates the equal protection clause of the Fourteenth Amendment, although it does not violate the section of the Amendment protecting the privileges and immunities of citizens of the United States, is recognized by the opinion in Snowden v. Hughes, supra, 321 U.S. 1, at page 8, 64 S.Ct. 397, at page 401, 88 L.Ed. 497, where it is stated — “The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.” (Emphasis added.) On page 11 of 321 U.S., on page 402 of 64 S.Ct., 88 L.Ed. 497 the Court also said — “If the action of the Board is official action it -is subject to constitutional infirmity to the same but no greater extent than if the action were taken by the state legislature. * * * Where discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights.” After recognizing and approving the rule the Court declined to apply it in that case solely because the complaint failed to allege “purposeful discrimination” on the part of the defendants, holding that the allegations “willful” and “malicious” were insufficient to raise the issue of equal protection of the laws. Opinion, 321 U.S. at page 10, 64 S.Ct. 397, 88 L.Ed. 497. The dissenting opinion of two of the Justices also recognized the rule and thought that the allegations of the complaint sufficiently raised the issue. Numerous other cases fully sustain the rule that the constitutional rights provided by the equal protection clause of the Fourteenth Amendment to a person within the state are violated by intentional discriminatory action against him on the part of the State, acting either through its legislative body or by administrative action of its officials, and that remedial action is provided therefor by Section 197.9, Revised Statutes. The provisions of that section are not restricted to “privileges, or immunities of citizens of the United States,” but include “rights * * * secured by the Constitution.” See Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 558, 559, 563, 22 S.Ct. 431, 46 L.Ed. 679; Rogers v. Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417; Atchison, Topeka & Santa Fe Railway Co. v. Vosburg, 238 U.S. 56, 35 S.Ct. 675, 59 L.Ed. 1119, L.R.A.1915E, 953; Kentucky Finance Corporation v. Paramount Auto Exchange Corporation, 262 U.S. 544, 550, 551, 43 S.Ct. 636, 67 L.Ed. 1112; Power Manufacturing Co. v. Saunders, 274 U.S. 490, 494, 495, 47 S.Ct. 678, 71 L.Ed. 1165; Frost v. Corporation Commission, 278 U.S. 515, 49 S.Ct. 235, 73 L. Ed. 483; Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Giozza v. Tiernan, supra, 148 U.S. 657, 662, 13 S.Ct. 721, 37 L.Ed. 599; Louisville Trust Co. v. Stone, 6 Cir., 107 F. 305; Alston v. School Board of City of Norfolk, 4 Cir., 112 F.2d 992, 995, 130 A.L.R. 1506; Favors v. Randall, D.C., 40 F.Supp. 743, 747; Bogni v. Perotti, 224 Mass. 152, 156, 157, 112 N.E. 853, L.R.A.1916F, 831; Henry Fischer Packing Co. v. Mattox, 262 Ky. 318, 90 S.W.2d 70. The ruling of the District Court can not be sustained on the principle that the regulation of the liquor traffic by the State is in the exercise of its police power and therefore hot subject'to the constitutional restrictions referred to, although there are state decisions to that effect. It is well settled under the decisions of the U. S. ■ Supreme Court that a state police regulation is, like any other law,, subject to the equal protection clause of the Fourteenth Amendment. Atchison, Topeka & Santa Fe Railway v. Vosburg, 238 U.S. 56, 59, 35 S.Ct. 675, 59 L.Ed. 1119, L.R.A.1915E, 953; Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 558, 559, 563, 22 S.Ct. 431, 46 L.Ed. 679; see also Asher v. Ingels, D.C., S.D.Cal., 13 F.Supp. 654, 658, 659, and cases there cited; Compare Giozza v. Tiernan, supra, 148 U.S. 657, at page 662, 13 S.Ct. 721, 37 L.Ed. 599; Power Manufacturing Co. v. Saunders supra, 274 U.S. 490, 494, 495, 47 S.Ct. 678, 71 L.Ed. 1165. We recognize the right of a state to regulate, or even prohibit, through the exercise of its police power, the pursuit of certain businesses and occupations which because of their nature may prove injurious or offensive to the public. Such regulation is not prohibited by the Fourteenth Amendment. Murphy v. California, 225 U.S. 623, 32 S.Ct. 697, 56 L.Ed. 1229, 41 L.R.A.,N.S., 153. But it is equally well settled that such regulation is not unlimited in scope, but is subject to the limitations imposed by that amendment. While the Federal Government does not have the right to regulate such matters, which are exclusively under the control and regulation of the state, yet it does have the right, by virtue of the Fourteenth Amendment, to prevent such regulation from being arbitrary or discriminatory. Allgeyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832; Adams v. Tanner, 244 U.S. 590, 37 S.Ct. 662, 61 L.Ed. 1336, L.R.A. 1917F, 1163, Ann. Cas. 1917D, 973; Tyson & Brother United Theatre Ticket Officers v. Banton, 273 U.S. 418, 47 S.Ct. 426, 71 L.Ed. 718, 58 A.L.R. 1236; Power Manufacturing Co. v. Saunders, supra, 274 U.S. 490, 47 S.Ct. 678, 71 L.Ed. 1165; Frost v. Corporation Commission, supra, 278 U.S. 515, 49 S.Ct. 235, 73 L.Ed. 483. The rule is equally as applicable where the business or occupation being regulated is not a franchise or property right, but is merely a privilege granted or withheld by the state at its pleasure. Frost & Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 591— 594, 46 S.Ct. 605, 70 L.Ed. 1101, 47 A.L.R. 457. The fact that the appellant is in the liquor business does not release the state from the restrictions on its regulatory powers above referred to. It may authorize the state to impose more stringent regulations against those engaged in that business than are imposed against those engaged in other callings, “but it affords no justification for discriminating between persons similarly situated who may be, or may desire to become, engaged in that calling.” State ex rel. Galle v. City of New Orleans, 113 La. 371, 36 So. 999, 1003, 67 L.R.A. 70, 76, 2 Ann. Cas. 92; Chicago v. Netcher, 183 Ill. 104, 55 N.E. 707, 48 L.R.A. 261, 265, 75 Am.St.Rep. 93. In both of those cases discriminatory ordinances regulating the retail liquor business were declared invalid as violative of the provisions of the Fourteenth Amendment. The rule was well stated in Francis v. Fitzpatrick, 129 Conn. 619, 30 A.2d 552, 554, 145 A.L.R. 505, 507, as follows: "The business being one which admittedly may be dangerous to public health, safety and morals (cases cited) the scope of the legislature’s power to regulate it is much broader than in the case of its regulation of an ordinary lawful business essential to the conduct of human affairs. ‘In the one business no citizen has an absolute right to engage; in the other all citizens have the right, and an equal right, to engage. The difference is vital’. (Cases cited.) Nevertheless, the police power of the state, like other governmental authority, is to be used for the common welfare, impartially and without unreasonable discrimination. (Cases cited.) Accordingly, while as between liquor selling and other callings less potentially harmful to the public the legislature may discriminate, there is no warrant for unjustly discriminating between those persons who may be, or may desire to become, engaged in the same calling of selling liquor.” The opinion is followed by an annotation in 145 A.L.R. 509 showing many cases, involving licensing of the liquor business, including Francis v. Fitzpatrick, supra, where the rule was recognized but the statute or ordinance involved held valid because the regulatory conditions imposed were not unreasonable or arbitrary. In our present case the arbitrary and discriminatory action of the State Liquor Commission is admitted by the motion to dismiss. In considering the motion to dismiss we are controlled by the allegations of the complaint. It specifically alleges that the Commission acted “unlawfully, fraudulently, wilfully and illegally” and “intentionally and deliberately discriminated against” her, and that its action “was wilful, deliberate and intended solely for a political purpose,” which is further described therein in detail, and that the revocation of her license “was done purposely and with the thought of treating this plaintiff in a different manner than any other owner of a Class C liquor license.” We believe that those allegations are sufficient to state a cause of action under the equal protection clause of the Fourteenth Amendment and Section 1979 Revised Statutes. Whether or not the proof offered at the trial will sustain such allegations is a different question. Appellee makes no contention on this appeal that the action of the Commission is not the action of the State within the meaning of the Fourteenth Amendment, although there is support for such a contention. Barney v. City of New York, 193 U.S. 430, 24 S.Ct. 502, 48 L.Ed. 737; Opinion of Circuit Court of Appeals, 7th Circuit, in Snowden v. Hughes, 132 F.2d 476, ruling affirmed on different ground in 321 U.S. 1, 13, 64 S.Ct. 397, 88 L.Ed. 497. Concurring opinion of Mr. Justice Frankfurter in Snowden v. Hughes, supra, 321 U.S. 1, 16, 17, 64 S.Ct. 397, 88 L.Ed. 497. However, we believe that the rule as announced in Barney v. City of New York has not been followed by the Supreme Court in its later decisions, and that the present weight of authority does not support it. Snowden v. Hughes, supra, 321 U.S. 1, at page 13, 64 S.Ct. 397, 88 L.Ed. 497; Raymond v. Chicago Union Traction Co., 207 U.S. 20, 28 S.Ct. 7, 52 L.Ed. 78, 12 Ann. Cas. 757; Home Telephone & Telegraph Co. v. Los Angeles, 227 U.S. 278, 33 S.Ct. 312, 57 L.Ed. 510; Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, 162 A.L.R. 1330; Alston v. School Board of City of Norfolk, supra, 4 Cir., 112 F.2d 992, 994. The action of the appellee Liquor Commission in the present case is accordingly considered as the action of the State. The judgment of the District Court is reversed, and the case remanded' for further proceedings consistent with the views expressed herein. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_initiate	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. Dorothy GAUTREAUX, et al., Plaintiffs-Appellees, v. The CHICAGO HOUSING AUTHORITY, Defendant-Appellant. No. 81-2223. United States Court of Appeals, Seventh Circuit. Argued May 10, 1982. Decided Aug. 30, 1982. Rehearing and Rehearing En Banc Denied Nov. 1, 1982. Patrick W. O’Brien, Mayer, Brown & Platt, Chicago, 111., for defendant-appellant. Robert J. Vollen, Business & Professional People for the Public Interest, Chicago, 111., for plaintiffs-appellees. Before CUMMINGS, Chief Judge, DAVIS, Associate Judge, and PELL, Circuit Judge. The Honorable Oscar H. Davis, Associate Judge of the United States Court of Claims, is sitting by designation. CUMMINGS, Chief Judge. This appeal is a byproduct of the celebrated Gautreaux case, whose complexities and history are summarized in Gautreaux v. Landrieu, 523 F.Supp. 665, 667-669 (N.D.Ill.1981). The issue here is relatively narrow: the propriety of an interim award of attorney’s fees under 42 U.S.C. § 1988 to Alexander Polikoff as the representative of counsel for the plaintiff class. District Judge Crowley ordered the Chicago Housing Authority (CHA) to pay $375,375 for more than 3,000 hours of work between 1965 and 1980. Gautreaux v. Landrieu, 523 F.Supp. 684 (N.D.Ill.1981). On appeal CHA argues that Judge Crowley erred because (1) the suit against CHA (i.e., 66-C-1459) was not “pending” on October 19, 1976, when the Civil Rights Attorney’s Fees Awards Act of 1976 (codified at 42 U.S.C. § 1988) became effective, and therefore no fees are awardable under the statute although plaintiffs have prevailed in the litigation as a whole; (2) if any aspects of the suit could be considered pending on October 19, 1976, they were only supplemental enforcement proceedings in which the plaintiffs did not prevail as Section 1988 requires; (3) the petition for fees was not timely filed; and (4) the award of fees at a rate of $125 per hour for 3,003 hours was an abuse of discretion. Finding all these arguments unpersuasive, we affirm the district court’s fee award. I The most substantial issue CHA presents is whether the Gautreaux litigation was pending on October 19, 1976. Congress enacted the Fees Awards Act in 1976 in response to the Supreme Court’s decision in Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (courts are not free to award attorney’s fees to parties serving as “private attorneys general” absent specific legislative authorization). The Act provides that “[i]n any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than thé United States, a reasonable attorney’s fee as part of the costs.” Although the statute is silent on the point, the legislative history makes clear that Congress intended Section 1988 as amended to “apply to all cases pending on the date of enactment [October 19, 1976] as well as all future cases, Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974).” H.R.Rep.No. 94-1558, 94th Cong., 2d Sess. 4, n. 6. The issue posed in this appeal is how that legislative direction is to be applied to equitable proceedings that have lasted sixteen years and are not yet concluded. Put differently, the question is whether the test that has developed for determining pendency is to be applied in a technical or a common-sense fashion. In the formulation of the test on which the parties and the district judge focused, a case is pending if there is an “active” issue that has not been finally resolved at the critical time. An “active” issue is defined — by a process of inclusion and exclusion — as a substantive claim upon which a district court has not acted, either in the first instance or on remand, or a substantive claim whose disposition by the district court, or the Court of Appeals, either is on appeal or is appealable. The mere pendency on the date of enactment of an attorney fees act of supplemental proceedings to effectuate a prior final judgment is not, in our opinion, sufficient to convert an action into such a “pending action” as to warrant an award of attorney’s fees under such an act pursuant to the Bradley -type retroactive application of the act. Peacock v. Drew Municipal Separate School Dist., 433 F.Supp. 1072, 1075 (N.D.Miss.1977) (emphasis added), affirmed on basis of district court opinion, 611 F.2d 1160 (5th Cir. 1980) (per curiam). CHA takes a literal view of the test. The district court had found in 1969 that CHA engaged in intentional racial discrimination in its low-income housing program, 296 F.Supp. 907 (N.D.Ill.1969). The court had entered a remedial order shortly thereafter, 304 F.Supp. 736 (N.D.Ill.1969). CHA had taken no appeal from either decision. Therefore, it argues, all subsequent proceedings (whether they generated appeals or not) were efforts to effectuate the 1969 judgment and hence “supplemental.”' (Br. 17-29.) The district judge, by contrast, took a common-sense approach. He viewed the district court’s broad retention of jurisdiction and its frequent modifications of the 1969 injunction as evidence that “continuing judicial proceedings that would involve active controversy were expressly contemplated.” 