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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. RALEIGH, CHAPTER 7 TRUSTEE FOR THE ESTATE OF STOECKER v. ILLINOIS DEPARTMENT OF REVENUE No. 99-387. Argued April 17, 2000 — Decided May 30, 2000 Souter, J., delivered the opinion for a unanimous Court. Robert Radasevich argued the cause for petitioner. With him on the briefs were Phil C. Neal, David A. Ride, and John W. Guarisco. A. Benjamín Goldgar, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were James R. Ryan, Attorney General, Joel D. Ber-tocchi, Solicitor General, and James D. Newbold, Assistant Attorney General. Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Waxman, Act ing Assistant Attorney General Junghans, Kent L. Jones, Kenneth L. Greene, and Steven W. Parks. Briefs of amici curiae urging affirmance were filed for the Pension Benefit Guaranty Corporation by James J. Keightley, William G. Beyer, Israel Goldowitz, Nathaniel Rayle, and Charles G. Cole; for the State of New Mexico et al. by Patricia A Madrid, Attorney General of New Mexico, Donald F. Harris, Special Assistant Attorney General, and James I. Shepard, joined by the Attorneys General for their respective States as follows: Janet Napolitano of Arizona, Bill Lochyer of California, Ken Salazar of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, Robert A Butterworth of Florida, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Andrew Ket-terer of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jennifer M. Granholm of Michigan, Mike Hatch of Minnesota, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, John J. Farmer, Jr., of New Jersey, Heidi Heitkamp of North Dakota, Betty D. Montgome'ry of Ohio, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Sheldon Whitehouse of Rhode Island, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, Jan Graham of Utah, William H. Sorrell of Vermont, Christine 0. Gregoire of Washington, and Gay Woodhouse of Wyoming; and for the Council of State Governments et al. by Richard Ruda, James I. Crowley, and Steven H. Goldblatt. Justice Souter delivered the opinion of the Court. The question raised here is who bears the burden of proof on a tax claim in bankruptcy court when the substantive law creating the tax obligation puts the burden on the taxpayer (in this ease, the trustee in bankruptcy). We hold that bankruptcy does not alter the burden imposed by the substantive law. I The issue of state tax liability in question had its genesis in the purchase of an airplane by Chandler Enterprises, Inc., a now-defunct Illinois company. William J. Stoeeker, for whom petitioner Raleigh is the trustee in bankruptcy, was president of Chandler in 1988, when Chandler entered into a lease-purchase agreement for the plane, moved it to Illinois, and ultimately took title under the agreement. See In re Stoecker, 179 F. 3d 546, 548 (CA7 1999). According to respondent State Department of Revenue, the transaction was subject to the Illinois use tax, a sales-tax substitute imposed on Illinois residents such as Chandler who buy out of State. If the seller does not remit the tax, the buyer must, and, when buying a plane, must file a return and pay the tax within 30 days after the aircraft enters the State. Ill. Comp. Stat., ch. 35, §105/10 (1999). Chandler failed to do this. When the State discovers a failure to file and pay taxes, its Department of Revenue (the respondent here) determines the amount of tax due and issues a Notice of Tax Liability to the taxpayer. §§ 105/12,120/4. Unless the taxpayer protests within the time provided, the assessment becomes final, though still subject to judicial review in the Illinois circuit court. §§120/4, 12. Illinois law also provides that any corporate officer “who has the control, supervision or responsibility of filing returns and making payment of the amount of any ... tax ... who wilfully fails to file the return or make the payment . . . shall be personally liable for a penalty equal to the total amount of tax unpaid by the [corporation].” § 735/3-7. The department determines the amount, and its determination is “prima facie evidence of a penalty due,” ibid., though a Notice of Penalty Liability issued under this provision is open to challenge much like the antecedent Notice of Tax Liability. By the time the department discovered the unpaid tax in this case, Chandler was defunct and Stoecker was in bankruptcy. The department issued both a Notice of Tax Liability against Chandler and a Notice of Penalty Liability against Stoecker. See 179 F. 3d, at 549. The record evidence about Chandler’s operations is minimal. A person named Pluhar acted as its financial officer. There is no evidence directly addressing Stoeeker’s role in the filing of Chandler’s tax returns or the payment of any taxes, and so no affirmative proof that he either was responsible for or willfully evaded the payment of the use tax, see id., at 550. This evidentiary dearth is not necessarily dispositive, however, due to the provision of Illinois law shifting the burden of proof, on both production and persuasion, to the responsible officer once a Notice of Penalty Liability is issued, see Branson v. Department of Revenue, 168 Ill. 2d 247, 256-261, 659 N. E. 2d 961, 966-968 (1995). The Court of Appeals for the Seventh Circuit accordingly ruled for the Department of Revenue. 179 F. 3d, at 550. The Court of Appeals thought the trustee may have satisfied his burden of production by identifying Pluhar as the financial officer but, in any event, had not satisfied his burden of persuasion. Because Stoecker was the president and, as far as the record showed, he and Pluhar were the only officers, each would have been involved in Chandler’s tax affairs. Ibid. While it is true that failure to pay must be willful (at least grossly negligent) to justify the penalty under Illinois law, see Branson, supra, at 254-255, 659 N. E. 2d, at 965, and true that Chandler had an opinion letter from a reputable lawyer that no tax was due because of certain details of the lease-purchase agreement, there was no evidence that Stoecker ever saw the letter or relied on it, and nothing else bearing on the issue of willfulness. See 179 F. 3d, at 550-551. Obviously, the burden of proof was critical to the resolution of the case, which the Department of Revenue won because the Court of Appeals held that the burden remained on the trustee, just as it would have been on the taxpayer had the proceedings taken place outside of bankruptcy. The Courts of Appeals are divided on this point: the Seventh Circuit joined the Third and Fourth Circuits in leaving the burden on the taxpayer. See Resyn Corp. v. United States, 851 F. 2d 660, 663 (CA3 1988); In re Landbank Equity Corp., 973 F. 2d 265, 270-271 (CA4 1992). The Courts of Appeals for the Fifth, Eighth, Ninth, and Tenth Circuits have come out the other way. See In re Placid Oil Co., 988 F. 2d 554, 557 (CA5 1993); In re Brown, 82 F. 3d 801, 804-805 (CA8 1996); In re Macfarlane, 83 F. 3d 1041, 1044-1045 (CA91996), cert. denied, 520 U. S. 1115 (1997); In re Fullmer, 962 F. 2d 1468, 1466 (CA10 1992). We granted certiorari to resolve the issue, 528 U. S. 1068 (2000), and now affirm. II Creditors’ entitlements in bankruptcy arise in the first instance from the underlying substantive law creating the debtor’s obligation, subject to any qualifying or contrary provisions of the Bankruptcy Code. See Butner v. United States, 440 U. S. 48, 55 (1979); Vanston Bondholders Protective Comm. v. Green, 329 U. S. 156, 161-162 (1946). The “basic federal rule” in bankruptcy is that state law governs the substance of claims, Butner, supra, at 57, Congress having “generally left the determination of property rights in the assets of a bankrupt’s estate to state law,” 440 U. S., at 54 (footnote omitted). “Unless some federal interest requires a different result, there is no reason why [the state] interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding.” Id., at 55. In this case, the bankruptcy estate’s obligation to the Illinois Department of Revenue is established by that State’s tax code, which puts the burden of proof on the responsible officer of the taxpayer, see Branson, supra, at 260-262, 659 N. E. 2d, at 968. The scope of the obligation is the issue here. Do the State’s right and the taxpayer’s obligation include the burden of proof? Our eases point to an affirmative answer. Given its importance to the outcome of eases, we have long held the burden of proof to be a “substantive” aspect of a claim. See, e. g., Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, 512 U. S. 267, 271 (1994); Dick v. New York Life Ins. Co., 359 U. S. 437, 446 (1959); Garrett v. Moore-McCormack Co., 317 U. S. 239, 249 (1942). That is, the burden of proof is an essential element of the claim itself; one who asserts a claim is entitled to the burden of proof that normally comes with it. Tax law is no candidate for exception from this general rule, for the very faet that the burden of proof has often been placed on the taxpayer indicates how critical the burden rule is, and reflects several compelling rationales: the vital interest of the government in acquiring its lifeblood, revenue, see Arkansas v. Farm Credit Servs. of Central Ark., 520 U. S. 821, 826 (1997); the taxpayer’s readier access to the relevant information, see United States v. Rexach, 482 F. 2d 10, 16 (CA1), cert. denied, 414 U. S. 1039 (1973); and the importance of encouraging voluntary compliance by giving taxpayers incentives to self-report and to keep adequate records in case of dispute, see United States v. Bisceglia, 420 U. S. 141, 145 (1975). These are powerful justifications not to be disregarded lightly. Congress of course may do what it likes with entitlements in bankruptcy, but there is no sign that Congress meant to alter the burdens of production and persuasion on tax claims. The Code in several places, to be sure, establishes particular burdens of proof. See, e. g., 11 U. S. C. § 362(g) (relief from automatic stay), § 363(o) (adequate protection for creditors), § 364(d)(2) (same), § 547(g) (avoidability of preferential transfer), § 1129(d) (confirmation of plan for purpose of avoiding taxes). But the Code makes no provision for altering the burden on a tax claim, and its silence says that no change was intended. Ill The trustee looks for an advantage in the very silence of the Code, however, first by arguing that actual, historical practice favored trustees under the Bankruptcy Act of 1898 and various pre-Code revisions up to the current Code’s enactment in 1978. He says that courts operating in the days of the Bankruptcy Act, which was silent on the burden to prove the validity of claims, almost uniformly placed the burden on those seeking a share of the bankruptcy estate. Because the Code generally incorporates pre-Code practice in the absence of explicit revision, the argument goes, and because the Code is silent here, we should follow the pre-Code practice even when this would reverse the burden imposed outside bankruptcy. This tradition makes sense, petitioner urges, because in bankruptcy tax authorities are no longer opposed to the original taxpayer, and the choice is no longer merely whether the tax claim is paid but whether other innocent creditors must share the bankruptcy estate with the taxing government. We, however, find history less availing to the trustee than he says. While some pre-Code cases put the burden of proof on taxing authorities, others put it on the trustee, and still others eannot he fathomed. This state of things is the end of the argument, for without the weight of solid authority on the trustee’s side, we cannot treat the Code as predicated on an alteration of the substantive law of obligations once a taxpayer enters bankruptcy. Cf. United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 865, 381-382 (1988) (“The at best divided [pre-Code] authority... removes all cause for wonder that the alleged departure from it should not have been commented upon in the legislative history”). The trustee makes a different appeal to Code silence in pointing to language in Vanston Bondholders Protective Comm. v. Green, 329 U. S. 156 (1946), suggesting that “allowance” of claims is a federal matter. But “allowance” referred to the ordering of valid claims when that case was decided, see id., at 162-163, and Vanston, in fact, concerned distribution of assets, not the validity of claims in the first instance, see In re Highland Superstores, Inc., 154 F. 3d 573, 578 (CA6 1998); Fahs v. Martin, 224 F. 2d 387, 394-395 (CA5 1955). The burden of proof rule in question here bears only on validity, and as to that the Vanston opinion specifically states that “[wjhat claims of creditors are valid and subsisting obligations ... is to be determined by reference to state law.” 329 U. S., at 161 (footnote omitted). Nor is the trustee helped by City of New York v. Saper, 336 U. S. 328, 332 (1949), which mentions “proving]” government claims in the same manner as other debts; the reference was to the procedure by which proof of claim was submitted and not to the validity of the claim. While it is true that federal law has generally evolved to impose the same procedural requirements for claim submission on tax authorities as on other creditors, ibid., nothing in that evolution has touched the underlying laws on the elements sufficient to prove a valid state claim. Finally, the trustee argues that the Code-mandated priority enjoyed by taxing authorities over other creditors, see 11 U. S. C. §§ 507(a), 503(b)(1)(B), requires a compensating equality of treatment when it comes to demonstrating validity of claims. But we think his argument distorts the legitimate powers of a bankruptcy court and begs the question about the relevant principle of equality. Bankruptcy courts do indeed have some equitable powers to adjust rights between creditors. See, e. g., § 510(c) (equitable subordination). That is, within the limits of the Code, courts may reorder distributions from the bankruptcy estate, in whole or in part, for the sake of treating legitimate claimants to the estate equitably. But the scope of a bankruptcy court’s equitable power must be understood in the light of the principle of bankruptcy law discussed already, that the validity of a claim is generally a function of underlying substantive law. Bankruptcy courts are not authorized in the name of equity to make wholesale substitution of underlying law controlling the validity of creditors’ entitlements, but are limited to what the Bankruptcy Code itself provides. See United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 228-229 (1996); United States v. Noland, 517 U. S. 535, 543 (1996). Moreover, even on the assumption that a bankruptcy court were to have a free hand, the ease for a rule placing the burden of proof uniformly on all bankruptcy creditors is not self-evidently justified by the trustee’s invocation of equality. Certainly the trustee has not shown that equal treatment of all bankruptcy creditors in proving debts is more compelling than equal treatment of comparable creditors in and out of bankruptcy. The latter sort of equality can be provided by a bankruptcy court as a matter of course, whereas the trustee’s notion of equality could not be uniformly observed consistently with other bankruptcy principles. Consider the ease when tax litigation is pending at the time the taxpayer files for bankruptcy. The tax litigation will be subject to an automatic stay, but the stay can be lifted by the bankruptcy court for cause, see 11 U. S. C. § 362(d)(1), which could well include, among other things, a lack of good faith in attempting to avoid tax proceedings, or in attempting to favor private creditors who might escape the disadvantage of a priority tax claim under the trustee’s proposed rule. See generally 3 Collier on Bankruptcy ¶ 362.07[6][a], pp. 362-101 to 362-102 (rev. 15th ed. 2000) (noting that bad faith commencement of ease justifies lifting stay); Internal Revenue Service v. Bacha, 166 B. R. 611, 612 (Bkrtey. Ct. Md. 1993) (lifting automatic stay when bankruptcy filing was attempt to avoid tax proceedings). If the bankruptcy court exercises its discretion to lift the stay, the burden of proof will be on the taxpayer in the pre-existing tax litigation, and a tax liability determination will be final. See 11 U. S. C. § 505(a)(2)(A). We see no reason that Congress would have intended the burden of proof (and consequent vindication of this trustee’s vision of equality) to depend on whether tax authorities have initiated proceedings against a debtor before a bankruptcy filing. Thus, the uncertainty and increased complexity that would be generated by the trustee’s position is another reason to stick with the simpler rule, that in the absence of modification expressed in the Bankruptcy Code the burden of proof on a tax claim in bankruptcy remains where the substantive tax law puts it. The judgment of the Court of Appeals is affirmed. It is so ordered. It is true that a trustee may have less access to the facts than a taxpayer with personal knowledge, but the trustee takes custody of the taxpayer’s records, see 11 U.S. C. §521(4), and may have greater access to the taxpayer than a creditor. Even if the trustee’s advantage is somewhat less than the original taxpayer’s, the difference hardly overcomes the compelling justifications for shifting the burden of proof! The government, of course, is in no better position than it ever was, and remains without access to sources of proof when the taxpayer has not kept sufficient documentation. The legislative history indicates that the burden of proof on the issue of establishing claims was left to the Rules of Bankruptcy Procedure. See S. Rep. No. 95-989, p. 62 (1978); H. R. Rep. No. 95-595, p. 352 (1977). The Bankruptcy Rules are silent on the burden of proof for claims; while Federal Rule of Bankruptcy Procedure 3001(f) provides that a proof of claim (the name for the proper form for filing a claim against a debtor) is “prima facie evidence of the validity and amount of the claim,” this rule does not address the burden of proof when a trustee disputes a claim. The Rules thus provide no additional guidance. See, e. g., United, States v. Sampsell, 224 F. 2d 721,722-723 (GA91955); In re Avien, Inc., 390 F. Supp. 1335, 1341-1342 (EDNY 1975), aff’d, 532 F. 2d 273 (CA2 1976); In re Gorgeous Blouse Co., 106 F. Supp. 465 (SDNY 1952); see also In re Highway Constr. Co., 105 F. 2d 863, 866 (CA6 1939) (apparently accepting lower court’s placement of burden of proof on tax authority). See, e. g., In re Uneco, Inc., 532 F. 2d 1204, 1207 (CA8 1976); Paschal v. Blieden, 127 F. 2d 398, 401-402 (CA8 1942); In re Lang Body Co., 92 F. 2d 338, 341 (CA6 1937), cert. denied sub nom. Hipp v. Boyle, 303 U. S. 637 (1938); United States v. Knox-Powell-Stockton Co., 83 F. 2d 423, 425 (CA9), cert. denied, 299 U. S. 573 (1936). Some of these cases, such as Paschal and Lang Body Co., appear to confuse the burden of production (which ceases to be relevant upon presentation of a trustee’s case) with the burden of persuasion, under tax statutes that shift the entire burden of proof to the taxpayer. Whatever we make of their reasoning, these cases do not follow the rule whose pedigree petitioner wishes to establish. See, e. g., Fiori v. Rothensies, 99 F. 2d 922 (CA3 1938) (per curiam) (discussing prima facie value of tax authority’s claim, but failing to discuss burden of proof); Dickinson v. Riley, 86 F. 2d 385 (CA8 1936) (resolving claim without reference to burden of proof); In re Clayton Magazines, Inc., 77 F. 2d 852 (CA2 1935) (same). 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_genapel2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. UNITED STATES of America, Plaintiff-Appellee, v. John Anis JUREIDINI, Defendant-Appellant. No. 87-5039. United States Court of Appeals, Fourth Circuit. Argued Feb. 5, 1988. Decided May 20, 1988. Lisa Bondareff Kemler (William B. Mof-fitt, Alexandria, Va., on brief), for defendant-appellant. Liam O’Grady, Asst. U.S. Atty. (Henry E. Hudson, U.S. Atty., Alexandria, Va., on brief), for plaintiff-appellee. Before WILKINSON, Circuit Judge, HAYNSWORTH, Senior Circuit Judge, and ELLIS, United States District Judge for the Eastern District of Virginia, sitting by designation. WILKINSON, Circuit Judge: This case presents an unusual form of plea agreement whose concept frustrates the legitimate function of the Parole Commission and whose implementation frustrated the bargain of the parties. We remand the case to the district court with directions to fashion an appropriate remedy. I. On December 17, 1986, appellant John Jureidini pled guilty to one count of conspiracy to distribute more than one kilogram of cocaine in violation of 21 U.S.C. § 846 and one count of interstate travel for purposes of an unlawful activity in violation of 18 U.S.C. § 1952(a)(1). In exchange for his guilty plea the government agreed that, for purposes of parole consideration, the total amount of cocaine distributed by appellant was less than five kilograms. The expectation was that, because of this agreement, the Parole Commission would classify Jureidini as having committed a category six offense, which, under Parole Commission Rules, would make him eligible for parole after serving forty to fifty-two months of his sentence. If the amount of cocaine involved exceeds fifteen kilograms, the offense would be classified as a category eight, and the defendant would have to serve one hundred or more months before being eligible for parole. Prior to sentencing, a presentence report was prepared by the probation office. The report indicated that 28.5 kilograms of cocaine were distributed during the conspiracy. Defendant was sentenced on February 27, 1987 to serve a term of eight years on count one and three years on count two, to run concurrently. After sentencing, defense counsel moved to excise from the presentence report the reference to the 28.5 kilograms of cocaine since consideration of that information by the Parole Commission would be inconsistent with the terms of the plea agreement. The court refused to strike the quantity of cocaine from the presentence report, but made a specific finding that the amount of cocaine involved in appellant’s case was less than five kilograms. The plea agreement, presentence report, and the court order finding the amount of cocaine involved to be less than five kilograms, were then sent to the Parole Commission. Based on the information that the conspiracy involved “extremely large scale amounts of more than 18.75 kilograms of cocaine,” the Parole Commission’s preliminary assessment of Jureidini’s conduct placed him in offense category eight. Jureidini appealed, alleging breach of the plea agreement. II. When the government agreed to limit the quantity of cocaine involved in this case to less than five kilograms, the parties anticipated that appellant would be classified as an offense category six for purposes of parole. The government stated as much in the hearing on Jureidini’s motion to modify the presentence report. These clear expectations were frustrated when appellant was preliminarily classified as a category eight as a result of information provided to the Parole Commission indicating that the quantity of cocaine involved exceeded 18.75 kilograms. This frustration of the bargain is due in large measure to the highly improvident nature of the plea agreement itself. The agreement seemingly contemplates either limiting the information made available to the parole board or dictating the action to be taken by the parole board in a particular case. Either course frustrates the Parole Commission’s duty to determine when release is appropriate for a particular defendant. See United States v. Addonizio, 442 U.S. 178, 188-89, 99 S.Ct. 2235, 2242-43, 60 L.Ed.2d 805 (1979). As a result, when the Parole Commission reached a decision contrary to that anticipated by the plea agreement, the purpose of the plea agreement was never fulfilled. Regardless of the reasons for the frustration of the bargain, that frustration calls into question the validity of the plea. “[W]hen a plea rests ... on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971). To ensure the voluntariness and validity of appellant’s plea, the court has a duty to ensure that the bargain represented by the plea agreement is not frustrated. See United States v. Harvey, 791 F.2d 294, 300-03 (4th Cir.1986); Correale v. United States, 479 F.2d 944, 947-49 (1st Cir.1973). The appropriate relief is determined by the facts and circumstances of the particular case. The district court is in the best position to determine whether the ends of justice are best served through specific performance, see, Davis v. United States, 649 F.Supp. 754, 759 (C.D.Ill.1986), by ordering some other form of equitable relief, see Correale, 479 F.2d at 949-50, or by rescinding the plea agreement. See Santobello, 404 U.S. at 262-63, 92 S.Ct. at 498-99. We leave it to the sound discretion of the district court to fashion whatever relief may be appropriate in this case. We emphasize that this plea bargain was exceedingly ill-advised. Nothing in Rule 11 of the Federal Rules of Criminal Procedure appears to authorize the form of plea agreement in this case. We take comfort in the thought that we will not again encounter this species of agreement, for the Assistant United States Attorney has assured us that the agreement in issue here is the first and last of its kind. For the foregoing reasons, we remand this case to the district court to fashion such relief as is required by the circumstances of this case. REMANDED. Specific performance here would mean binding the Parole Commission to the plea agreement on the theory that "[b]oth the United States Attorney and the Parole Commission are agents of the Government and are therefore bound by what are, in effect, Government promises.” Davis, 649 F.Supp. at 759. That such a course might interfere with the Parole Commission’s performance of its own statutory obligations is, however, a matter that may bear on the exercise of equitable discretion by the district court. 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_search	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?" 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". If a civil suit brought by a prisoner or a criminal defendant in another action that alleges a tort based on an illegal search and seizure, also consider the issue to be present in the case. KOA GORA v. TERRITORY OF HAWAII. No. 10940. Circuit Court of Appeals, Ninth Circuit. Jan. 4, 1946. Rehearing Denied Feb. 11, 1946. Fred Patterson and E. J. Botts, both of Honolulu, T. H., and Herbert Chamberlin, of San Francisco, Cal., for appellant. W. Z. Fairbanks, Public Prosecutor, City and County of Honolulu, and John E. Parks, Asst. Public Prosecutor, both of Honolulu, T. H., for appellee. Before DENMAN, HEALY and BONE, Circuit Judges. BONE, Circuit Judge. This is an appeal from a decision of the Supreme Court of the Territory of Plawaii, affirming the judgments of two lower courts both of which found appellant guilty of violating Section 6253, Revised Laws of Hawaii, 1935, as amended by Act 88, Session Laws of 1941. Briefly stated, the facts as testified to in the trial in the Circuit Court are as follows. At about 10:30 a. m., on July 6, 1943, one Arthur Notikai, a shore patrolman with the United States Navy,, went to the premises on Kamamalu Street in Honolulu where appellant conducted a rooming house. Notikai, accompanied by a member of the Honolulu Police Department, went there to make an investigation of the place. He entered the premises alone, allegedly looking for a room. Appellant conducted him to a small building on the premises containing a room with shower and toilet. While in this room, appellant unbuttoned Notikai’s trousers and laid his hands on his private parts. The lower courts also found appellant guilty of selling Notikai a pint of liquor in violation of Section 2630, Revised Laws of Hawaii, 1935, but no appeal is taken from that conviction. Appellant was first tried and found guilty in the District Court of Honolulu before a District Magistrate, He appealed to the Circuit Court of the Territory of Hawaii, was given a trial de novo, and again found guilty. The statute in question, Section 6253, Revised Laws of Hawaii, 1935, reads as follows: “Any man or woman who is guilty of lewd conversation, lascivious conduct, or libidinous solicitations, shall be punished by imprisonment of not more than one year or by a fine of not exceeding one thousand dollars ($1,000.00) or by both such imprisonment and fine.” The accusation against appellant, as contained in the notice and certificate of appeal from the District Court, reads: “That Koa Gora, at Honolulu, City and County of Honolulu, Territory of Hawaii on the 6th day of July, A.D., 1943, did do that which was lewd and lascivious in conduct, contrary to Section 6253 of the Revised Laws of Hawaii, 1935 * * *.” On this appeal,'appellant challenges first, the validity of the accusation under the Sixth Amendment of the Federal Constitution, and the validity of the statute under the Fifth Amendment of the Constitution. First, as to the accusation, appellant claims that it failed to set forth the alleged offense with reasonable particularity as a result of which appellant was prevented from adequately preparing his defense. He also argues that because of the form of this charge he cannot plead his conviction in the event of a subsequent prosecution for the same offense. Appellant at no time objected in either of the lower courts to the insufficiency of the information. This objection was raised for the first time on appeal in the Supreme Court of Hawaii. Many courts have held that it is not necessary that the particular lascivious acts be set forth; the charge is sufficient if it merely follows the words of the statute. Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 480, 40 L.Ed. 606; Price v. United States, 165 U.S. 311, 17 S.Ct. 366, 367, 41 L.Ed. 727; People v. Carey, 217 Mich. 601, 187 N.W. 261; State v. Burgess, 123 Me. 393, 123 A. 178; People v. Kratz, 230 Mich. 334, 203 N.W. 114; State v. Schumacher, 195 Iowa 276, 191 N.W. 870; Glover v. State, 179 Ind. 459, 101 N.E. 629, 45 L.R.A.,N.S., 473; Kelly v. People 192 Ill. 119, 61 N.E. 425, 85 Am.St.Rep. 323; English v. State, 122 Fla. 77, 164 So. 848; State v. Vliet, 120 N.J.L. 23, 197 A. 894. If in preparing for trial, appellant had felt that a particularization of the alleged lascivious acts was necessary for a proper defense, he could have asked the court for a bill of particulars. Section 5353, Revised Laws of Hawaii, 1935. See Rosen v. United States, supra; Durland v. United States, 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709; Dunbar v. United States, 156 U.S. 185, 15 S.Ct. 325, 39 L.Ed. 390; Johnson v. United States, 9 Cir., 59 F.2d 42, 44. Inasmuch as appellant did not at any time either before or during the course of the trial object to the sufficiency of the information, we cannot see how the form of the charge prejudiced the preparation of his defense. It has been held many times that if the defendant fails to object to the sufficiency of the information until after the verdict it will be deemed that he was sufficiently apprised of the nature of the charge against him and the case will not be reversed in the absence of prejudice. Ledbetter v. United States, 170 U.S. 606, 18 S.Ct. 774, 42 L.Ed. 1162; Armour Packing Co. v. United States, 209 U.S. 56, 28 S.Ct. 428, 52 L.Ed. 681; Holmgren v. United States, 217 U.S. 509, 30 S.Ct. 588, 54 L.Ed. 861, 19 Ann.Cas. 778; Durland v. United States, supra; Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890; Coates v. United States, 9 Cir.. 59 F. 2d 173. In regard to appellant’s claim that the charge does not sufficiently protect him from a subsequent prosecution of the same offense, the charge here generally defines the offense. Moreover, in order to protect himself from a second prosecution, appellant may resort to the record and evert to oral testimony to prove his prior conviction. Dunbar v. United States, supra, 15 S.Ct. at page 327; Connors v. United States, 158 U.S. 408, 15 S.Ct. 951, 39 L.Ed. 1033; Bartell v. United States, 227 U.S. 427, 33 S.Ct. 383, 384, 57 L.Ed. 583; Capone v. United States, 7 Cir., 56 F.2d 927, 933; United States v. Remington, 2 Cir., 64 F.2d 386. The record in this case would be sufficient to afford any needed particulars of the prior conviction. Any particulars that this charge fails to set forth are matters of form and not of the substance of the crime charged. Appellant’s complaint against Section 6253, set out above, is that the phrase “lascivious conduct” “fixes no immutable standard of guilt. The standard is left to the variant views of different courts and juries.” Appellant adds that.it is true that the offense of “lascivious conduct” was known to the common law, “and that courts frequently resort to the common law to ascertain the meaning of a statute coitched in general terms”. See Martin v. United States, 2 Cir., 278 F. 913. Appellant claims, however, that “resort to the common law cannot save said Section 6253. At common law the offense of ‘lascivious conduct’ had to be ‘openly and publicly committed’ (State v. Moore, 31 Tenn. 136; 36 Corpus Juris 1038), and so alleged in the accusation (Delany v. People, 10 Mich. 241).” “Lascivious” is defined by the Supreme Court as “that form of immorality which has relation to sexual impurity”, [Emphasis supplied] Swearingen v. United States, 161 U.S. 446,451,16 S.Ct. 562, 563, 40 L.Ed. 765. Other courts which have construed statutes similar in form and phraseology to the one at bar have had no difficulty in defining the phrase “lascivious conduct”. State v. Millard, 18 Vt. 574, 46 Am.Dec. 170; Commonwealth v. Wardell, 128 Mass. 52, 35 Am.Rep. 357, 359; State v. Vliet, supra; State v. Burgess, supra; People v. Ring, 267 Mich. 657, 255 N.W. 373, 375, 93 A.L.R. 993. In State v. Millard, supra, the court laid down the following rule which the above courts and others have accepted: “No particular definition is given, by the statute, of what constitutes this crime. The indelicacy of the subject forbids it, and does not require of the court to state what particular conduct will constitute the offence. The common sense of the community, as well as the sense of decency, propriety and morality, which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it.” See also People v. Kratz, 230 Mich. 334, 203 N.W. 114; 8 R.C.L. § 830. Nor have the above cases found it necessary to resort to the common law to define lascivious conduct. Under the statutes which the above cases construe, and under the statute before us, lascivious conduct is immorality relating to sexual impurity whether committed publicly or privately, and although the common law required the acts which amount to lascivious conduct to be “public”, the common law did not define those acts with any more certainty than do the statutes today. “The sense of decency, propriety and morality, which mose people entertain” in the community is still the test. If the Legislature of Hawaii wishes to make certain acts of sexual impurity punishable if committed in private as well as in public, the courts cannot deny the Legislature this right. Affirmed. Counsel advises us in argument that this court is not a court of record and alleged criminal offenses may be charged orally (with reference to the statute involved). On appeal from this court to the Circuit Court, the District Court prepared a “Certificate of Appeal” to the Circuit Court which is set out infra. Question: Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed 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. Benjamin HEMPHILL, Appellant, v. UNITED STATES of America, Appellee. No. 18936. United States Court of Appeals Eighth Circuit. April 2, 1968. Kenneth V. Byrne, St. Louis, Mo., for appellant. John A. Newton, Asst. U. S. Atty., St. Louis, Mo., for appellee; Veryl L. Riddle, U. S. Atty., St. Louis, Mo., on the brief. Before MATTHES, GIBSON and HEANEY, Circuit Judges. MATTHES, Circuit Judge. Benjamin Hemphill has appealed from a judgment of conviction entered pursuant to a jury verdict finding him guilty of the unlawful sale of heroin without the requisite Treasury form in violation of 26 U.S.C.A. § 4705(a). We affirm. The government’s case rests primarily on the testimony of a government informer, Mrs. Bernice Taylor, and federal narcotic agent, Richard M. Patch. The informer, at the inducement of Patch, entered into a narcotic purchase arrangement with the defendant under the surveillance of narcotic agents. The uncontroverted evidence established that on September 9, 1966, pursuant to a telephone conversation between Mrs. Taylor in St. Louis, Missouri and the defendant in Chicago, Illinois, the sum of $360.00 was sent to defendant by telegram in payment for a quantity of heroin which he agreed to deliver to Mrs. Taylor. On September 15, 1966, defendant came to St. Louis from Chicago, and arrived at the Taylor home around 9:45 A.M. Upon entering the Taylor home he placed a package on a table in the kitchen and shortly departed. Immediately thereafter Agent Patch, who had observed the transaction from a secluded position, initialed, sealed and sent the package to a United States chemist in Chicago. Ferris Van Sickle, the chemist who analyzed the contents of the package, testified it contained 4.701 grams of heroin. In addition to his contention that the district court erred in overruling his motion for judgment of acquittal at the close of the entire case defendant alleges several procedural errors, the cumulative effect of which he contends deprived him of a fair trial. We consider each point seriatim. Motion for Reduction of Bond Defendant argues that the court erred in denying his motion for reduction of his bail bond. He contends that the amount of the bond fixed by the United States District Court was excessive in contravention of the Eighth Amendment, that as a result of the court’s action he was unable to make bail, and thus was prevented from properly preparing his defense or otherwise assisting his counsel in the preparation of the case from the confines of his jail cell. Defendant did not appeal from the order denying his application for reduction of the amount of the bond, but rather contends as part of this appeal that he sustained substantial prejudice as the result of the denial of his motion. In this posture defendant’s appeal from the denial of his motion for reduction of bail comes much too late. It is well settled that the proper procedure for challenging the legality of excessive bail is by motion for reduction of the amount and timely appeal from the order denying such motion. Stack v. Boyle, 342 U.S. 1, 6, 72 S.Ct. 1, 96 L.Ed. 3 (1951). Moreover, this Court has consistently refrained from reviewing an order fixing bail, where the question has been initially raised upon appeal from the judgment of conviction. White v. United States, 330 F.2d 811, 815 (8th Cir. 1964), cert. denied, 379 U.S. 855, 85 S.Ct. 105, 13 L.Ed.2d 58 (1964); Hewitt v. United States, 110 F.2d 1, 6 (8th Cir. 1940), cert. denied, 310 U.S. 641, 60 S.Ct. 1089, 84 L.Ed. 1409 (1940); cf. United States v. Radford, 361 F.2d 777, 781 (4th Cir. 1966), cert. denied, 385 U.S. 877, 87 S.Ct. 158, 17 L.Ed.2d 105 (1966); Kaufman v. United States, 325 F.2d 305, 306 (9th Cir. 1963). Defendant urges that the district court erred in overruling several of his pretrial motions. They are (1) motion to dismiss the indictment; (2) motion to suppress evidence; (3) motion for discovery under Rule 16 of the Federal Rules of Criminal Procedure, and (4) motion for disclosure of information “favorable” to the defendant. We conclude that the district court acted properly in denying these motions and that the defendant suffered no prejudice as the result of the denial. Motion to Dismiss the Indictment We find no merit whatever in this contention. Treating the well-pleaded facts as true the indictment is legally sufficient on its face to charge a criminal offense under Section 4705(a). It is not so vague or indefinite as to effectively preclude the defendant from defending against it. The bill of particulars furnished by the government afforded all the essential details of the offense. The indictment coupled with the bill of particulars provided defendant with ample notice of the nature of the charges and was sufficient to enable him to plead an acquittal or conviction in bar of any future prosecution for the same offense. United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92 (1953). Contrary to defendant’s intimation, the naming of a purchaser of narcotics is not an indispensable element to a charge of the unlawful sale of narcotics. Aggers v. United States, 366 F.2d 744, 746 (8th Cir. 1966), cert. denied, 385 U.S. 1010, 87 S.Ct. 719, 17 L.Ed.2d 548 (1967); Cain v. United States, 349 F.2d 870, 871 (8th Cir. 1965); Moore v. United States, 337 F.2d 350, 351 (8th Cir. 1964), cert. denied, 379 U.S. 994, 85 S.Ct. 712, 13 L.Ed.2d 614 (1965); Taylor v. United States, 332 F.2d 918, 919-920 (8th Cir. 1964); cf. Collins v. Markley, 346 F.2d 230, 232 (7th Cir. 1965), cert. denied, 382 U.S. 946, 86 S.Ct. 408, 15 L.Ed.2d 355 (1965); Clay v. United States, 326 F.2d 196, 198-199 (10th Cir. 1963), cert. denied, 377 U.S. 1000, 84 S.Ct. 1930, 12 L.Ed.2d 1050 (1964). This same rationale would apply with equal force to the failure of the indictment to specify either the consideration for, or the exact location of the sale. Allegations of consideration or venue are no more essential elements of an indictment than the name of a purchaser. Cf. Flores v. United States, 338 F.2d 966, 967 (10th Cir. 1964); Carbo v. United States, 314 F.2d 718, 733 (9th Cir. 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498 (1964). Moreover, we fail to perceive how defendant sustained any prejudice as the result of such omissions particularly where, as here, all of this information was supplied through the bill of particulars. Motion to Suppress This motion was properly denied. Examination of the record thoroughly refutes the notion that any evidence was unlawfully seized from defendant’s possession. Although the point is not articulately raised in either his brief or motion to suppress, defendant apparently contends that the monitoring by Agent Patch of Mrs. Taylor’s conversation with him on September 9th was improper, and therefore Patch’s testimony with respect to that conversation should have been suppressed. Because of the vagueness of the motion to suppress, and the failure to object to Patch’s testimony relating to the conversation, it is doubtful whether this point has properly been preserved for review. In any event, the Supreme Court has held that the contents of a communication overheard on a regularly used telephone extension with the consent of one party to the conversation are admissible in federal court. Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957). Motions for Discovery Relying upon Rule 16, Fed.R.Crim.P., defendant alleges error in the court’s denial of inspection of (1) reports of scientific experiments conducted in connection with the case and (2) criminal records of all witnesses in the case. An application for relief under the discovery rules, however, is a matter within the sound discretion of the district court and is reviewable only for an abuse of discretion. Gevinson v. United States, 358 F.2d 761 (5th Cir. 1966), cert. denied, 385 U.S. 823, 87 S.Ct. 51, 17 L.Ed.2d 60 (1966). We find no abuse of discretion here, particularly in absence of any showing that defendant was prejudiced. Disclosure of the chemist’s report would not have materially aided in the preparation of the defense. Defendant does not, and in view of the uncontradicted evidence, could not logically assert that the package did not contain heroin. Rather he speculates that the scientific experiments may have disclosed a smaller quantity of heroin than was the subject of the sale. The testimony of the government chemist, Ferris Van Sickle, with respect to his analysis of the package’s contents, does point out such a minor discrepancy. The confusion as to the exact quantity of heroin, however, did not amount to a fatal variance between the indictment and proof. Defendant, moreover, seized upon this' variation in cross-examination and closing argument. Production of the experiment report itself would have disclosed no greater revelation. The assertion that the government should have informed the defendant prior to trial of the criminal record of the government’s witnesses is utterly lacking in merit, and requires no further comment. The district court properly denied defendant’s attempt to achieve a wholesale disclosure of the government’s case by his motion for disclosure of evidence “favorable” to the accused. Despite the broad language of Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), upon which defendant bases his motion, there is nothing in this record even remotely suggesting that the government has suppressed material evidence favorable to the defendant. His position therefore is not akin to the aggravated situation condemned in Brady v. State of Maryland, supra, where the prosecution in the trial of the accused suppressed a confession of an accomplice admitting the actual homicide. Cf. United States v. Wilkins, 326 F.2d 135 (2d Cir. 1964) (prosecution required to disclose existence of two disinterested eyewitnesses who would have testified that defendant was not a participant in the robbery charged). Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842 (4th Cir. 1964) (suppression of exculpatory evidence in the nature of ballistics reports and fingerprint tests tending to show that a revolver not belonging to the accused was used in the crime held to be a denial of due process), Motion for Bill of Particulars The district court granted and denied in part defendant’s motion for a bill of particulars. He asserts error concerning that portion of the motion that was denied. We hold that the district court acted within its discretion in limiting the scope of the bill of particulars. The bill of particulars that was furnished precisely apprised the defendant of the nature of the charge against him with sufficient clarity and specificity to enable him to prepare for trial. That portion of the motion wherein the defendant sought to determine the manner in which the sale of narcotics took place concerns evidentiary matters. Acquisition of evidentiary detail is not the function of the bill of particulars. Ross v. United States, 374 F.2d 97, 103-104 (8th Cir. 1967), cert. denied, 389 U.S. 882, 88 S.Ct. 130, 19 L.Ed.2d 177 (1967); Ray v. United States, 367 F.2d 258, 263 n. 5 (8th Cir. 1966), cert. denied, 386 U.S. 913, 87 S.Ct. 863, 17 L.Ed.2d 785 (1967). Motion for Continuance On the morning of trial the defendant orally moved for a continuance to secure time in which to check where and to whom certain telephone calls to Chicago were made. He asserts error in the court’s denial of this motion. Apart from the question as to the sufficiency of the motion because of its vagueness, we find no substance in this assignment of error. It is a well settled rule that a motion for a continuance is addressed to the sound discretion of the trial judge, the exercise of which will ordinarily not be reviewed. Stamps v. United States, 387 F.2d 993 (8th Cir. 1967); Butler v. United States, 351 F.2d 14, 18-19 (8th Cir. 1965), cert. denied, 383 U.S. 909, 86 S.Ct. 892, 15 L.Ed.2d 664 (1966); Ray v. United States, 197 F.2d 268, 270-271 (8th Cir. 1952). Considering counsel’s ample opportunity prior to trial to investigate the matters concerning which he sought a continuance we find no clear abuse of discretion in its denial. Motion for Judgment of Acquittal In view of the uncontroverted evidence relating to defendant’s guilt we find this assignment of error patently lacking in merit. His sole defense to the charge against him was an attack on the credibility of government informer, Mrs. Taylor. The jury chose to believe Mrs. Taylor, whose testimony was substantially corroborated by Agent Patch. On the record as a whole there is unquestionably substantial evidence to support the verdict. The judgment of conviction is accordingly affirmed. . Defendant was arrested in Chicago, Illinois where bond had been originally set at $5,000.00. Subsequently, upon a motion for reduction, the United States District Court for the Northern District of Illinois reduced the amount of the bond to $1,000.00. Defendant then secured his freedom by posting a cash deposit of $100.00 in lieu of the bond. In his appearance on May 15, 1967 before the United States District Court for the Eastern District of Missouri in St. Louis to answer the indictment that court, cognizant that the defendant had previously received a ten year term of imprisonment for violation of the narcotics law, increased the amount of the bond to $5,000.00 and placed defendant in the custody of the United States Marshal. 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_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Thomas GASKINS, Appellant, v. The Honorable Robert F. KENNEDY, Attorney General, and Kermit A. Weak-ley, Superintendent, D. C. Reformatory, Lorton, Virginia, Appellees. No. 9863. United States Court of Appeals Fourth Circuit. Argued May 7, 1965. Decided Aug. 2, 1965. Harvey B. Cohen, Arlington, Va. (Court-assigned counsel) [Tolbert, Lewis & Fitzgerald, Arlington, Va., on brief], for appellant. MacDougal Rice, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief), for appellees. Before BOREMAN and J. SPENCER BELL, Circuit Judges, and BUTZNER, District Judge. J. SPENCER BELL, Circuit Judge: This appeal is from an order of the District Court for the Eastern District of Virginia dismissing a petition for a writ of habeas corpus without an evidential hearing. The district court entertained the habeas petition filed on June 29, 1964, and required the United States to make a return showing why the writ should not be granted. Thereafter the court, being of the opinion that the petitioner, Thomas Gaskins, was lawfully confined, dismissed the petition. Gaskins, after having been convicted of violating 21 U.S.C.A. § 174 and 26 U.S.C.A. §§ 4704(a) and 4705(a) (narcotics violations), was sentenced on February 15, 1957, by the United States District Court for the District of Columbia to a prison term of nine years. He was confined in the District of Columbia Reformatory at Lorton, Virginia, where his good time allowance was computed under the provisions of 18 U.S.C.A. § 4161. He was conditionally released from Lorton on April 29, 1963, under the provisions of 18 U.S.C.A. § 4164, to remain in that status under the general supervision of the District of Columbia Board of Parole [hereinafter D.C. Parole Board] until the expiration of his sentence on August 18, 1965. On December 24, 1963, a parole violator warrant was issued for Gaskins’ arrest by the D.C. Parole Board pursuant to section 24-205 of the District of Columbia Code [hereinafter D.C. Code] for alleged violations of the conditions of his release. On December 30, 1963, the warrant was executed, and Gaskins was returned to Lorton where his sentence was recomputed under the appropriate provisions of the D.C. Code, resulting in a mandatory release date of March 29, 1966. On February 20, 1964, the petitioner was given a hearing on the alleged violations of the conditions of his good time release; after this hearing the D.C. Parole Board, acting under section 24-206 of the D.C. Code, entered an order revoking his conditional release. Gaskins then filed the petition involved on this appeal. Counsel for the petitioner asserts that he is presently illegally confined for three reasons: (1) as one who was convicted of violating a general federal law (as distinguished from a criminal statute of the District of Columbia), he is not subject to the supervision of the D.C. Parole Board, and therefore section 24-206 of the D.C. Code empowering the D.C. Parole Board to revoke a parole release is not applicable to him; (2) as a narcotics violator subject to the mandate of 26 U.S.C.A. § 7237(d), he is not subject to the provisions of the D.C. Code dealing with parole, specifically sections 24-201a through 24-209; and (3) he was denied due process when counsel was not assigned to him as an indigent at the hearing held prior to the revocation of his conditional release. The petitioner’s first two contentions are without merit for the reasons stated in our opinion announced this day in Fuller v. Weakley, 349 F.2d 90. As for his third assertion, the prisoner’s petition itself states that his conditional release was revoked because he failed to make a required report to his parole supervisor in November, 1963, and Gaskins has never disputed this factual allegation. The response of the Government in this proceeding has appended to it an affidavit of the Secretary of the D.C. Parole Board which recites that the petitioner violated the terms of his conditional release in this and other respects. In Jones v. Rivers, 338 F.2d 862 (4 Cir. 1964), a panel of this court considered the question of the right of an indigent parolee or conditional releasee to be provided with counsel to represent him at a revocation hearing. Although the members of that panel expressed divergent views, we accept the decision in Jones as holding, at the very least, that at a routine rev-ocation hearing where the factual basis for revocation is not disputed, an indigent violator of the terms of his conditional release is not entitled to have counsel appointed to represent him. The instant case comes within that holding in Jones. See also Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 238 (1963). For these reasons the order of the district court is affirmed. Affirmed. . This section provides in essence that a prisoner who has been conditionally released “shall upon release be treated as if released on parole * * *." Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_casetyp1_2-2	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 "civil rights". Winston Monroe HOLLOWAY, Appellant, v. C. A. BRUTON, Court Bailiff, Fourth Division, Pulaski Circuit Court; Gerald Kirk, Pulaski County Deputy Sheriff; and Mark Fryklund, Channel Four Newservice Cameraman, Appellees. No. 79-1408. United States Court of Appeals, Eighth Circuit. Submitted Nov. 10, 1980. Decided Nov. 17, 1980. Winston Holloway, pro se. Akins & Matthews by John E. Matthews, Little Rock, Ark., for appellant. Wilbur C. Bentley, Pros. Atty., Sixth Judicial District of Arkansas by Hugh L. Brown and Larry D. Vaught, Deputy Pros. Attys., Little. Rock, Ark., for appellees. .Before HEANEY, BRIGHT and ROSS, Circuit Judges. PER CURIAM. Before the Court is appellant’s appeal from an order of the district court dismissing his civil rights action without prejudice. In his original complaint, the appellant alleged that his constitutional right to a fair trial before an impartial jury was infringed by conspiratorial acts engaged in by the Pulaski County Sheriff, Gerald Kirk, and the court bailiff of the Pulaski Circuit Court for the Fourth Division, C. A. Bruton. The appellant’s claim is that Messrs. Kirk and Bruton permitted the appellant and a codefendant to be photographed while being transported with other prisoners from the Pulaski County Courthouse to the county jail. At the time they were photographed, the prisoners were all handcuffed and chained together. The appellant contends that the dissemination of these photographs in conjunction with excessive adverse news coverage rendered it impossible for him to secure a fair trial. At the time the appellant filed this civil rights action, he was awaiting his criminal trial. The court below permitted the appellant to proceed in forma pauperis, 28 U.S.C. § 1915, but concluded later that the case was prematurely filed and dismissed the cause without prejudice. We determine that the district court properly dismissed the appellant’s case as premature. The lower court correctly reasoned that in order to receive monetary relief under the Civil Rights Act, 42 U.S.C. § 1983, for the deprivation of the right to a fair trial, a petitioner must establish that the alleged improper conduct in fact had that effect. McNally v. Pulitzer Publishing Co., 532 F.2d 69, 76 (8th Cir. 1976); Rosenberg v. Martin, 478 F.2d 520, 525 (2d Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 102, 38 L.Ed.2d 90 (1973). The district court correctly reasoned that since the appellant had filed his complaint prior to his criminal trial, he could state no set of facts which could amount to a showing of present injury. Now that his trial has finally resulted in conviction and has been affirmed on appeal to the Arkansas Supreme Court, Holloway v. State, 594 S.W.2d 2 (Ark.1980), he is free to reassert his civil rights claim. The order of the district court is affirmed. . The appellant was charged with armed robbery of a Little Rock restaurant and with rape of a restaurant employee in 1975. He was convicted in a joint trial with his two codefendants and the conviction was affirmed on appeal by the Arkansas Supreme Court. Holloway v. State, 539 S.W.2d 435 (Ark. 1976). The conviction was, however, reversed by the United States Supreme Court on the ground that the trial court had unconstitutionally failed to appoint separate counsel for the multiple defendants. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). It was while the appellant was awaiting his retrial that the actions giving rise to the instant case occurred. Question: What is the specific issue in the case within the general category of "civil rights"? A. civil rights claims by prisoners and those accused of crimes B. voting rights, race discrimination, sex discrimination C. other civil rights 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). THE RUSSELL NO. 3. No. 218. Circuit Court of Appeals, Second Circuit. Nov. 18, 1938. For prior opinion see 98 F.2d 694. Bigham, Englar, Jones & Houston, and Alexander, Ash & Jones, all of New York City (Oscar R. Houston, Andrew J. Mc-Elhinney, and Edward Ash, all of New York City, of counsel), for appellant. Homer L. Loomis, of New York City, for appellee. • Before L. HAND, SWAN, and CHASE, Circuit Judges. PER CURIAM. This suit was begun in December 12, L925: we disposed of it finally on July 18, 1938, after two appeals, deciding among other things that the claimant should bear so much of the drydocking charges as were attributable to the repair both of the propeller and of the bushing and nut. The only question before us was whether the libellant or the claimant should bear the whole of these. On August 2, 1938, the claimant filed a petition for rehearing asking that the charges should be shared equally, citing in support Marine Insurance Co. Ld. v. The China Trans-Pacific S. S. Co., Ld., 11 App.Cas. 573 (H.L.), The Haversham Grange, L.R. (1905) Prob.Div. 307 (C.A.), and the Bratsberg, D.C., 127 F. 1005. The claimant had theretofore not even intimated that the charges should be divided; its position throughout had been that it should pay no part of them. We will not consider a new point raised for the first time after such extraordinary delays, except to say that, since the matter has never been presented to us, we shall feel free in the future to treat it as res integra. Petition for rehearing denied. 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:
sc_issue_8	32	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. UNITED GAS PIPE LINE CO. v. MEMPHIS LIGHT, GAS AND WATER DIVISION et al. No. 23. Argued October 20-21, 1958, Decided December 8, 1958 Ralph M. Carson argued the causes for petitioners in Nos. 23 and 26. With him on the brief for petitioner in No. 23 were Thomas Fletcher, C. Huffman Lewis, Morton E. Yohalem and James J. Higginson. On the brief for petitioners in No. 26 were John T. Cahill for the Texas Gas Transmission Corporation, William S. Tarver for the Southern Natural Gas Co., and Richard J. Connor and Daniel James, of counsel. Solicitor General Rankin argued the cause for the Federal Power Commission. With him on the brief were Willard W. Gatchell and William W. Ross. George E. Morrow and Reuben Goldberg argued the causes and filed a brief for the Memphis Light, Gas and Water Division et al., respondents. Briefs of amici curiae urging affirmance in Nos. 23, 25 and 26 were filed by Everett C. McKeage for the State of California et al., Joe T. Patterson, Attorney General, and Wade H. Creekmore, Assistant Attorney General, for the State of Mississippi, George F. McCanless, Attorney General, and Allison B. Humphreys, Solicitor General, for the State of Tennessee, Stewart G. Honeck, Attorney General, and Roy G. Tulane, Assistant Attorney General, for the State of Wisconsin, John J. O’Connell, Attorney General, and Frank P. Hayes, Assistant Attorney General, for the State of Washington, Garner W. Green for the City of Hattiesburg, Mississippi, and Roger Arnebergh, John C. Banks, Peter Campbell Brown, J. Elliott Drinard, Marshall F. Hurley, J. Frank McKenna, John C. Melaniphy, Charles S. Rhyne and J. Parker Connor for the Member Municipalities of the National Institute of Municipal Law Officers. Together with No. 25, Federal Power Commission v. Memphis Light, Gas and Water Division et al., and No. 26, Texas Gas Transmission Corp. et al. v. Memphis Light, Gas and Water Division et al., also on certiorari to the same Court. Mr. Justice Harlan delivered the opinion of the Court. We review a judgment of the Court of Appeals for the District of Columbia Circuit which directed the Federal Power Commission to reject certain rate schedules for natural gas filed with it by petitioner United Gas Pipe Line Company (United) under § 4 (d) of the Natural Gas Act of 1938, 52 Stat. 821, as amended, 15 U. S. C. § 717 et seq. United, a regulated natural gas pipeline company, supplies gas to Texas Gas Transmission Corporation (Texas Gas), Southern Natural Gas Company (Southern Gas), and Mississippi Valley Gas Company (Mississippi), under a number of long-term service agreements made and filed with the Commission prior to September 30, 1955, each of which contains the following pricing provision: “All gas delivered hereunder shall be paid for by Buyer under Seller’s Rate Schedule [the appropriate rate schedule designation is inserted here], or any effective superseding rate schedules, on file with the Federal Power Commission. This agreement in all respects shall be subject to the applicable provisions of such rate schedules and to the General Terms and Conditions attached thereto and filed with the Federal Power Commission which are by reference made a part hereof.” (Italics supplied.) On September 30, 1955, United, proceeding under § 4 (d) of the Natural Gas Act, filed with the Commission new rate schedules, together with supporting data, increasing its prices for gas as of November 1, 1955, by amounts estimated to yield total additional annual revenues of $9,978,000 from sales under the agreements here involved and from other sales also subject to the Commission’s jurisdiction. Exercising its powers under § 4 (e) of the Act, the Commission ordered a hearing as to the propriety of the new rates, and, except as to those relating to sales of gas for resale for industrial use only, suspended their effectiveness from November 1, 1955, to April 1, 1956, the maximum period of suspension authorized by the statute. Thereafter Texas Gas, Southern Gas, Mississippi, Memphis, and others claiming an interest in the proceedings were permitted to intervene; and on February 6, 1956, the Commission commenced the taking of evidence as to the lawfulness of United’s new rates under the “just and reasonable” standard of § 4 (e). On February 27, 1956, this Court announced its decision in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U. S. 332, in which it was held that United could not escape a contract obligation to furnish Mobile with natural gas at a single specified price for a term of years by unilaterally filing an increased rate schedule under § 4 (d) of the Natural Gas Act. Following that decision the respondents in the present case for the first time moved the Commission to reject United's new rate schedules, claiming that their filing constituted an attempt on the part of United to change unilaterally the terms of its service agreements with Texas Gas, Southern, and Mississippi, and that such an attempt ran afoul of our decision in Mobile. Construing these agreements as in effect constituting undertakings by the purchasers to pay United’s “going” rates, as established from time to time in accordance with the procedures prescribed by the Natural Gas Act, the Commission refused to reject United’s filings. It distinguished Mobile on the ground that the contract there involved specified a single fixed rate for the gas. to be supplied under it which United was contractually foreclosed from changing without the agreement of the purchaser. 16 F. P. C. 19, 15 P. U. R. 3d 279. The Court of Appeals reversed. Accepting for the purposes of its decision the Commission’s interpretation of United’s service agreements, the Court of Appeals held that nonetheless the Commission lacked “jurisdiction” to consider under § 4 (e) the lawfulness of United’s new rate schedules. The court regarded Mobile as establishing that § 4 (e) applies only to rate changes whose specific amount has been mutually agreed upon between a seller and purchaser, and that where a purchaser has not so agreed, a rate change can be effected only by action of the Commission under § 5 (a) of the Act. Since the rates set forth in United’s new schedules had not been agreed to by its customers, the Court of Appeals therefore held that the Commission had no jurisdiction to proceed under § 4 (e) to examine them, and that accordingly United’s filings under § 4 (d) should have been rejected. 102 U. S. App. D. C. 77, 250 F. 2d 402. We granted certiorari because of the claim that the Court of Appeals misinterpreted our decision in Mobile, and on the suggestion that its judgment seriously frustrates the proper administration of the Natural Gas Act. 355 U. S. 938. It is apparent that the Court of Appeals misconceived the import of our decision in Mobile. The contract before the Court in that case required United to furnish natural gas to Mobile at a single fixed price of 10.7 cents per MCF (thousand cubic feet) for a period of 10 years. The contract contained no provision for any different rate, or for changing the agreed rate during the term of the agreement. It was argued by United that the Natural Gas Act gave it the right to abrogate this unqualified contract obligation and increase at will its price of gas to Mobile by filing new rate schedules under § 4 (d), subject only to the Commission’s approval of such schedules under §4(e). In rejecting that contention this Court held that the Natural Gas Act, unlike the Interstate Commerce Act, “evinces no purpose to abrogate private rate contracts as such,” that the Act did not "empower natural gas companies to change their contracts unilaterally,” and that in this respect regulated natural gas companies stood in no different position under the Act than they would have in the absence of the Act. 350 U. S., at 338, 340, 343. Since United had contractually bound itself to furnish gas to Mobile throughout the contract term at a particular price, we held that its obligation could be abrogated only by the Commission, in the exercise of its paramount regulatory authority under § 5 (a). Ibid., at 344-345. The United contract now before us, as construed by the Federal Power Commission and as viewed by the Court of Appeals for the purposes of decision, is vitally different from that in Mobile. On this view of the contract United bound itself to furnish gas to these customers during the life of the agreements not at a single fixed rate, as in Mobile, but at what in effect amounted to its current “going” rate. Contractually this left United free to change its rates from time to time, subject, of course, to the procedures and limitations of the Natural Gas Act. In such circumstances there is nothing in Mobile which suggests that United was not entitled to file its new schedules under § 4 (d), or' that the Commission had no jurisdiction to consider them under §4(e). On the contrary we said in Mobile (350 U. S., at 343): “. . . except as specifically limited by the Act, the rate-making powers of natural gas companies were to be no different from those they would possess in the absence of the Act: to establish ex parte, and change at will, the rates offered to prospective customers; or to fix by contract, and change only by mutual agreement, the rate agreed upon with a particular customer. No more is necessary to give full meaning to all the provisions of the Act: consistent with this, § 4 (d) means simply that no change— neither a unilateral change to an ex parte rate nor an agreed-upon change to a contract — can be made by a natural gas company without the proper notice to the Commission. . . .” The Court of Appeals therefore erred in reading Mobile as limiting the procedures prescribed by § 4 (d) and (e) to instances where the parties by mutual agreement had “reformed” a rate contract. The reason these procedures were unavailable to United in Mobile was because the company had bargained away by contract the right to change its rates unilaterally, and not because § 4 does not apply to such rate changes whether made pursuant to or in the absence of a contract. Moreover, we find nothing in the scheme of the Natural Gas Act which would justify the restrictive application which the Court of Appeals’ decision gives to § 4 (d) and (e). Section 4 (c) requires every natural gas company initially to file with the Commission its rates for any “sale subject to the jurisdiction of the Commission, . . . together with all contracts which in any manner affect or relate to such, rates . . . .” Section 4 (d) provides for the giving of notice of any change “in any such rate ... or contract relating thereto . . .” by filing new rate schedules with the Commission and keeping them open for public inspection. And § 4 (e) authorizes Commission review of the lawfulness' of any such changed rate. The record before us affirmatively shows that United in the filings here at issue has complied with all the duties which these sections in terms impose upon it, and there is nothing in these sections which even remotely implies that § 4 (d) and (e) procedures are applicable to the filing and review of only those rate changes whose amount has been agreed upon by the seller and buyer. The important and indeed decisive difference between this case and Mobile is that in Mobile one party to a contract was asserting that the Natural Gas Act somehow gave it the right unilaterally to abrogate its contractual undertaking, whereas here petitioner seeks simply to assert, in accordance with the procedures specified by the Act, rights expressly reserved to it by contract. Mobile makes it plain that “§ 4 (d) on its face indicates no more than that otherwise valid changes cannot be put into effect without giving the required notice to the Commission.” 350 U. S., at 339-340. (Italics supplied.) The necessary corollary of this proposition is that changes which in fact are “otherwise valid” in the light of the relationship between the parties can be put into effect under § 4 (d) by a seller through giving the required notice to the Commission. Mobile expressly notes that in the absence of any contractual relationship rates determined ex parte by the seller may be filed under § 4 (d). 350 U. S., at 343. We perceive no tenable basis of distinction between the filing of such a rate in the absence of contract and a similar filing under an agreement which explicitly permits it. Thus Mobile, properly understood, affirmatively establishes United’s right to proceed under § 4 in the circumstances of this case. As we there said, “The initial rate-making and rate-changing powers of natural gas companies remain undefined and unaffected by the Act.” 350 U. S., at 343. United, like the seller of an unregulated commodity, has the right in the first instance to change its rates as it will, unless it has undertaken by contract not to do so. The Act comes into play as to rate changes only in (1) imposing upon the seller the procedural requirement of filing timely notice of change, (2) giving the Commission authority to review such changes, and (3) authorizing the Commission, in the case of rates for sales of gas for other than exclusively industrial use, to suspend the new rates for a five-month period and thereafter to require the posting of a refund bond pending a determination of the lawfulness of the rates as changed. (See § 4 (d), (e), at note 3, supra.) It seems plain that Congress, in so drafting the statute, was not only expressing its conviction that the public interest requires the protection of consumers from excessive prices for natural gas, but was also manifesting its concern for the legitimate interests of natural gas companies in whose financial stability the gas-consuming public has a vital stake. Business reality demands that natural gas companies should not be precluded by law from increasing the prices of their product whenever that is the economically necessary means of keeping the intake and outgo of their revenues in proper balance; otherwise procurement of the vast sums necessary for the maintenance and expansion of their systems through equity and debt financing would become most difficult, if not impossible. This concern was surely a proper one for Congress to take into account in framing its regulatory scheme for the natural gas industry, cf. Federal Power Commission v. Hope Natural Gas Co., 320 U. S. 591, 603, and we think that it did so not only by preserving the “integrity” of private contractual arrangements for the supply of natural gas, 350 U. S., at 344 (subject of course to any overriding authority of the Commission), but also by providing in § 4 for the earliest effectuation of contractually authorized or otherwise permissible rate changes consistent with appropriate Commission review. What has been said disposes of the question whether anything in the Natural Gas Act forbids a seller to change its rates pursuant to § 4 procedures simply because its customers have not agreed to the amount of the rate as changed. There remains the question whether United’s service agreements reserved to it the power to make rate changes in this manner. The Commission found that the agreements so intended, but on its view of the case the Court of Appeals found it unnecessary to decide the question. We think it would be both unnecessary and dilatory for us to remand the case to the Court of Appeals for consideration of that issue, which involves matters peculiarly within the area of the Commission’s special competence and as to which we could hardly be aided by a further examination of the record by the Court of Appeals. Indeed neither side suggests such a course, even alternatively, both asking us to decide the case in its present posture. After scrutinizing the record we are satisfied that the Commission’s determination as to the meaning of the service agreements here involved was amply supported both factually and legally. There is no necessity for us to embark upon a detailed discussion of the various contentions made by the parties, none of which appears to have been overlooked or misapprehended by the Commission. It seems sufficient to say that the record shows that these agreements are typical of the “tariff-and-service” arrangements contemplated by Commission Order. No. 144, 18 CFR § 154.1 et seq.; that until this case no one connected with the industry seems to have thought that agreements of this sort precluded natural gas companies from changing their rates in accordance with and subject to § 4 (d) and (e) procedures; and that the respondents’ present contrary contentions had their sole genesis in a mistaken view of our decision in the Mobile case. Beyond this, we find nothing in these agreements, as interpreted by the Federal Power Commission, which is hostile to any of the provisions or purposes of the Natural Gas Act. For the reasons given we hold that the Court of Appeals was in error in concluding that in the circumstances of this case United could not proceed to change its rates by-filing under § 4 (d) of the statute. Reversed. Mr. Justice Clark took no part in the consideration or decision of these cases. Mississippi, a natural gas distributing company, also purchases gas from Texas Gas and Southern Gas. Respondent Memphis Light, Gas and Water Division, an agency of the City of Memphis engaged in the distribution of natural gas, purchases gas from Texas Gas, and has no direct contract relations with United. However, it is obligated to reimburse Texas Gas for any increase in the latter’s cost of gas acquired from United. Originally there were seven such agreements, of which five contained the provision quoted in the text. However, the other two were found by the Commission, and assumed by the Court of Appeals, to contain the equivalent of that provision, and one of the two was replaced by a superseding agreement explicitly containing the provision very shortly after the filing here at issue. Sections 4 (d) and 4 (e) of the National Gas Act read as follows: § 4 (d): “Unless the Commission otherwise orders, no change shall be made by any natural-gas company in any such [filed] rate, charge, classification, or service, or in any rule, regulation, or contract' relating thereto, except after thirty days’ notice to the Commission and to the public. Such notice shall be given by filing with the Commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force and the time when the change or changes will go into effect. The Commission, for good cause shown, may allow changes to take effect without requiring the thirty days’ notice herein provided for by an order specifying the changes so to be made and the time when they shall take effect and the manner in which they shall be filed and published.” § 4 (e): “Whenever any such new schedule is filed the Commission shall have authority, either upon complaint of any State, municipality, or State commission, or upon its own initiative without complaint, at once, and if it so orders, without answer or formal pleading by the natural-gas company, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, charge, classification, or service; and, pending such hearing and the decision thereon, the Commission, upon filing with such schedules and delivering to the natural-gas company affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a longer period than five months beyond the time when it would otherwise go into effect: Provided, That the Commission shall not have authority to suspend the rate, charge, classification, or service for the sale of natural gas for resale for industrial use only; and after full hearings, either completed before or after the rate, charge, classification, or service goes into effect, the Commission may make such orders with reference thereto as would be proper in a proceeding initiated after it had become effective. If the proceeding has not been concluded cand an order made at the expiration of the suspension period, on motion of the natural-gas company making the filing, the proposed change of rate, charge, classification, or service shall go into effect. Where increased rates or charges are thus made effective, the Commission may, by order, require the natural-gas company to furnish a bond, to be approved by the Commission, to refund any amounts ordered by the Commission, to'keep accurate accounts in detail óf all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts were paid, and, upon completion of the hearing and decision, to order such natural-gas company to refund, with interest, the portion of such increased rates or charges by its decision found not justified. At any hearing involving a rate or charge sought to be increased, the burden of proof to show that the increased rate or charge is just and reasonable shall be upon the natural-gas company, and the Commission shall give to the hearing and decision of such questions preference over other questions pending before it and decide the same as speedily as possible.” The Commission did not suspend the rates applicable to sales for resale for industrial use only, as it has always taken the view that under the statute it is without power to suspend the effectiveness of these rates. § 5 (a): “Whenever the Commission, after a hearing had upon its own motion or upon complaint of any State, municipality, State commission, or gas distributing company, shall find that any rate, charge, or classification demanded, observed, charged, or collected by any natural-gas company in connection with any transportation or sale of natural gas, subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory, or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, régulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order: Provided, however, That the Commission shall have no power to order any increase in any rate contained in the currently effective schedule of such natural gas company on file with the Commission, unless such increase is in accordance with a new schedule filed' by such natural gas company; but the Commission may order a decrease where existing rates are unjust, unduly discriminatory, preferential, otherwise unlawful, or are not the lowest reasonable rates.” See note 3, supra. See note 3, supra. A majority of the court below thought that such a limitation should be imported into the Act to fend against “debilitating Section 5 (a)” by making it possible for a seller to reserve by contract the right to avoid “the delay and the more stringent proof requirements of Section 5 (a) ” through utilizing § 4 procedures. 102 U. S. App. D. C., at 82, note 3, 250 F. 2d, at 407, note 3. Apart from the fact that this approach seems to assume a negative answer to the very question at issue — whether Congress intended that natural gas companies should be permitted, so far as the statute is concerned, to file rate changes under § 4 (d) without securing prior customer agreement to the changed rate — it may be pointed out that the Commission appears consistently to have viewed the proof requirements under §§ 4 (e) and 5 (a) as equally “stringent.” See FPC, Thirty-fifth Annual Report (1955), at 106; Thirty-fourth Annual Report (1954), at 106; Thirty-third Annual Report (1953), at 99. When the Natural Gas Act became law in 1938, natural gas companies were permitted to file their existing sales contracts as rate schedules under § 4 (c). Schedules in this form were extremely lengthy, unwieldy, and otherwise unsatisfactory in that it was most difficult for customers, competitors, and the Commission itself to ascertain whether rates to various customers were unduly discriminatory or otherwise unreasonable. The Commission therefore proposed regulations requiring the conversion of rate contracts into a “tariff- and-service-agreement” system, and these regulations were promulgated in October 1948 as Order No. 144. Under the tariff-and-service-agreement system, the agreement between buyer and seller does not itself contain a price term, but rather refers to rate schedules of general applicability on file with the Commission. It is noteworthy that Order No. 144 expressly contemplates that a seller may reserve the “privilege” of filing rate changes under § 4 of the Act. 18 CFR § 154.38 (d) (3). Between the date of the Mobile decision and that of the court below it appears that only three purchasers of natural gas under service agreements similar to those here involved (one of them Mississippi, a respondent here) moved to dismiss changed rate schedules on the ground that the agreements did not permit their filing, although some 600 such purchasers were affected by rate changes filed during that period. Respondents argue that the “effective superseding rate” clause of the agreements must be read as referring only to superseding rates established after a § 5 (a) proceeding, because it would be unreasonable to find that the buyer-signatories to the agreements had intended to authorize United to change its “industrial” rates by a §4(d) filing in light of the fact that such rates are not subject to suspension and refund under the statute. Apart from the circumstances that (1) United’s “industrial” sales under these agreements appear to have been a relatively minor factor; (2) the clause would be entirely superfluous if construed as respondents would have it, since as a matter of law rate changes ordered by the Commission after a § 5 (a) proceeding would have been incorporated into the agreements, Northern Pacific R. Co. v. St. Paul & Tacoma Lumber Co., 4 F. 2d 359 (C. A. 9th Cir. 1925), appeal dismissed, 269 U. S. 535; Market Street R. Co. v. Pacific Gas & Electric Co., 6 F. 2d 633 (D. C. N. D. Cal. 1925), appeal dismissed, 271 U. S. 691; and (3) the “industrial” rates of United have consistently been below its other rates, the force of respondents’ contention is wholly destroyed by the fact that it appears that the buyer-signatories to the agreements are entitled by contract with their customers to pass on any rate increases effected by United. Under these circumstances it can hardly be said to be inconceivable, or even unlikely, that the buyers would have been willing to authorize United to change its “going” rates to them under § 4 (d). Question: What is the issue of the decision? 