523 F.Supp. at 689. Looking at the entire course of the litigation, he found no justification for treating the 1969 order, though it was admittedly final in the sense of “non-appealable,” as so conclusive of the parties’ dispute that the next twelve years of litigation could be called “supplemental proceedings to effectuate a prior final judgment.” Id. at 688-689. Like the district judge, we favor a common-sense approach. It is more consistent with the history of this particular lawsuit, with other cases in which the applicability of the Fees Awards Act has been an issue, and with the nature of equitable proceedings in general not to divide a continuously active equitable case into a host of separate smaller matters. Gautreaux Revisited We begin with a summary of how this litigation has gone, what CHA has been ordered to do, and what its track record for compliance is. The purpose of this summary is to demonstrate the artificiality of CHA’s conceit that the case ended, for Section 1988 purposes, in 1969 and to refute an alternative CHA argument, namely, that only the companion case against the Department of Housing and Urban Development (HUD) was pending in 1976 and that “CHA’s marginal participation in the case against HUD should [not] affect its liability for fees in the other case.” Reply Br. 7. Judge Austin’s original remedial order, 304 F.Supp. at 737-743, had two focuses: CHA was to modify its tenant assignment system, which had previously resulted in a high degree of racial segregation in existing housing. CHA was also to adopt new site selection and construction procedures to ensure that new housing was not concentrated in segregative patterns or built on a huge and dehumanizing scale. CHA points out that “the tenant assignment plan was never an issue after [1969]” (Br. 26), but it neglects to mention that progress on the site selection and construction aspect has been almost nonexistent. Historically, CHA’s procedure for selecting housing sites was to submit proposals to the Chicago City Council. After the July 1969 order, it submitted no proposals, arguing that matters were best postponed until after the April 1971 mayoral elections. This Court affirmed Judge Austin’s order directing CHA to submit proposals to the City Council by September 20, 1970. 436 F.2d 306 (7th Cir. 1970), certiorari denied, 402 U.S. 922, 91 S.Ct. 1378, 28 L.Ed.2d 661. Thereafter it was the City Council’s turn to be recalcitrant. It conducted no hearings on the CHA submissions. Accordingly Judge Austin ordered CHA to bypass the City Council, even though Council approval was a procedural step required by Illinois statute. A divided panel of this Court affirmed, 480 F.2d 210 (7th Cir. 1973), certiorari denied, 414 U.S. 1144, 94 S.Ct. 895, 39 L.Ed.2d 98. In both of these appeals CHA conduct was directly in issue and CHA was an appellant in this Court. After the consolidation of the CHA and HUD cases in 1971, CHA also found itself involved in the consolidated HUD case. It is disingenuous, however, to call CHA’s participation “marginal” (CHA Reply Br. 7). For example, CHA intervened on appeal to challenge Judge Austin’s decision to enjoin HUD from disbursing $26 million in Model Cities funding to Chicago. We reversed, 457 F.2d 124 (7th Cir. 1972), on the ground that there was an insufficient connection between the Model Cities Program and CHA’s segregation of low-income housing. CHA was also a party to the appeal of Judge Austin’s decision restricting the scope of HUD and CHA remedial activities to the city limits of Chicago — a decision we also reversed, 503 F.2d 930 (7th Cir. 1974), affirmed sub nom. Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792. CHA’s interest in both appeals is not hard to discern. It would be under increased pressure to comply with Judge Austin’s orders if its failure to do so could jeopardize the City’s receipt of other federal funds; and it wanted to be sure that if its site selection and construction program had to be metropolitan in scope, HUD’s resources would be committed on the same scale. CHA did not attempt to secure Supreme Court review of our decision about a metropolitan remedy. Only HUD was a petitioner in Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792. But. the Supreme Court’s decision made clear that on remand CHA would be equally implicated in the metropolitan relief that the district judge could properly order: Both CHA and HUD have the authority to operate outside the Chicago city limits. * * * [I]t is entirely appropriate and consistent with Milliken to order CHA and HUD to attempt to create housing alternatives for the respondents in the Chicago suburbs. 425 U.S. at 298-299, 96 S.Ct. at 1547 (footnote omitted). In short, after the Supreme Court’s decision in April of 1976, the entire suit came back to the district court in a new posture: both HUD and CHA could be ordered to remedy the effects of their past discriminatory practices by siting, building, and financing low-income housing throughout the Chicago metropolitan area. In the proceedings before a magistrate, which began before the Supreme Court decision and went on for five years, the additional relief was discussed and attempts were made to have CHA cooperate in implementing it. Throughout these twelve years of proceedings (1969-1981), CHA’s response to orders by the court and the magistrate ranged from lethargic to obdurate. The record simply does not support CHA’s version — that it was docile, even zealous, unless forces outside its control made obedience a complete impossibility (Reply Br. 9-11). Asked to evaluate CHA’s compliance efforts, the magistrate recommended against finding CHA in contempt (Second Report, App. 49). But she also found that “CHA site search and acquisition have neither been efficient nor vigorous and therefore not numerically productive” (Draft Final Report, App. 96); that, although some delay was “attributable to factors not within the complete control of CHA and HUD, [these factors] should have been anticipated by them and must be prepared for in the future because they continue” (id., App. 98); and that “[t]he prevalent deterrent to CHA performance has been a reluctance to relinquish application of self-imposed criteria in the exercise of its judgment of what it concludes to be suitable remedial housing for plaintiff class as well as inefficient bureaucratic operation” (id., App. 102). The most scathing indictment of CHA’s compliance can be found in Judge Crowley’s reluctant decision not to put CHA into receivership, 498 F.Supp. 1072, 1075 (N.D.Ill.1980): With great reservation, the motion to appoint a receiver is denied without prejudice. * * * Best efforts will no longer suffice; compliance [with the May 1979 modified order] will be measured by results, not intentions. Bureaucratic inefficiency will no longer be tolerated by the Court. The inaction of the CHA to date is a clear indication of indifference to the orders of this Court and to the rights of the citizens of Chicago. Based on the foregoing, it is difficult to argue that this litigation ended in any practical sense with the 1969 orders, or that the succeeding stages were “supplemental.” It is also hard to believe that no substantive issues remained open and unresolved in the fall of 1976. Quite apart from the dearth of remedial action, the scope of possible remedy had changed. Finally, it is impossible to treat the CHA’s involvement in any of these issues as “marginal.” Other Precedents A comparison of the Gautreaux litigation with the cases on which CHA relies is also instructive. With one exception, they all involve much more discrete and conclusive lawsuits than we have found. Thus Peacock, supra, 433 F.Supp. 1072, dealt with a challenge by two plaintiffs to a school district policy of refusing to employ unwed mothers. Before the enactment of amended Section 1988, definite backpay and reinstatement relief had been ordered and the fee issue finally resolved. Only an effort to recover supplemental backpay was pending on October 19, 1976. The district judge found this too thin a wedge to open the entire litigation for the award of some $122,000 in fees, especially where “plaintiffs were free to effectuate their judgment for over one and one-half years prior to enactment of the 1976 Act.” 433 F.Supp. at 1075. In Escamilla v. Santos, 591 F.2d 1086 (5th Cir. 1979), a prisoners’ Section 1983 suit had ended with a consent decree in July of 1976 and a memorandum order denying attorneys’ fees in August of 1976. The district judge had amended his decision and granted fees after October 19, 1976, solely because the August memorandum order did not satisfy the technical requirements of a final judgment under Rule 58 of the Federal Rules of Civil Procedure. The Fifth Circuit reversed, holding that a technical defect did not undermine finality where the judge and both parties clearly treated the order as final at the time it was entered. Finally, Gonzales v.. Fairfax-Brewster School, Inc., 569 F.2d 1294 (4th Cir. 1978), certiorari denied, 439 U.S. 927, 99 S.Ct. 311, 58 L.Ed.2d 320, involved plaintiffs’ attempts to obtain fees, although the Court of Appeals had denied them, the Supreme Court had affirmed, and the Supreme Court’s mandate had been returned to the district court — all before the Fees Awards Act’s effective date. Plaintiffs’ theory, rejected by the Fourth Circuit, was that a pending motion for costs under 28 U.S.C. § 1920 preserved the attorneys’ fee issue under the statute. A fair comparison of these cases and the Gautreaux litigation readily suggests important differences. First, none appears to involve ongoing disputes about the propriety and efficacy of the relief initially granted. Indeed only one could conceivably have involved relief that was long term or complicated, such that a court’s retained jurisdiction would not only be provided for, but invoked. Second, all three cases involve thinly-disguised attempts to generate an issue solely in order to come within the pendency rule. In Gautreaux the plaintiffs’ unremitting pressure on CHA over twelve years — and their decision to ask for attorneys’ fees only as the litigation draws to a close — bespeak no such opportunism. The Sixth Circuit’s remark in Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 635 (1979), certiorari denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862, could equally apply here: “[Pjlaintiffs’ delay in applying for fees * * was largely due to the fact that there was no earlier time to pause for litigation of the fee issue * * CHA instances one case that is factually more similar to Gautreaux in which fees were nonetheless denied. There is however an important distinction, and it undercuts CHA’s position. In Henry v. Clarksdale Municipal Separate School District, 579 F.2d 916 (5th Cir. 1978) (per curiam) (Clarksdale V), the Fifth Circuit construed Section 718 of the Emergency School Aid Act, 20 U.S.C. § 1617, a fee provision applicable to school desegregation cases pending on July 1, 1972. A majority of the panel held that plaintiffs’ motion to require bus transportation by the School District, made after July 1, 1972, was not sufficient to render the litigation pending after that date. Apart from the motion, no active issues remained: “all definitive or substantive orders of the district court for desegregating the Clarksdale public schools as to students, faculty, staff, and services had been entered and were being complied with.” 579 F.2d at 918 (emphasis added). The majority therefore affirmed the district judge’s decision to award no fees for work done between 1964, when the suit was first filed, and 1972. Judge Tjoflat in dissent in Clarksdale V disagreed with the majority’s treatment of the busing motion, finding it an integral step in the achievement of a unitary school system, rather than a supplemental enforcement effort. Id. at 921. He also thought the majority’s characterization of the school district’s compliance was naive: [A] school system is not automatically desegregated when a constitutionally acceptable plan is adopted and implemented. “If the journey from Brown [Bd. of Ed. of Topeka, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083] to Swann [v. CharlotteMecklenburg Bd. of Ed., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554] has taught us anything, it is that integration does not occur merely when and because we say it should.” Id., quoting Thompson v. Madison County Board of Education, 496 F.2d 682, 686 (5th Cir. 1974). Finally Judge Tjoflat believed that the majority was avoiding the plain import of the Bradley decision. 579 F.2d at 920. While we find ourselves in sympathy with Judge Tjoflat’s position, we need not adopt it to determine that CHA’s arguments are not advanced by Clarksdale Y. CHA would have to show, as the School District did in the Clarksdale V majority’s opinion, that “all definitive and substantive orders * * * had been entered and were being complied with” before October 19,1976. As our summary of the Gautreaux litigation amply indicates, relief was still being formulated in 1976 and CHA compliance was minimal. Finding CHA’s precedents readily distinguishable, the district judge placed reliance instead on Bolden v. Pennsylvania State Police, 491 F.Supp. 958 (E.D.Pa.1980). There a lawsuit challenging the defendants’ racially discriminatory hiring and promotion practices had been filed in 1973 and a consent decree entered in 1974. Nonetheless, the court treated the suit as still pending in 1976, for purposes of Section 1988, because “the consent decree expressly contemplated a continuing judicial proceeding.” 491 F.Supp. at 961. The defendants were under court order to develop job-related hiring and promotion criteria, demonstrate the criteria’s validity to the district judge, and then use them to remedy past discrimination. But [njearly six years after the entry of the 1974 consent judgment and four years after passage of the 1976 Fees Awards Act, implementation of the class relief remains in the initial stage. Nor have plaintiffs been responsible for the delay in any way. Defendants have simply not fulfilled their obligation to develop and present to the Court evidence of valid, nondiscriminatory employment standards. Id. In the absence of controlling precedent in this Circuit, Judge Crowley was correct to recognize the distinguishability of the Fourth and Fifth Circuit cases and to rely instead on Bolden. The Nature of Equitable Proceedings The district judge’s decision is also consistent (and CHA’s arguments are not) with the nature of modern suits in equity. When broad equitable relief is sought to remedy a constitutional violation, the remedy must be tailored to the scope of the violation. Hills v. Gautreaux, supra, 425 U.S. at 293-294, 96 S.Ct. at 1544-1545; cf. Milliken v. Bradley (Milliken I), 418 U.S. 717, 744, 94 S.Ct. 3112, 3126, 41 L.Ed.2d 1069; Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554. With that caveat, however, the federal district judge acting as chancellor “has broad and flexible powers to mold each decree to the necessities of the particular case and to remedy the consequences of past constitutional violations.” Gautreaux v. Romney, supra, 457 F.2d at 133 (Sprecher, J., dissenting). The reality in such cases, as we have learned primarily in the school desegregation context, is that the finding of a constitutional violation is in a practical sense only the preliminary hurdle. The heart of the lawsuit is the remedial stage, where the parties struggle, often for years, over the scope and details of injunctive relief. Under such circumstances it is not uncommon for the parties to take no appeal from the initial liability determination — as the parties in Gautreaux did not — because they recognize the wisdom of husbanding their energy and resources for the true battleground. Cf., e.g., Pasadena City Board of Education v. Spangler, 427 U.S. 424, 428, 96 S.Ct. 2697, 2701, 49 L.Ed.2d 599 (Board voted to take no appeal from district court’s finding of liability and entry of initial injunction); Bradley v. Milliken, 468 F.2d 902 (6th Cir. 1972), certiorari denied, 409 U.S. 844, 93 S.Ct. 45, 34 L.Ed.2d 83 (after trial on the merits, 338 F.Supp. 582 (E.D.Mich.1971), initial appeal involved unsuccessful challenge to district judge’s interlocutory order that desegregation plans be submitted; liability finding not challenged); Bradley v. School Board of Richmond, 345 F.2d 310, 313 (4th Cir. 1965), vacated on other grounds, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187 (Board never challenged liability determination, but only whether it should have a reasonable opportunity to correct deficiencies without an injunction issuing). The notion of pendency for Section 1988 purposes ought to bear some relation to this reality. Judge Crowley recognized as much when he resisted CHA’s persistent efforts to “mischaracterize this case as a series of separate matters instead of recognizing it as a continuous litigation.” 523 F.Supp. at 689. We are mindful of the genuine' concern, discernible in some of the cases on which CHA relies and in the dissenting opinion of Judge Pell, that an expansive view of pend-ency in equitable proceedings may permit long dormant cases to be reopened solely for the purpose of obtaining attorneys’ fees that were not available when the cases were in active litigation. See, e.g., Scott v. Winston-Salem/Forsyth County Board of Education, 400 F.Supp. 65, 68 (M.D.N.C. 1974), affirmed without opinion, 530 F.2d 969 (4th Cir. 1975) (discussing 20 U.S.C. § 1617). But marginal cases can be left for another day: in Gautreaux there has been no hiatus or period of dormancy, and the issues pending in 1976 and after have been central to the merits, not supposititious. Furthermore, an award of fees under the 1976 Act is addressed to the discretion of the district judge, and he may refuse them — or limit them — if special circumstances would make a full award unjust. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263. The question then becomes what circumstances are “special” in a retrospective award of fees? Surely not the duration and expense of the litigation, once it is found to have been pending on the relevant date — otherwise the Congressional purpose would be subverted by judicial fiat. As the First Circuit has observed, “once the door to the Fees Act is opened, a full inquiry as to plaintiffs’ entitlement to an award [is] in order. It is of no moment that the services in question were rendered almost entirely prior to the effective date of the Act.” David v. Travisono, 621 F.2d 464, 468 (1st Cir. 1980) (per curiam). Surely also not a party’s expectation at the outset of the litigation that fees would not be awardable, “since there is no indication that the [statutory] obligation * * , if known, * * would have caused [the party] to order its conduct so as to render [the] litigation unnecessary and thereby preclude the incurring of such costs.” Bradley, supra, 416 U.S. at 721, 94 S.Ct. at 2021. The Northcross Court, supra, 611 F.2d at 635, has suggested several factors that would qualify: the entry of final orders disposing of interim aspects of prolonged cases, including attorney fee claims; the presence of potentially liable defendants who have joined the litigation principally as amici curiae ; or the existence of delay that causes demonstrated prejudice to the defendants. CHA has not argued that special circumstances, in the sense described above, make the award of fees against it unjust. As we have recently had occasion to remark, “the burden of demonstrating the existence of special circumstances is on the defendant * * * and the ‘special circumstances’ limitation of section 1988 is applicable only to unusual cases.” Crosby v. Bowling, 683 F.2d 1068, 1072 (7th Cir. 1982). Instead CHA has concentrated its fire on the argument that the case was not pending at all on October 19, 1976 — or that if certain portions of the case were pending then, the Gautreaux plaintiffs were not prevailing parties — thus making the award of fees legally improper. We find Judge Crowley’s contrary decision that the entire litigation in which plaintiffs did prevail was open to a fee award more consistent with Congressional purpose, the Gautreaux case itself, the relevant precedents, and the powers of a court of equity. II CHA’s second line of defense is that the Gautreaux plaintiffs’ fee application was untimely. The argument proceeds as follows: attorneys’ fees under Section 1988 are “costs” governed by Rule 54(d) of the Federal Rules of Civil Procedure, Hairline Creations, Inc. v. Kefalas, 664 F.2d 652, 659-660 (7th Cir. 1981). Rule 54(d) has no intrinsic time limit, but Rule 45 of the General Rules of the Northern District of Illinois requires that a motion for “costs” be filed within ten days of entry of a judgment allowing costs. Failure to file in time waives “costs other than those of the Clerk, taxable pursuant to 28 U.S.C. § 1920.” Therefore, according to CHA, at least since 1973 when Local Rule 45 took effect, the Gautreaux plaintiffs should have filed motions for attorneys’ fees within ten days of each order entered in the case. There are two defects in this argument. First, neither Judge Crowley in this case, 523 F.Supp. at 689, nor Judge Marshall in Independent Voters of Illinois v. Chicago Housing Authority, No. 76 C 3683 (N.D.Ill. Jan. 31, 1979) (unpublished but reproduced in CHA App. at 114-124), has subscribed to CHA’s construction of Local Rule 45. They treat Rule 45 as applying only' to Judicial Code Section 1920 costs (a category that does not include attorney’s fees), and a late Rule 45 motion as waiving four of the five kinds of costs otherwise recoverable under Section 1920. In short, Rule 45 has nothing whatsoever to do with a motion for attorney’s fees under Section 1988. Cf. the discussion in Metcalf v. Borba, 681 F.2d 1183 (9th Cir. 1982). Another problem with CHA’s timeliness argument, which Judge Crowley recognized, 523 F.Supp. at 689, is that these fees are being sought pendente lite, Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670, and not at the conclusion of the litigation. That is, the event that triggers the time limit of Rule 45, even if the rule were applicable, has not yet occurred: no judgment allowing costs has been entered. To be sure, the original injunction and its modifications have provided that costs will be assessed against CHA when they are determined, but that time has not yet arrived. In other words, in its timeliness argument — as in its pendency argument — CHA has overestimated the discreteness of the various stages of this litigation. Absent a fixed time limitation, the only constraint on when the plaintiffs file for attorneys’ fees under Rule 54(d) of the Federal Rules is laches (CHA Br. 32). A laches claim must demonstrate both undue delay and prejudice to the non-delaying party, Advanced Hydraulics, Inc. v. Otis Elevator Co., 525 F.2d 477, 479 (7th Cir. 1975), certiorari denied, 423 U.S. 869, 96 S.Ct. 132, 46 L.Ed.2d 99. Here CHA can show neither. A motion for fees pendente lite is presented early rather than late: “the party to whom the fees [are] awarded [has] established the liability of the opposing party, although final remedial orders [have] not been entered.” Hanrahan, supra, 446 U.S. at 757, 100 S.Ct. at 1989. The logic behind such an interim award must be that, although it is premature in a sense, the plaintiff is sufficiently likely to prevail ultimately that he (or his lawyers) should be relieved from financial hardship until then. Prematurity and. laches are antinomical concepts. CHA also does not succeed in demonstrating prejudice from the timing of the fee application. It instances only Mr. Polikoff’s claim for forty hours spent on reconstructing his hours from 1965 to 1980 (Br. 32, n.