01. antitrust (except in the context of mergers and union antitrust) 02. mergers 03. bankruptcy (except in the context of priority of federal fiscal claims) 04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death 05. election of remedies: legal remedies available to injured persons or things 06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action. 07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages 08. liability, punitive damages 09. Employee Retirement Income Security Act (cf. union trust funds) 10. state or local government tax 11. state and territorial land claims 12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation) 13. federal or state regulation of securities 14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution) 15. corruption, governmental or governmental regulation of other than as in campaign spending 16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property 17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration) 18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts 19. patents and copyrights: patent 20. patents and copyrights: copyright 21. patents and copyrights: trademark 22. patents and copyrights: patentability of computer processes 23. federal or state regulation of transportation regulation: railroad 24. federal and some few state regulations of transportation regulation: boat 25. federal and some few state regulation of transportation regulation:truck, or motor carrier 26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline) 27. federal and some few state regulation of transportation regulation: airline 28. federal and some few state regulation of public utilities regulation: electric power 29. federal and some few state regulation of public utilities regulation: nuclear power 30. federal and some few state regulation of public utilities regulation: oil producer 31. federal and some few state regulation of public utilities regulation: gas producer 32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline) 33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television) 34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television) 35. federal and some few state regulations of public utilities regulation: telephone or telegraph company 36. miscellaneous economic regulation 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. FAWSETT v. COMMISSIONER OF INTERNAL REVENUE. No. 4757. Circuit Court of Appeals, Seventh Circuit. Feb. 17, 1933. Rehearing Denied March 20, 1933. Charles F. Fawsett, of Milwaukee, Wis., for petitioner. G. A. Youngquist, Asst. Atty. Gen., and Sewall Key and John MacC. Hudson, Sp. Assts. to Atty. Gen. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Laura M. Berrien, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for respondent. Before ALSCHULER and EVANS, Circuit Judges, and LINDLEY, District Judge. EVANS, Circuit Judge. Petitioner asserts that the amount in controversy, being the profits obtained on a Florida real estate deal, should not have been included in her 1925 taxable income, but were profits of the year 1930. The Commissioner and the Board of Tax Appeals held otherwise. The facts out of which the controversy arises may be briefly stated as follows: Petitioner, a Milwaukee resident, and Flower Broth ers? Florida real estate dealers, purchased, in 19-25-, 10,474 acres of Florida real estate for $-104,748. The purchase price was paid by (a) the assumption of an outstanding mortgage of $35,000; (b) the execution of a second mortgage securing four notes of $10,000 eaeb for the payment of which petitioner became liable; and (e) cash advanced by the two purchasers. Each paid $12,774.10. A corporation was organized to purchase and dispose of the land which was conveyed to the corporation for a price aggregating $160,000 and 400 shares of its capital stock. $85,000 was paid in cash, and the balance was represented by the two outstanding- mortgages, aggregating $75,000, only the former of which the corporation assumed. The capital stock of the corporation was 1,400 shares, 1,000 shares of which were sold to the public and 400 shares divided equally between petitioner and Flower Brothers. From the proceeds of the sale of the stock to the public, $85,000 was applied on the purchase price of the land, the balance used in part to apply on one of the mortgages. After the costs and commissions incident to the sale were paid, petitioner received, July, 1925-, as her part of the deal, $30,-916.15. Her profits, which were realized in 1925, were therefore $18,142.05'. However, she was contingently liable on the four $10,-000 notes which Flower Brothers executed. The venture turned out badly for the corporation which finally permitted the land to be sold on foreclosure in 1930. A sufficient sum was realized to satisfy the outstanding mortgages, but nothing was realized on the stock. Upon this statement of facts we agree with the Commissioner and the Board of Tax Appeals that petitioner’s profits on the transaction occurred in 1925, and the possible loss •on the $40,000 mortgage was not deductible therefrom. It is true there was a possibility of petitioner’s being called upon to make good a judgment predicated upon the four notes of $10,000 each. However, that was a loss which she was required to meet when .and if it occurred. If it ever occurred she could deduct the loss from the gains and profits for the year wherein it occurred. As stated in Burnet v. Huff, 53 S. Ct. 330, 331, 77 L. Ed.-, decided February 6, 1933: “ * * * The mere existence of liability is not enough to establish a deductible loss. There is liability in the ease of a breach of contract, but as the Court said in Lucas v. American Code Company, 280 U. S. 445, 450, 50 S. Ct. 202, 203, 74 L. Ed. 538, ‘even an unquestionable breach does not result in loss, if the injured party forgives or refrains from prosecuting his claim.’ And whether a taxpayer will actually sustain a loss through embezzlement of trust funds of which he is trustee will depend upon a variety of circumstances. If there is liability on his part for the misappropriation, it does not create a certainty of loss, as the defalcation may be made good by the one who caused it, or the .liability of the taxpayer may be enforced only to a limited extent or not at all. The requirement that losses be deducted in the year, in which they are sustained calls for a practical test. The lost ‘must be actual and present.’ ” The Government tax is due the year the profits occur. The tax may not be withheld because perchance there may be a loss due to a rise or fall of values or due to mismanagement, etc. The order of the Board of Tax Appeals is 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_counsel1	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Frank R. JACKLOVICH, as well for the United States of America as for himself, Plaintiff-Appellant, v. INTERLAKE, INC., Defendant-Appellee. No. 71-1382. United States Court of Appeals, Seventh Circuit. April 4, 1972. Marshall Patner, Alexander Polikoff, Thomas R. Meites, Chicago, Ill., Sheldon Plager, Champaign, Ill., for plaintiff-appellant. Henry L. Pitts, W. Gerald Thursby, Clifton A. Lake, Chicago, Ill., for defendant-appellee; Hackbert, Rooks, Pitts, Fullagar & Poust, Chicago, Ill., of counsel. Before KILEY, CUMMINGS and SPRECHER, Circuit Judges. CUMMINGS, Circuit Judge. In this qui tam action, plaintiff sued “as well for the United States of America as for himself” under Sections 13 and 16 of the Rivers and Harbors Act of 1899 (33 U.S.C.A. §§ 407 and 411-412). He alleged that in May 1969 defendant Interlake, Inc. was found guilty of discharging and depositing refuse matter from its Riverdale, Illinois, steel mill into the Little Calumet River during June 1968. That conviction occurred in a suit brought by the United States Attorney for the Northern District of Illinois on the basis of information provided by plaintiff and resulted in a fine, one-half of which was paid to plaintiff pursuant to Section 16 of the Act. See United States v. Interlake Steel Corp., 297 F.Supp. 912 (N.D.Ill.1969). The complaint asserts that plaintiff observed 26 subsequent instances of discharge into the river by defendant from June 1969 through October 1970. Plaintiff purportedly gave the bulk of this information to the United States Attorney for the Northern District of Illinois and to the Department of the Army, but the Government instituted no further proceedings against Interlake under this Act. Pursuant to the first sentence of Section 16 of the 1899 Act (33 U.S.C.A. § 411), he requested the district court to require Interlake to pay a fine not exceeding $2,500 nor less than $500 for each of these 26 violations, one-half to the United States and one-half to plaintiff, who commendably agreed to pay his net recovery to not-for-profit organizations “for use in the prevention of water pollution or the restoration of water quality in navigable waters of the United States.” Expressly following Bass Anglers Sportsman’s Society v. United States Plywood-Champion Papers, 324 F.Supp. 302 (S.D.Tex.1971), the district court granted defendant’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted, holding that the relevant part of Section 16 of the Act is a criminal statute and does not authorize the bringing of a qui tam action. This appeal followed. The sole question before us is whether the first sentence of Section 16 of the Rivers and Harbors Act of 1899 authorizes a qui tam action. It provides as follows: “Every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions of sections 407, 408, and 409 of this title [Sections 13, 14 and 15 of the Act], shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction.” (33 U.S.C.A. § 411) Section 17 of the Act provides in part: “The Department of Justice shall conduct the legal proceedings necessary to enforce the provisions of sections * * * 407 [and] * * * 411 * * * of this title [Sections 13 and 16 of the Act]; and it shall be the duty of United States attorneys to vigorously prosecute all offenders against the same whenever requested to do so by the Secretary of the Army or by any of the officials hereinafter designated * * ." (33 U.S.C.A. § 413) An examination of the above portion of Section 16 readily discloses that it is a criminal provision. Persons guilty of violating Section 13 (see note 2 supra) are made guilty of a misdemeanor, resulting in a fine or imprisonment, or both. There must be a criminal conviction before half of the criminal penalty is to be paid to the informer. No qui tam action is authorized. This interpretation is buttressed by Section 17, for it places the enforcement powers as to Sections 13 and 16 in the hands of the Department of Justice, with offenders to be prosecuted by the appropriate United States Attorneys. In the present ease, for reasons undisclosed in the record, the United States Attorney for the Northern District of Illinois has not seen fit to prosecute Interlake for the 26 instances of discharge described in this complaint, and he cannot be compelled to initiate another criminal action against Interlake. United States v. Jones, 438 F.2d 461, 468 (7th Cir. 1971); United States v. Cox, 342 F.2d 167, 171-172 (5th Cir.) (en banc), certiorari denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); Pugach v. Klein, 193 F.Supp. 630, 634-635 (S.D.N.Y.1961). Since the informer’s right to recover half the fine depends on a conviction in proceedings brought by the Government, plaintiff is remediless here. Two Courts of Appeals and twelve district courts that have considered the problem have unanimously so held. Plaintiff attempts to avoid this result by reliance upon the last portion of Section 16 of the Act. That portion makes it a misdemeanor for masters, pilots, engineers, and other persons acting as such to engage in substantive violations of the statute. It then provides: “Any boat, vessel, scow, raft, or other craft used or employed in violating any of the provisions of sections 407, 408, and 409 of this title [Sections 13, 14 and 15 of the Act] shall be liable for the pecuniary penalties specified in section 411 of this title [the first part of Section 16 of the Act], and in addition thereto for the amount of the damages done by said boat, vessel, scow, raft, or other craft, which latter sum shall be placed to the credit of the appropriation for the improvement of the harbor or waterway in which the damage occurred, and said boat, vessel, scow, raft, or other craft may be proceeded against summarily by way of libel in any district court of the United States having jurisdiction thereof”. (33 U.S.C.A. § 412; emphasis supplied) Plaintiff claims that the phrase “pecuniary penalties specified” in this part of Section 16 of the Act means that civil penalties may be assessed under the previous criminal fine language of Section 16. We do not accept this strained construction in view of the plain language to the contrary in the earlier part of Section 16. Moreover, the underscored language was obviously used to limit the in rem liability against any vessel used in violation of the Act to a maximum of $2,500 and minimum of $500, as provided in the first sentence of Section 16. United States v. The Republic No. 2, 64 F.Supp. 373, 377 (S.D.Tex.1946); and United States v. The M/V Martin, 198 F.Supp. 171, 176 (S.D.Ill.1961), affirmed, 313 F.2d 851 (7th Cir. 1963), are not to the contrary because those were both in rem actions brought by the United States. We believe their references to “the pecuniary penalties specified” in Section 16 were merely to show the measure of the in rem liability under the last part of Section 16, in accord with the statutory scheme as it clearly appears. Simply put, the availability of an in rem action with liability in part measured by criminal penalties prescribed in the preceding portion of the statute does not imply the availability of a civil remedy under the preceding portion. On the contrary, the difference in the types of proceedings provided for in distinct provisions of the statute emphasizes the criminal character of that afforded in the first sentence of Section 16. See Helvering v. Mitchell, 303 U.S. 391, 404, 58 S.Ct. 630, 82 L.Ed. 917. Plaintiff also contends that the first sentence of Section 16 authorizes a civil action for monetary penalties because the Government has brought civil actions to enjoin violations of other provisions of the Act. However, plaintiff has cited no ease in which the Government has proceeded civilly under the first sentence of Section 16, which provides that the mode of recovery of the penalties imposed thereunder is by a criminal action. Merely because other provisions of the Act may be enforced by civil injunctive action does not mean that plaintiff can recover monetary penalties under the opening sentence of Section 16 by way of a qui tarn action. Moreover, while civil remedies for violations of penal statutes are sometimes implied in favor of those whose special protection is the statutory purpose, the bare fact that Section 16 of the Act affords a portion of the criminal penalty assessed upon conviction to an informer is an insufficient basis on which to deprive alleged violators of the procedural protections attendant upon a criminal prosecution. Cf. Helvering v. Mitchell, 303 U.S. 391, 402-403, 58 S.Ct. 630, 82 L.Ed. 917. What the appellant seeks to accomplish here is not collateral civil enforcement of a standard of conduct prescribed in a penal statute especially for his benefit, but recovery of the criminal penalty without the necessity of the criminal prosecution the statute clearly requires. Plaintiff relies on Adams v. Woods, 6 U.S. 336, 2 Cranch. 336, 2 L.Ed. 297, but the anti-slave trade statute involved there specifically provided for the informer. to sue for the fine, as did the Ohio anti-gambling statute in Marvin v. Trout, 199 U.S. 212, 26 S.Ct. 31, 50 L.Ed. 157. Likewise, in United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443, the statute permitted informer suits to “be brought and carried on by any person.” See 317 U.S. at 546, 63 S.Ct. at 385. Although the Government presented strong policy arguments against the informer’s scheme involved in the Marcus case, the Court held that in view of the clear statutory policy there permitting informer suits, the proper forum for change was Congress (317 U.S. at 546-547, 63 S.Ct. 379), and shortly thereafter Congress accepted the challenge by repealing R.S. 3493 and revising R.S. 3491. It should be noted too that in Marcus the penalty involved was civil in nature, whereas the pertinent part of Section 16 of this Act requires a criminal conviction before an informer may share in the penalty. 317 U.S. at 549-552, 63 S.Ct. 379. Our holding that only the United States may bring and prosecute an action to impose the penalty described by the Rivers and Harbors Act is reinforced by the Eighth Circuit’s opinion in Williams v. Wells Fargo Co., Express, 177 F. 352, 354-356 (8th Cir. 1910). There a postal statute provided that one-half of the penalties and forfeitures imposed for violation of the postal laws should be recoverable “to the use of the person' informing and prosecuting for the same.” The court stated that such language (which is much broader than the key part of Section 16 of the Rivers and Harbors Act) standing alone would impliedly authorize an informer to bring a qui tam action. Nevertheless, the court held that a qui tam suit was prohibited because another section of the postal laws required that all suits for recovery of penalties or forfeitures thereunder “shall be brought in the name of the United States.” Similarly here, Section 17 of this Act commits the enforcement of Sections 13 and 16 of the Rivers and Harbors Act to the Department of Justice, thus also prohibiting qui tam actions by informers. While we share the public’s growing concern with pollution of public waters, the present design of the 1899 Rivers and Harbors Act does not permit qui tam actions to recover penalties for the discharge of refuse matter into navigable streams. Congress is the proper forum for amending the statute to permit such actions. Affirmed. . The phrase “qui tam” is derived from the common law action, “qui tam pro domino rege quam pro se ipso in hac parte sequitur” — who as well for the king as for himself sues in this matter. . Section 13 of the Act makes it unlawful to discharge or deposit refuse matter from a manufacturing establishment into navigable waters of the United States. The most pertinent part of Section 16 is reproduced infra, early in the text of this opinion. . The court below did not file an opinion because it would not “add anything to what has already been written.” . Roscoe Pound’s statement that an informer may sue in his own name “where a penalty is given to him in whole or in part for that reason alone” is not to the contrary, for he was not discussing a criminal statute which is expressly to be enforced by the Department of Justice. See Pound, Actions on Penal Statutes, 42 Central Law Journal 135 (1908). Plaintiff also relies on 28 U.S.C.A. § 2461(a) which permits civil actions to recover “a civil fine, penalty or pecuniary forfeiture * * prescribed for the violation of an Act of Congress without specifying the mode of recovery or enforcement thereof." (Emphasis supplied.) However, as seen, in Section 17 of the 1899 Act, Congress has explicitly provided for the Department of Justice to enforce Sections 13 and 16 of that Act, so that Section 2461(a) does not authorize the criminal fine specified in the first part of Section 16 to be recovered in a civil action. . According to its regulations, the Corps of Engineers of the Department of the Army does not take action (see 33 U.S.C.A. § 413) where violations are “minor, unintentional or accidental” and generally does not recommend prosecution (see Id.) where an alleged violation is “trivial, apparently, unpremeditated and results in no material public injury,” but only “in all cases of willful or intentional violations.” 33 C.F.R. §§ 209.395 and 209.400. See United States v. Interlake Steel Corp., 297 F.Supp. 912, 915 (N.D.Ill.1969). . Connecticut Action Now, Inc. v. Roberts Plating Co., Inc., 457 F.2d 81 (2d Cir., 1972); Bass Anglers Sportsman’s Soc’y v. Koppers Co., 447 F.2d 1304 (5th Cir. 1971) (per curiam), affirming, 324 F.Supp. 412 (S.D.M.D. & N.D.Ala.1971; joint opinion of three district judges); Gerbing v. ITT-Rayonier, Inc., 332. F.Supp. 309 (M.D.Fla.1971); Mitchell v. Tenneco Chemicals, Inc., 331 F.Supp. 1031 (D.S.C.1971); Lavagnino v. Porto-Mix Concrete, Inc., 330 F.Supp. 323 (D.Colo.1971); Connecticut Action Now, Inc. v. Roberts Plating Co., Inc., 330 F.Supp. 695 (D.Conn.1971); Bass Anglers Sportsman’s Soc’y v. Scholze Tannery, 329 F.Supp. 339 (E.D.Tenn.1971); United States ex rel. Mattson v. Northwest Paper Co., 327 F.Supp. 87 (D.Minn.1971); Enquist v. Quaker Oats Co., 327 F.Supp. 347 (D.Neb.1971); United States v. Florida-Vanderbilt Development Corp., 326 F.Supp. 289 (S.D.Fla.1971); Durning v. ITT-Rayonier, Inc., 325 F.Supp. 446 (W.D.Wash.1970); Bass Anglers Sportsman’s Soc’y v. United States Plywood-Champion Papers, Inc., 324 F.Supp. 302 (S.D.Tex.1971); Reuss v. Moss-America, Inc., 323 F.Supp. 848 (E.D.Wis.1971). . See, e. g., United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed. 2d 908, United States v. Florida Light and Power Co., 311 F.Supp. 1391 (S.D.Fla.1970). . See 31 U.S.C.A. § 232 and 31 U.S.C.A. § 234 Historical Note. . See also Allen v. Craig, 102 Or. 254, 201 P. 1079 (1921); People ex rel. Wegner v. Hartford Life Ins. Co., 186 Ill.App. 117 (1914); State ex rel. Rodes v. Warner, 197 Mo. 650, 94 S.W. 962 (1906); and Omaha & R. V. Ry. v. Hale, 45 Neb. 418, 63 N.W. 849 (1895). Contrary eases relied upon by plaintiff involve such different statutory language as to be unpersuasive. Since it is clear that qui tam actions are not permitted under this particular statutory language, it is unnecessary to consider the English common law history and precedents. . Cf. United States ex rel. Marcus v. Hess, 317 U.S. 537, 547, 63 S.Ct. 379, 87 L.Ed. 443. Plaintiff relies on footnote 4 of the Marcus opinion which states in part as follows: “Statutes providing for a reward to informers which do not specifically either authorize or forbid the informer to institute the action are construed to authorize him to sue, Adams v. Woods [6 U.S. 336], 2 Cranch. 336 [2 L.Ed. 297].” As seen, the statute in Adams specifically authorized the informer to sue to recover half the fíne. Here Section 17 of the Act forbids the informer to sue because the enforcement powers are committed to the Department of Justice, and the critical part of Section 16 itself provides only for criminal proceedings. 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_timely	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Roy A. SOMLYO, Plaintiff-Appellant, v. J. LU-ROB ENTERPRISES, INC.; and Louis G. Bond, Defendants-Appellees. No. 932, Docket 90-7551. United States Court of Appeals, Second Circuit. Argued Jan. 16, 1991. Decided May 9, 1991. David M. Somlyo, New York City (John J. Witmeyer III, Ford Marrin, Esposito & Witmeyer, of counsel) for plaintiff-appellant. Koteles Alexander, Silver Spring, Md. (Stephanie Y. Bradley, Gartrell & Alexander, of counsel), for defendants-appellees. Before OAKES, Chief Judge, and CARDAMONE and WALKER, Circuit Judges. OAKES, Chief Judge: Diversity of citizenship jurisdiction is permitted by Article III of the federal Constitution and statutes promulgated thereunder in order to protect the citizens of one state from “local prejudice” — unfair discrimination by courts of another state. Under 28 U.S.C. § 1441, diversity cases are removable to federal court if certain requirements are met. This case presents a novel question of civil procedure that inverts the semantic history of diversity jurisdiction: whether compliance with the Local Rules of a federal district court is a prerequisite to the timely filing of a notice of removal under the removal statute. Today, we answer this question in the affirmative. We further hold, however, that the district court has power to interpret the Local Rules as well as the discretion to determine when fairness demands that departure from the Local Rules be excused. On this basis, we affirm the order of the district court and remand for further proceedings. I. PROCEDURAL BACKGROUND This action for breach of contract, fraud, conversion, and breach of fiduciary duty arises out of an agreement between appellant Roy A. Somlyo (“Somlyo”) and appel-lees Louis G. Bond (“Bond”) and J. Lu-Rob Enterprises (“Lu-Rob”) regarding a proposed, ill-fated Broadway musical, “Betsey Brown.” Somlyo filed the action on December 2, 1989 in the Supreme Court of the State of New York. Bond, President of Lu-Rob, a Massachusetts corporation, sought to remove the action from state to federal court by mailing a petition for removal, a filing fee, as well as a bond fee to the Clerk’s Office for the District Court for the Southern District of New York (the “Clerk’s Office”) on December 29, 1989. The Clerk’s Office received and accepted the petition on January 2, 1990, logging it in under the attorney’s name. However, on January 4, 1990, when the papers were passed to the Cashier’s Office, the cashier discovered that the petition did not have a civil cover sheet and legal backing, which are required under Rule 4 of the Rules for the Division of Business Among District Judges of the Southern District of New York (“Business Rule 4”) and Local Civil Rule 1(a) respectively. The cashier noted the deficiencies in the Clerk’s Office’s rejection log and called Bond to notify him of the problems. In a letter dated January 4, 1990, the cashier confirmed the notification to Bond. Although the Clerk’s Office’s usual policy is to return non-conforming documents to the attorney, upon Bond’s request, the Clerk’s Office kept the petition pending the receipt of the cover sheet and backing. After several failed attempts to comply with the Local Rules, appellees delivered a conforming petition on January 12, 1990, which the Clerk’s Office processed on January 16, 1990 and stamped filed as of that date, forty-five days after the complaint had been filed in state court. Upon learning of appellees’ petition for removal, Somlyo moved to remand the action pursuant to 28 U.S.C. § 1447(c) on the ground that appellees’ petition had not been filed within the thirty-day period prescribed by 28 U.S.C. § 1446(b). On May 3, 1990, the district court denied Somlyo’s motion, holding that appellees’ petition should be deemed filed as of the date it was first received by the Clerk’s office, and certified the case for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). On May 22, 1990, the district court issued an amended order clarifying the issue for interlocutory appeal as, “when a petition for removal is timely filed within the meaning of 28 U.S.C. § [1446(b)] and the extent to which the resolution of that issue can properly turn upon compliance with the local court rules.” II. DISCUSSION A. Standard of Review The district court correctly characterized the issue at hand as “a pure question of law.” As such, we review the district court’s ruling de novo. See Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982); United States v. Rexach, 896 F.2d 710, 713 (2d Cir.) cert. denied, — U.S. -, 111 S.Ct. 433, 112 L.Ed.2d 417 (1990). B. Removal Statute The right to remove a state court action to federal court on diversity grounds is statutory, see Little York Gold-Washing & Water Co. v. Keyes, 96 U.S. 199, 201, 24 L.Ed. 656 (1877), and must therefore be invoked in strict conformity with statutory requirements, see 1A J. Moore & B. Ringle, Moore’s Federal Practice H 0.157, at 33-34 (2d ed.1989). In light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against remov-ability. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); 1A J. Moore & B. Ringle, Moore’s Federal Practice ¶ 0.157 at 38 (2d ed.1989). Under 28 U.S.C. § 1446(b), the petitioning party must file a notice of removal with the district court within thirty days after receipt of the initial pleading. See 28 U.S.C. § 1446(b) (1988). While the statutory time limit is mandatory, it is “merely a formal and modal requirement and is not jurisdictional.” Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir.1980). Nevertheless, absent a finding of waiver or estoppel, federal courts rigorously enforce the statute’s thirty-day filing requirement. See, e.g., Nicola Prods. Corp. v. Showart Kitchens, Inc., 682 F.Supp. 171, 173 (E.D.N.Y.1988); Martropico Compania Naviera S.A. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 428 F.Supp. 1035, 1037 (S.D.N.Y.1977). C. Local Rules Pursuant to 28 U.S.C. § 2071(a) and Rule 83 of the Federal Rules of Civil Procedure, district courts have the power to enact Local Rules governing their practice, procedure and conduct of business. Local Rules have the force of law, see Weil v. Neary, 278 U.S. 160, 169, 49 S.Ct. 144, 148, 73 L.Ed. 243 (1929), to the extent that they do not conflict with rules prescribed by the Supreme Court, Acts of Congress, or the Constitution, see United States v. Yonkers Bd. of Educ., 747 F.2d 111, 112 (2d Cir.1984). The parties do not dispute that when appellees’ petition for removal arrived for the first time in the Clerk’s Office via Express Mail it did not conform to two of the Local Rules of the Southern District of New York. The petition did not contain an information and designation form, commonly known as a civil cover sheet, in violation of Business Rule 4(a). Similarly, it was not enclosed in a cover endorsed with the name and address of counsel, commonly called a legal back, in violation of Civil Rule 1(a). Not surprisingly, the parties disagree as to whether appellees’ noncompliance with the Local Rules and the consequent refusal of the Clerk’s Office to file the petition until it did conform may determine whether they filed their notice of removal in a timely manner. The absence of any other authority on this issue coupled with policy considerations convince us that this question must be answered in the affirmative. With regard to potential conflicts between the Local Rules and other legal authority, we find no source of constitutional or statutory law that fully defines “filing” within the meaning of 28 U.S.C. § 1446(b). While section 1446(b) prescribes a mandatory thirty-day time limit for the filing of a notice of removal, it does not address what one must do to file such a notice. In the face of such statutory silence, principles dictating a narrow construction of section 1446(b), see supra, are of no use to us here. Similarly, Federal Rules of Civil Procedure 5(e), entitled “Filing With the Court Defined,” does not provide an answer. Rule 5(e) states: The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. Rule 5(e) answers the “who” and “where” of the filing inquiry, but not the “how”; it tells us that litigants must file documents with the clerk of the court, or, on occasion, with the judge, but it does not tell us what procedure must be followed, if any, before a document may be deemed filed. The rule’s references to the clerk of the court and the judge, however, indicate that the clerk, and ultimately the district court judge, are the arbiters of the filing process. Our review of case authority construing federal statutes also fails to supply a definition of “filing” under the removal statute. Appellees unpersuasively contend that Greenwood v. State of New York, Office of Mental Health, 842 F.2d 636 (2d Cir.1988), provides a binding definition. Greenwood holds that when a complaint is filed in a night depository box maintained by the clerk pursuant to a Local Rule, the filing date for the purposes of the statute of limitation is the day the plaintiff placed the complaint in the depository box, as recorded by the date stamper provided by the clerk, rather than the following day as provided for in the Local Rule. See id. at 639. The decision in Greenwood turns on a recognition that “[i]t makes little sense to disregard the actual time of delivery after establishing such a careful procedure to record it.” Id. Greenwood thus concerns the reasonableness of a Local Rule. In asking whether compliance with the Local Rules may determine if a document is timely under the removal statute, we focus here on the reach, rather than the reasonableness, of the Local Rules. Moreover, unlike the complaint in Greenwood, appellees’ petition did not comply with the letter of the Local Rules when appellees first presented it to the Clerk’s Office. Implicit in Greenwood’s reaffirmation that filing means the “ ‘delivery [of papers] into the actual custody of the proper officer, designated by statute,’ ” id. (quoting In re Gubelman, 10 F.2d 926, 929 (2d Cir.1925)), was an assumption that the papers delivered were proper — that they conformed with the Local Rules. We do not have the luxury of such an assumption. Indeed, we must ask what the consequences are when the assumption does not hold true, when the papers are not proper under the Local Rules. Although neither party likens this case to Shamrock Oil, supra, and its progeny, see, e.g., Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 705, 92 S.Ct. 1344, 1348, 31 L.Ed.2d 612 (1972), the distinction between Shamrock Oil and this case merits our attention. In Shamrock Oil, the Supreme Court held that federal courts should not employ state procedural law to determine the meaning of the removal statute. See 313 U.S. at 104, 61 S.Ct. at 870. Thus in stating that “[t]he removal statute, which is nationwide in its operation, was intended to be uniform in its application, unaffected by local law definition or characterization of the subject matter to which it is to be applied,” see id., the Court specifically addressed the effect of “local,” i.e., state, law on the removal statute. In contrast to Shamrock Oil, here we inquire whether rules promulgated by the federal district court may be employed to define filing under the removal statute. In light of the fact that section 1446(b), the Federal Rules of Civil Procedure, and other relevant authority, are silent on the issue before us, we conclude that the requirements set forth in the Local Rules, as interpreted by the Clerk’s Office, or by the court itself, determine the timeliness of a notice of removal. To hold otherwise, we believe, would jeopardize the power of the district courts under 28 U.S.C. § 2071(a) and Fed.R.Civ.P. 83 to prescribe Local Rules. Indiscriminately sanctioning the filing of a notice of removal without compliance with the Local Rules would subvert the policy behind the Local Rules and encourage noncompliance. Additionally, a contrary result would wreak havoc on the administration of the Clerk’s Office, requiring it to accept and “file” documents that are not in compliance with the Local Rules, inform the filing party of the noncompliance and either return the “filed” documents to attain compliance, or as in this case, retain all nonconforming documents until the party files a conforming copy. The rule would therefore create either a category of absentee documents— documents logged on the docket sheet for a particular case, but which are not on file in the Clerk’s Office — or a category of stray “filed” documents that would be kept only until conforming documents were filed. In an era of escalating case filings and ever-expanding case life spans, the clerk of the court performs a difficult and often superhuman task. We find no basis in law to complicate this task. Our ruling here gains support from several cases addressing a different aspect of the “filing” inquiry — whether a plaintiff must pay the filing fee required under 28 U.S.C. § 1914 and the Local Rules in order to have a complaint deemed filed. In Wanamaker v. Columbian Rope Co., 713 F.Supp. 533 (N.D.N.Y.1989), a district court in this circuit held that the clerk’s office properly rejected a complaint for filing because it was not accompanied by the filing fee as required by 28 U.S.C. § 1914 and the Local Rules. Id. at 538-39. A month after the district court ruled in Wanamaker, the Seventh Circuit issued Robinson v. America’s Best Contacts & Eyeglasses, 876 F.2d 596 (7th Cir.1989), which addressed the same issue and echoed Wanamaker’s reasoning. See id. at 598. Appellees correctly assert that Wanamaker and Robinson rested largely on the mandate under 28 U.S.C. § 1914 that “[t]he clerk of each district court shall require the parties instituting any civil action, suit or proceeding in such court, whether by original process, removal or otherwise, to pay a filing fee of $120.” 28 U.S.C. § 1914(a) (West Supp.1990) (emphasis supplied). 28 U.S.C. § 1914(c) permits the district court to enact a Local Rule requiring advance payment of filing fees. See id. § 1914(c). The respective district courts in Wanamaker and Robinson had enacted such a pre-payment rule. Significantly, Wanamaker and Robinson not only recognized the statute’s delegation of power to the district court to enact a Local Rule, but held the respective plaintiffs to the letter of the Local Rule. The authorization that section 1914(c) gives district courts to enact Local Rules requiring pre-payment of filing fees is analogous to the more general delegation of rule-making authority of 28 U.S.C. § 2071(a) and Fed.R.Civ.P. 83. Here, as in Wanamaker and Robinson, the Local Rules, as interpreted by the district court, define whether the relevant document has been filed. Appellees minimize the importance of the Local Rules, implying that the Local Rules address picayune matters which should not be a factor in determining the removability of this action. We strongly disagree. District courts do not institute Local Rules to frustrate litigators, but to ensure the efficient and expedient execution of justice. The boundaries of the Local Rules are drawn by federal statutory and constitutional law, not by whether the Local Rules impact on the claims and rights of the litigants. Inevitably, rules governing the conduct of a district court’s business will affect the litigants’ claims and rights. For this reason, as we explain below, we believe that the application of the Local Rules should be overseen by the district court. Nonetheless, we reject appellees’ minimization of the Local Rules’ importance and reach. D. District Court’s Discretion to Interpret the Local Rules Although we hold today that the Local Rules govern whether a petition for removal may be filed as timely in the Clerk’s Office, we agree with our sister circuits that the district court has the inherent power to decide when a departure from its Local Rules should be excused or overlooked. See Braxton v. Bi-State Dev. Agency, 728 F.2d 1105, 1107 (8th Cir.1984); Allen v. United States Fidelity & Guar. Co., 342 F.2d 951, 954 (9th Cir.1965). The district court’s inherent discretion to depart from the letter of the Local Rules extends to every Local Rule regardless of whether a particular Local Rule specifically grants the judge the power to deviate from the Rule. In this case, Business Rule 4(a) states that counsel “shall complete and file an information and designation form.” R.Div.Bus.Dist. Judges 4(a) (S.D.N.Y.), whereas Civil Rule 1(a) states that a party must file every document with a legal backing “[ujnless a judge of th[e] court shall otherwise direct.” Civ.R. 1(a) (S.D.N.Y.). The explicit grant of judicial discretion in Civil Rule 1(a) does not abridge the district court’s inherent power to deviate from other Local Rules, such as Business Rule 4(a), which do not contain a specific delegation of power. It remains for us, however, to determine what standard should guide the district court in the exercise of its discretion. The Ninth Circuit has stated that deviation from the Local Rules is appropriate when “departures from statutory prescription or rules of court are so slight and unimportant that the sensible treatment is to overlook them.” Allen, 342 F.2d at 954. We believe that the standard is better framed in terms of fairness. The district court should ask whether the application of the letter of Local Rules to a particular case would cause an unjust result. If faced with potential unfairness, the district court should tailor the Local Rules to best achieve a just outcome. As in the instant case, the district court’s determination of fairness may include, but is not limited to, a consideration of the facts of the case, the content and goal of the Local Rules, the legal precedent on analogous issues, and the letter and legislative intent of any relevant statute. A transcript of the oral argument on Somlyo’s motion indicates that in ruling on the motion the district court weighed: 1) how the Clerk’s Office processed the petition; 2) the relevant Local Rules which the court characterized as “technical” and “designed to regulate, for convenience sake, how papers look;” 3) precedent in this Circuit indicating a “liberal view for the purpose of avoiding defaults;” and 4) the legislative intent of 28 U.S.C. § 1441 to ensure a right to remove an appropriate action within thirty days. After reviewing these factors, the district court held that appellees’ petition should be deemed filed as of the date the Clerk’s Office first accepted the papers, January 2, 1990. Our independent review of the district court’s ruling convinces us that the district court’s deviation from the letter of the Local Rules brought about a just result, one within the spirit of Rule 1 of the Federal Rules of Civil Procedure. See Fed.R. Civ.P. 1 (“[these rules] shall be construed to secure the just, speedy, and inexpensive determination of every action.”). We also note that the district court’s review of the issue after the papers had been processed by the Clerk’s Office pursuant to the terms of the Local Rules presented none of the logistical problems in the Clerk’s Office that would result from a per se rule under which nonconforming documents were deemed “filed” by the Clerk’s Office. It is the business of the Clerk’s Office to make sure that parties file documents that conform to the Local Rules. We hold that it is the business of the district court to determine whether fairness demands that noncompliance be excused. III. CONCLUSION Accordingly, we affirm the order of the district court and remand for further proceedings. . In 1988, Congress amended 28 U.S.C. § 1446(b) substituting the statute’s prior "petition for removal” procedure with a "notice of removal” procedure. See Act of Nov. 19, 1988, Pub.L. No. 100-702, § 1016(b), 102 Stat. 4668 (1988). Nevertheless, appellees followed the defunct procedure and so labeled their papers. We therefore refer to appellees’ papers as a "petition." . Business Rule 4(a) states, in part: Filing with the Clerk. All civil actions and proceedings shall be numbered consecutively by year upon the filing of the first document in the case. When a complaint or the first document is filed in a civil action or proceeding, counsel shall complete and file an information and designation form, in triplicate, indicating: ... .Civil Rule 1(a) provides, in part: Unless a judge of this court shall otherwise direct, papers submitted for filing must ... (3) bear endorsed upon the cover the name, office and post office address and telephone number ... of the attorney of record for the filing party. . Appellees attempt to distinguish this case from Wanamaker and Robinson by asserting that filing fees, unlike the requirements of the Local Rules at issue here, are “jurisdictional prerequisites.” Even if this statement were true, it would not invalidate our analogy of Wanamaker and Robinson to the instant case. Moreover, although the issue is not before us, we note that courts are divided on the. issue of whether payment of district court filing fees under 28 U.S.C. § 1914 is jurisdictional in nature. Compare Cintron v. Union Pac. R.R., 813 F.2d 917, 920 (9th Cir.1987) (filing fee prescribed by statute not jurisdictional requirement), with United States v. Johnson, 373 F.Supp. 1057, 1059 (D.Del.1974) (district court without jurisdiction to rule on motion to vacate sentence unless application accompanied by filing fee or application to proceed in forma pauperis). Cf. Parissi v. Telechron, Inc., 349 U.S. 46, 47, 75 S.Ct. 577, 577, 99 L.Ed. 867 (1955) (per curiam) (filing fee not a prerequisite for proper filing of an appeal under 28 U.S.C. § 1917). Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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. Leo Raymond McGUIRE, and David E. Lee, Defendants-Appellants. Nos. 83-5350, 83-5351. United States Court of Appeals, Sixth Circuit. Argued July 6, 1984. Decided Sept. 21, 1984. Rehearing and Rehearing En Banc Denied Nov. 9,1984. Robert Houlihan, Jr., Lexington, Ky., Seymour Glanzer, John T. Kotelly, argued, Peter J. Kadzik, Dickstein, Shapiro & Morin, Lisa R. McGuire, Washington, D.C., for defendants-appellants in No. 83-5350. James Shuffett, Shuffett, Mooney, McCoy, Campbell, Leathers & Newcomer, David Shattuck, argued, Lexington, Ky., for defendants-appellants in No. 83-5351. Louis DeFalaise, U.S. Atty., Jane Graham, Robert E. Rawlins, argued, Asst. U.S. Attys., Lexington, Ky., for plaintiff-appellee. Before KRUPANSKY and WELLFORD, Circuit Judges, WEICK, Senior Circuit Judge. WELLFORD, Circuit Judge. In April, 1979, the Kentucky Housing Corporation (KHC) instituted its “Loans to Lenders Program.” The program was designed to make it easier for low income people to purchase housing. KHC made approximately $54 million available to financial institutions at a rate of 6/a% interest, and the financial institutions, in turn, were then to loan this money to low income borrowers at %h%, a very advantageous rate of interest. First National Bank of Grayson (FNBG) participated in the program. Defendant McGuire was president and chief executive officer of FNBG, and defendant Lee was mortgage loan officer. The government’s case was directed toward proving that FNBG was successful in obtaining these funds from KHC, but did not properly reloan them out to qualified borrowers. Instead, FNBG (in the prosecution’s case, under the direction of McGuire and Lee) invested the funds at a much higher rate of return (yielding 12.6% return) maturing in more than 10 years. At the end of nine months, unloaned funds were to be returned to KHC. FNBG requested and was granted a three month extension. In the final few days of that extension, FNBG made approximately 80 loans which the government contends were bogus and made solely to avoid repayment of the funds to KHC. The government contends that these actions left FNBG with $2.65 million of KHC funds which were being inappropriately used, and that FNBG was in effect illegally profiting from the procedures instituted by defendants. The indictment, which was returned by a federal grand jury, charged defendants with conspiracy to make false entries, making false entries, and devising a scheme to defraud the KHC. Defendants were convicted after a jury trial and have appealed. I Defendants first issue raised on appeal is whether the trial court was required to give a separate instruction on the issue of good faith. In the instructions actually given by the judge are set out in the margin. The judge clearly stressed the importance of willfullness, intent, specific intent, and lack of mistake. At least one circuit, however, would apparently find this instruction insufficient. In United States v. Goss, 650 F.2d 1336, 1345 (5th Cir.1981), the court held that Charging the jury that a finding of specific intent to defraud is required for conviction, while it may generally constitute the negative instruction, i.e., that, if the defendants acted in good faith, they could not have had the specific intent to defraud required for conviction, does not direct the jury’s attention to the defense of good faith with sufficient specificity to avoid reversible error. (emphasis added). The Fifth Circuit reaffirmed its Goss decision in United States v. Curry, 681 F.2d 406 (5th Cir.1982). The actual instructions given by the judge in that trial are not discussed. The court, however, reversed the conviction, finding: Curry was entitled to a good faith jury instruction if there was any evidence at all to support the charge, “regardless of how weak, inconsistent or dubious the evidence of good faith may have been.” United States v. Goss, 650 F.2d 1345. 681 F.2d at 416. While the Fifth Circuit may have treated it somewhat differently, we view the issue as essentially a “theory of the case” question. In this circuit, we have held that it is error to fail to instruct on the defendant’s theory of the case, however “[t]he trial judge [is] not required to adopt the language suggested by a defendant ____” United States v. Garner, 529 F.2d 962, 970 (6th Cir.), cert. denied, 429 U.S. 850, 97 S.Ct. 138, 50 L.Ed.2d 124 (1976); United States v. Giacalone, 574 F.2d 328 (6th Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 114, 58 L.Ed.2d 129 (1978). As the Eleventh Circuit recently held: A criminal defendant has no right to select the particular wording of a proposed jury instruction. As long as the instruction actually given is a correct statement of the law, fairly presents the issues to the jury, and is substantially similar to the defendant’s proposed instruction, the district court has great latitude in phrasing it. United States v. Gaines, 690 F.2d 849, 856-57 (11th Cir.1982) (regarding an instruction on willfulness). While the trial judge should have given an instruction on the defendants’ “good faith” theory of the case, see Garner, supra; Giacalone, supra, a review of the instruction actually given, persuades us that this error on the part of the trial court was harmless beyond a reasonable doubt. The issue of good faith was clearly placed before the jury, even if those precise words were not used. “There is nothing so important about the words ‘good faith’ that their underlying meaning cannot otherwise be conveyed.” New England Enterprises, Inc. v. United States, 400 F.2d 58, 71 (1st Cir.1968), cert. denied, 393 U.S. 1036, 89 S.Ct. 654, 21 L.Ed.2d 581 (1969). The instructions with regard to specific intent adequately informed the jury of the defendants’ theory of the case, and properly placed the burden of proof of intent on the government. Accordingly, we find that the failure of the trial judge to instruct the jury on the defendants’ theory was harmless error. II Defendants next argue that the trial court’s usage of an “and/or” instruction in connection with 18 U.S.C. § 1005 sanctioned a non-unanimous verdict. 18 U.S.C. § 1005 provides in pertinent part: Whoever makes any false entry in any book, report, or statement of such bank with intent to injure or defraud ... any ... body politic ____, or to deceive ... the Comptroller of the Currency, ... or any agent or examiner appointed to examine the affairs of such bank ... [violates the statute]. The indictment in this case, however, replaced the word “or” with the word “and.” In its instructions to the jury, the trial court attempted to explain that the statute requires only an intent to injure or defraud any body politic or to deceive the Comptroller of the Currency in the following manner: In the indictment, the word “and” is synonymous with the word “or.” That is to say that if the United States proved to your satisfaction beyond a reasonable doubt any of the acts connected by the word “and,” it has proven satisfactorily its case on that particular element. The defendants claim that such a charge could have led the jury to convict defendants without having reached a unanimus decision. Specifically, six of the jurors might have found that defendants took their actions with intent to defraud or deceive the Comptroller, while the other six may have found an attempt to defraud or deceive a different victim (KHC). See United States v. Gipson, 553 F.2d 453, 458 n. 8 (5th Cir.1977). It should be noted, however, that the trial court, in addition to making two general instructions on the unanimity requirement, also instructed the jury that, with regard to Section 1005: There are two essential elements which must be proved beyond a reasonable doubt in order to establish the offense proscribed by this law: First: That a defendant knowingly made a false entry concerning a material fact in a book or record or statement of a national bank, insured bank or member of the Federal Reserve System, to-wit, a false and non-bona fide loan file, as charged; Second: That a defendant made such entry willfully, with knowledge of its falsity and with the intent of defrauding or deceiving the person/persons or entities named in the indictment. Thus it is clear that the jury must have unanimously agreed that the defendants knowingly made false entries. The only possible lack of unanimity could stem from a disagreement as to which entity or entities a particular defendant was intending to deceive. Defendants rely on United States v. Gipson, supra, which held that the jury must unanimously agree on “the actus reus element of the offense”, because the prohibited acts involved in that case were conceptually distinct. 553 F.2d at 458. Specifically, the acts of receipt, concealment and storage are conceptually distinct from the acts of bartering, selling and disposing. Id. Conversely, KHC and the Comptroller, as alternate victims, do not fall into “two conceptual groupings.” Several courts have refused to apply the Gipson rationale when the potentially devisive theories of liability are not “conceptually distinct.” See, e.g., Lampkins v. Gagnon, 710 F.2d 374 (7th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984); United States v. Sutherland, 656 F.2d 1181, 1202 (5th Cir.1981), cert. denied, 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1982); United States v. Freeman, 619 F.2d 1112, 1118-19 (5th Cir.1980), cert. denied, 450 U.S. 910, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981). Finally, in United States v. Zeidman, 540 F.2d 314 (7th Cir.1976), the court instructed the jury “that they must not return a guilty verdict unless they all agreed that the defendant had devised a scheme to defraud at least the creditor or the debtor.” 540 F.2d 317. The defendants made the same argument set forth by the defendants in the instant case. The court held that the defendants could not “claim prejudice because they are uncertain whether the jury convicted them of defrauding the creditor or debtor. As in the case of a statute which can be violated in different ways, it is sufficient to convict if the jury believes that at least one of the acts of fraud was committed.” Id. at 317. Accordingly, we find no ground for reversal on this issue. Ill Defendants third issue on appeal is that the charge to the jury impermissibly amended the indictment. Defendants’ argument is that they were indicted for having devised a scheme and artifice for obtaining money under false and fraudulent pretenses, but all of the proof in the government’s case went to establishing a scheme to defraud KHC by not returning money previously obtained. This, they claim, was a fatal variance from the indictment returned by the grand jury. As the government points out, however, Pattern instruction 23, which was given by the court, provides: The words “scheme” and “artifice” include any plan or course of action intended to deceive others, and to obtain, by false or fraudulent pretenses, representations, or promises, money or property from persons so deceived. The instant case is not similar to United States v. Jones, 647 F.2d 696 (6th Cir.), cert. denied, 454 U.S. 898, 102 S.Ct. 399, 70 L.Ed.2d 214 (1981), upon which defendants rely. In that case the defendants were indicted for conspiracy to make and construct an explosive device. The charge to the jury, however, permitted conviction for mere possession. Indeed, the government “failed to present any proof that the defendants made or constructed a destructive device.” Id. at 699. The district court therefore gave a charge on conspiracy to possess. As the appellate court noted, the defendant must be informed of the crime with which he is charged, and the indictment must sufficiently apprise him of the elements, so that he will not be misled while preparing his case. Id. at 699 (citing Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 1047, 8 L.Ed;2d 240 (1962)). It does not appear that any similar problems face the defendants in this case. Any change made by the district court in the instant ease would have nominal impact on their defense preparation. See also United States v. Beeler, 587 F.2d 340 (6th Cir. 1978) cert. denied 454 U.S. 860, 102 S.Ct. 315, 70 L.Ed.2d 158 (1981). (discussing the purposes underlying the rule against constructive amendments). IV During the presentation of their defense, defendants called W.H. Dysard, an attorney, to testify as to defendants’ good faith in retaining the KHC loan money beyond June 1, 1980. Dysard testified that he was informed about the bank’s participation in the KHC Loans to Lenders Program in May, 1980. He testified that he learned of the grand jury investigation, “I think in October 1980,” but had been aware of “some kind of investigation” before that time. The defense was never put on notice of the existence of any prior inconsistent statement, and after cross-examination, Dysard was excused from the trial and left Lexington to return to his practice in Gray-son. The government subsequently called FBI Agent Goode as a rebuttal witness. Agent Goode testified as to a conversation he had with Dysard on November 19, 1980. Goode testified that Dysard had stated that he had just become aware of “the situation,” and that “he didn’t know anything about it.” Defendants argue that the government failed to confront Dysard with this statement and therefore this case must be overruled under Federal Rule of Evidence 613(b). While defendants have noted that several courts maintained the common law tradition which required that the witness be confronted with the inconsistent statement before extrinsic evidence as to its existence is admissible, it would seem that defendants’ main argument is focused on confrontation at any time. See 3. Weinstein’s Evidence ¶ 613[04] at 613-15 (1981) (suggesting that 613(b) allows such evidence to be admitted even if not presented to the witness to be impeached before it is introduced). We do not approve of the government’s not informing the defendants of this evidence, which we view as a questionable trial tactic. We would note, however, that this issue relates to the credibility of a non-party witness on a collateral matter. Indeed, even the defense lawyer who cross-examined Agent Goode stated “It’s not entirely inconsistent if he said he only became aware of the situation ... in November of 1980, is it?” In any event, the prosecution should have confronted the witness with this statement. Defendants, however, were offered the opportunity to call surrebuttal witnesses. Had this point been of great importance, they would have made arrangements to return Dysard to the stand but they did not do so. We do not consider this to be a matter of serious magnitude, and do not deem it to be reversible error. V Seven character witnesses testified on behalf of defendant McGuire, both as to their personal opinion of him and his community reputation. On cross-examination, five of these witnesses were asked about their knowledge of a pending federal civil suit which charged that McGuire and others had conspired to engage in unfair trade practices. They were further asked whether, if the allegations were proved to be true, their opinion of McGuire would change. McGuire claims that this line of questioning led to reversible error. Once the defendant has “opened the door” by offering evidence as to his good character, the prosecution may rebut that evidence. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Fed.R.Evid. 405(a). Once a defendant’s reputation is in issue, the prosecution has wide latitude on cross-examination. Michelson, 335 U.S. at 479, 69 S.Ct. at 220. Control of the cross-examination is largely within the trial court’s discretion. Id. at 480, 69 S.Ct. at 220. McGuire has apparently made two inconsistent arguments. At one point he argues that none of the character witnesses were asked on direct examination to give any opinion or reputation testimony regarding the character trait for fair dealing, thus implying that the cross-examination was not real rebuttal evidence at all. At the same time, he argues that “the instant case is identical to the situation where the character witness is asked to assume that the defendant committed the offense for which the defendant is on trial.” Neither argument is well founded. It would be error to allow the prosecution to ask the character witness to assume defendant’s guilt of the offenses for which he is then on trial. United States v. Polsinelli, 649 F.2d 793, 795 (10th Cir.1981); United States v. Morgan, 554 F.2d 31 (2d Cir.), cert. denied, 434 U.S. 965, 98 S.Ct. 504, 54 L.Ed.2d 450 (1977); United States v. Candelaria-Gonzalez, 547 F.2d 291 (5th Cir.1977). This was simply not done in this case. A common concern in cases such as this is the asking of a purported character witness whether there are rumors circulating in the community which would affect the defendant’s reputation. Prosecutors may ask a witness “have you heard of this rumor or that conduct (relating to undesirable and fraudulent conduct of defendant)?” This court has suggested in such situations that a voir dire examination of the witnesses should first take place, in order to ascertain the existence of any such rumor. United States v. Reese, 568 F.2d 1246 (6th Cir.1977). If a rumor does exist, even if it is not based on fact, the prosecution is permitted to pursue this line of cross-examination. The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him. The prosecution may pursue the inquiry with contradictory witnesses to show that damaging rumors, whether or not well-grounded, were afloat — for it is not the man that he is, but the name that he has which is put in issue. Another hazard is that his own witness is subject to cross-examination as to the contents and extent of the hearsay on which he bases his conclusions, and he may be required to disclose rumors and reports that are current even if they do not affect his own conclusion. It may test the sufficiency of his knowledge by asking what stories were circulating concerning events, such as one’s arrest, about which people normally comment and speculate. Thus, while the law gives defendant the option to show as a fact that his reputation reflects a life and habit incompatible with commission of the offense charge, it subjects his proof to tests of credibility designed to prevent him from profiting by a mere parade of partisants. Michelson, supra, 335 U.S. at 479, 69 S.Ct. at 220 (emphasis added, footnote omitted). In the instant case, the civil charges against McGuire were a matter of public record. The case had been reported in the local newspaper, where at least some of the witnesses had seen it. Under these circumstances, we find no error in this line of questioning. McGuire also complains that the prosecutor improperly informed the witnesses (and therefore the jury) of the amount sought in the civil ease, after an objection had been sustained. A review of the record, however, shows that the objection had been made with regard to continuing the questioning after the witness stated that he was unaware of the amount. The prosecutor, wisely, changed her questioning of later witnesses so as to ask whether they “had heard of the five million dollar lawsuit which charges ... ?” We do not find this action to be a basis for a claim of error. Finally, character witness James C. McKenzie was asked about his son’s involvement with McGuire. This clearly went to a showing of bias, and was proper under Fed.R.Evid. 611(b). VI Defendants next suggest that the trial court abused its discretion by permitting the introduction of evidence relating to loan applications not named in the indictment. Defendant Lee bases this claim of error on Fed.R.Evid. 403, which allows the court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion, or waste of time. The evidence involves testimony of the large number of last-minute “May 31 borrowers” whose names were not specifically mentioned in the indictment. This evidence seems clearly relevant as it relates to the intent of the parties in their handling of the loan proceeds, and no unfair prejudice results merely from the nature of this relevant proof. We find no valid ground for reversal in respect to this assignment of error. VII Defendants requested instructions that KHC approval was not final approval of the loan, and that Kentucky law permits the execution of a mortgage before acquisition of title. This issue arose because many of the May 31 borrowers testified that they did not even own the property for which the loan had been granted by FNBG, and that they did not tell the defendants they owned the property. The handwriting on these loan applications was often demonstrated to be that of Lee or McGuire. In each case there was also an executed promissory note dated May 31, indicating that the security for the note was “a mortgage of even date.” No such mortgage was ever prepared, executed or filed. Further, after KHC approved certain of these loans, the applicants were never informed of that fact by the bank. Defendants seem to be arguing that these applicants applied for the loan with plans to purchase property shortly thereafter. The evidence adduced at trial, however, clearly shows that most applicants had no such intention and the court’s instructions, when read as a whole, sufficiently presented the defendants' position to the jury. VIII Prior to trial the bank was dismissed as a defendant. Both sides agreed to the submission of the indictment to the jury, but the defendants did not want the reference to the bank as a defendant to be deleted. The court, however, did make that deletion. It appears that this move was designed to avoid confusing the jury. See United States v. Maselli, 534 F.2d 1197 (6th Cir.1976). In such a case “the trial court added nothing to the indictment and subtracted only surplusage.” United States v. Musgrave, 483 F.2d 327 (5th Cir.), cert. denied, 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973). Striking surplusage from an indictment does not impair its validity. Watson v. Jago, 558 F.2d 330, 333 (6th Cir.1977). No elements of the crime were changed, nor is actual prejudice apparent, unlike United States v. Pandilidis, 524 F.2d 644 (6th Cir.1975), cert. denied, 424 U.S. 933, 96 S.Ct. 1146, 47 L.Ed.2d 340 (1976). This not only does not constitute reversible error, it was a proper decision by the trial judge. IX In his instructions, the trial judge told the jury that documents in bank loan files constitute “bank statements” for purposes of 18 U.S.C. § 1005. During the trial, both sides had introduced expert opinion testimony on this issue. This instruction, however, may have foreclosed from jury consideration the issue of whether certain purported files, identified with defendants, were bank statements or records within the meaning of 18 U.S.C. § 1005. This was an inappropriate action. Schwachter v. United States, 237 F.2d 640, 644 (6th Cir.1956). We believe, however, that in light of the strong evidence of guilt on record, and inasmuch as this evidence was found where bank records are normally maintained and in view of this court’s decision in United States v. Foster, 566 F.2d 1045 (6th Cir.1977), cert. denied, 435 U.S. 917, 98 S.Ct. 1473, 55 L.Ed.2d 509 (1978), the error was harmless beyond a reasonable doubt. X Defendant Lee asserts that the evidence was insufficient to sustain his conviction. When viewed in a light most favorable to the government, it is clear that Lee knew or should have known that fraudulent loans were being made wholesale over the last weekend that the money was available. As of December 8, 1978, Lee was identified as the person through whom KHC should deal with respect to the Loans to Lenders Program. Lee received the KHC documents and attended the meetings concerning the program. He was active on the final weekend in which most of the fraudulent documents were prepared. He was also apparently aware that several of the loans, upon which his name appeared, were not in accord with KHC guidelines. Lee also was the one who oversaw the submission of the fraudulent loan applications to KHC. It seems clear that a jury question was presented, and the jury had ample evidence to find him guilty. The evidence of record is clearly sufficient to uphold his conviction. XI Defendants have raised other claims of error, including certain trial “ploys” of the prosecution. We believe that these issues warrant neither reversal nor prolonged discussion. In the overall context of the proceedings, the defendants were provided with a full and fair trial. The court actions deemed erroneous did not prevent defendants from fully presenting their positions and raising prepared defenses as to each charge made against them. We AFFIRM the convictions of each of the defendants. . The proposed instruction stated: The defendant has offered evidence of his good faith in making representations alleged in the indictment. Good faith is a complete defense for the crime charged. In determining whether the defendant acted in good faith or with criminal intent, the jury should consider all the facts and circumstances of the case, including evidence of similar activity. If the jury finds that the defendant acted in good faith, he should be found not guilty. . There are two essential elements which must be proved beyond a reasonable doubt in order to establish the offense proscribed by this law: First. That a defendant knowingly made a false entry concerning a material fact in a book or record or statement of a national bank, insured bank or member of the Federal Reserve System, to-wit, a false and non-bona fide loan file, as charged; Second: That a defendant made such entry willfully, with knowledge of its falsity and with the intent of defrauding or deceiving the person/persons or entities named in the indictment. The essence of the offense is the willful making of a materially false entry with intent to defraud, and it is not necessary to prove that anyone was in fact deceived or defrauded. To act “with intent to defraud" means to act willfully with intent to deceive or cheat, ordinarily for the purpose of causing financial loss to another or bringing about financial gain to one’s self. Making false entries and conspiring to make false entries in the books and records of a bank are serious crimes which require proof of a specific intent to injure or defraud before a defendant can be convicted. Specific intent, as the term implies, means more than the general intent to commit the act. To establish specific intent, the government must prove that the defendant knowingly did an act which the law forbids purposely intending to violate the law. Such intent may be determined from all the facts and circumstances surrounding the case. An act is “knowingly” done if done voluntarily and intentionally, and not because of mistake or some other innocent reason. In order to establish that a defendant is guilty of mail fraud, the government must prove beyond a reasonable doubt that: 1. The defendant willfully and knowingly devised a scheme or artifice to defraud, or for obtaining money or property by means of false pretenses, representations or promises, and 2. The defendant used the United States Postal Service by mailing, or by causing to be mailed, some matter or thing for the purpose of executing the scheme to defraud. The words "scheme” and "artifice” include any plan or course of action intended to deceive others, and to obtain, by false or fraudulent pretenses, representations, or promises, money or property from persons so deceived. A statement or representation is "false” or "fraudulent” within the meaning of this statute if it relates to a material fact and is known to be untrue or is made with reckless indifference as to its truth or falsity, and is made or caused to be made with intent to defraud. A statement of representation may also be “false” or “fraudulent” when it constitutes a half-truth, or effectively conceals a material fact, with intent to defraud. A "material fact” is a fact that would be important to a reasonable person in deciding whether to engage or not engage in a particular transaction. To act with "intent to defraud" means to act knowingly and with the specific intent to deceive, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to one’s self. Mail fraud is a serious crime which requires proof of a specific intent to defraud before the defendant can be convicted. Specific intent, as the term implies, means more than the general intent to commit the act. To establish specific intent, the government must prove that the defendant knowingly did an act which the law forbids, purposely intending to violate the law. Such intent may be determined from all the facts and circumstances surrounding the case. In each and all of these charged areas of criminal misconduct, it is necessary that the government prove beyond a reasonable doubt that the defendant concerned committed the offense with specific intent. General intent is not enough. You must find, beyond a reasonable doubt, that the concerned defendant acted with specific intent to violate the law; that is to say, he acted knowingly and voluntarily and intentionally to do an act which the law prohibits or failed to do an act the law requires. There is no real dispute that the defendants caused many loan applications to be made, and that there were incorrect statements made in many of them. The defendants, however, presented evidence that they believed that they had a right to act as they did, and that they acted in the belief that they were within their legal rights in view of all of the circumstances as they viewed them. Again, the matter returns to a determination by you of two main factors in your assessment of the evidence. The first, is, what was the specific intent of the defendants, McGuire and Lee, as they pursued their course of conduct. . Similarly, the defendants argue that the trial judge actually modified the indictment by adding the words "to defraud.” Looking at the indictment as a whole, as well as the instructions, it is clear that this could have had no impact on the defendants’ cases. . Fed.R.Evid. 613(b) provided in pertinent part: Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. A classic example in the books is a character witness in a trial for murder. She testified she grew up with defendant, knew his reputation for peace and quiet, and that it was good. On cross-examination she was asked if she had heard that the defendant had shot anybody and, if so, how many. She answered, "three or four,” and gave the names of two but could not recall the names of the others. She still insisted, however, that he was of "good character." The jury seems to have valued her information more highly than her judgment, and on appeal from conviction the cross-examination was held proper. People v. Laudiero, 192 N.Y. 304, 309, 85 N.E. 132. See also People v. Elliott, 163 N.Y. 11, 57 N.E. 103. . 18 U.S.C. § 1005 prohibits the making of "any false entry in any book, report, or statement of such bank with intent to injure or defraud ... any ... body politic .....or to deceive ... the Comptroller of the Currency, ... or any agent or examiner appointed to examine the affairs of such bank____ (emphasis added). 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	108	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. STEINER et al., doing business as CUMBERLAND BATTERY MANUFACTURING CO., v. MITCHELL, SECRETARY OF LABOR. No. 22. Argued November 16, 1955. Decided January 30, 1956. Cecil Sims argued the cause for petitioners. With him on the brief was Louis Leftwich, Jr. Bessie Margolin argued the cause for respondent. With her on the brief were Solicitor General Sobeloff, Ralph S. Spritzer, Stuart Rothman and Sylvia S. Ellison. Mr. Chief Justice Warren delivered the opinion of the Court. This case raises an issue of coverage under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act of 1947, with respect to work performed before or after the direct or productive labor for which the worker is primarily paid. The precise question is whether workers in a battery plant must be paid as a part of their “principal” activities for the time incident to changing clothes at the beginning of the shift and showering at the end, where they must make extensive use of dangerously caustic and toxic materials, and are compelled by circumstances, including vital considerations of health and hygiene, to change clothes and to shower in facilities which state law requires their employer to provide, or whether these activities are “preliminary” or “postliminary” within the meaning of the Portal-to-Portal Act and, therefore, not to be included in measuring the work time for which compensation is required under the Fair Labor Standards Act. The Secretary of Labor, contending that these activities are so covered, brought this action in the United States District Court for the Middle District of Tennessee to enjoin petitioners from violating the overtime and record-keeping requirements of Sections 7 and 11 (c) of the Fair Labor Standards Act of 1938, as amended, in the employment of production workers, and from violating Section 15 (a)(1) of the Act by making interstate shipments of the goods produced by such workers. The District Court gave judgment for the plaintiff, and the Court of Appeals for the Sixth Circuit affirmed. 215 F. 2d 171. Because of the importance of the interpretation of the portal-to-portal provisions in the administration of the Fair Labor Standards Act, and because of a conflict between the circuits on the subject, Mitchell v. King Packing Co., 216 F. 2d 618, we granted certiorari in both cases, 349 U. S. 914. There is no question of back pay involved here because the Court limited its judgment to prospective relief. Nor is the question of changing clothes and showering under normal conditions involved because the Government concedes that these activities ordinarily constitute “preliminary” or “postliminary” activities excluded from compensable work time as contemplated in the Act. It contends, however, that such activities in the circumstances of this case are an integral and indispensable part of the production of batteries, the “principal activity” in which these employees were engaged, and are, therefore, compensable under the relevant provisions of the Act. The petitioners own and operate a plant where they are engaged in manufacturing automotive-type wet storage batteries which they sell in interstate commerce. All of the production employees, such as those with whom we are here concerned, customarily work with or near the various chemicals used in the plant. These include lead metal, lead oxide, lead sulphate, lead peroxide, and sul-phuric acid. Some of these are in liquid form; some are in powder form, and some are solid. In the manufacturing process, some of the materials go through various changes and give off dangerous fumes. Some are spilled or dropped, and thus become a part of the dust in the air. In general, the chemicals permeate the entire plant and everything and everyone in it. Lead and its compounds are toxic to human beings. Regular exposure to atmosphere containing 1.5 milligrams or more of lead per 10 cubic meters is regarded by the medical profession as hazardous and involving the possibility of lead intoxication or lead poisoning. In battery plants, such as this one, it is “almost impossible,” it was testified, to keep lead concentration in the air “within absolutely safe limits,” and in petitioners’ plant “lead oxide was on the floor and in the air and on the plates which employees handled.” Abnormal concentrations of lead were discovered in the bodies of some of petitioners’ employees, and petitioners’ insurance doctor recommended that such employees be segregated from their customary duties. The primary ways in which lead poisoning is contracted are by inhalation and ingestion; i. e., by taking in particles through the nose or mouth, an open cut or sore, or any other body cavity. The risk is “very great” and even exists outside the plant because the lead dust and lead fumes which are prevalent in the plant attach themselves to the skin, clothing and hair of the employees. Even the families of battery workers may be placed in some danger if lead particles are brought home in the workers’ clothing or shoes. Sulphuric acid in the plant is also a hazard. It is irritating to the skin and can cause severe burns. When the acid contacts clothing, it causes disintegration or rapid deterioration. Moreover, the effects of sulphuric acid make the employee more susceptible than he would otherwise be to contamination by particles of lead and lead compounds. Petitioners, like other manufacturers, try to minimize these hazards by plant ventilation, but industrial and medical experts are in agreement that ventilation alone is not sufficient to avoid the dangers of lead poisoning. Safe operation also requires the removal of clothing and showering at. the end of the work period. This has become a recognized part of industrial hygiene programs in the industry, and the state law of Tennessee requires facilities for this purpose. Tenn. Code Ann. (Williams 1934), 1952 Supp., Section 5788.15. In addition, the Tennessee Workmen’s Compensation Act, Tenn. Code Ann. (Williams 1934), 1952 Supp., Sections 6851-6901, which'covers petitioners, makes lead poisoning a com-pensable occupational disease (Section 6852 (d)). In order to comply with this statute, petitioners carry insurance, under Section 6895, to protect against liability, and the insurance carrier would not accept the insurance risk if defendants refused to have showering and elothes-changing facilities for their employees. Accordingly, in order to make their plant as safe a place as is possible under the circumstances and thereby increase the efficiency of its operation, petitioners have equipped it with shower facilities and a locker room with separate lockers for work and street clothing. Also, they furnish without charge old but clean work clothes which the employees wear. The cost of providing their own work clothing would be prohibitive for the employees, since the acid causes such rapid deterioration that the clothes sometimes last only a few days. Employees regularly change into work clothes before the beginning of the productive work period, and shower and change back at the end of that period. Petitioners issued no written instructions to employees on this subject, but the employees testified and the foreman declared in a signed statement that “In the afternoon the men are required by the company to take a bath because lead oxide might be absorbed into the blood stream. It protects the company and the employee both.” Petitioners do not record or pay for the time which their employees spend in these activities, which was found to amount to thirty minutes a day, ten minutes in the morning and twenty minutes in the afternoon, for each employee. They do not challenge the concurrent findings of the courts below that the clothes-changing and showering activities of the employees are indispensable to the performance of their productive work and integrally related thereto. They do contend that these activities fall without the concept of “principal activity” and that, being performed off the production line and before or after regular shift hours, they are beyond the protection of the Fair Labor Standards Act. The trial court held that these activities “are made necessary by the nature of the work performed”; that they fulfill “mutual obligations” between petitioners and their employees; that they “directly benefit” petitioners in the operation of their business, and that they “are so closely related to other duties performed by [petitioners’] employees as to be an integral part thereof and are, therefore, included among the principal activities of said employees.” It concluded that the time thereby consumed is not excluded from coverage by Section 4 of the Portal-to-Portal Act, but constitutes time worked within the meaning of the Fair Labor Standards Act. The Court of Appeals affirmed, likewise holding that the term “principal activity or activities” in Section 4 embraces all activities which are “an integral and indispensable part of the principal activities,” and that the activities in question fall within this category. With this conclusion, we agree. ,The Portal-to-Portal Act was designed primarily to meet an “existing emergency” resulting from claims which, if allowed in accordance with Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680, would have created “wholly unexpected liabilities, immense in amount and retroactive in operation.” This purpose was fulfilled by the enactment of Section 2. The trial court specifically limited the effect of this judgment to services rendered after the judgment becomes final. We are not, therefore, concerned with the provisions of Section 2, which is inapplicable to actions relating to activities of employees performed after May 14, 1947. The language of Section 4 is not free from ambiguity and the legislative history of the Portal-to-Portal Act becomes of importance. That Act originated in a House bill, which had no provision comparable to Section 4, but rather gave similar treatment to retroactive and prospective claims; i. e., excluding coverage except by contract or custom in the industry. H. R. Rep. No. 326, 80th Cong., 1st Sess. 12. The Conference Report stated that the language of Section 4 follows the Senate bill. S. Rep. No. 48, 80th Cong., 1st Sess. 48. In the Senate, the colloquy between several Senators and Senator Cooper, a sponsor of the bill and a member of the three-man subcommittee that held hearings for the Committee on the Judiciary which reported it, demonstrates that the Senate intended the activities of changing clothes and showering to be within the protection of the Act if they are an integral part of and are essential to the principal activities of the employees. There is some conflicting history in the House, but the Senate discussion is more clear cut and, because the Section originated in that body, is more persuasive. In 1949, Section 3 (o) was added to the Act. Both sides apparently take comfort from it, but the position of the Government is strengthened by it since its clear implication is that clothes changing and washing, which are otherwise a part of the principal activity, may be expressly excluded from coverage by agreement. The congressional understanding of the scope of Section 4 is further marked by the fact that the Congress also enacted Section 16 (c) at the same time, after hearing from the Administrator his outstanding interpretation of the coverage of certain preparatory activities closely related to the principal activity and indispensable to its performance. On the whole it is clear, we think, that while Congress intended to outlaw claims prior to 1947 for wages based on all employee activities unless provided for by contract or custom of the industry, including, of course, activities performed before or after regular hours of work, it did not intend to .deprive employees of the benefits of the Fair Labor Standards Act where they are an integral part of and indispensable to their principal activities. Had Congress intended the result urged by petitioner, the very different provisions of Sections 2 and 4 would have been unnecessary; Section 2 could have been given prospective as well as retroactive effect. We, therefore, conclude that activities performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4 (a)(1). We find no difficulty in fitting the facts of this case to that conclusion because it would be difficult to conjure up an instance where changing clothes and showering are more clearly an integral and indispensable part of the principal activity of the employment than in the case of these employees. The judgment is Affirmed. APPENDIX TO OPINION OF THE COURT. Colloquy Between Senator Cooper and Other Senators. “Mr. COOPER. . . . Before the enactment of the Fair Labor Standards Act an employee might have worked upon a lathe under a contract, and his contract may have provided that his pay should commence at a scheduled hour, say at 7 o’clock when the lathe began to run, and he began to apply his energy to a casting or to a block upon the lathe. After the enactment of the Fair Labor Standards Act, by interpretations of the Wage and Hour Administrator, it was held that certain preparatory activities such as sharpening the tools, oiling the machinery, preparing his machinery for work, were so closely related to his productive activity that the employer must compensate the employee for it. We believe that in the use of the words ‘principal activity’ we have preserved to the employee the rights and the benefits and the privileges which have been given to him under the Fair Labor Standards Act, because it is our opinion that those activities which are so closely related and are an integral part of the principal activity, indispensable to its performance, must be included in the concept of principal activity. And to make our position clear we have given examples in the report. . . . “Mr. McGRATH. I think that at this point we might very definitely make contribution to the legislative history of what we are doing here. Am I correct in understanding the Senator to say that what the majority of the committee proposes is that any activity of a worker shall be considered a part of his principal activity if the doing of that act is indispensable to the performance of the rest of his day’s work? “Mr. COOPER. I can read the language used in the report, and I think that language should be used in this connection, because the words and phrases it employs were adopted by the committee. On page 48 of the report, in the definition of 'principal activity,’ we find these words: “ 'It will be observed that the particular time at which the employee commences his principal activity or activities and ceases his principal activity or activities marked the beginning and the end of his workday. The term “principal activity or activities” includes all activities which are an integral part thereof as illustrated by the following examples: “ T. In connection with the operation of a lathe an employee will frequently at the commencement of his workday oil, grease, or clean his machine, or install a new cutting tool. Such activities are an integral part of the principal activity, and are included within such term. “ ‘2. In the case of a garment worker in a textile mill, who is required to report 30 minutes before other employees report to commence their principal activities, and who during such 30 minutes distributes clothing or parts of clothing at the workbenches of other employees and gets machines in readiness for operation by other employees, such activities are among the principal activities of such employee.’ “We believe that our bill provides that the employee must receive compensation for such activities. “Mr. McGRATH. . . . Then we can clear that point up by reiterating that what the committee means is that any amount of time spent in the performance of the type of activity expressed in examples 1 and 2 is to be hereafter regarded as compensable time. “Mr. COOPER. I should certainly say so, as a part of the principal activity. “Mr. McGRATH. Th$re are innumerable instances of operations which have to be performed that are not covered in these two particular examples. I think of one at the moment. In certain of our chemical plants workers are required to put on special clothing and to take off their clothing at the end of the workday, and in some of the plants they are required to take shower baths before they leave. Does the Senator regard such activity as that as coming within the compensable workday? “Mr. COOPER. I am very happy that the Senator has asked the question, because I believe it gives the opportunity of drawing a fine distinction between the type of activity which we consider compensa-ble and the type which should not be compensable. In accordance with our intention as to the definition of ‘principal activity,’ if the employee could not perform his activity without putting on certain clothes, then the time used in changing into those clothes would be compensable as part of his principal activity. On the other hand, if changing clothes were merely a convenience to the employee and not directly related to the specific work, it would not be considered a part of his principal activity, and it follows that such time would not be compensable.” 93 Cong. Rec. 2297-2298. “Mr. BARKLEY. . . . Suppose that a man is a machinist or a mechanic of some kind. He is required to go to work at 8 o’clock. Let us assume for a moment that he is not a member of an organization. He is required to enter upon the actual labor, which might be termed his principal employment, at 8 o’clock in the morning and to spend 8 hours at such principal employment. But let us suppose that his employer requires him to be on the grounds and within the shop at 7:30 in the morning in order that he may spend half an hour sharpening and preparing the tools with which he himself or his colleagues in the factory are to work. Can anybody say that under those circumstances the 40-hour workweek has been complied with, as intended by the Fair Labor Standards Act ? If he is required to do that every day, instead of working 8 hours a day he will be working 8% hours a day. If he works 6 days a week, instead of 40 hours a week, he will be working more than 50 hours, every moment of which he is under the control of his employer, working with tools which belong to his employer, and he must abide by his orders or run the risk of discharge from his employment. “Is that a part of his principal employment, or is that preliminary ; or, if he is required to do it after the close of the shop in the afternoon, is that a part of the ‘postliminary’ work for which there is to be no compensation unless there is a contract or unless it has been the practice and custom for the employer to pay for the extra work done at his command ? “Mr. COOPER. The distinguished Senator has perhaps not had the opportunity to read the report of the committee. Let me say that on page 48 of the report of the committee that exact situation, or one as nearly comparable to it as probably could be cited, is discussed. In the report it is clearly stated that under such circumstances it is the intention of the framers of the bill that such activities shall be compensable, as a part of the principal activity.” 93 Cong. Rec. 2350. The only exception was one injured employee who, because of the danger of infection to his wounded foot in a common shower, bathed at his home which is about five blocks from the plant. “Sec. 4. . . . “(a) Except as provided in subsection (b), no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act, on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after the date of the enactment of this Act'— “(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and “(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. “(b) Notwithstanding the provisions of subsection (a) which relieve an employer from liability and punishment with respect to an activity, the employer shall not be so relieved if such activity is compensable by either— “(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or “(2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee is employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer.” 61 Stat. 86, 29 U. S. C. § 254. § 1 (a), 61 Stat. 84, 29 U. S. C. § 251 (a). “Sec. 2. . . . “(a) No employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, the Walsh-Heaiey Act, or the Bacon-Davis Act (in any action or proceeding commenced prior to or on or after the date of the enactment of this Act [May 14, 1947]), on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any activity of an employee engaged in prior to the date of the enactment of this Act, except an activity which was compensable by either— “(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or “ (2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee was employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer.” 61 Stat. 85, 29 U. S. C. § 252. See the colloquy quoted in an appendix to this opinion, post, p. 256. See Remarks of Representative Gwynne, 93 Cong. Rec. 4388-4389; Remarks of Representative Walter, id., at 4389; Remarks of Representative Michener, ibid. “Sec. 3 (o). Hours Worked. — In determining for the purposes of sections 6 and 7 the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.” 63 Stat. 911, 29 U. S. C. § 203 (o). “Sec. 16 (c). Any order, regulation, or interpretation of the Administrator of the Wage and Hour Division or of the Secretary of Labor, and any agreement entered into by the Administrator or the Secretary, in effect under the provisions of the Fair Labor Standards Act of 1938, as amended, on the effective date of this Act, shall remain in effect as an order, regulation, interpretation, or agreement of the Administrator or the Secretary, as the case may be, pursuant to this Act, except to the extent that any such order, regulation, interpretation, or agreement may be inconsistent with the provisions of this Act, or may from time to time be amended, modified, or rescinded by the Administrator or the Secretary, as the case may be, in accordance with the provisions of this Act.” 63 Stat. 920. 29 CFR § 790.8. 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_casesource	158	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. STANSBURY v. CALIFORNIA No. 93-5770. Argued March 30, 1994 Decided April 26, 1994 Robert M. Westberg, by appointment of the Court, 510 U. S. 1009, argued the cause for petitioner. With him on the briefs were David S. Winton and Joseph A. Hearst. Aileen Bunney, Deputy Attorney General of California, argued the cause for respondent. With her on the brief were Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, and Ronald E. Niver, Deputy Attorney General. Briefs of amici curiae urging affirmance were filed for the Orange County District Attorney, State of California, by Michael R. Capizzi and Devallis Rutledge; for Americans for Effective Law Enforcement, Inc., by Bernard J. Farber, Fred E. Inbau, Wayne W. Schmidt, and James P. Manak; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger. Per Curiam. This case concerns the rules for determining whether a person being questioned by law enforcement officers is held in custody, and thus entitled to the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966). We hold, not for the first time, that an officer’s subjective and undisclosed view concerning whether the person being interrogated is a suspect is irrelevant to the assessment whether the person is in custody. I Ten-year-old Robyn Jackson disappeared from a playground in Baldwin Park, California, at around 6:30 p.m. on September 28, 1982. Early the next morning, about 10 miles away in Pasadena, Andrew Zimmerman observed a large man emerge from a turquoise American, sedan and throw something into a nearby flood control channel. Zimmerman called the police, who arrived at the seene and discovered the girl’s body in the channel. There was evidence that she had been raped, and the cause of death was determined to be asphyxia complicated by blunt force trauma to the head. Lieutenant Thomas Johnston, a detective with the Los Angeles County Sheriff’s Department, investigated the homicide. From witnesses interviewed on the day the body was discovered, he learned that Robyn had talked to two ice cream truck drivers, one being petitioner Robert Edward Stansbury, in the hours before her disappearance. Given these contacts, Johnston thought Stansbury and the other driver might have some connection with the homicide or knowledge thereof, but for reasons unimportant here Johnston considered only the other driver to be a leading suspect. After the suspect driver was brought in for interrogation, Johnston asked Officer Lee of the Baldwin Park Police Department to contact Stansbury to see if he would come in for questioning as a potential witness. Lee and three other plainclothes officers arrived at Stansbury’s trailer home at about 11:00 that evening. The officers surrounded the door and Lee knocked. When Stansbury answered, Lee told him the officers were investigating a homicide to which Stansbury was a possible witness and asked if he would accompany them to the police station to answer some questions. Stansbury agreed to the interview and accepted a ride to the station in the front seat of Lee’s police car. At the station, Lieutenant Johnston, in the presence of another officer, questioned Stansbury about his whereabouts and activities during the afternoon and evening of September 28. Neither Johnston nor the other officer issued Miranda warnings. Stansbury told the officers (among other things) that on the evening of the 28th he spoke with the victim at about 6:00, returned to his trailer home after work at 9:00, and left the trailer at about midnight in his housemate’s turquoise, American-made car. This last detail aroused Johnston’s suspicions, as the turquoise car matched the description of the one Andrew Zimmerman had observed in Pasadena. When Stansbury, in response to a further question, admitted to prior convictions for rape, kidnaping, and child molestation, Johnston terminated the interview and another officer advised Stansbury of his Miranda rights. Stansbury declined to make further statements, requested an attorney, and was arrested. Respondent State of California charged Stansbury with first-degree murder and other crimes. Stansbury filed a pretrial motion to suppress all statements made at the station, and the evidence discovered as a result of those statements. The trial court denied the motion in relevant part, ruling that Stansbury was not “in custody” — and thus not entitled to Miranda warnings — until he mentioned that he had taken his housemate’s turquoise car for a midnight drive. Before that stage of the interview, the trial court reasoned, “the focus in [Lieutenant Johnston’s] mind certainly was on the other ice cream [truck] driver,” Tr. 2368; only “after Mr. Stansbury made the comment . . . describing the . . . turquoise-colored automobile” did Johnston’s suspicions “shif[t] to Mr. Stansbury,” ibid. Based upon its conclusion that Stansbury was not in custody until Johnston’s suspicions had focused on him, the trial court permitted the prosecution to introduce in its case in chief the statements Stansbury made before that time. At trial, the jury convicted Stansbury of first-degree murder, rape, kidnaping, and lewd act on a child under the age of 14, and fixed the penalty for the first-degree murder at death. The California Supreme Court affirmed. Before determining whether Stansbury was in custody during the interview at the station, the court set out what it viewed as the applicable legal standard: “In deciding the custody issue, the totality of the circumstances is relevant, and no one factor is dispositive. However, the most important considerations include (1) the. site of the interrogation, (2) whether the investigation has focused on the subject, (3) whether the objective indicia of arrest are present, and (4) the length and form of questioning.” 4 Cal. 4th 1017, 1050, 846 R 2d 756, 775 (1993) (internal quotation marks omitted). The court proceeded to analyze the second factor in detail, in the end accepting the trial court’s factual determination “that suspicion focused on [Stansbury] only when he mentioned that he had driven a turquoise car on the night of the crime.” Id., at 1052, 846 P. 2d, at 776. The court “conclude[d] that [Stansbury] was not subject to custodial interrogation before he mentioned the turquoise car,” and thus approved the trial court’s ruling that Miranda v. Arizona did not bar the admission of statements Stansbury made before that point. 4 Cal. 4th, at 1054, 846 P. 2d, at 777-778. We granted certiorari. 510 U. S. 943 (1993). II We held in Miranda that a person questioned by law enforcement officers after being “taken into custody or otherwise deprived of his freedom of action in any significant way” must first “be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” 384 U. S., at 444. Statements elicited in noncompliance with this rule may not be admitted for certain purposes in a criminal trial. Compare id., at 492, 494, with Harris v. New York, 401 U. S. 222 (1971). An officer’s obligation to administer Miranda warnings attaches, however, “only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’” Oregon v. Mathiason, 429 U. S. 492, 495 (1977) (per curiam); see also Illinois v. Perkins, 496 U. S. 292, 296 (1990). In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but “the ultimate inquiry is simply whether there [was] a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U. S. 1121, 1125 (1983) (per curiam) (quoting Mathiason, supra, at 495). Our decisions make clear that the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. In Beckwith v. United States, 425 U. S. 341 (1976), for example, the defendant, without being advised of his Miranda rights, made incriminating statements to Government agents during an interview in a private home. He later asked that Miranda “be extended to cover interrogation in noncustodial circumstances after a police investigation has focused on the suspect.” 425 U. S., at 345 (internal quotation marks omitted). We found his argument unpersuasive, explaining that it “was the compulsive aspect of custodial interrogation, and not the strength or content of the government’s suspicions at the time the questioning was conducted, which led the Court to impose the Miranda requirements with regard to custodial questioning.” Id., at 346-347 (internal quotation marks omitted). As a result, we concluded that the defendant was not entitled to Miranda warnings: “Although the ‘focus’ of an investigation may indeed have been on Beckwith at the time of the interview ... , he hardly found himself in the custodial situation described by the Miranda Court as the basis for its holding.” 425 U. S., at 347. Berkemer v. McCarty, 468 U. S. 420 (1984), reaffirmed the conclusions reached in Beckwith. Berkemer concerned the roadside questioning of a motorist detained in a traffic stop. We decided that the motorist was not in custody for purposes of Miranda even though the traffic officer “apparently decided as soon as [the motorist] stepped out of his car that [the motorist] would be taken into custody and charged with a traffic offense.” 468 U. S., at 442. The reason, we explained, was that the officer “never communicated his intention to” the motorist during the relevant questioning. Ibid. The lack of communication was crucial, for under Miranda “[a] policeman’s unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a particular time”; rather, “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” 468 U. S., at 442. Other cases of ours have been consistent in adhering to this understanding of the custody element of Miranda. See, e. g., Mathias on, supra, at 495 (“Nor is the requirement of warnings to be imposed simply because . . . the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody’”); Beheler, supra, at 1124, n. 2 (“Our holding in Mathiason reflected our earlier decision in [Beck-with], in which we rejected the notion that the ‘in custody’ requirement was satisfied merely because the police interviewed a person who was the ‘focus’ of a criminal investigation”); Minnesota v. Murphy, 465 U. S. 420, 431 (1984) (“The mere fact that an investigation has focused on a suspect does not trigger the need for Miranda warnings in noncustodial settings, and the probation officer’s knowledge and intent have no bearing on the outcome of this case”) (citation omitted); cf. Pennsylvania v. Bruder, 488 U. S. 9, 11, n. 2 (1988). It is well settled, then, that a police officer’s subjective view that the individual under questioning is a suspect, if undisclosed, does not bear upon the question whether the individual is in custody for purposes of Miranda. See F. Inbau, J. Reid, & J. Buckley, Criminal Interrogation and Confessions 232, 236, 297-298 (3d ed. 1986). The same principle obtains if an officer’s undisclosed assessment is that the person being questioned is not a suspect. In either instance, one cannot expect the person under interrogation to probe the officer’s innermost thoughts. Save as they are communicated or otherwise manifested to the person being ques-. tioned, an officer’s evolving but unarticulated suspicions do not affect the objective circumstances of an interrogation or interview, and thus cannot affect the Miranda custody inquiry. “The threat to a citizen’s Fifth Amendment rights that Miranda was designed to neutralize has little to do with the strength of an interrogating officer’s suspicions.” Berkemer, supra, at 435, n. 22. An officer’s knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned. Cf. Michigan v. Chesternut, 486 U. S. 567,575, n. 7 (1988) (citing United States v. Mendenhall, 446 U. S. 544,554, n. 6 (1980) (opinion of Stewart, J.)). Those beliefs are relevant only to the extent they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her “ ‘freedom of action.’” Berkemer, supra, at 440. Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest. The weight and pertinence of any communications regarding the officer’s degree of suspicion will depend upon the facts and circumstances of the particular case. In sum, an officer’s views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody, but only if the officer’s views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave. (Of course, instances may arise in which the officer’s undisclosed views are relevant in testing the credibility of his or her account of what happened during an interrogation; but it is the objective surroundings, and not any undisclosed views, that control the Miranda custody inquiry.) We decide on this state of the record that the California Supreme Court’s analysis of whether Stansbury was in custody is not consistent in all respects with the foregoing principles. Numerous statements in the court’s opinion are open to the interpretation that the court regarded the officers’ subjective beliefs regarding Stansbury’s status as a suspect (or nonsuspect) as significant in and of themselves, rather than as relevant only to the extent they influenced the objective conditions surrounding his interrogation. See 4 Cal. 4th, at 1050, 846 P. 2d, at 775 (“whether the investigation ha[d] focused on the” person being questioned is among the “most important considerations” in assessing whether the person was in custody). So understood, the court’s analysis conflicts with our precedents. The court’s apparent conclusion that Stansbury’s Miranda rights were triggered by virtue of the fact that he had become the focus of the officers’ suspicions, see 4 Cal. 4th, at 1052, 1054, 846 P. 2d, at 776, 777-778; cf., e.g., State v. Blanding, 69 Haw. 583, 586-587, 752 P. 2d 99, 101 (1988); State v. Hartman, 703 S. W. 2d 106, 120 (Tenn. 1985), cert, denied, 478 U. S. 1010 (1986); People v. Herdon, 42 Cal. App. 3d 300, 307, n. 10, 116 Cal. Rptr. 641, 645, n. 10 (1974), is incorrect as well. Our cases make clear, in no uncertain terms, that any inquiry into whether the interrogating officers have focused their suspicions upon the individual being questioned (assuming those suspicions remain undisclosed) is not relevant for purposes of Miranda. See generally 1 W. LaFave & J. Israel, Criminal Procedure §6.6(a), pp. 489-490 (1984). The State acknowledges that Lieutenant Johnston’s and the other officers’ subjective and undisclosed suspicions (or lack thereof) do not bear upon the question whether Stansbury was in custody, for purposes of Miranda, during the station house interview. It maintains, however, that the objective facts in the record support a finding that Stansbury was not in custody until his arrest. Stansbury, by contrast, asserts that the objective circumstances show that he was in custody during the entire interrogation. We think it appropriate for the California Supreme Court to consider this question in the first instance. We therefore reverse its judgment and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:
sc_lcdisagreement	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. RICE v. SIOUX CITY MEMORIAL PARK CEMETERY, INC. et al. No. 28. Decided May 9, 1955. Neil R. McCluhan and Lowell C. Kindig for petitioner. Mr. Justice Frankfurter delivered the opinion of the Court. This is an action for damages brought by plaintiff, petitioner here, in the District Court of Woodbury County, Iowa, to compensate her for mental suffering claimed to flow from defendant cemetery's refusal to bury her husband, a Winnebago Indian, after services had been conducted at the grave site and the burial party had disbanded. Plaintiff founded her action, so far as here relevant, on breach of a contract whereby defendant had undertaken to afford plaintiff ‘‘Right of Sepulture” in a specified lot of its cemetery. The contract of sale of the burial lot also provided that “burial privileges accrue only to members of the Caucasian race.” Plaintiff asserted that this provision was void under both the Iowa and the United States Constitutions and that recognition of its validity would violate the Fourteenth Amendment. By an amendment to the complaint, plaintiff also claimed a violation of the United Nations Charter. The defense was anchored in the validity of the clause as a bar to this action. After an abortive attempt to remove the case to the federal courts, 102 F. Supp. 658, defendants moved to dismiss the amended petition in the state court. This motion was denied, except that insofar as the amendment to the petition had relied on the United Nations Charter, the amendment was dismissed. Following Iowa procedure, the trial court entertained motions by both parties requesting it to adjudicate prior to trial points of law relating to the effect of the restrictive covenant. The Iowa court ruled that the clause was not void but was unenforceable as a violation of the Constitutions and public policy of Iowa and the United States. Nevertheless, it held that the clause “may be relied upon as a defense” and that “the action of a State or Federal court in permitting a defendant to stand upon the terms of its contract and to defend this action in court would not constitute state or federal action” contrary to the Fifth and Fourteenth Amendments. It again ruled that the United Nations Charter was irrelevant, and the case was finally dismissed. The Supreme Court of Iowa affirmed, reasoning that the decision of this Court in Shelley v. Kraemer, 334 U. S. 1, when considered in conjunction with the Civil Rights Cases, 109 U. S. 3, did not require a state court to ignore such a provision in a contract when raised as a defense and in effect to reform the contract by enforcing it without regard to the clause. The court further ruled that the provisions of the United Nations Charter “have no bearing on the case” and that none of the grounds based on local law sustained the action. 245 Iowa 147, 60 N. W. 2d 110. We granted certiorari, 347 U. S. 942. The basis for petitioner’s resort to this Court was primarily the Fourteenth Amendment, through the Due Process and Equal Protection Clauses. Only if a State deprives any person or denies him enforcement of a right guaranteed by the Fourteenth Amendment can its protection be invoked. Such a claim involves the threshold problem whether, in the circumstances of this case, what Iowa, through its courts, did amounted to “state action.” This is a complicated problem which for long has divided opinion in this Court. See, e. g., Raymond v. Chicago Traction Co., 207 U. S. 20; Snowden v. Hughes, 321 U. S. 1; Terry v. Adams, 345 U. S. 461. See also, Barrows v. Jackson, 346 U. S. 249. Were this hurdle cleared, the ultimate substantive question, whether in the circumstances of this case the action complained of was condemned by the Fourteenth Amendment, would in turn present no easy constitutional problem. The case was argued here and the stark fact is that the Court was evenly divided. 348 U. S. 880. In accordance with undeviating practice, no indication was given regarding the grounds of this division. In addition to the familiar though vexing problems of constitutional law, there was reference in the opinions of the Iowa courts and in the briefs of counsel to the United Nations Charter. The Iowa courts dismissed summarily the claim that some of the general and hortatory language of this Treaty, which so far as the United States is concerned is itself an exercise of the treaty-making power under the Constitution, constituted a limitation on the rights of the States and of persons otherwise reserved to them under the Constitution. It is a redundancy to add that there is, of course, no basis for any inference that the division of this Court reflected any diversity of opinion on this question. Following our affirmance by necessity of the decision of the Iowa Supreme Court, a petition was filed for a rehearing before a full Court. In our consideration of this petition our attention has now been focused upon an Iowa statute enacted since the commencement of this litigation. Though it was in existence at the time the case first came here, it was then not seen in proper focus because blanketed by the issues of “state action” and constitutional power for which our interest was enlisted. This Iowa statute bars the ultimate question presented in this case from again arising in that State. In light of this fact and the standards governing the exercise of our discretionary power of review upon writ of certiorari, we have considered anew whether this case is one in which “there are special and important reasons” for granting the writ of certiorari, as required by Supreme Court Rule 19. This Rule, formulated thirty years ago, embodies the criteria, developed ever since the Evarts Act of 1891, by which the Court determines whether a particular case merits consideration, with due regard to the proper functioning of the limited reviewing power to which this Court is confined, decisively restricted through the creation of the intermediate Courts of Appeals and more largely confined by the Judiciary Act of 1925. In illustrating the character of reasons which may be deemed “special and important,” the Rule refers to cases “Where a state court has decided a federal question of substance not theretofore determined by this court, or has decided it in a way probably not in accord with applicable decisions of this court.” A federal question raised by a petitioner may be “of substance” in the sense that, abstractly considered, it may present an intellectually interesting and solid problem. But this Court does not sit to satisfy a scholarly interest in such issues. Nor does it sit for the benefit of the particular litigants. (Magnum Import Co. v. Coty, 262 U. S. 159, 163; see also Address of Mr. Chief Justice Vinson, before the American Bar Association, Sept. 7, 1949, 69 Sup. Ct. v, vi; Address of Mr. Chief Justice Hughes, before the American Law Institute, May 10, 1934, XI Proc. Am. Law Inst. 313.) “Special and important reasons” imply a reach to a problem beyond the academic or the episodic. This is especially true where the issues involved reach constitutional dimensions, for then there comes into play regard for the Court’s duty to avoid decision of constitutional issues unless avoidance becomes evasion. Cf. the classic rules for such avoidance stated by Mr. Justice Brandéis in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 341. In the present case, certiorari was granted, according to our practice, because at least four members of the Court deemed that despite the rather unique circumstances of this case Iowa’s willingness to enforce this restrictive covenant rendered it “special and important.” We were unmindful at the time of Iowa’s corrective legislation and of its implications. While that statute had been cited in the opinion of the Iowa Supreme Court, without quotation, in tangential support of a substantive argument, and while similar passing references appear in respondent’s briefs in opposition to the petition and on the merits, it was not even suggested as a ground for opposing the grant. Its importance was not put in identifying perspective, and it did not emerge to significance in the sifting process through which the annual hundreds of petitions for certiorari pass. Argument at the Bar was concerned with other issues and the even division of the Court forestalled that intensive study attendant upon opinion-writing which might well have revealed the crucial relevance of the statute. These oversights should not now be compounded by further disregard of the impact of this enactment when viewed in the light of settled Iowa law, not previously brought to our attention, concerning its effect upon private litigation. The statute provides: “Section 1. Any corporation or other form of organization organized or engaging in the business under the laws of the state of Iowa, or wheresoever organized and engaging in the business in the state of Iowa, of the ownership, maintenance or operation of a cemetery . . . except . . . churches or religious or established fraternal societies, or incorporated cities or towns or other political subdivisions of the state of Iowa . . . shall be subject to the provisions of this’ chapter. “Sec. 8. It shall be unlawful for any organization subject to the provisions of this chapter to deny the privilege of interment of the remains of any deceased person in any cemetery . . . solely because of the race or color of such deceased person. Any contract, agreement, deed, covenant, restriction or charter provision at any time entered into, or by-law, rule or regulation adopted -or put in force, either subsequent or prior to the effective date of this chapter, authorizing, permitting or requiring any organization subject to the provisions of this chapter to deny such privilege of interment because of race or color of such deceased person is hereby declared to be null and void and in conflict with the public policy of this state. . . . “Sec. 9. Any person, firm or corporation violating any of the provisions of this chapter, shall, upon conviction, be punishable by a fine of not less than twenty-five dollars ($25.00) nor more than one hundred dollars ($100.00). “Sec. 12. Nothing in this Act contained shall affect the rights of any parties to any pending litigation. “Approved April 21, 1953.” Iowa Laws 1953, c. 84; Iowa Code Ann. (1954 Cum. Supp.) § 566A. 1-11. As a result of this Act, in any other case arising under similar circumstances not only would the statutory penalties be applicable, but also, under Iowa law, one in • petitioner’s position would be entitled to recover damages in a civil action based on a violation of the statute. See Humburd v. Crawford, 128 Iowa 743, 105 N. W. 330; Brown v. J. H. Bell Co., 146 Iowa 89, 123 N. W. 231, 124 N. W. 901; Amos v. Prom, Inc., 117 F. Supp. 615 (D. C. N. D. Iowa). Had the statute been properly brought to our attention and the case thereby put into proper focus, the case would have assumed such an isolated significance that it would hardly have been brought here in the first instance. Any adjudication of the constitutional claims pressed by petitioner would now be an adjudication under circumstances not promotive of the very social considerations which evidently inspired the Iowa Legislature to provide against the kind of discrimination of which complaint is here made. On the one hand, we should hesitate to pass judgment on Iowa for unconstitutional action, were such to be found, when it has already rectified any possible error. On the other hand, we should not unnecessarily discourage such remedial action by possible condonation of this isolated incident. Moreover, the evident difficulties of the case suggest that, in the absence of compelling reason, we should not risk inconclusive and divisive disposition of a case when time may further illumine or completely outmode the issues in dispute. Such factors are among the many which must be weighed in the exercise of that “sound judicial discretion” which Rule 19 requires. We have taken this opportunity to explain their relevance, when normally, for obvious reasons in view of our volume of business, no opinion accompanies dismissal of a writ as improvidently granted, because of the apt illustration here provided of the kinds of considerations, beyond those listed by Rule 19 as illustrative but not exhaustive, which preclude adjudication on the merits of cases which may have the surface appearance of public importance. We are therefore of the opinion that this Court’s order of November 15, 1954, affirming by an equally divided Court the decision of the Iowa Supreme Court, must be vacated and the writ of certiorari dismissed as improvidently granted. There is nothing unique about such dismissal even after full argument. There have been more than sixty such cases and on occasion full opinions have accompanied the dismissal. The circumstances of this case may be different and more unusual. But this impressive practice proves that the Court has not hesitated to dismiss a writ even at this advanced stage where it appears on further deliberation, induced by new considerations, that the case is not appropriate for adjudication. In the words of Mr. Chief Justice Taft, speaking for a unanimous Court: “If it be suggested that as. much effort and time as we have given to the consideration of the alleged conflict would have enabled us to dispose of the case before us on the merits, the answer is that it is very important that we be consistent in not granting the writ of certiorari except in cases involving principles the settlement of which is of importance to the public as distinguished from that of the parties, and in cases where there is a real and embarrassing conflict of opinion and authority between the circuit courts of appeal.” Layne & Bowler Corp. v. Western Well Works, Inc., 261 U. S. 387, 393. The petition for rehearing is granted. The order of this Court of November 15, 1954, affirming by necessity the judgment of the Supreme Court of Iowa is vacated and the writ of certiorari is dismissed as improvidently granted. It is so ordered. Mr. Justice Harlan took no part in the consideration or decision of this case. Cf. District of Columbia v. Sweeney, 310 U. S. 631, where cer-tiorari was denied “in view of the fact that the tax is laid under a statute which has been repealed and the question is therefore not of public importance.” United States v. Rimer, 220 U. S. 547; Furness, Withy & Co. v. Yang-Tsze Ins. Assn., 242 U. S. 430; Tyrrell v. District of Columbia, 243 U. S. 1; Houston Oil Co. v. Goodrich, 245 U. S. 440; Layne & Bowler Corp. v. Western Well Works, Inc., 261 U. S. 387; Southern Rower Co. v. North Carolina Pub. Serv. Co., 263 U. S. 508; Keller v. Adams-Campbell Co., 264 U. S. 314; Davis v. Currie, 266 U. S. 182; Erie R. Co. v. Kirkendall, 266 U. S. 185; Southern California Edison Co. v. Herminghaus, 275 U. S. 486; Mellon v. McKinley, 275 U. S. 492; Missouri-K.-T. R. Co. v. Texas, 275 U. S. 494; Ellison v. Koswig, 276 U. S. 598; Johnson v. Thornburgh, 276 U. S. 601; Carter Oil Co. v. Eli, 277 U. S. 573; Standard Pipe Line Co. v. Commissioners, 278 U. S. 558; Seaboard Air Line R. Co. v. Johnson, 278 U. S. 576; New York, Chicago & St. L. R. Co. v. Granfell, ibid.; Empire Gas & Fuel Co. v. Saunders, 278 U. S. 581; Virginian R. Co. v. Kirk, 278 U. S. 582; Wallace v. Motor Products Corp., 279 U. S. 859; Sutter v. Midland Valley R. Co., 280 U. S. 521; Anglo & London-Paris Nat. Bank v. Consolidated Nat. Bank, 280 U. S. 526; Gulf, Mobile & N. R. Co. v. Williams, ibid.; Wisconsin Electric Co. v. Dumore Co., 282 U. S. 813; Adam v. New York Trust Co., 282 U. S. 814; Director of Lands v. Villa-Abrille, 283 U. S. 785; Sanchez v. Borras, 283 U. S. 798; Elgin, Joliet & E. R. Co. v. Churchill, 284 U. S. 589; Snowden v. Red River Drainage Dist., 284 U. S. 592; Lang v. United States, 286 U. S. 523; Franklin-American Trust Co. v. St. Louis Union Trust Co., 286 U. S. 533; Louisville & Nashville R. Co. v. Parker, 287 U. S. 569; Sevier Commission Co. v. Wallowa Nat. Bank, 287 U. S. 575; Fort Smith Sub. R. Co. v. Kansas City So. R. Co., 288 U. S. 587; Boynton v. Hutchinson Gas Co., 292 U. S. 601; Lynch v. New York, 293 U. S. 52; Hunt v. Western Casualty Co., 293 U. S. 530; Fox Film Corp. v. Muller, 294 U. S. 696; State Automobile Ins. Assn. v. Glick, 294 U. S. 697; Moor v. Texas & N. O. R. Co., 297 U. S. 101; Texas & N. O. R. Co. v. Neill, 302 U. S. 645; Aetna Ins. Co. v. Illinois Central R. Co., 302 U. S. 652; Tax Commission v. Wilbur, 304 U. S. 544; Goodman v. United States, 305 U. S. 578; Goins v. United States, 306 U. S. 622; McGoldrick v. Gulf Oil Corp., 309 U. S. 2; Utilities Ins. Co. v. Potter, 312 U. S. 662; Harris v. Zion’s Savings Bank, 313 U. S. 541; Jones v. Opelika, 315 U. S. 782; Gorman v. Washington University, 316 U. S. 98; McCullough v. Kammerer Corp., 323 U. S. 327; McCarthy v. Bruner, 323 U. S. 673; White v. Ragen, 324 U. S. 760; Woods v. Nierstheimer, 328 U. S. 211; Phyle v. Duffy, 334 U. S. 431; Hedgebeth v. North Carolina, 334 U. S. 806; Superior Court v. Lillefloren, 335 U. S. 906; Loftus v. Illinois, 337 U. S. 935; Parker v. Los Angeles, 338 U. S. 327; Hammerstein v. Superior Court, 341 U. S. 491; Stembridge v. Georgia, 343 U. S. 541; Edelman v. California, 344 U. S. 357; Bentsen v. Blackwell, 347 U. S. 925; California ex rel. Brown v. St. Louis Union Trust Co., 348 U. S. 932. This list is not to be deemed comprehensive. Only in the light of argument on the merits did it become clear in these numerous cases that the petitions for certiorari should not have been granted. In some instances an asserted conflict turned out to be illusory; in others, a federal question was wanting or decision could be rested on a non-federal ground; in a number, it became manifest that the question was of importance merely to the litigants and did not present an issue of immediate public significance. Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? A. Yes B. No Answer:
songer_genresp1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. Vladimir DOWHY v. HARVEY B. MOYER, INC., Defendant and Third-Party Plaintiff, Appellant, v. EASTERN ENGINEERING COMPANY, Third-Party Defendant, Appellant. No. 13168. United States Court of Appeals Third Circuit. Argued May 10, 1960. Decided May 16, 1960. Joseph X. Heincer, Robert C. Kitchen, Philadelphia, Pa., on the brief, for Eastern Engineering Company, third-party defendant-appellant. Thomas E. Comber, Jr., Philadelphia, Pa. (Perry S. Bechtle, Pepper, Hamilton & Scheetz, Philadelphia, Pa., on the brief), for Harvey B. Moyer, Inc., defendant and third-party plaintiff-appellant. Milton M. Borowsky, Philadelphia, Pa. (Abraham E. Freedman, Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for appellee, Vladimir Dowhy. Before GOODRICH, MeLAUGHLIN and STALEY, Circuit Judges. PER CURIAM. This is an appeal from the denial of a motion for direction of satisfaction of judgment. In the underlying action for damages for personal injuries, the plaintiff recovered a verdict of $25,000 against the original defendant and, on the third-party action, the original defendant recovered a verdict against the plaintiff’s employer, the third-party defendant. The plaintiff had already received $6,-782.47 in compensation payments, but the entire liability for compensation has not as yet been determined. Judgment has been entered against the original defendant but not against the third-party defendant inasmuch as the amount of its liability is still unliquidated. In this action the original defendant has paid into the registry of the court the amount of $18,643.71, representing $25,-000, less the amount paid by the employer as compensation together with costs and interest, and has moved the district court to have the judgment marked satisfied. In support of this proposition, the defendant relies upon Maio v. Fahs, 1940, 339 Pa. 180, 14 A.2d 105, which interpreted the 1915 Compensation Act; however, as the district court noted, the Workmen’s Compensation Act has since been amended, Act of May 29, 1951, P.L. 507, 77 Purdon’s Pa.Stat.Ann. § 671. It is perfectly clear that by virtue of the amendment, the employee is entitled to a pro rata counsel fee measured by the amount of the employer’s liability to him for compensation whether the compensation has been paid or not. Soliday v. Hires Turner Glass Co., 1958, 187 Pa. Super. 44, 142 A.2d 425, allocatur refused. The statute makes no exception for the case where the employer has been found liable for contribution as a joint tortfeasor. Appellant would have us construe the statute to require an innocent employer to pay counsel fees but allow one who was at fault to recover in full. In effect, this is an attempt on the part of the original defendant to utilize the right of subrogation which is granted by statute to the employer. But the statute expressly provides that the employer is not only liable for compensation payments but also for a proportionate share of counsel fees. Even assuming that the original defendant (the nonemployer) can utilize the employer’s right of subrogation in satisfaction of its claim for contribution against the employer as a joint tortfeasor, as we have noted above, the statutory amount that the employer can recover under this right is the amount of payments of compensation less a pro rata share of counsel fees. All of this was thoroughly analyzed and covered in the opinion of Judge Kirkpatrick in the district court, 184 F.Supp. 31, with which we fully agree. The order will be affirmed. . Under the Pennsylvania law, which is applicable here, the original defendant can recover against an employer who was a joint tortfeasor with him a judgment for contribution, but not in excess of the employer’s liability to the plaintiff-employee for compensation. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_caseorigin	074	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. UNITED STATES v. R. L. C. No. 90-1577. Argued December 10, 1991 Decided March 24, 1992 Souter, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, and III, in which Rehnquist, C. J., and White, Stevens, Scalia, Kennedy, and Thomas, JJ., joined, and an opinion with respect to Parts II-B and II-C, in which Rehnquist, C. J., and White and Stevens, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Kennedy and Thomas, JJ., joined, post, p. 307. Thomas, J., filed an opinion concurring in part and concurring in the judgment, post, p. 311. O’Con-nor, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 312. Paul J. Larkin, Jr., argued the cause for the United States. With him on the briefs were Solicitor General Starr, Assistant Attorney General Mueller, and Deputy Solicitor General Bryson. Katherian D. Roe argued the cause for respondent. With her on the brief were Daniel M. Scott, Scott F. Tilsen, and Andrew H. Mohring. Justice Souter announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, and III, and an opinion with respect to Parts II-B and II-C, in which The Chief Justice, Justice White, and Justice Stevens join. The provisions of the Juvenile Delinquency Act require the length of official detention in certain circumstances to be limited to “the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult.” 18 U. S. C. § 5037(c)(1)(B). We.hold that this limitation refers to the maximum sentence that could be imposed if the juvenile were being sentenced after application of the United States Sentencing Guidelines. 1 — 1 Early m the morning of November 5, 1989, after a night of drinking, the then-16-year-old respondent R. L. C. and another juvenile stole a car with which they struck another automobile, fatally injuring one of its passengers, 2-year-old La Tesha Mountain. R. L. C. is a member of the Red Lake Band of Chippewa Indians, and these events took place on the Red Lake Indian Reservation, which is within Indian country as defined by federal law. These circumstances provide federal jurisdiction in this case. See 18 U. S. C. §§ 1151, 1162, 1153. Upon certifying that a proceeding was authorized in federal court under § 5082 on the ground that no state court had jurisdiction over the offense, the Government charged R. L. C. with an act of juvenile delinquency. After a bench trial, the District Court found R. L. C. to be a juvenile who had driven a car recklessly while intoxicated and without the owner’s authorization, causing Mountain’s death. R. L. C. was held to have committed an act of juvenile delinquency within the meaning of § 5031, since his acts would have been the crime of involuntary manslaughter in violation of §§ 1112(a) and 1153 if committed by an adult. The maximum sentence for involuntary manslaughter under 18 U. S. C. § 1112(b) is three years. At R. L. C.’s disposi-tional hearing, the District Court granted the Government’s request to impose the maximum penalty for respondent’s delinquency and accordingly committed him to official detention for three years. Despite the manslaughter statute’s provision for an adult sentence of that length, the United States Court of Appeals for the' Eighth Circuit vacated R. L. C.’s sentence and remanded for resentencing, after concluding that 36 months exceeded the cap imposed by § 5037(c)(1)(B) upon the period of detention to which a juvenile delinquent may be sentenced. 915 F. 2d 320 (1990). Although the statute merely provides that juvenile detention may not extend beyond “the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult,” the Court of Appeals read this language to bar a juvenile term longer than the sentence a court could have imposed on a similarly situated adult after applying the United States Sentencing Guidelines. Under the Guidelines, involuntary manslaughter caused by recklessness has a base offense level of 14. United States Sentencing Commission, Guidelines Manual § 2A1.4(a)(2) (Nov. 1991). The court found, and the Government agrees, see Brief for United States 22, n. 5, that because R. L. C. had the lowest possible criminal history level, Category I, the Guidelines would yield a sentencing range of 15-21 months for a similarly situated adult. The Court of Appeals therefore concluded that the maximum period of detention to which R. L. C. could be sentenced was 21 months. The Government sought no stay of mandate from the Court of Appeals, and on remand the District Court imposed detention for 18 months. Although R. L. C. has now served this time, his failure to complete the 3-year detention originally imposed and the possibility that the remainder of it could be imposed saves the case from mootness. See United States v. Villamonte-Marquez, 462 U. S. 579, 581, n. 2 (1983). We granted the Government’s petition for certiorari, 501 U. S. 1230 (1991), to resolve the conflict between the Eighth Circuit’s holding in this case and the Ninth Circuit’s position, adopted in United States v. Marco L., 868 F. 2d 1121, cert. denied, 493 U. S. 956 (1989), and endorsed by the Government. II A The Government suggests a straightforward enquiry into plain meaning to explain what is “authorized.” It argues that the word “authorized” must mean the maximum term of imprisonment provided for by the statute defining the offense, since only Congress can “authorize” a term of imprisonment in punishment for a crime. As against the position that the Sentencing Guidelines now circumscribe a trial court’s authority, the Government insists that our concern must be with the affirmative authority for imposing a sentence, which necessarily stems from statutory law. It maintains that in any event the Sentencing Commission’s congressional authorization to establish sentencing guidelines does not create affirmative authority to set punishments for crime, and that the Guidelines do not purport to authorize the punishments to which they relate. But this is too easy. The answer to any suggestion that the statutory character of a specific penalty provision gives it primacy over administrative sentencing guidelines is that the mandate to apply the Guidelines is itself statutory. See 18 U. S. C. § 3553(b). More significantly, the Government’s argument that “authorization” refers only to what is affirmatively provided by penal statutes, without reference to the Sentencing Guidelines to be applied under statutory mandate, seems to us to beg the question. Of course it is true that no penalty would be “authorized” without a statute providing specifically for the penal consequences of defined criminal activity. The question, however, is whether Congress intended the courts to treat the upper limit of such a penalty as “authorized” even when proper application of a statutorily mandated Guideline in an adult case would bar imposition up to the limit, and an unwarranted upward departure from the proper Guideline range would be reversible error. § 3742. Here it suffices to say that the Government’s construction is by no means plain. The text is at least equally consistent with treating “authorized” to refer to the result of applying all statutes with a required bearing on the sentencing decision, including not only those that empower the court to sentence but those that limit the legitimacy of its exercise of that power. This, indeed, is arguably the more natural construction. Plain-meaning analysis does not, then, provide the Government with a favorable answer. The most that can be said from examining the text in its present form is that the Government may claim its preferred construction to be one possible resolution of statutory ambiguity. B On the assumption that ambiguity exists, we turn to examine the textual evolution of the limitation in question and the legislative history that may explain or elucidate it. The predecessor of § 5037(c) as included in the Juvenile Justice and Delinquency Prevention Act of 1974 provided that a juvenile adjudged delinquent could be committed to the custody of the Attorney General for a period “not [to] extend beyond the juvenile’s twenty-first birthday or the maximum term which could have been imposed on an adult convicted of the same offense, whichever is sooner.” 18 U. S. C. § 5037(b) (1982 ed.) (emphasis added). In its current form, the statute refers to the “maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult.” 18 U. S. C. § 5037(c) (emphasis added). On its face, the current language suggests a change in reference from abstract consideration of the penalty permitted in punishment of the adult offense, to a focused en-quiry into the maximum that would be available in the circumstances of the particular juvenile before the court. The intervening history supports this reading. With the Sentencing Reform Act of 1984 (chapter II of the Comprehensive Crime Control Act of 1984, Pub. L. 98-473, § 214(a), 98 Stat. 2013), §5037 was rewritten. As § 5037(c)(1)(B), its relevant provision became “the maximum term of imprisonment that would be authorized by section 3581(b) if the juvenile had been tried and convicted as an adult.” 18 U.S.C. §§ 5037(c)(1)(B), (c)(2)(B)(ii) (1982 ed., Supp. II) (emphasis added). The emphasized language was quickly deleted, however, by the Criminal Law and Procedure Technical Amendments Act of 1986, Pub. L. 99-646, § 21(a)(2), 100 Stat. 3596 (Technical Amendments Act), resulting in the present statutory text, “the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult.” It thus lost the reference to § 3581(b), which would have guided the sentencing court in identifying the “authorized” term of imprisonment. R. L. C. argues that this loss is highly significant. Section 3581(b) was, and still is, part of a classification system adopted in 1984 for use in setting the incidents of punishment for federal offenses by reference to letter grades reflecting their relative seriousness. One provision, for example, sets the maximum period of supervised release for each letter grade. §3583. Section 3581(b) sets out the maximum term of imprisonment for each letter grade, providing, for instance, that the authorized term of imprisonment for a class C felony is not more than 12 years, for a class D not more than 6, and for a class E not more than 3. The deletion of the reference to § 3581(b) with its specific catalog of statutory máximums would seem to go against the Government’s position. Since, for example, a juvenile who had committed what would have been an adult class E felony would apparently have been subject to three years of detention, because § 3581(b) “authorized” up to three years of imprisonment for an adult, the deletion of the reference to § 3581(b) would appear to indicate some congressional intent to broaden the range of enquiry when determining what was authorized. The Government, however, finds a different purpose, disclosed in the section-by-section analysis prepared by the Department of Justice to accompany the bill that became the Technical Amendments Act. The Department’s analysis included this explanation for the proposal to delete the reference to § 3581(b): “Because of the effect of 18 U. S. C. § 3559(b)(2), deleting the reference to 18 U. S. C. § 3581(b) will tie the maximum sentences for juveniles to the maximum for adults, rather than making juvenile sentences more severe than adult sentences.” 131 Cong. Rec. 14177 (1985). Congress had enacted § 3559 to reconcile the new sentencing schedule, providing for the incidents of conviction according to the offense’s assigned letter grade, with the pre-existing body of federal criminal statutes, which of course included no assignments of letter grades to the particular offenses they created. Section 3559(a) provides a formula for assigning the missing letter based on the maximum term of imprisonment set by the statute creating the offense. Thus, as it stood at the time of the Technical Amendments Act, it read: “(a) Classification “An offense that is not specifically classified by a letter grade in the section defining it, is classified— “(1) if the maximum term of imprisonment authorized is— “(A) life imprisonment, or if the maximum penalty is death, as a Class A felony; “(B) twenty years or more, as a Class B felony; “(C) less than twenty years but ten or more years, as a Class C felony; “(D) less than ten years but five or more years, as a Class D felony; “(E) less than five years but more than one year, as a Class E felony; “(F) one year or less but more than six months, as a Class A misdemeanor; “(G) six months or less but more than thirty days, as a Class B misdemeanor; “(H) thirty days or less but more than five days, as a Class C misdemeanor; or “(I) five days or less, or if no imprisonment is authorized, as an infraction. “(b) Effect of classification “An offense classified under subsection (a) carries all the incidents assigned to the applicable letter designation except that: “(1) the maximum fine that may be imposed is the fine authorized by the statute describing the offense, or by this chapter, whichever is the greater; and “(2) the maximum term of imprisonment is the term authorized by the statute describing the offense.” 18 U. S. C. §3559 (1982 ed., Supp. II). The Government explains that limiting the length of a juvenile detention to that authorized for an adult under § 3581(b) could in some circumstances have appeared to authorize a longer sentence than an adult could have received, when the offense involved was assigned no letter grade in its defining statute. Thus an offense created without letter grade and carrying a maximum term of two years would be treated under § 3559(a) as a class E felony. Section 3581(b) provides that a class E felony carried a maximum of three years. Regardless of that classification, §3559(b)(2) would certainly preclude sentencing any adult offender to more than two years. Tension would arise, however, where a juvenile had committed the act constituting the offense. Insofar as § 5037(c) capped the juvenile detention by reference to what was authorized for an adult, the maximum would have been two years; but insofar as it capped it by reference to what was authorized by § 3581(b), the limit might have appeared to be three. It was to break this tension, according to the Government, that the reference to § 3581(b) was deleted guaranteeing that no juvenile would be given detention longer than the maximum adult sentence authorized by the statute creating the offense. The amendment also, the Government says, left the law clear in its reference to the statute creating the offense as the measure of an “authorized” sentence. This conclusion is said to be confirmed by a statement in the House Report that the amendment “delet[es an] incorrect cross-referenc[e],” H. R. Rep. No. 99-797, p. 21 (1986), which, the Government argues, “suggests that no substantive change was intended.” Brief for United States 20, n. 4. We agree with the Government’s argument up to a point. A sentencing court could certainly have been confused by the reference to § 3581(b). A sentencing judge considering a juvenile defendant charged with an offense bearing no letter classification, and told to look for “the maximum term of imprisonment that would be authorized [according to letter grade] by section 3581(b),” would have turned first to § 3559(a) to obtain a letter classification. The court perhaps would have felt obliged to ignore the provision of § 3559(b) that “the maximum term of imprisonment is the term authorized by the statute describing the offense” in favor of a longer term provided for by the appropriate letter grade in § 3581(b). Indeed, the sentencing judge would have been faced with this puzzle in virtually every case, since the system of classifying by letter grades adopted in 1984 was only to be used in future legislation defining federal criminal offenses. See Brief for United States 16. No federal offense on the books at the time the Sentencing Reform Act of 1984 was adopted carried a letter grade in its defining statute, and Congress has used the device only rarely in the ensuing years. Thus, while it included a reference to § 3581(b), § 5037(c) was ambiguous. This ambiguity was resolved by an amendment that, absent promulgation of the Guidelines, might have left the question of the “authorized” maximum term of imprisonment to be determined only by reference to the penalty provided by the statute creating the offense, whether expressed as a term of years or simply by reference to letter grade. The legislative history does not prove, however, that Congress intended “authorized” to refer solely to the statute defining the offense despite the enactment of a statute requiring application of the Sentencing Guidelines, a provision that will generally provide a ceiling more favorable to the juvenile than that contained in the offense-defining statute. Indeed, the contrary intent would seem the better inference. The Justice Department analysis of the Criminal Law and Procedure Technical Amendments Act of 1986, upon which the Government relies, went on to say that “deleting the reference to 18 U. S. C. § 3581(b) will tie the maximum sentences for juveniles to the maximum for adults, rather than making juvenile sentences more severe than adult sentences.” 131 Cong. Rec. 14177 (1985). This is an expression of purpose that today can be achieved only by reading “authorized” to refer to the maximum period of imprisonment that may be imposed consistently with 18 U. S. C. § 3553(b). That statute provides that “[t]he court shall impose a sentence... within the range” established for the category of offense as set forth in the Guidelines, “unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” § 3553(b). The point is reinforced by other elements of the legislative history. The Senate Report accompanying the 1986 Technical Amendments Act states that the amendment “makes clear that juvenile sentences are to be of equal length as those for adult offenders committing the same crime.” S. Rep. No. 99-278, p. 3 (1986). This, in turn, reflects the statement in the Senate Report accompanying the Sentencing Reform Act, that the changes in juvenile sentencing law were included “in order to conform it to the changes made in adult sentencing laws.” S. Rep. No. 98-225, p. 155 (1983). The most fundamental of the Sentencing Reform Act’s changes was, of course, the creation of the Sentencing Commission, authorized to promulgate the guidelines required for use by sentencing courts. It hardly seems likely that Congress adopted the current § 5037(c) with a purpose to conform juvenile and adult maximum sentences without intending the recently authorized Guidelines scheme to be considered for that purpose. The legislative history thus reinforces our initial conclusion that § 5037 is better understood to refer to the maximum sentence permitted under the statute requiring application of the Guidelines. C We do not think any ambiguity survives. If any did, however, we would choose the construction yielding the shorter sentence by resting on the venerable rule of lenity, see, e. g., United States v. Bass, 404 U. S. 336, 347-348 (1971), rooted in “ ‘the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should,’ ” id., at 348 (quoting H. Friendly, Benchmarks 209 (1967)). While the rule has been applied not only to resolve issues about the substantive scope of criminal statutes, but to answer questions about the severity of sentencing, see Bifulco v. United States, 447 U. S. 381, 387 (1980), its application is unnecessary in this case, since “we have always reserved lenity for those situations in which a reasonable doubt persists about a statute’s intended scope even after resort to ‘the language and structure, legislative history, and motivating policies’ of the statute.” Moskal v. United States, 498 U. S. 103, 108 (1990) (citation omitted). Ill We hold, therefore, that application of the language in § 5037(c)(1)(B) permitting detention for a period not to exceed “the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult” refers to the maximum length of sentence to which a similarly situated adult would be subject if convicted of the adult counterpart of the offense and sentenced under the statute requiring application of the Guidelines, § 3553(b). Although determining the maximum permissible sentence under § 5037(c)(1)(B) will therefore require sentencing and reviewing courts to determine an appropriate Guideline range in juvenile-delinquency proceedings, we emphasize that it does not require plenary application of the Guidelines to juvenile delinquents. Where that statutory provision applies, a sentencing court’s concern with the Guidelines goes solely to the upper limit of the proper Guideline range as setting the maximum term for which a juvenile may be committed to official detention, absent circumstances that would warrant departure under § 3553(b). The judgment of the Court of Appeals is Affirmed. Title 18 U. S. C. §5037(c) provides:. “(c) The term for which official detention may be ordered for a juvenile found to be a juvenile delinquent may not extend'— “(1) in the case of a juvenile who is less than eighteen years old, beyond the lesser of— “(A) the date when the juvenile becomes twenty-one years old; or “(B) the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult; or “(2) in the case of a juvenile who is between eighteen and twenty-one years old— “(A) who if convicted as an adult would be convicted of a Class A, B, or C felony, beyond five years; or “(B) in any other case beyond the lesser of— “(i) three years; or “(ii) the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult.” R. L. C. argues that the broader statutory purpose supports his position. He contends that longer juvenile sentences are only justified by a rehabilitative purpose. See, e. g., Carter v. United States, 113 U. S. App. D. C. 123, 125, 306 F. 2d 283, 285 (1962) (imposing a longer juvenile sentence under the now-repealed Youth Corrections Act) (“[Rjehabilitation may be regarded as comprising the quid pro quo for a longer confinement but under different conditions and terms than a defendant would undergo in an ordinary prison”). He then suggests that the Sentencing Reform Act rejected the rehabilitative model not merely for adult imprisonment, see Mistretta v. United States, 488 U. S. 361, 366-367 (1989), but for juveniles as well. See Brief for Respondent 19. While it is true that some rehabilitative tools were removed from the juvenile penalty scheme in 1984, see Pub. L. 98-473, § 214(b), 98 Stat. 2014 (abolishing parole for juvenile delinquents), the Juvenile Delinquency Act does not completely reject rehabilitative objectives. See, e. g., 18 U. S. C. §§5035, 5039. We do not think a broader congressional purpose points clearly in either party’s direction. “(b) Authorized terms. — The authorized terms of imprisonment are— “(1) for a Class A felony, the duration of the defendant’s life or any period of time; “(2) for a Class B felony, not more than twenty-five years; “(3) for a Class C felony, not more than twelve years; “(4) for a Class D felony, not more than six years; “(5) for a Class E felony, not more than three years; “(6) for a Class A misdemeanor, not more than one year; “(7) for a Class B misdemeanor, not more than six months; “(8) for a Class C misdemeanor, not more than thirty days; and “(9) for an infraction, not more than five days.” 18 U. S. C. § 3581. We speak here of an indication appearing solely from the face of the text. In fact, so far as we can tell, at the time 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_method	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc. NATIONAL LABOR RELATIONS BOARD v. INJECTION MOLDING CO. et al. No. 14889. United States Court of Appeals, Eighth Circuit. March 9, 1954. Rehearing Denied April 5, 1954. Harry L. Browne, Kansas City, Mo. (Joseph J. Kelly, Jr., Kansas City, Mo., on the brief, Spencer, Fane, Britt & Browne, Kansas City, Mo., of counsel), for respondent, Injection Molding Co. Max H. Frankie, New York City (Philip J. Ruífo, New York City, was on the brief), for respondent Union, Local No. 161. Owsley Vose, Washington, D. C., (George J. Bott, Gen. Counsel, David P. Findling, Assoc. Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Nancy M. Sherman, all of National Labor Relations Board, Washington, D. C., on the brief), for National Labor Relations Board. Before SANBORN, JOHNSEN, and COLLET, Circuit Judges. COLLET, Circuit Judge. The Respondent Company, which will be referred to hereafter as the Respondent , employed somewhat less than fifty persons, mostly women, in its business in Kansas City, Missouri. It had a collective bargaining agreement with Local 710 of the CIO, which was made June 21, 1949, and which was by its terms to expire July 1, 1950. On February 15, 1950, CIO Local 710 was expelled from the CIO. On the same day the regional office of the United Automobile, Aircraft, Agricultural Implement Workers of America of the CIO (UAW-CIO) notified Respondent that a majority of Respondent’s employees had designated it to act as their sole bargaining agent and requested that Respondent voluntarily recognize it as such. Its local was No. 132, which will hereafter be referred to-as CIO. The following day, February 16, 1950, CIO filed with the National Labor Relations Board a petition seeking certification as Respondent’s employees’ bargaining agent. Mr. William Archer, president of Respondent, was away at the time. Early in March, after his return, representatives of CIO called upon him and requested recognition as Respondent’s bargaining agent. They were informed that that should be determined by a Board election. Archer so informed Respondent’s employees. There is evidence to the effect that he addressed the employees twice, once on March 8, 1950, and again on March 15, 1950, and that he indicated positive opposition to the CIO as Respondent’s bargaining agent and suggested the formation of an independent union. A petition for the formation of such a union was circulated but met with no success. A large national independent union, the International Association of Machinists, then began the solicitation of Respondent’s employees. The CIO was already so engaged. The former later became affiliated with the American Federation of Labor with AFL Local 161 as its local union. The latter is also a respondent in this action but will be referred to as AFL or Local 161. April 17, 1950, CIO called a strike. A large number of Respondent’s employees responded. Operation of the plant continued. In the latter part of April, 1950, Respondent filed charges with the Board charging CIO with violation of the Act. Early in May the AFL filed a petition with the Board seeking certification as the sole bargaining agent. On June 2, 1950, Respondent, the CIO, and the AFL executed a strike settlement agreement by which all charges were agreed to be withdrawn, all strikers were to return to work, and all parties agreed that an election be held June 30, 1950, to determine the bargaining agent. The withdrawal of the charges was approved by the Board’s regional director and the striking employees were reinstated on June 5, 1950. Respondent issued a statement of strict neutrality, and Mr. Archer read a prepared statement to all employees to that effect. The AFL won the election. Thereafter on July 25, 1950, 13 of a total of 38 employees were discharged. Six of them had been actively supporting the CIO in the strike. Four more who had been active in support of the CIO were separately discharged on July 11, August 8, August 22, and September 25, 1950. Two CIO adherents were rehired at reduced wages. All filed charges and complaints charging various violations of the Labor-Management Relations Act, 29 U.S. C.A. § 141 et seq. One named the AFL with Respondent. All charges were sustained by the Trial Examiner and the Board. The specific charges and the defenses will be stated in connection with the discussion of each issue presented. In general terms those issues are summarized by counsel for Respondent as follows: “The crux of this case concerns 10 alleged discriminatory discharges or layoffs and whether the findings are supported by substantial evidence on the record considered as a whole. Of these 10, 3 were discharged for cause in connection with their work, 6 were laid off or terminated as a result of an economic reduction of force, and 1 was discharged for failure to pay uniform initiation fees pursuant to a union-shop contract.” It has been the general policy of this court in recent years not to recite in detail the evidence pro and con in passing upon the issue of the substantiality of the evidence to support findings of the Board. Occasionally there has been a departure from the general policy, ordinarily for the purpose of demonstrating the basis for our conclusion that substantial evidence to support a finding did not exist. We see no reason for departing from the general policy in this case. It was charged, and the Board found, that the six employees discharged July 25, 1950, Emma Bandy, Ruby Hobbs, Louise Lembke, Nona Shaw, Hazel Tim-mons and Nadine Ring, were discharged because of their activity on behalf of the CIO in violation of Sec. 8(a)(3) and (1) of the Labor-Management Act, 29 U.S. C.A. § 158(a)(1) and (3). These six employees had been active on behalf of the CIO and had taken an active part in the strike. Neither the Trial Examiner nor the Board found that Mr. Archer was “anti-union”, but the record does support the conclusion that he was antagonistic to the selection of the CIO' as the bargaining agent after Local 710 was expelled from the CIO. Respondent vigorously contended and now contends that these discharges were for economic reasons and were made in connection with a reduction in personnel for economic reasons. Respondent insists that there is no substantial evidence to the contrary, and hence the finding of the Board is not supported by substantial evidence. Nettie Harper was discharged August 8, 1950. She had been an active supporter of the CIO and a picket during the strike, at which time she had several conversations with Mr. Archer. Respondent contended she was discharged because of poor work. The Board found that she was discharged because of her membership in and activities on behalf of the CIO in violation of Sec. 8(a) (1) and (3) of the Act. Respondent contends there is no substantial evidence to support that finding. Elsie Mary May was discharged August 22, 1950. She had been elected a stewardess of the CIO in February, 1950, and took an active part in the CIO campaign and the strike. Respondent contended she was discharged for inefficiency. The Board found she was discharged because of her CIO union .activities in violation of Sec. 8(a)(1) and (3) of the Act. Respondent contends there is no substantial evidence to support the finding. As to each of the foregoing, the findings of the Board are supported by substantial evidence. Respondent argues that the Board has shifted the burden of proof to it and has based its findings on the inadequacy of evidence to establish its asserted lawful reasons for the discharges rather than the sufficiency of the evidence to establish unlawful discharges. The Examiner’s report and the Board’s discussion of the issues both emphasize what is deemed to be an insufficient evidentiary explanation of the discharges consistent with the grounds Respondent contends were the motivating causes of the discharges. This would appear to give some foundation to Respondent’s contention. The Board could not place the burden of proof on Respondent. But we do not understand that it did so. In undertaking to point out what it deemed to be the weakness of Respondent’s evidence in support of the reasons Respondent assigned for the discharges, the Board was recognizing the rule laid down in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, that the evidence found in the record as a whole must be considered, and the attending requirement that the Respondent’s evidence must be weighed and not disregarded. After the Board performs that function and determines which of the opposing contentions is supported by the greater weight of the evidence, on submission of the issue of substantiality of the evidence to support the Board’s finding, the court’s province is confined to a determination of whether on the record as a whole, including of course the Respondent’s evidence, the evidence upon which the Board based its finding was substantial. In doing that the court must make a comparison, not for the purpose of determining which contention is supported by the greater weight of the evidence, but in order to determine whether the evidence relied on by the Board is substantial in relation to the whole. Dannen Grain & Milling Co. v. National Labor Relations Board, 8 Cir., 130 F.2d 321; National Labor Relations Board v. Stafford, 8 Cir., 206 F.2d 19. Respondent’s evidence on the foregoing issues is, to us, persuasive, to say the •least. But there was substantial evidence to the contrary. Under those circumstances the Board’s finding of fact is conclusive. September 26, 1950, Respondent rehired Ruby Hobbs and Evelyn Russell, who had previously been employees. Both had been active supporters of the CIO and both had charges pending against Respondent charging discrimination in their previous discharges. Ruby Hobbs was one of the six discharged on July 25, 1950. Both were invited to return to work by Mr. Archer. When they reported they understood that they were to be rehired at 95 cents an hour, the rate of pay that they had been receiving before their discharge. After they reported but before they were reemployed, they handed Mr. Archer a letter stating that they were not withdrawing their charges and that by reporting for work they were not relinquishing any rights they might have because of their alleged unlawful previous discharge. Whereupon they say that Mr. Archer became angry and stated that “that changes things” and that he would have to consult his attorney. Thereafter he left for a short time and upon his return handed them a written statement reading: “We offered you employment with this Company of vacancies which have arisen. We are willing to employ you now without prejudice to the charges which you have filed with the National Labor Relations Board. In other words, so far as the Company is concerned, you can process the Labor Board charge if you desire. That has nothing to do with your employment now. “However, since your present employment is necessarily a new employment, you will therefore return with seniority beginning today, and at the starting rate we are now required to give under the contract which we have with the Union.” and then said, “Well, girls if you can get rough, I can get rough, too.” The Board found that the reason for the reduction in their starting wage from that which it had theretofore been was because they did not drop their charges, in violation of Sec. 8(a)(1) and (4) of the Act. 29 U.S.C.A. § 158(a) (1) and (4). These facts were disputed, but there was substantial evidence in support of the Board’s finding. As heretofore stated, the consent election for the determination of the bargaining agent was held June 30, 1950. After that election, on August 15, 1950, a new contract was made with the AFL. That contract contained a provision for a union shop. Prior to the 1951 Amendment of the Labor-Management Relations Act, the 1947 Act permitted a union shop provision only after an election at which a majority of the employees voted therefor and the result had been certified. The Board’s rules and regulations then in effect allowed five days after the election for either party to file objections to the election. In contrast see Radio Officers’ Union of Commercial Telegraphers Union, A. F. L. v. National Labor Relations Board, 347 U. S. 17, 74 S.Ct. 323. Hence, formal certification was held in abeyance pending objection, if any. 3 That election was held August 25, 1950. The vote was favorable to the inclusion of the provision. The Board’s representative notified Respondent and the union of the result of the election on August 25, 1950. The result was formally certified on September 5, 1950. The contract provided in effect that no one should be discharged for failure to belong to the union until thirty calendar days after employment or the effective date of the contract, after the appropriate provisions of the Labor-Management Relations Act of 1947 had been complied with. Assuming that formal compliance with the Act was not complete until formal certification of the results of the union shop ratification election, National Labor Relations Board v. Kingston Cake Co., 3 Cir., 191 F.2d 563, no discharge was appropriate under the contract or Sec. 8(a)(3) of the Act, 29 U.S.C.A. § 158(a)(3), until thirty days after September 5, 1950. Prior to August 25, 1950, the AFL Local changed its initiation fee from $2.00 to $10.00 Annabell Woolen refused to pay $10.00, contending she should be admitted for $2.00. On September 21, 1950, the union formally notified Respondent to discharge Woolen “not later than September 26, 1950,” pursuant to the contract, for failure of Woolen to tender the $10.00 initiation fee. Mr. Archer showed her the letter. She indicated she would refuse to pay it. He advised her to think it over for a week. She demanded to see a copy of the contract. The president of AFL Local 161 produced a copy for her the next day and after some discussion told her that she would have to pay the $10.-00 initiation fee, that she would never get in for $2.00. She testified that she said, “Well, I’ll never get in for $10.00.” September 25, 1950, two employees asked her if she had joined the union and she said she would pay $2.00 but would not pay $10. Mr. Archer then asked her if she had decided to join the union and she told him she would not pay $10 because the union was discriminating against her. He then told her he would have to discharge her. She was discharged that day, September 25, 1950. On November 30 or December 1, 1950, in a conversation with Respondent’s attorney she appears to have expressed the same opinion. The Trial Examiner found that Respondent and the AFL “were well advised that Woolen would not in any event pay the $10 initiation fee,” but that the union’s demand for the $10.00 was made before the effective date of the union shop agreement and the union shop contract was applied prematurely, hence the Respondent violated Sec. 8(a)(3) and (1) of the Act and the union violated Sec. 8 (b)(2) and 8(b)(1) and (A) of the Act. The Trial Examiner found that the union did not discriminate against her when it refused her membership in the Union except at the $10 initiation fee. The Board approved and adopted the findings. Its order dated May 5, 1953, ordered her reinstatement and payment of her loss of earnings from the date of her discharge on August 25, 1950. The chairman of the Board dissented on the ground that he “would not mechanically apply the usual 8(a)(3) remedy, but would omit any remedy for so technical a violation.” The application of the usual 8 (a)(3) remedy under the circumstances was arbitrary in a legal sense. The Trial Examiner and the Board found that the union did not discriminate against Woolen when it required the payment of the $10 initiation fee. She refused to pay it after being requested to do so time after time. She was adamant in her refusal at the time of her discharge and fully understood the reason for her discharge. She did not complain that her discharge was premature. Her complaint was that the AFL was discriminating against her. She lost that argument before the Trial Examiner and the Board. While the record does not positively show that she understood she was being offered re-employment December 1, 1950, upon the sole condition that she join the union and without withdrawing her pending charges against Respondent, it shows without contradiction that Respondent’s attorney offered to recommend her reinstatement if she paid the $10 initiation fee and told her his recommendation would be accepted. In the same connection the Trial Examiner found, with the approval of the Board, that the record would not justify a finding that Respondent refused her re-employment because she would not agree to withdraw her charges. She did not pay the initiation fee in December, 1950. She has not paid it since. There is not the slightest indication in the record that she would have paid the fee prior to the expiration of the 30-day period following September 5, 1950. The record clearly demonstrates that she would not. The misunderstanding of the union concerning the expiration date of the 30-day period and the Respondent’s acceptance of the union’s demand that she be discharged did her no wrong or injustice and deprived her of no right she could have had under the course of conduct she elected to follow, unless it be her continued employment for approximately ten days, about which there is and has been no issue. The application of the Sec. 8(a)(3) remedy on behalf of an employee in the absence of any deprivation of any substantial right or injury to the employee must be held to be arbitrary. The Trial Examiner found that Respondent deducted a fine of one dollar from Edward Field’s pay without authority. Apparently this fine was in the nature of an assessment levied by the union against its member Field for nonattendance at a union meeting. Evidently the union notified Respondent to make the deduction. Field quit work for other reasons and, as he expressed it, “I just let it go,” — referring to the one dollar assessment. The general counsel for the Board attached more importance to the incident and amended the complaint at the time of the hearing to charge Respondent with violation of Sec. 8(a)(1) and 8(a)(3) on account of it. The contract between the union and Respondent authorized deductions of only “union membership dues (including assessments if they are regularly part of membership dues) and initiation fees, and turn the same over to the union * * The Trial Examiner found, as heretofore stated, that the deduction was unauthorized and that it constituted a violation of Sec. 8(a)(1). The Board approved the finding with one member dissenting. The Board’s theory is that the contract did not authorize the deduction and the unauthorized action of Respondent in making it was “calculated to discourage Field in the exercise of rights guaranteed him in Section 7 of the Act,” guaranteeing employees the right to refrain from union activities. The theory of the dissent is that one having joined the union, he may not pick and choose what union activities he will participate in contrary to union rules, and be protected by the Board in disregarding the union rules. The principle involved in the disagreement within the Board is not presented by the facts. We agree with the Board that the contract did not authorize the deduction. That being true, it was for the Board to say whether the deduction was likely to amount to improper coercion in violation of that portion of Section 7 quoted in the preceding footnote. That determination is final unless clearly arbitrary. It does not appear arbitrary. Mildred Spangler (Ludwig) was discharged July 11, 1950. She was away from work three weeks without permission. Respondent says that is the reason she was discharged. The Trial Examiner and the Board found that the reason was because of her activities on behalf of the CIO. That finding is challenged on the ground that it is not supported by substantial evidence. We find no evidence which in our judgment is substantial to support the finding. Her conduct was so devoid of consideration for the obligation she owed her employer and her employment that the Appeals Referee, in passing upon her application for Missouri unemployment benefits, found that: “The claimant’s actions in this instance represent such a willful disregard of her employer’s interest as to amount to misconduct connected with her work. The Referee accordingly finds that the claimant was discharged for misconduct connected with her work.” Unemployment benefits were denied her upon that ground. The dereliction of this employee was so glaring that the Board’s condonation of her conduct and its conclusion that she was discharged for other and improper reasons is not supported by the record evidence viewed in its entirety. The Missouri statute requires that service letters be given discharged employees. Respondent contends that since such letters given employees involved in this action were offered in evidence by the general counsel, the statements contained therein to the effect that the discharges were for reasons other than those prohibited by the Labor-Management Relations Act were binding upon the general counsel and the Board must accept them as the true reasons for the discharges. The contention is without merit. The letters were naturally offered for other reasons. The ■weight to be given the statements contained in the letters was, like other evidence, for the Board to determine. Respondent’s assignment that the report of the Trial Examiner, adopted by the Board, is so manifestly biased and unfair that an order based upon it cannot stand is without merit. In its brief Respondent asserts that “The Board’s order should not be enforced because of the prejudicial delay in the processing of this matter.” The following cases are cited in support of that assignment: United States v. Beebe, 127 U.S. 338, 8 S.Ct. 1083, 32 L.Ed. 121; United States v. Diamond Coal & Coke Co., 255 U.S. 323, 41 S.Ct. 335, 65 L.Ed. 660; LaClair v. United States, C. C., 184 F. 128; The Falcon, D.C., 19 F.2d 1009; United States v. Des Moines Valley R. Co., C.C., 70 F. 435. None of the cases cited has any controlling application. There is no reference to the subject in the Board’s brief. The elapsed time between the filing of the charges in the summer of 1950 and the final order of the Board on May 5, 1953, was inordinately long. There may have been good reason for the delay. We are not referred to anything in the record which explains it. A motion by Respondent to dismiss on the ground of delay in filing the complaint is referred to in the record, and an offer of proof was made that Respondent was at all times cooperative with the Board in the investigation of the charges. But that furnishes no explanation. The Act contemplates an expeditious handling of these cases, but we find in the Act no remedy to be applied by the courts for lack of it. The injury to Respondent results from the application of the customary Sec. 8(a) (3) remedy by the Board for the entire period from the date of discharge until date of reinstatement of the employees ordered reinstated. But it is ordinarily for the Board to determine the appropriate remedy within the limits fixed by the Act. In the absence of anything more than appears in this record, there is no justification for giving the question further consideration. See and compare National Labor Relations Board v. Norfolk Shipbuilding & Drydock Corp., 4 Cir., 172 F.2d 813; Eagle-Picher Mining & Smelting Co. v. National Labor Relations Board, 8 Cir., 119 F.2d 903; National Labor Relations Board v. American Creosoting Co., 6 Cir., 139 F.2d 193; National Labor Relations Board v. Cannon Mfg. Corp., 9 Cir., 177 F.2d 197; National Labor Relations Board v. Sun Tent-Luebbert Co., 9 Cir., 151 F.2d 483; National Labor Relations Board v. Central Dispensary & Emergency Hospital, 79 U.S.App.D.C., 274, 145 F.2d 852. The order of the Board should be modified by eliminating the remedy ordered on behalf of Mildred Spangler (Ludwig) and Annabell Woolen, and as so modified the Petition of the Board for the enforcement of its order is granted. . The other Respondent will he referred to as the Union or as AFL (Local 161). . “ * * * the Board shall * * * take a secret ballot of such employees, and shall certify the results thereof to such labor organization and to the employer.” Sec. 9(e) (1), Ch. 120, Title I, Sec. 101, 61 Stat. 143. . “ * * * and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a) (3) of this title.” 29 U.S.C.A. § 157. Question: What is the nature of the proceeding in the court of appeals for this case? A. decided by panel for first time (no indication of re-hearing or remand) B. decided by panel after re-hearing (second time this case has been heard by this same panel) C. decided by panel after remand from Supreme Court D. decided by court en banc, after single panel decision E. decided by court en banc, after multiple panel decisions F. decided by court en banc, no prior panel decisions G. decided by panel after remand to lower court H. other I. not ascertained Answer:
songer_dissent	1	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting. Russell SCOFIELD, Lawrence Hansen, Emil Stepanec, and George Kozbiel, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 14698. United States Court of Appeals Seventh Circuit. March 5, 1968. Knoch, Senior Circuit Judge, dissented. James Urdan, John Q. Kamps, Quarles, Herriott & Clemons, Milwaukee, Wis., for petitioners. Joseph L. Rauh, Jr., John Silard, Harriett R. Taylor, Stephen I. Schlossberg, Washington, D. C., Harold A. Katz, Irving M. Friedman, Chicago, 111., Philip L. Padden, Milwaukee, Wis., for amicus curiae. Marcel Mallet-Prevost, Asst. Gen. Counsel, Gary Green, Atty., N.L.R.B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Melvin J. Welles, Atty., N.L.R.B., for respondent. Before KNOCH, Senior Circuit Judge, and SWYGERT and CUMMINGS, Circuit Judges. CUMMINGS, Circuit Judge. Petitioners, four employees of Wisconsin Motor Corporation (“the Company”), ask us to set aside an order of the National Labor Relations Board dismissing an unfair labor practice complaint that had issued upon their charges against their Union. Petitioners are members of a Union that has been the bargaining representative of the production employees of the Company since 1937. The collective bargaining contract requires such employees to belong to the Union or to pay it a service fee equivalent to dues. The Company is based in West Allis, Wisconsin, where it manufactures motors. Half of its 850 production employees, including these petitioners, are compensated on a basis permitting them to earn amounts above their basic hourly wages by producing at a rate in excess of established hourly norms of output. In 1944, the Union membership adopted a resolution providing in substance that “the men turn in [report for payment] no more than 10 cents per hour over and above the new machine rates.” In 1946, the membership approved fines as penalties for violation of that ceiling rule. The penalties are presently contained in a February 1961 Union by-law which provides that any member violating the production ceilings is “guilty of conduct unbecoming a Union member” and subject to a fine of $1.00 for each violation. The by-law also provides that in case of persistent ceiling violations, the offender would be charged with “conduct unbecoming a Union member.” If a member were found guilty of such conduct, he could be assessed with a maximum fine of $100 (enforceable within a specified time by automatic suspension or expulsion) or suspended or expelled from membership. The Union’s sanctions do not impair a member’s status as an employee of the Company. Ceilings were established from time to time through collective bargaining between the Company and the Union although the Company did not agree to limit wages accordingly. Thus if an employee produced work in excess of the ceilings, the Company would on request pay him for his actual production without regard to the ceilings. So far the Company has been unsuccessful in its bargaining for the elimination of the Union ceiling rates, but the ceilings on all piecework jobs were increased in July of 1953 and August 1956. The ceilings in effect at the time of this dispute were between 45 and 50 cents above the machine rates. By Union rule, any production which a production employee member has turned out at a pace which would yield hourly rates above the ceiling rates is not to be reported to the Company for immediate compensation. Instead, such members are required to “bank” with the Company their earnings in excess of ceilings. On occasions when they receive less than ceilings (for example, through absence or enforced idleness), the Union permits the members to draw upon their “bank” by charging the Company for work previously produced but not reported for wage purposes. Although the Company normally acquiesces in the “banking” system, if an employee chooses to disregard the Union rule and report all production for immediate payment, the Company, as noted, will pay him even though the Union ceilings are exceeded. In 1946, the Union first began enforcing its “banking” system by imposing fines. In 1961, the Union found that six members had violated the “banking” system by reporting to the Company for immediate payment production at a rate in excess of the Union ceilings. Two members were fined $35 each and paid their fines. Two of the petitioner members were fined $100 each, the third was fined $75, and the fourth was fined $50. Instead of paying their fines, the four petitioners filed unfair labor practice charges with the Regional Director of the National Labor Relations Board in May 1961. In October 1961, the Union filed a suit to collect the fines in the Civil Court of Milwaukee County, Wisconsin, where it is still pending. In December 1961, the General Counsel of the Board issued a complaint charging that the Union, in fining and suing petitioners, had restrained and coerced them in the exercise of their rights under Section 7 of the National Labor Relations Act and thereby violated Section 8(b) (1) (A) of the Act. The Union and Company have taken no measures to impair the job status of the petitioners. The Trial Examiner and the Board concluded that Section 8(b) (1) (A) had not been violated and dismissed the complaint. In view of the authoritative construction of that Section in National Labor Relations Board v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123, we must deny the employees’ petition for review. As early as 1951, this Court construed the proviso in Section 8(b) (1) (A) in American Newspaper Publishers Association v. National Labor Relations Board, 193 F.2d 782 (7th Cir. 1951), affirmed on other grounds, 345 U.S. 100, 73 S.Ct. 552. There the union threatened to expel members for violation of a rule forbidding them to work in a shop with non-members. Even though the expulsion might involve the loss by the employee of his job and other economic benefits such as pension and mortuary provisions, we held (at pp. 800-801, 806): “Under this limitation [proviso] Congress left labor organizations free to adopt any rules they desired governing membership in their organizations. Members could be expelled for any reason and in any manner prescribed by the organization’s rules, so far as § 8(b) (1) (A) is concerned. This interpretation has support in the legislative history of the Act. It is also significant that while the Board has been so interpreting this section of the Act during the past four years, Congress has not amended the section to indicate that a broader interpretation of the section was intended or desired. It is not within the power of the courts to write into this section of the Act, by interpretation, language which would broaden its scope. ****** «* * * proviso in § 8(b) (1) (A) permits unions to enforce their internal policies upon their membership as they see fit.” In National Labor Relations Board v. Amalgamated Local 286, 222 F.2d 95 (7th Cir. 1955), the union threatened to deprive certain members of group and hospitalization insurance coverage because they had refused to pay various disciplinary assessments and fines which the Union had imposed upon them. Following the lead of American Newspaper Publishers Association, the Court held that under the proviso in Section 8(b) (1) (A) the union’s threatened withdrawal of the insurance rights of the complaining employees as a disciplinary measure was in full conformity with its right to regulate its internal affairs. Thus in this Circuit, even before the decision in National Labor Relations Board v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123, great breadth was accorded to the proviso in Section 8(b) (1) (A). In Allis-Chalmers, the opinion of the Court holds that the words “restrain or coerce” used in Section 8(b) (1), as shown by the legislative history of the Section, were not meant to encompass internal affairs of unions. In other words, internal union disciplines are not among the proscribed restraints. In reaching this conclusion, the Court was partly motivated by our national labor policy that clothes a union with powers analogous to a legislature, with union rules enacted by the majority becoming binding on the minority. The Court noted that in the case of a strong union, expulsion from membership is a far more severe penalty than a reasonable fine (at p. 183, 87 S.Ct. 2001). The Court’s examination of the legislative history of Section 8(b) (1) (A) convinced it that the statute does not prohibit union imposition of disciplinary fines and suits to collect them. In reaching its conclusion that the body of Section 8(b) (1) (A) was inapplicable to fines and collection suits aimed at union members crossing picket lines and working during lawful strikes, the Court found cogent support in the proviso to Section 8(b) (1), stating (at pp. 191-192, 87 5. Ct. at p. 2012): “At the very least it can be said that the proviso preserves the rights of unions to impose fines, as a lesser penalty than expulsion, and to impose fines which carry the explicit or implicit threat of expulsion for nonpayment. Therefore, under the proviso the rule in the UAW constitution governing fines is valid and the fines themselves and expulsion for nonpayment would not be an unfair labor practice.” The Court found it unnecessary to decide whether Section 8(b) (1) (A) “proscribes arbitrary imposition of fines, or punishment for disobedience of a fiat of a union leader” (at p. 195, 87 S.Ct. at p. 2014). In his concurring opinion, Mr. Justice White relied more on the proviso to Section 8(b) (1) (A) than on legislative history showing the inapplicability of the “restrain or coerce” language of the body of the Section. In joining in the opinion of the Court, he noted that there might be some internal union rules “which on their face are wholly invalid and unenforceable” (at p. 198, 87 S.Ct. at p. 2016). Union opposition to piecework has a history in the labor union movement dating at least back to 1908. Fines and expulsion of members for violating the present and antecedent ceilings have been the rule for 22 years. We are told that the work of a majority of these employees would be jeopardized by younger, more energetic employees, and that the rule is therefore intended to protect the well-being of all members, for if the younger employees received higher pay by increased production, the older members, unable to turn out similar piecework quantities, would be demoralized and even face lay-offs. As the Trial Examiner pointed out, ceiling rules derive from a legitimate, traditional interest in union objectives. They reflect fears of (1) employees working themselves out of jobs by overproduction; (2) the establishment of a new productive norm lowering the piecework rate and the compensation for actual production; (3) morale-threatening jealousies and (4) health problems caused by too much pressure. These factors were covered in some detail in the excerpts from various labor authorities appended to his report (145 NLRB at pp. 1138-1141). One such authority explained the purpose of ceiling limits as follows: “At their inception the purpose of limits applying to pieceworkers is not primarily to make work but partly to protect the union from being weakened by jealousies and dissensions arising from the fact that some workers receive better jobs than others, partly to prevent foremen from playing favorites in assigning jobs, and partly to prevent employers from cutting liberal piece rates or from using the high earnings of some workers as an argument against a general increase in piece rates. Such limits have in the past been common among the glass bottle blowers, the flint glass workers, the potters, the stove molders, and in 1940 are being imposed by the leather workers in Massachusetts.” Thus the rule has a rational basis, and we cannot say that it was not reasonably calculated to achieve a permissible end. Accepting the Allis-Chalmers stricture that in considering questions of union discipline a union is comparable to a legislature, our function is to determine whether these fines conform to policies formulated by the Union and not viola-tive of its constitution or of federal law. Since the end here was a legitimate union objective and the means were appropriate to enforce it, our hand should' be stayed. McCulloch v. State of Maryland, 17 U.S. (4 Wheat.) 316, 420, 4 L.Ed.2d 579. Enough has been said to show that the Union’s imposition of these fines was not arbitrary and that the rules themselves are grounded on a long-standing policy and cannot be deemed invalid or unenforceable on their face. Petitioners argue that the present rule circumvents the bargaining process, and that the Union should have to obtain a provision against incentive pay through collective bargaining with the Company. Since petitioners concede that the Union can validly impose ceilings through collective bargaining, it is no great departure to allow them to be imposed by a disciplinary rule enforcing ceilings already established by collective bargaining. If a union has validly established a policy against overproduction, it must have the concomitant power to discipline members who violate ceilings. Cf. Summers, “Legal Limitations on Union Discipline,” 64 Harv.L.Rev. 1049 (1951). Discipline has been described by the same author as the criminal law of union government. “The Law of Union Discipline: What the Courts Do in Fact,” 70 Yale L. J. 175, 178 (1960). As the intervenor pointed out, the rule enforced in Allis-Chalmers was of more serious economic consequence to the employees, for they were not permitted to work during that strike and their jobs might be forfeited. Here the employees were permitted to work even in excess of ceilings, with the additional earnings deferred under the Union’s “banking” system. Their job rights were unaffected by the rule. Petitioners assert that “banking” involves a very small amount of the Company’s production and does not overcome the Union’s limitation on production, but under Section 8(b) (1) (A) of the Act, as interpreted in Allis- Chalmers, the Union rule would survive even if there were no provision to “bank” excess earnings. Petitioners depend principally on Allen Bradley Company v. National Labor Relations Board, 286 F.2d 442 (7th Cir. 1961). There the question was whether the union was obliged to bargain in good faith over a collective bargaining contract provision proposed by the employer limiting the union’s right to discipline or fine its members. The holding was that the proposals made by the company were a proper subject for collective bargaining. The question for resolution by this Court was not whether union discipline of members violates Section 8(b) (1) (A). Furthermore, in that case, Judge Major stated (at p. 446): “Coercive action, whether by way of fine, discharge or otherwise, which deprives a member of his right to work and his employer of the benefit of his services, cannot be said to relate only to the internal affairs of the union.” In the present case, no member has been deprived of his right to work nor has the employer been deprived of the benefit of a member’s services. To the extent that a dictum in Allen Bradley disapproves union fines and collection suits aimed at members crossing the union’s picket line and continuing to work for their employer, that dictum was flatly rejected in Allis-Chalmers and is no longer viable. But as Allen Bradley still holds, the Wisconsin Motor Corporation can require the Union to bargain over a demand to give up its ceiling rule. Petitioners rely on Printz Leather Co., Inc., 94 NLRB 1312 (1951), where the union threatened to strike if the employer did not discharge an employee who the union felt was working too fast. Printz is inapplicable because there the union’s objective (unilateral imposition of production ceilings) and methods (threats to force the employer to discharge the employee) were manifestly improper. Associated Home Builders of Greater East Bay, Inc. v. National Labor Relations Board, 352 F.2d 745, 751-752 (9th Cir. 1965); National Labor Relations Board v. Brotherhood of Painters, 242 F.2d 477, 480-481 (10th Cir. 1957). They also rely on Charles S. Skura, 148 NLRB 679, 683 (1964), which held that the union violated Section 8(b) (1) (A) by fining an employee-member for filing an unfair labor practice charge against the union without first exhausting internal union remedies. The Board held that the union’s objective was at odds with policy considerations because “ ‘no private organization should be permitted to restrict any person’s access to courts of justice’ ”. No policy considerations of comparable strength militate against the Union rule here at issue. The petition for review is denied. . Local 283, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO. The parent Union is an intervenor. . Section 7 grants employees the right to refrain from concerted activities. It provides in pertinent part (29 U.S.C. § 157): “Employees shall have the right to * * * engage in * * * concerted activities * * , and shall also have the right to refrain from any or all of such activities * . Section 8(b) (1) (A) provides in pertinent part (29 U.S.C. § 158(b) (1) (A)): “ (b) It shall be an unfair labor practice for a labor organization or its agents— “(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein * * . See also Cox, “The Role of Law in Preserving Union Democracy,” 72 Harv.L.Rev. 609, 612, 622-623 (1959). . It should be noted that the amounts of the instant fines are reasonable, so that there is no need to read Section 8 (b) (1) as barring court enforcement of them. We need not consider whether excessive fines would be proscribed by that Section. . See Slichter, Union Policies and Industrial Management (1941), pp. 285-286. . Slichter, op. cit., pp. 166-167; see also pp. 296-305. . Summers, “Legal Limitations on Union Discipline,” 64 Harv.L.Rev. 1049, 1073-1074 (1951). . This question is now awaiting argument in the Supreme Court in Industrial Union v. National Labor Relations Board, No. 796, present Term. No view is expressed herein as to the correctness of the Skura rule. Question: What is the number of judges who dissented from the majority? Answer:
songer_applfrom	F	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). George S. JONAS, et al., Plaintiffs-Appellants, v. Edward J. STACK, etc., et al., Defendants-Appellees. No. 83-5390. United States Court of Appeals, Eleventh Circuit. April 19, 1985. Green, Eisenberg & Cohen, James K. Green, West Palm Beach, Fla., David M. Lipman, Miami, Fla., for plaintiff’s attorney Andrew Mavrides. Price & Bryne, Alexander Cocalis, Chief Trial Counsel, Fort Lauderdale, Fla., for defendants-appellees. Before TJOFLAT and VANCE, Circuit Judges, and ATKINS , District Judge. Honorable C. Clyde Atkins, U.S. District Judge for the Southern District of Florida, sitting by designation. VANCE, Circuit Judge: This appeal requires us to determine whether an attorney who successfully prosecutes another attorney’s application for fees under the Civil Rights Attorneys’ Fees Awards Act (Act), 42 U.S.C. § 1988, may thereupon request compensation for his own services under the same statute. Although we conclude that such representation constitutes a service which may be compensable within the meaning of the Act, we also conclude that the award may be made only to counsel who actually represented the prevailing party. Accordingly, we dismiss this appeal because it and the fee request in the lower court were brought by fee counsel rather than counsel to the prevailing parties. In April 1976, a Florida district court appointed Mr. Andrew Mavrides to represent the inmates of the Broward County Jail in their civil rights suit concerning confinement conditions. After six years of litigation, Mavrides filed a motion for $252,255.35 in attorney’s fees and costs pursuant to 42 U.S.C. § 1988. The motion was accompanied by the required supporting memorandum and a detailed breakdown of Mavrides’ costs, expenses and time. The defendants filed a motion in response, acknowledging that Mavrides was entitled to some compensation but contending that the amount should be only $29,430 in fees and $90.80 in costs. The defendants also requested that the court hold an evidentiary hearing on the fee issue. Mavrides apparently concluded that he was unable to represent himself adequately in the face of this opposition, and without consulting the court hired Mr. James Green to prosecute his fee application. As a result of Green’s representation, Mavrides was awarded $89,850 in fees and $2,936.80 in costs. Later, Green filed a § 1988 fee application, purportedly in Mavrides’ name, seeking compensation for his services in representing Mavrides. The district court denied Green’s application with the following order: THIS CAUSE having come before the Court on the motion of James K. Green for Attorney’s fees, and the Court having considered the record in this cause and being otherwise advised in the premises, ' it is ORDERED AND ADJUDGED that said motion be, and it is hereby, DENIED. Mr. Green did not represent the plaintiff class but rather represented Mr. Mavrides. Green, who now has hired a third lawyer to prosecute his claim, then filed an appeal in his own name asking us to reverse the district court’s order and to remand for appropriate proceedings to determine his reasonable fees and expenses. This court has held that a prevailing party’s counsel is entitled to reasonable compensation when he litigates his own claim for entitlement to § 1988 fees. E.g., Johnson v. University College of the University of Alabama in Birmingham, 706 F.2d 1205, 1207 (11th Cir.1983); Johnson v. Mississippi, 606 F.2d 635, 637-39 (5th Cir. 1979). Mavrides, would, therefore, be entitled to reasonable compensation for all time reasonably spent had he litigated his own fee application. He chose, however, to hire Green to press his claim after it became clear that the defendants intended to oppose his application. The threshold issue is whether such representation constitutes a compensable service within the meaning of the Act. We join a number of other courts in concluding that it does. See Shadis v. Beal, 703 F.2d 71, 72-73 (3d Cir.1983); Grendel’s Den, Inc. v. Larkin, 582 F.Supp. 1220, 1231 (D.Mass.1984); Institutionalized Juveniles v. Secretary of Pub. Welfare, 568 F.Supp. 1020, 1034 (E.D. Pa.1983), We are guided to this conclusion by an examination of the policy considerations underlying the Act. The Act’s primary function is to shift the costs of civil rights litigation from civil rights victims to civil rights violators. Dowdell v. City of Apopka, Florida, 698 F.2d 1181, 1189 (11th Cir. 1983). Its legislative history articulates two justifications for the cost-shifting mechanism. First, the mechanism affords civil rights victims effective access to the courts by making it financially feasible for them to challenge civil rights violations. Second, it provides an incentive for both citizens and members of the bar to act as “private attorneys general” to ensure effective enforcement of the civil rights laws. Id. (citing H.R.Rep. No. 1558, 94th Cong., 2d Sess. 1 (1976) and S.Rep. No. 1011, 94th Cong., 2d Sess. 1, 3 reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5910). We have recognized that the Act’s success in achieving its purposes depends on whether the cost-shifting mechanism reimburses costs and fees on a par with what the attorney would otherwise receive from fee-paying clients. Dowdell, 698 F.2d at 1190. Were we to institute an absolute ban on recovery for expenses incurred by a lawyer who finds it necessary to hire counsel to prosecute his fee application, the profitability of handling civil rights cases would be reduced, since he would then have to absorb an expense not generally associated with other types of litigation. If Green’s services were not compensable in this case, for example, Mavrides would have to pay Green’s fee out of his own pocket and his real income for handling the case would be reduced significantly. Such reduced profitability would in turn channel lawyers away from civil rights suits towards more remunerative types of litigation, thereby diminishing the enforcement of the civil rights laws and decreasing victims’ opportunity to gain redress. Id. Given this result, we find it more consistent with the goals of the Act to permit an attorney to be compensated for the costs reasonably incurred in hiring another to prosecute his fee application. In reaching this conclusion we do not mean to imply that it is appropriate in every case for an attorney to hire counsel to prosecute his § 1988 fee application. On the contrary, we envision these cases to be the exception and not the rule. The propriety of passing any litigation costs on to the defendant under § 1988 remains subject to this circuit’s requirement that the costs be justified by the necessities of the case. Dowdell, 698 F.2d at 1191. Whether fee counsel’s services are justified in a particular instance remains within the sound discretion of the trial court. We now turn our consideration to the issue of whether Green had standing to file the petition for attorney’s fees. He and his counsel are strangers to the litigation in the sense that they are neither parties nor attorneys of record for any party. The Act calls for awards to be made to a “prevailing party.” We can find nothing in the Act or its legislative history which suggests that Congress contemplated that an attorney who did not actually represent the prevailing party would be able to file a fee application on his own motion. We do not believe, therefore, that the meaning of the term “prevailing party” as it is used in the Act can be expanded to encompass an attorney who has no connection with the principal case aside from his prosecution of the fee issue. The proper procedure is for the attorney who benefits from the representation to supplement his own fee application to include the costs and expenses that he has incurred by retaining fee counsel. In this case, then, Mavrides is the proper individual to request compensation for Green’s expenses. We dismiss this appeal in light of Mr. Green’s lack of standing to file the motion for fees in the district court or to file an appeal to this court. DISMISSED. . The case had not reached final judgment at the time Mavrides filed his motion, but the court had entered numerous orders in the plaintiffs’ favor and had ruled for them on the basic issue of whether conditions in the jail met constitutional standards at the time of filing and during the pendency of the lawsuit. . The accompanying memorandum dealt with the twelve factors of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), which must be considered in all fee cases in this circuit. . The validity and amount of the award to Mavrides are not challenged. . Green also asks us to require the district court to determine an appropriate award of fees and expenses for his lawyer on this appeal. . We express no opinion as to whether Mavrides acted properly in hiring Green to represent him on the fee application. This determination is one properly left in the first instance to the trial court. . Those attorneys who feel the need to hire counsel would be well-advised to raise the issue with the court prior to taking such action. Otherwise they run the risk that the trial court may determine that the necessities of the case did not justify retaining special fee counsel. We are unwilling, however, to make prior consultation with and approval by the trial court a prerequisite to recovery. . Strict conformity to the language of the statute would require that the application be made by the attorney in the name of his client, the prevailing party. We consider this to be the procedure of choice, since it ensures that awards made under the Act compensate their intended beneficiaries. We are aware that in some instances courts have awarded attorney's fees to an individual attorney rather than to the prevailing party. See, e.g., Shadis v. Beal, 692 F.2d 924 (3rd Cir.1982); cf. Dennis v. Chang, 611 F.2d 1302, 1309 (9th Cir.1980). In these cases, however, the awarded fees compensated the attorney for services rendered directly to the prevailing party. 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_typeiss	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. INVESTORS SYNDICATE et al. v. SMITH et al. No. 8881. Circuit Court of Appeals, Ninth Circuit. July 12, 1939. Verne Dusenbery and Herbert L. Swett, both of Portland, Or., Stephen H. Boyles,, of Minneapolis, Minn., and Chas. W. Redding, of Portland, Or., for appellants. S. J. Bischoff and Ralph A. Coan, both of Portland, Or., for appellees intervening creditors and trustee. McCamant, Thompson, King & Wood, of Portland, Or., for appellee trustee. Before WILBUR, MATHEWS, and HANEY, Circuit Judges. HANEY, Circuit Judge. The controversy here presents, broadly, the question as to whether the trustee of a debtor’s estate is entitled to rents accruing on property owned by the debtor, or whether the mortgagees are entitled to such rents after default by the debtor where the mortgages cover the rents after default as well as the real property in Oregon. The apartment house properties herein were all owned and mortgaged by persons or corporations prior to the date when either the debtor, or its wholly owned subsidiary acquired them. The following is a list of the mortgaged property, with the names of the holders and the dates of the mortgages: Property Date of Mortgage Mortgagee Nordell March 10, 1926.'Syndicate Resthaven May 16, 1926 44 Chapman Court November 10, 1926 44 Duplex (1) March 7, 1927 44 Duplex (2) March 22, 1927 44 Adele Manor March 30, 1928 Banks Charmaine July 17, 1928 44 Maravilla Court September 17, 1929 Metropolitan The mortgages held by the Syndicate each contained a provision permitting the Syndicate to take possession of the mortgaged property, on default, collect the rents and apply them on the amounts due from the mortgagor, and on foreclosure, to have a receiver appointed to collect the rents, to be applied on any amounts due the mortgagee. Separate assignments were executed by the mortgagors of the Nordell, Resthaven and Chapman Court apartments, dated June 30, 1926, June 29, 1926, and November 20, 1926, respectively. By these assignments, the mortgagors assigned to the mortgagees, the rents and income from those particular apartments “to become operative upon any default” by the mortgagors. The mortgages held by the Bank each contained a provision, assigning the rents to the Bank “from and after default”, to apply the same on any amounts due it, and upon foreclosure, to have a receiver appointed to collect the rents to be applied on any amounts due the mortgagee. The mortgage held by the Metropolitan contained a provision giving the mortgagee the right to take possession of the mortgaged property, collect the rents, and apply the same upon any indebtedness due the mortgagee, and also provided that the mortgagee “shall have the right to the appointment of a receiver to collect the rents”. On August 2, 1933, the Bank instituted separate suits to foreclose its mortgages in a state court and sought appointment of a receiver to collect the rents. On August 10, 1933, the state court denied the applications, but entered an order in each suit requiring the debtor, during the pendency of. the suit to render a verified monthly account and report “showing all rentals and other income received from said apartment house and all disbursements made on account thereof during said accounting period” and to pay into court monthly the net income. On January 29, 1934, in the court below, an involuntary petition in bankruptcy was filed against 'the debtor, and on January 31, 1934, the lower court stayed all suits then pending against the debtor, until entry of an order of adjudication. On motion of the debtor, filed April 25, 1934, the court below, on that day, entered an order permitting the accounting and payment required by the state court order, and permitting prosecution of the foreclosure suits, with leave to the debtor to renew its application for a stay thereof. The debtor paid the net rentals received into the registry of the state court until the month of June, 1934, when it filed a petition in the bankruptcy court seeking reorganization under § 77B of the Bankruptcy Act, 11 U.S.C.A. § 207, which was superseded on July 11, 1934, by a supplemental answer to the same effect, to the involuntary petition filed. The court below, on July 11, 1934, made an order that the supplemental answer was filed in good faith, and referred the proceedings to a special master. In a hearing before the latter, appellants’ attorneys appeared and announced that they intended “to appear specially” for appellants, objected to the continuance of the debtor in possession of the properties, and to the plan of reorganization. Upon recommendations of the special master, the bankruptcy court on August 13, 1934, appointed a trustee of the debtor’s estate. The trustee named did not qualify, and on September 10, 1934, a new trustee was appointed. The trustee was ordered to “keep separate accounts of all moneys coming into his possession from each of the several properties of the debtor or its said affiliate, and that the trustee’s accounts shall be kept so that all income and revenues received and expense incurred in the operation of each of such properties can at all times be ascertained and segregated.” On October 22, 1934, the Syndicate filed a petition praying for leave to institute suits to foreclose the mortgages held by it, and for an order directing the trustee to pay it the net rentals, received from the properties upon which it held mortgages, as well as those which would be received. On October 24, 1934, Metropolitan filed a similar petition with respect to the mortgage held by it. On February 5, 1935, the Bank filed a petition for an order directing payment of the net rentals, received and to be received, to the state court. These petitions were referred to a special master who rendered a report on April 23, 1935, recommending that the petitions be granted. It is not clear, in the record, what action the court took with respect to this report.. On May 21, 1935, Metropolitan filed a motion for leave to institute foreclosure proceedings. The Syndicate filed a similar motion on June 3, 1935. The Bank filed a motion on June 5, 1935, for leave to proceed with its foreclosure suits. The first two motions were granted by orders dated June 13, 1935, and June 11, 1935, respectively. The record does not disclose what action, if any, was taken on the Bank’s motion. Since the permission it sought had already been granted, action on the motion was probably deemed unnecessary. On October 9, 1935, the bankruptcy court entered an order that reorganization could not be effected, and appointed a trustee to liquidate the debtor’s estate, and ordered the trustee to “keep accounts of all moneys coming into his possession from each of the several properties of the debtors, and that the Trustee’s accounts shall be so kept that all income and revenues received and expenses incurred in the operation of all of said properties can at all times be ascertained and segregated”. On November 20, 1935, the bankruptcy court referred to a special master the hearing and determination of the claims to rent of appellants. On that date all the foreclosure suits above mentioned were still pending. On November 14, 1936, the special master submitted his report, from which it appears that most of the indebtedness against and value of the apartments is: Property Value Indebtedness Nordell $27,500.00 $24,807.05 Kesthaven 27,500.00 27,102.94 Chapman Court 47,000.00 50,558.00 Duplex (1) 5,000.00 5,120.78 Duplex (2) 5,000.00 5,123.44 Adele Manor no finding 48,500,00 5 Charmaine no finding 47,000.00 Maravilla Court no finding 28,153.29 With respect to the Nordell Apartment, the special master found: “During recent years, maintenance of the building has been neglected and the interior walls are in a bad state of repair”. Regarding the Rest-haven Apartment he found: “Maintenance of the building has been neglected and it is in a bad state of repair”. Regarding the Chapman Court Apartment he found: “Composition shingles on the roof are curled and not water tight, and the building generally is in a bad state of repair”. Regarding Duplex (1) he found: “For want of repainting, the exterior walls have worn down to the wood siding, and the building is in need of repairs”; and regarding Duplex (2) he found: “Maintenance of this building, and particularly the painting of it, has been neglected”. The condition of the remaining apartments was not mentioned by the special master, and he did not find whether or not waste had been committed. The parties have stipulated here there was uncontradicted evidence received by the special master that “no repairs were made except those necessary to make the rooms habitable”. The special master considered 1 Or. Code, 1930, § 5-112, which is: “A mortgage of real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale according to law; provided, that nothing in this act contained shall be construed as any limitation upon the right of the owner of real property to mortgage or pledge the rents and profits thereof, nor as prohibiting the mortgagee or pledgee of such rents and profits, or any trustee under a mortgage or trust deed from entering into possession of any real property, other than farm lands or the homestead of the mortgagor or his successor in interest, for the purpose of operating the same and collecting the rents and profits thereof for application in accordance with the provisions of the mortgage or trust deed or other instrument creating the lien, nor as any limitation upon the power of a court of equity to appoint a receiver to take charge of such real property and collect such rents and profits thereof.” In the foregoing statute the proviso took effect May 28, 1927. Laws of Ore.1927, Ch. 310, p. 392. The preceding part of the statute has been in effect since 1862. (Deady, § 323; Hill, § 326; Bellinger & Cotton, § 336; Lord, § 335; Olson, § 335.) The special master' concluded: (1) That although prior to the 1927 amendment, any agreement pledging the rents from the property mortgaged, as security for the mortgage debt, was void as against public policy, at the same time, it was the law that a receiver could be appointed to collect the rents, and if the mortgagee acquired possession of the mortgaged property, peaceably, he had the right to collect the rents; that the 1927 amendment did not change the law, but merely made clear what the intent was in 1862, but if it did, it was applicable to all mortgages anyway ; and that therefore the mortgages were all on the same footing; (2) that “the order of this court dated September 10, 1934, directing that rentals and income from the various properties should be kept segregated, the obedience of the respective mortgagees to have those rentals kept separate for their benefit, operated as a sufficient sequestration of those rentals to preserve the rights of the mortgagees in them”; (3) that the same result would be reached by the reasoning that the trustee was required to pay the taxes on the properties as a part of the operating expenses, and that it was his “surmise” that the taxes would be as much as the rentals collected. He, therefore, recommended that the rentals in the hands of the trustee should be held by the trustee for the benefit of appellants. Exceptions to that report were filed, and the bankruptcy court, upon hearing, held: “ * * * the proviso did not change the body of the statute which denies to a mortgagee any remedy for obtaining possession of the mortgaged premises. The mortgagor may still refuse possession, retain the rents and profits, and he will not be liable therefor * * * The law is unchanged that the mortgagor still has the right of possession, although a pledge or mortgage of the rents and profits may be enforced strictly in accordance with the statute upon equitable premises if full protection be given to intervening rights * * * “These stipulations, therefore, under the law of Oregon, amount only to an equitable assignment of the rents and profits and as such may be applied between the original parties and their respective assignees. No right therein or lien thereon exists until the payments become due and are reduced to possession either by the mortgagee or the receiver of a court * * * “Clearly enough, then, the mortgagees did not have any right to the rents, issues or profits under the Oregon law because they did not come into actual possession of the real property nor did they follow the specialized remedy set out in the amendment of 1927 to have the rents, issues and profits set aside for them.” The court also held that the Bank had no greater rights than the other mortgagees because the state court did not take possession of the property through a receiver, but authorized the debtor to continue in possession. With respect to its prior order requiring separate accounts to be kept, the court held that “it did not express any intention of giving any mortgagee an interest” in the rentals and that what the order required “was only sound bookkeeping”. Finally, with respect to the question as to whether the rents should be sequestered, the court held : “ * * * The bankruptcy court should not be required to sequester rents in the hands of its trustee for the benefit of adverse parties suing the trustee in alien tribunals. The equitable assignments were inchoate * * * The courts in which they were foreclosed did not give the remedy prescribed by the statute and appoint a receiver * * * The mortgagees had no right otherwise to collect the rents and profits. Therefore, this court could not sequester the rents and profits for their benefit.” Accordingly, the court on June 8, 1938, made an order that all rents from real property subject to mortgages collected prior to sale on foreclosure, be held and disbursed by the trustee in payment of expenses of administration and general claims. This order is challenged. At all times here pertinent,® § 24 of the Bankruptcy Act, 44 Stat. 664, 11 U.S. C.A. § 47, provided as follows: “(a) The * * * circuit courts of appeal * * * are hereby invested with appellate jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases. “(b) The several circuit courts of appeal * * * shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law * * * the proceedings of the several inferior courts of bankruptcy within their jurisdiction. Such power shall be exercised by appeal and in the form and manner of an appeal * * * to be allowed in the discretion of the appellate court. “(c) All appeals under this section shall be taken within thirty days after the judgment, or order, or other matter complained of, has been rendered or entered.” Being uncertain as to whether the order here complained of was appealable under § 24(a) or § 24(b), appellants applied both to the District Court and to this court for allowance of the appeal and obtained such allowance from both courts. The application to the District Court was filed on June 30, 1938. The District Court allowed the appeal on July 1, 1938. The application to this court was filed on July 2, 1938. This court allowed the appeal on July 19, 1938. Thus, it is seen, the appeal was allowed by the District Court, but not by this court, within the 30-day period specified in § 24(c). Because the appeal was not allowed by this court within the 30-day period, appellees have moved to dismiss it. The motion is not well founded. The order complained of was made, not in the ordinary course of bankruptcy proceedings, but in a controversy arising in such proceedings. Compare Robert Moody & Son v. Century Savings Bank, 239 U.S. 374, 377, 34 S.Ct. 602, 58 L.Ed. 816. Hence, it was appealable under § 24(a), and the District Court was the proper court to allow the appeal. That court’s allowance of the appeal was timely and sufficient. Allowance by this court was unnecessary. Even if, as contended by appellees, the order complained of was appealable only under § 24(b), still the appeal was in time. Application for its allowance having been filed in this court within the 30-day period, the fact that this court’s order allowing the appeal was not made until after the 30 days had expired is immaterial. The appeal was “taken”, within the meaning of § 24(c), when the application was filed. In re Foster Construction Corp., 2 Cir., 49 F.2d 213, 214; In re Hoffman, 7 Cir., 82 F.2d 58, 59; Price v. Spokane Silver & Lead Co., 8 Cir., 97 F.2d 237, 239. A further ground of appellees’ motion is that appellants have joined in a single appeal, instead of taking three appeals, as appellees contend they should have done. We think appellees’ contention is without merit. The appeal is not from three orders, but from one only. Each appellant has, it is true, a separate interest, but all have a common interest in reversing, if they can, the order appealed from. The questions presented are common to them all. It was proper, therefore, for them to join in a single appeal. Crim v. Woodford, 4 Cir., 136 F. 34, 36. The motion should be denied. Appellees’ contention that the assignments of error are too vague to raise any question for review is rejected. We think the assignments are sufficient. Appellants contend that they had a right to the rents and profits after default by the debtor, and that they also had the right to obtain them by taking action'in the bankruptcy proceedings. Rights of Mortgagees Before 1927 At common law a mortgage was regarded as a conditional conveyance, by which the legal title to the estate vested in the mortgagee, who, upon execution of the mortgage, was entitled to the possession and enjoyment of the 'property, unless agreed to the contrary. See 19 R.C.L. §§ 86, 89. The code provision made vast changes, however. In Oregon a mortgage on real estate conveys no legal or equitable title or interest in the property covered by the mortgage. It merely creates a lien, which constitutes security for the debt, and grants to the mortgagee the right, upon default by the mortgagor, to have the property sold to satisfy the debt secured. Onfy upon foreclosure and sale, can the mortgagor be divested of his title and possession. In Teal v. Walker, 111 U.S. 242, 252, 4 S.Ct. 420, 28 L.Ed. 415, it was held that in Oregon a mortgagee is not entitled to the rents and profits of the mortgaged property, even after default, unless he obtains possession of the property, and that a stipulation in á mortgage providing that the mortgagor would surrender possession of the mortgaged property to the mortgagee upon default was void as against the public policy of Oregon as expressed in the statute above quoted. That case, by analogy, compels a like holding with respect to a stipulation regarding the fruits of possession, i. e., that upon default, the rents and profits would be applied on the debt secured by the mortgage. Of course, a mortgagor may voluntarily relinquish possession of the mortgaged property to the mortgagee, and if he does, the mortgagee is entitled to retain possession as against the mortgagor, and those claiming under him, until the debt is paid, and “may bring an action of trespass as though the title were vested in him unconditionally”. Johnson v. Pacific Land, Co., 84 Or. 356, 358, 164 P. 564, 565. A mortgagee in possession must account for, and apply, the rents and profits on the debt secured; is entitled to reimbursement for keeping the property in repair, but “cannot collect pay for services rendered for himself” in attending the mortgaged property, or obtain “reimbursement for permanent improvements which he installs.” With respect to appointment of a receiver in a mortgage foreclosure suit, in Couper v. Shirley, 9 Cir., 75 F. 168, 170, it was held that a mortgagor and mortgagee have no power to bind the courts by a stipulation for the appointment of a receiver to collect and apply on the debt secured by the mortgage, the rents and profits, and that a court had no authority to appoint a receiver pursuant to such a stipulation “independent of any equitable condition which might be shown to exist”. The Supreme Court of Oregon has never passed on that precise point. Although it was intimated in Caro v. Wollenberg, 68 Or. 420, 428, 136 P. 866, that a contrary rule existed, in State ex rel. Nayberger v. McDonald et al., 128 Or. 684, 695, 274 P. 1104, the case of Couper v. Shirley, supra, was cited. The general law regarding appointment of a receiver is not at all clear. 2 Ore. Code Ann., 1930, § 32-702 provides: “A receiver may be appointed by the court in the following cases: “1. Provisionally, before judgment or decree, on the application of either party, when his right to the property, which is the subject of the action, suit or proceeding, and which is in the possession of an adverse party, is probable, and the property or its rents or profits are in danger of being lost or materially injured or impaired. * * * ” It is extremely doubtful that such provision authorized appointment of a receiver on behalf of a mortgagee pending foreclosure, because it required three things; (1) A probable “right to the property”; (2) possession of such property m the adverse party; and (3) danger that the property or its rents and profits would be lost or materially injured or impaired. As seen, the mortgagee had no right to the mortgaged property, but only a right to have it sold. See also: State ex rel. Nayberger v. McDonald et al., 128 Or. 684, 696, 274 P. 1104 as explained in McKinney v. Nayberger et al., 138 Or. 203, 219, 295 P. 474, 2 P.2d 1111, 6 P.2d 228, 229. However, Brayton & Lawbaugh v. Monarch Lumber Co., 87 Or. 365, 389, 169 P. 528, 536, 170 P. 717, indicates that the court had power to appoint receivers in cases other than those prescribed in the statute mentioned. It is there said: “ * * * it may be conceded that the general rule is that a mortgagee rightfully in possession of mortgaged property cannot be ousted by the appointment of a receiver at the instance of the mortgagor or one claiming under the mortgagor without first paying or 'tendering the amount due on the mortgage debt; but this rule like • most general rules has its exceptions. If the mortgagee is committing waste and is insolvent, equitable relief may be necessary. * * * ” If a mortgagee, rightfully in possession, may not be ousted by the appointment of a receiver, except in certain cases, then it would seem as logical to say that a mortgagor, rightfully in possession, may not be ousted, except in the same cases. We think this is an expression that a receiver might be appointed in either case. See also: Kountze v. Omaha Hotel Co., 107 U.S. 378, 395, 2 S.Ct. 911, 27 L.Ed. 609; Grant v. Phoenix Mut. Life Ins. Co., 121 U.S. 105; 117, 7 S.Ct. 841, 30 L.Ed. 905; Gordon v. Washington, 295 U.S. 30, 37, 55 S.Ct. 584, 79 L.Ed. 1282; annotations: 26 A.L.R. 38, 41; 36 A.L.R. 609; 55 A.L.R. 533; 87 A.L.R. 1008; 111 A.L.R. 730. The courts are not in harmony as to the sufficiency of the grounds for the appointment of a receiver. One fule seems to be that a receiver will be appointed where the security is inadequate. 26 A.L.R. 49. Another is that there must be not only inadequacy of the security but also insolvency of the mortgagor. 26 A.L.R. 50. Still another is that there must be not only inadequacy of the security and insolvency of the mortgagor but also waste or danger of loss or destruction of the property. 26 A.L.R. 55. The latter rule is the one which we think to be the rule in Oregon as a necessary conclusion of the language in Brayton & Lawbaugh v. Monarch Lumber Co., supra. See, also, Kountze v. Omaha Hotel Co., supra, 107 U.S. at page 395, 2 S.Ct. 911, 27 L.Ed. 609; Grant v. Phoenix Mut. Life Ins. Co., 121 U.S. 105, 117, 7 S.Ct. 841, 30 L.Ed. 905. From the foregoing it can be seen that a mortgagee did not acquire the right of possession of the mortgaged premises, or the right to the rents and profits therefrom, even though stipulations therefor upon default were contained in the mortgage; and that a receiver could not lawfully be appointed in a mortgage foreclosure suit unless the equitable grounds mentioned above existed, even though the mortgagor and mortgagee stipulated in the mortgage, that a receiver might be appointed upon default. •Effect of the 1927 Amendment What has been said refers to the law under the statute as it existed before amendment. Such statute will be hereafter called the code provision, and the part added in 1927 will be called the amendment. The amendment provided that the code provision should not “be construed as any limitation upon the right of the owner of real property to mortgage or pledge the rents and profits thereof”. It does not say that if such a mortgage were made, the mortgagee could enforce the same, or specify how it could be enforced. Should those rights be implied? It is clear that such provision permitted the mortgagee to obtain a mortgage or pledge of the rents and profits of the mortgaged property (excepting, possibly, farm lands and homesteads — a question we do not decide). The illegality of such a provision being removed, what is the effect of a stipulation in a mortgage pledging or assigning the rents and profits? It is generally held that such a stipulation does not of itself transfer the rents and profits, but merely creates a lien which becomes effective only when the mortgagee either obtains possession, or has a receiver appointed to collect the rents. American Bridge Co. v. Heidelbach, 94 U.S. 798, 800, 24 L.Ed. 144; Teal v. Walker, supra, 111 U.S. at page 248, 4 S.Ct. 420, 28 L.Ed. 415; Freedman’s Saving & Trust Co. v. Shepherd, 127 U.S. 494, 502, 8 S.Ct. 1250, 32 L.Ed. 163; 41 C.J. 628, § 605. We are required to apply the law of Oregon. Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; Ruhlin v. New York Life Ins. Co., 304 U.S. 202, 205, 58 S.Ct. 860, 82 L.Ed. 1290. In the absence of a decision by the Supreme Court of Oregon settling the meaning of the amendment, we think the law in Oregon is as stated above. Since the mortgage or pledge of the rents and profits did not enable the mortgagee to obtain them, the second and third provisions of the amendment sought to enable the mortgagee to obtain them. The second provision of the amendment provided that the code provision should not be construed “as prohibiting the mortgagee * * * from entering.into possession of any real property* other than farm lands or the homestead of the mortgagor * * * for the purpose of operating the same and collecting the rents and profits thereof for application in accordance with the provisions of the mortgage * * Thus, with respect to real property other than farm lands and homesteads, the mortgagee is no longer prohibited from taking possession of the mortgaged property. If a mortgagor stipulated in the mortgage that the mortgagee might have possession of the mortgaged property upon default, the amendment permitted the agreement to be carried into effect, regardless of the code provision. It was apparently implied that a mortgagee might obtain possession of the property as against the occupant by the ordinary possessory remedy conferred on one having the right to possession. In the event that upon default a mortgagee elected to foreclose without obtaining possession, then the third provision of the amendment created an alternative remedy to obtain the rents and profits, by appointment of a receiver, which accomplished the same purpose. Apparently, the only requirement for appointment of a receiver, is that “such” rents and profits must be mortgaged or pledged. If they are not, then the only power to appoint a receiver is that existing on the equitable grounds mentioned above. We hold that with respect to real property other than farm lands and homesteads, the code provision was so modified by the amendment that the owner of real property other than farm lands and homesteads may lawfully mortgage or pledge the rents and profits of his real property; that a mortgagor of real property other than farm lands and homesteads may lawfully stipulate in the mortgage that the mortgagee is entitled to possession upon default by the mortgagor, and if he does, the mortgagee may recover possession by an appropriate remedy; that if a mortgagor mortgages or pledges the rents and profits of real property, other than farm lands and homesteads, a court may appoint a receiver to collect them, by virtue of that fact alone, in a foreclosure suit; and in all other respects the code provision is still effective. ' Application of the 1927 Amendment Since the mortgages to the Bank and the Metropolitan were all executed after the effective date of the amendment, it is of course applicable to them. The mortgages executed to the Syndicate were all executed prior to the effective date of the amendment. It is contended that the amendment is applicable to the Syndicate mortgages, because it merely clarified the code provision. We think the amendment deliberately changed the law. It is further contended that the amendment related only to remedy or procedure, but we think it dealt with substantive rights. The Syndicate, by the mortgages, obtained no rights to the possession of the mortgaged property, or to the rents and profits therefrom, because the stipulations in that respect were invalid when made. The statute indicates no intention of validating such stipulations previously made. Giving the amendment prospective effect, as we should (Libby v. Southern Pacific Co., 109 Or. 449, 452, 219 P. 604, 220 P. 1017), it is applicable only to mortgages subsequently executed. The provision regarding appointment of a receiver is effective only if there is a mortgage or pledge of the rents and profits, which are absent in the Syndicate mortgages because the stipulations intended for that purpose were invalid. Effect of the Bankruptcy Proceedings Regarding the conflict between state and federal courts, the rule has been stated to be: “when a court of competent jurisdiction takes possession of property through its officers, this withdraws the property from the jurisdiction of all other courts which, though of concurrent jurisdiction, may not disturb that possession; and that the court originally acquiring jurisdiction is competent to hear and determine all questions respecting title, possession, and control of the property”. Isaacs v. Hobbs Tie & Timber Co., 282 U.S. 734, 737, 51 S.Ct. 270, 272, 75 L.Ed. 645. Accordingly, where a mortgagee sues in the state court to foreclose its mortgage, and that court takes possession of the mortgaged property, the subsequent bankruptcy does not deprive the state court of jurisdiction to proceed. Isaacs v. Hobbs Tie & Timber Co., supra. On the other hand, if bankruptcy proceedings are commenced prior to the foreclosure suit, then the bankruptcy court has custody of the property, through the trustee who has actual or constructive possession (Isaacs v. Hobbs Tie & Timber Co., supra, 737), and the mortgagee may not proceed to foreclosure in a state court without consent of the bankruptcy court. Straton v. New, 283 U.S. 318, 321, 51 S.Ct. 465, 75 L.Ed. 1060; Ex parte Baldwin, 291 U.S. 610, 615, 54 S.Ct. 551, 78 L.Ed. 1020. As can be seen from the above, the intervention of the bankruptcy removed the right of the mortgagees to obtain possession of the mortgaged property, or to foreclose and obtain the appointment of a receiver whereby they could obtain the rents, without the consent of the bankruptcy court. In the event that the bankruptcy court did not consent to foreclosure, the question immediately arises as to whether the mortgagees are deprived of any remedy to obtain the rents. While there is ground for holding in the affirmative, in that in general, one purpose of the bankruptcy act is to abolish or restrict remedies, this court has held that where the bankruptcy court grants a petition of the mortgagee to sequester rents and profits, the mortgagee, is entitled to such rents from the date of the filing of the petition, which necessarily implies that the bankruptcy court has power to make such an order. American Trust Co. v. England, 9 Cir., 84 F.2d 352. Compare: In re Hotel St. James Co.,. 9 Cir., 65 F.2d 82; Duparquet Huot & Moneuse Co. v. Evans, 297 U.S. 216, 222, 56 S.Ct.. 412, 80 L.Ed. 591. The present controversy, however, does not concern the power to do so, but the propriety of its exercise. Upon what circumstances should the bankruptcy court order a sequestration of the rents? Without attempting to mark the limits, we say that such power ought not to be exercised in cases where the mortgagee would have greater rights in bankruptcy than he would have, had bankruptcy not intervened. Whether there are or should be other limits on the exercise of the power, it is unnecessary here to determine because appellees assume that if the mortgagees have a right to the rents and profits the bankruptcy court should enforce such right. Insofar as the Syndicate is concerned, its application to sequester the rents and profits was properly denied, otherwise it would be placed in a better position by the intervening bankruptcy, than it was before. With respect to the Metropolitan’s mortgage, it is contended that its petition was properly denied because of 11 U.S.C.A. § 107(a) which provides: “Claims which for want of recbrd or for other reasons would not have been valid liens as against the claims of the creditors of the bankrupt shall not be liens against his estate.” We think that such statute does not prevent sequestration of the rents, because 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_origin	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. George D. GLAUNER and George D. Brown, Appellants, v. Charles MALONE and Norma Malone, and Donald Maxwell, Intervenor. No. 14131. United States Court of Appeals Third Circuit. Argued at Christiansted Jan. 30, 1963. Decided April 3, 1963. Francis J. Carey, Jr., Philadelphia, Pa., for appellant. William W. Bailey, St. Thomas, Virgin Islands, for intervenor appellee, Donald Maxwell. William H. D. Cox, St. Thomas, Virgin Islands, for appellees, Malone. Before MARIS, WOODBURY and HASTIE, Circuit Judges. HASTIE, Circuit Judge. This is an appeal by the original plaintiffs from a judgment in favor of an intervening claimant in an action for specific performance of a contract to sell real property. Charles and Norma Malone, the defendants, are the owners of the parcel in question which adjoins their home site. Both the appellants and the intervenor, Maxwell, claim to have valid contracts with the Malones for the purchase of the land. The Malones recognize that they are obligated to sell to someone and that the essential terms of the alleged contracts with appellants and with the intervenor are the same. We have to decide which of the rival claimants is entitled to buy the property. The district court’s findings of fact, supplemented by undisputed testimony and exhibits, disclose the following course of events. On May 19,1961, the Malones signed and sent to the plaintiffs a proposed contract to sell Parcel 21B, Estate Mandahl, for a consideration upon which the parties had already agreed in informal negotiation. On May 31, 1961, the plaintiffs signed the agreement but did not inform the Malones of this action pending further discussion of the purchasers’ right to accelerate mortgage payments and their desire to provide in advance for the future release of part of the land from the mortgage after payment of a certain amount of the purchase price. On June 12, 1961, the parties and their attorneys met and reached an agreement on these points, which were to be covered by a separate letter agreement without altering the contract of sale. However, at that meeting the plaintiffs’ attorney stated that he had learned of a recorded agreement between the Malones and a former owner of land adjoining the Malones’ holdings which, among other things, purported to give the neighboring landowner, E. Nicholas Sargent, and his heirs and assigns, an option in the form of a first refusal for the purchase of land which included Parcel 21B. After discussion of this discovery the attorneys parted with a view to further investigating the matter. The court below found that during the discussion on June 12th, counsel for the Malones expressed the thought that “any further negotiations” between the Malones and the plaintiffs “would have to be discontinued” pending determination of their situation under the Sargent agreement. On this basis the court concluded as a matter of law that “the offer [to sell] was withdrawn * * * or at least was suspended” pending determination of third-party rights. We think that what was said and done at the June 12th meeting was neither intended nor understood by those who were present to mean that the offer to sell had been revoked. Except for clearing up the question of the option, no further negotiations between the Malones and the plaintiffs were needed. The basic contract had already been signed by the Malones and delivered to the plaintiffs, and the two outstanding matters which had been carried over to the meeting had been resolved, with the parties agreeing to incorporate their understanding in a letter of amendment to the contract of sale. At no time before the bringing of the present suit did the Malones request that the contract be returned or did their counsel offer to return a $2,400 check which had been deposited with him as earnest. Both at the June 12th meeting and in subsequent communications the Malones or their agents expressed continuing willingness to sell to the plaintiffs on the terms which had been mutually agreed. The lawyer who represented the plaintiffs at the June 12th meeting testified, under cross-examination by counsel for the Malones, that he remembered that “the essence of what you said and what I said was that we could not proceed to close until we have resolved the situation with respect to this option and right of way”. We recognize that “to close”, in the context of real property transactions, means to make the formal transfer of title. Finally, the Malones’ attorney took the stand and testified that during the course of the discussion, he said to one of the plaintiffs, “ ‘Well, Doctor Glauner, you certainly don’t want to buy yourself a lawsuit, and here you’ve got a situation which can result in a lawsuit.’ Well, he said he didn’t, and it was agreed that I would try to straighten it out.” There was no evidence of anything said or done which would have led the plaintiffs to believe that the deal was off; on the contrary, the evidence concerning the June 12th meeting clearly indicates that if the plaintiffs wanted to go ahead in spite of whatever litigation they might incur, the Malones’ offer was still outstanding for them to accept. Thereafter, the Malones’ attorney communicated with the intervenor, to whom Dr. Sargent’s rights under his agreement had been assigned, and learned that the intervenor would like to buy the Malone property on the terms already offered to plaintiffs. Concerned by the course the matter was taking, the plaintiffs demanded that the Malones consummate the proposed sale to them and on August 21, 1961, recorded the contract of sale which they had signed on May 31st. Finally, on September 5th, the Malones and the intervenor, with notice of the plaintiffs’ recorded contract of sale, signed a contract of sale for the same property on essentially the same terms. To resolve this controversy we must examine the terms and the history of the Sargent agreement. Parcel 21B and other land of the Malones lies between Parcel 22, formerly owned by E. Nicholas Sargent, and a public road. An agreement between these adjoining landowners, executed in April 1957 and amended in June 1957, provided that “in consideration of the promise of Dr. E. Nicholas Sargent, his heirs and assigns to cut, bulldose, and construct a dirt road, at their own expense, from the public road into Plot No. 21 of Estate Mandahl * * * to provide access to Parcel No. 22 of Estate Mandahl”, the Malones undertook to grant Dr. Sargent a perpetual right of way over the new road he was to construct. In addition the right of the owners of Parcel 21 to enjoy the use of the new road was expressly reserved. It was further provided that “for the same consideration, the undersigned, Charles Malone, hereby give [sic] and grant [sic] unto Dr. E. Nicholas Sargent, his heirs and assigns, an Option to Buy the said Plot No. 21 of Estate Mandahl for such price as shall be offered to me by any bona fide purchaser”. This agreement is clear and explicit in making the construction of a road for the benefit of both parcels of land the performance required in exchange for a first refusal of the Malone land. Four years elapsed between the execution of this agreement in mid-1957 and the emergence of the present controversy in 1961. In the meantime, Dr. Sargent had sold his land without building the proposed access road. His successors took no steps to that end. In this suit the intervenor does not contend that either he or any predecessor in title has ever undertaken to perform the obligation of Sargent under the 1957 agreement. Certainly such non-action over a four year period is an unreasonable delay in the performance of the promise to build a new road. Here we think is the plainest failure of consideration. The intervenor is asserting a right to the performance of the Malones’ promise to Sargent despite the total failure of either Sargent or his successors to perform or tender performance of the reciprocal promise which was the sole consideration for the Malones’ undertaking. It is clear that under such circumstances the Malones’ promise is unenforceable. Restatement, Contracts, § 274; see 6 Corbin, Contracts, 1962, §§ 1252, 1253, 1255. They were free to sell to any prospective purchaser without according Dr. Sargent or his successor a first refusal. In these circumstances the contract of sale executed by the plaintiffs and the Malones, as recorded on August 21st, was fully effective. The intervenor could acquire nothing under his subsequent contract, executed on September 5th with notice of the plaintiffs’ prior claim and of the Malones’ obligation to honor it. The judgment will be reversed and the cause remanded for the entry of an appropriate judgment for the plaintiffs. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_circuit	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. FIDELITY NAT. BANK & TRUST CO. OF KANSAS CITY, MO., v. COMMISSIONER OF INTERNAL REVENUE. No. 8621. Circuit Court of Appeals, Eighth Circuit. March 5, 1930. Justin D. Bowersock, of Kansas City, Mo., for appellant. John Vaughan Groner, Sp. Asst, to Atty. Gen. (G. A. Youngquist, Asst. Atty. Gen., Sewall Key, Sp. Asst, to Atty. Gen., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and P. S. Crewe, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for appellee. Before STONE and BOOTH, Circuit Judges, and REEVES, District Judge. BOOTH, Circuit Judge. This is a petition to review a decision and order of the United States Board of Tax Appeals, which redetermined a deficiency in the ineome and profits tax for the year 1919 of the petitioner, the Fidelity National Bank & Trust Company, in the sum of $8,681. The facts found by the Board of Tax Appeals are substantially as follows: Prior to May 1, 1919, the Fidelity Trust Company was a corporation under state law. On that date'it became a national bank under the name Fidelity National Bank & Trust Company. In the latter part of 1918, and the early part of 1919, negotiations were carried on looking to a meiger of the Fidelity Trust Company (later the Fidelity National Bank & Trust Company), with the National City Bank. The consolidation was effected May 31, 1919. Prior to the consolidation it was agreed by the two banks that excess assets and certain undesirable assets of each should be disposed of, and not become assets of the consolidated bank. Among such assets owned by the Fidelity Trust Company were certain securities of the Salina Northern Railway which had cost it $243,000. These securities were accordingly on February 15, 1919, transferred in consideration of $95,000 cash to the Concordia Loan & Trust Company, whose stock had been owned by the Fidelity Trust Company for many years, and continued to’ be owned by its successor, the Fidelity National Bank & Trust Company, until May 31, 1919. It was also thought that the Concordia Company stock was an undesirable asset under the consolidation agreement; and on May 31, 1919, the Fidelity National Bank & Trust Company transferred the stock of the Concordia Company to three trustees to hold in trust for the stockholders of record of the Fidelity Trust Company on May 29, 1919. After the consolidation of the two banks the consolidated bank had no interest in the stock of the Concordia Company. During the first five months of 1919 the Concordia Company was affiliated with the Fidelity Trust Company and its successor, the Fidelity National Bank & Trust Company; but during the remaining seven months the Concordia Company was not a member of the affiliated group. Companies which were subsidiary to or affiliated with the Fidelity National Bank & Trust Company during the whole or part of 1919 were: The Fidelity Safe Deposit Company, all of the stock of which was owned by the Fidelity National Bank & Trust Company; the Fidelity Savings Trust Company, all the stock in which was owned pro rata by the stockholders of the Fidelity National Bank & Trust Company; the Land Credit Trust Company, all the stock in which was owned by the Fidelity Savings Trust Company; and the Concordia Loan & Trust Company. Tax returns for the year 1919 were made by these five companies as follows: A consolidated return by the Fidelity National Bank & Trust Company and the Fidelity Safe Deposit Company; a consolidated return by the Fidelity Savings Trust Company and the Land Credit Trust Company; a return by the Concordia Loan & Trust Company for itself alone. The Fidelity National Bank & Trust Company in its consolidated return deducted from gross income the difference between the cost of the Salina Northern securities and the price received from the Concordia Company, as a loss sustained during the year. The Commissioner of Internal Revenue consolidated, for the first' five months of 1919, the returns thus made of all the five companies; and consolidated for the remaining seven months the returns of all of the companies excepting the Concordia Company. The Commissioner also disallowed the loss claimed, on the ground that at the time of the transfer of the Salina securities to the Concordia Company that company and the Fidelity Trust Company were affiliated, and therefore that the transfer was an intercompany transaction. The Board of Tax Appeals affirmed the determination of the Commissioner. The present petition for review followed. Two main questions are presented: Was a consolidated return properly required which should include the Concordia Company for the first five months of the year 1919? Was the alleged loss properly disallowed as a deduction, on the ground that it represented an intercompany transaction? The provisions of the Revenue Act of 1918 (chapter 18, 40 Stat. 1057) are involved. Section 234(a) reads, so far as here material, as follows: “See. 234. (a) That in computing' the net income of a corporation subject to the tax imposed by section 230 there shall be allowed as deductions: * * * “(4) Losses sustained during the taxable year and not compensated for by insurance or otherwise.” Section 240 reads in part as follows: “See. 240. (a) That corporations which are affiliated within the meaning of this section shall, under regulations to be prescribed by the Commissioner with the approval of the Secretary, make a consolidated return of net income and invested capital for the purposes of this title and Title III, and the taxes thereunder shall be computed and determined upon the basis of such return: * * * “(b) For the purpose of this section two or more domestic corporations shall be deemed to be affiliated (1) if one corporation owns directly or controls through closely affiliated interests or by a nominee or nominees substantially all the stock of the other or others, or '(2) if substantially all the stock of two or more corporations is owned or controlled by the same interests.” In connection with the Revenue Act of 1918 the Treasury Department issued Regulations 45, pursuant to authority contained in section 240(a). Article 631 of those Regulations reads as follows: “Art. 631. Affiliated Corporations. — The provision of the statute requiring affiliated corporations to file consolidated returns is based upon the principle of levying the tax according to the true net income and invested capital of a single business enterprise, even though the business is operated through more than one corporation. Where one corporation owns the capital stock of’ another corporation or other corporations, or where the stock of two or more corporations is owned by the same interests, a situation results which is closely analogous to that of a business maintaining one or more branch establishments. In the latter case, because of the direct ownership of the property, the invested capital and net income of the braneh form a part of the invested capital and net income of the entire organization. Where such branches or units of a business are owned and controlled through the medium of separate corporations, it is necessary to require a. consolidated return in order that the invested capital and net income of the entire group may be accurately determined. Otherwise opportunity would be afforded for the evasion of taxation by the shifting of income through price fixing, charges for services and other means by which income could be arbitrarily assigned to one or another unit of the group. In other cases without a consolidated return excessive taxation might be imposed as a result of purely artificial conditions existing between corporations within a controlled group.” Article 634 reads as follows: “Art. 634. Change in Ownership During Taxable Year. — When one corporation owns or controls substantially all the stock of another corporation at the beginning of any taxable year, but during the taxable year sells or parts with the control of all or a majority of such stock to outside interests not affiliated with it, or when one corporation during any taxable year acquires the ownership or control of substantially all the capital stoek of another corporation with which it was not previously affiliated, a full disclosure of the circumstances of such changes in ownership shall be submitted to the Commissioners. In accordance with the peculiar circumstances in each ease the Commissioner may require separate or consolidated returns to be filed, to the end that the tax may be equitably assessed.” Article 637 reads as follows: “Art. 637. Consolidated Net Income of Affiliated Corporations. — Subject to tbe provisions covering the determination of taxable net income of separate corporations, and. subject further to tbe elimination of inter-company transactions, the consolidated taxable net income shall be tbe combined net income of tbe several corporations consolidated, except that tbe net income of corporations coming within tbe provisions of article 635 shall be taken out. In respect of tbe statement of gross income and deductions and tbe several schedules required under form 1120, a corporation filing a consolidated return is required to prepare and file such statements and schedules in columnar form to tbe end that tbe details of tbe items of gross income and deductions for each corporation included in tbe consolidation may be readily audited.” It is clear from tbe facts found by tbe Board of Tax Appeals that tbe Concordia Company was affiliated with tbe petitioner, the Fidelity National Bank & Trust Company, during tbe first five months of 1919. This is not disputed by appellant. But it is contended by appellant that tbe Revenue Act of 1918 did not require corporations affiliated during tbe first five months only of 1919 to file a consolidated return for those months; and that the Commissioner of Internal Revenue bad no authority to require such a consolidated return. The ground for this contention of appellant seems to be that tbe petitioner and tbe Concordia Company cannot be considered affiliated companies within tbe meaning of the statute, because, (a) they were not affiliated at tbe end of tbe period for whieh the tax return was to be made, viz. December 31, 1919; and (b) they bad not been affiliated for a considerable period, seven months. We cannot agree with this contention of appellant. Tbe real basis for requiring affiliated corporations to file consolidated returns was “tbe principle of levying tbe tax according to tbe true net income and invested capital of a single business enterprise, even though tbe business is operated through more than one corporation.” The facts that tbe business enterprise was not in existence at tbe end of tbe taxable year, and that it bad not been in existence for seven months prior to that time, do not destroy tbe principle involved. Those facts simply affect tbe form of tax returns to be made by tbe taxpayers involved. .The form of tbe tax returns was a matter for tbe determination of tbe Commissioner. Tbe status of tbe petitioner and tbe Concordia Company during the first five months of 1919 was not determined by the Commissioner, b"ut by tbe statute. They were eoncededly affiliated corporations during that period. Tbe existence of tbe taxpayer at tbe end of tbe period for which return must be made is not of decisive importance. Brady v. Anderson (C. C. A.) 240 F. 665. Our construction of tbe statute is that corporations which were affiliated for any substantial period during the year were required to make a consolidated return. Of course, if tbe affiliation did not exist during tbe whole of tbe year, tbe consolidated return would cover tbe portion only during which tbe affiliation existed. We think this construction is consistent with tbe wording of tbe statute. It also fulfills tbe canon of statutory construction that where the meaning is not perfectly clear from tbe words used, a reasonable construction should be given which will carry out tbe object and purpose of tbe statute. 36 Cyc. p. 1110; United States v. Katz, 271 U. S. 354, 362, 46 S. Ct. 513, 70 L. Ed. 986; Ozawa v. United States, 260 U. S. 178, 194, 43 S. Ct. 65, 67 L. Ed. 199; Low Wah Suey v. Backus, 225 U. S. 460, 475, 32 S. Ct. 734, 56 L. Ed. 1165; Holy Trinity Church v. United States, 143 U. S. 457, 12 S. Ct. 511, 36 L. Ed. 226; Balanced Rock Scenic Attractions v. Town of Manitou (C. C. A. 10) 38 F.(2d) 28; Rodenbough v. United States (C. C. A.) 25 F.(2d) 13, 57 A. L. R. 1091; United States v. Mo. Pac. Ry. Co., 213 F. 169 (C. C. A. 8); St. L. & S. F. R. Co. v. Delk (C. C. A.) 158 F. 931, 14 Ann. Cas. 233; United States v. Jackson (C. C. A.) 143 F. 783; United State v. Ninety-nine Diamonds, 139 F. 961, 2 L. R. A. (N. S.) 185 (C. C. A. 8). Furthermore, this construction is tbe one which has been placed upon the statute from tbe beginning by the Commissioner of Internal Revenue in tbe regulations issued from time to time. Section 240 has been re-enaeted by Congress, with minor changes, in tbe Revenue Acts of 1921 (42 Stat. 260), 1924 (43 Stat. 288, 26 USCA § 993), and 1926 (44 Stat. 46, 26 USCA § 993); and presumably Congress knew tbe construction placed upon tbe section by tbe Commissioner of Internal Revenue and tbe Secretary of tbe Treasury; yet, no change has been made in tbe wording to indicate that thei regulations of tbe Commissioner requiring fractional year returns by affiliated corporations under circumstances similar to those in tbe ease at bar, were not in accordance with tbe proper construction of tbe section. This departmental construetion, apparently adopted by Congress, while not conclusive, is yet persuasive. Luckenbach S. S. Co. v. United States, 280 U. S. 173, 50 S. Ct. 148, 74 L. Ed.-. Our conclusion on the first main question is that a consolidated return was properly required, which should include the Concordia Company for the first five months of the year 1919. The second question remains, Was the so-called loss resulting from the transfer in February, 1919, by petitioner to the Concordia Company of the Salina Northern securities properly disallowed as a deduction. The answer to this question would seem to be already determined by the conclusion heretofore reached, viz.: That the petitioner and the Concordia Company were affiliated companies during the first five months of the year 1919 within the meaning of the statute. If the purpose of section 240 is to he carried out, and affiliated companies are to be treated for taxing purposes as a single unit, it follows logically that intercompany transactions cannot be considered as giving rise to either gain .or loss. It is conceded by appellant that “if one member of an affiliated group sells to another member of the group some of its tangible corporate assets, and the affiliation continues throughout the year, no gain or loss results.” But appellant contends that if the affiliation comes to an end before the termination of the year, a loss or gain may result; or as applied to the instant ease: “If the appellant and the Concordia Loan & Trust Company be treated as one corporation during the first five months of 1919 (the period of the affiliation), there is perhaps no sale of the Salina Northern securities on February 15. But when on May 31 the Concordia withdraws, taking the securities and leaving $95,000 in place of them, as of that date, a sale to the Concordia is effected. The transfer on the 15th, plus the dissolution, completes a final sale and disposition of the securities to outside interests, unaffiliated.” This contention, when analyzed, simply amounts to a reiteration of the former contention that there can be no affiliation within the meaning of the statute unless it continues substantially through the year. For, if all transactions between affiliated companies are considered as “open” until it is seen whether the affiliation exists at the end of the year; and if, in case affiliation does not then exist, the transactions are to be considered noniniereompany transactions, it is apparent that the purpose of the statute so far as it relates to affiliations which are terminated within the year is rendered entirely nugatory. We think that the transfer of securities to the Concordia Company on February 15, 1919, was a closed transaction on that date; that it was an intercompany transaction and could not be considered as giving rise either to loss or gain; and that the withdrawal of the Concordia Company thereafter and during the year did not affect the situation. The alleged loss was therefore properly disallowed. The redetermination by the Board of Tax Appeals was correct, and the order is affirmed. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_usc1	29	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. FAIRMONT FOODS COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 12680. United States Court of Appeals Fourth Circuit. Argued Jan. 10, 1969. Decided Feb. 28, 1969. Carl D. Hall, Tulsa, Okl. (John M. Keefer, and Hall & Sublett, Tulsa, Okl., on brief) for petitioner. Seth D. Rosen, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Paul J. Spielberg, Atty., N. L. R. B., on brief) for respondent. Before BOREMAN, WINTER and CRAVEN, Circuit Judges. PER CURIAM: This case is before the court upon petition of Fairmont Foods, Inc., (Fairmont) pursuant to section 10(f) of the National Labor Relations Act, as amended, (61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq.) to review and set aside the order of the National Labor Relations Board issued against UtoteM of Oklahoma (the company), a wholly-owned subsidiary of Fairmont. This court has jurisdiction under section 10(e) and (f) of the Act since Fairmont does business within this judicial circuit. The Board found that the company violated section 8(a) (1) of the Act by, inter alia, coercive interrogation of employees as to union activities: threatening employees with loss of jobs if they selected a union; and proposing an independent contractor arrangement in an effort to prevent union organization. We find substantial evidence on the record as a whole to support the Board’s findings of section 8(a) (1) violations. In fact, before us, the company concedes the correctness of these findings. The Board found that the company violated section 8(a) (3) and (1) of the Act by discriminatorily discharging Jerry Dennis and Steven Fryar for their union activities. The company sought to justify the discharges because of a substantial shortage in inventory at a company store where Dennis and Fryar were the only employees. We have examined the record and reach the conclusion that the Board’s findings of discriminatory discharges are supported by substantial evidence and that the order of reinstatement of these two employees should be enforced. Next, the Board found that the company violated section 8(a) (5) and (1) of the Act, first, by refusing to bargain with the union which represented a majority of its employees in an appropriate unit and, second, by taking unilateral action affecting wages and other terms and conditions of employment when the company was under a duty to bargain with the union. This case is another in a series of cases arising in this circuit in which the Board order to bargain is based upon “authorization cards” signed by employees and not by reason of certification of the union as bargaining agent after a secret ballot election. Consistently, in several cases we have disapproved the Board’s orders to bargain based upon authorization cards. We are aware that on December 16, 1968, (393 U.S. 997, 89 S.Ct. 482, 21 L.Ed.2d 462) the Supreme Court granted review of this court’s decision in N. L. R. B. v. Gissel Packing Co., Inc. (398 F.2d 336). Counsel for the Board has requested that we defer further argument and final decision on the section 8(a) (5) portions of the instant case pending the Supreme Court’s decision in Gissel. The request is granted. However, the Board’s order in other respects will be enforced. Enforcement granted in part and consideration of other portions of Board’s order deferred. . The Board’s decision, and order are reported at 172 NLRB No. 21. . General Steel Products, Inc. v. N. L. R. B., 398 F.2d 339 (4 Cir. 1968) ; N. L. R. B. v. Heck’s, Inc., 398 F.2d 337 (4 Cir. 1968) ; N. L. R. B. v. Gissel Packing Co., Inc., 398 F.2d 336 (4 Cir. 1968) ; N. L. R. B. v. S. S. Logan Packing Company, 386 F.2d 562 (4 Cir. 1967) ; Crawford Manufacturing Co. v. N. L. R. B., 386 F.2d 367 (4 Cir. 1967). Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_r_nonp	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 "groups and associations". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. In re 188 RANDOLPH BLDG. CORPORATION. No. 8921. Circuit Court of Appeals, Seventh Circuit. Oct. 1, 1945. Rehearing Denied Oct. 30, 1945. Meyer Abrams, of Chicago 111., pro se. Joseph Z. Willner and Irwin T. Gilruth, both of Chicago, 111., for Ben Gold, Trustee. Roger S. Foster, of Philadelphia, Pa., and Thomas B. Hart, G. Gale Roberson, and John I. Mayer, all of Chicago, 111., for Securities and Exchange Commission. Taylor, Miller, Busch & Boyden, of Chicago, 111., for Bondholders Protective Committee. Before SPARKS, MAJOR, and KERN-ER, Circuit Judges. SPARKS, Circuit Judge. The petitioner asks leave of this court to appeal from an order of the District Court, pursuant to section 250 of chapter X of the Bankruptcy Act, 11 U.S.C.A. § 650. The order was entered August 22, 1945, and denied petitioner’s claim for services alleged to have been performed by him in this proceeding and which he alleges were valuable and beneficial to the estate. In passing upon this claim the District Court said: “Meyer Abrams has asked for an allowance as representing certain creditors. Unfortunately Mr. Abrams owned certain bonds of the debtor and sold them while the reorganization was pending in this court. Under the authority of Otis & Co. v. Insurance Building Corporation [1 Cir.], 110 F.2d 333, I do not think I can allow him any fee.” It is clear that the District Court did not pass upon the merits of this claim. The court’s rulings were based on its interpretation of section 249 of chapter X of the Bankruptcy Act, 11 U.S.C.A. § 649. This proceeding for reorganization was instituted on August 5, 1933, and petitioner intervened as counsel for other bondholders on July 29, 1937. On November 25, 1938, section 167 of chapter X of the Act, 11 U.S.C.A. § 567, was made applicable to this proceeding, and on March 22, 1943 most of the remaining sections of the Act, including section 249, were likewise made applicable. All creditors were so notified and petitioner was present in court when the court considered the question of making section 249 thus applicable to this proceeding. On April 1, 1944, during the pendency of the proceeding, petitioner sold for his own account $11,700 principal amount of first mortgage bonds of the debtor to Union Security Company, and received therefor from the purchaser $1,573.65. Petitioner’s verified petition for appeal alleges that he had acquired these bonds prior to the commencement of these proceedings. On June 8, 1945, petitioner filed his claim for an allowance of $12,500 for services rendered during the proceedings, and $59 for expenses. This claim was not accompanied by a statement under oath as required by section 249 of Chapter X. However, after evidence of such sale was adduced, petitioner filed his unverified statement with the District Court, that he had sold the bonds referred to and received payment therefor, prior to filing his claim, and after the application to this proceeding of Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq.; and that no claim against the debtor was acquired by petitioner or any member of his law firm after the commencement of this proceeding. Subsequently, on June 14, 1945, petitioner filed in the District Court his written request that that court approve the sale of the bonds above referred to. The court denied this request. Under these facts, which we assume to be true only for the purposes of this petition, the petitioner contends that an attorney representing individual claimants in a reorganization proceeding under Chapter X of the Bankruptcy Act is not prohibited by section 249 of the Act, from obtaining compensation for services rendered to the estate because he sold securities of the debtor, after the commencement of the proceeding, which securities he had acquired prior to such commencement. We think there is no reasonable basis for ambiguity in the interpretation of the language of section 249, and that this contention is without merit. See Otis & Co. v. Insurance Building Corporation, 1 Cir., 110 F.2d 333; In re Mountain States Power Company, 3 Cir., 118 F.2d 405; In re Reynolds Investing Company, 3 Cir., 130 F.2d 60; In re Arcade Malleable Iron Company, D.C., 35 F.Supp. 461; In re Los Angeles Lumber Products Company, D.C., 37 F. Supp. 708. Petitioner further contends that Section 249 of Chapter X may not be applied to prohibit allowance of compensation for services performed prior to the application of this section to the § 77B, 11 U.S.C.A. § 207, proceedings. We are convinced there is no merit in petitioner’s contention that such ruling constitutes a retroactive application of Section 249. It is also worthy of note that this petition recites that it was through petitioner’s insistence that the court made Section 249 applicable to this proceeding. (3) Petitioner further contends that the word “or” in the phrase “purchase or sale” in Section 249 should be construed “and.” Such construction would clearly establish error on the part of the District Court, for it ruled otherwise. We think the ruling was correct, and we find nothing in the Act to indicate that Congress intended it otherwise. It is also urged by petitioner that section 249 authorized the District Court to subsequently approve petitioner’s sale of the bonds. That question does not seem to be before us, for the court refused to approve the sale. Certainly the statute did not require that court to approve.the sale, and there is nothing before us to indicate that the court abused its discretion in that respect, if it had such discretion. Under these circumstances we think the appeal should not be allowed. See In re Seville Court Apartments Building Corporation, 7 Cir., 134 F.2d 232; Davis Transformer Co. v. Mansfield, 1 Cir., 141 F.2d 681. Petition denied. Question: What is the total number of respondents in the case that fall into the category "groups and associations"? Answer with a number. Answer:
sc_issue_8	07	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. CHANDRIS, INC., et al. v. LATSIS No. 94-325. Argued February 21, 1995 — Decided June 14, 1995 O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Souter, and Ginsburg, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, in which Thomas and Breyer, JJ., joined, post, p. 377. David W. McCreadie argued the cause for petitioners. With him on the briefs were David F Pope and Christ Stratakis. Lewis Rosenberg argued the cause for respondent. With him on the brief was Barry I. Levy. Briefs of amici curiae urging reversal were filed for the City of New York by Paul A Crotty and Leonard J. Koerner; and for TECO Transport & Trade Corp. et al. by Robert B. Acomb, Jr., and Robert T. Lemon II. Briefs of amici curiae urging affirmance were filed for the Association of Trial Lawyers of America by Stevan C. Dittman and Larry S. Stewart; and for the United Brotherhood of Carpenters and Joiners of America by John R. Hillsman. Justice O’Connor delivered the opinion of the Court. This case asks us to clarify what “employment-related connection to a vessel in navigation,” McDermott Int’l, Inc. v. Wilander, 498 U. S. 337, 355 (1991), is necessary for a maritime worker to qualify as a seaman under the Jones Act, 46 U. S. C. App. § 688(a). In Wilander, we addressed the type of activities that a seaman must perform and held that, under the Jones Act, a seaman’s job need not be limited to transportation-related functions that directly aid in the vessel’s navigation. We now determine what relationship a worker must have to the vessel, regardless of the specific tasks the worker undertakes, in order to obtain seaman status. I In May 1989, respondent Antonios Latsis was employed by petitioner Chandris, Inc., as a salaried superintendent engineer. Latsis was responsible for maintaining and updating the electronic and communications equipment on Chandris’ fleet of vessels, which consisted of six passenger cruise ships. Each ship in the Chandris fleet carried between 12 and 14 engineers who were assigned permanently to that vessel. Latsis, on the other hand, was one of two supervising engineers based at Chandris’ Miami office; his duties ran to the entire fleet and included not only overseeing the vessels’ engineering departments, which required him to take a number of voyages, but also planning and directing ship maintenance from the shore. Latsis claimed at trial that he spent 72 percent of his time at sea, App. 58; his immediate supervisor testified that the appropriate figure was closer to 10 percent, id., at 180. On May 14, 1989, Latsis sailed for Bermuda aboard the S. S. Galileo to plan for an upcoming renovation of the ship, which was one of the older vessels in the Chandris fleet. Latsis developed a problem with his right eye on the day of departure, and he saw the ship’s doctor as the Galileo left port. The doctor diagnosed a suspected detached retina but failed to follow standard medical procedure, which would have been to direct Latsis to see an ophthalmologist on an emergency basis. Instead, the ship’s doctor recommended that Latsis relax until he could see an eye specialist when the Galileo arrived in Bermuda two days later. No attempt was made to transport Latsis ashore for prompt medical care by means of a pilot vessel or helicopter during the 11 hours it took the ship to reach the open sea from Baltimore, and Latsis received no further medical care until after the ship arrived in Bermuda. In Bermuda, a doctor diagnosed a detached retina and recommended immediate hospitalization and surgery. Although the operation was a partial success, Latsis lost 75 percent of his vision in his right eye. Following his recuperation, which lasted approximately six weeks, Latsis resumed his duties with Chandris. On September 30,1989, he sailed with the Galileo to Bremerhaven, Germany, where the vessel was placed in drydock for a 6-month refurbishment. After the conversion, the company renamed the vessel the S. S. Meridian. Latsis, who had been with the ship the entire time it was in drydock in Bremerhaven, sailed back to the United States on board the Meridian and continued to work for Chandris until November 1990, when his employment was terminated for reasons that are not clear from the record. In October 1991, Latsis filed suit in the United States District Court for the Southern District of New York seeking compensatory damages under the Jones Act, 46 U. S. C. App. § 688, for the negligence of the ship’s doctor that resulted in the significant loss of sight in Latsis’ right eye. The Jones Act provides, in pertinent part, that “[a]ny seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury....” The District Court instructed the jury that it could conclude that Latsis was a seaman within the meaning of the statute if it found as follows: “[T]he plaintiff was either permanently assigned to the vessel or performed a substantial part of his work on the vessel. In determining whether Mr. Latsis performed a substantial part of his work on the vessel, you may not consider the period of time the Galileo was in drydock in Germany, because during that time period she was out of navigation. You may, however, consider the time spent sailing to and from Germany for the conversion. Also, on this first element of being a seaman, seamen do not include land-based workers.” App. 210. The parties stipulated to the District Court’s second requirement for Jones Act coverage — that Latsis’ duties contributed to the accomplishment of the missions of the Chandris vessels. Id., at 211. Latsis did not object to the seaman status jury instructions in their entirety, but only contested that portion of the charge which explicitly took from the jury’s consideration the period of time that the Galileo was in dry-dock. The jury returned a verdict in favor of Chandris solely on the issue of Latsis’ status as a seaman under the Jones Act. Id., at 213. Respondent appealed to the Court of Appeals for the Second Circuit, which vacated the judgment and remanded the case for a new trial. 20 F. 3d 45 (1994). The court emphasized that its longstanding test for seaman status under the Jones Act required “‘a more or less permanent connection with the ship,’” Salgado v. M. J. Rudolph Corp., 514 F. 2d 750, 755 (CA2 1975), a connection that need not be limited to time spent on the vessel but could also be established by the nature of the work performed. The court thought that the alternate formulation employed by the District Court (permanent assignment to the vessel or performance of a substantial part of his work on the vessel), which was derived from Offshore Co. v. Robison, 266 F. 2d 769, 779 (CA5 1959), improperly framed the issue for the jury primarily, if not solely, in terms of Latsis’ temporal relationship to the vessel. With that understanding of what the language of the Robi-son test implied, the court concluded that the District Court’s seaman status jury instructions constituted plain error under established Circuit precedent. The court then took this case as an opportunity to clarify its seaman status requirements, directing the District Court that the jury should be instructed on remand as follows: “[T]he test of seaman status under the Jones Act is an employment-related connection to a vessel in navigation. The test will be met where a jury finds that (1) the plaintiff contributed to the function of, or helped accomplish the mission of, a vessel; (2) the plaintiff’s contribution was limited to a particular vessel or identifiable group of vessels; (3) the plaintiff’s contribution was substantial in terms of its (a) duration or (b) nature; and (4) the course of the plaintiff’s employment regularly exposed the plaintiff to the hazards of the sea.” 20 F. 3d, at 57. Elsewhere on the same page, however, the court phrased the third prong as requiring a substantial connection in terms of both duration and nature. Finally, the Court of Appeals held that the District Court erred in instructing the jury that the time Latsis spent with the ship while it was in dry-dock could not count in the substantial connection equation. Id., at 55-56. Judge Kearse dissented, arguing that the dry-dock instruction was not erroneous and that the remainder of the charge did not constitute plain error. Id., at 58. We granted certiorari, 513 U. S. 945 (1994), to resolve the continuing conflict among the Courts of Appeals regarding the appropriate requirements for seaman status under the Jones Act. H-1 HH The Jones Act provides a cause of action in negligence for “any seaman” injured “in the course of his employment.” 46 U. S. C. App. § 688(a). Under general maritime law prevailing prior to the statute’s enactment, seamen were entitled to “maintenance and cure” from their employer for injuries incurred “in the service of the ship” and to recover damages from the vessel’s owner for “injuries received by seamen in consequence of the unseaworthiness of the ship,” but they were “not allowed to recover an indemnity for the negligence of the master, or any member of the crew.” The Osceola, 189 U. S. 158, 175 (1903); see also Cortes v. Baltimore Insular Line, Inc., 287 U. S. 367, 370-371 (1932). Congress enacted the Jones Act in 1920 to remove the bar to suit for negligence articulated in The Osceola, thereby completing the trilogy of heightened legal protections (unavailable to other maritime workers) that seamen receive because of their exposure to the “perils of the sea.” See G. Gilmore & C. Black, Law of Admiralty §6-21, pp. 328-329 (2d ed. 1975); Robertson, A New Approach to Determining Seaman Status, 64 Texas L. Rev. 79 (1985) (hereinafter Robertson). Justice Story identified this animating purpose behind the legal regime governing maritime injuries when he observed that seamen “are emphatically the wards of the admiralty” because they “are by the peculiarity of their lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labour.” Harden v. Gordon, 11 F. Cas. 480, 485, 483 (No. 6,047) (CC Me. 1823). Similarly, we stated in Wilander that “[traditional seamen’s remedies... have been ‘universally recognized as... growing out of the status of the seaman and his peculiar relationship to the vessel, and as a feature of the maritime law compensating or offsetting the special hazards and disadvantages to which they who go down to sea in ships are subjected.’” 498 U. S., at 354 (quoting Seas Shipping Co. v. Sieracki, 328 U. S. 85, 104 (1946) (Stone, C. J., dissenting)). The Jones Act, however, does not define the term “seaman” and therefore leaves to the courts the determination of exactly which maritime workers are entitled to admiralty’s special protection. Early on, we concluded that Congress intended the term to have its established meaning under the general maritime law at the time the Jones Act was enacted. See Warner v. Goltra, 293 U. S. 155, 159 (1934). In Warner, we stated that “a seaman is a mariner of any degree, one who lives his life upon the sea.” Id., at 157. Similarly, in Norton v. Warner Co., 321 U. S. 565, 572 (1944), we suggested that “ ‘every one is entitled to the privilege of a seaman who, like seamen, at all times contributes to the labors about the operation and welfare of the ship when she is. upon a voyage’” (quoting The Buena Ventura, 243 F. 797, 799 (SDNY 1916)). Congress provided some content for the Jones Act requirement in 1927 when it enacted the Longshore and Harbor Workers’ Compensation Act (LHWCA), which provides scheduled compensation (and the exclusive remedy) for injury to a broad range of land-based maritime workers but which also explicitly excludes from its coverage “a master or member of a crew of any vessel.” 44 Stat. (part 2) 1424, as amended, 33 U. S. C. § 902(3)(G). As the Court has stated on several occasions, the Jones Act and the LHWCA are mutually exclusive compensation regimes: “ ‘master or member of a crew’ is a refinement of the term ‘seaman’ in the Jones Act; it excludes from LHWCA coverage those properly-covered under the Jones Act.” Wilander, 498 U. S., at 347. Indeed, “it is odd but true that the key requirement for Jones Act coverage now appears in another statute.” Ibid. Injured workers who fall under neither category may still recover under an applicable state workers’ compensation scheme or, in admiralty, under general maritime tort principles (which are admittedly less generous than the Jones Act’s protections). See Cheavens, Terminal Workers’ Injury and Death Claims, 64 Tulane L. Rev. 361, 364-365 (1989). Despite the LHWCA language, drawing the distinction between those maritime workers who should qualify as seamen and those who should not has proved to be a difficult task and the source of much litigation — particularly because “the myriad circumstances in which men go upon the water confront courts not with discrete classes of maritime employees, but rather with a spectrum ranging from the blue-water seaman to the land-based longshoreman.” Brown v. ITT Rayonier, Inc., 497 F. 2d 234, 236 (CA5 1974). The federal courts have struggled over the years to articulate generally applicable criteria to distinguish among the many varieties of maritime workers, often developing detailed multipronged tests for seaman status. Since the 1950’s, this Court largely has left definition of the Jones Act’s scope to the lower courts. Unfortunately, as a result, “[t]he perils of the sea, which mariners suffer and shipowners insure against, have met their match in the perils of judicial review.” Gilmore & Black, supra, §6-1, at 272. Or, as one court paraphrased Diderot in reference to this body of law: “ ‘We have made a labyrinth and got lost in it. We must find our way out.’” Johnson v. John F. Beasley Constr. Co., 742 F. 2d 1054, 1060 (CA7 1984), cert. denied, 469 U. S. 1211 (1985); see 9 Oeuvres Completes de Diderot, 203 (J. Assézat ed. 1875). A In Wilander, decided in 1991, the Court attempted for the first time in 33 years to clarify the definition of a “seaman” under the Jones Act. Jon Wilander was injured while assigned as a foreman supervising the sandblasting and painting of various fixtures and piping on oil drilling platforms in the Persian Gulf. His employer claimed that he could not qualify as a seaman because he did not aid in the navigation fimction of the vessels on which he served. Emphasizing that the question presented was narrow, we considered whether the term “seaman” is limited to only those maritime workers who aid in a vessel’s navigation. After surveying the history of an “aid in navigation” requirement under both the Jones Act and general maritime law, we concluded that “all those with that ‘peculiar relationship to the vessel’ are covered under the Jones Act, regardless of the particular job they perform,” 498 U. S., at 354, and that “the better rule is to define ‘master or member of a crew’ under the LHWCA, and therefore ‘seaman’ under the Jones Act, solely in terms of the employee’s connection to a vessel in navigation,” ibid. Thus, we held that, although “[i]t is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel,... a seaman must be doing the ship’s work.” Id., at 355. We explained that “[t]he key to seaman status is employment-related connection to a vessel in navigation,” and that, although “[w]e are not called upon here to define this connection in all details,... we believe the requirement that an employee’s duties must ‘contribut[e] to the function of the vessel or to the accomplishment of its mission’ captures well an important requirement of seaman status.” Ibid. Beyond dispensing with the “aid to navigation” requirement, however, Wilander did not consider the requisite connection to a vessel in any detail and therefore failed to end the prevailing confusion regarding seaman status. B Respondent urges us to find our way out of the Jones Act “labyrinth” by focusing on the seemingly activity-based policy underlying the statute (the protection of those who are exposed to the perils of the sea), and to conclude that anyone working on board a vessel for the duration of a “voyage” in furtherance of the vessel’s mission has the necessary employment-related connection to qualify as a seaman. Brief for Respondent 12-17. Such an approach, however, would run counter to our prior decisions and our understanding of the remedial scheme Congress has established for injured maritime workers. A brief survey of the Jones Act’s tortured history makes clear that we must reject the initial appeal of such a “voyage” test and undertake the more difficult task of developing a status-based standard that, although it determines Jones Act coverage without regard to the precise activity in which the worker is engaged at the time of the injury, nevertheless best furthers the Jones Act’s remedial goals. Our Jones Act cases establish several basic principles regarding the definition of a seaman. First, “[wjhether under the Jones Act or general maritime law, seamen do not include land-based workers.” Wilander, supra, at 348; see also All-britton, Seaman Status in Wilander’s Wake, 68 Tulane L. Rev. 373, 387 (1994). Our early Jones Act decisions had not recognized this fundamental distinction. In International Stevedoring Co. v. Haverty, 272 U. S. 50 (1926), we held that a longshoreman injured while stowing cargo, and while aboard but not employed by a vessel at dock in navigable waters, was a seaman covered by the Jones Act. Recognizing that “for most purposes, as the word is commonly used, stevedores are not ‘seamen,’” the Court nevertheless concluded that “[w]e cannot believe that Congress willingly would have allowed the protection to men engaged upon the same maritime duties to vary with the accident of their being employed by a stevedore rather than by the ship.” Id., at 52. Because stevedores are engaged in “a maritime service formerly rendered by the ship’s crew,” ibid. (citing Atlantic Transport Co. of W. Va. v. Imbrovek, 234 U. S. 52, 62 (1914)), we concluded, they should receive the Jones Act’s protections. See also Uravic v. F. Jarka Co., 282 U. S. 234, 238 (1931); Jamison v. Encarnacion, 281 U. S. 635, 639 (1930). In 1946, the Court belatedly recognized that Congress had acted, in passing the LHWCA in 1927, to undercut the Court’s reasoning in the Haverty line of cases and to emphasize that land-based maritime workers should not be entitled to the seamen’s traditional remedies. Our decision in Swanson v. Marra Brothers, Inc., 328 U. S. 1, 7 (1946), acknowledged that Congress had expressed its intention to “confine the benefits of the Jones Act to the members of the crew of a vessel plying in navigable waters and to substitute for the right of recovery recognized by the Haverty case only such rights to compensation as are given by [the LHWCA].” See also South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251, 257 (1940). Through the LHWCA, therefore, Congress “explicitly den[ied] a right of recovery under the Jones Act to maritime workers not members of a crew who are injured on board a vessel.” Swanson, supra, at 6. And this recognition process culminated in Wilander with the Court’s statement that, “[w]ith the passage of the LHWCA, Congress established a clear distinction between land-based and sea-based maritime workers. The latter, who owe their allegiance to a vessel and not solely to a land-based employer, are seamen.” 498 U. S., at 347. In addition to recognizing a fundamental distinction between land-based and sea-based maritime employees, our cases also emphasize that Jones Act coverage, like the jurisdiction of admiralty over causes of action for maintenance and cure for injuries received in the course of a seaman’s employment, depends “not on the place where the injury is inflicted... but on the nature of the seaman’s service, his status as a member of the vessel, and his relationship as such to the vessel and its operation in navigable waters.” Swanson, supra, at 4. Thus, maritime workers who obtain seaman status do not lose that protection automatically when on shore and may recover under the Jones Act whenever they are injured in the service of a vessel, regardless of whether the injury occurs on or off the ship. In O’Donnell v. Great Lakes Dredge & Dock Co., 318 U. S. 36 (1943), the Court held a shipowner liable for injuries caused to a seaman by a fellow crew member while the former was on shore repairing a conduit that was a part of the vessel and that was used for discharging the ship’s cargo. We explained: “The right of recovery in the Jones Act is given to the seaman as such, and, as in the case of maintenance and cure, the admiralty jurisdiction over the suit depends not on the place where the injury is inflicted but on the nature of the service and its relationship to the operation of the vessel plying in navigable waters.” Id., at 42-43. Similarly, the Court in Swanson emphasized that the LHWCA “leaves unaffected the rights of members of the crew of a vessel to recover under the Jones Act when injured while pursuing their maritime employment whether on board... or on shore.” 328 U. S., at 7-8. See also Braen v. Pfeifer Oil Transp. Co., 361 U. S. 129, 131-132 (1959). Our LHWCA cases also recognize the converse: Land-based maritime workers injured while on a vessel in navigation remain covered by the LHWCA, which expressly provides compensation for injuries to certain workers engaged in “maritime employment” that are incurred “upon the navigable waters of the United States,” 33 U. S. C. § 903(a). Thus, in Director, Office of Workers’ Compensation Programs v. Perini North River Associates, 459 U. S. 297 (1983), we held that a worker injured while “working on a barge in actual navigable waters” of the Hudson River, id., at 300, n. 4, could be compensated under the LHWCA, id., at 324. See also Parker v. Motor Boat Sales, Inc., 314 U. S. 244, 244-245 (1941) (upholding LHWCA coverage for a worker testing outboard motors who “was drowned when a motor boat in which he was riding capsized”). These decisions, which reflect our longstanding view of the LHWCA’s scope, indicate that a maritime worker does not become a “member of a crew” as soon as a vessel leaves the dock. It is therefore well settled after decades of judicial interpretation that the Jones Act inquiry is fundamentally status based: Land-based maritime workers do not become seamen because they happen to be working on board a vessel when they are injured, and seamen do not lose Jones Act protection when the course of their service to a vessel takes them ashore. In spite of this background, respondent and Justice Stevens suggest that any maritime worker who is assigned to a vessel for the duration of a voyage — and whose duties contribute to the vessel’s mission — should be classified as a seaman for purposes of injuries incurred during that voyage. See Brief for Respondent 14; post, at 377 (opinion concurring in judgment). Under such a “voyage test,” which relies principally upon this Court’s statements that the Jones Act was designed to protect maritime workers who are exposed to the “special hazards” and “particular perils” characteristic of work on vessels at sea, see, e. g., Wilander, supra, at 354, the worker’s activities at the time of the injury would be controlling. The difficulty with respondent’s argument, as the foregoing discussion makes clear, is that the LHWCA repudiated the Haverty line of cases and established that a worker is no longer considered to be a seaman simply because he is doing a seaman’s work at the time of the injury. Seaman status is not coextensive with seamen’s risks. See, e. g., Easley v. Southern Shipbuilding Corp., 965 F. 2d 1, 4-5 (CA5 1992), cert. denied, 506 U. S. 1050 (1993); Robertson 93 (following “the overwhelming weight of authority in taking it as given that seaman status cannot be established by any worker who fails to demonstrate that a significant portion of his work was done aboard a vessel” and acknowledging that “[sjome workers who unmistakably confront the perils of the sea, often in extreme form, are thereby left out of the seamen’s protections” (footnote omitted)). A “voyage test” would conflict with our prior understanding of the Jones Act as fundamentally status based, granting the negligence cause of action to those maritime workers who form the ship’s company. Swanson, supra, at 4-5; O’Donnell, supra, at 42-43. Desper v. Starved Rock Ferry Co., 342 U. S. 187, 190 (1952), is not to the contrary. Although some language in that case does suggest that whether an individual is a seaman depends upon “the activity in which he was engaged at the time of injury,” the context of that discussion reveals that “activity” referred to the worker’s employment as a laborer on a vessel undergoing seasonal repairs while out of navigation, and not to his precise task at the time of injury. Similarly, despite Justice Harlan’s suggestion in dissent that the Court’s decision in Grimes v. Raymond Concrete Pile Co., 356 U. S. 252 (1958), necessarily construed the word seaman “to mean nothing more than a person injured while working at sea,” id., at 255, our short per curiam opinion in that case does not indicate that we adopted so expansive a reading of the statutory term. Citing our prior cases which emphasized that the question of seaman status is normally for the fact-finder to decide, see, e. g., Senko v. LaCrosse Dredging Corp., 352 U. S. 370, 371-372 (1957); Bassett, 309 U. S., at 257-258, we reversed the judgment of the Court of Appeals and held simply that the jury could have inferred from the facts presented that the petitioner was a member of a crew in light of his overall service to the company (as the District Court had concluded in ruling on a motion for a directed verdict at the close of petitioner’s case). Grimes, supra, at 253. That neither Desper nor Grimes altered our established course in favor of a voyage test is confirmed by reference to our later decision in Braen, supra, at 131, in which we repeated that “[t]he injured party must of course have ‘status as a member of the vessel’ for it is seamen, not others who may work on the vessel (Swanson v. Marra Bros., 328 U. S. 1, 4), to whom Congress extended the protection of the Jones Act.” We believe it is important to avoid “ ‘engrafting upon the statutory classification of a “seaman” a judicial gloss so protean, elusive, or arbitrary as to permit a worker to walk into and out of coverage in the course of his regular duties.’” Barrett v. Chevron, U. S. A., Inc., 781 F. 2d 1067, 1075 (CA5 1986) (en banc) (quoting Longmire v. Sea Drilling Corp., 610 F. 2d 1342, 1347, n. 6 (CA5 1980)). In evaluating the employment-related connection of a maritime worker to a vessel in navigation, courts should not employ “a ‘snapshot’ test for seaman status, inspecting only the situation as it exists at the instant of injury; a more enduring relationship is contemplated in the jurisprudence.” Easley, supra, at 5. Thus, a worker may not oscillate back and forth between Jones Act coverage and other remedies depending on the activity in which the worker was engaged while injured. Reeves v. Mobile Dredging & Pumping Co., 26 F. 3d 1247, 1256 (CA3 1994). Unlike Justice Stevens, see post, at 383, we do not believe that any maritime worker on a ship at sea as part of his employment is automatically a member of the crew of the vessel within the meaning of the statutory terms. Our rejection of the voyage test is also consistent with the interests of employers and maritime workers alike in being able to predict who will be covered by the Jones Act (and, perhaps more importantly for purposes of the employers’ workers’ compensation obligations, who will be covered by the LHWCA) before a particular workday begins. To say that our cases have recognized a distinction between land-based and sea-based maritime workers that precludes application of a voyage test for seaman status, however, is not to say that a maritime employee must work only on board a vessel to qualify as a seaman under the Jones Act. In Southwest Marine, Inc. v. Gizoni, 502 U. S. 81 (1991), decided only a few months after Wilander, we concluded that a worker’s status as a ship repairman, one of the enumerated occupations encompassed within the term “employee” under the LHWCA, 33 U. S. C. § 902(3), did not necessarily restrict the worker to a remedy under that statute. We explained that, “[w]hile in some cases a ship repairman may lack the requisite connection to a vessel in navigation to qualify for seaman status,... not all ship repairmen lack the requisite connection as a matter of law. This is so because ‘[i]t is not the employee’s particular job that is determinative, but the employee’s connection to a vessel.’” Gizoni, supra, at 89 (quoting Wilander, 498 U. S., at 354) (footnote omitted). Thus, we concluded, the Jones Act remedy may be available to maritime workers who are employed by a shipyard and who spend a portion of their time working on shore but spend the rest of their time at sea. Beyond these basic themes, which are sufficient to foreclose respondent’s principal argument, our cases are largely silent as to the precise relationship a maritime worker must bear to a vessel in order to come within the Jones Act’s ambit. We have, until now, left to the lower federal courts the task of developing appropriate criteria to distinguish the “ship’s company” from those members of the maritime community whose employment is essentially land based. C The Court of Appeals for the First Circuit was apparently the first to develop a generally applicable test for seaman status. In Carumbo v. Cape Cod S. S. Co., 123 F. 2d 991 (1941), the court retained the pre-Swanson view that “the word ‘seaman’ under the Jones Act [did] not mean the same thing as ‘member of a crew’ under the [LHWCA],” 123 F. 2d, at 994. It concluded that “one who does any sort of work aboard a ship in navigation is a ‘seaman’ within the meaning of the Jones Act.” Id., at 995. To the phrase “member of a crew,” on the other hand, the court gave a more restrictive meaning. The court adopted three elements to define the phrase that had been used at various times in prior cases, holding that “[t]he requirements that the ship be in navigation; that there be a more or less permanent connection with the ship; and that the worker be aboard primarily to aid in navigation appear to us to be the essential and decisivé elements of the definition of a ‘member of a crew.’ ” Ibid. Cf. Senko, supra, at 375 (Harlan, J., dissenting) (“According to past decisions, to be a ‘member of a crew’ an individual must have some connection, more, or less permanent, with a ship and a ship’s company”). Once it became clear that the phrase “master or member of a crew” from the LHWCA is coextensive with the term “seaman” in the Jones Act, courts accepted the Carumbo formulation of master or member of a crew in the Jones Act context. See Boyd v. Ford Motor Co., 948 F. 2d 283 (CA6 1991); Estate of Wenzel v. Seaward Marine Services, Inc., 709 F. 2d 1326, 1327 (CA9 1983); Whittington v. Sewer Constr. Co., 541 F. 2d 427, 436 (CA4 1976); Griffith v. Wheeling Pittsburgh Steel Corp., 521 F. 2d 31, 36 (CA3 1975), cert. denied, 423 U. S. 1054 (1976); McKie v. Diamond Marine Co., 204 F. 2d 132, 136 (CA5 1953). The Court of Appeals for the Second Circuit Question: What is the issue of the decision? 01. antitrust (except in the context of mergers and union antitrust) 02. mergers 03. bankruptcy (except in the context of priority of federal fiscal claims) 04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death 05. election of remedies: legal remedies available to injured persons or things 06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action. 07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages 08. liability, punitive damages 09. Employee Retirement Income Security Act (cf. union trust funds) 10. state or local government tax 11. state and territorial land claims 12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation) 13. federal or state regulation of securities 14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution) 15. corruption, governmental or governmental regulation of other than as in campaign spending 16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property 17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration) 18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts 19. patents and copyrights: patent 20. patents and copyrights: copyright 21. patents and copyrights: trademark 22. patents and copyrights: patentability of computer processes 23. federal or state regulation of transportation regulation: railroad 24. federal and some few state regulations of transportation regulation: boat 25. federal and some few state regulation of transportation regulation:truck, or motor carrier 26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline) 27. federal and some few state regulation of transportation regulation: airline 28. federal and some few state regulation of public utilities regulation: electric power 29. federal and some few state regulation of public utilities regulation: nuclear power 30. federal and some few state regulation of public utilities regulation: oil producer 31. federal and some few state regulation of public utilities regulation: gas producer 32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline) 33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television) 34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television) 35. federal and some few state regulations of public utilities regulation: telephone or telegraph company 36. miscellaneous economic regulation Answer:
songer_procedur	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. UNITED STATES, Appellee, v. Hubert MICHAUD, Defendant, Appellant. No. 90-1627. United States Court of Appeals, First Circuit. Submitted Oct. 2, 1990. Decided March 15, 1991. Hubert Michaud on brief pro se. Jeffrey R. Howard, U.S. Atty., Shirley D. Peterson, Asst. Atty. Gen., Robert E. Lindsay, Alan Hechtkopf and Gail Brodfuehrer on brief, for appellee. Before CAMPBELL, TORRUELLA and SELYA, Circuit Judges. PER CURIAM. This is appellant’s fourth appeal arising from his conviction on two counts of tax evasion. United States v. Michaud, 860 F.2d 495 (1st Cir.1988) (direct appeal); United States v. Michaud, 901 F.2d 5 (1st Cir.1990) (motion pursuant to 28 U.S.C. § 2255); United States v. Michaud, 925 F.2d 37 (1st Cir.1991) (petition for writ of error coram nobis). The appellant was sentenced to concurrent 18 month terms of imprisonment and fined $60,000 but, pursuant to a motion for reduction of sentence, appellant was released from incarceration after having served approximately 7 months. This present appeal is from a district court judgment of contempt for failure to pay the $60,000 fine imposed in March 1988, as part of the sentencing for the January 1988 tax evasion convictions. We affirm. On March 6, 1990, the government sent appellant a letter informing him that it possessed evidence that he had the personal financial resources to pay the outstanding $60,000 criminal fine and that it would institute contempt proceedings in the near future if the fine was not paid. On March 13, 1990, the government applied, in the district court, for an order to show cause why the appellant should not be held in contempt of court. The district court set a hearing date of April 5, 1990. The appellant filed, pro se, a response, a motion to dismiss or for summary judgment with supporting brief, and a motion to stay the fine. The appellant appeared pro se at the hearing. The district court found that the appellant had the financial ability to pay the fine and held the appellant in contempt. He was ordered to pay $60,000 plus interest from the date the defendant was released from incarceration (December 22, 1988), plus the government’s attorneys’ fees and costs. The court further directed that if the sum was not paid by April 30, 1990, the appellant would be sentenced to 5 months and 29 days incarceration. Although the appellant has not paid the ordered sum, it appears that the appellant has not been incarcerated at this time because, in accordance with the district court’s order, he has posted a bond (in the form of a cashier’s check) in the amount of $75,000, along with his notice of appeal. On appeal, the appellant contends that the district court denied him his Sixth Amendment right to the effective assistance of counsel by failing to warn him of the potential adverse consequences of proceeding pro se. The speciousness of this contention becomes apparent from the following excerpt of the appellant’s statement to the court at the contempt hearing. First, however, I would like to advise the Court that I am but a layman in the science of law. Secondly, I do not have the financial resources to retain the assistance of professional counsel of my choice. I am therefore proceeding pro se in my defense of this case or this cause. A defendant in the trial of a criminal case has a right to conduct and manage his own case pro se. The right to act pro se is a right arising out of the federal Constitution. Also, the framers of the Sixth Amendment recognized that a defendant in a criminal case is not likely to be sufficiently learned in the law effectively to assert all of his guaranteed rights. They understood that the excessive emotional involvement in the outcome of his case might paralyze the accused in his ability to organize his defense, examine and cross-examine witnesses and present cogent argument in support of his cause. Therefore, to entrust and supplement all of the other rights of a defendant charged with a crime the final clause of the Sixth Amendment protects the right of the accused to have the assistance of counsel for his defense. This safeguard was surely not intended to limit in any way the absolute and primary right to conduct one’s own defense in proper person. With this in mind, the defendant respectfully submits that he will proceed pro se and ask that this Court has the reasonable position of applying liberal scrutiny to his self-representation and to hold him to less stringent standards than those expected by professional lawyers in drafting pleadings of this nature. The defendant further submits that he will make every effort to address the issues and to present his defense as best as he is capable. (Emphasis added.) This appellant was well aware of the potential consequences of proceeding pro se. His own words so advised the court. In these circumstances, there was no obligation on the court’s part to inform the appellant of that which he already knew and, in fact, expressed to the court. The record shows that this appellant was aware of the dangers and disadvantages of self-representation. Despite these, he clearly intended to proceed pro se. He made his choice with his eyes wide open. See United States v. Pina, 844 F.2d 1, 6 n. 3 (1st Cir.1988). To support a conviction for criminal contempt, the government must establish three elements: (1) there was a lawful court order of reasonable specificity, (2) the appellant violated it and (3) the violation was willful. See, e.g., United States v. Burstyn, 878 F.2d 1322, 1324 (11th Cir. 1989). And, “a charge of criminal contempt requires the full panopoly [sic] of any criminal proceeding — notice, a full hearing, and proof beyond a reasonable doubt.” United States v. Nightingale, 703 F.2d 17, 19 (1st Cir.1983). There is no dispute as to the second element. The appellant has not paid his criminal fine. As to the first element, the appellant does not dispute that the imposition of the criminal fine was lawful. He complains, however, that the court never "formally” told him when the fine was due. There is no such requirement. A fine is due and payable immediately upon imposition, unless the court specifies otherwise and the court did not so specify here. 18 U.S.C. § 3565(b)(1)(A) (as applicable to offenses committed before November 1, 1987) (now codified at 18 U.S.C. § 3572(d) and, with respect to this issue, identical). That this was not a “stand committed” fine means only that the appellant would not have to remain in prison until it was paid. But this affected neither the fact that the fine was due and payable immediately nor the specificity of the court order. Appellant’s main contention on appeal is that his failure to pay his fine was not willful. This argument is two-pronged. First, he claims to have understood that his fine was “noncommittal” and refers to definitions of this term, such as “having no clear or distinctive character,” suggesting to him, it appears, that there was no specified payment date. Having this understanding, appellant says, means that he did not intentionally disregard his obligation to pay. The appellant’s characterization of his fine is obviously mistaken. The fine was “non committed,” not “noncommittal.” (And, as we have already stated, that the appellant was not required to remain in prison until he paid the fine affected neither the fact that the fine was due and payable immediately nor the specificity of the court order.) Assuming, however, that this understanding, although mistaken, supports appellant’s claim that his failure to pay was not willful, that support, nonetheless, no longer existed at least as of the date that the government notified appellant that it was seeking payment. At the hearing, appellant said that he was told, on March 8,1990, by his (former) counsel, that the government had contacted him and informed counsel that it would seek a contempt finding for failure to pay. By March 8th, therefore, and certainly by the time of the show cause hearing on April 5, 1990, the appellant could no longer claim that he was unaware when payment was due. We then turn to the second prong of appellant’s contention that his failure to pay was not willful: his claim that he does not have the financial ability to pay the fine. There is substantial evidence in the record, however, to support the district court’s finding that the appellant, indeed, has the financial ability to pay the fine. The finding, therefore, merits our respect. See 3 C. Wright, Federal Practice and Procedure, § 715 (2d ed. 1982) (“The judgment and findings of the trial court [as to criminal contempt] if supported by substantial evidence will not be disturbed on appeal.”) We do not find necessary an extended discussion of appellant's assets. Suffice it to say that appellant’s salary, after taxes, in 1987, was $359,000. He contends that his salary was put back into his corporations. He owns or owned three. He says one corporation “has gone down the drain,” the second has been sold and the third is under a six month purchase and sale agreement. He, essentially, contends, however, that any monies from these assets are committed to creditors, including the Internal Revenue Service. Nonetheless, aside from his corporations, the appellant owns a campground, which he valued at, at least, $820,-000, and which, according to the government and not disputed by appellant, has no mortgage. Finally, though we need paint this lily no further, we note that appellant posted a cashier’s check in the amount of $75,000 in order to argue, on appeal, that he lacks the financial ability to pay a $60,-000 criminal fine. The remainder of appellant’s arguments need little discussion. The show cause order complied with Fed.R.Crim.P. 42(b) and provided sufficient notice of the facts upon which the allegation of contempt was based. Contrary to appellant’s assertion, the district court did not fail to rule on his motion to dismiss or for summary judgment and his motion to stay the fine. Obviously, the court denied these motions in finding the appellant in contempt. The appellant’s claim that the trial court did not afford him the opportunity to present his defense, “other than to allow him to verbally present his case in open court,” is belied by the record, which includes the documents submitted by the appellant. Moreover, appellant did not ask to call any witnesses and, even at this point, does not suggest what further relevant evidence he should have been allowed to present. Nor does appellant’s claim that he was prevented from showing that he made a good faith effort to comply with the court’s order have any merit. In sum, we conclude that there was substantial evidence to support the district court’s judgment and it is, therefore, Affirmed. . We note the distinction between civil and criminal contempt. In a civil contempt proceeding, the relief afforded is remedial and, if the relief is imprisonment, it is imprisonment until the party performs the required act. In a criminal contempt proceeding, however, the relief afforded is punitive, to vindicate the authority of the court and, if the relief is imprisonment, it is imprisonment for a definite period. Hicks v. Feiock, 485 U.S. 624, 631-32, 108 S.Ct. 1423, 1429-30, 99 L.Ed.2d 721 (1988). The appellant was sentenced to a definite period — 5 months and 29 days. In one sense, this sentence was conditional. He could avoid this incarceration by paying $60,000, plus interest from December 22, 1988, and attorneys' fees and costs, by April 30, 1990. Yet, there was also an unconditional aspect to the order. If he failed to pay the required amount by the specified date and, as a result, was incarcerated, it would not appear that he could, thereafter, shorten the term by complying with the order and paying the required sum. In Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249 (1960), the Court was presented with a case in a somewhat similar posture — a judgment of criminal contempt with a sentence of two years imprisonment (to commence at the expiration of another sentence which petitioner was then serving), but which permitted petitioner 60 days in which to comply with a grand jury subpoena, in which case the sentence would be vacated. The Court declined to address this apparent "admixture of civil and criminal contempt” since no question concerning it had been raised below or in the Supreme Court. Id. at 515, 81 S.Ct. at 265. So too, in the present case, no question about the characterization of the district court’s order was raised either below or in this court. The parties have proceeded as from a judgment of criminal contempt. So, therefore, shall we. We only add that, insofar as criminal contempt proceedings require greater procedural protections, the appellant received such. . He was convicted in January 1988. . We are in full agreement with the district court’s statement that the appellant “accorded the government least favored status as one of his creditors; dependent upon when, in his judgment, he believed economic conditions, as far as he was concerned, would dictate when the fine was paid." . To the extent that appellant’s complaint as to the show cause order can be read as an argument that that order did not specifically denominate that the finding of contempt sought by the government was criminal, we note that appellant has not pointed to any particular prejudice from this. The government's application for an order to show cause why the appellant should not be held in contempt clearly indicated that a finding of criminal contempt was being sought and appellant’s response to the government’s application clearly shows that appellant was aware of this. Moreover, Rule 42(b) contains no "rigorous” requirement that a show cause order describe the finding of contempt sought as criminal. United States v. Mine Workers of America, 330 U.S. 258, 297-98, 67 S.Ct. 677, 697-98, 91 L.Ed. 884 (1947); In re Grand Jury Proceedings, 875 F.2d 927, 932 n. 4 (1st Cir.1989). . The order required appellant to pay the required sum by April 30, 1990, or be sentenced to 5 months and 29 days in prison. The appellant posted the bond on April 26, 1990, apparently thereby staying the incarceration. We leave it to the district court to determine whether appellant is entitled, at this point, to any time in which to pay the fine plus interest, fees, and costs and, thereby, avoid imprisonment. 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_decisiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. McLAIN et al. v. REAL ESTATE BOARD OF NEW ORLEANS, INC., et al. No. 78-1501. Argued November 6, 1979 Decided January 8, 1980 Burger, C. J., delivered the opinion of the Court, in which all other Members joined, except Marshall, J., who took no part in the consideration or decision of the case. Richard G. Vinet argued the cause for petitioners. With him on the brief was John P. Nelson, Jr. Harry McCall, Jr., argued the cause for respondents. With him on the brief for respondents Real Estate Board of New Orleans et al. were Arthur L. Ballin, Frank C. Dudenhejer, Edward F. Wegmann, Harry S. Redmon, Jr., Rutledge Clement, Jr., Charles F. Barbera, Moise S. Steeg, Jr., and William D. North. Edward F. Schijj, Paul B. Hewitt, and Moise W. Dennery filed a brief for respondent Latter & Blum, Inc. Deputy Solicitor General Easterbrook argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General McCree, Assistant Attorney General Shenejield, John J. Powers III, and Margaret G. Halpern. William D. North and Valentine A. Weber, Jr., filed a brief for the National Association of Realtors as amicus curiae urging affirmance. Ellen Broadman and Alan Mark Silbergeld filed a brief for Consumers Union of United States, Inc., as amicus curiae. Mr. Chief Justice Burger delivered the opinion of the Court. The question in this case is whether the Sherman Act extends to an agreement among real estate brokers in a market area to conform to a fixed rate of brokerage commissions on sales of residential property. I The complaint in this private antitrust action, filed in the Eastern District of Louisiana in 1975, alleges that real estate brokers in the Greater New Orleans area have engaged in a price-fixing conspiracy in violation of § 1 of the Sherman Act, ch. 647, 26 Stat. 209, as amended, 15 U. S. C. § 1. No trial has as yet been had on the merits of the claims since the complaint was dismissed for failure to establish the interstate commerce component of Sherman Act jurisdiction. The complaint asserts a claim individually and on behalf of that class of persons who employed the services of a respondent real estate broker in the purchase or sale of residential property in the Louisiana parishes of Jefferson or Orleans (the Greater New Orleans area) during the four years preceding the filing of the complaint. The respondents are two real estate trade associations, six named real estate firms, and that class of real estate brokers who at some time during the period covered by the complaint transacted realty brokerage business in the Greater New Orleans area and charged a brokerage fee for their services. The unlawful conduct alleged is a continuing combination and conspiracy among the respondents to fix, control, raise, and stabilize prices for the purchase and sale of residential real estate by the systematic use of fixed commission rates, widespread fee splitting, suppression of market information useful to buyers and sellers, and other allegedly anticompetitive practices. The complaint asserts that respondents’ conduct has injured petitioners in their business or property because the fees and commissions charged for brokerage services have been maintained at an artificially high and noncompetitive level, with the effect that the prices of residential properties have been artificially raised. The complaint seeks treble damages and injunctive relief as authorized by §§ 4 and 16 of the Clayton Act, 38 Stat. 731, 737, as amended, 15 U. S. C. §§ 15, 26. The allegations of the complaint pertinent to establishing federal jurisdiction are: (1) that the activities of the respondents are “within the flow of interstate commerce and have an effect upon that commerce”; (2) that the services of respondents were employed in connection with the purchase and sale of real estate by “persons moving into and out of the Greater New Orleans area”; (3) that respondents “assist their clients in securing financing and insurance involved with the purchase of real estate in the Greater New Orleans area,” which “financing and insurance are obtained from sources outside the State of Louisiana and move in interstate commerce into the State of Louisiana through the activities of the [respondents]”; and (4) that respondents have engaged in an unlawful restraint of “interstate trade and commerce in the offering for sale and sale of real estate brokering services.” Respondents moved in the District Court to dismiss the complaint for failure to state a claim within the ambit of the Sherman Act. This motion was supported by a memorandum and by the affidavits of two officers of respondent Real Estate Board of New Orleans. The affiants testified that real estate brokers in Louisiana were licensed to perform their function in that State only, that there was no legal or other requirement that real estate brokers be employed in connection with the purchase or sale of real estate within Louisiana, and that the affiants had personal knowledge of such transactions occurring without the assistance of brokers. The function of real estate brokers was described as essentially completed when buyer and seller had been brought together on agreeable terms. The affiants also stated that real estate brokers did not obtain and were not instrumental in obtaining financing of credit sales, save in a few special cases, nor were they involved with examination of titles in connection with the sale of real estate or the financing of such sales. The memorandum in support of the motion to dismiss sought to distinguish this case from Goldfarb v. Virginia State Bar, 421 U. S. 773 (1975), in which we held that § 1 of the Sherman Act had been violated by conformance with a bar association’s minimum-fee schedule that established fees for title examination services performed by attorneys in connection with the financing of real estate purchases. The respondents construed the applicability of Goldfarb as limited by certain language in the opinion that described the activities of lawyers in the examination of titles as an inseparable and integral part of the interstate commerce in real estate financing. 421 U. S., at 784-785. In contrast, with respect to this case, respondents asserted on the basis of the affidavits that “the role of . . . real estate brokers in financing such purchases is neither integral nor inseparable.” Respondents contended (1) that the activities of respondent real estate brokers were purely local in nature; (2) that the allegation that respondents assisted in securing financing or insurance in connection with the purchase of real estate had been controverted by the affidavits; and (3) that the conclusory assertion in the complaint that respondents’ activities “are within the flow of interstate commerce and have an effect upon that commerce” was insufficient by itself to establish federal jurisdiction. Petitioners’ response to the motion to dismiss asserted that since adequate pretrial discovery up to that time had been precluded pursuant to a pretrial order, petitioners had not had a full opportunity to substantiate the jurisdictional allegations of their complaint. Petitioners advanced two independent theories to support federal jurisdiction: (1) that respondents’ activities occurred within the stream of interstate commerce; and (2) that even if respondents’ activities were wholly local in character they depended upon and affected the interstate flow of both services and people. Accompanying the response was an affidavit stating that one of the named petitioners had employed the services of a respondent real estate broker to assist in an interstate relocation. There was also an affidavit from a loan guarantee officer of the Veterans’ Administration disclosing that VA-insured loans for residential purchases in the Greater New Orleans area for the years 1973-1975 amounted to $46.3 million, $45.9 million, and $53.5 million, respectively. After briefing on the jurisdictional issue, the District Court heard oral argument and received postargument briefs. The court then held a conference with counsel, the substance of which was carefully recorded in the minute entries by the District Judge: “The Court advised counsel that it appears plaintiffs may satisfy said jurisdictional requirement only by bringing the facts of this case within the parameters of the Supreme Court’s holding in Ooldfarb v. Virginia State Bar. ... It is recognized, however, that further discovery is needed on the issue of Ooldfarb’s applicability sub judice. More specifically, such discovery should determine whether, in the first place, there is the requisite interdependence between the brokerage activity of defendants and the financing and/or insuring of real estate transactions in the New Orleans area and, secondly, whether there is a substantial involvement of interstate commerce in such real estate transactions via the financing and/or insurance aspects thereof.” Following this conference, petitioners deposed nine witnesses, who produced various documents. The deponents included government officials, real estate brokers, mortgage lenders, and real estate title insurers. This evidence was directed to establishing that an appreciable amount of interstate commerce was involved in various aspects of the purchase and sale of residential property in the Greater New Orleans area. The deposition testimony of the president of Security Homestead Association, one of nearly 40 savings and loan institutions in the Greater New Orleans area, revealed that during the period covered by the complaint the Association lent in excess of $100 million for local purchases of residential property. The Association obtained loan capital from deposits by investors, some of whom lived out of state, and from borrowings from the Federal Home Loan Bank of Little Rock, Ark. Toward the close of the relevant period, the Association entered the interstate secondary mortgage market, in which existing mortgages were sold to raise new capital for future loans. Another deponent was the president of Carruth Mortgage Corp., an Arkansas corporation doing business in Louisiana, Mississippi, and Texas. Its business was to originate home loans, then to sell the financial paper in the secondary mortgage market. The testimony showed that during the relevant period Carruth made in excess of $100 million in loans on residential real estate in the Greater New Orleans area. The overwhelming proportion of these home loans was guaranteed by either the Federal Housing Administration or the Veterans’ Administration. With respect to the FHA-guaranteed loans, Carruth collected and remitted premiums for the guarantee to the FHA in Washington, D. C., on a periodic basis for each account. Both deponents testified that real estate brokers often play a role in securing financing information on behalf of a borrower and in bringing borrower and lender together, but that after the introductory phases the substance of the mortgage transaction progressed without the involvement of a real estate broker. The president of Carruth testified that his company required title insurance on all the home loans it made. This testimony was accompanied by the deposition of the president of Lawyers Title Insurance Co. of Louisiana, which revealed that each of the nearly 30 title insurance companies then writing coverage in the Greater New Orleans area was a subsidiary or branch of a corporation in another state. Following the close of the discovery period and the filing of additional briefs, the District Court took the matter under submission and, having considered the memoranda of counsel and the relevant documents of record, issued a memorandum opinion and order granting the motion to dismiss the complaint. 432 F. Supp. 982 (1977). The court stated that the ground upon which respondents had challenged jurisdiction was that “brokerage activities are wholly intrastate in nature and, since they neither occur in nor substantially affect interstate commerce, are beyond the ambit of federal anti-trust prohibition.” Id., at 983. In line with the view expressed at the earlier conference, see swpra, at 237-238, the District Court viewed the jurisdictional inquiry as narrowly confined: the question was whether the facts of this case could be brought within the Ooldfarb holding. In the District Court’s view, “any inquiry based upon [Goldfarb] must be twofold: 1) whether a 'substantial’ volume of interstate commerce is involved in the overall real estate transaction, and 2) whether the challenged activity is an essential, integral part of the transaction and inseparable from its interstate aspects.” 432 F. Supp., at 984. The District Court assumed, arguendo, that the title insurance and financing aspects of the New Orleans residential real estate market were interstate in character, but ruled that federal jurisdiction was not established because in its view “the inescapable conclusion to be drawn from the evidence is that the participation of the broker in these (presumably interstate) phases of the real estate transaction is an incidental rather than indispensable occurrence in the transactional chain of events.” Id., at 985. The United States Court of Appeals for the Fifth Circuit affirmed the dismissal of the complaint. 583 F. 2d 1315 (1978). Examining first the specific acts complained of in this case, the Court of Appeals concluded that they failed to satisfy the “in commerce” test. Realty was viewed as a quintessentially local product, and the brokerage activity described in the pleadings was found to occur wholly intrastate. Id., at 1319. Second, that court rejected petitioners’ “effect on commerce” argument. The interpretation of Goldfarb that had guided the District Court’s analysis was adopted by the Court of Appeals, which ruled that “unlike the attorneys in Goldfarb whose participation in title insurance was statutorily mandated, real estate brokers are neither necessary nor integral participants in the 'interstate aspects’ of realty financing and insurance.” 583 F. 2d, at 1321-1323. The Court of Appeals noted that the District Court had styled its judgment as a dismissal under Federal Rule of Civil Procedure 12 (b)(6) for failure to state a claim upon which relief could be granted, to be treated as a summary judgment insofar as matters outside of the pleadings were considered. The Court of Appeals concluded that the appropriate designation of the dismissal was for lack of subject-matter jurisdiction under Rule 12 (b)(1), and affirmed the dismissal on that basis. We granted certiorari. 