*). Less than three hours per year strikes us as fast work by Mr. Polikoff: he could not reasonably have been expected to spend less time constructing an earlier petition for fewer hours. It is much more likely, as appellees point out, that CHA has benefited from the timing: “in th[e] reconstruction, Mr. Polikoff omitted many hours he could no longer recall or document.” (Br. 16; cf. Polikoff affidavit, CHA App. at 5.) Ill Having found that the Fees Awards Act applies to this litigation and that the fee petitions were filed at an appropriate time, it remains only to consider CHA’s arguments about the actual amount of the award. This last step of our review asks only whether the district judge’s fee award under Section 1988 amounted to an abuse of discretion. CHA’s main contentions are that (1) an hourly rate of $125, though it concededly “is not excessive in the current market for legal services,” is too high for all the work done over a fourteen-year period; (2) the fees should be limited because they are to be paid to ACLU and BPI, two not-for-profit organizations;- and (3) the fees should be reduced because of the financial difficulties CHA is experiencing (Br. 35-36; quoted language at 35). These arguments were all fully aired before the district judge, and we cannot fault his resolution of them. It is appropriate in this case to award a current hourly rate (rather than various historical rates) for all the hours claimed. In the first place, the appellants’ attorneys have had no fees at all during an intensely inflationary period. The use of current market rates in comparable circumstances has been approved in Copeland v. Marshall, 641 F.2d 880, 893 & n. 23 (D.C.Cir.1980) (en banc); Northcross, supra, 611 F.2d at 635; Hernandez v. Finley, slip op. No. 74 C 3473 (N.D.Ill. Feb. 20, 1981) at 4; Custom v. Quern, 482 F.Supp. 1000, 1006 (N.D.Ill.1980) (semble). In the second place, the compensation awarded multiplies the minimum number of hours Mr. Polikoff worked by the hourly rate, and Mr. Polikoff stands as a surrogate for the teams of volunteer lawyers who have staffed the Gautreaux case since its inception. Thus CHA is not being penalized: it has had the use of its money until now, which should offset the application of current hourly rates; and it is not being required to pay for all the legal help plaintiffs have had. CHA also objects to the uniform $125 rate because the plaintiffs had no entitlement to fees until 1976 and delayed petitioning for them until 1981. These grounds simply restate the timeliness argument (Part II supra) and take issue once again with Congress’ stated intent in enacting the Fees Awards Act (Part I supra). The notion that fee awards should be reduced where they are to be paid to not-for-profit organizations has been rejected by every court of appeals to consider it. See Copeland v. Marshall, supra, 641 F.2d at 896-900, especially the catalog of precedents under various fee statutes at 900. Three judges in the Northern District of Illinois have similarly rejected the argument: Dietrich v. Miller, 494 F.Supp. 42, 44 (N.D.Ill.1980) (Bua, J.); Custom v. Quern, supra, 482 F.Supp. at 1002-1005 (N.D.Ill.1980) (Marshall, J.); and Lackey v. Bowling, 476 F.Supp. 1111, 1116-1117 (N.D.Ill.1979) (Grady, J.). We take this opportunity to make explicit what was implied in Hairston v. R & R Apartments, 510 F.2d 1090, 1093 (7th Cir. 1975) (construing 42 U.S.C. § 3612(c)): the Seventh Circuit should be added to Copeland’s roster. The financial difficulties of CHA are alluded to only in passing in the brief on appeal (Br. 36). CHA apparently does not argue that its plight warrants a 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_bank_r1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine whether or not the first listed respondent is bankrupt. If there is no indication of whether or not the respondent is bankrupt, the respondent is presumed to be not bankrupt. In the Matter of UNISERVICES, INC., Debtor. Arthur A. FAIRBANKS, as Trustee, etc., Petitioner-Appellee, v. William H. DUDENHOFFER et al., Respondents-Appellants. No. 74-1486. United States Court of Appeals, Seventh Circuit. Argued Jan. 20, 1975. Decided May 14, 1975. Gary A. Goldstein, Baltimore, Md., Douglas Shortridge, Indianapolis, Ind., for respondents-appellants. Sigmund J. Beck, Marvin L. Hackman, Gordon D. Wishard, Indianapolis, Ind., for petitioner-appellee. Before FAIRCHILD and MARKEY, Chief Judges, and STEVENS, Circuit Judge. Chief Judge Howard T. Markey of the United States Grfurt of Customs and Patent Appeals is sitting by designation. . s-' ! MARKEY, Chief Judge. This is an appeal from the judgment and order of the district court sustaining, with modification, the order of the bankruptcy judge declaring that Dudenhoffer had certain duties enforceable in equity by the trustee, Fairbanks. We affirm. Background On December 8, 1970, Fairbanks was appointed Trustee in Reorganization of a publicly held Delaware corporation, Uniservices, Inc. (Debtor), under Chapter X of the Bankruptcy Act, Crystal Industrial Services, Inc. (Crystal) is a Delaware Corporation wholly owned by Debtor. The business involved is that of providing industrial laundry, uniform rental, shop towel, and dust control services (industrial laundry) in central Indiana. Dudenhoffer and certain members of his family had sold the assets and business of an Indiana corporation named Crystal Industrial Services Inc. to Debtor in 1966. At the time of the bankruptcy judge’s order, Dudenhoffer et al. still held 20.77% of Debtor. Dudenhoffer served as a director, executive vice-president and president of Debtor and of Crystal after the latter was organized to receive the assets sold by Dudenhoffer et al. From August 1, 1966, to December 8, 1970, Dudenhoffer was the full time general manager and chief executive officer of Crystal. When Fairbanks took over as trustee, he continued Dudenhoffer in that employment. On August 31, 1972, Fairbanks terminated Dudenhoffer’s employment. Dudenhoffer does not challenge the bankruptcy judge’s finding of good cause for his termination. No written employment agreement between Dudenhoffer and Crystal, Debtor, or Fairbanks ever existed. Of the five members of the board of directors and executive committee of Debtor, all but Dudenhoffer and Herman Miller had executed employment contracts having covenants not to compete. Miller left Debt- or’s employ, resigned from the board of directors, and set up a business in Florida which apparently solicited customers and employees from Debtor’s Florida subsidiary. At Dudenhoffer’s urging, Fairbanks instituted court action in Florida against Miller which resulted in a consent order wherein Miller agreed to refrain from solicitation of customers and employees of Debtor’s Florida subsidiary for a specified time. At the time of his discharge, Dudenhoffer refused, until the matter could be settled by a court, to sign an agreement not to compete with Crystal. On September 25, 1972, Fairbanks petitioned for a declaration of rights in this regard. Whether Dudenhoffer had a duty not to compete with or to solicit customers of Crystal appeared to the bankruptcy judge to require such declaration in aid of a determination of whether a plan of reorganization was possible in the Chapter X proceedings. After an evidentiary hearing and consideration of . the briefs the bankruptcy judge entered the following: ORDER IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that: 1. William H. Dudenhoffer has a duty and obligation, which is enforceable in equity by the Trustee or any assignee or successor in interest to the business of Crystal Industrial Services, Inc. not, for a period of two (2) years from and after August 31, 1972, to engage, directly or indirectly, either as a principal, officer, employee or otherwise, in the industrial laundry, uniform, garment, towel or dust control rental business within a radius of seventy-five (75) miles in any direction from a line drawn directly from the City of Indianapolis, Indiana, to the City of Fort Wayne, Indiana, except as an employee of the Trustee or any assignee or successor in interest to the business of Crystal Industrial Services, Inc. 2. William H. Dudenhoffer has a duty and obligation, which is enforceable in equity by the Trustee or any assignee or successor in interest to the business of Crystal Industrial Services, Inc., not, for a period of two (2) years from and after August 31, 1972, directly or indirectly, either as a principal, officer, employee or otherwise, serve or attempt to provide any industrial laundry, uniform, garment, towel or dust control services to any customers of Crystal Industrial Services, Inc., who were customers of Crystal Industrial Services, Inc. on August 31, 1972, except as an employee of the Trustee or any assignee or successor in interest to the business of Crystal Industrial Services, Inc. 3. No injunction will issue at the present time in the absence of evidence that William H. Dudenhoffer has violated or threatens to violate his duties and obligations herein; but the Court will retain jurisdiction of this matter for the purpose of receiving and hearing any subsequent petition or petitions by the Trustee or any assignee or successor in interest to the business of Crystal Industrial Services, Inc. alleging a violation of paragraphs 1 or 2 of this Order, or both. 4. The costs of this proceeding are taxed against the Respondent, the amount of which to be determined at a later date. ENTERED at Indianapolis, Indiana, this 14 day of June, 1973. The district court, after a hearing and consideration of the briefs and transcript, found sufficient evidence to sustain the bankruptcy judge’s Findings, Conclusions and Order and affirmed them in the order on review. In that order, however, the district court reversed the non-competition portion (par. 1) of the bankruptcy judge’s order and instructed that it be re-entered to provide for a non-competition period of no more than one year. The Issue The sole issue before us is the validity of the declaration that Dudenhoffer had a duty to refrain from serving or attempting to serve Crystal’s August 31, 1972 customers for two years after that date and a duty to refrain from engaging in the industrial laundry business within the specified geographical area for one year after his August 31, 1972 discharge. Dudenhoffer’s brief repeatedly (and erroneously) stated that he was “enjoined.” Apparently he had refrained from competition for the nine month period between his discharge and the date of the bankruptcy judge’s order. For that reason, as the order stated, no injunction issued. His election to await a final court declaration of his duty and obligation before competing cannot be equated with an injunction. OPINION Determination of the extent and nature of a corporation’s property is a required element in the evaluation, by a trustee in bankruptcy, of a proposed Chapter X reorganization plan. To that end, it is often necessary and proper for a federal court sitting in bankruptcy matters to determine that which constitutes protectible property under state law and to declare property rights accordingly. See, for example, In re Bettinger Corp., 197 F.Supp. 273 (D.Mass'. 1961). Our touchstone on review in this case is Indiana law. In Miller v. Ortman, 235 Ind. 641, 136 N.E.2d 17 (1956), the highest Indiana court stated: Public policy is committed to the proposition that a man is free to conduct a lawful business and that the good will of a business, including contracts with its dealers and representatives and confidential information, such as names and addresses and requirements of customers, and the advantage acquired through representative contact with the trade in the area of their application, is a property right which an owner is entitled to protect. [Footnote omitted and emphasis added.] That Crystal’s customer information constitutes protectible property is underscored by the assignment thereto of independent market values, more fully discussed below. In Miller, the court saw such property as protectible by contract and, absent a contract, against conspiracy to appropriate by unlawful acts. Once found protectible, the property may be protected by a court declaration of rights. Notwithstanding a determination of Crystal’s property, we must face here, as we often do, the need to balance competing rights. Dudenhoffer’s right to engage in the business in which he had long been active, and to call on customers of his former employer, cannot be lightly disregarded. Nor can the rights of Debtor in its information-type property and its expectations of confidentiality be ignored. Each party’s duties and rights must be tempered with consideration of the other’s; the final consideration being the public’s interest in competition which is both fair and unfettered. The balance of duties and rights which the district court struck herein is reasonable as between the parties and is not oppressive to the public interest. In an attempt to show that Debtor’s rights were given excessive weight, Dudenhoffer challenges the confidentiality of Crystal’s customer data on the ground that anyone could learn the customers’ identity by surveillance of salesmen on their routes. The obvious cannot be secret or confidential. See Smith v. Dravo Corp., 203 F.2d 369 (7th Cir. 1953). But more than customer identity — more than a mere list of names and addresses — is involved here. The data Crystal maintains extends to particular requirements, preferences, and habits of individual customers. None of those factors could be learned by surveillance. Hence, they could be maintained secret. Dudenhoffer further contends that certain customer data is not secret because it is generally known in the trade. Although the evidence indicates that some of Crystal’s data might be known to competitors, we do not find Crystal’s property right, insofar as it may be enforceable against Dudenhoffer, to be effected. Our inquiry is not how others could have acquired the data; but rather, how did Dudenhoffer acquire it? Dudenhoffer gained his knowledge of Crystal’s trade data in confidence. Use of information gained through lawful inspection and surveillance cannot be restricted; use of the same information disclosed in confidence may be restricted. See Smith v. Dravo Corp., supra. It is immaterial that some of Crystal’s competitors may be in legitimate possession of some portion of its secret trade data. The bankruptcy judge found that Dudenhoffer was estopped by his prior conduct to deny that the trade routes and customer service contracts are trade secrets as to him. We agree. Dudenhoffer and his family sold the assets of Crystal to Debtor with “trade routes, covenants and agreements” valued at $1,500,000. The last annual report that Debtor published prior to reorganization valued “trade names, routes and service contracts” at $1,092,725. As a corporate officer Dudenhoffer treated Crystal’s trade data as secret by requiring employees to sign agreements against their disclosure, by emphasizing the need for internal security concerning the data and further by requiring Crystal’s prospective purchasers and other subsidiaries of Debtor who were given non-public information to enter agreements not to solicit Crystal’s customers for two years. While this action was before the bankruptcy judge, Dudenhoffer urged Fairbanks to challenge Herman Miller’s solicitation of Debtor’s customers in Florida. Dudenhoffer consistently treated Debtor’s trade data as a valuable asset. From all the above, we conclude that the district court committed no error in protecting Debtor’s confidential information by imposing upon Dudenhoffer the duty not to solicit customers of Crystal for the two years following his discharge from Debtor’s employ. The foregoing considerations are based on the duty, which Dudenhoffer owed Debtor, of respecting information received in confidence. It is of no import that Dudenhoffer consistently refused to recognize that duty and refused to agree not to compete and not to solicit Crystal’s customers for a limited period. We are in agreement with the statement of the Indiana Supreme Court, made by way of dictum in Westervelt v. National Paper & Supply Co., 154 Ind. 673, 57 N.E. 552 (1900), that: He [employee] occupies a confidential relation to appellee [employer], and in such case the law raises an implied contract between them that the employe will not disclose any trade secret imparted to him or discovered by him in the course of his employment. A disclosure of such secrets thus acquired is not only a breach of contract on his part, but is a breach of trust which a court of equity will prevent. The district court held Dudenhoffer to be bound to an implied, limited covenant not to compete with Crystal and held that covenant as continuing for a reasonable time after his separation. We agree that on the facts of this case, a court sitting in equity may imply such a limited agreement not to compete. Because of his standing in the hierarchy of the corporation, Dudenhoffer was able to and did demand covenants not to compete from employees, which covenants continued for one year after termination of their employment. He refused, when requested, to make such commitment himself. We know of no reason in equity why Dudenhoffer should escape the restriction he imposed on others merely because of his superior corporate position or because of the admittedly justifiable termination of his employment. The extent of the implied covenant imposed by the district court is coincident in scope of time and geographical area with covenants imposed by Dudenhoffer on other employees. After concluding that appellant is bound by an implied covenant, the terms of which are definite, we have only to decide whether those terms are reasonable. A restraint on competition must not exceed the legitimate individual interest served by the restraint. Buanno v. Weinraub, 226 Ind. 557, 81 N.E.2d 600 (1948); Grand Union Tea Co. v. Walker, 208 Ind. 245, 195 N.E. 277 (1935); Miller v. Frankfort Bottle Gas, Inc., 136 Ind.App. 456, 202 N.E.2d 395 (1964), and cf. Donahue v. Permacel Tape Corp., 234 Ind. 398, 127 N.E.2d 235 (1955); Struever v. Monitor Coach Co., 294 N.E.2d 654 (Ind.App.1973). Debtor serves customers throughout the area within 75 miles of a line between the cities of Indianapolis and Fort Wayne. The one year period of non-competition is not unreasonable. We note that periods of as long as five years have been held reasonable in Indiana. Miller v. Frankfort Bottle Gas, supra. Accordingly, the decision of the district court is in all respects affirmed. . Assuming that Dudenhoffer avoided risk by refraining from competition until the district court’s order of April 4, 1974, though under no injunction to do so, he was free, as of that date, to compete without risk of violating any declared duty. In view of the count’s ‘reduction of the non-competition period, he has been without such risk since August 31, 1973. The order respecting customer solicitation terminated August 31, 1974. Though designated “orders,” the actions of the bankruptcy and district judges constituted declarations of rights. Question: Is the first listed respondent bankrupt? A. Yes B. No 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. Abraham M. KATZ, Defendant, Appellant, v. UNITED STATES of America, Appellee. Harry A. KATZ, Defendant, Appellant, v. UNITED STATES of America, Appellee. Samuel KATZ, Defendant, Appellant, v. UNITED STATES of America, Appellee. Max KATZ, Defendant, Appellant, v. UNITED STATES of America, Appellee. Nos. 6082-6085. United States Court of Appeals First Circuit. July 12, 1963. Certiorari Denied Nov. 12, 1963. See 84 S.Ct. 193. Manuel Katz, Boston, Mass., with whom Paul T. Smith, Boston, Mass., was on brief, for appellants. Paul J. Redmond, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., and Daniel B. Bickford, William F. Looney, Jr., and John J. Curtin, Jr., Asst. U. S. Attys., were on brief, for appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. ALDRICH, Circuit Judge. These are appeals by four defendants, convicted at a joint trial on a total of twelve counts for attempting to evade income taxes by filing false and fraudulent personal returns for one or more of the years 1955 to 1958. The defendants, three brothers and a brother-in-law, were the officers, directors and stockholders of State Line Potato Chip Company, Inc. Defendant Max Katz, the principal and managing officer of the company, will hereinafter be referred to as Max, and the rest, collectively, as the other defendants. The other defendants sought trial separately from Max, alleging that their cases were essentially different, and, further, that they would be prejudiced by certain extrajudicial admissions allegedly made by Max and con-cededly not binding upon them. On the government’s representation that “basically the evidence would be the same” against all four (it did not deny individual differences, or that Max had made personal admissions) the court refused to sever. It added, “[I]f at the end I find there has been prejudice, I won’t hesitate to act.” Thereafter the court did, in fact, act. Initially there had been included four counts against Max for causing falsification of the corporate returns. After the trial began, apparently feeling that in that matter the basic evidence was different, with Max’s permission the court granted a mistrial on those counts and postponed them to a later date. It took no subsequent action with respect to separating the other counts, nor was it asked to. The mere fact that all the evidence is not admissible against all defendants does not necessitate separate trials. Opper v. United States, 1954, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101; Ma-latkofski v. United States, 1 Cir., 1950, 179 F.2d 905. Having read the full record we are well satisfied that it was appropriate to try the remaining cases together. The defendants moved to quash the indictment, and to strike the petit jury panel, because of the manner of drawing the grand and petit juries. One of their grounds we have since disposed of in Gorin v. United States, 1 Cir., 1963, 313 F.2d 641, cert. den. 374 U.S. 829, 83 S.Ct. 1870, 10 L.Ed.2d 1052. The other is an alleged discrimination in that no jurors were drawn from that part of the district which lies west of Worcester County. 28 U.S.C.A. § 1865(a) provides, “(a) Grand and petit jurors shall from time to time be selected from such parts of the district as the court directs so as to be most favorable to an impartial trial, and not to incur unnecessary expense or unduly burden the citizens of any part of the district with jury service. To this end the court may direct the maintenance of separate jury boxes for some or all of the places for holding court in the district and may appoint a jury commissioner for each such place.” The clerk stated in open court that when the court was sitting in Boston it was standard procedure not to call jurors from west of Worcester County. We take judicial notice that this has been so for many years. In the light of this statute there can certainly be no abuse in not calling jurors who live over 60 miles from the courthouse. The defendants’ point is groundless. United States v. Gottfried, 2 Cir., 1948, 165 F.2d 360, cert. den., 333 U.S. 860, 68 S.Ct. 738, 92 L.Ed. 1139. Prior to trial the defendants moved for the suppression of a certain “black book” and the “fruits thereof.” The court properly found, on adequate testimony, that this book was a corporate record, and had been taken by the government after it had been tendered to the agent by Max (albeit that Max misrepresented its content, causing the tender to be initially refused) and that no constitutional rights had been infringed. The point pressed on this appeal, except for arguments based upon testimony properly discredited by the district court, is that subsequently, at the trial, the revenue agent testified that he had not stated his exact purpose when asking for the book. We will assume, without deciding, that this testimony may be related back to the motion. Even so, the present contention is both late and specious. It is too late because even when the motion was reargued to the district court the point was not made. It is specious because even if it be assumed that to request a document by stating that it is wanted for one reason when another reason is the one primarily in mind may be a misrepresentation, there is no evidence that Max was misled. Analysis, not necessary to articulate, indicates that he could not have been. Coming to the merits, there are only two substantial questions; the court’s permitting the jury to find that certain corporate distributions constituted income wilfully concealed by individual defendants, and the marking of the corporate books as exhibits. These questions require a brief summary of the evidence. On the testimony of Max and the two other defendants who took the stand, which we may largely accept in this particular, the general management and all of the fiscal affairs, including making all the entries in the books of the company were, with the acquiescence of the other defendants, handled by Max alone. The other defendants took no action in their several capacities of officers and directors, attended no meetings, and signed “minutes” and other papers without reading. Max’s authority extended even to a single-handed “big-brother” decision as to all corporate distributions to all defendants, whether by way of salary, bonus, or otherwise. The evidence warranted a finding that payments pursuant to Max’s determination were made continually, not onfy by the common device of having the company satisfy personal bills, in some instances under the guise of having them appear to be corporate expenses, but also by deposits into over two hundred savings bank accounts, and into a war savings bond account from which bonds were bought which were subsequently redeemed by individual defendants. Many of these savings accounts were in joint names, to include a child of the defendant, but in most instances the children testified that they had no knowledge that the accounts existed. This warranted an inference that the individual defendants retained full ownership, and that not merely the deposits, but accrued interest, constituted personal income. Testimony was introduced, also, as to the payment of bills and the purchase of property, tangible and intangible, for defendants’ children. On the government’s evidence the resulting direct and attributable income greatly exceeded that stated on the returns. A primary defense of the other defendants to this showing was that they were unaware that Max had made many of these distributions. In support thereof Max testified that he did not disclose the bank accounts to the others and that he made the deposits, and various other payments, surreptitiously for his own private purposes, planning their subsequent recapture; in short, that this was a concealed embezzlement. The jury could find it inherently improbable that if Max intended these to be secret, improper transfers of corporate assets against the interest of his brothers he would have made them in this elaborate manner in which his brothers and their children were so frequently given at least record title or control. In addition, there was testimony of a handwriting expert warranting the jury in finding that the other defendants had substantial notice, and in many instances specific knowledge from Max that this distribution procedure was in process. The defense presented, at best, an issue of fact which the court fully put to the jury. The government’s first witness testified that all defendants executed their returns in blank, and that the witness, as the accountant, thereafter prepared the returns of all four on the basis of information given him by Max, and filed them without further verification. Two of the other defendants acknowledged this, but testified that they supplied Max with personal data. However, they admitted that with respect to the substantial matter of corporate distributions and withholding they never knew the correct amounts and relied upon Max to ascertain them as well as to inform the accountant. A return is not short of wilful falsity because the taxpayer chooses to keep himself uninformed as to the full extent that it is insufficient, or as to what exact figures should have been inserted. Innocence can not outdistance ignorance. The jury was warranted in finding that all defendants knew Max was not revealing their full income. This was enough. The other principal issue relates-to the admission of the corporate records. Although it was open to the jury to find that the records were authentic, United States v. Tellier, 2 Cir., 1958, 255 F.2d 441, cert. den., 358 U.S. 821, 79 S.Ct. 33, 3 L.Ed.2d 62, the government made no attempt to prove that they were made in the regular course of business, and hence admissible under 28 U.S.C.A. § 1732. We may agree with the defendants, other than Max who prepared and was personally responsible for them and cannot make the point, that corporate records not so kept are normally inadmissible against officers and directors