441 U. S. 942. II A The broad authority of Congress under the Commerce Clause has, of course, long been interpreted to extend beyond activities actually in interstate commerce to reach other activities that, while wholly local in nature, nevertheless substantially affect interstate commerce. Wickard v. Filburn, 317 U. S. 111 (1942); United States v. Darby, 312 U. S. 100 (1941). This Court has often noted the correspondingly broad reach of the Sherman Act. Hospital Building Co. v. Rex Hospital Trustees, 425 U. S. 738, 743 (1976); United States v. Employing Plasterers Assn., 347 U. S. 186, 189 (1954); United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 558 (1944); Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 435 (1932). During the near century of Sherman Act experience, forms and modes of business and commerce have changed along with changes in communication and travel, and innovations in methods of conducting particular businesses have altered relationships in commerce. Application of the Act reflects an adaptation to these changing circumstances. Compare United States v. E. C. Knight Co., 156 U. S. 1, 12-15 (1895), and Hopkins v. United States, 171 U. S. 578, 587-592 (1898), with Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 231-235 (1948), and United States v. Employing Plasterers Assn., supra, at 189. The conceptual distinction between activities “in” interstate commerce and those which “affect” interstate commerce has been preserved in the cases, for Congress has seen fit to preserve that distinction in the antitrust and related laws by limiting the applicability of certain provisions to activities demonstrably “in commerce.” United States v. American Building Maintenance Industries, 422 U. S. 271 (1975); Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186 (1974); FTC v. Bunte Bros., Inc., 312 U. S. 349 (1941). It can no longer be doubted, however, that the jurisdictional requirement of the Sherman Act may be satisfied under either the “in commerce” or the “effect on commerce” theory. Hospital Building Co. v. Rex Hospital Trustees, supra, at 743; Gulf Oil Corp. v. Copp Paving Co., supra, at 194—195; United States v. Women’s Sportswear Manufacturers Assn., 336 U. S. 460, 464 (1949); Mandeville Island Farms, Inc. v. American Crystal Sugar Co., supra, at 235-237. Although the cases demonstrate the breadth of Sherman Act prohibitions, jurisdiction may not be invoked under that statute unless the relevant aspect of interstate commerce is identified; it is not sufficient merely to rely on identification of a relevant local activity and to presume an interrelationship with some unspecified aspect of interstate commerce. To establish jurisdiction a plaintiff must allege the critical relationship in the pleadings and if these allegations are controverted must proceed to demonstrate by submission of evidence beyond the pleadings either that the defendants’ activity is itself in interstate commerce or, if it is local in nature, that it has an effect on some other appreciable activity demonstrably in interstate commerce. Gulf Oil Corp. v. Copp Paving Co., supra, at 202. To establish the jurisdictional element of a Sherman Act violation it would be sufficient for petitioners to demonstrate a substantial effect on interstate commerce generated by respondents’ brokerage activity. Petitioners need not make the more particularized showing of an effect on interstate commerce caused by the alleged conspiracy to fix commission rates, or by those other aspects of respondents’ activity that are alleged to be unlawful. The validity of this approach is confirmed by an examination of the case law. If establishing jurisdiction required a showing that the unlawful conduct itself had an effect on interstate commerce, jurisdiction would be defeated by a demonstration that the alleged restraint failed to have its intended anticompetitive effect. This is not the rule of our cases. See American Tobacco Co. v. United States, 328 U. S. 781, 811 (1946); United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 225, n. 59 (1940). A violation may still be found in such circumstances because in a civil action under the Sherman Act, liability may be established by proof of either an unlawful purpose or an anti-competitive effect. United States v. United States Gypsum Co., 438 U. S. 422, 436, n. 13 (1978); see United States v. Container Corp., 393 U. S. 333, 337 (1969); United States v. National Assn, of Real Estate Boards, 339 U. S. 485, 489 (1950); United States v. Socony-Vacuum Oil Co., supra, at 224-225, n. 59. Nor is jurisdiction defeated in a case relying on anticom-petitive effects by plaintiff’s failure to quantify the adverse impact of defendant’s conduct. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 123-125 (1969); Bigelow v. RKO Radio Pictures, Inc., 327 U. S. 251, 265-266 (1946). Even where there is an inability to prove that concerted activity has resulted in legally cognizable damages, jurisdiction need not be impaired, though such a failure may confine the available remedies to injunctive relief. See Georgia v. Pennsylvania R. Co., 324 U. S. 439, 452-463 (1945); Keogh v. Chicago & N. W. R. Co., 260 U. S. 156 (1922). B The interpretation and application of our holding in Goldfarb v. Virginia State Bar, 421 U. S. 773 (1975), has figured prominently in this case. The District Court held that petitioners could establish federal jurisdiction only if the facts of this case could be brought within Goldfarb. As previously noted, as interpreted by that court, "any inquiry based upon [Goldfarb] must be twofold: 1) whether a ‘substantial’ volume of interstate commerce is involved in the overall real estate transaction, and 2) whether the challenged activity is an essential, intergral part of the transaction and inseparable from its interstate aspects.” 432 F. Supp., at 984. The Court of Appeals took a similar view of Goldfarb, holding that Sherman Act jurisdiction did not exist because petitioners had failed to demonstrate that real estate brokers are either necessary or integral participants in the interstate aspects of residential real estate financing and title insurance. 583 F. 2d, at 1322. It is with the second phase of the analysis of the District Court and of the Court of Appeals that we disagree. The facts of Goldfarb revealed an application of the state bar association’s minimum-fee schedule to fix fees for attorneys’ title examination services. Since the financing depended on a valid and insured title we concluded that title examination, was “an integral part” of the interstate transaction of obtaining financing for the purchase of residential property and, because of the “inseparability” of the attorneys’ services from the title examination process, we held that the legal services were in turn an “integral part of an interstate transaction.” 421 U. S., at 784-785. By placing the Goldfarb holding on the available ground that the activities of the attorneys were within the stream of interstate commerce, Sherman Act jurisdiction was established. The Goldfarb holding was not addressed to the “effect on commerce” test of jurisdiction and in no way restricted it to those challenged activities that have an integral relationship to an activity in interstate commerce. To adopt the restrictive interpretation urged upon us by respondents would return to a jurisdictional analysis under the Sherman Act of an era long past. It has been more than 30 years since this Court stated: “At this late day we are not willing to take that long backward step.” Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S., at 235. C On the record thus far made, it cannot be said that there is an insufficient basis for petitioners to proceed at trial to establish Sherman Act jurisdiction. It is clear that an appreciable amount of commerce is involved in the financing of residential property in the Greater New Orleans area and in the insuring of titles to such property. The presidents of two of the many lending institutions in the area stated in their deposition testimony that those institutions committed hundreds of millions of dollars to residential financing during the period covered by the complaint. The testimony further demonstrates that this appreciable commercial activity has occurred in interstate commerce. Funds were raised from out-of-state investors and from interbank loans obtained from interstate financial institutions. Multistate lending institutions took mortgages insured under federal programs which entailed interstate transfers of premiums and settlements. Mortgage obligations physically and constructively were traded as financial instruments in the interstate secondary mortgage market. Before making a mortgage loan in the Greater New Orleans area, lending institutions usually, if not always, required title insurance, which was furnished by interstate corporations. Reading the pleadings, as supplemented, most favorably to petitioners, for present purposes we take these facts as established. At trial, respondents will have the opportunity, if they so choose, to make their own case contradicting this factual showing. On the other hand, it may be possible for petitioners to establish that, apart from the commerce in title insurance and real estate financing, an appreciable amount of interstate commerce is involved with the local residential real estate market arising out of the interstate movement of people, or otherwise. To establish federal jurisdiction in this case, there remains only the requirement that respondents’ activities which allegedly have been infected by a price-fixing conspiracy be shown “as a matter of practical economics” to have a not insubstantial effect on the interstate commerce involved. Hospital Building Co. v. Rex Hospital Trustees, 425 U. S., at 745; see Goldfarb v. Virginia State Bar, supra, at 784, n. 11; Burke v. Ford, 389 U. S. 320, 321-322 (1967). It is clear, as the record shows, that the function of respondent real estate brokers is to bring the buyer and seller together on agreeable terms. For this service the broker charges a fee generally calculated as a percentage of the sale price. Brokerage activities necessarily affect both the frequency and the terms of residential sales transactions. Ultimately, whatever stimulates or retards the volume of residential sales, or has an impact on the purchase price, affects the demand for financing and title insurance, those two commercial activities that on this record are shown to have occurred in interstate commerce. Where, as here, the services of respondent real estate brokers are often employed in transactions in the relevant market, petitioners at trial may be able to show that respondents’ activities have a not insubstantial effect on interstate commerce. It is axiomatic that a complaint should not be dismissed unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U. S. 41, 45-46 (1957) ; see 5 C. Wright & A. Miller, Federal Practice and Procedure §§ 1202, 1205-1207, 1215-1224, 1228 (1969). This rule applies with no less force to a Sherman Act claim, where one of the requisites of a cause of action is the existence of a demonstrable nexus between the defendants’ activity and interstate commerce. Here, what was submitted to the District Court shows a sufficient basis for satisfying the Act’s jurisdictional requirements under the effect-on-commerce theory so as to entitle the petitioners to go forward. We therefore conclude that it was error to dismiss the complaint at this stage of the proceedings. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. Vacated and remanded. Me. Justice Marshall took no part in the consideration or decision of this case. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable 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, Appellee, v. Robert WALTERS, Appellant. No. 77-1122. United States Court of Appeals, Fourth Circuit. Argued Oct. 6, 1977. Decided Oct. 31, 1977. John McNally, Alexandria, Va. (Michael McGettigan, Murphy, McGettigan, McNally & West, Alexandria, Va., on brief), for appellant. John Brennan, Third Year Law Student (William B. Cummings, U. S. Atty., Alexandria, Va., and Douglas Ross, Sp. Asst. U. S. Atty., on brief), for appellee. Before WINTER, BUTZNER and HALL, Circuit Judges. PER CURIAM: Defendant was issued a violation notice at Washington National Airport charging him with a traffic violation. He was given the option of paying a fine of twenty-five dollars or appearing in court. Defendant elected to stand trial, and was tried by the district court. The judge, sitting without a jury, found the defendant guilty and imposed a fine of fifty dollars. Defendant appealed. We affirm. Defendant complains that the imposition of the fifty-dollar fine, double the initial fine defendant could have paid if he had not stood trial, penalized him for exercising his right to a trial, and thus denied him his constitutional rights under the fifth and sixth amendments. We disagree. In Colton v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), the Supreme Court upheld the two-tier lower judiciary system of Kentucky, even though a harsher sentence could be imposed after a trial de novo. We hold that the rationale of Colton applies to the case at bar, and that the imposition of a greater fine as a result of defendant’s trial did not violate his constitutional rights under either the fifth or sixth amendments. AFFIRMED. 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_appel1_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 first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant. NATIONWIDE INSURANCE COMPANY, Appellant, v. Marian RESSEGUIE; Larry C. Resseguie, Personal Representative of the Estate of Richard Resseguie, Deceased. No. 92-7131. United States Court of Appeals, Third Circuit. Argued Sept. 24, 1992. Decided Nov. 17, 1992. Richard B. Wickersham (argued), Brigid Q. Alford, Boswell, Snyder, Tintner & Pic-cola, Harrisburg, Pa., for appellant. D. Peter Johnson (argued), Matson & Johnson, Lewisburg, Pa., for appellees. Before: MANSMANN, ROTH and ROSENN, Circuit Judges. OPINION OF THE COURT ROTH, Circuit Judge: This suit arises from a dispute over the meaning of § 1734 of the Pennsylvania Motor Vehicle Financial Responsibility Law. Appellant Nationwide Insurance Company (“Nationwide”) contends that the underin-sured motorist coverage of its named insured, appellee Marian Resseguie, was lowered by the verbal request of her husband. We are required to evaluate whether under Section 1734 of the Pennsylvania Motor Vehicle Financial Responsibility Law a request to lower underinsured motorist coverage must be in writing to be effective. Nationwide Insurance Company sought a declaration in the district court that the limits of underinsured motorist coverage in its policy issued to Marian Resseguie are $15,000 per person and $30,000 per accident. Marian Resseguie asserts that the policy’s underinsured motorist limits are equal to its bodily injury liability limits of $50,000 per person and $100,000 per accident. In his memorandum opinion, the district judge stated that “[sjhort of a written request by Marian Resseguie for the lower coverage, or an admission on her part that she had actual knowledge of the lower coverage, Nationwide simply was not authorized to alter her policy.” Nationwide Insurance Co. v. Resseguie, 782 F.Supp. 292, 294 (M.D.Pa.1992) (emphasis added). The meaning of § 1734 is clear; we will therefore affirm the judgment of the district court insofar as it is based on the requirement that a request for lower coverage be in writing by a named insured. However, we do not agree with the further holding of the district court that “an admission on [Marian Resseguie’s] part that she had actual knowledge of the lower coverage” is legally significant. I. The parties do not dispute the material facts in this case. On July 28, 1983, Marian Resseguie signed an automobile insurance application for Nationwide automobile insurance on her 1980 Plymouth Volare four-door sedan. The application provided for bodily injury limits of $50,000 per person and $100,000 per accident (“$50,000/ $100,000”) and uninsured motorist (“UM”) coverage with limits of $15,000/$30,000. Marian Resseguie was the sole named insured on the policy; both Marian and her husband Richard were listed as drivers under the policy. On October 1, 1984, the Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa.Cons.Stat.Ann. §§ 1701-99 (Supp. 1992) became effective. On November 14, 1984, approximately two and one-half months before the first policy renewal date following the MVFRL’s enactment, Nation-, wide mailed the “IMPORTANT NOTICE” required under § 1791 of the MVFRL to Marian Resseguie. The “IMPORTANT NOTICE” advised her that, pursuant to the MVFRL, Nationwide made available to her higher UM and underinsured motorist (“UIM”) coverage equal to the bodily injury liability limits of $50,000/$100,000. Nationwide also mailed her an options selection form. On January 8, 1985, approximately twenty days before the renewal date of January 28, 1985, Nationwide mailed to Marian Res-seguie a renewal notice indicating that Nationwide had automatically provided the higher UM/UIM coverage because they had not received her option selection form. The renewal notice further advised her to contact her agent if she desired to make changes to her policy or to discuss the available options. Marian Resseguie did not contact her agent to make changes and on February 15, 1985, she personally delivered a cash payment to her Nationwide agent for the higher UIM coverage. On February 20, 1985, Nationwide issued and mailed to Marian Resseguie a policy with bodily injury liability limits of $50,000/ $100,000 and UM/UIM coverage limits of $50,000/$100,000. The message on the policy’s declaration page read: “Thank you for your renewal premium payment. This new policy replaces your former no-fault personal injury protection with your new first-party injury benefits coverages. — See premium notice enclosed.” App. at 61. On February 20,1985, Richard Resseguie orally requested from Nationwide a reduction in UIM coverage limits from $50,000/ $100,000 to $15,000/$30,000. Following Richard Resseguie’s verbal request, a Nationwide agent’s secretary, in her own handwriting, issued a customer service request (“CSR”) providing for a reduction in UIM coverage from $50,000/$100,000 to $15,000/$30,000. Based upon this CSR, on March 5, 1985, Nationwide issued and mailed to Marian Resseguie a declaration setting forth the lower UM/UIM coverage limits on her policy. The message on the policy’s declaration page read: “Your policy has been changed effective 1/28/85 resulting in a premium reduction of $11.60 which has been applied to your premium balance. We have, on your 80 Plymouth Volare changed uninsured motorists coverage —See premium notice enclosed.” App. at 67. Marian Resseguie, the named insured, never personally requested, either in writing or orally, that Nationwide lower her UM/UIM coverage limit from $50,000/ $100,000 to $15,000/$30,000, nor did she specifically authorize or direct her husband to do so. Furthermore, Nationwide never obtained a written request for the lower limits from Marian Resseguie. However, from 1985 up until 1989 Marian Resseguie received premium notices and paid premiums based on the $15,000/$30,000 UM/ UIM coverage. Richard Resseguie was killed in an automobile accident on January 2, 1989, when a drunk driver hit his car head on. Richard Resseguie was an insured person under Marian Resseguie’s policy from Nationwide because he was a listed driver and because he was driving one of two vehicles insured under the policy at the time of his death. Marian Resseguie recovered the limits of the tortfeasor’s liability policy; yet, the recovery was insufficient to cover her losses or the estate’s loss. Marian Resseguie notified Nationwide of her intent to request the higher UIM coverage limits on the policy. After learning of Marian Resseguie’s intention, Nationwide initiated this action in the district court for a declaratory judgment determining the UIM coverage limits of her policy. On February 7, 1992, the United States District Court for the Middle District of Pennsylvania entered an Order and Memorandum Opinion, 782 F.Supp. 292, in favor of the Resseguies and against Nationwide. The district court judge accepted and adopted the parties’ Joint Statement of Stipulated Facts as the Findings of Fact and declared that, at the time of Richard Resseguie’s death, Marian Resseguie’s car insurance policy had underinsured motorist coverage equal to the bodily injury liability coverage of $50,000 per person and $100,-000 per occurrence. See App. at 131-32. II. The United States District Court for the Middle District of Pennsylvania had jurisdiction over this action based upon 28 U.S.C. §§ 2201 and 1332(a). Nationwide is a foreign corporation organized and existing under the laws of Ohio. Marian and Larry Resseguie reside in Lewisburg, Union County, Pennsylvania. We have jurisdiction over this appeal based upon 28 U.S.C. § 1291. The district court, as a federal court exercising diversity jurisdiction over this declaratory judgment action, was obliged to apply the substantive law of the state in which it sits. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Because there is no reported decision by the Pennsylvania Supreme Court or by any Pennsylvania court that construes § 1734, the duty of the district judge under the Eñe doctrine was to predict how the Pennsylvania Supreme Court would interpret the requirements of § 1734 if this case were before it. Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1167 (3d Cir.1981). The district judge appears to have made his prediction of Pennsylvania law based on the plain meaning doctrine of statutory interpretation. We review the district judge’s prediction as a determination of law, over which we exercise plenary review. Compagnie des Bauxites de Guinee v. Ins. Co. of N. Am., 724 F.2d 369, 371-72 (3d Cir.1983). In attempting to forecast state law, we must “consider relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand.” McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 663 (3d Cir.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 237 (1980). See also Safeco Ins. Co. of Am. v. Wetherill, 622 F.2d 685, 688 (3d Cir.1980); Becker v. Interstate Properties, 569 F.2d 1203, 1205 (3d Cir.1977), cert. denied, 436 U.S. 906, 98 S.Ct. 2237, 56 L.Ed.2d 404 (1978). III. Our central focus in this appeal is on §§ 1731(a) and 1734 of the MVFRL that (1) require an insurer to provide UIM coverage equal to the bodily injury coverage in its policies and (2) allow a named insured to request lower UIM coverage limits than the bodily injury coverage amounts. As a result of the enactment of the MVFRL, as of October 1, 1984, every motor vehicle liability insurance policy issued or renewed in the Commonwealth of Pennsylvania had to provide underinsured motorist coverage. Section 1731 of the Act provides, inter alia: § 1731. Scope and amount of coverage: (a) General rule. — No motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth, with respect to any motor vehicle registered or principally garaged in this Commonwealth, unless uninsured motorist and underinsured motorist coverages are provided therein or supplemental thereto in amounts equal to the bodily injury liability coverage except as provided in section 1734 (relating to request for lower or higher limits of coverage). 75 Pa.Cons.Stat.Ann. § 1731(a) (1984). Section 1734, the only exception to the mandatory provisions of underinsurance mentioned in § 1731(a), states in pertinent part: § 1734. Request for lower or higher limits of coverage A named insured may request in writing the issuance of coverages under section 1731 (relating to scope and amount of coverage) in amounts less than the limits of liability for bodily injury but in no event less than the amounts required by this chapter for bodily injury. 75 Pa.Cons.Stat.Ann. § 1734 (Supp.1992) (emphasis added). Nationwide argues that Marian Resse-guie’s signature on a request form was simply not a prerequisite to Nationwide’s lowering her UIM coverage. Nationwide contends that “the clear meaning of section 1734 of the MVFRL is that an insured’s request for lower [underinsured] benefits be recorded in writing. Nowhere does the statute require that the insured sign that writing, or that the writing itself be actually transcribed by the insured....” The Resseguies argue that, according to § 1734, Nationwide is absolutely unauthorized to lower the UIM coverage without the written request of the named insured to do so. The district court found that the statutory scheme of the MVFRL is clear. “Section 1734 requires the named insured to request in writing that the limits of her coverage be lowered. Short of a written request by Marian Resseguie for the lower coverage, ... Nationwide simply was not authorized to alter her policy.” Nationwide, 782 F.Supp. at 294. We agree with this portion of the district court’s holding. We must then predict whether the Pennsylvania Supreme Court, given the facts of this case, would have come to the same interpretation of § 1734. Our task is made simple by virtue of the venerable plain meaning rule of statutory construction: “If the language be clear it is conclusive. There can be no construction where there is nothing to construe.” United States v. Hartwell, 73 U.S. (6 Wallace) 385, 396, 18 L.Ed. 830 (1867). Pennsylvania’s Statutory Construction Act commands the same: “When the words of the statute are clear and free from all ambiguity, the letter of it is. not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.Cons.Stat. Ann. § 1921(b) (Supp.1992). The Resseguies argue, and we agree, that § 1731 is a simple statement whose plain meaning is apparent from its language. It mandates that an insurance company cannot issue a policy in the Commonwealth of Pennsylvania unless it provides UM/UIM coverage equal to the bodily injury liability coverage, except as provided in § 1734. See also Wolgemuth v. Harleysville Mut. Ins. Co., 370 Pa.Super. 51, 535 A.2d 1145, 1147, appeal dismissed, 520 Pa. 590, 551 A.2d 216 (Pa.1988) (every motor vehicle liability insurance policy issued in the Commonwealth of Pennsylvania must provide underinsurance coverage). Nationwide does not quarrel with this interpretation of § 173l’s mandate. The Resseguies also argue, and we also agree, that § 1734’s language is plain and the Pennsylvania General Assembly’s intention is clear. By its terms, a named insured may lower her statutorily provided UIM coverage limits by requesting in writing of her insurer to do so. The insurance company’s obligation to issue a policy with UIM coverage in an amount equal to the policy’s bodily injury liability coverage is not relieved unless it has received such a written request. Moreover, a brief review of the history and purpose of UIM coverage evinces the standard by which to interpret § 1734 and supports our conclusion. Prior to the passage of the MVFRL, underinsured motorist coverage, unlike uninsured motorist coverage, was not required in Pennsylvania or regulated by statute. See Votedian v. General Acc. Fire and Life Assur. Corp., 330 Pa.Super. 13, 478 A.2d 1324, 1327 (1984). The Pennsylvania Supreme Court in Davis v. Government Employees Ins. Co., 500 Pa. 84, 454 A.2d 973 (1982), recognized the often inequitable results occasioned by the failure to require mandatory underinsured motorist coverage and noted: the oft cited anomaly that those in the position of [claimants who had purchased uninsured motorist coverage and who were injured by a minimally insured driver] would find themselves in a better position were the tortfeasor’s vehicle totally uninsured rather than underin-sured.” Gorton v. Reliance Ins. Co., [77 N.J. 563], 391 A.2d 1219, 1223 (N.J.1978). This anomaly, however, stems from the fact that the legislature has chosen not to require insurance coverage for those instances in which a tortfeasor’s insurance is insufficient to satisfy the injured party’s claim. Davis, 454 A.2d at 976 (footnote omitted). The Pennsylvania General Assembly responded to and resolved this anomaly with the passage of the MVFRL. See Wolgemuth, 535 A.2d at 1148. The purpose of underinsured motorist coverage is to protect the insured (and his additional insureds) from the risk that a negligent driver of another vehicle will cause injury to the insured (or his additional insureds) and will have inadequate liability coverage to compensate for the injuries caused by his negligence. Thus, an insured who purchases $100,000 of liability coverage to protect others from his negligence, must, by law, be offered the option of purchasing up to $100,000 of underin-sured motorist coverage to protect himself and his additional insureds from the risk that they will be severely injured by a negligent driver who has liability coverage in an amount insufficient to fully compensate them for their injuries. Wolgemuth, 535 A.2d at 1149. The Pennsylvania Supreme Court decided Johnson v. Concord Mut. Ins. Co., 450 Pa. 614, 300 A.2d 61 (1973) before the General Assembly enacted the MVFRL. However, the high court supplied the statutory construction scheme which remains relevant to this case: [o]ur determination here is in harmony with the view that the “statute evolves from public policy considerations and must be broadly and liberally construed to accomplish this purpose. Conversely, that portion of the statute permitting rejection of uninsured motorist coverage detracts from the public policy considerations and must therefore be narrowly and strictly construed. Johnson, 300 A.2d at 64 (emphasis added). Reduction of Marian Resseguie’s UIM coverage limits in this case detracts from the public policy considerations but is permissible; just as rejection of UM coverage in Johnson detracted from public policy considerations. Therefore, we predict that the Pennsylvania Supreme Court would narrowly and strictly construe the provision of the MVFRL that allows an insured to request lower UIM coverage limits than are mandated by § 1731. We therefore reject Nationwide’s argument that “the writing necessary to effect Marian Resseguie’s request that her UIM benefits be reduced ... is the February 20, 1985 written Customer Service Request, generated as a result of Richard Resseguie’s verbal instructions to the Nationwide Insurance office.” We agree with the district court that to accept Nationwide’s argument on the meaning of § 1734 “would defeat the purpose of the MVFRL by creating unintended ambiguities in the law. It is a very simple, clear-cut rule for an insurance company to follow — to lower the limits it must insist on a written authorization signed by the named insured.” Nationwide, 782 F.Supp. at 294. Furthermore, as the district court correctly pointed out, all of the cases that Nationwide cites in support of its argument are factually distinguishable. In those cases, it was undisputed that at least one of the named insureds had requested, either in writing or orally, a change in the limits. Richard Resseguie was not a named insured on Marian Resseguie’s policy. In the two cited cases involving oral requests, Nationwide Ins. Co. v. Tantorno, No. 90-4639, 1991 WL 24921, 1991 U.S. Dist. LEXIS 2169 (E.D.Pa. February 19, 1991) and Electric Insurance Co. v. Richardson, No. 91-2338, 1991 WL 259054, 1991 U.S. Dist. LEXIS 17487 (E.D.Pa. December 3, 1991), the named insureds orally requested an increase of the bodily injury rates on a policy that the court found had been lawfully issued under § 1731. This case involves an oral request for a reduction in the UM/UIM coverage limits. IV. For the foregoing reasons, we will affirm the judgment of the district court insofar as it is based on the requirement that a request for lower coverage be in writing by a named insured. We will, however, reject the district court’s holding that an admission on the part of the named insured that she had actual knowledge of the lower coverage is legally significant. . A CSR, Nationwide’s abbreviation for Customer Service Request, is a document used by Nationwide agents to inform the regional Nationwide office that a customer wishes to add to, delete from, or otherwise change his or her existing policy terms. Upon receiving direction from a customer that she wishes to change a policy term (including but not limited to coverage limits, and number or type of vehicles), the Nationwide agent or, at his direction, the agent’s employee, fills out a CSR manually in the agent's office, and sends the CSR to the regional Nationwide office, where Nationwide enters the changes into the system and sends a copy of the revised declaration page to the policyholder, and a copy of the CSR showing the revised coverages to the local agent. See App. at 25. . Despite its omission from the declaration page, underinsured motorist coverage, not uninsured motorist coverage, is the subject of this case and was similarly changed. . The MVFRL states that "[u]nderinsurance motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of underinsured motor vehicles.” 75 Pa.Cons.Stat.Ann. § 1731(c) (Supp. 1992). An underinsured motor vehicle is "a motor vehicle for which the limits of available liability insurance and self-insurance are insufficient to pay losses and damages." Id. at § 1702. .Defendant, Larry C. Resseguie, is the son of Richard Resseguie and is the personal representative of Richard Resseguie’s estate. See App. at 22. . The insured may not, however, purchase UIM coverage in an amount greater than the amount of her bodily injury coverage. See Pa.Cons.Stat. Ann. § 1736. The legislature has thus prevented an insured from providing greater coverage, via UM/UIM coverages, for herself and her additional insureds than the amount of coverage she provides for others injured through her negligence. . The rationale behind this circumscription is that "limits which the insured judged adequate for the protection of others was [sic] generally considered reasonable for his own protection.” 3 No-Fault and Uninsured Motorist Coverage § 30.10(1) (B. Denkensohn ed. 1986) cited in Linda L. Rovder, “In Good Hands" or “Bad Faith"? An Insurer’s Failure to Waive Subrogation Rights in Pennsylvania Underinsured Motorist Cases, 91 Dick.L.Rev. 981, 993 (1987). . The statutory language of sections 1731 and 1734 prior to July 1, 1990 govern this case. Act No. 1990-6 amended these sections slightly. . Nationwide also argues that the district court erred, as a matter of law, in failing to decide whether Richard Resseguie was Marian Resse-guie’s agent and whether his verbal request to lower the UIM coverage limits on her policy were binding upon her, as principal. Because the plain meaning of § 1734 of the MVFRL resolves the legal issue in this case, we do not need to reach Nationwide’s agency claim on appeal. . In Johnson, the court construed a predecessor statute to the MVFRL, the No-Fault Motor Vehicle Insurance Act, 40 Pa.Cons.Stat.Ann. § 2000 (1971). . The rationale for the inclusion of mandatory underinsured motorist coverage in the MVFRL was not the subject of debate or specific discussion by the members of either the House or the Senate. However, James F. Mundy, as President of the Pennsylvania Trial Lawyers Association, testified before the Pennsylvania legislature on the MVFRL. Mr. Mundy co-authored a book which "offer[s] practitioners and the judiciary an instructional work to assist in making one’s way through the complex legal permutations and gyrations" of the MVFRL. His interpretation of §§ 1731 and 1734 is that "[t]he insurer must provide coverage in an amount equal to the insured’s liability limits unless the insured expressly requests lower limits in writing.” James F. Mundy et al., Pennsylvania Motor Vehicle Insurance: An Analysis of the Financial Responsibility Law at 7 (1986) (emphasis added). Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant? A. bank B. insurance C. savings and loan D. credit union E. other pension fund F. other financial institution or investment company G. unclear Answer:
songer_appbus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Robert E. CROWLEY, Defendant-Appellant. No. 73-1437. United States Court of Appeals, Seventh Circuit. Argued Dec. 5, 1973. Decided Sept. 30, 1974. Michael J. Guinan, Chicago, 111., for defendant-appellant. James R. Thompson, U. S. Atty., Gary L. Starkman and Michael D. Monico, Asst. U. S. Attys., Chicago, 111., for plaintiff-appellee. Before SWYGERT, Chief Judge, SPRECHER, Circuit Judge, and POOS, Senior District Judge. Honorable Omer Poos, Senior District Judge for the Southern District of Illinois, is sitting by designation. POOS, Senior District Judge. Defendant, Robert E. Crowley, was indicted in a one count indictment for violation of the Hobbs Act, 18 U.S.C. Sec. 1951. Following a trial by jury, defendant was found guilty and sentenced to two years imprisonment. This appeal follows that conviction. Jack David and Jerome Morris, hereinafter referred to as David and Morris, were the proprietors of the Bryn Mawr Bowling Lanes located in Chicago’s south side. In recent years their business, which was located in a racially changing area, had experienced numerous thefts and violent disturbances. The proprietors soon discovered that without sufficient police protection they were unable to properly and profitably continue their business enterprise. It is within this factual milieu that defendant, a police officer for the Chicago Police Department, enters. In the fall of 1971, David and Morris were separately introduced to defendant Crowley by another unidentified policeman who had been receiving pay-offs from the two men. Crowley was introduced to each of the alleged victims as the man who would continue to collect the monthly pay-offs. Subsequently, the proprietors paid one hundred dollars ($100) per month from November, 1971 to April, 1972, on approximately the fourteenth (14th) of each month. The manner of payment involved either of the two men writing a check for the designated amount, cashing it, and then giving the sum of money to defendant when he entered the premises. Defendant admitted to having received the money but contended that it was voluntary remuneration for services rendered to the alleged victims, i. e., providing security for the premises while on and off duty. The record further discloses, however, that defendant never performed, nor was asked to perform any services for David or Morris. Officer Crowley never personally arrested or caused anyone to be arrested on the bowling establishment premises. Oft times the alleged victims complained that they were not receiving adequate police assistance when needed. Crowley reassured David and Morris and indicated that their complaint would be remedied. The proprietors testified, however, that the only time they ever observed defendant during the period in question was when he collected the payments. Finally, on April 14, 1972, the aforementioned relationship between the proprietors and defendant ended. On that morning Agent Noble of the Federal Bureau of Investigation handed David five twenty dollar bills, which he had previously photostated. Subsequent thereto, defendant entered the bowling alley and encountered David. David complained that despite the payments adequate police protection was not being afforded; defendant assured David that the service would improve. It was during this conversation that David gave the five twenty dollar bills to defendant, who placed them on his person. As defendant Crowley exited the premises he was apprehended by Agent Noble, who in comparing the bills in Crowley’s possession found them to correspond to those previously given David. Defendant’s trial and conviction stemmed from this arrest. Defendant’s first contention on appeal is that the government’s evidence of extortion was insufficient to sustain a conviction under the Hobbs Act, 18 U.S.C., Sec. 1951.1 In support thereof, defendant argues that while the evidence may support a charge of bribery, it wholly fails to prove a crime of extortion in that there was no indication that Crowley’s actions engendered a reasonable fear of harm in the minds of the alleged victims. In essence, defendant alleges that it was necessary for the government to prove not only that defendant obtained the property of another, with his consent, while acting “under color of official right” but also within the “wrongful use of actual or threatened force, violence, or fear.” In setting forth such an exposition, defendant clearly misreads 18 U.S.C., Sec. 1951 and the case law pertinent thereto. Even a cursory reading of the statute reveals that it is phrased in the disjunctive. Furthermore, United States v. Kenny, 462 F.2d 1205 (3rd Cir. 1972), supports this interpretation, (While) private persons may violate the statute only by use of fear and public officials may violate the act by use of fear, persons holding public office may also violate the statute by a wrongful taking under color of official right. . . . The “under color of official right” language plainly is disjunctive. That part of the definition repeats the common law definition of extortion, a crime which could only be committed by a public official and which did not require proof of threat, fear, or duress. 462 F.2d at 1229. This holding comports with the Supreme Court’s concept of common law extortion. In United States v. Nardello, 393 U.S. 286, 289, 89 S.Ct. 534, 536, 21 L.Ed.2d 487 (1969), the Court discussed the meaning of extortion in the Hobbs Act’s companion statute, 18 U.S.C., Sec. 1952. It stated: At common law a public official who under color of office obtained the property of another not due either to the office or the official was guilty of extortion. In many States, however, the crime of extortion has been statutorily expanded to include acts of private individuals under which property is obtained by means of force, fear, or threats. With reference to the foregoing analysis it appears that the jury in the instant case was warranted in finding that defendant committed extortion “under color of official right.” The jury was properly instructed on this facet of the extortion statute. Furthermore, the evidence taken in the light most favorable to the government, established that Crowley obtained money to which he was not entitled while in uniform and in the performance of his official duties. Defendant was introduced to the proprietors as the man who would collect the pay-offs. Crowley performed no services for David and Morris, and they expected non of him. The evidence was therefore sufficient for the jury to conclude that it was defendant’s uniform — his office — that induced David and Morris to make the payments. Defendant has cited numerous cases which stand for the proposition that fear or duress is a necessary element for the crime of extortion. United States v. Hyde, 448 F.2d 815 (5th Cir. 1971), cert, denied, 404 U.S. 1058, 92 S.Ct. 736. 30 L.Ed.2d 745, is the authority predominantly relied upon for this proposition. Hyde, however, did not explicitly deal with the “under color of official right” aspect of the Hobbs Act and therefore is clearly distinguishable, There was evidence in this ease to support a finding that the defendants coerced companies into paying fees in order to avoid harmful legal action. In some cases explicit threats were made. 448 F.2d at 833. It is apparent that the Court in Hyde was not concerned and did not decide the issue relevant to the resolution of the instant case. As to the remaining authorities cited by defendant, suffice it to say that they concerned private, not public participants in the crime of extortion and therefore are inapposite. This Court need not solely rest upon the above rationale to support the jury’s finding in the instant case. The evidence contained in the record, both direct and circumstantial, proved that the proprietors of the Bryn Mawr Bowling Lanes paid defendant because they feared if adequate police protection was not provided, their business would be plagued by financial loss. It is readily conceded that the business establishment was the target of frequent incidents of vandalism and violence. David and Morris, like other businessmen in the racially changing neighborhood, were often forced to summon the police, and found, not infrequently, that assistance was slow in arriving. Hence, David and Morris were highly susceptible targets for such extortionate practices as set forth in the indictment. The testimony reveals that another policeman, who had been collecting from the proprietors, represented that defendant would continue to collect the payments. Defendant represented to the victims that he would arrange for improved police service. David and Morris obviously recognized that if adequate police service was not forthcoming the spectre of financial ruin would become an immediate reality. It is important to note that it is unnecessary for the government to prove that defendant actually created the fear in the minds of his victims. Rather, as the Court in Callanan v. United States, 223 F.2d 171, 174-176 (8th Cir. 1955), cert. denied, 350 U.S. 862, 76 S.Ct. 102, 100 L.Ed. 764, held, the exploitation of the victim’s reasonable fear constitutes extortion regardless of whether or not the defendant was responsible for creating that fear and despite the absence of any direct threats. Accordingly, Crowley was charged with extorting money through the use of economic harm, the issue on which the jury heard evidence, was instructed, and reasonably could have concluded the defendant’s guilt. Defendant asserts a two-pronged attack on this aspect of the jury’s adverse conclusion. Initially, defendant cites various contradictions that were revealed in the witnesses’ testimony during examination at trial and relies on the issue of credibility to subvert the jury’s finding. Glasser v. United States, 315 U.S. 60, 77-80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), properly repudiates defendant’s proposition: The short answer to this is that the credibility of a witness is a question for the jury . . . It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it. There appears no reason on appeal to disturb the jury’s resolution of this issue. Secondly, defendant attempts to dispel the jury’s verdict of guilt by relying upon David’s and Morris’s testimony that defendant Crowley always comported himself as a gentleman and never confronted them in a threatening manner. Integrally related to this proposition is defendant’s contention that the proof substantiates that the money acquired from David and Morris was paid voluntarily as remuneration for services rendered. United States v. Hyde and Glasser v. United States, supra, are dis-positive of defendant’s dual faceted proposition. In addressing itself to the former, the Court need only recall the language of Hyde, The fact that relations between the victims and the extorters were often cordial is not inconsistent with extortion. 448 F.2d at 834. As to the latter, the Court again reiterates its previous discussion on the issue of credibility on appellate review. As a second ground constituting reversible error, defendant asserts that the lower Court’s proffered instruction as to extortion “under official color of right” was not a proper statement of the applicable law. In reliance thereon, defendant contends that the trial court’s instruction was not sanctioned either by existing case law or authoritative literature. The Court is cognizant that this argument is merely an embellishment of the premise raised in defendant’s first argument. As previously mentioned there is ample support for the trial court’s instruction as to what constitutes extortion “under color of official right.” An examination of both Nardello and Kenny, supra, compel the conclusion that the instruction was in accord with the plain reading of the statute and the common law definition of the phrase in question. Attention should also be called to the fact that the trial judge did not give the alleged erroneous instruction until he completed comprehensive instructions explaining extortion induced by fear of economic loss and delineating defendant’s theory of defense, i. e., that the payments were voluntary. The theory which defendant presently urges the Court to accept was specifically submitted for the jury’s consideration and decided adversely to defendant. It is apparent from the foregoing that the instructions fairly represented the applicable law pertaining to extortion and do not necessitate reversal. Defendant’s final argument on appeal asserts that there was insufficient proof that the charged acts affected interstate commerce under the Hobbs Act. It was stipulated by counsel at trial that if the Products Manager of the Brunswick Corporation were called to testify, he would state that the Bryn Mawr Bowling Alley bought supplies and equipment, from the Brunswick Corporation, which were manufactured outside the state of Illinois. The main thrust of defendant’s argument is that the aforementioned stipulation fails to establish that defendant’s conduct affected interstate commerce as per the Hobbs Act and pertinent case law. Defendant relies upon Walling v. Goldblatt Bros., 128 F.2d 778 (7th Cir. 1942) to support his proposition. It suffices to say that the Court finds Goldblatt inapposite, for it did not concern a violation of 18 U.S.C., Sec. 1951 but of the Fair Labor Standards Act of 1938, 52 Stat. 1060; 29 U.S.C.A., Sec. 201 et seq. That statutory provision did not attempt to regulate activities “affecting commerce” but only those activities “in commerce.” Nor are the remaining cases listed seriatim by defendant any more persuasive; none of them concerns the Hobbs Act or an equivalent penal statute. The notion that interstate commerce cannot be “affected” once items have “come to rest” was decisively rejected by the Supreme Court in Burke v. Ford, 389 U.S. 320, 88 S.Ct. 443, 19 L.Ed.2d 554 (1967). That case arose under the Sherman Act, which also proscribed activities having an effect on interstate commerce; the Supreme Court stated, The District Court and the Court of Appeals found that the liquor “came to rest” in the wholesalers’ warehouses and that interstate commerce ceased at that point. Hence, they concluded that the wholesalers’ division of the Oklahoma market did not take place “in interstate commerce.” But whatever the validity of that conclusion, it does not end the matter. For it is well established that an activity which does not itself occur in interstate commerce comes within the scope of the Sherman Act if it substantially affects interstate commerce. 389 U.S. 321, 88 S.Ct. 443, 444, 19 L.Ed.2d 554 (1967). It is important to note that unlike the Sherman Act, the Hobbs Act does not require that the effect on interstate commerce be substantial. Extortionate conduct having an arguably de minimis effect on commerce may nevertheless be punished. See for e. g., United States v. De Met, 486 F.2d 816 (7th Cir. 1973); United States v. Tropiano, 418 F.2d 1069 (2nd Cir. 1969), cert. denied, 397 U.S. 1021, 90 S.Ct. 1262, 25 L.Ed.2d 530; Battaglia v. United States, 383 F.2d 303 (9th Cir. 1967), cert. denied, 390 U.S. 907, 88 S.Ct. 817, 19 L.Ed.2d 874; United States v. Augello, 451 F.2d 1167 (2nd Cir. 1971), cert. denied, 405 U.S. 1070, 92 S.Ct. 1518, 31 L.Ed.2d 802; United States v. Glasser, 443 F.2d 994 (2nd Cir. 1971), cert. denied, 404 U.S. 854, 92 S.Ct. 96, 30 L.Ed.2d 95; United States v. Mitchell, 463 F.2d 187 (8th Cir. 1972). This analysis is in accord with the Supreme Court’s decision delineating the purview of the Hobbs Act. In United States v. Stirone, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960), the Court stated in part, . . . [it] speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence. In the instant case it was established by stipulation that the supplies and equipment of the Bryn Mawr Bowling Lanes were purchased from manufacturers outside the state of Illinois. There was an implied threat that if payment was not made to Officer Crowley, the victims would not receive adequate police service, with the resultant effect of impairment of the business enterprise. It was further established that the assets of the bowling lanes were depleted by the payment of one hundred dollars ($100) per month for six months. This Court observed in United States v. De Met, supra, Where the victim of extortion, as here, customarily obtains inventory which has come from outside the state, obstructions and delay of, and effect upon commerce may, for the purpose of the Hobbs Act, be found in curtailment of the victim’s potential as a buyer of such goods. This may be traced either through the depletion of his assets by his fulfillment of the extortionate demands or the harm which would follow if the threats were carried out. See also, United States v. Pacente, 503 F.2d 543 (7th Cir. 1974). It conclusively appears that defendant’s extortionate conduct in the instant case sufficiently affected interstate commerce to satisfy the jurisdictional requirements of the Hobbs Act. In light of the foregoing analysis the Court finds defendant Crowley’s contentions on appeal to be without merit. Accordingly, the conviction of defendant, Robert E. Crowley, is hereby affirmed. . The act reads, in pertinent part, whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this sec' tion shall be fined not more than $10,000 or imprisoned not more than twenty years, or both . The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear or under color of official right. . Hobbs Act, 18 U.S.O., Sec. 1951. . In part the statute reads, The term “extortion” means the obtaining of property from another ... or under color of official right. Emphasis added. . For further exposition on common law extortion, see, 2 Wharton’s Criminal Law, Sec. 1904 (12th Ed. 1932) ; 4 Blackstone 141; Stern, Prosecutions of Local Political Corruption under the Hobbs Act: The Unnecessary Distinction Between Bribery and Extortion, 3 Seton Hall L.Rev. 1, 17 (1971). . Extortion under color of official right by a law enforcement officer need not involve force or threat. If a victim reasonably feels compelled to pay money to a law enforcement officer, because of that officer’s wrongful use of his official position for the purpose of obtaining money, the requirements of the crime of extortion under color of official right are satisfied. . Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). . United States v. Nardello, supra, 393 U.S. at 289, 89 S.Ct. 534. . Bianchi v. United States, 219 F.2d 182 (8th Cir. 1955), cert. denied, 349 U.S. 915, 75 S.Ct. 604, 99 L.Ed. 1249; United States v. Sopher, 362 F.2d 523, 527 (7th Cir. 1966), cert. denied, 385 U.S. 928, 87 S.Ct. 286, 17 L.Ed. 2d 210; United States v. De Met, 486 F.2d 816 (7th Cir. 1973). . See also: United States v. Karigiannis, 430 F.2d 148 (7th Cir. 1970), cert. denied, sub nom., Panagiotopoulos v. United States, 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141. . Trial Court’s instruction, supra. . Trial Court’s Instruction No. 13: The mere voluntary payment of the money, unaccompanied by any feeling of compulsion or duress, does not constitute extortion. Unless the payments here involved were made under some form of compulsion or duress, there has been no extortion. . 18 U.S.C., Sec. 1951, the Hobbs Act, provides in pertinent part: whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion . The threat to do something which would affect commerce satisfies the commerce aspect of the statute. See, United States v. Pranno, 385 F.2d 387 (7th Cir., 1967), cert. denied, 390 U.S. 944, 88 S.Ct. 1028, 19 L.Ed.2d 1132 (1968). Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
sc_issue_10	F	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. NEBRASKA DEPARTMENT OF REVENUE v. LOEWENSTEIN No. 93-823. Argued October 11, 1994 Decided December 12, 1994 Thomas, J., delivered the opinion for a unanimous Court. L. Jay Bartel, Assistant Attorney General of Nebraska, argued the cause for petitioner. With him on the briefs was Don Stenberg, Attorney General. Terry R. Wittier argued the cause for respondent. With him on the brief was Larry A. Hollé. Briefs of amici curiae urging reversal were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, Timothy G. Laddish, Assistant Attorney General, Joyce E. Hee, Deputy Attorney General, and Patrick J. Kusiak, and by the Attorneys General for their respective jurisdictions as follows: James H. Evans of Alabama, Grant Woods of Arizona, Charles M. Oberly III of Delaware, Roland W. Burris of Illinois, Pamela Carter of Indiana, Chris Gorman of Kentucky, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Scott Harsh-barger of Massachusetts, Frank J. Kelley of Michigan, Jeffrey R. Howard of New Hampshire, Deborah T. Poritz of New Jersey, Tom Udall of New Mexico, G. Oliver Koppell of New York, Heidi Heitkamp of North Dakota, Susan Brimer Loving of Oklahoma, Theodore R. Kulongoski of Oregon, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, James S. Gilmore 111 of Virginia, and James E. Doyle of Wisconsin; and for the Council of State Governments'et al. by Richard Ruda and Lee Fennell. Briefs of amici curiae urging affirmance were filed for The Dreyfus Corporation by Jeffrey S. Sion; and for the Investment Company Institute by Albert G. Lauber, Jr., Paul Schott Stevens, and Catherine Heron. Thomas C. Baxter, Jr., filed a brief for the Federal Reserve Bank of New York as amicus curiae. Justice Thomas delivered the opinion of the Court. We took this case to decide whether States may tax interest income derived from repurchase agreements involving federal securities. If the income that taxpayers earn by participating in such agreements constitutes interest on federal securities, then the taxation violates 31 U. S. C. § 3124(a), which exempts interest on “obligations of the United States Government” from taxation by States. On the other hand, if that income constitutes interest on loans to a private party, the taxation is not prohibited by the statute. With respect to the repurchase agreements at issue in this case, we conclude that for purposes of § 3124(a), the interest earned by taxpayers is interest on loans to a private party, not interest on federal securities. Accordingly, we hold that § 3124(a) does not prohibit States from taxing such income. I Respondent is a Nebraska resident who owns shares in two mutual funds, the Trust for Short-Term U. S. Government Securities and the Trust for U. S. Treasury Obligations (Trusts). The Trusts earn a portion of their income by participating in “repurchase agreements” that involve debt securities issued by the United States Government and its agencies (federal securities). A typical repurchase agreement used by the Trusts, see App. 65-81, establishes a two-part transaction, commonly called a “repo,” between a party who holds federal securities and seeks cash (Seller-Borrower) and a party who has available cash and seeks to earn interest on its idle funds (in this case, the Trusts). In part one of the repo, the Seller-Borrower “transfers” specified federal securities to the Trusts on the records of the Federal Reserve System’s commercial book-entry system. Simultaneously, the Trusts transfer a specified amount of cash to the Seller-Borrower’s bank account. In part two of the transaction — which occurs at a later date fixed by agreement or, in the absence of any agreement, upon demand of either party — the Trusts “deliver” the federal securities back to the Seller-Borrower on the Federal Reserve’s records, and the Seller-Borrower credits the Trusts’ bank account in an amount equal to the sum of the original cash transfer plus “interest” at an agreed-upon rate. This interest rate bears no relation to the yield on the underlying federal securities — either when they were issued by the United States Government or when they later came into the hands of the Seller-Borrower — but is based instead on the current market rate paid on investments with maturities equal to the term of the repo, not to the original or current maturities of the underlying securities. After deducting administrative costs, the Trusts distribute this interest income to respondent in proportion to his ownership of shares in the Trusts. The State of Nebraska generally taxes interest income, but it does not tax “interest or dividends received by the owner of obligations of the United States . . . but exempt from state income taxes under the laws of the United States.” Neb. Rev. Stat. § 77-2716(l)(a) (Supp. 1994). For purposes of Nebraska’s income tax law, if interest would be exempt from tax in the hands of the Trusts, then respondent’s proportionate share of such interest will be exempt. § 77-2716(l)(b). A decade ago petitioner considered whether the interest income derived from repurchase agreements involving federal securities and then distributed to respondent and similarly situated individuals was subject to Nebraska’s income tax. Petitioner concluded that it was. Neb. Rev. Rul. 22-85-1, Brief for Petitioner 4-5, n. 1. In 1988, respondent brought a declaratory judgment action in the District Court of Lancaster County, Nebraska, asking that Revenue Ruling 22-85-1 be declared invalid as contrary to 31 U. S. C. § 3124(a) and the Supremacy Clause of the United States Constitution. The District Court granted the requested relief. On appeal, the Supreme Court of Nebraska affirmed, concluding that “the income received by [respondent] from, repo transactions executed by the [T]rusts involving federal, securities is exempt from state taxation under §3124.”’ Loewenstein v. State, 244 Neb. 82, 90, 504 N. W. 2d 800, 805 (1993). As the Nebraska Supreme Court itself acknowledged, see id., at 88-90, 504 N. W. 2d, at 804-805, several state courts have reached directly contrary conclusions, and two Federal Courts of Appeals have ruled that interest income derived from repos involving municipal bonds is not exempt from federal taxation under § 103(a)(1) of the Internal Revenue Code. We granted certiorari to resolve this conflict, 510 U. S. 1176 (1994), and we now reverse. II We begin with the text of 31 U. S. C. § 3124(a). It provides in relevant part: “[Obligations of the United States Government are exempt from taxation by a State or political subdivision of a State. The exemption applies to each form of taxation that would require the obligation, the interest on the obligation, or both, to be considered in computing a tax ....” Under this provision, a state tax may consider neither the federal “obligation” itself nor the “interest on the obligation.” The obligation itself is “considered” when its value is “taken into account, or included in the accounting,” Ameri can Bank & Trust Co. v. Dallas County, 463 U. S. 855, 862 (1983), in computing the taxable value of a taxpayer’s assets or net worth for the purpose of a property tax or the like. See, e. g., First Nat. Bank of Atlanta v. Bartow County Bd. of Tax Assessors, 470 U. S. 583, 585-586 (1985) (property tax on bank shares). By contrast, the interest on the obligation is “considered” when that interest is included in computing the taxpayer’s net income or earnings for the purpose of an income tax or the like. See, e. g., Memphis Bank & Trust Co. v. Garner, 459 U. S. 392, 393-394 (1983) (tax on net earnings of banks). By participating in repos involving federal securities, the Trusts (and thus respondent) earned interest income, and Nebraska’s income tax admittedly considered that interest in computing respondent’s taxable income. We must decide whether for purposes of § 3124(a) the interest earned by the Trusts from these repos is interest on “obligations of the United States Government” or interest on loans of cash from the Trusts to the Seller-Borrower. We conclude that it is the latter, and we accordingly hold that Nebraska’s taxation of the income derived by respondent from the repos does not violate § 3124(a). An investor may earn interest income from a federal security in one or both of two ways. First, the investor may receive periodic payments from the United States Government at the interest rate stated on the face of the security. Such payments are traditionally known as “coupon interest.” Second, the investor may acquire the security at a discount from the amount for which it will ultimately be redeemed by the Government at maturity. This discount is also considered interest for purposes of taxation. Although “discount interest” accrues during the term of the security, the investor does not receive it in cash until the security is redeemed or transferred to a third party. Our examination of the typical repurchase agreement used by the Trusts convinces us that they did not earn either kind of interest on federal securities. Certainly, none of the income the Trusts earn by participating in repos can be attributed to redemptions of the securities or payments of coupon interest by the Government: The Trusts must “pay over to [the Seller-Borrower] as soon as received all principal, interest and other sums paid by or on behalf of the issuer in respect of the Securities and collected by the [Trusts].” App. 69. Nor can we conclude that the Trusts receive discount interest when the federal securities are transferred back to the Seller-Borrower in part two of the repo. Under the typical repurchase agreement, any individual repo transaction may involve a mix of federal securities with varying maturities, and therefore varying yields. During the term of the repo, these securities earn discount interest based on their respective yields (and on whether they pay coupon interest). The Trusts, however, earn interest from the Seller-Borrower at an agreed-upon rate that is not based on any of these yields, or any combination of them. Thus, the interest that the Trusts earn by participating in the repo will bear no relation to the discount interest earned on federal securities during the same period. We conclude instead that for purposes of § 3124(a), the interest income earned by the Trusts is interest on loans from the Trusts to the Seller-Borrower, and that the federal securities are involved in the repo transactions as collateral for these loans. Several features of the repos lead to this conclusion. First, at the commencement of a repo, the Trusts pay the Seller-Borrower a fixed sum of money; at the repo’s termination, the Seller-Borrower repays that sum with “interest.” As explained above, this repo interest bears no relation to either the coupon interest paid or the discount interest accrued on the federal securities during the term of the repo. Second, if the Seller-Borrower defaults on its obligation to pay its debt, the Trusts may liquidate the federal securities. But like any lender who liquidates collateral, the Trusts may retain the proceeds of liquidation only up to the amount of the debt plus expenses; any excess must be paid to the Seller-Borrower. Moreover, if the proceeds are insufficient to satisfy the debt, the Trusts may recover the deficiency from the Seller-Borrower. Third, if the market value of the federal securities involved in the repo falls below 102% of the amount the Trusts originally paid to the Seller-Borrower, the latter must immediately deliver cash or additional securities to the Trusts to restore the value of the securities held by the Trusts to 102% of the original payment amount. On the other hand, if the market value of the securities rises above 102% of this amount, the Seller-Borrower may require the Trusts to return some of the securities to the Seller-Borrower. These provisions are consistent with a lender-borrower relationship in which a prudent lender desires to protect the value of its collateral, while a prudent borrower attempts to pledge as little collateral as possible. Fourth, the Seller-Borrower may, during the term of the repo, “substitute” federal securities of equal market value for the federal securities initially involved in the transaction. A lender, of course, is indifferent to the particular collateral pledged by the borrower, so long as that collateral has sufficient value and liquidity. The parties have stipulated that the Trusts (or their agents) take “Delivery” of the federal securities at the commencement of a repo. App. 63. But even this fact is consistent with understanding repos as loans of cash from the Trusts to the Seller-Borrower: “Delivery” of the securities perfects the Trusts’ security interests in their collateral. Under the most recent version of § 8-321(1) of the Uniform Commercial Code (U. C. C.), “[a] security interest in a security is enforceable and can attach only if it is transferred to the secured party ... pursuant to a provision of [§]8-313(1).” 2C U. L. A. 459 (1991). Section 8-313(l)(a) provides that transfer of a security interest in a security occurs when the secured party “acquires possession of a certificated security.” Id., at 402. Of course, possession of the federal securities allows the Trusts to effect an expeditious, nonjudicial liquidation of the securities if the Seller-Borrower defaults. Cf. U. C. C. §9-504(1), 3B U. L. A. 127 (1992). The ability to liquidate immediately is obviously critical in the context of repo transactions, which may have a lifespan of only a single day. Based on the foregoing analysis, we conclude that the interest income earned by the Trusts from repurchase agreements involving federal securities is not interest on “obligations of the United States Government.” For purposes of 31 U. S. C. § 3124(a), the income is instead interest on loans from the Trusts to the Seller-Borrower. Because § 3124(a) exempts only the former type of interest from state taxation, Nebraska did not violate that statute when it taxed respondent’s interest income. Ill Respondent offers two objections to this interpretation of § 3124(a). We find neither of them persuasive. A The typical repurchase agreement at issue in this case explicitly identifies the original transfer of the federal securities to the Trusts as a “sale” and the subsequent transfer back to the Seller-Borrower as a “repurchase.” Respondent maintains we should honor this characterization because the repos were structured by the Trusts and the Seller-Borrower as sales and repurchases for valid business and regulatory reasons independent of tax considerations. Respondent relies on our statement in Frank Lyon Co. v. United States, 435 U. S. 561, 583-584 (1978): “[W]here . . . there is a genuine multiple-party transaction with economic substance which is compelled or encouraged by business or regulatory realities, is imbued with tax-independent considerations, and is not shaped solely by tax-avoidance features that have meaningless labels attached, the Government should honor the allocation of rights and duties effectuated by the parties.” We do not believe it matters for purposes of § 3124(a) whether the repo is characterized as a sale and subsequent repurchase. A sale-repurchase characterization presumably would make the Trusts the “owners” of the federal securities during the term of the repo. But the dispositive question is whether the Trusts earned interest on “obligations of the United States Government,” not whether the Trusts “owned” such obligations. As respondent himself concedes, “[t]he concept of ‘ownership’ is simply not an issue under 31 U. S. C. § 3124.” Brief for Respondent 10. Even if it did matter how repos were characterized for purposes of § 3124(a), Frank Lyon Co. does not support respondent’s position. Whatever the language relied on by respondent may mean, our decision in that case to honor the taxpayer’s characterization of its transaction as a “sale-and-leaseback” rather than a “financing transaction” was founded on an examination of “the substance and economic realities of the transaction.” 435 U. S., at 582. This examination included identification of 27 specific facts. See id., at 582-583. The substance and economic realities of the Trusts’ repo transactions, as manifested in the specific facts discussed above, are that the Trusts do not receive either coupon interest or discount interest from federal securities by participating in repos. Rather, in economic reality, the Trusts receive interest on cash they have lent to the Seller-Borrower. Respondent does not specifically dispute this conclusion but argues that repos are characterized as ordinary sales and repurchases for purposes of federal securities, bankruptcy, and banking law as well as commercial and local government law. We need not examine the accuracy of these assertions, for we are not called upon in this case to interpret any of those bodies of law. Our decision today is an interpretation only of 31 U. S. C. § 3124(a) — not the Securities Exchange Act of 1934, the Bankruptcy Code, or any other body of law. B At oral argument, respondent advanced another argument against the interpretation of § 3124(a) adopted here: Although petitioner’s Revenue Ruling nominally acknowledges the right of the Seller-Borrower to claim the exemption granted by § 3124(a), Nebraska’s income tax scheme will not allow the Seller-Borrower to realize the full amount of the federal exemption. This would allegedly frustrate Congress’ purpose in granting the exemption. According to respondent, after the Seller-Borrower has subtracted from its taxable income any “interest or dividends received by [it as] the owner of obligations of the United States,” pursuant to subsection (a) of Neb. Rev. Stat. § 77-2716(1) (Supp. 1994), it will then be forced to add back “any interest on indebtedness incurred to carry the [federal] obligations,” pursuant to subsection (e)(i) of §77-2716(1). Respondent conjectures that the interest paid by the Seller-Borrower to the Trusts in the course of repos may constitute just such interest. Respondent therefore hypothesizes that if the Seller-Borrower receives, for example, $100 in interest as the holder of federal securities and pays out $90 to the Trusts in the course of repos involving those securities, Nebraska might give the Seller-Borrower an income tax exemption worth only $10 ($100 minus $90), rather than the $100 exemption that Congress arguably intended. There is a short answer to respondent’s multilayered hypothesis: this case does not involve the construction or validity of Nebraska’s add-back rule as applied in the repo context. The Nebraska Supreme Court did not cite §77-2716(l)(e)(i) in its opinion, and we did not grant certiorari to consider that provision. IV Finally, respondent argues that Nebraska’s taxation of income from repos involving federal securities violates the Supremacy Clause of the Constitution. First, respondent contends that Nebraska discriminates against federal obligations because it does not tax income from repos involving Nebraska’s own state and local obligations. Although Nebraska Revenue Ruling 22-85-1 concerns repos involving “federal government obligations” and does not mention their Nebraska counterparts, respondent has pointed to no statute, revenue ruling, or other manifestation of Nebraska policy treating “state” repos any different from “federal” repos for tax purposes. Second, respondent cites our decision in Rockford Life Ins. Co. v. Illinois Dept. of Revenue, 482 U. S. 182, 190 (1987), in which we stated that “the intergovernmental tax immunity doctrine ... is based on the proposition that the borrowing power is an essential aspect of the Federal Government’s authority and, just as the Supremacy Clause bars the States from directly taxing federal property, it also bars the States from taxing federal obligations in a manner which has an adverse effect on the United States’ borrowing ability.” According to respondent, undisputed expert testimony in the record establishes that the taxation at issue in this case will make it more difficult and expensive for the Federal Government to finance the national debt. This expert testimony essentially consists of a 1986 affidavit sworn by Peter D. Sternlight, a former official of the Federal Reserve Bank of New York. In our view, Stern-light’s affidavit has no relevance to this case. It concluded only that “an impairment of the repo market would make it less attractive for [government securities] dealers to perform [their] very useful . . . function [of underwriting a sizeable portion of Treasury securities], thus adding to Treasury interest costs.” App. 42. But the “impairment” that worried Sternlight would result “[i]f repurchase agreements were to lose their present characteristics of flexibility and liquidity,” or if repos became “unavailable” to certain kinds of public and private institutional investors. Id., at 42, 43. These possibilities might develop if repos were to be characterized as secured loans for purposes of federal bankruptcy and banking law or of commercial and local government law. Our decision today, however, says nothing about how repos should be characterized for those purposes. Disregarding the inapplicable Sternlight affidavit, we find no evidence in the record that the taxation at issue will impair the market in federal securities or otherwise impair the borrowing ability of the Federal Government. Rockford Life confirmed the rule that “‘when effort is made ... to establish the unconstitutional character of a particular tax by claiming its remote effect will be to impair the borrowing power of the government, courts . . . ought to have something more substantial to act upon than mere conjecture. The injury ought to be obvious and appreciable.’ ” 482 U. S., at 190, n. 10 (quoting Plummer v. Coler, 178 U. S. 115, 137-138 (1900)). Respondent has shown us no “obvious and appreciable” injury to the borrowing power of the United States Government as a result of Nebraska’s taxation of the repo income earned by the Trusts. Rather, he has given us “mere conjecture.” In these circumstances, we cannot justifiably conclude that Nebraska’s taxation of income derived from repos involving federal securities violates the Supremacy Clause of the Constitution. For the foregoing reasons, the judgment of the Supreme Court of Nebraska is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. A repurchase agreement is so called because the parties to the agreement identify part one of the transaction as a “sale” of federal securities from the Seller-Borrower to the Trusts and part two a “repurchase” of the securities by the Seller-Borrower from the Trusts. Because the accuracy of these labels is part of the dispute in this case, we use more neutral terms to describe the transaction. See Hammond Lead Products, Inc. v. State Tax Commissioners, 575 N. E. 2d 998 (Ind. 1991); Department of Revenue v. Page, 541 So. 2d 1270 (Fla. App. 1989); Capital Preservation Fund, Inc. v. Wisconsin Dept. of Revenue, 145 Wis. 2d 841, 429 N. W. 2d 551 (App. 1988); Andras v. Illinois Dept. of Revenue, 154 Ill. App. 3d 37, 506 N. E. 2d 439 (1987), cert. denied, 485 U. S. 960 (1988). As Justice Caporale pointed out in dissent below, see 244 Neb., at 91-92, 504 N. W. 2d, at 806, at least five other state courts also have reached a result contrary to that of the majority. See Everett v. State Dept. of Revenue and Finance, 470 N. W. 2d 13 (Iowa 1991); Comptroller of the Treasury, Income Tax Div. v. First United Bank & Trust, 320 Md. 352, 578 A. 2d 192 (1990); Borg v. Department of Revenue of Oregon, 308 Ore. 34, 774 P. 2d 1099 (1989); Massman Constr. Co. v. Director of Revenue of Missouri, 765 S. W. 2d 592 (Mo. 1989); In re Sawyer Estate, 149 Vt. 541, 546 A. 2d 784 (1987). Accord, H. J. Heinz Co. v. Department of Treasury, 197 Mich. App. 210, 494 N. W. 2d 850 (1992) (distinguishing Matz v. Department of Treasury, 155 Mich. App. 778, 401 N. W. 2d 62 (1986) (per curiam)). See Union Planters Nat. Bank of Memphis v. United States, 426 F. 2d 115 (CA6), cert. denied, 400 U. S. 827 (1970); American Nat. Bank of Austin v. United States, 421 F. 2d 442 (CA5), cert. denied, 400 U. S. 819 (1970). Accord, First American Nat. Bank of Nashville v. United States, 467 F. 2d 1098 (CA6 1972) (per curiam). Cf. Citizens Nat. Bank of Waco v. United States, 213 Ct. Cl. 236, 248-251, 551 F. 2d 832, 839-840 (1977) (agreeing that these decisions were correct, but distinguishing them on the facts of the case). The Internal Revenue Service also has concluded that a taxpayer in the position of the Trusts who derives interest income by participating in repurchase agreements does not earn interest on the securities involved in those agreements. See Rev. Rul. 74-27, 1974-1 Cum. Bull. 24; Rev. Rul. 77-59,1977-1 Cum. Bull. 196; Rev. Rul. 79-108,1979-1 Cum. Bull. 75. For example, Treasury notes and bonds, which have maturities of at least one year, pay coupon interest on a semiannual basis and may be issued at discount, par (face amount), or premium, depending on market conditions. See 31 CFR §§ 356.5(b), (c), 356.30 (1994). Treasury bills, by contrast, have maturities of not more than one year, pay no coupon interest, and are always issued at a discount. See § 356.5(a). “For purposes of taxation the amount of discount at which Treasury bills are originally sold by the United States shall be considered to be interest.” §309.4. See generally M. Stigum, The Money Market 36-37 (3d ed. 1990) (hereinafter Stigum). The parties have also stipulated that delivery of the federal securities is effected “through the Federal Reserve book entry system.” App. 63. Although securities held in that system exist not in the form of certificates but only as entries in the records of a Federal Reserve bank, see generally Stigum 636-638, regulations issued by the Treasury Department and other federal agencies indulge in the fiction that transferees acquire possession of certificated securities. See, e.g., 31 CFR § 306.118(a) (1994) (transfer of Treasury notes and bonds); § 350.4(a) (transfer of Treasury bills). Of course, these regulations and their relationship to the U. C. C. are not before us here. It follows from our analysis that it is the Seller-Borrower who earns the interest on the federal securities during the pendency of the repo. Nebraska Revenue Ruling 22-85-1 concludes as much: “The interest earned on the United States government obligations remains the income of the [party] who submitted the securities as collateral for the loan.” Brief for Petitioner 4-5, n. 1. See also Brief for Federal Reserve Bank of New York as Amicus Curiae 9-10 (“The Sternlight Affidavit was filed by the New York Fed in 1986 as amicus curiae in [a case] which had nothing to do with state taxation of repo income.... Mr. Sternlight did not opine on the economic effect of state taxation of repo transaction income on [the market for] the underlying government securities”); Hearings on H. R. 2852 and H. R. 3418 before the Subcommittee on Monopolies and Commercial Law of the House Committee on the Judiciary, 98th Cong., 2d Sess., 106-107 (1984) (letter of Peter D. Sternlight) (“[W]hile the Federal Reserve has gone on record as favoring purchase-and-sale characterization of repurchase agreements, that statement is limited to a bankruptcy context and should not be taken as an endorsement of purchase-and-sale characterization for tax, accounting, or other purposes” (emphasis added)). Question: What is the issue of the decision? A. federal-state ownership dispute (cf. Submerged Lands Act) B. federal pre-emption of state court jurisdiction C. federal pre-emption of state legislation or regulation. cf. state regulation of business. rarely involves union activity. Does not involve constitutional interpretation unless the Court says it does. D. Submerged Lands Act (cf. federal-state ownership dispute) E. national supremacy: commodities F. national supremacy: intergovernmental tax immunity G. national supremacy: marital and family relationships and property, including obligation of child support H. national supremacy: natural resources (cf. natural resources - environmental protection) I. national supremacy: pollution, air or water (cf. natural resources - environmental protection) J. national supremacy: public utilities (cf. federal public utilities regulation) K. national supremacy: state tax (cf. state tax) L. national supremacy: miscellaneous M. miscellaneous federalism Answer:
songer_appel1_7_2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). UNITED STATES of America, Appellee, v. Michael CROWE, Appellant. No. 74-2119. United States Court of Appeals, Fourth Circuit. Submitted Feb. 14, 1975. Decided June 3, 1975. Sanford Wachs, Baltimore, Md. (Court-appointed), for appellant. George Beall, U. S. Atty., and Jeffrey S. White, Asst. U. S. Atty., for appellee. Before RUSSELL, FIELD and WIDENER, Circuit Judges. PER CURIAM: Appellant, Michael E. Crowe, was indicted for breaking and entering of Carrier Facilities and for aiding and abetting, in violation of 18 U.S.C. §§ 2117 and 2. He initially entered a plea of not guilty, but changed his plea to guilty at his re-arraignment on February 22, 1974. The Court found him suitable for sentencing pursuant to the Federal Youth Corrections Act, and committed him to the custody of the Attorney General pursuant to 18 U.S.C. § 5010(b), until discharged as provided in 18 U.S.C. § 5017(c). Appellant subsequently filed a timely notice of appeal, and this appeal follows. Court-appointed counsel for appellant has submitted a motion for withdrawal of appearance, being of the opinión that the appeal is wholly frivolous and without merit. In accordance with Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, he has submitted a brief setting forth all issues which arguably support the appeal. Copies of the brief were also furnished to appellant, who has failed to raise any additional issues on appeal, and to the United States Attorney, who has filed a motion for summary affirmance. The questions presented for review on this appeal are (1) whether appellant’s guilty plea was knowingly and voluntarily entered, and (2) whether the sentence imposed was proper under the circumstances of the case. We agree with counsel that this appeal is wholly frivolous and without merit. Before accepting appellant’s guilty plea, the District Judge conducted a full-scale inquiry pursuant to Rule 11 of the Federal Rules of Criminal Procedure. Judge Blair’s inquiry was a model of thoroughness. After ascertaining that appellant was fully in possession of his faculties and capable of understanding the proceedings and that he was completely satisfied with his representation by counsel, the Court fully informed him as to the nature of the charges against him, his constitutional rights and the consequences of a guilty plea, taking great care at every juncture to ensure that appellant understood what he was being told. The Court then inquired as to the terms of the plea bargain, and ascertained that no threats or other promises had been made to appellant and that he realized the Court was not bound by any plea agreements. The Court then requested a proffer of evidence by the government, and questioned appellant as to his participation in the offense charged. In the course of this questioning, the Court ascertained that all elements of the offense charged were satisfied, that appellant’s constitutional rights had not been violated in the course of his arrest and interrogation, and that he was pleading guilty because he was in fact guilty. Before accepting the plea, the Court again ascertained that appellant had understood every- . thing that took place in the course of the rearraignment, and that he still wished to plead guilty. There can be no question but that appellant’s guilty plea was knowingly and voluntarily entered, with a full understanding of the nature of the charge and the consequences of the plea. It is quite clear that the plea was accepted only after the Court had fully satisfied itself that it was voluntary and based in fact. In so doing, it provided this Court with a record on which we can say with assurance that appellant’s plea was voluntary. As for the validity of the sentence imposed, sentencing is within the sole province and discretion of the trial judge. This Court has no power, absent exceptional circumstances, to review a sentence which is within the limits allowed by statute. United States v. Pruitt (4th Cir. 1965), 341 F.2d 700. The criminal statute under which appellant was charged, 18 U.S.C. § 2117, provides for punishment by a fine of not more than $5,000 or imprisonment for not more than ten years, or both. The Federal Youth Corrections Act, 18 U.S.C. § 5017(c), provides for commitment for an indefinite period, with conditional release not more than four years after conviction and unconditional release not-more than six years after conviction. Before imposing sentence, the Court carefully considered appellant’s pre-sentence and probation reports, and gave both appellant and his attorney an opportunity to be heard. Although appellant did not speak on his own behalf, his attorney delved into his family background, his educational abilities, and his emotional condition, and recommended that treatment and training would be of benefit to appellant. The Court then imposed sentence under the Youth Corrections Act. This sentence was within the limits allowed- by statute, and was well within the sound discretion of the trial judge. Nor do we find any exceptional circumstances warranting a review of the sentence. Appellant cannot object to the government’s disclosure that he had telephoned his co-defendant’s attorney and offered not to testify against the co-defendant in return for $700 cash. That disclosure was pursuant to a plea bargain in which it was agreed that the government would make no recommendation as to sentence, but would inform the Court of the extent of appellant’s cooperation in the prosecution of his co-defendant, and thus was properly before the Court. On March 3, 1975, on our own motion, we entered an order, that the Court desired the appellant to state in person and file with the Court, on or before March 21, 1975, all of the grounds for appeal from his conviction which he wished the Court to consider. This order was transmitted to the appellant. The appellant has not responded. We find no merit in either of appellant’s contentions. Accordingly, the motion for withdrawal of appearance is granted, the motion for summary affirmance is granted, and the judgment of the District Court is Affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". 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_1-3-1	E	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense". UNITED STATES of America, Plaintiff-Appellee, v. Stan SMITH, Defendant-Appellant. No. 88-2817. United States Court of Appeals, Tenth Circuit. Nov. 3, 1989. Steve Kotz, Asst. U.S. Atty., (William L. Lutz, U.S. Atty., and Paula G. Burnett, Asst. U.S. Atty., with him on the brief) Albuquerque, N.M., for plaintiff-appellee. William D. Fry, Asst. Federal Defender, Las Cruces, N.M., for defendant-appellant. Before McKAY, SEYMOUR, and MOORE, Circuit Judges. JOHN P. MOORE, Circuit Judge. Petitioner Stan Smith appeals from his conviction of bank robbery in violation of 18 U.S.C. § 2113. Mr. Smith contends that the trial court erred by not giving a cautionary jury instruction regarding the testimony of John Heller, a paid informant and rebuttal witness. After reviewing the trial record, we conclude that even if rejection of the defendant’s instruction was erroneous, any error was harmless beyond a reasonable doubt because of the substantial evidence identifying Mr. Smith as the bank robber. Therefore, we affirm Mr. Smith’s conviction. Mr. Smith also appeals the sentence imposed by the lower court which departed upward from the Federal Sentencing Guidelines. Because the trial judge did not give adequate reasons on the record for departing from the Guidelines, we vacate and remand for resentencing. I. On March 14, 1988, a man robbed the First National Bank in Las Cruces, New Mexico. After stealing a car from a nearby parking lot one-half hour prior to the robbery, the robber, dressed in a coat and tie and disguised by a hat covering most of his forehead, dark glasses, and a mous-tache, entered the bank and held a pellet gun to a customer’s head. He ordered the tellers to put their money in a bag that he was carrying, then left the bank, went into the parking lot, and drove off in the stolen car. The only issue in dispute at trial was the identity of the man who robbed the bank. At trial, two of the tellers present in the bank lobby identified Mr. Smith as the robber. In a bandit identification form, one teller described the bank robber as a man of Mr. Smith’s age. She also picked out Mr. Smith in a photo array provided by the police and identified Mr. Smith in court as the robber. Another teller provided a computer sketch of the robber, picked out Mr. Smith from the photo array, and identified Mr. Smith in court. The bank customer who was threatened by the robber, but did not see his face, testified about his general appearance; however, she was unable to identify Mr. Smith. The woman whose car was stolen and used in the bank robbery provided a computer sketch of the man who stole the ear, picked out Mr. Smith from the photo array, and identified Mr. Smith in court as the man who stole her car. In addition, a police officer who was acquainted with Mr. Smith identified him from the photo array and as the man in surveillance photos taken during the bank robbery. A tool salesperson, who had known Mr. Smith for three years, also testified that Mr. Smith was the man in the bank surveillance photos and described the appearance of Mr. Smith on the day of the bank robbery. For the defense, two other bank tellers who were present in the bank lobby submitted bandit identification forms with descriptions that varied from those given by the prosecution witnesses. In addition, one of these tellers testified that she was unable to identify the robber from the photo array. A teller, who was in the bank vault and not present in the bank lobby during the robbery, identified Mr. Smith because he had been in the bank on several occasions prior to the robbery. Another person also said Mr. Smith had been in the bank on prior occasions with his son. Mr. Smith’s former wife testified that although there was a strong resemblance, Mr. Smith was not the man in the bank surveillance photo. As a rebuttal witness, the government called John Heller, Mr. Smith’s next door neighbor, who provided information during the police investigation as a paid informant under the Crime Stoppers program. Mr. Heller testified that on the day before the robbery Mr. Smith told him he intended to rob a bank and his plan included stealing a car, dressing up, wearing a fake moustache or mask, using a pellet gun, and leaving town. On surrebuttal, Mr. Smith’s former wife testified that Mr. Smith and Mr. Heller did not have an amiable relationship, and two weeks before the robbery the two men engaged in a pushing match lasting two or three minutes. During the instructions conference, defense counsel requested that the court give a cautionary instruction for the evaluation of testimony of paid informants. Although the government did not object and the trial judge indicated that he would give the instruction, the “paid informer instruction” was not given. Instead, the court gave another proposed defense instruction which concerned identification testimony. Mr. Smith filed a motion for a new trial on the ground that the court’s failure to give a paid informer instruction deprived him of a fair trial. The court denied the motion, finding that the paid informer instruction was “clearly duplicative” and counsel’s request for the paid informer instruction was correctly denied because of its untimely submission and because the jury had been properly and adequately instructed. At the sentencing hearing, the court departed upward from the Sentencing Guidelines and sentenced Mr. Smith to eighty-four months imprisonment followed by three years of supervised release. The district court explained its decision to depart from the Sentencing Guidelines recommended sentence by stating: “The Court in arriving at an appropriate sentence takes judicial notice of the force and violence used by the defendant in committing the offense, which justifies an upward departure from the guidelines.” No other explanation or justification was given for departure from the Guidelines. II. A harmless error analysis is the threshold standard for evaluation of the district court’s failure to give the cautionary jury instruction requested by Mr. Smith. Chap man v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). “It is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations.” United States v. Hasting, 461 U.S. 499, 510, 103 S.Ct. 1974, 1981, 76 L.Ed.2d 96 (1983). In assessing whether the failure to give the jury instruction was harmless error, this court must look at the whole record. Coleman v. Saffle, 869 F.2d 1377, 1389 (10th Cir.1989). In doing so, we must determine whether we can “declare a belief that [failure to give an informer instruction] was harmless beyond a reasonable doubt.” Coleman, 869 F.2d at 1389 (citing Chapman, 386 U.S. at 24, 87 S.Ct. at 828). Based upon a review of the entire record, we conclude that the district court’s failure to give the informer instruction was harmless error beyond a reasonable doubt. At trial, there was substantial evidence other than the testimony of Mr. Heller which identified Mr. Smith as the robber. Three witnesses provided descriptions, picked out Mr. Smith from a photo array, and identified him in court. In addition, two witnesses identified Mr. Smith as the man in bank surveillance photographs taken during the robbery. Although defense witnesses created doubt about the identification of Mr. Smith, the government’s case was so strong that the verdict could not have been affected by the trial court’s failure to give the defendant’s requested instruction. III. This court reviews sentences imposed under the Sentencing Guidelines according to the statutory standard provided by the Sentencing Reform Act of 1984 and codified at 18 U.S.C. § 3742. Section 3742(e) provides, in relevant part: (e) Consideration. — Upon review of the record, the court of appeals shall determine whether the sentence— (1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; (3) is outside the applicable guideline range, and is unreasonable, having regard for— (A) the factors to be considered in imposing a sentence, as set forth in chapter 227 of this title; and (B) the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or (4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable. While we must give “due deference to the district court’s application of the guidelines to the facts,” 18 U.S.C. § 3742(e), we review the application of the guidelines fully for errors of law. United States v. Otero, 868 F.2d 1412, 1414 (5th Cir.1989). This case presents the question of what findings are required when a district judge decides to depart from the sentencing range provided by the Sentencing Guidelines. Departure is allowed when “the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines_” 18 U.S.C. § 3553(b). The statute sets out specific procedures that the sentencing court must follow when it departs from range. The appropriate part of the statute requires: The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence— (2) is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for the imposition of a sentence different from that described. 18 U.S.C. § 3553(c) (emphasis added). In this case, the brief statement made by the district court at sentencing does not satisfy this requirement. A general recitation is an insufficient statement of the reasons required by § 3553(c). See United States v. Wells, 878 F.2d 1232 (9th Cir.1989). Specificity of reason is mandated by the statute; therefore, the sentencing court’s statement that it took “judicial notice of the force and violence used by the defendant” adds nothing for review because the offense of which the defendant was convicted subsumes acts of “force and violence.” More importantly, the guidelines themselves assess additional points for possession or use of a weapon, physical injury, and unlawful restraint. United States Sentencing Comm’n, Federal Sentencing Manual § 2B3.1 (1988). Thus, although we assume the court believed the defendant’s acts were beyond the norm for the offense as set out in the guidelines, without the court’s enumeration of the factors upon which that belief was predicated, we simply are left to speculation. Additionally, the district court failed to indicate whether it found the Sentencing Commission inadequately considered those factors in formulating the guidelines. Such a finding is a condition precedent to imposition of a sentence above the guideline range. See United States v. Michel, 876 F.2d 784 (9th Cir.1989). Without particularization by the trial court of its reasons for an enhanced sentence, this court cannot engage in the kind of meaningful review intended by § 3742 of the Sentencing Reform Act, which provides that a sentence should be set aside by this court if it departs unreasonably from the Guidelines’ recommended sentence. 18 U.S.C. § 3742(e). The requirement that the district judge articulate specific reasons for any departure from the recommended sentence reflects the intent of Congress to do away with the uncertainties and the disparities in sentencing which resulted from earlier systems where judges had broad discretion. See Mistretta v. United States, — U.S. -, 109 S.Ct. 647, 651, 102 L.Ed.2d 714 (1989). To permit review in the context of this purpose, trial courts must set forth those incidents or circumstances which prompt them to impose greater punishment than the standards contemplate. See Wells, 878 F.2d at 1233. Accordingly, the sentence is VACATED and the case is REMANDED for resentenc-ing of the defendant in accordance with the principles set forth in this opinion. . Mr. Smith appeals the sentence imposed by the district court because he did not receive notice of the grounds for departure and the departure was unreasonable. Because the trial court did not provide an adequate explanation on the record for its departure from the Guidelines, we remand for resentencing and do not reach the notice or reasonableness issues. . This sentence was imposed as an alternative sentence by the trial court which reiterated its holding that the Sentencing Guidelines were unconstitutional and sentenced Smith to 15 years of imprisonment under the law prior to the effective date of the Sentencing Reform Act. Subsequent to the court's pronouncement of Mr. Smith’s sentence, the United States Supreme Court found the Sentencing Guidelines to be constitutional. Mistretta v. United States, - U.S. -, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Therefore, Mr. Smith’s alternative sentence imposed under the Sentencing Guidelines is operative. . Because the lack of an informer instruction was harmless error, we do not need to reach whether the trial court abused its discretion in failing to give the proposed informer instruction. Question: What is the specific issue in the case within the general category of "criminal - federal offense"? A. murder B. rape C. arson D. aggravated assault E. robbery F. burglary G. auto theft H. larceny (over $50) I. other violent crimes J. narcotics K. alcohol related crimes, prohibition L. tax fraud M. firearm violations N. morals charges (e.g., gambling, prostitution, obscenity) O. criminal violations of government regulations of business P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery) Q. other crimes R. federal offense, but specific crime not ascertained Answer:
songer_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. PILOT LIFE INS. CO. v. HABIS. No. 4167. Circuit Court of Appeals, Fourth Circuit. June 14, 1937. Pinckney L. Cain, of Columbia, S. C. (Thomas, Lumpkin & Cain, of Columbia, S. C, and Smith Wharton & Hudgins, of Greensboro, N. C., on the brief), for appellant. J. B. S. Lyles, of Columbia, S. C. (Cooper & Maher, of Columbia, S., C., on the brief), for appellee. Before PARKER, NORTHCOTT, and SOPER, Circuit Judges. NORTHCOTT, Circuit Judge. This is an action at law originally brought in the court of common pleas for Richland county, S. C., by Elly Jane Habis, appellee, here referred to as the plaintiff, against the Pilot Life Insurance Company, appellant, here referred to as the defendant. The action was instituted to recover the face amount, $2,000, and double indemnity alleged to be due under a policy of insurance issued by the defendant on the life of John R. Habis, deceased husband of the plaintiff, she being named as beneficiary in the policy. The action was removed to the United States District Court for the Eastern District of South Carolina. An answer was filed by the defendant admitting the execution and delivery of the policy and admitting that it was in full force at the time of insured’s death. Receipt of the proof of death of the insured and its liability for the face amount of the policy, less certain indebtedness, was acknowledged. The defendant denied, however, its liability for the double indemnity which was provided for death resulting from bodily injuries sustained solely through external, violent, and accidental means independently of all other causes. The plaintiff applied to the judge of said District Court for an order directing the defendant to pay her the sun^ of $1,-886.57, the amount admitted to be due. This motion was made pursuant to section 584 (subdivision 15) Code of Laws of South Carolina 1932. After a hearing of this motion before the District Judge an order was entered requiring the defendant to pay said sum to the plaintiff. The defendant made the payment in obedience to said order and thereupon the plaintiff moved the court for an order granting leave to discontinue the action, without prejudice, upon payment of the costs. After a hearing on this motion the judge below entered an order permitting a voluntary nonsuit without prejudice. From this action this appeal was brought. The sole question involved is whether the action of the court in granting the non-suit was correct. The right of a plaintiff to take a voluntary nonsuit in the federal courts of South Carolina has been before this court, for consideration, in three cases, Prudential Insurance Company v. Stack (C.C.A.) 60 F.(2d) 830, New York Life Insurance Company v. Driggs (C.C.A.) 72 F.(2d) 833, and Aetna Life Insurance Company v. Thomas Thurston Wilson et al. (C.C.A.) 84 F.(2d) 330, 331. In these cases we held that the right of a plaintiff to a non-suit “is absolute unless the defendant had acquired some right that would be prejudiced by the nonsuit.” Aetna Life Insurance Company v. Wilson, supra. The instant case is different from the three cases above mentioned in that the plaintiff here recognized the jurisdiction of the federal court, invoked that jurisdiction, and received its benefits by having the court, on plaintiff’s motion, direct the payment of the sum admitted to be due. The question then arises whether the defendant, by this action of the plaintiff, had acquired a right that would be prejudiced by the nonsuit. We have repeatedly held that the right to have a case tried in a certain jurisdiction is not a right the denial of which would prejudice the defendant. Courts have never held that one jurisdiction is superior to another in the administration of justice. The only result to the defendant, of the granting of the nonsuit, is the threat of future litigation. This threat always confronts a defendant when a nonsuit is granted. The Supreme Court held in Ex parte, Skinner & Eddy Corporation, 265 U.S. 86, 44 S.Ct. 446, 448, 68 L.Ed. 912, that to constitute a valid objection to the ordinary right of plaintiff to take a nonsuit it must be shown that “a dismissal of the bill would prejudice the defendants in some other way than by the mere prospect of being harassed and vexed by future litigation of the same kind.” Should it even be concluded that, by her action in invoking the jurisdiction of the federal court to secure the payment of the amount admitted to be due, the plaintiff had begun the trial of the cause, which we do not decide, the granting of the nonsuit ceased to be a matter of right and became a matter addressed to the sound discretion of the trial court. Cunningham v. Independence Insurance Company, 182 S.C. 520, 189 S.E. 800, and cases there cited. As was said by Judge Woods, formerly of this court, in State v. Southern R. Co. et al., 82 S.C. 12, 62 S.E. 1116, 1117: “It is next to be determined whether the record shows the circuit court granted leave to discontinue on the ground that it had no discretion to do otherwise. All the judicial power with which a tribunal is invested by law enters into and supports its judgments. Hence, when a court makes an order which it was within its discretion to grant or refuse, the strong presumption is that the power of discretion was exercised. To overcome this presumption the record must affirmatively show that the order was granted, because of an erroneous conclusion that the court was without discretionary power to refuse it.” That the judge below in granting the nonsuit did it in the exercise of his discretion seems clear from the order entered, which is in part as follows: “Defendant makes no independent showing of prejudice on the motion to discontinue. It relies on the record and argues prejudice therefrom, contending that this Court has partly decided the case on its merits in passing the order to pay over, so that defendant is entitled to have this Court continue its jurisdiction to a complete decision of the merits. . “From a practical viewpoint the defendant cannot successfully claim that it has been prejudiced, or has acquired a substantial right, by paying over money that it admittedly owed. Plaintiff expressly concedes the obvious legal status—that the jurisdiction of this Court was in no wise affected by the order to pay over or the payment pursuant thereto—that this motion for a voluntary nonsuit is an invocation of the jurisdiction of this Court and a request that such jurisdiction be exercised in granting plaintiff a remedy to which she is entitled.” The trial judge clearly exercised his discretion in allowing the nonsuit; and, even though the action taken with respect to the admitted liability be held to remove the taking of nonsuit from the realm of right to the realm of discretion, the action permitting it must be affirmed, as there is nothing to show that the discretion was abused. We express no opinion, however, as to the right of the plaintiff to maintain a new and separate suit to recover the double indemnity. The order of the court below is accordingly affirmed. Affirmed. 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_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. David JENNINGS et al., Petitioners v. Alejandro RODRIGUEZ et al., individually and on behalf of all others similarly situated. No. 15-1204. Supreme Court of the United States Argued Nov. 30, 2016. Reargued Oct. 3, 2017. Decided Feb. 27, 2018. Ian H. Gershengorn, Acting Solicitor General, Washington, DC, for Petitioners. Ahilan T. Arulanantham, Los Angeles, CA, for Respondents. Ian Heath Gershengorn, Acting Solicitor General, Benjamin C. Mizer, Principal Deputy Assistant, Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Leon Fresco, Deputy Assistant Attorney General, Zachary D. Tripp, Assistant to the Solicitor General, Sarah S. Wilson, Erez R. Reuveni, Attorneys, Joyce R. Branda, Deputy Assistant Attorney General, August E. Flentje, Special Counsel to the Assistant Attorney General, Department of Justice, Washington, DC, for Petitioners. Mark H. Haddad, Sean A. Commons, Wen W. Shen, Sidley Austin LLP, Los Angeles, CA, Judy Rabinovitz, Michael K.T. Tan, Cecillia D. Wang, Steven R. Shapiro, ACLU Immigrants' Rights Project, New York, NY, Ahilan T. Arulanantham, Counsel of Record, Michael Kaufman, ACLU Foundation of Southern California, Los Angeles, CA, Jayashri Srikantiah, Stanford Law School, Immigrants' Rights Clinic, Stanford, CA, David D. Cole, American Civil Liberties Foundation, Washington, DC, for Respondents. Justice ALITO delivered the opinion of the Court, except as to Part II. Every day, immigration officials must determine whether to admit or remove the many aliens who have arrived at an official "port of entry" (e.g., an international airport or border crossing) or who have been apprehended trying to enter the country at an unauthorized location. Immigration officials must also determine on a daily basis whether there are grounds for removing any of the aliens who are already present inside the country. The vast majority of these determinations are quickly made, but in some cases deciding whether an alien should be admitted or removed is not as easy. As a result, Congress has authorized immigration officials to detain some classes of aliens during the course of certain immigration proceedings. Detention during those proceedings gives immigration officials time to determine an alien's status without running the risk of the alien's either absconding or engaging in criminal activity before a final decision can be made. In this case we are asked to interpret three provisions of U.S. immigration law that authorize the Government to detain aliens in the course of immigration proceedings. All parties appear to agree that the text of these provisions, when read most naturally, does not give detained aliens the right to periodic bond hearings during the course of their detention. But by relying on the constitutional-avoidance canon of statutory interpretation, the Court of Appeals for the Ninth Circuit held that detained aliens have a statutory right to periodic bond hearings under the provisions at issue. Under the constitutional-avoidance canon, when statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and instead may adopt an alternative that avoids those problems. But a court relying on that canon still must interpret the statute, not rewrite it. Because the Court of Appeals in this case adopted implausible constructions of the three immigration provisions at issue, we reverse its judgment and remand for further proceedings. I A To implement its immigration policy, the Government must be able to decide (1) who may enter the country and (2) who may stay here after entering. 1 That process of decision generally begins at the Nation's borders and ports of entry, where the Government must determine whether an alien seeking to enter the country is admissible. Under 122 Stat. 867, 8 U.S.C. § 1225, an alien who "arrives in the United States," or "is present" in this country but "has not been admitted," is treated as "an applicant for admission." § 1225(a)(1). Applicants for admission must "be inspected by immigration officers" to ensure that they may be admitted into the country consistent with U.S. immigration law. § 1225(a)(3). As relevant here, applicants for admission fall into one of two categories, those covered by § 1225(b)(1) and those covered by § 1225(b)(2). Section 1225(b)(1) applies to aliens initially determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation. See § 1225(b)(1)(A)(i) (citing §§ 1182(a)(6)(C), (a)(7)). Section 1225(b)(1) also applies to certain other aliens designated by the Attorney General in his discretion. See § 1225(b)(1)(A)(iii). Section 1225(b)(2) is broader. It serves as a catchall provision that applies to all applicants for admission not covered by § 1225(b)(1) (with specific exceptions not relevant here). See §§ 1225(b)(2)(A), (B). Both § 1225(b)(1) and § 1225(b)(2) authorize the detention of certain aliens. Aliens covered by § 1225(b)(1) are normally ordered removed "without further hearing or review" pursuant to an expedited removal process. § 1225(b)(1)(A)(i). But if a § 1225(b)(1) alien "indicates either an intention to apply for asylum... or a fear of persecution," then that alien is referred for an asylum interview. § 1225(b)(1)(A)(ii). If an immigration officer determines after that interview that the alien has a credible fear of persecution, "the alien shall be detained for further consideration of the application for asylum." § 1225(b)(1)(B)(ii). Aliens who are instead covered by § 1225(b)(2) are detained pursuant to a different process. Those aliens "shall be detained for a [removal] proceeding" if an immigration officer "determines that [they are] not clearly and beyond a doubt entitled to be admitted" into the country. § 1225(b)(2)(A). Regardless of which of those two sections authorizes their detention, applicants for admission may be temporarily released on parole "for urgent humanitarian reasons or significant public benefit." § 1182(d)(5)(A); see also 8 C.F.R §§ 212.5(b), 235.3 (2017). Such parole, however, "shall not be regarded as an admission of the alien." 8 U.S.C. § 1182(d)(5)(A). Instead, when the purpose of the parole has been served, "the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States." Ibid. 2 Even once inside the United States, aliens do not have an absolute right to remain here. For example, an alien present in the country may still be removed if he or she falls "within one or more... classes of deportable aliens." § 1227(a). That includes aliens who were inadmissible at the time of entry or who have been convicted of certain criminal offenses since admission. See §§ 1227(a)(1), (2). Section 1226 generally governs the process of arresting and detaining that group of aliens pending their removal. As relevant here, § 1226 distinguishes between two different categories of aliens. Section 1226(a) sets out the default rule: The Attorney General may issue a warrant for the arrest and detention of an alien "pending a decision on whether the alien is to be removed from the United States." § 1226(a). "Except as provided in subsection (c) of this section," the Attorney General "may release" an alien detained under § 1226(a)"on bond... or conditional parole." Ibid. Section 1226(c), however, carves out a statutory category of aliens who may not be released under § 1226(a). Under § 1226(c), the "Attorney General shall take into custody any alien" who falls into one of several enumerated categories involving criminal offenses and terrorist activities. § 1226(c)(1). The Attorney General may release aliens in those categories "only if the Attorney General decides... that release of the alien from custody is necessary" for witness-protection purposes and "the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding." § 1226(c)(2). Any release under those narrow conditions "shall take place in accordance with a procedure that considers the severity of the offense committed by the alien." Ibid. In sum, U.S. immigration law authorizes the Government to detain certain aliens seeking admission into the country under §§ 1225(b)(1) and (b)(2). It also authorizes the Government to detain certain aliens already in the country pending the outcome of removal proceedings under §§ 1226(a) and (c). The primary issue is the proper interpretation of §§ 1225(b), 1226(a), and 1226(c). B Respondent Alejandro Rodriguez is a Mexican citizen. Since 1987, he has also been a lawful permanent resident of the United States. In April 2004, after Rodriguez was convicted of a drug offense and theft of a vehicle, the Government detained him under § 1226 and sought to remove him from the country. At his removal hearing, Rodriguez argued both that he was not removable and, in the alternative, that he was eligible for relief from removal. In July 2004, an Immigration Judge ordered Rodriguez deported to Mexico. Rodriguez chose to appeal that decision to the Board of Immigration Appeals, but five months later the Board agreed that Rodriguez was subject to mandatory removal. Once again, Rodriguez chose to seek further review, this time petitioning the Court of Appeals for the Ninth Circuit for review of the Board's decision. In May 2007, while Rodriguez was still litigating his removal in the Court of Appeals, he filed a habeas petition in the District Court for the Central District of California, alleging that he was entitled to a bond hearing to determine whether his continued detention was justified. Rodriguez's case was consolidated with another, similar case brought by Alejandro Garcia, and together they moved for class certification. The District Court denied their motion, but the Court of Appeals for the Ninth Circuit reversed. See Rodriguez v. Hayes, 591 F.3d 1105, 1111 (2010). It concluded that the proposed class met the certification requirements of Rule 23 of the Federal Rules of Civil Procedure, and it remanded the case to the District Court. Id., at 1111, 1126. On remand, the District Court certified the following class: "[A]ll non-citizens within the Central District of California who: (1) are or were detained for longer than six months pursuant to one of the general immigration detention statutes pending completion of removal proceedings, including judicial review, (2) are not and have not been detained pursuant to a national security detention statute, and (3) have not been afforded a hearing to determine whether their detention is justified." Class Certification Order in Rodriguez v. Hayes, CV 07-03239 (CD Cal., Apr. 5, 2010). The District Court named Rodriguez as class representative of the newly certified class, ibid., and then organized the class into four subclasses based on the four "general immigration detention statutes" under which it understood the class members to be detained: Sections 1225(b), 1226(a), 1226(c), and 1231(a). See Order Granting Plaintiff's Motion for Class Certification in Rodriguez v. Holder, CV 07-03239 (CD Cal., Mar. 8, 2011) (2011 Order); Rodriguez v. Robbins, 715 F.3d 1127, 1130-1131 (C.A.9 2013). Each of the four subclasses was certified to pursue declaratory and injunctive relief. 2011 Order. On appeal, the Court of Appeals held that the § 1231(a) subclass had been improperly certified, but it affirmed the certification of the other three subclasses. See Rodriguez v. Robbins, 804 F.3d 1060, 1074, 1085-1086 (C.A.9 2015). In their complaint, Rodriguez and the other respondents argued that the relevant statutory provisions- §§ 1225(b), 1226(a), and 1226(c) -do not authorize "prolonged" detention in the absence of an individualized bond hearing at which the Government proves by clear and convincing evidence that the class member's detention remains justified. Absent such a bond-hearing requirement, respondents continued, those three provisions would violate the Due Process Clause of the Fifth Amendment. In their prayer for relief, respondents thus asked the District Court to require the Government "to provide, after giving notice, individual hearings before an immigration judge for... each member of the class, at which [the Government] will bear the burden to prove by clear and convincing evidence that no reasonable conditions will ensure the detainee's presence in the event of removal and protect the community from serious danger, despite the prolonged length of detention at issue." Third Amended Complaint in Rodriguez v. Holder, CV 07-03239, p. 31 (CD Cal., Oct. 20, 2010). Respondents also sought declaratory relief. Ibid. As relevant here, the District Court entered a permanent injunction in line with the relief sought by respondents, and the Court of Appeals affirmed. See 804 F.3d, at 1065. Relying heavily on the canon of constitutional avoidance, the Court of Appeals construed §§ 1225(b) and 1226(c) as imposing an implicit 6-month time limit on an alien's detention under these sections. Id., at 1079, 1082. After that point, the Court of Appeals held, the Government may continue to detain the alien only under the authority of § 1226(a). Ibid. The Court of Appeals then construed § 1226(a) to mean that an alien must be given a bond hearing every six months and that detention beyond the initial 6-month period is permitted only if the Government proves by clear and convincing evidence that further detention is justified. Id., at 1085, 1087. The Government petitioned this Court for review of that decision, and we granted certiorari. 579 U.S. ----, 136 S.Ct. 2489, 195 L.Ed.2d 821 (2016). II Before reaching the merits of the lower court's interpretation, we briefly address whether we have jurisdiction to entertain respondents' claims. We discuss two potential obstacles, 8 U.S.C. §§ 1252(b)(9) and 1226(e). A Under § 1252(b)(9) : "Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter [including §§ 1225 and 1226 ] shall be available only in judicial review of a final order under this section." This provision does not deprive us of jurisdiction. We are required in this case to decide "questions of law," specifically, whether, contrary to the decision of the Court of Appeals, certain statutory provisions require detention without a bond hearing. We assume for the sake of argument that the actions taken with respect to all the aliens in the certified class constitute "action[s] taken... to remove [them] from the United States." On that assumption, the applicability of § 1252(b)(9) turns on whether the legal questions that we must decide "aris[e] from" the actions taken to remove these aliens. It may be argued that this is so in the sense that if those actions had never been taken, the aliens would not be in custody at all. But this expansive interpretation of § 1252(b)(9) would lead to staggering results. Suppose, for example, that a detained alien wishes to assert a claim under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), based on allegedly inhumane conditions of confinement. See, e.g., Ziglar v. Abbasi, 582 U.S. ----, ---- - ----, 137 S.Ct. 1843, 1863-1867, 198 L.Ed.2d 290 (2017). Or suppose that a detained alien brings a state-law claim for assault against a guard or fellow detainee. Or suppose that an alien is injured when a truck hits the bus transporting aliens to a detention facility, and the alien sues the driver or owner of the truck. The "questions of law and fact" in all those cases could be said to "aris[e] from" actions taken to remove the aliens in the sense that the aliens' injuries would never have occurred if they had not been placed in detention. But cramming judicial review of those questions into the review of final removal orders would be absurd. Interpreting "arising from" in this extreme way would also make claims of prolonged detention effectively unreviewable. By the time a final order of removal was eventually entered, the allegedly excessive detention would have already taken place. And of course, it is possible that no such order would ever be entered in a particular case, depriving that detainee of any meaningful chance for judicial review. In past cases, when confronted with capacious phrases like " 'arising from,' " we have eschewed " 'uncritical literalism' " leading to results that " 'no sensible person could have intended.' " Gobeille v. Liberty Mut. Ins. Co., 577 U.S. ----, ----, 136 S.Ct. 936, 943, 194 L.Ed.2d 20 (2016) (interpreting phrase "relate to" in the Employee Retirement Income Security Act of 1974's pre-emption provision). See also, e.g., FERC v. Electric Power Supply Assn., 577 U.S. ----, ----- -----, 136 S.Ct. 760, 773-775, 193 L.Ed.2d 661 (2016) (interpreting term "affecting" in Federal Power Act); Maracich v. Spears, 570 U.S. 48, 59-61, 133 S.Ct. 2191, 186 L.Ed.2d 275 (2013) (interpreting phrase "in connection with" in Driver's Privacy Protection Act); Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260-261, 133 S.Ct. 1769, 185 L.Ed.2d 909 (2013) (interpreting phrase "related to" in Federal Aviation Administration Authorization Act); Celotex Corp. v. Edwards, 514 U.S. 300, 308, 115 S.Ct. 1493, 131 L.Ed.2d 403 (1995) (interpreting phrase "related to" in Bankruptcy Act). In Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), we took this approach in construing the very phrase that appears in § 1252(b)(9). A neighboring provision of the Immigration and Nationality Act refers to "any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter." 8 U.S.C. § 1252(g) (emphasis added). We did not interpret this language to sweep in any claim that can technically be said to "arise from" the three listed actions of the Attorney General. Instead, we read the language to refer to just those three specific actions themselves. American-Arab Anti-Discrimination Comm., supra, at 482-483, 119 S.Ct. 936. The parties in this case have not addressed the scope of § 1252(b)(9), and it is not necessary for us to attempt to provide a comprehensive interpretation. For present purposes, it is enough to note that respondents are not asking for review of an order of removal; they are not challenging the decision to detain them in the first place or to seek removal; and they are not even challenging any part of the process by which their removability will be determined. Under these circumstances, § 1252(b)(9) does not present a jurisdictional bar. B We likewise hold that § 1226(e) does not bar us from considering respondents' claims. That provision states: "The Attorney General's discretionary judgment regarding the application of [ § 1226 ] shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole." § 1226(e). As we have previously explained, § 1226(e) precludes an alien from "challeng[ing] a 'discretionary judgment' by the Attorney General or a 'decision' that the Attorney General has made regarding his detention or release." Demore v. Kim, 538 U.S. 510, 516, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). But § 1226(e) does not preclude "challenges [to] the statutory framework that permits [the alien's] detention without bail." Id., at 517, 123 S.Ct. 1708. Respondents mount that second type of challenge here. First and foremost, they are challenging the extent of the Government's detention authority under the "statutory framework" as a whole. If that challenge fails, they are then contesting the constitutionality of the entire statutory scheme under the Fifth Amendment. Because the extent of the Government's detention authority is not a matter of "discretionary judgment," "action," or "decision," respondents' challenge to "the statutory framework that permits [their] detention without bail," ibid., falls outside of the scope of § 1226(e). We may therefore consider the merits of their claims. III When "a serious doubt" is raised about the constitutionality of an act of Congress, "it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932). Relying on this canon of constitutional avoidance, the Court of Appeals construed §§ 1225(b), 1226(a), and 1226(c) to limit the permissible length of an alien's detention without a bond hearing. Without such a construction, the Court of Appeals believed, the " 'prolonged detention without adequate procedural protections' " authorized by the provisions " 'would raise serious constitutional concerns.' " 804 F.3d, at 1077 (quoting Casas-Castrillon v. DHS, 535 F.3d 942, 950 (C.A.9 2008) ). The canon of constitutional avoidance "comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction." Clark v. Martinez, 543 U.S. 371, 385, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005). In the absence of more than one plausible construction, the canon simply " 'has no application.' " Warger v. Shauers, 574 U.S. ----, ----, 135 S.Ct. 521, 529, 190 L.Ed.2d 422 (2014) (quoting United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 494, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001) ). The Court of Appeals misapplied the canon in this case because its interpretations of the three provisions at issue here are implausible. In Parts III-A and III-B, we hold that, subject only to express exceptions, §§ 1225(b) and 1226(c) authorize detention until the end of applicable proceedings. And in Part III-C, we hold that there is no justification for any of the procedural requirements that the Court of Appeals layered onto § 1226(a) without any arguable statutory foundation. A As noted, § 1225(b) applies primarily to aliens seeking entry into the United States ("applicants for admission" in the language of the statute). Section 1225(b) divides these applicants into two categories. First, certain aliens claiming a credible fear of persecution under § 1225(b)(1)"shall be detained for further consideration of the application for asylum." § 1225(b)(1)(B)(ii). Second, aliens falling within the scope of § 1225(b)(2)"shall be detained for a [removal] proceeding." § 1225(b)(2)(A). Read most naturally, §§ 1225(b)(1) and (b)(2) thus mandate detention of applicants for admission until certain proceedings have concluded. Section 1225(b)(1) aliens are detained for "further consideration of the application for asylum," and § 1225(b)(2) aliens are in turn detained for "[removal] proceeding[s]." Once those proceedings end, detention under § 1225(b) must end as well. Until that point, however, nothing in the statutory text imposes any limit on the length of detention. And neither § 1225(b)(1) nor § 1225(b)(2) says anything whatsoever about bond hearings. Despite the clear language of §§ 1225(b)(1) and (b)(2), respondents argue-and the Court of Appeals held-that those provisions nevertheless can be construed to contain implicit limitations on the length of detention. But neither of the two limiting interpretations offered by respondents is plausible. 1 First, respondents argue that §§ 1225(b)(1) and (b)(2) contain an implicit 6-month limit on the length of detention. Once that 6-month period elapses, respondents contend, aliens previously detained under those provisions must instead be detained under the authority of § 1226(a), which allows for bond hearings in certain circumstances. There are many problems with this interpretation. Nothing in the text of § 1225(b)(1) or § 1225(b)(2) even hints that those provisions restrict detention after six months, but respondents do not engage in any analysis of the text. Instead, they simply cite the canon of constitutional avoidance and urge this Court to use that canon to read a "six-month reasonableness limitation" into § 1225(b). Brief for Respondents 48. That is not how the canon of constitutional avoidance works. Spotting a constitutional issue does not give a court the authority to rewrite a statute as it pleases. Instead, the canon permits a court to "choos[e] between competing plausible interpretations of a statutory text." Clark, supra, at 381, 125 S.Ct. 716 (emphasis added). To prevail, respondents must thus show that § 1225(b)'s detention provisions may plausibly be read to contain an implicit 6-month limit. And they do not even attempt to defend that reading of the text. In much the same manner, the Court of Appeals all but ignored the statutory text. Instead, it read Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), as essentially granting a license to graft a time limit onto the text of § 1225(b). Zadvydas, however, provides no such authority. Zadvydas concerned § 1231(a)(6), which authorizes the detention of aliens who have already been ordered removed from the country. Under this section, when an alien is ordered removed, the Attorney General is directed to complete removal within a period of 90 days, 8 U.S.C. § 1231(a)(1)(A), and the alien must be detained during that period, § 1231(a)(2). After that time elapses, however, § 1231(a)(6) provides only that certain aliens "may be detained" while efforts to complete removal continue. (Emphasis added.) In Zadvydas, the Court construed § 1231(a)(6) to mean that an alien who has been ordered removed may not be detained beyond "a period reasonably necessary to secure removal," 533 U.S., at 699, 121 S.Ct. 2491 and it further held that six months is a presumptively reasonable period, id., at 701, 121 S.Ct. 2491. After that, the Court concluded, if the alien "provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future," the Government must either rebut that showing or release the alien. Ibid. The Zadvydas Court justified this interpretation by invoking the constitutional-avoidance canon, and the Court defended its resort to that canon on the ground that § 1231(a)(6) is ambiguous. Specifically, the Court detected ambiguity in the statutory phrase "may be detained." " '[M]ay,' " the Court said, "suggests discretion" but not necessarily "unlimited discretion. In that respect the word'may' is ambiguous." Id., at 697, 121 S.Ct. 2491. The Court also pointed to the absence of any explicit statutory limit on the length of permissible detention following the entry of an order of removal. Ibid. Zadvydas represents a notably generous application of the constitutional-avoidance canon, but the Court of Appeals in this case went much further. It failed to address whether Zadvydas's reasoning may fairly be applied in this case despite the many ways in which the provision in question in Zadvydas, § 1231(a)(6), differs materially from those at issue here, §§ 1225(b)(1) and (b)(2). Those differences preclude the reading adopted by the Court of Appeals. To start, §§ 1225(b)(1) and (b)(2), unlike § 1231(a)(6), provide for detention for a specified period of time. Section 1225(b)(1) mandates detention "for further consideration of the application for asylum," § 1225(b)(1)(B)(ii), and § 1225(b)(2) requires detention "for a [removal] proceeding," § 1225(b)(2)(A). The plain meaning of those phrases is that detention must continue until immigration officers have finished "consider [ing]" the application for asylum, § 1225(b)(1)(B)(ii), or until removal proceedings have concluded, § 1225(b)(2)(A). By contrast, Congress left the permissible length of detention under § 1231(a)(6) unclear. Moreover, in Zadvydas, the Court saw ambiguity in § 1231(a)(6)'s use of the word "may." Here, by contrast, §§ 1225(b)(1) and (b)(2) do not use the word "may." Instead, they unequivocally mandate that aliens falling within their scope "shall" be detained. "Unlike the word'may,' which implies discretion, the word'shall' usually connotes a requirement." Kingdomware Technologies, Inc. v. United States, 579 U.S. ----, ----, 136 S.Ct. 1969, 1977, 195 L.Ed.2d 334 (2016). That requirement of detention precludes a court from finding ambiguity here in the way that Zadvydas found ambiguity in § 1231(a)(6). Zadvydas's reasoning is particularly inapt here because there is a specific provision authorizing release from § 1225(b) detention whereas no similar release provision applies to § 1231(a)(6). With a few exceptions not relevant here, the Attorney General may "for urgent humanitarian reasons or significant public benefit" temporarily parole aliens detained under §§ 1225(b)(1) and (b)(2). 8 U.S.C. § 1182(d)(5)(A). That express exception to detention implies that there are no other circumstances under which aliens detained under § 1225(b) may be released. See A. Scalia & B. Garner, Reading Law 107 (2012) ("Negative-Implication Canon[:] The expression of one thing implies the exclusion of others (expressio unius est exclusio alterius )"). That negative implication precludes the sort of implicit time limit on detention that we found in Zadvydas. In short, a series of textual signals distinguishes the provisions at issue in this case from Zadvydas's interpretation of § 1231(a)(6). While Zadvydas found § 1231(a)(6) to be ambiguous, the same cannot be said of §§ 1225(b)(1) and (b)(2): Both provisions mandate detention until a certain point and authorize release prior to that point only under limited circumstances. As a result, neither provision can reasonably be read to limit detention to six months. 2 In this Court, respondents advance an interpretation of the language of §§ 1225(b)(1) and (b)(2) that was never made below, namely, that the term "for," which appears in both provisions, mandates detention only until the start of applicable proceedings rather than all the way through to their conclusion. Respondents contrast the language of §§ 1225(b)(1) and (b)(2) authorizing detention "for" further proceedings with another provision's authorization of detention "pending" further proceedings. See 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) ("Any alien... shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed"). According to respondents, that distinction between "for" and "pending" makes an enormous difference. As they see things, the word "pending" authorizes detention throughout subsequent proceedings, but the term "for" means that detention authority ends once subsequent proceedings begin. As a result, respondents argue, once the applicable proceedings commence, §§ 1225(b)(1) and (b)(2) no longer authorize detention, and the Government must instead look to § 1226(a) for continued detention authority. That interpretation is inconsistent with ordinary English usage and is incompatible with the rest of the statute. To be sure, "for" can sometimes mean "in preparation for or anticipation of." 6 Oxford English Dictionary 24 (2d ed. 1989). But "for" can also mean "[d]uring [or] throughout," id., at 26, as well as "with the object or purpose of," id., at 23; see also American Heritage Dictionary 709 (3d ed. 1992) ("Used to indicate the object, aim, or purpose of an action or activity"; "Used to indicate amount, extent, or duration"); Random House Dictionary of the English Language 747 (2d ed. 1987) ("with the object or purpose of"; "during the continuance of"); Webster's Third New International Dictionary 886 (1993) ("with the purpose or object of"; "to the... duration of"). And here, only that second set of definitions makes sense in the context of the statutory scheme as a whole. For example, respondents argue that, once detention authority ends under §§ 1225(b)(1) and (b)(2), aliens can be detained only under § 1226(a). But that section authorizes detention only "[o]n a warrant issued" by the Attorney General leading to the alien's arrest. § 1226(a). If respondents' interpretation of § 1225(b) were correct, then the Government could detain an alien without a warrant at the border, but once removal proceedings began, the Attorney General would have to issue an arrest warrant in order to continue detaining the alien. To put it lightly, that makes little sense. Nor does respondents' interpretation of the word "for" align with the way Congress has historically used that word in § 1225. Consider that section's text prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009-546. Under the older version of § 1225(b), "[e]very alien" within its scope "who may not appear... to be clearly and Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Guadalupe R. HINOJOSA, Plaintiff-Appellee, v. The CITY OF TERRELL, TEXAS, et al., Defendants, Ron Jones, Etc., Defendant-Appellant. No. 86-1777. United States Court of Appeals, Fifth Circuit. Jan. 6, 1988. George C. Dunlap and David G. McCracken, Strasburger & Price, Dallas, Tex., for defendant-appellant. Frank P. Hernandez, Hernandez, Inc., Dallas, Tex., for plaintiff-appellee. Before RANDALL, WILLIAMS, and GARWOOD, Circuit Judges. GARWOOD, Circuit Judge: Plaintiff-appellee Guadalupe Hinojosa (Hinojosa) sued the City of Terrell and four of its police officers, alleging civil rights violations pursuant to 42 U.S.C. §§ 1981, 1983, 1985 & 1986, and several pendent state law claims. The district court entered judgment on a jury verdict finding that defendant-appellant police officer Ron Jones had used excessive force against Hi-nojosa “in the course of an arrest” and that he had assaulted Hinojosa, and denied Jones’ post-verdict motions seeking judgment notwithstanding the verdict or a new trial. Jones appeals from the court’s post-trial rulings. Finding no evidence to support the jury verdict in favor of Hinojosa, we reverse the district court’s denial of Jones’ motion for a new trial, and remand for a new trial on Hinojosa’s excessive use of force claim under section 1983, and on his state law assault claim, against Jones. Facts and Proceedings Below At the time of the events that provoked this suit, Guadalupe Hinojosa operated a pool hall in Terrell, Texas. Just after midnight on January 17, 1982, Hinojosa, then forty-nine years old, and his wife received a telephone call at home from the night manager of the pool hall. The manager informed Mrs. Hinojosa that two of the patrons at the pool hall were arguing and that she had called the police. Mrs. Hinojo-sa related this information to her husband, who then drove immediately to the pool hall. According to Hinojosa, when he arrived two police officers had arrested two persons and were escorting the arrestees into the police cars. There were fifteen to twenty Mexican-Americans or Mexican nationals milling about inside and outside of the pool hall. Hinojosa told the night manager to close the pool hall for the night and helped her usher the patrons out. Unknown to Hinojosa, the two arrestees had been fist fighting on the sidewalk before Hinojosa arrived. When the pool hall night manager called for police assistance, the police dispatcher notified Officer Dela-cerda, in whose district the pool hall was located. Defendant Delacerda, who was the first officer to arrive, arrested the two men who were fighting. They offered no resistance. In the meantime, Officer Jones drove up and began ordering the crowd to disburse. He also assisted Delacerda in placing one of the arrestees in his patrol car. What happened next is the subject of much dispute between the parties. According to Hinojosa, he was standing at the door of the pool hall talking to Rubin Reyes, Sr. (Reyes, Sr.) (a patron standing outside), when Delacerda ran up to Reyes, Sr. and for no apparent reason hit him on the head with his flashlight. Reyes, Sr. fell to the ground. Delacerda hit Reyes, Sr. again, and tried to handcuff him. Dela-cerda “was on the ground with Reyes, Sr.” Hinojosa told Delacerda “not to hit him [Reyes, Sr.] any more.” At that point, Officer Jones walked up to Hinojosa, drew his service revolver, and pointed it directly at Hinojosa. Hinojosa testified that by then he had moved back from Reyes, Sr. and was several feet away from Delacerda and Reyes, Sr., but only about one foot away from Jones. Hinojosa insists that Officer Jones did not speak to him at all, either before, during, or after Jones pointed the gun at him. Hinojosa’s position about what he said to Jones is less clear. Although at one point in his testimony Hinojosa said that he did not speak at all to Officer Jones, he later testified that when Jones pointed the gun, he said “I haven’t done nothing.” Hinojosa also testified that before Jones drew his gun, he told “the police who were beating [Reyes, Sr.]” that “[t]he big people from Dallas are coming down here and find out the truth” or “that the boys from Dallas were going to take care of them.” Hinojosa testified that while Jones’ gun was pointed at him, he initially stood still, then slowly “turned around real easy [and] went towards the pool hall.” He went inside the pool hall. From inside the pool hall, looking out its door, Hinojosa saw another police officer (Moore) at the sidewalk pointing his gun to the head of Reyes’ son, Rubin Reyes, Jr. (Reyes, Jr.). Then he also saw Officer Blair (whom he knew by name) drive up. Jones told Blair to “get Lupe [Hinojosa].” Blair then came to the pool hall door and called to Hinojosa, who was inside, to “come here.” Hinojosa did so, and Blair then told Hinojosa he was under arrest. No force was used in the arrest and Hinojosa was not handcuffed. He was taken to the police station. He testified that no one used “any force” on him that evening. The police officers’ version of these events is predictably different. According to Jones, when Delacerda attempted to arrest Reyes, Sr., the man resisted violently, prompting Delacerda to strike him in self defense. While Delacerda and Reyes, Sr. struggled, a second man (Reyes, Jr.) hit Delacerda on the head with his fist. Jones grabbed Reyes, Jr. and handed him over to Officer Moore, who had just arrived. Moore took Reyes, Jr. away and Jones then assisted Delacerda in subduing the still-fighting Reyes, Sr. Jones threw Reyes, Sr. to the ground and went to the ground with him. As they continued struggling, a small crowd moved in, and Hinojosa grabbed Jones’ arm and tried to pull him off Reyes, Sr. Jones repeatedly ordered Hinojosa to “get back, get away,” but Hinojosa stayed. According to both Jones and Delacerda, Hinojosa was excited and threatened the officers several times. Jones remembered Hinojosa yelling, “Your wife is going to suffer like this. The boys from Dallas are going to be down. They will take care of you. He said you’re going to die. You’re going to die, mother f_” Jones, who said he then feared for his life, drew his gun, pointed it at Hinojosa, and again commanded Hinojosa to “get back.” Jones claimed that Hinojosa remained steadfast even then, until Officer Blair arrived a few seconds later. Then, testified Jones, Hino-josa turned and ran into the pool hall, and was thereafter placed under arrest by Officer Blair. The parties agreed that Hinojosa did not resist his arrest, and that no force was used against him either during his arrest or later at the police station. Hinojosa testified that at no point did any of the officers ever touch him. Hinojosa also acknowledged that he suffered no physical injury from the incident, but said that “it bothered] me that I haven’t done nothing.” He testified that as a result, he couldn’t work for about three to four weeks and that he was embarrassed before his children and wife because he had been arrested. As a consequence of these events, on January 17, 1984, Hinojosa commenced the present action against the City of Terrell, its then-Chief of Police Joe Patton, and police officers Blair, Delacerda, Jones, and Moore. In the complaint he alleged causes of action under 42 U.S.C. §§ 1981, 1983, 1985, & 1986 for violation of his rights under the First, Fourth, Fifth, and Fourteenth Amendments to the Constitution. He also asserted pendent state law claims for assault, battery, false arrest, false imprisonment, intentional infliction of emotional distress, malicious prosecution, and negligence. For these alleged wrongs, Hi-nojosa sought actual and punitive damages, attorneys’ fees, and costs from all of the defendants. In response to a motion for partial summary judgment submitted by the defendants, the district court on May 20, 1986, dismissed Hinojosa’s claims pursuant to 42 U.S.C. §§ 1981, 1985, & 1986, and all of his claims against Officer Moore. Thereafter, on June 10, 1986, the case proceeded to trial. At the close of Hinojosa’s evidence, and after all of the evidence was presented, various defendants made motions for a directed verdict with respect to several of Hinojosa’s claims, which the district court granted in part. The remaining claims were submitted to the jury by special interrogatories. These included: (1) excessive use of force by Jones, Dela-cerda, and Blair (in violation of 42 U.S.C. § 1983), (2) illegal arrest by Jones, Delacerda, and Blair (in violation of 42 U.S.C. § 1983), (3) conspiracy to use excessive force or perform illegal arrest by Jones, Delacerda, and Blair (in violation of 42 U.S.C. 1985), (4) assault by Jones, (5) intentional infliction of emotional distress by Jones, Delacerda, and Blair, (6) false arrest and imprisonment by Jones and Blair, (7) intentional interference with Hinojosa’s business by Delacerda, and (8) negligent hiring of Jones by Chief Patton. In addition, the district court instructed and submitted interrogatories to the jury on damages, and on the defenses of good faith immunity and discretionary authority. The jury found that officer Jones had used excessive force “against” Hinojosa “in the course of an arrest,”, that he had “committed an assault on” Hinojosa, that his actions were not undertaken pursuant to the exercise of his discretionary authority, and that he had not acted with a reasonable, good faith belief that his actions were proper. The jury found, however, that Jones had not “intentionally committed an act, or threatened to commit an act, against” Hinojosa “with the purpose of causing Hinojosa emotional distress.” It also determined that neither Jones nor any other officer inquired about “arrested” Hi-nojosa “without probable cause,” or “falsely arrested or imprisoned” him, so as to proximately cause him any damage; that there was no conspiracy “to illegally arrest or use excessive force against” Hinojosa; and that the Chief of Police was not negligent in hiring or retaining Jones. And in all other respects, the jury likewise found in favor of each of the defendants. In response to the damages interrogatories, the jury found “none” regarding “illegal arrest, or... false arrest or false imprisonment, if any”; “none” regarding “the intentional infliction of emotional distress..., if any”; “none” regarding negligent hiring or retention of Jones, if any; $2,000 “resulting from the use of excessive force or assault against” Hinojosa; and $2,000 punitive damages against Jones only. Subsequently, on September 4, 1986, the district court entered judgment. In accordance with the jury’s verdict, the court awarded Hinojosa $2,000 in actual damages and $2,000 in punitive damages against Jones for use of excessive force and assault. Pursuant to 42 U.S.C. § 1988, the court also awarded Hinojosa $12,487.50 in attorneys’ fees against Jones. Discussion Jones argues on appeal that there is no evidence or, alternatively, insufficient evidence to support the jury verdict against him, either with respect to Hinojosa’s section 1983 use of excessive force claim or his Texas common-law assault claim. Therefore, Jones contends, the district court erred in denying his motions for judgment notwithstanding the verdict and for a new trial. Standard of Review According to Rule 50(b) of the Federal Rules of Civil Procedure, a party may only base a motion for judgment notwithstanding the verdict on a ground that he included in a prior motion for directed verdict at the close of all the evidence. See Fed.R.Civ.P. 50(b); Jones v. Benefit Trust Life Ins. Co., 800 F.2d 1397, 1401 (5th Cir.1986) (citing Sulmeyer v. Coca Cola Co., 515 F.2d 835 (5th Cir. 1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1148, 47 L.Ed.2d 341 (1976)). This rule has been liberally construed, however, to in certain circumstances permit the granting of a motion for judgment notwithstanding the verdict where a motion for directed verdict was made at the close of the plaintiff’s case but was not renewed at the close of all the evidence, Mervine v. Board of Trustees, 754 F.2d 631, 634-35 (5th Cir.), cert. denied, 474 U.S. 823, 106 S.Ct. 76, 88 L.Ed.2d 62 (1985); Bohrer v. Hanes Corp., 715 F.2d 213 (5th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984), or where the moving party objected to the court’s jury instructions on grounds that there was no evidence to support a claim but failed to move for a directed verdict on that claim. Jones, 800 F.2d at 1401; see also 9 C. Wright & A. Miller, Federal Practice & Procedure § 2537 (1971 & Supp.1986). As we have recently emphasized, Rule 50(b), and its judicial gloss, serve the dual purposes of “enabling] the trial court to re-examine the question of evidentiary insufficiency as a matter of law if the jury returns a verdict contrary to the movant, and to alert the opposing party to the insufficiency before the case is submitted to the jury, thereby affording it an opportunity to cure any defects in proof should the motion have merit.” Merwine, 754 F.2d at 634 (emphasis added). In this case Jones did not at any time move for a directed verdict in his favor with respect to either the excessive use of force claim or the assault claim, nor did he object to the submission of any of the interrogatories pertaining to these claims on the ground that the claims were unsupported by the evidence. On the record before us, therefore, it appears that Jones failed to alert Hinojosa, prior to submission of the case to the jury, to the possibility that insufficient evidence was presented to support the use of excessive force and assault claims. Consequently, we conclude that Jones’ motion for judgment notwithstanding the verdict on these claims lacked a proper predicate. Sandoz v. Merchants Trust & Savings Bank (In re Owners of “Harvey Oil Center”), 788 F.2d 275, 278 (5th Cir.1986). Since Jones did not move for directed verdict, our review of the district court’s denial of his motions for judgment notwithstanding the verdict and for a new trial (on insufficiency of the evidence grounds) is extremely limited. In such cases, “our inquiry is restricted to whether there was any evidence to support the jury’s verdict, irrespective of its sufficiency, or whether plain error was committed which, if not noticed, would result in manifest miscarriage of justice.” Stewart v. Thigpen, 730 F.2d 1002, 1007 (5th Cir.1984) (emphasis in original); accord Sandoz, 788 F.2d at 278; Bunch v. Walter, 673 F.2d 127, 130 (5th Cir.1982); Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir.1978). If so, we must affirm the district court’s entry of judgment in accordance with the jury verdict; if not, appellate relief is limited to ordering a new trial. Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033, 1038 (5th Cir. 1970); Jones v. Reliance Ins. Co., 607 F.2d 1, 3-4 (D.C.Cir.1979); 9 C. Wright & A. Miller, supra, § 2539. Cf. Johnson v. New York, N.H. & H.R. Co., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77 (1952). We now separately consider the use of excessive force claim and the state law assault claim in light of this standard. Use of Excessive Force In section 1983 actions alleging use of excessive force by state officials in violation of Fourteenth Amendment rights, this Circuit follows the standard first set forth in Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981). Accord Lynch v. Cannatella, 810 F.2d 1363, 1375 (5th Cir. 1987); Hinshaw v. Doffer, 785 F.2d 1260, 1267 (5th Cir.1986); Hendrix v. Matlock, 782 F.2d 1273, 1274 (5th Cir.1986). That standard was recently reiterated in Coon v. Ledbetter, 780 F.2d 1158, 1163 (5th Cir. 1986), where a panel of this Court stated: “In determining whether the state officer has crossed the constitutional line that would make the physical abuse actionable under Section 1983, we must inquire into the amount of force used in relationship to the need presented, the extent of the injury inflicted and the motives of the state officer. If the state officer’s action caused severe injuries, was grossly disproportionate to the need for action under the circumstances, and was inspired by malice rather than merely careless or unwise excess of zeal so that it amounted to an abuse of official power that shocks the conscience, it should be redressed under Section 1983.” The district court in this case faithfully adhered to this standard in instructing the jury on Hinojosa’s use of excessive force claim. Neither Jones nor Hinojosa objected, either in the district court (so far as the record reflects) or on appeal, to the use of this standard or to the court’s statement of it in the jury charge. Jones does argue, however, that Hinojosa produced no evidence that would support a jury verdict in his favor under the Shillingford criteria. After a careful review of the record, we must agree. As the Supreme Court has repeatedly emphasized, “[sjection 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law,” Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979) (emphasis added). Not every injury for which a state official is responsible is actionable under section 1983. Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 559, 62 L.Ed.2d 481 (1980); accord Mark v. Caldwell, 754 F.2d 1260, 1261 (5th Cir.), cert. denied, 474 U.S. 945, 106 S.Ct. 310, 88 L.Ed.2d 287 (1985) (“section 1983 does not grant a cause of action for every injury wrongfully inflicted by a state officer”); Shillingford, 634 F.2d at 264 (same). In recognition of this need to distinguish potential constitutional violations from mere breaches of state tort law, Shillingford limits redress under section 1983 to police conduct that (1) caused at least meaningful injury, (2) was grossly disproportionate to the need presented, and (3) was motivated by malice. Even applying, as we must, the “Draconian” standard of whether any evidence was presented to support a jury finding that these criteria were met, see Scheib v. Williams-McWilliams Co., 628 F.2d 509, 512 (5th Cir.1980), we cannot uphold the jury verdict against Jones for constitutionally excessive use of force. In the first place, Hinojosa’s injury, which can only be characterized as temporary emotional distress, simply does not rise to a level that can be redressed for such a claim under section 1983. See Lynch, 810 F.2d at 1375-76; Gumz v. Morrissette, 772 F.2d 1395, 1400-02 (7th Cir. 1985), cert. denied, 475 U.S. 1123, 106 S.Ct. 1644, 90 L.Ed.2d 189 (1986); Mark v. Cald well, 754 F.2d at 1261. There is absolutely no evidence, and neither Hinojosa nor any of the police officers testified, that Hinojo-sa was struck, or even touched, during the incident. Hinojosa did not claim to have suffered even minor physical injuries or intrusion. He sought no medical attention. Hinojosa did say that having the gun pointed at him made him scared, and that the January 17, 1982, incident had made him unable to work for a few weeks. But, except as to the momentary fear he experienced while the gun was pointed at him, Hinojosa’s testimony reflected that his emotional distress (embarrassment and inability to concentrate on his work) was essentially due to having been subsequently arrested. Thus, even stretching the testimony as far as possible in a light most favorable to Hinojosa, the only harm occasioned by Jones’ pointing his gun was the understandable immediate emotional distress of Hinojosa at being the target of the gun point. Cf. Gumz, 772 F.2d at 1401. This Court does not here determine whether or not some type of physical injury will in every instance be necessary for section 1983 liability in a use of excessive force claim. See Gumz, 772 F.2d at 1401; cf. Black v. Stephens, 662 F.2d 181, 189 (3d Cir.1981). But, as the Seventh Circuit recently noted, “the ultimate question here is, after all, whether the use of force was so egregious as to be constitutionally excessive, and the presence of some physical injury is certainly relevant to that determination.” Gumz, 772 F.2d at 1401. See McFadden v. Lucas, 713 F.2d 143, 145-47 (5th Cir.1983) (“an intimidating show of force” by “twenty-two officers armed with sticks and threatening demeanor,” though arguably “excessive,” did not state a claim where no actual physical harm was inflicted). See also United States v. Bigham, 812 F.2d 943, 949 (5th Cir.1987) (severity of injury “tends to prove degree of force and the existence or absence of its justification”). Application of Shillingford’s second factor to the ‘circumstances of this case further buttresses our conclusion that there was no evidence to support a jury finding in favor of Hinojosa on this section 1983 claim. Our review of the record fails to reveal any evidence that Jones’ mere pointing of the gun was grossly disproportionate to the need for action under the circumstances. It is undisputed that a large number of the pool hall’s patrons remained in the vicinity and that Officer Delacerda was on the ground engaged in a physical altercation of some kind with Reyes, Sr. Hinojosa told Delacerda to stop hitting Reyes and made threats to the officers about getting “people from Dallas” down. It was late at night. One fight had already been broken up and two men had been arrested. Jones and the other officers were in uniform and on duty; they came to the pool hall in response to the night manager's call for help. Hinojosa was aware of all these facts. Even assuming, as Hinojosa claims, that he made no specific threat to Jones and Jones said nothing to him, we are unwilling to say that merely pointing the gun was grossly disproportionate to the need for action under these circumstances. Assault We also conclude that Hinojosa has failed to present any evidence that Jones committed an assault against him under Texas law. According to Texas law, “a person commits an assault if he intentionally or knowingly threatens another with imminent bodily injury.” Vietnamese Fishermen’s Ass’n v. Knights of the Ku Klux Klan, 518 F.Supp. 993 (S.D.Tex.1981) (citing Tex. Penal Code Ann. § 22.01). Of course, activity that would otherwise subject a person to liability in tort for assault does not constitute tortious conduct if the actor is “privileged” to engage in that conduct. See generally Restatement (Second) of Torts 10; W. Keeton, Prosser and Keeton on Torts 16 (5th ed. 1984). Unquestionably, under Texas law a police officer is authorized to carry a gun on his person at all times. Tex.Penal Code Ann. § 46.03 (Vernon Supp.1987). Although limited to “necessary” situations, a police officer is also privileged even to use actual force against a person in the performance of his duties as an officer. Id. §§ 9.21-9.22, 9.51-9.52. In addition, our research revealed nothing in Texas law that in any way circumscribes a police officer’s ability, in the course of duty, to make a conditional threat to use actual force if necessary by pointing a gun at someone. While we have found no Texas statute or decision that has distinguished between the use of force (e.g., firing a gun) and the display of force employed as a conditional threat to use actual force if necessary, we believe that an important distinction does exist between the two. See Jackson v. District of Columbia, 412 A.2d 948, 955-56 (D.C.Ct.App.1980) (drawing precisely this distinction in a damages action against a police officer for drawing and pointing his gun at the plaintiff). One reason we see for such a distinction is that it may actually have the effect of decreasing violence. By giving a police officer the ability to pull out and point a service revolver at someone without risking tort liability, he may be able to abort a potentially violent situation. Conversely, to subject such displays of force to second guessing by a jury may increase the likelihood that the officer will wait until the situation escalates further before drawing his gun, and thereby end up having to (or believing he has to) shoot to protect himself or others. Given our firm belief in the soundness of distinguishing between the use, or attempted use, of actual force and a display of force that only conditionally threatens actual force, we are unwilling to create Texas law that makes the latter an illegal assault when done by a police officer in the course of duty “on the line.” That is the situation here. It is undisputed that Jones pulled and pointed his revolver in the course of his official duties; he was in the process of arresting Reyes, Sr. when he pointed it at Hinojosa. Hindsight may afford a basis for concluding that there was no necessity to thus point the gun and that Jones acted unreasonably, and may have been braggadocious, in doing so. However, there is no evidence that Jones either intended or attempted to fire the weapon or to cause Hinojosa any physical injury, and the jury found that he did not intend to cause Hinojosa emotional distress. And, of course, Hinojosa suffered no physical injury or intrusion. Consequently, since the evidence, viewed as favorably as possible to Hinojosa, places Jones’ actions squarely in the category of an officer’s display, in the course of official duty, of force unaccompanied by use, or attempted use, of actual force, we conclude that the jury verdict against Jones for assault cannot stand. Conclusion Because we conclude that there was no evidence to support the jury verdict against Jones, either for use of excessive force under section 1983 or for assault under Texas law, we REVERSE the district court’s denial of Jones’ motion for new trial, and REMAND for a new trial on these two claims against Jones. REVERSED and REMANDED. .On cross-examination, Hinojosa (who was not called as a direct witness by his own counsel) gave the following testimony about his "injuries”: "Q. How did it bother you to be arrested on the night of June 17th, 1982? “A. Well, it did bother me, yes, sir. "Q. How did it bother you? "A. Well, it bother me that I haven't done nothing. "Q. Did it cause you to do anything different in your life? "A. Well, it bothers me because it’s just not the same thing. "Q. How did it bother you, what did you do, how did it change your life? “A. Well, it didn’t change my life, but it changed that I just want to know to do what is right. "Q. Did it cause you to lose any money? "A. Well, I guess that’s what you call it when you lose time. ”Q. What kind of time did you lose? “A. I couldn't operate my work. I’d get a wrench and I’d go to thinking about what happened and why did it happen. "A. I didn’t feel good if [my] family looked at, you know, what was thought I had done. "Q. Your family thought you did that? "A. No they didn’t thought, but you don’t feel the same.” . Upon his arrest, Hinojosa was initially charged with public intoxication, resisting arrest, and making terroristic threats. Apparently, all of the charges except resisting arrest were later dropped. On March 22, 1982, Hinojosa was tried before a jury and found not guilty of the charge of resisting arrest. . The district court further ruled as a matter of law that Hinojosa could not recover punitive damages against the City of Terrell. In the partial summary judgment motion, the defendants also asserted that the malicious prosecution claim should be dismissed because it was barred by the statute of limitations, that all of the state law claims had to be dismissed because Hinojo-sa failed to give the city written notice of these claims, as required by a city ordinance, and that Tex. [Tax] Code Ann. § 191.064(a) (Vernon 1981) foreclosed Hinojosa’s claim against the City for closing the pool hall. Despite Hinojo-sa’s failure to file any response to the defendants’ summary judgment motion, the district court denied these portions of the motion. . This claim was submitted to the jury even though it had previously been dismissed by the district court pursuant to the defendants' motion for partial summary judgment. . The jury also awarded SI,000 for interference with Hinojosa’s business, but the district court disallowed this item of damages apparently because the jury had found that officer Delacerda (the only officer inquired about in this connection) had not intentionally interfered with the business. . As Judge Brown has noted, technically our inquiry with respect to the motion for judgment notwithstanding the verdict is distinct from that regarding the new trial motion. Bunch v. Walter, 673 F.2d 127, 130-31 n. 4 (5th Cir.1982). Where, as here, however, the only issue raised in the new trial motion is sufficiency of the evidence to support the verdict and no motion for directed verdict was made, the two separate standards of review merge. Id. . The jury was instructed and this case was tried on the theory that the applicable standard of law in respect to the section 1983 excessive force claim is that enunciated in Shillingford. The arguments of both parties on appeal also assume that the Shillingford standard governs. We note that the Supreme Court recently stated a slightly different standard in analyzing a Fourth Amendment challenge to a state statute construed to authorize the employment of deadly force to effectuate an arrest. See Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985) (balance nature and quality of intrusion against the governmental interests to determine objective reasonableness or excessiveness of force used); see also Gumz v. Morrissette, 772 F.2d 1395, 1404-09 (7th Cir.1985) (Easterbrook, J., concurring), cert. denied, 475 U.S. 1123, 106 S.Ct. 1644, 90 L.Ed.2d 189 (1986). Unlike in the present case, however, in Gamer the alleged use of excessive force was clearly to effectuate the arrest of the plaintiff. While Hi-nojosa was arrested, there was no evidence that Jones’ pointing of his gun was done to effectuate Hinojosa's subsequent arrest. . See Hinojosa’s trial testimony, note 1, supra. The jury found that Hinojosa's arrest was lawful under both section 1983 and Texas tort law. Although the excessive force interrogatory asked if such force was used “against" Hinojosa “in the course of an arrest,” the words “an arrest" do not necessarily refer to Hinojosa’s arrest, but could refer to that of Reyes, Sr. In any event, there is no evidence that Jones' pointing of his gun was a part of Hinojosa’s actual arrest. Jones’ liability for use of excessive force in pointing the gun cannot be premised on any emotional distress (or other injury) suffered by Hinojosa as a result of his arrest, which occurred subsequently. . By not discussing whether the plaintiff had suffered any bodily injury, the Third Circuit in Black suggested that an unprovoked police officer who pointed his gun in the plaintiffs face and threatened to shoot could be liable under section 1983 for use of excessive force that caused only emotional distress to the plaintiff. Black differs somewhat from this case, however, because when the defendant police officer pointed the gun, he was in "plain clothes” and had not identified himself as a policeman. 