who are not shown to have been responsible for them, or to have had actual knowledge of their content, in cases involving personal (as distinguished from corporate, cf. Cooper v. United States, 8 Cir., 1925, 9 F.2d 216) matters. Worden v. United States, 6 Cir., 1913, 204 F. 1; Osborne v. United States, 9 Cir., 1927, 17 F.2d 246, cert. den. 274 U.S. 751, 47 S.Ct. 765, 71 L.Ed. 1332. But. cf. United States v. Tellier, supra. The court admitted the records generally, but charged the jury that they should be considered against a particular defendant only if it found that they had been kept in the regular course of business and that the defendant had had opportunity of access thereto. This was a peculiar ruling, not only because if the records had been made in the regular course of business they would appear admissible under Section 1732 even if the defendant did not have access, but, more important, because it was never shown, and seemingly never even claimed, that they were so kept. The jury was not instructed as to the meaning of “kept in the regular course of business,” and must have assumed that the evidence warranted such a finding. Since it did not, this condition could not be effective, and whatever the jury did because of it can be of no legal consequence. We must accordingly interpret the court’s instruction as merely requiring the jury to find that the records were accessible. Under the unusual circumstances of this case, however, we think this was a sufficient limitation. Where the defendants were all the officers, directors and stockholders of the company, the singular, absolute authority delegated to Max by the others to manage all their affairs could not fail to make him their agent with respect to keeping the corporate books, at least to the extent that the books were open to their inspection, Cf. United States v. Feinberg, 2 Cir., 1944, 140 F.2d 592, 154 A.L.R. 272, cert. den., 322 U.S. 726, 64 S.Ct. 943, 88 L.Ed. 1562. Any other result would put a premium on the defendants’ voluntary anopsia. One final matter. The other defendants contend that a substantial number of payments attributed to them by the government were shown (conclusively, they say, and for present purposes we will so assume) to have been beneficially received by Max, instead, or to have represented repayments of amounts loaned to the corporation on open account. These defendants claim the totals are so large that, with the possible exception of one or two counts as to one of them, they did not in fact underpay their taxes, and that, accordingly, their motions for acquittal should have been granted. Examination of the evidence as a whole, however, discloses that in order for each defendant to have overpaid his tax certain additional items of income must be eliminated as to which, once the corporate records are admitted, there was a clear issue of fact. This, of course, was enough; the extent of the underpayment was not vital. United States v. Johnson, 1943, 319 U.S. 503, 517, 63 S.Ct. 1233, 87 L.Ed. 1546. There was no error in denying the motions. Judgment will be entered affirming the judgments of the District Court. . One matter perhaps necessary to mention is the trial court’s observation, when the clerk stated that for Boston sittings jurors were never drawn from west of Worcester County, that it was “ * * * a lucky thing I am not a witness in this case. I know better.” Defendants seek to make something of this. We have currently inspected a number of jury requisitions in the files of the district court signed by this judge, including the requisition preceding the drawing of this particular petit jury, and they all, in accordance with the regular practice, provide for calling “persons residing in cities and towns in Worcester County and Counties to the east thereof * * * ” and none other. The court’s contrary “knowledge” can only be regarded as a hasty remark, quite out of keeping, it may be added, with its meticulous conduct of the trial. . This book did not go to the jury, and the only suggested “fruit” was an extrajudicial admission by Max, when confronted by the book, that he had falsified certain other records. Since this admission was not permitted to be considered against the other defendants, strictly Max alone is presently interested in this question. . Several small matters are raised which do not warrant discussion. The defendants press two evidentiary exceptions with respect to which, if there were error, the issues were so minuscule that there could be no possible prejudice. Do-fendants also complain of the court’s alleged refusal to grant four requests for instructions. To the extent these instructions were not clearly given in substance, in some instances repetitiously by explicit qualifying instructions when the evidence referred to was introduced, the requests were erroneous. . Indeed, in a brief distinguished by its brevity, the government has, except as to Max, failed to offer any authority or reason why the records should have been admitted at all. . As to one defendant the issue was over what inferences should be drawn as to certain checks. Question: 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:
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. ALESSI et al. v. RAYBESTOS-MANHATTAN, INC., et al. No 79-1943. Argued March 4, 1981 Decided May 18, 1981 Marshall, J., delivered the opinion of the Court, in which all other Members joined, except BreNNan, J., who took no part in the decision of the cases. Theodore Sachs argued the cause for appellants in No. 79-1943. With him on the briefs were Michael S. Scarola and I. Mark Steckloff. Marc C. Gettis argued the cause and filed briefs for petitioners in No. 80-193. Warren John Casey argued the cause for appellees in No. 79-1943. With him on the brief was Sebastian J. Fortunato. Lawrence Reich argued the cause for respondent in No. 80-193. With him on the brief were Otis M. Smith, Eugene L. Hartwig, and David M. Davis. John J. Degan, Attorney-General, Stephen Skillman, Assistant Attorney General, and Michael S. Bokar, Deputy Attorney General, filed a brief for the State of New Jersey as appellee in No. 79-1943, under this Court’s Rule 10.4, and as respondent in No. 80-193, under this Court’s Rule 19.6. Together with No. 80-193, Buczynski et al. v. General Motors Corp. et al., on certiorari to the same court. Briefs of amici curiae urging reversal were filed by Alfred Miller for the American Association of Retired Persons et ah; by Gill Deford and Neal S. Dudovitz for the Gray Panthers; and by Leonard S. Zubrensky and Theodore Sachs for Merl D. Stong et al. Briefs of amici curiae urging affirmance were filed by Solicitor General McCree, Acting Assistant Attorney General Murray, Stuart A. Smith, William A. Friedlander, and Michael J. Roach, for the United States; by Richard T. Wentley and Patrick W. Ritchey for Allegheny-Ludlum Industries, Inc.; by Stanley T. Kaleczyc for the Chamber of Commerce of the United States; by George J. Pantos for the ERISA Industry Committee; and by Charles R. Volk and William W. Scott, Jr., for the National Steel Corp. Justice Marshall delivered the opinion of the Court. Some private pension plans reduce a retiree’s pension benefits by the amount of workers’ compensation awards received subsequent to retirement. In these cases we consider whether two such offset provisions are lawful under the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. § 1001 et seq. (1976 ed. and Supp. Ill), and whether they may be prohibited by state law. I Raybestos-Manhattan, Inc., and General Motors Corp. maintain employee pension plans that are subject to federal regulation under ERISA. Both plans provide that an employee’s retirement benefits shall be reduced, or offset, by an amount equal to workers’ compensation awards for which the individual is eligible. In 1977, the New Jersey Legislature amended its Workers’ Compensation Act to expressly prohibit such offsets. The amendment states that “[t]he right of compensation granted by this chapter may be set off against disability pension benefits or payments but shall not be set off against employees’ retirement pension benefits or payments.” N. J. Stat. Ann. § 34:15-29 (West Supp. 1980-1981) (as amended by 1977 N. J. Laws, ch. 156). Alleging violations of this provision of state law, two suits were initiated in New Jersey state court. The plaintiffs in both suits were retired employees who had obtained workers’ compensation awards subject to offsets against their retirement benefits under their pension plans. The defendant companies independently removed the suits to the United States District Court for the District of New Jersey. There, both District Court Judges ruled that the pension offset provisions were invalid under New Jersey law, and concluded that Congress had not intended ERISA to pre-empt state laws of this sort. The District Court Judges also held that the offsets were prohibited by § 203 (a) of ERISA, 29 U. S. C. § 1053 (a). This section prohibits forfeitures of vested pension rights except under four specific conditions inapplicable to these cases. The judges concluded that offsets based on workers’ compensation awards would be forbidden forfeitures, and struck down a contrary federal Treasury Regulation authorizing such offsets. The United States Court of Appeals for the Third Circuit consolidated the appeals from these two decisions and reversed. 616 F. 2d 1238 (1980). It rejected the District Court Judges’ view that the offset provisions caused a forfeiture of vested pension rights forbidden by § 1053. Instead, the Court of Appeals reasoned, such offsets merely reduce pension benefits in a fashion expressly approved by ERISA for employees receiving Social Security benefits. Accordingly, the Court of Appeals found no conflict between ERISA and the Treasury Regulation approving reductions based on workers’ compensation awards and ERISA. Finally, the court concluded that the New Jersey statute forbidding offsets of pension benefits by the amount of workers’ compensation awards could not withstand ERISA’s general pre-emption provision, 29 U. S. C. § 1144 (a). We noted probable jurisdiction of the appeal taken by the former employees of Raybestos-Manhattan, Inc., and granted certiorari on the petition of former employees of General Motors Corp. 449 U. S. 949 and 950 (1980). For convenience, we refer to the former employees in both cases as retirees. We affirm the judgment of the Court of Appeals. II Retirees claim that the workers’ compensation offset provisions of their pension plans contravene ERISA’s nonfor-feiture provisions and that the Treasury Regulation to the contrary is inconsistent with the Act. Both claims require examination of the relevant sections of ERISA. A As we recently observed, ERISA is a “comprehensive and reticulated statute,” which Congress adopted after careful study of private retirement pension plans. Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U. S. 359, 361 (1980). In Nachman, we observed that Congress through ERISA wanted to ensure that “if a worker has been promised a defined pension benefit upon retirement — and if he has fulfilled whatever conditions are required to obtain a vested benefit—... he actually receives it.” Id,., at 375. For this reason, the concepts of vested rights and nonforfeitable rights are critical to the ERISA scheme. See id., at 370, 378. ERISA prescribes vesting and accrual schedules, assuring that employees obtain rights to at least portions of their normal pension benefits even if they leave their positions prior to retirement. Most critically, ERISA establishes that “[e]ach pension plan shall provide that an employee's right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age.” 29 U. S. C. § 1053 (a). Retirees rely on this sweeping assurance that pension rights become nonforfeitable in claiming that offsetting those benefits with workers’ compensation awards violates ERISA. Retirees argue first that no vested benefits may be forfeited except as expressly provided in § 1053. Second, retirees assert that offsets based on workers’ compensation fall into none of those express exceptions. Both claims are correct; § 1053 (a) prohibits forfeitures of vested rights except as expressly provided in § 1053 (a)(3), and the challenged workers’ compensation offsets are not among those permitted in that section. Despite this facial accuracy, retirees’ argument overlooks a threshold issue: what defines the content of the benefit that, once vested, cannot be forfeited? ERISA leaves this question largely to the private parties creating the plan. That the private parties, not the Government, control the level of benefits is clear from the statutory language defining non-forfeitable rights as well as from other portions of ERISA. ERISA defines a “nonforfeitable” pension benefit or right as “a claim obtained by a participant or his beneficiary to that part of an immediate or deferred benefit under a pension plan which arises from the participant’s service, which is unconditional, and which is legally enforceable against the plan.” 29 U. S. C. § 1002 (19). In construing this definition last Term, we observed: “[T]he term 'forfeiture’ normally connotes a total loss in consequence of some event rather than a limit on the value of a person’s rights. Each of the examples of a plan provision that is expressly described as not causing a forfeiture listed in [§ 1053 (a) (3)] describes an event — such as death or temporary re-employment— that might otherwise be construed as causing a forfeiture of the entire benefit. It is therefore surely consistent with the statutory definition of “nonforfeitable” to view it as describing the quality of the participant’s right to a pension rather than a limit on the amount he may collect.” Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U. S., at 372-373. Similarly, the statutory definition of “nonforfeitable” assures that an employee’s claim to the protected benefit is legally enforceable, but it does not guarantee a particular amount or a method for calculating the benefit. As we explained last Term, “it is the claim to the benefit, rather than the benefit itself, that must be 'unconditional’ and 'legally enforceable against the plan.’ ” Id., at 371. Rather than imposing mandatory pension levels or methods for calculating benefits, Congress in ERISA set outer bounds on permissible accrual practices, 29 U. S. C. § 1054 (b)(1), and specified three alternative schedules for the vesting of pension rights, 29 U. S. C. § 1053 (a)(2). In so doing, Congress limited the variation permitted in accrual rates applicable across the entire period of an employee’s participation in the pension plan. And Congress disapproved pension practices unduly delaying an employee’s acquisition of a right to enforce payment of the portion of benefits already accrued, without further employment. These provisions together assure at minimum a legally enforceable claim to 100% of the pension benefits created by a covered plan for those employees who have completed 15 years of service and for those employees aged 45 or older who have completed 10 years of service. Other than these restrictions, ERISA permits the total benefit levels and formulas for determining their accrual before completion of 15 years of service to vary from plan to plan. See 29 U. S. C. §§ 1002 (22), (23) (benefits defined merely as those “under the plan”). It is particularly pertinent for our purposes that Congress did not prohibit “integration,” a calculation practice under which benefit levels are determined by combining pension funds with other income streams available to the retired employees. Through integration, each income stream contributes for calculation purposes to the total benefit pool to be distributed to all the retired employees, even if the nonpension funds are available only to a subgroup of the employees. The pension funds are thus integrated with the funds from other income maintenance programs, such as Social Security, and the pension benefit level is determined on the basis of the entire pool of funds. Under this practice, an individual employee’s eligibility for Social Security would advantage all participants in his private pension plan, for the addition of his anticipated Social Security payments to the total benefit pool would permit a higher average pension payout for each participant. The employees as a group profit from that higher pension level, although an individual employee may reach that level by a combination of payments from the pension fund and payments from the other income maintenance source. In addition, integration allows the employer to attain the selected pension level by drawing on the other resources, which, like Social Security, also depend on employer contributions. Following its extensive study of private pension plans before the adoption of ERISA, ■ Congress expressly preserved the option of pension fund integration with benefits available under both the Social Security Act, 42 U. S. C. § 401 et seq. (1976 ed. and Supp. Ill), and the Railroad Retirement Act of 1974, 45 U. S. C. § 231 et seq. (1976 ed. and Supp. Ill) ; 29 U. S. C. §§ 1054 (b)(1) (B)(iv), 1054 (b)(1)(C), 1054 (b)(1)(G). Congress was well aware that pooling of non-pension retirement benefits and pension funds would limit the total income maintenance payments received by individual employees and reduce the cost of pension plans to employers. Indeed, in considering this integration option, the House Ways and Means Committee expressly acknowledged the tension between the primary goal of benefiting employees and the subsidiary goal of containing pension costs. The Committee Report noted that the proposed bill would “not affect the ability of plans to use the integration procedures to reduce the benefits that they pay to individuals who are currently covered when social security benefits are liberalized. Your committee, however, believes that such practices raise important issues. On the one hand, the objective of the Congress in increasing social security benefits might be considered to be frustrated to the extent that individuals with low and moderate incomes have their private retirement benefits reduced as a result of the integration procedures. On the other hand, your committee is very much aware that many present plans are fully or partly integrated and that elimination of the integration procedures could substantially increase the cost of financing private plans. Employees, as a whole, might be injured rather than aided if such cost increases resulted in slowing down the growth or perhaps even eliminat[ing] private retirement plans.” H. R. Rep. No. 93-807, p. 69 (1974), reprinted in 2 Legislative History of the Employee Retirement Income Security Act of 1974 (Committee Print compiled for the Senate Committee on Labor and Public Welfare) 3189 (1976) (Leg. Hist.). The Committee called for further study of the problem and recommended that Congress impose a restriction on integration of pension benefits with Social Security and Railroad Retirement payments. Congress adopted this recommendation and forbade any reductions in pension payments based on increases in Social Security or Railroad Retirement benefits authorized after ERISA took effect. 29 U. S. C. § 1056 (b). See 29 U. S. C. §§ 1054 (b) (1) (B) (iv), 1054 (b) (1) (C) ; H. R. Rep. No. 93-807, at 69, 2 Leg. Hist. 3189. See also 26 U. S. C. §401 (a) (15). In setting this limitation on integration with Social Security and Railroad Retirement benefits, Congress acknowledged and accepted the practice, rather than prohibiting it. Moreover, in permitting integration at least with these federal benefits, Congress did not find it necessary to add an exemption for this purpose to its stringent nonforfeiture protections in 29 U. S. C. § 1053 (a). Under these circumstances, we are unpersuaded by retirees’ claim that the non-forfeiture provisions by their own force prohibit any offset of pension benefits by workers’ compensation awards. Such offsets work much like the integration of pension benefits with Social Security or Railroad Retirement payments. The individual employee remains entitled to the established pension level, but the payments received from the pension fund are reduced by the amount received through workers’ compensation. The nonforfeiture provision of § 1053 (a) has no more applicability to this kind of integration than it does to the analogous reduction permitted for Social Security or Railroad Retirement payments. Indeed, the same congressional purpose — promoting a system of private pensions by giving employers avenues for cutting the cost of their pension obligations — underlies all such offset possibilities. Nonetheless, ERISA does not mention integration with workers’ compensation, and the legislative history is equally silent on this point. An argument could be advanced that Congress approved integration of pension funds only with the federal benefits expressly mentioned in the Act. A current regulation issued by the Internal Revenue Service, however, goes further, and permits integration with other benefits provided by federal or state law. We now must consider whether this regulation is itself consistent with ERISA. B Codified at 26 CFR §§ 1.411 (a)-(4)(a) (1980), the Treasury Regulation provides that “nonforfeitable rights are not considered to be forfeitable by reason of the fact that they may be reduced to take into account benefits which are provided under the Social Security Act or under any other Federal or State law and which are taken into account in determining plan benefits.” The Regulation interprets 26 U. S. C. § 411, the section of the Internal Revenue Code which replicates for IRS purposes ERISA’s nonforfeiture provision, 29 U. S. C. § 1053 (a). The Regulation plainly encompasses awards under state workers’ compensation laws. In addition, in Revenue Rulings issued prior to ERISA, the IRS expressly had approved reductions in pension benefits corresponding to workers’ compensation awards. See, e. g., Rev. Rui. 69-421, Part 4 (j), 1969-2 Cum. Bull. 72; Rev. Rui.. 68-243, 1968-1 Cum. Bull. 157. Retirees contend that the Treasury Regulation and IRS rulings to this effect contravene ERISA. They object first that ERISA’s approval of integration was limited to Social Security and Railroad Retirement payments. This objection is precluded by our conclusion that reduction of pension benefits based on the integration procedure are not per se prohibited by § 1053 (a), for the level of pension benefits is not prescribed by ERISA. Retirees’ only remaining objection is that workers’ compensation awards are so different in kind from Social Security and Railroad Retirement payments that their integration could not be authorized under the same rubric. Developing this argument, retirees claim that workers’ compensation provides payments for work-related injuries, while Social Security and Railroad Retirement supply payments solely for wages lost due to retirement. Because of this distinction, retirees conclude that integration of pension funds with workers’ compensation awards lacks the rationale behind integration of pension funds with Social Security and Railroad Retirement. Retirees’ claim presumes that ERISA permits integration with Social Security or Railroad Retirement only where there is an identity between the purposes of pension payments and the purposes of the other integrated benefits. But not even the funds that the Congress clearly has approved for integration purposes share the identity of purpose ascribed to them by petitioners. Both the Social Security and Railroad Retirement Acts provide payments for disability as well as for wages lost due to retirement, and ERISA permits pension integration without distinguishing these different kinds of benefits. Furthermore, when it enacted ERISA, Congress knew of the IRS rulings permitting integration and left them in effect. These rulings do not draw the line between permissible and impermissible integration where retirees would prefer them to, and instead they include workers’ compensation offsets within the ambit of permissible integration. The IRS rulings base their allowance of pension payment integration on three factors: the employer must contribute to the other benefit funds, these other funds must be designed for general public use, and the benefits they supply must correspond to benefits available under the pension plan. The IRS employed these considerations in approving integration with workers’ compensation benefits. E. g., Rev. Rul. 69-421, Part 4 (j), 1969-2 Cum. Bull. 72; Rev. Rul. 68-243, 1968-1 Cum. Bull. 157. In contrast, the IRS has disallowed offsets of pension benefits with damages recovered by an employee through a common-law action against the employer. Rev. Rul. 69-421, Part 4 (j)(4), 1969-2 Cum. Bull. 72; Rev. Rul. 68-243, 1968-1 Cum. Bull. 157-158. The IRS also has not permitted integration with reimbursement for medical expenses or with fixed sums made for bodily impairment because such payments do not match up with any benefits available under a pension plan qualified under the Internal Revenue Code and ERISA. Rev. Rui. 78-178, 1978-1 Cum. Bull. 118. Similarly, the IRS has disapproved integration with unemployment compensation, for, as payment for temporary layoffs, it too is a kind of benefit not comparable to any permitted in a qualified pension plan. Id., at 117-118. Without speaking directly of its own rationale, Congress embraced such IRS rulings. See H. R. Conf. Rep. No. 93-1280, p. 277 (1974), 3 Leg. Hist. 4544 (approving existing antidiscrimination rules). Congress thereby permitted integration along the lines already approved by the IRS, which had specifically allowed pension benefit offsets based on workers’ compensation. Our judicial function is not to second-guess the policy decisions of the legislature, no matter how appealing we may find contrary rationales. As a final argument, retirees claim that we should defer to the policy decisions of the state legislature. To this claim we now turn. Ill The New Jersey Legislature attempted to outlaw the offset clauses by providing that “[t]he right of compensation granted by [the New Jersey Workers’ Compensation Act] may be set off against disability pension benefits or payments but shall not be set off against employees’ retirement pension benefits or payments.” N. J. Stat. Ann. §34:15-29 (West Supp. 1980) (emphasis added). To resolve retirees’ claim that this state policy should govern, we must determine whether such state laws are pre-empted by ERISA. Our analysis of this problem must be guided by respect for the separate spheres of governmental authority preserved in our federalist system. Although the Supremacy Clause invalidates state laws that “interfere with, or are contrary to the laws of Congress...,” Gibbons v. Ogden, 9 Wheat. 1, 211 (1824), the “ 'exercise of federal supremacy is not lightly to be presumed,’ ” New York Dept. of Social Services v. Dublino, 413 U. S. 405, 413 (1973), quoting Schwartz v. Texas, 344 U. S. 199, 203 (1952). As we recently reiterated, “[preemption of state law by federal statute or regulation is not favored 'in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress' has unmistakably so ordained.’ ” Chicago & North Western Transp. Co. v. Kalo Brick,& Tile Co., 450 U. S. 311, 317 (1981), quoting Florida Lime & Avocado Growers v. Paul, 373 U. S. 132, 142 (1963). See Jones v. Rath Packing Co., 430 U. S. 519, 525-526 (1977); Perez v. Campbell, 402 U. S. 637, 649 (1971); Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947); Hines v. Davidowit z, 312 U. S. 52, 61-62 (1941). In this instance, we are assisted by an explicit congressional statement about the pre-emptive effect of its action. The same chapter of ERISA that defines the scope of federal protection of employee pension benefits provides that “the provisions of this subchapter... shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003 (a) of this title and not exempt under section 1003 (b) of this title.” 29 U. S. C. § 1144 (a). This provision demonstrates that Congress intended to depart from its previous legislation that “envisioned the exercise of state regulation power over pension funds,” Malone v. White Motor Corp., 435 U. S. 497, 512, 514 (1978) (plurality opinion), and meant to establish pension plan regulation as exclusively a federal concern. But for the pre-emption provision to apply here, the New Jersey law must be characterized as a state law “that relate [s] to any employee benefit plan.” 29 U. S. C. § 1144 (a). That phrase gives rise to some confusion where, as here, it is asserted to apply to a state law ostensibly regulating a matter quite’ different from pension plans. The New Jersey law governs the State’s workers’ compensation awards, which obviously are subject to the State’s police power. As a result, one of the District Court Judges below concluded that the New Jersey provision “is in no way concerned with pension plans qua pension plans. On the contrary, the New Jersey statute is solely concerned with protecting the employee’s right to worker’s compensation disability benefits.” Buczynski v. General Motors Corp., 456 F. Supp. 867, 873 (NJ 1978). Similarly, the other District Court Judge below reasoned that the New Jersey law “only has a collateral effect on pension plans.” Alessi v. Raybestos-Manhattan, Inc., Civ. No. 78-0434 (NJ, Feb. 15, 1979). The Court of Appeals rejected these analyses on two grounds. It read the “relate to pension plans” language in “its normal dictionary sense” as indicating a broad pre-emptive intent, and it also reasoned that the “only purpose and effect of the [New Jersey] statute is to set forth an additional statutory requirement for pension plans,” a purpose not permitted by ERISA. 616 F. 2d, at 1250 (emphasis in original). We agree with the conclusion reached by the Court of Appeals but arrive there by a different route. Whatever the purpose or purposes of the New Jersey statute, we conclude that it “relate [s] to pension plans” governed by ERISA because it eliminates one method for calculating pension benefits — integration—that is permitted by federal law. ERISA permits integration of pension funds with other public income maintenance moneys for the purpose of calculating benefits, and the IRS interpretation approves integration with the exact funds addressed by the New Jersey workers’ compensation law. New Jersey’s effort to ban pension benefit offsets based on workers’ compensation applies directly to this cal-eulation technique. We need not determine the outer bounds of ERISA’s pre-emptive language to find this New Jersey provision an impermissible intrusion on the federal regulatory scheme. It is of no moment that New Jersey intrudes indirectly, through a workers’ compensation law, rather than directly, through a statute called “pension regulation.” ERISA makes clear that even indirect state action bearing on private pensions may encroach upon the area of exclusive federal concern. For the purposes of the pre-emption provision, ERISA defines the term “State” to include: “a State, any political subdivision thereof, or any agency or instrumentality of either, which purports to regulate, directly or indirectly, the terms and conditions of employee benefit plans covered by this subchapter.” 29 U. S. C. §1144 (c)(2) (emphasis added). ERISA’s authors clearly meant to preclude the States from avoiding through form the substance of the preemption provision. Another consideration bolsters our conclusion that the New Jersey provision is pre-empted insofar as it bears on pensions regulated by ERISA. ERISA leaves integration, along with other pension calculation techniques, subject to the discretion of pension plan designers. See supra, at 514-516. Where, as here, the pension plans emerge from collective bargaining, the additional federal interest in precluding state interference with labor-management negotiations calls for pre-emption of state efforts to regulate pension terms. See Teamsters v. Oliver, 358 U. S. 283, 296 (1959); Railway Employees v. Hanson, 351 U. S. 225, 232 (1956). Cf. Motor Coach Employees v. Lockridge, 403 U. S. 274 (1971); San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959). As a subject of collective bargaining, pension terms themselves become expressions of federal law, requiring preemption of intrusive state law. IV We conclude that N. J. Stat. Ann. § 34:15-29 (West Supp. 1980) is pre-empted by federal law insofar as it bears on pension plans governed by ERISA. We find further that Congress contemplated and approved the kind of pension provisions challenged here, which permit offsets of pension benefits based on workers’ compensation awards. The decision of the Court of Appeals is Affirmed. Justice BREnnan took no part in the decision of these cases. The Raybestos-Manhattan, Inc., plan provides: “All Retirement Income payments shall be reduced by the entire amount of any and all payments the Member is eligible to receive under any and all statutes pertaining to workmen’s compensation, occupational disease, unemployment compensation, cash sickness benefits, and similar laws, other than primary Social Security benefits, Presently in effect or which may be enacted from time to time, which payments are paid concurrently with the Retirement Income.” The offset clause under the General Motors Corp. plan provides: “In determining the monthly benefits payable under this Plan, a deduction shall be made unless prohibited by law, equivalent to all or any part of Workmen’s Compensation (including compromise or redemption settlements) payable to such employee by reason of any law of the United States, or any political subdivision thereof, which has been or shall be enacted, provided that such deductions shall be to the extent that such Workmen’s Compensation has been provided by premiums, taxes or other payments paid by or at the expense of the Corporation, except that no deduction shall be made for the following: “(a) Workmen’s Compensation payments specifically allocated for hospitalization or medical expense, fixed statutory payments for the loss of any bodily member, or 100% loss of use of any bodily member, or payments for loss of industrial vision. “(b) Compromise or redemption settlements payable prior to the date monthly pension benefits first become payable. “(c) Workmen's Compensation payments paid under a claim filed not later than two years after the breaking of seniority.” In No. 79-1943, former employees of Raybestos-Manhattan, Inc., sought permanently to enjoin such offsets and to recover damages for the offsets already made. Similar relief was pursued in No. 80-193, where several former employees of General Motors Corp. brought suit for themselves and on behalf of others similarly situated. See n. 8, infra. The Regulation provides that “nonforfeitable rights are not considered to be forfeitable by reason of the fact that they may be reduced to take into account benefits which are provided under the Social Security Act or under any other Federal or State law and which are taken into account in determining plan benefits.” 26 CFR § 1.411 (a)-4 (a) (1980). In its statement of findings and declaration of policy, Congress noted that “despite the enormous growth in such plans many employees with long years of employment are losing anticipated retirement benefits owing to the lack of vesting provisions in such plans.” 29 U. S. C. § 1001 (a). ERISA was designed to prescribe minimum vesting and accrual standards in response to such problems. Ibid. To ensure that employee pension expectations are not defeated, the Act establishes minimum rules for employee participation, §§ 1051-1061; funding standards to increase solvency of pension plans, §§ 1081-1085; fiduciary standards for plan managers, §§ 1101-1114; and an insurance program in case of plan termination, §§ 1341-1348 (1976 ed. and Supp. III). ERISA establishes three accrual techniques for pension plans covered by the Act. 29 U. S. C. § 1054 (b)(1). See n. 9, infra. Similarly, ERISA establishes several approved vesting schedules. Under any of the approved schedules, at a time prior to normal retirement age but after a given period of service or a combination of age and length of service, the employee is to be guaranteed 100% interest in the pension benefit. 29 U. S. C. § 1053 (a)(2). See n. 10, infra. ERISA defines “normal retirement benefit” as “the greater of the early retirement benefit under the plan, or the benefit under the plan commencing at normal retirement áge.” 29 U. S. C. § 1002 (22). The statute expressly exempts from its forfeiture ban offsets that: (1) are contingent on the employee’s death, 29 U. S. C. § 1053 (a) (3) (A); (2) occur when the employee takes a job under certain circumstances, § 1053 (a) (3) (B); (3) are due to certain retroactive amendments to a pension plan, § 1053 (a) (3) (C); or (4) result from withdrawals of benefits derived from mandatory contributions, § 1053 (a) (3) (D). Retirees correctly point out that workers’ compensation offsets fall into none of these categories. The three different accrual practices approved for defined benefits plans are described in 29 U. S. C. § 1054 (b)(1). One prescribes a minimum percentage of the total retirement benefit that must be accrued in any given year. § 1054 (b) (1) (A). Another permits the use of any accrual formula as long as the accrual rate for a given year of service does not vary beyond a specified percentage from the accrual rate of any other year under the plan. § 1054 (b) (1) (B). The third is essentially a pro rata rule under which in any given year, the employee’s accrued benefit is proportionate to the number of years of service as compared with the number of total’ years of service appropriate to the normal retirement age. § 1054 (b) (1) (C). Congress approved some delay in an employee’s acquisition of a vested right to portions of his pension derived from employer contributions. Thus, ERISA specifies that this right could be hinged on a minimum length of service, but an employee reaching the minimum should not lose that right even if he does not continue working for that particular employer until reaching retirement age. That minimum period of service can be calculated under three different formulas, two of which permit gradual vesting of percentages of the accrued benefits over time. Compare 29 U. S. C. § 1053 (a)(2)(A) with §§ 1053 (a) (2) (B), (C). See also Schiller, Proposed ERISA Vesting Regulations: Not What They Seem To Be, 6 J. Corp. L. 263 (1981) (discussing Internal Revenue Service implementation of vesting provisions). In essence, pension plans qualifying for tax treatment advantageous to the employer both must ensure non-forfeiture of all accrued benefits derived from employee contributions and must use vesting and accrual rates assuring portions of the benefits derived from the employer contributions should the employee leave the job before the normal retirement age. 29 U. S. C. §§ 1053 (a) (1), (2). This minimum results from the formulas approving gradual vesting over'time of benefits derived from employer contributions. See 29 U. S. C. §§ 1053 (a) (2) (B), (C). Alternatively, a plan may comply with ERISA “if an employee who has at least 10 years of service has a nonforfeitable right to 100 percent of his accrued benefit derived from employer contributions.” 29 U. S. C. §1053 (a)(2)(A). The vesting, nonforfeiture, and pension benefits provisions of the bill discussed in H. R. Rep. No. 93-807 were substantially identical to those portions in the bill ultimately enacted as ERISA. The bill reported out of the Conference Committee included an additional provision to restrict temporarily any increases in pension reductions due to increases in Social Security benefits occurring after December 31, 1971. H. R. Conf. Rep. No. 93-1280, p. 131 (1974), 3 Leg. Hist. 4405. Senator Harrison Williams explained that this provision ultimately was deleted because: “We have been told that this will greatly increase the costs of private pension plans, something that I am sure none of the Senators would like to see occur. This is particularly true if these increased pension costs result in the termination of private pension plans. Certainly that is not the intent of this legislation which is designed to improve and encourage the expansion of private pension plans.” 120 Cong. Rec. 29928 (1974), 3 Leg. Hist. 4732. The Court of Appeals characterized the Treasury Regulation as a “legislative” regulation, entitled to a more restricted scope of review than is applied to “interpretive rules.” 616 F. 2d 1238, 1242. Nonetheless, the Government here represents that the Treasury Regulation is an interpretive rule. Brief for United States as Amicus Curiae 19, n. 12. Because an agency empowered to enact legislative 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:

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