662 F.2d at 185. In any event, we find the holding in Black unpersuasive. The court gave no reasoning for affirming the jury verdict imposing section 1983 liability, nor did it cite any authority for its implicit conclusion that a display of force by a policeman in the course of his duties (as opposed to the actual use of force) could constitute a constitutional violation actionable under section 1983. . We note that there is a distinction between the display of force, coupled with the conditional threat to actually use force if it becomes necessary, and the present use or attempted use of force. See Gumz, 772 F.2d at 1401. In drawing his revolver and pointing it at Hinojosa, Jones did only the former. The revolver’s safety was on and there is no evidence the weapon was cocked. Jones never did fire the revolver. There is no evidence that his not doing so resulted either from any external constraint or any change of mind on his part. We are unable to say that there is any evidence that Jones made an attempt, or anything more than a conditional threat, to use the weapon. . As Professor Keeton explains, "privilege” defeats tort liability because “it signifies that the defendant has acted to further an interest of such social importance that it is entitled to protection, even at the expense of damage to the plaintiff. The defendant is allowed freedom of action because his own interests, or those of the public, require it, and because social policy will best be served by permitting it.” Prosser and Keeton on Torts 16, at 109. . Judge Posner has recently advised that ‘‘[a] party who wants Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_circuit	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. Kenneth E. MAYO, Plaintiff, Appellee, v. SCHOONER CAPITAL CORP., et al., Defendants, Appellants. No. 86-2128. United States Court of Appeals, First Circuit. Heard May 4, 1987. Decided July 27, 1987. Robert M. Buchanan with whom Sullivan & Worcester, Boston, Mass., was on brief, for defendants, appellants. Henry F. Spaloss for plaintiff, appellee; Arthur O. Gormley, III and Gormley & Kaklamanos, P.C., Nashua, N.H., on brief. Before COFFIN, ALDRICH and SELYA, Circuit Judges. COFFIN, Circuit Judge. In this diversity case, defendants Schooner Capital Corporation (“Schooner”) and its president, Vincent Ryan (“Ryan”), appeal a jury verdict of $154,000 in favor of plaintiff-appellee Kenneth E. Mayo (“Mayo”) for breach of an oral employment contract. Schooner and Ryan contend that the court erred in denying their motion for judgment notwithstanding the verdict and their motion for a new trial. We find that none of their arguments has merit and therefore affirm the judgment of the district court. I. Factual Setting. The following facts were adduced at trial. Plaintiff Mayo is a mechanical engineer with considerable experience in the field of hydroelectric power. In January 1980, he met with defendant Ryan and his associate, A. Gail Staker, to discuss potential participation in the formation of a new corporation for the ownership and development of hydroelectric energy facilities and related activities. (App.187). Mayo testified that Ryan, through his venture capital company, Schooner, sought to fund a study of potential hydroelectric sites in which the new corporation, to be known as Continental Hydro Corporation (“Continental”), could acquire an interest. Mayo described that Ryan, for investment purposes, needed to get a “quick fix” on the largest possible number of hydroelectric sites that could be put into negotiation for acquisition. (App. 204). On January 24, 1980, according to Mayo, Ryan offered him a three month deal to serve as an engineering consultant at an annual rate of $30,000 plus expenses. (App.186). In addition, Mayo asserts that Ryan — on behalf of himself, Schooner, and Continental — offered him between ten and fifteen percent of the equity in Continental once it was formed. (App.188, 222). Mayo contends that Ryan’s offer included a promise to pay Mayo a commission of $20,-000 per megawatt of potential installed capacity of all hydroelectric sites identified by Mayo that were acquirable within three years and that these funds could later be applied to Mayo’s purchase of stock in Continental. (App.188). Mayo contends that he accepted this offer and performed the duties required of him by the contract. He explained that the $30,000 annual rate was the bare minimum he could accept for the three month start-up period and that, in essence, he was contributing “sweat equity” in the new venture for which he expected to be compensated at a much higher level in the future. (App.222). At trial, Mayo surrendered his claim to an equity share in Continental, allegedly due to the speculative nature of his damages in that regard, and instead pressed his “straightforward” claim for his commissions based on the potential capacity of the sites he identified for Schooner. (App.248). In his own words: “$20,000 a megawatt of installed capacity potential for acquirable sites; that’s the deal.” (App. at 299). Ryan characterized his dealings with Mayo in a very different manner. He claims to have orally offered Mayo either payments for three months at an annual rate of $30,000 plus expenses or a commission of $20,000 per megawatt of installed capacity for all sites actually brought on line. (App.262). Ryan testified that Mayo accepted the former offer and rejected the latter, preferring to be paid in salary rather than on a commission basis. (App.262). According to Ryan, therefore, he never entered an oral contract that included a promise to compensate Mayo with an equity share in the new corporation or a commission of $20,000 per megawatt of installed capacity at all acquirable sites. The parties agree that Mayo served as Ryan’s engineering consultant for a three month period and that Schooner compensated him at an annual rate of $30,000 plus expenses. During this period, Mayo estimated that he completed 50 to 75 or more site evaluations and composed detailed reports on those sites he deemed to be desirable for acquisition by Continental. (App. 208-09). The list of desirable hydroelectric sites, according to Mayo, contained 21 proposed acquisitions totalling 40.1 megawatts of potential installed capacity. (App. 211— 14). Mayo asserted that a diligent effort by Continental could have resulted in the acquisition of all of these sites within a three year period. (App.213). This list of “acquirable sites” forms the basis for Mayo’s claim of contract damages in the amount of $802,000 (40.1 megawatts 2a $20,000 per megawatt). Mayo testified, however, that as far as he knew, Continental and its affiliates actually acquired only three sites — Spaulding Fiber (2.4 megawatts), Greg Falls (2.5 megawatts), and the Suncook Project (2.8 megawatts) — totalling 7.7 megawatts of potential installed capacity within the three years following his study. (App.211, 301). The testimony regarding the sites actually acquired was undisputed and the jury apparently awarded Mayo damages at the rate of $20,000 per megawatt ($154,000) only for the three “actually acquired” sites. After serving three months as a consulting engineer, Mayo continued his association with Ryan and Staker even though he was no longer employed by Schooner or Continental. First, he attempted to negotiate a 25% equity position in Continental, but was unsuccessful in this regard. (App. 265). Eventually, Staker recommended making Mayo president of a company called Water Power Development Corporation (“Water Power”) that was one of Continental’s state affiliates. Pursuant to the deal that was struck, Mayo became president and his wife became a substantial shareholder in Water Power. (App.264). Mayo retained his position as president of Water Power until July 22, 1981, when, according to a court order, he was removed from office pursuant to a vote of the corporation’s stockholders. (App.440-41). The shareholders’ vote was apparently engineered by Ryan through the exercise of warrants that permitted Schooner to obtain a controlling interest in Water Power. (App.279). Water Power, which was one of the original defendants in this action, brought and won a counterclaim for misappropriation of funds in the amount of $18,-000 in the district court. This portion of the court’s judgment has not been appealed. Defendants offer three arguments aimed at overturning the jury’s verdict in favor of Mayo. First, they contend that Mayo failed to prove the existence of an oral contract. Second, they argue that the oral contract implicitly found by the jury is too vague and speculative to be enforceable. Third, they claim that the contract implicitly found by the jury is unenforceable due to the statute of frauds. We treat each of these contentions in turn. II. Does The Evidence Support The Existence Of A Contract? The jury found that Mayo was entitled to recover $154,000 for breach of his employment contract. Defendants, however, do not believe that the evidence introduced at trial is sufficient to justify such an award and contend that the district court should have granted their motion for judgment n.o.v. or, in the alternative, their motion for a new trial. Before considering these arguments, we briefly describe the standards of review to be employed in this case. As to the district court’s denial of plaintiff's motion for judgment notwithstanding the verdict, the standard of review is the same as for a denial of a motion for directed verdict: “we must examine the evidence in the light most favorable to the plaintiff and determine whether there are facts and inferences reasonably drawn from those facts which lead to but one conclusion — that there is a total failure of evidence to prove plaintiff’s case.” Fact Concerts, Inc. v. City of Newport, 626 F.2d 1060, 1064 (1st Cir.1980), vacated on other grounds, 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). With regard to the court’s denial of defendants’ new trial motion, we will reverse only if defendants can “show that the verdict was ‘so clearly against the weight of the evidence as to constitute a manifest miscarriage of justice.’ ” Jordan v. United States Lines, Inc., 738 F.2d 48, 49 (1st Cir.1984) (quoting Lakin v. Daniel Marr & Son Co., 732 F.2d 233, 237 (1st Cir.1984)). A. Motion for Judgment Notwithstanding the Verdict. Defendants begin by challenging the district court’s denial of their motion for judgment n.o.v. on the ground that the jury’s verdict was not supported by the evidence. They correctly note that the only evidence of the oral contract claimed by Mayo is his own trial testimony. Mayo offered no corroborating witnesses, nor did he introduce any documentary evidence in support of his claim. These facts alone, however, do not require the entry of judgment n.o.v. so long as Mayo's testimony and the inferences that can reasonably be drawn from it support the jury’s conclusion. To support their contention that the verdict is unsupported by the evidence, defendants cite glaring discrepancies between Mayo's redrafted complaint and his testimony at trial. Mayo’s complaint first alleges that he would be entitled to at least a ten percent equity share in Continental “as well as” a commission of $20,000 per megawatt capacity “on all dams he identified or analyzed which were subsequently acquired by the yet unnamed, unformed company or its assigns within a period of three (3) years.” Redrafted Complaint il 9 (emphasis supplied). The very next paragraph of the complaint states the terms of the contract differently, alleging that Mayo would receive a one-third ownership interest in the new corporation or, if he chose to terminate his relationship with the venture after the original three month period, a commission of “$20,000 per megawatt.” Redrafted Complaint 1110. His testimony at trial was different still from both versions of the contract described in his complaint. Mayo testified that he was entitled to a commission of $20,000 per megawatt of potential installed capacity of all sites he identified that could have been acquired in the exercise of reasonable diligence within three years. (App.299). Defendants contend that Mayo’s shifting description of the alleged oral contract renders his trial testimony totally unbelievable. They insist that it is completely “inconceivable that a financer [sic] for a power project would request a list of ‘the largest possible number’ of potential sites and agree to pay $20,000 per megawatt capacity related to those sites, completely regardless of whether those sites were ever acquired or attempted to be acquired.” Defendants’ Brief at 22. Defendants add, moreover, that Mayo did not terminate his relationship with the venture at the conclusion of his three month consulting contract. Instead, he stayed on, attempted without success to negotiate for a share of the equity in Continental, and eventually settled on the deal making him president, and his wife a major stockholder, in Water Power. Defendants contend that, under the version of the contract alleged in the Redrafted Complaint, Mayo’s decision to continue with the venture should have precluded his collection of the $20,000 per megawatt commission. They suggest that Mayo changed his story at trial and abandoned pursuit of an equity share in Continental because the corporation had ceased to enjoy financial success. We acknowledge the power of these arguments, but we believe they are addressed to the wrong audience. Although entirely appropriate in the context of a closing argument to the jury, these contentions do not affect our review of the jury’s verdict in plaintiff's favor. The variance between Mayo’s complaint and trial testimony may very well support the conclusion that his testimony was the product of a flight of fancy. But the jury is the ultimate finder of fact with regard to such issues of credibility and its determination must be respected. On a motion for judgment n.o.v., a court must view all the evidence in the light most favorable to the prevailing party and may not substitute its opinion of witnesses’ credibility for that of the jury. Fact Concerts, 626 F.2d at 1064. It is obvious, moreover, that the jury did not accept as true everything that Mayo said on the witness stand. In addition to finding against him on a counterclaim that is not before us on this appeal, the jury also rejected Mayo’s suggestion that he was owed a commission on several sites he had recommended to Ryan as desirable acquisitions, but which were not ultimately acquired. Instead, it apparently believed that Mayo was entitled to a commission of $20,000 per megawatt of potential installed capacity only for the three hydroelectric sites actually acquired by Continental or its affiliates. At bottom, this boils down to the jury determining that Mayo’s identification of 21 sites as “acquirable” within three years was overly optimistic in light of the other evidence in the case. We are persuaded that the jury acted properly in making this finding based on the available evidence and, hence, see no cause for overturning its verdict. B. Motion for New Trial. While Mayo’s credibility is completely irrelevant to the motion for judgment n.o.v., the district court could properly have considered this factor in ruling on the new trial motion advanced by defendants. Defendants asserted in their motion to the district court that a new trial was necessary because the jury’s verdict was inconsistent, against the weight of the evidence, and represented a miscarriage of justice. See Borras v. Sea-Land Service, Inc., 586 F.2d 881, 886 (1st Cir.1978). On appeal they focus solely on their claim that the verdict was against the clear weight of the evidence because “the proposition that such a contract ever existed between defendants and Mayo is completely unbelievable” and because “Mayo’s own testimony is not creditable, as shown by his shifting allegations concerning the alleged contract, as well as his cavalier misappropriation of corporate assets.” Defendants’ Brief at 24. Thus, credibility is at the very heart of their demand for a new trial. We recognize, as we have previously stated, the trial court’s “duty to set aside the verdict and grant a new trial if [it] is of the opinion that the verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will result in a clear miscarriage of justice.” Coffran v. Hitchcock Clinic, Inc., 683 F.2d 5, 6 (1st Cir.), cert. denied, 459 U.S. 1087, 103 S.Ct. 571, 74 L.Ed.2d 933 (1982). Here, however, the district court did not believe that the jury was so derelict in rendering its verdict as to require a new trial and denied defendants’ motion. Our review of this decision is necessarily circumscribed, first, by our appreciation of the district court’s superior ability to monitor the conduct of the trial and assess the credibility of witnesses, and second, by the jury’s constitutionally sanctioned role as finder of fact. Thus, absent a showing that the verdict was “so clearly against the weight of the evidence as to constitute a manifest miscarriage of justice,” we will refrain from substituting our view of the evidence for that shared by both the jury and the trial court. Jordan, 738 F.2d at 49 (quoting Lakin, 732 F.2d at 233). Given this deferential standard of review and the evidence as described above, we hold that the district court’s denial of the new trial motion does not amount to an abuse of discretion. Although the district court admitted that the evidence supporting plaintiff’s claim was “awful thin” (App. 255), we believe that it correctly denied defendants’ new trial motion because the verdict was not so improper as to constitute a miscarriage of justice and we refuse to overturn this considered judgment. III. Are The Terms Of The Contract Too Vague or Speculative? Defendants’ second argument assumes that the jury believed Mayo’s testimony and found that defendants were contractually obligated to pay Mayo $20,000 per megawatt of potential installed capacity for each recommended dam site that was acquirable within three years. Such a contract, argue defendants, would be too vague or speculative to warrant enforcement by a court of law. Defendants specifically complain that the alleged contract (1) does not sufficiently describe Mayo’s contractual obligations; (2) does not provide a definitive means by which to ascertain whether a given site was “acquirable;” and (3) does not specify who was to pay the $20,000 per megawatt commission to Mayo. We are unpersuaded that any of these alleged defects precludes enforcement of the oral contract described by Mayo. “While it is true that contracts, both oral and written, must be definite in order to be enforceable, the standard of definiteness is one of reasonable certainty and not ‘pristine preciseness.’ ” Sawin v. Carr, 114 N.H. 462, 465, 323 A.2d 924, 926 (1974). First, we believe there was ample evidence concerning Mayo’s performance obligations under the contract. Mayo testified that his job was to serve Ryan and Schooner as a consulting engineer for an initial period of three months and, within that period, he was to get a “quick fix” on “the largest possible number of sites that could be put into negotiation for acquisition.” (App.204). Time was of the essence because, as Mayo explained, the idea was to put numerous sites on line and generate income as quickly as possible (App.205), and his job was to provide Ryan, a venture capitalist, with valuable technical information that was essential to Ryan’s investment decisions. Defendants are correct that there was little testimony regarding negotiations or agreements between Ryan and Mayo regarding Mayo’s specific job duties. Ryan testified, however, that Mayo was to “analyze New England hydro sites for three months” (App.264) and the record is rich with description of the tasks Mayo performed, apparently with Ryan’s approval, in this regard. For instance, the record contains no less than twenty pages of testimony by Mayo setting forth the process he used to analyze and evaluate hydroelectric sites. (App.192-204). Mayo also testified that, pursuant to his contract with Ryan and Schooner, he carried out site evalúa-tions on numerous potential sites during his three month consultancy and prepared written reports for Ryan on approximately 20 desirable sites. (App.208-09). Taken in the light most favorable to plaintiff, we believe that this undisputed evidence, along with the inferences that can reasonably be drawn from it, sufficiently describe Mayo’s duties under the alleged oral contract. . Second, we find no merit in defendants’ contention that the term “acquirable” was too vaguely defined to permit enforcement of the bargain. Mayo specifically testified that the term referred to all hydroelectric sites which, “with a diligent effort[,j ... could have been acquired” by the newly formed corporation within three years. (App.213). We believe that, despite the term’s inherent imprecision, it is not so ambiguous as to fall afoul of the “reasonable certainty” standard and cause the contract itself to be unenforceable. True, there was a factual dispute at trial as to which hydroelectric sites identified by Mayo could have been acquired in the exercise of reasonable diligence, but this issue was properly left to the jury. The jury heard evidence regarding the methods of evaluating the capacity and value of hydroelectric sites, the various means of acquiring the rights to such sites, and the need to obtain regulatory approval before operating a site. Having reviewed this evidence, it rejected Mayo’s proposed list of 21 sites and found instead that the only “acquirable” sites were the three actually acquired by Continental and its affiliates during the three year period. The factual dispute, therefore, concerned only which sites satisfied the standard set by contractual term. Such a dispute does not render the oral contract unenforceable on vagueness grounds where, as here, the meaning of a term itself is “reasonably, certain.” Sawin, 114 N.H. at 465, 323 A.2d at 926. Finally, we are not persuaded by defendants’ assertion that the failure to specify precisely which party was to pay the commission renders the contract too vague or speculative to be enforced. Mayo first testified that Ryan, acting on behalf of Schooner, said, “what I'll do is I will pay you $20,000 a megawatt of ... the potential installed capacity of the sites.” (App. 188). Then, according to Mayo, Ryan went on to say that “Continental Hydro, the new company that is to be formed, will pay that $20,000 a megawatt.” (App.188). We admit that Mayo’s testimony leaves some confusion as to which party was actually supposed to pay the commission, but given the posture of this appeal we must view the evidence in the light most favorable to Mayo. Mayo did testify regarding his understanding that Ryan entered the contract on behalf of himself, Schooner, and the as yet unformed corporation (Continental) which Schooner sought to fund. (App. 222). It is also significant that, at the time the parties entered the oral contract, Continental existed only in the sense that Ryan hoped to form such a corporation in the future to exploit the opportunities identified by Mayo. We are of the opinion, therefore, that the jury could have reasonably believed that the contract called for Ryan and Schooner, not Continental, to be ultimately responsible for paying Mayo’s commission. Thus, we hold that the contract is not so vague in this regard as to be unenforceable against the two parties— Ryan and Schooner — who originally made the promise to Mayo. IV. Is The Contract Barred By The Statute Of Frauds? Defendants’ final challenge concerns the enforceability of the alleged oral contract in light of the statute of frauds. According to defendants' theory, the contract to which Mayo testified at trial — involving a commission on all identified hydroelectric sites, that could be acquired in the exercise of reasonable diligence within three years — violates that portion of the statute of frauds which requires a writing for agreements that cannot be completed within one year. See N.H.Rev.Stat.Ann. § 506:2; see also Mass.Gen.L. ch. 259, § 1. Defendants raised this defense for the first time in their motions for judgment n.o.v. and for a new trial. Mayo’s response is that defendants waived reliance on the statute of frauds because they neither pleaded it as an affirmative defense, nor cited it when moving for a directed verdict at the close of plaintiffs case and again at the close of all the evidence. We have held, pursuant to Federal Rule of Civil Procedure 50(b), that a party may not be awarded judgment no-thwithstanding the verdict on a ground that was not previously included in a motion for directed verdict at the close of all the evidence. Martinez Moll v. Levitt & Sons of Puerto Rico, Inc., 583 F.2d 565, 568 (1st Cir.1978). As we explained, the prudential rationale underlying Rule 50(b) is that both the opposing party and the court should be on notice of the movant’s legal claim prior to the case going to the jury. This ensures that the opposing party will be able to cure any deficiency in his case and permits the judge to rule on the legal sufficiency of the case “without impinging on the jury’s fact-finding province.” Id. at 569. Defendants seek to escape the operation of Rule 50(b) in this case by asserting that there was no previous occasion on which they could possibly have raised the statute of frauds defense. They attempt to support this contention by noting that Mayo, who had previously been pursuing an equity interest in Continental, changed his theory just prior to trial and sought instead the $20,000 per megawatt commission for all sites acquirable within three years. According to defendants, there was no waiver of the statute of frauds defense because they asserted it at the earliest possible opportunity after reviewing the plaintiff’s claims as stated at trial. We cannot accept this rationalization. Plaintiff’s pre-trial decision to change his theory of recovery may excuse defendants' failure to plead the statute of frauds defense in their answer, but it does not excuse defendants’ inaction after the plaintiff had completed his testimony regarding the alleged oral contract. If defendants truly believed that Mayo’s testimony was inconsistent with the allegations of his complaint, then they should have objected to the introduction of this evidence or moved to amend their answer in light of the new theory advanced by plaintiff. Nothing in the record indicates that defendants took such steps. Subsequent to plaintiff's trial testimony, moreover, defendants had two additional opportunities to raise the statute of frauds defense when moving for a directed verdict. Yet defendants, while fully cognizant of the contours of Mayo’s contract claim, failed to raise the defense both at the conclusion of the plaintiff’s case and at the conclusion of all the evidence. We therefore see no compelling reason to treat their failure to act as anything other than a waiver of the statute of frauds defense. For the reasons stated, the judgment of the district court is affirmed. . Rule 50(b) states: Whenever a motion for directed verdict made at the close of all the evidence is denied or for any reason not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.... [A] party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for directed verdict.... Fed.R.Civ.P. 50(b) (emphasis supplied). Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
sc_respondent	009	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them. Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. JOHNSON et al. v. FANKELL No. 96-292. Argued February 26, 1997 Decided June 9, 1997 Michael S. Gilmore, Deputy Attorney General of Idaho, argued the cause for petitioners. With him on the briefs were Alan G. Lance, Attorney General, David G. High, Chief Deputy Attorney General, and Margaret R. Hughes, Deputy Attorney General. W. B. Latta, Jr., argued the cause for respondent. With him on the brief was Eric Schnapper. A brief of amici curiae was filed for the Commonwealth of Kentucky et al. by A. B. Chandler III, Attorney General of Kentucky, Bill Pettus, Assistant Attorney General, Scott White, Assistant Deputy Attorney General, and Brent Irvin, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Bruce M. Botelho of Alaska, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A. Norton of Colorado, Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, Margery S. Bronster of Hawaii, James E. Ryan of Illinois, Tom Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Josef h Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Stie Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, Drew Edmondson of Oklahoma, Thomas W. Corbett, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, Mark Barnett of South Dakota, Dan Morales of Texas, Jeffrey L. Amestoy of Vermont, Julio A. Brady of the Virgin Islands, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin. Justice Stevens delivered the opinion of the Court. The question presented is whether defendants in an action brought under Rev. Stat. § 1979, 42 U. S. C. § 1983, in state court have a federal right to an interlocutory appeal from a denial of qualified immunity. We hold that they do not. I Petitioners are officials of the Idaho Liquor Dispensary. Respondent, a former liquor store clerk, brought this action for damages under §1983 in the District Court for the County of Bonner, Idaho. She alleged that petitioners deprived her of property without due process of law in violation of the Fourteenth Amendment to the Federal Constitution when they terminated her employment. Petitioners moved to dismiss the complaint on the ground that they were entitled to qualified immunity. They contended that, at the time of respondent’s dismissal, they reasonably believed that she was a probationary employee who had no property interest in her job. Accordingly, petitioners argued, her termination did not violate clearly established law. The trial court denied the motion, and petitioners filed a timely notice of appeal to the Supreme Court of the State of Idaho. The State Supreme Court entered an order dismissing the appeal. The court explained that an order denying a motion for summary judgment is not appealable under Idaho Appellate Rule 11(a)(1) “for the reason it is not from a final order or Judgment.” App. 67. It also rejected petitioners’ arguments that the order was appealable under 42 U. S. C. § 1983 and Behrens v. Pelletier, 516 U. S. 299 (1996). Petitioners sought rehearing, again arguing that the order was final within the meaning of the Idaho Appellate Rule, and, in the alternative, that they had a right to appeal as a matter of federal law. The court denied rehearing and dismissed the appeal. Petitioners then filed a petition in this Court seeking either a writ of certiorari or a writ of mandamus. They pointed out that some state courts, unlike the Idaho Supreme Court, allow interlocutory appeals of orders denying qualified immunity on the theory that such review is necessary to protect a substantial federal right, see McLin v. Trimble, 795 P. 2d 1035, 1037-1038 (Okla. 1990); Lakewood v. Brace, 919 P. 2d 231, 238-240 (Colo. 1996). We granted certiorari to resolve the conflict, 519 U. S. 947 (1996), and now affirm. II We have recognized a qualified immunity defense for both federal officials sued under the implied cause of action asserted in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), and state officials sued under 42 U. S. C. § 1983. In both situations, “officials performing discretionary function[s] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). This “qualified immunity” defense is valuable to officials asserting it for two reasons. First, if it is found applicable at any stage of the proceedings, it determines the outcome of the litigation by shielding the official from damages liability. Second, when the complaint fails to allege a violation of clearly established law or when discovery fails to uncover evidence sufficient to create a genuine issue whether the defendant committed such a violation, it provides the defendant with an immunity from the burdens of trial as well as a defense to liability. Indeed, one reason for adopting the objective test announced in Harlow was to “permit the resolution of many insubstantial claims on summary judgment.” Ibid. Consistent with that purpose, we held in Mitchell v. Forsyth, 472 U. S. 511, 524-530 (1985), that a Federal District Court order rejecting a qualified immunity defense on the ground that the defendant’s actions — if proved — would have violated clearly established law may be appealed immediately as a “final decision” within the meaning of the general federal appellate jurisdiction statute, 28 U. S. C. § 1291. If this action had been brought in a federal court, therefore, petitioners would have had a right to take an appeal from the trial court’s order denying their motion for summary judgment. Relying on the facts (a) that respondent has asserted a federal claim under a federal statute, and (b) that they are asserting a defense provided by federal law, petitioners submit that the Idaho courts must protect their right to avoid the burdens of trial by allowing the same interlocutory appeal that would be available in a federal court. They support this submission with two different arguments: First, that when the Idaho courts construe their own rules allowing appeals from final judgments, they must accept the federal definition of finality in cases brought under §1983; and second, that if those rules do not authorize the appeal, they are pre-empted by federal law. We find neither argument persuasive. III We can easily dispense with petitioners’ first contention that Idaho must follow the federal construction of a “final decision.” Even if the Idaho and federal statutes contained identical language — and they do not — the interpretation of the Idaho statute by the Idaho Supreme Court would be binding on federal courts. Neither this Court nor any other federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the State. See, e. g., New York v. Ferber, 458 U. S. 747, 767 (1982); Exxon Corp. v. Department of Revenue of Wis., 447 U. S. 207, 226, n. 9 (1980); Commissioner v. Estate of Bosch, 387 U. S. 456, 465 (1967). This proposition, fundamental to our system of federalism, is applicable to procedural as well as substantive rules. See Wardius v. Oregon, 412 U. S. 470, 477 (1973). The definition of the term “final decision” that we adopted in Mitchell was an application of the “collateral order” doctrine first recognized in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949). In that case, as in all of our cases following it, we were construing the federal statutory-language of 28 U. S. C. § 1291. While some States have adopted a similar “collateral order” exception when construing their jurisdictional statutes, we have never suggested that federal law compelled them to do so. Indeed, a number of States employ collateral order doctrines that reject the limitations this Court has placed on § 1291. Idaho could, of course, place the same construction on its Appellate Rule 11(a)(1) as we have placed on §1291. But that is clearly a choice for that court to make, not one that we have any authority to command. IV Petitioners also contend that, to the extent that Idaho Appellate Rule 11(a)(1) does not allow an interlocutory appeal, it is pre-empted by §1983. Relying heavily on Felder v. Casey, 487 U. S. 131 (1988), petitioners first assert that preemption is necessary to avoid “different outcomes in § 1983 litigation based solely on whether the claim is asserted in state or federal court,” id., at 138. Second, they argue that the state procedure “impermissibly burden[s]” the federal immunity from suit because it does not adequately protect their right to prevail on the immunity question in advance of trial. For two reasons, petitioners have a heavy burden of persuasion in making this argument. First, our normal presumption against pre-emption' is buttressed by the fact that the Idaho Supreme Court’s dismissal of the appeal rested squarely on a neutral state Rule regarding the administration of the state courts. As we explained in Howlett v. Rose, 496 U. S. 356, 372 (1990): “When a state court refuses jurisdiction because of a neutral state rule regarding the administration of the courts, we must act with utmost caution before deciding that it is obligated to entertain the claim. See Missouri ex rel. Southern R. Co. v. Mayfield, 340 U. S. 1 (1950); Georgia Rail Road & Banking Co. v. Musgrove, 335 U. S. 900 (1949) (per curiam); Herb v. Pitcairn, 324 U. S. 117 (1945); Douglas v. New York, N. H. & H. R. Co., 279 U. S. 377 (1929). The requirement that a state court of competent jurisdiction treat federal law as the law of the land does not necessarily include within it a requirement that the State create a court competent to hear the case in which the federal claim is presented. The general rule, 'bottomed deeply in belief in the importance of state control of state judicial procedure, is that federal law takes the state courts as it finds them.’ Hart, [The Relations Between State and Federal Law], 54 Colum. L. Rev. [489, 508 (1954)]; see also Southland Corp. v. Keating, 465 U. S. 1, 33 (1984) (O’Connor, J., dissenting); FERC v. Mississippi, 456 U. S. [742, 774 (1982)] (opinion of Powell, J.). The States thus have great latitude to establish the structure and jurisdiction of their own courts.” A second barrier to petitioners’ argument arises from the nature of the interest protected by the defense of qualified immunity. Petitioners’ argument for pre-emption is bottomed on their claims that the Idaho rules are interfering with their federal rights. While it is true that the defense has its source in a federal statute (§ 1983), the ultimate purpose of qualified immunity is to protect the State and its officials from overenforcement of federal rights. The Idaho Supreme Court’s application of the State’s procedural rules in this context is thus less an interference with federal interests than a judgment about how best to balance the competing state interests of limiting interlocutory appeals and providing state officials with immediate review of the merits of their defense. Petitioners’ arguments for pre-emption are not strong enough to overcome these considerable hurdles. Contrary to petitioners’ assertions, Idaho’s decision not to provide appellate review for the vast majority of interlocutory orders— including denials of qualified immunity in § 1983 cases — is not “outcome determinative” in the sense that we used that term when we held that Wisconsin’s notice-of-claim statute could not be applied to defeat a federal civil rights action brought in state courts under § 1983. Felder, 487 U. S., at 153. The failure to comply with the Wisconsin statute in Felder resulted in a judgment dismissing a complaint that would not have been dismissed — at least not without a judicial determination of the merits of the claim — if the case had been filed in a federal court. One of the primary grounds for our decision was that, because the notice-of-claim requirement would “frequently and predictably produce different outcomes” depending on whether § 1983 claims were brought in state or federal court, it was inconsistent with the federal interest in uniformity. Id., at 138. Petitioners’ reliance on Felder is misplaced because “outcome,” as we used the term there, referred to the ultimate disposition of the case. If petitioners’ claim to qualified immunity is meritorious, there is no suggestion that the application of the Idaho rules of procedure will produce a final result different from what a federal ruling would produce. Petitioners were able to argue their immunity from suit claim to the trial court, just as they would to a federal court. And the claim will be reviewable by the Idaho Supreme Court after the trial court enters a final judgment, thus providing petitioners with a further chance to urge their immunity. Consequently, the postponement of the appeal until after final judgment will not affect the ultimate outcome of the case. Petitioners’ second argument for pre-emption of the state procedural Rule is that the Rule does not adequately protect their right to prevail in advance of trial. In evaluating this contention, it is important to focus on the precise source and scope of the federal right at issue. The right to have the trial court rule on the merits of the qualified immunity defense presumably has its source in § 1983, but the right to immediate appellate review of that ruling in a federal case has its source in § 1291. The former right is fully protected by Idaho. The latter right, however, is a federal procedural right that simply does not apply in a nonfederal forum. The locus of the right to interlocutory appeal in §1291, rather than in § 1983 itself, is demonstrated by our holding in Johnson v. Jones, 515 U. S. 304 (1995). In that case, government officials asserting qualified immunity claimed entitlement to an interlocutory appeal of a District Court order denying their motion for summary judgment on the ground that the record showed a genuine issue of material fact whether the officials actually engaged in the conduct that constituted a clear violation of constitutional law. Id., at 307-308. We concluded that this circumstance was different from that presented in Mitchell, 472 U. S., at 528, in which the subject of the interlocutory appeal was whether a given set of facts showed a violation of clearly established law, and held that although § 1291 did allow an interlocutory appeal in the latter circumstance, such an appeal was not allowed in the former. In so holding, we acknowledged that “whether a district court’s denial of summary judgment amounts to (a) a determination about pre-existing ‘clearly established’ law, or (b) a determination about ‘genuine’ issues of fact for trial, it still forces public officials to trial.” 515 U. S., at 317. But we concluded that the strong “countervailing considerations” surrounding appropriate interpretation of § 1291 were of sufficient importance to outweigh the officials’ interest in avoiding the burdens of litigation. The “countervailing considerations” at issue here are even stronger than those presented in Johnson. When preemption of state law is at issue, we must respect the “principles [that] are fundamental to a system of federalism in which the state courts share responsibility for the application and enforcement of federal law.” Howlett, 496 U. S., at 372-373. This respect is at its apex when we confront a claim that federal law requires a State to undertake something as fundamental as restructuring the operation of its courts. We therefore cannot agree with petitioners that § 1983’s recognition of the defense of qualified immunity preempts a State’s consistent application of its neutral procedural rules, even when those rules deny an interlocutory appeal in this context. The judgment of the Supreme Court of the State of Idaho dismissing petitioners’ appeal is therefore affirmed. It is so ordered. Because affidavits had been filed in support of the motion, the court treated it as a motion for summary judgment. Of course, when a ease can be dismissed on the pleadings or in an early pretrial stage, qualified immunity also provides officials with the valuable protection from “the burdens of broad-reaching discovery,” Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). While Mitchell v. Forsyth, 472 U. S. 511 (1985), involved a Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), action against a federal official, we have also construed § 1291 to authorize similar appeals in actions brought against state officials under § 1983. See, e. g., Johnson v. Jones, 515 U. S. 304 (1995). “Final decision” is the operative term of § 1291, whereas “[j]udgments, orders and decrees which are final” is the language of Idaho Appellate Rule 11(a)(1). Thus, in Mitchell we explained: “In holding these and Similar issues of absolute immunity to be appealable under the collateral order doctrine, see Abney v. United States, [431 U. S. 651 (1977)]; Helstoski v. Meanor, 442 U. S. 500 (1979); Nixon v. Fitzgerald, 457 U. S. 731 (1982), the Court has recognized that a question of immunity is separate from the merits of the underlying action for purposes of the Cohen test even though a reviewing court must consider the plaintiff’s factual allegations in resolving the immunity issue. Accordingly, we hold that a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U. S. C. § 1291 notwithstanding the absence of a final judgment.” 472 U. S., at 528-530 (footnote omitted). See, e. g., Richardson v. Chevrefils, 131 N. H. 227, 231, 552 A. 2d 89, 92 (1988) (“Although all of the court’s rulings... would normally be treated as interlocutory,... [w]e have followed Mitchell in accepting the State defendants’ appeal from the order denying their motion for summary judgment”); Murray v. White, 155 Vt. 621, 626, 587 A. 2d 975, 977-978 (1991) (“In [Mitchell], the Supreme Court held that a trial court’s denial of a claim of qualified immunity met these [collateral order] requirements, and we agree with this determination”); Park County v. Cooney, 845 P. 2d 346, 349 (Wyo. 1992) (“We believe the state decisions which allow appeal, for the reasons detailed in Mitchell..., are better reasoned; and -we therefore hold that an order denying dismissal of a claim based on qualified immunity is an order appealable to this court”). See, e. g., Goldston v. American Motors Corp., 326 N. C. 723, 727, 392 S. E. 2d 735, 737 (1990) (disqualification of counsel is appealable under state collateral order doctrine notwithstanding Richardson-Merrell Inc. v. Koller, 472 U. S. 424 (1985)); Hanson v. Federal Signal Corp., 451 Pa. Super. 260, 264-265, 679 A. 2d 785, 787-788 (1996) (same for class certification denial notwithstanding Coopers & Lybrand v. Livesay, 437 U. S. 463 (1978)). See Brief for Petitioners 22. Unlike the notiee-of-elaim rule at issue in Felder v. Casey, 487 U. S., at 140-145, Idaho Appellate Rule 11(a)(1) does not target civil rights claims against the State. See also Howlett v. Rose, 496 U. S. 356, 380-381 (1990). Instead, it generally permits appeals only of “[jludgments, orders and decrees which are final,” without regard to the identity of the party seeking the appeal or the subject matter of the suit. Petitioners claim that the rule is not neutral because it permits interlocutory appeals in certain limited circumstances but denies an appeal here. But we have never held that a rule must be monolithic to be neutral. Absent evidence that Appellate Rule 11(a)(1) discriminates against interlocutory appeals of §1983 qualified immunity determinations by defendants — as compared with other types of appeals — we must deem the state procedure neutral. It does warrant observation that Rule 12(a) of the Idaho Appellate Rules provides that the State Supreme Court may grant permission “to appeal from an interlocutory order or decree... which is not otherwise appealable under these rules, but which involves a controlling question of law as to which there is substantial grounds for difference of opinion and in which an immediate appeal... may materially advance the orderly resolution of the litigation.” Presumably, petitioners could have sought review under this permissive provision, and the Idaho Supreme Court might have granted review if, in the view of that court, the officials’ claim to immunity was so substantial that the suit should not proceed. See also Brown v. Western R. Co. of Ala., 338 U. S. 294, 296-299 (1949) (Federal Employers’ Liability Act (FELA) pre-empted different state pleading requirements when effect was to defeat plaintiff’s cause of action); Garrett v. Moore-McCormack Co., 317 U. S. 239, 243-244 (1942) (federal Jones Act pre-empted different state burden of proof regarding releases when effect was to defeat plaintiff’s cause of action). Petitioners’ reliance on Dice v. Akron, C. & Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_genresp1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. GRACIE v. UNITED STATES. (Circuit Court of Appeals, First Circuit. November 5, 1926.) No. 2044. 1. Intoxicating liquors <§=>247 — Discovery of mash by prohibition agent, entering yard and peering through aperture in wall of building not residence, violated no constitutional rights of occupant. That prohibition agent in obtaining evidence for affidavit for search warrant went on defendant’s premises and looked through window, after detecting odor of mash, helé not violation of defendant’s constitutional rights. 2. Intoxicating liquors <§=>236(19). Evidence held to sustain conviction for unlawful possession of property for manufacture of intoxicating liquors for use in violating National Prohibition Act, tit. 2 (Comp. St. § 10138% et seq.), and for unlawful manufacture thereof. 3. Searches and seizures <§=>3. Commissioner must exercise own judgment as to whether facts in affidavit constitute probable cause for search warrant, and determination is conclusive, unless judgment is arbitrarily exercised. 4. Criminal law <§=>984. Count alleging unlawful possession of property for manufacture of intoxicating liquor is separate offense from count alleging manufacture, authorizing judgment on each. 5. Criminal law <§=>30. When evidence is sufficient to sustain conviction for possession of property for manufacture, there is no merger of count charging that offense with count charging manufacture. In Error to the District Court of the United States for the District of Rhode Island; Arthur L. Brown, Judge. George Gracie was convicted of unlawful possession of property for manufacture of intoxicating liquor, and of unlawful manufacture thereof, and he brings error. Affirmed. Daniel T. Hagan, of Providence, R. I. (John J. Rosenfeld and Charles A. Kieman, both of Providence, R. L, on the brief), for plaintiff in error. Joseph E. Fitzpatrick, Asst. U. S. Atty., of Providence, R. I. (John S. Murdock, U. S. Atty., of Providence, R. I., on the brief), for the United States. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. JOHNSON, Circuit Judge. Upon a criminal information by the United States attorney for the district of Rhode Island, the plaintiff in error, hereinafter called the defendant, was convicted, under the first count, of unlawful possession of property designed for the manufacture of intoxicating liquors intended for use in violating title 2 of the National Prohibition Act (Comp. St. § 10138% et seq.), under a second count, of the unlawful manufacture of intoxicating liquors, and, under a third count, of the unlawful possession of intoxicating liquors. He was sentenced by the court to pay a fine of $100 under the first count, and to a term of imprisonment of three months under the second count. The court ruled that the third-count of the information was merged in count 2, and an order of nolle prosequi was entered as to the third count. The following facts are disclosed by the record: James J. Walsh, a federal prohibition agent, testified that on the 16th day of February, 1926, he made a personal visit to the premises occupied by the defendant in the city of Cranston, in the state of Rhode Island, because he had been in the vicinity of these premises on several occasions, and had detected the odor of mash while in the neighborhood; that he was not positive where the odor was coming from, and in order to ascertain he went upon the premises of defendant, through an open gate, and passed from the gate a distance of about 150 feet to a building occupied by the defendant; that he peeked through the windows of this building; that, by putting his face to a crack in the door, he detected the odor of mash, and saw a vat in the building steaming and two or three barrels of empty beer bottles outside the building, and that he heard a noise in the building like that made by a bottle capping machine; that he thereupon applied for a search warrant to search the building, which was issued upon an affidavit filed by him stating the above facts, and upon this warrant 18% full barrels of beer, 3 half barrels, and property designed for use in the manufacture of intoxicating liquor were seized. At the time of the seizure the defendant told the prohibition agent that he was experimenting in the manufacture of beer and admitted that he was the occupant of the premises. At the conclusion of the government’s testimony a niotion was made for a directed verdict by the defendant, on the ground that the search and seizure were unlawful, and there was no evidence before the court upon which the defendant could be found guilty. This motion was renewed by him at the conclusion of all the evidence, and he asked that the search warrant be quashed, and all the evidence procured by the seizure under it ruled out. These motions were overruled, and the defendant excepted. It was not contended that the search or seizure was made in an unlawful manner, but that the affidavit upon which the search warrant was based was obtained by an unlawful entry upon the premises of the defendant. The affidavit is as follows: “I, James J. Walsh, federal prohibition agent, and the above-named complainant, on oath depose and say that on the 16th day of February, 1926, I made a personal visit to the above described premises in the city of Cranston, R. I., mentioned in the foregoing application for search warrant, when I saw shades down on all windows in said one-story building, saw steam coming out of chimney of building, detected the odor of mash coming through the crack of the door, saw a vat in the building steaming, saw two or three barrels of empty beer bottles outside the building, and heard a noise in the building like the noise of the operation of a bottle capping machine.” The commissioner before whom the affidavit was made found probable eause for the issue of a search warrant. Before trial the defendant filed a motion to quash the search warrant on the ground that the facts set forth in the affidavit were unlawfully obtained. This motion was called for hearing on the next day after it was filed, and, no person answering for the moving party, the case was called for trial before a jury. It would appear from the record, therefore, that the defendant did not press his motion before the court until the trial, and, as the assumption is that the court proceeded regularly, that opportunity and notice were given to the defendant to be heard. The contention that the evidence upon which the officer’s affidavit was based was unlawfully obtained, because in violation of the defendant’s constitutional rights, has no merit. All that the prohibition agent did was to pass through an open gate into the yard about a building from which he thought he detected, by his sense of smell, the odor of fermenting mash. He did not attempt to enter the building, but, as the shades to the windows were drawn, he looked through a crack in the door and saw what was going on within. He had reasonable grounds to believe that there was violation of law in the building, and his entry through the gate and upon the premises of the defendant, without a. warrant for the purpose of ascertaining whether the odor which he had detected came from this building or not, was justified. He made no attempt to enter the building, although, as it was not a private dwelling, he might have done so, and arrested the defendant for the commission of a crime in his presence; but he procured a search warrant authorizing him to do so. It was the duty of the commissioner to consider the affidavit of the officer and determine whether, in his opinion, probable cause existed for issuing a search warrant. This he did, and the seizure was made under it. The warrant is not attacked for insufficiency in any respect, nor is it alleged that in its service any unlawful acts were committed. The evidence secured was ample to justify the conviction of the defendant. Upon no tenable theory should he be allowed to escape the consequences of his guilt as a compensation for an alleged technical trespass committed by the applicant for the warrant in obtaining the information upon which his affidavit to procure it was based. Upon the determination by the commissioner of whether probable cause existed for the issuance of a warrant, he is to exercise his own judgment whether the facts alleged in the affidavit constitute probable cause, and, unless this judgment is arbitrarily exercised, his determination that probable cause exists is conclusive. Ex parte Burford, 3 Cranch, 453, 2 L. Ed. 495. We think the evidence secured by the search and seizure under the warrant was competent. While the jury returned a verdict of guilty under the count alleging unlawful possession of intoxicating liquor, as well as under the count alleging unlawful manuf acture, a nolle prosequi was entered as to the former and judgment was entered only upon the count alleging unlawful possession of property designed for the manufacture of intoxicating liquor and that alleging its manufacture. These are .separate offenses, and a judgment of guilty'was properly entered under each count and a penalty imposed. The property seized consisted in part of bales of hops, barrels of malt, coloring matter, and other material, which, found in connection with the apparatus seized, was sufficient evidence upon which to sustain the verdict of the jury that they were designed for the manufacture of intoxicating liquor, which would constitute no part of that for the manufacture of which there was a verdict of guilty under the second count. There was therefore no merger of the count charging unlawful possession of property designed for the manufacture with that charging manufacture, and the request to so rule was properly refused. The judgment of the District Court is affirmed. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_treat	C	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. COLGATE-PALMOLIVE-PEET CO. et al. v. LEVER BROS. CO. No. 5774. Circuit Court of Appeals, Seventh Circuit, April 8, 1937. Rehearing Denied June 21, 1937. •Marston Allen, Erastus S. Allen, and Frank F. Dinsmore, all of Cincinnati, Ohio, Louis Quarles, of Milwaukee, Wis., Mason Trowbridge, of Jersey City, N. J., and Arthur C. Denison and Newton D. Baker, both of Cleveland, Ohio, for. appellants. C. B. Tinkham, of Hammond, Ind., Leroy C. Shonts, John B. Macauley, and Frank Parker Davis, all of Chicago, 111., Ramsay Hoguet, of New York City, Floyd S. Davis, of Cambridge, Mass., and Geo. I. Haight, of Chicago, 111., for appellee. Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge. EVANS, Circuit Judge. Appellants and appellee are competitors engaged in making and selling soap. Their activities cover the entire industry. The competition and the competitive methods which led to this litigation concern themselves with laundry soap. The size of this branch of the industry as conducted by the three parties to the litigation is tremendous. Appellants assert that they jointly own the patent covering the product of the inventive mind which produced a better and more acceptable soap than was ever before offered to the housewife or the laundryman. They ask the court for the protection which this discovery deserves. Appellee denies all such claims of merit and distinction, disputes all its adversaries’ asserted right to patent protection, and denies infringement ; hence, this controversy. The patent granted to Dallas R. Lamout (and assigned to appellants) to reward one who made an original and unusually valuable contribution to the science of soap making, is asserted and assailed. The validity of the patent is denied; its infringement is disputed. Many hundreds of thousand words have been spoken by witnesses who proclaimed their belief in the merit of Lamont’s discovery. An equal number of witnesses assert that it would be a travesty on justice to honor Lamont with the name of inventor or to characterize what his coworker did, as invention. The District Court held the patent was not infringed. On the issue of validity, he found not squarely, but invoked disputes over inferences when he used the following language: “Lamont patent is invalid unless limited to a process of controlled steam inflation and the product thereof and as so limited is not infringed.” Validity and infringement of patent No. 1,652,900, issued December 13, 1927, to Dallas R. Lamont, are the subjects of our inquiry. The patent consisting of eleven claims covers both soap products and processes of manufacturing soap. The product is almost exclusively used for laundry purposes. Lamont was an employee of the Industrial Spray Drying Company, which was entitled to his discoveries and inventions and to whom he duly assigned his patent. Through appropriate steps, the title and right to use the patent were transferred to appellants. Colgate-PalmolivePeet Company, formerly Colgate & Company, obtained an exclusive license and started production in 1927 of a soap, called Super Suds. The appellant, Procter & Gamble, soon came out with a product known as Selox. The latter company was sued for infringement, and it purchased a half interest in the patent. In 1929, appellee, a pioneer and always a very large manufacturer of soap for laundry purposes, brought out a laundry soap. It obtained patents which covered both the product and the process for making this soap. The extent and rapidity with which this so-called new laundry soap business grew is shown by the fact that in 1930, three years after the appearance of Super Suds, the public had used 500,000,000 cartons of the combined products of the parties. It may be fairly and conservatively said, speaking generally and not technically, that the soaps made by the parties to this litigation, for laundry purposes, are much alike. Admittedly they today dominate the field of granular washing soap. Appellee called its laundry soap Rinso long before 1927. It never changed its name. Appellants assert that while the. name remained the same, the product, and the process by which the soap was made, changed after appellants brought out their soap made in accordance with Lamont’s patent teachings. Colgate first called its soap made under the Lamont patent, Super Suds. It later brought out Palmolive Beads. Procter & Gamble has given its laundry soap different names: Selox, Chipso, Chipso Granules, Oxydol, and Ivory Snow. ' The application for Lamont’s patent was made May 25, 1927, and it issued December 13, 1927. The specifications are extremely long and somewhat involved. There are eleven claims of which eight are contested. The first five are product claims. Three process claims, 7, 8, and 9, are also in issue. In the margin appear claim 2, a product claim, and claims 7 and 8, two process claims. These claims are presented as typical. Appellee emphasizes claim 1, a product claim, and it is also reproduced in the margin. A brief statement of the history and the art of soap making, as well as a statement of what Lamont did, follows: Commercial soap is ordinarily made by boiling soda lye and fats and oils in a kettle. When salt water is added to the mass, the kettle contents separate into layers of which the top one forms the basis for the ordinary soap of commerce. This material at kettle temperature is a molten mass and its composition is surprisingly constant at 70 per cent solids combined with 30 per cent water. At the temperature at which this soap is finished, i. e., between 170° and 212° F¡, the soap is a heavy moltei? mass and will flow in the mass, although it is not a liquid and is not free-flowing. In this condition the soap is called kettle soap, or more technically, neat soap. This condition is spoken of as the “neat soap” phase. When neat soap is cooled to a temperature of 150° F. or below, it changes and becomes what is known as solid soap. Also if moisture is driven out of soap when in the neat soap phase, the transformation point from the neat phase to the solid phase takes place at higher and higher temperatures. Appellants claim Lamont taught the art to spray this nonliquid material when in the neat phase, and during its transformation into the solid phase, to cause the soap substance itself to divide into particles which may be described as puffed or inflated. If solid soap containing the percentage of water of neat soap is heated to a point above 150° F. (depending somewhat upon the particular fats used), the material is transformed into its neat soap or kettle soap phase, but once this phase has been reached, further rise in temperature can be continued without reducing the viscosity of the soap although in some instances its stringiness can be reduced at the higher temperatures. This quality of soap constitutes a sharp distinction between it and other kinds of heat fusible material, which as heat is increased become more fluid. Appellants assert that the usual practice in spray processing of other materials required them to be first brought to a condition which formed fine round drops when sprayed which is impossible with neat soap. Neat soap is not film forming and will not break up into true drops when sprayed. It merely breaks into fragments. Another phase in which soap can and does exist, is the “nigre” or soap solution phase. This phase, as in the instance of the neat phase, has a definite water content, and cannot exist with less than about 70 per cent of water. At a temperature around 170° F. and above, it is a true free-flowing thin liquid. When at lower temperature, about 150° F., and below, nigre does not change into solid soap but instead congeals into a wet-gelatinous, elastic-like material. The nigre phase of soap is one in which the material can readily be sprayed, but when it is sprayed and dried by driving out moisture, it does not puff. Intermediate between neat soap and nigre in respect of moisture content, is a substance known as “middle soap.” Where water is present in soap in an amount less than about 70 per cent, and greater than about 30 per cent, middle soap exists. At kettle temperature it is a thick viscous gum, and further heating does not change its consistency. At no temperature can it be pumped or sprayed, and it can be stirred only with great difficulty. Below about 150° F. it congeals into an opaque, rubbery mass. The existence of this middle soap phase is important in the present case because attempts to bring neat soap into a condition for spraying by thinning it with water are all hut impossible. Soap solution can practicably only be made by dissolving small pieces of solid soap in a large amount of water, i. e., by adding soap to water and not water to soap. Thus soap is a substance which has to be made into a thin solution to bring it to readily sprayable condition, but this cannot ordinarily be done by the addition of water to neat soap. Of the three phases of soap, neat soap, middle soap and nigre, the only one which is film forming and which will form round drops upon being sprayed is nigre. The drop or rounded form is a valuable property in any spray process product and Lamont, although he sprayed neat soap and hence did not form round drops in * his spray, yet by reason of his later puffing treatment converted the material into gen-'erally rounded particles,. and moreover into particles of substantial size. Soap also is heat sensitive and will burn at temperatures in the neighborhood of 385° F. When sodium silicate is added or mixed in kettle soap, in a crutcher, as is ordinarily done, the neat or kettle soap remains in the “neat” condition although the water content may go as high as 40 per cent without reaching the middle soap phase. If the mix is treated with water there is a production of “middle soap” in the same manner as when water is added to kettle soap. There is no distinction therefore between kettle or “neat soap” in the pure state and with an appropriate amount of silicate of soda added. Both have the same phase characteristics. The spray processing, with which the present patent is concerned in its process aspects, can be divided into two general classes in the prior art, spray cooling (where the sprayed particle becomes' solid during its passage from the spray to the point of collection due to drop in temperature) and spray drying (in which moisture or other solvent is driven off from the sprayed particles leaving them at the final temperature of collection in a solid state for this reason). Neat soap is a substance which recommends itself to spray cooling, because it changes to solid phase at a relatively high temperature. Only one commercial attempt to spray cool neat soap appears of record, and the substance was not particularly desirable because it was in large, jagged fragments, without puffing. Such a substance is not free flowing as it would be if in rounded particles. Such a product is not soluble in the manner of a puffed soap particle. Neat soap when much of the moisture has been driven off burns quite readily. Substances which had formerly been spray dried at high temperatures showed a tendency to glaze. Neat soap particles with a glaze upon them would resist ready solubility. Lamont found that neat soap would puff at high temperatures and not glaze. A common practice in spray drying was to preconcentrate the material, such as milk, before spraying for purposes of economy. Neat soap could not be preconcentrated. Nigre soap cannot be preconcentrated because it will turn into middle soap, which cannot be pumped nor sprayed. ■ As a result of the peculiarities of neat soap, soap makers changed its nature by the addition of harsh chemicals prior to spraying. They added soda ash to the product. The result of adding soda ash in sufficient quantities to neat soap is that it becomes in the hot state a composition of particles of matter floating in a liquid, a condition known as a “slurry.” Slurries can be thinned by water, or if too thin, can be thickened by boiling. Hence spraying of soap-soda ash compositions did not present any conditioning problem preparatory to spraying. A soap-soda ash composition solidifies quickly because the soda ash takes up water rapidly. Hence it is adapted to spray cooling. No heated drying air is required, and the final product will contain the same moisture content as the original slurry, in the usual practice. Such a product is known on the market as washing powder, or by a term “soap powder.” In the instant case it is necessary to distinguish between soap powder and powdered soap, the latter being the terms applied to soap when it is ground up from the solid state. Soap powder or washing powder is a harsh, chemical detergent. Its action is drastic. It acts chemically in attacking dirt, whereas soap acts through suds, and tends to emulsify the dirt. It was soap powder which constituted the commercial laundry soap product, which had been made and sold in large quantities by soap makers. Attempts had been made in the art to spray dry soap, in contradistinction to spray cooling, although this was only experimental. The workers invariably reduced the neat soap to a nigre or soap solution before spraying, and what they made was a very fine powdery and dusty product, of glassy thin-walled particles. This product lumped and balled when stirred into warm water. There had been flaked soap on the market, this being the most widely used form of soap dispensed in packages. There had been powdered soaps on the market, and granular soaps in coarser form, these being solid soap reduced by mechanical grinding. The powdered soaps are dusty and lump and ball badly in warm water. The granular (larger sized chunks) do not possess any puffed quality, and naturally are not rounded in form and are slow to dissolve. Neat soap, the soap phase with which Lamont dealt, is a material which appellants describe as sui generis. It cannot be water thinned, or heat plasticized beyond a certain point. It cannot be sprayed to form true drops. The substance can be spray cooled, but not to form a satisfactory product. The commercial package soaps prior to Lamont had been flaked soap, powdered soap, and granulated soap, all of these beiug made from soap which was first brought to solid form and then granulated. The spray processed soap product which had been commercialized prior to Lamont, was not unadulterated soap, but was a soap-soda ash composition called soap powder or washing powder. Lamont’s Product. It may be fairly said that the Lamont patent deals with finely divided soap products, the material used being soap as distinguished from soap powder or washing soap in which soda ash predominates. Lamont uses molten soap taken from ordinary kettle soap. He claims his soap is more quickly and completely soluble than soap flakes, less fragile, so less likely to break up in the package. His product is distinguishable from granular or shredded soaps or soap powder in that it is less dusty and more soluble. For his product it is claimed that it is more uniform, flows more freely from carton, and does not lump when spread over water. The novel characteristics of his soap are set forth by counsel as follows: “(a) rounded particle shape, not geometric spheres, but characteristically near spherical, potato shaped and reasonably smooth rounded formation * * * as distinguished from fragmentary, sharp cornered or shredded conformation; (b) particle size readily perceptible to the unaided eye, giving in the mass the appearance of independent balls with interstices visible between them.” Qualities (a) and (b) taken together give the product a free-flowing, non-caking, non-lumping, and dust free characteristic which are desirable and novel. There is evidence to support these claims so stoutly asserted by appellants. His process claims call for a structure with a tower. The soap is sprayed, etc., and the product passes out of the bottom. It is not contended that the apparatus is novel, but patentable novelty is asserted for the process by which the soap is treated. We herewith set forth, greatly abbreviated, the substance of the inventor’s own statement as it appears in the specifications. We have however eliminated, because of its great length, his description of the various steps in his process, including temperature statements. “The * * * invention relates to the production of a soap product in reasonably fine state of division, * * * having certain useful novel physical properties and with a process of obtaining and controlling these physical properties in the product. The invention contemplates * * a. * * * soap as ordinarily produced by * * * commercial manufacture * * * which product * * * is * * * distinguished from so-called soap powders or washing powders which contain a predominating proportion of soda ash or similar ingredient. * * * The * * * invention is based on the discovery that a new product * * * can be produced * * * from molten soap of the usual composition and heavy flowing but not particularly viscid consistency ordinarily obtained in the manufacture of soap which is essentially different from products heretofore produced directly from such molten soap. “Soap flakes, chips and the like, are not quickly and completely soluble in water of temperature convenient for washing. When the usual soap flakes are poured into water and stirred * * * they may be seen for some time * * * partly undissolved, and if not stirred until completely dissolved some part * * * collects at the bottom of the dish. * * * Undissolved soap frequently sticks to garments being washed and appears as a spot on the laundered article. Also, in washing machines, a considerable amount of the soap usually passes the washing machine undissolved. The most quickly * * * and most nearly * * * soluble soap flakes are those which are the thinnest, and * * * (such) are quite frail and * * * break up during manufacture, shipment and use so that a considerable amount of dust forms. * * * Soaps in finely divided condition, granulated soaps, shredded soaps, soap powders, and the like are usually dusty and cause discomfort to the user. Such soaps tend to lump in water and remain partly undissolved. * * * (They) * * * cannot be poured * * * out of the package with * * * exactness as to amount. They frequently cake * * * in the carton and to be shaken out at all, require the removal of a substantial piece of the carton. The product of the present invention is uniform in particle size and is quickly and completely soluble; it is free-flowing and does not lump or cake in the carton or in water, and it is not dusty, * * * (which) qualities * * * give it a usefulness not heretofore obtained. * * * A description and definition of the product in terms of these qualities * * * (and) structural and * * * physical properties * * * which give it such qualities, and a * * * definition of the process by which such product is obtained constitute the- subject matter of this.application.' “The drawings * * * illustrate certain of the novel physical properties of the product and show an apparatus in which the process of the present invention can be successfully conducted. * * * “The process of the present invention involves a spray treatment and drying of * * * soap material under certain particular controlled process conditions. * * * The apparatus consists basically of the principal drying or treating chamber 1. The molten soap is delivered into the tower 1 in the form of a spray by means of nozzles 2 locáted at appropriate intervals about the periphery of the upper end of the tower 1, as shown. The soap is delivered to the nozzles 2 through the soap line 3 which communicates with the soap mixing tanks or crutchers 4. The soap is withdrawn from the crutcher 4 by means of a suitable pump 5 and is forced through the heater 6 into line 3 and from thence to nozzles 2. The pump 5 maintains the soap in line 3 and at the nozzles 2 at a pressure appropriate for properly spraying the soap,.as it issues from the nozzles, into uniform and reasonably finely divided condition. The heater 6 is preferably provided with a thermostatic control device 7 which controls admission of heating steam to the heater and thus "regulates the temperature of the soap discharged from the heater to a substantially constant proper value. The line 3 beyond the heater 6 is steam jacketed, and the steam supplied to the line is regulated by an automatic pressure controlling device 8 which functions to maintain the steam at a pressure which is equivalent to the condensation pressure for steam at a temperature equal to that of the soap as it leaves the heater 6. With this arrangement the temperature of the soap leaving the heater remains the same until the soap is delivered into the tower 1 through the nozzles 2, and a uniform temperature of the soap at all of the nozzles 2 is assured. “The heated drying or treating gas is supplied to the tower 1 through duct 9 * * * which enters the top of the tower as shown. Inside of the tower under the discharge end of the duct 9 is located a distributor 10 designed to distribute th’e incoming gas uniformly across the section of the tower and to restrict whirling and eddying of the gas as it enters the tower. The distributor 10 is positioned above the soap nozzles 2 so that at the time the gas comes into contact with the soap particles issuing from the nozzles it is distributed reasonably uniformly across the tower and is proceeding downwardly through the tower in an orderly manner of flow without substantial whirling or eddying. Thus, the particles of the sprayed liquid soap are carried downwardly in orderly positively controlled flow through the tower by the drying gas. The drying gas comes into contact with all of the sprayed particles of soap at substantially the same temperature, and all of the particles are positively propelled through the tower so that every particle is subj ected to a similar treatment by the drying gas for a substantially similar length of time. As here shown, the heated treating gas supplied to the tower 1 through duct 9 consists of products of combustion from the oil burning furnace 11 diluted and reduced to the proper temperature by air admitted to the system through the damper controlled opening 18. Further dampers 19 and 20 are provided for facilitating operation and permitting ready regulation and control of air volumes and air temperatures. The * * * contents of the tower are continuously discharged through the * * * opening * * * at the bottom of the tower. * * * “The individual component rounded particles of the present product are ordinarily hollow unitary bodies. Each particle is a dei ached unit consisting of a shell or wall of the dry soap material solidified into the characteristic rounded particle shape and enclosing within it a single void or hollow space. The unitary hollow particle structure is shown in * * * (the figure). This is in contrast to a spongy material consisting of granules or particles of sponge-like or honeycomb structure. In such products the component particles are usually of irregular fragmentary character and the interior of the particle is a mass of interlacing walls and pores rather than a single void. The thickness of the walls of the particles is controlled by the condi1 ions of the process and may he varied depending upon the characteristic desired in the finished product such as particle size, bulking weight, speed of solubility, etc. The practical limiting minimum thinness of the particle walls is determined by tlie wall strength which is required to prevent the particles from crushing or breaking under the conditions normally encouritered in bulking of the product in bins, handling it through conveyors and filling machines, and shipping it for use. The particles of the present product are made sufficiently stable so that they will withstand such normal handling and shipping conditions without breaking down. This hollow unitary particle structure is important in making the product quickly and completely soluble and at the same time providing a product of substantial particle size which is free from dust, stable, and free-flowing. “Soap products made by spraying molten soap as heretofore proposed are normally of shredded and fragmentary particle form. The novel structure properties of the present product just described are the result of certain particular process conditions. To obtain from the usual molten soap the characteristic rounded particle formation and to produce a product substantially free from excessively 'elongated particles, shreds, and the like, it is necessary that the temperature of the soap as sprayed be controlled within a proper range. * * * “Definite spaces or interstices betwreen the particles are clearly evident, and these spaces appear clean and free from any dust or fine powder. The product illustrated in Figures 2 and 3 (of the patent) is, as stated above, of an average particle size of about 0.75 mm. In this product substantially none of the particles are as large as 2 mm. in diameter; 100% of the product passes through a 10 mesh sieve in which the openings are 2 mm. square. Of this same product 85% to 90% passes a 20 mesh sieve (sieve openings 1 mm. square) while only 15% to 20% of the product passes a 40 mesh sieve (sieve openings 0.5 mm. square). Only about 5% to 8% of the product passes a 60 mesh sieve (sieve openings 0.3 mm. square), and only about 1 to 3% of the product passes a 100 mesh sieve (sieve openings 0.15 mm. square). The fact that no substantial part of the product is of sufficiently small particle size to pass a 100 mesh sieve shows that the product is practically entirely free of objectionable fine material or dust.” It is but fair at this point to set forth appellee’s defenses and its position in general. It disputes and challenges many facts asserted by appellants in their historical statement; denies that it followed the teachings of Lamont; asserts itself to he the pioneer and always a leader in the art; insists that Lamont was but a novice who played with soap making for a few days and never learned more about the science and art of laundry soap making than a sciolist. We are required to pass on fact issues and scientific disputes involving matters wherein the parties are hopelessly in disagreement. Appellee also denies that it followed Lamont hut it claims its product and process are its own and the result of changes following experiment and that its soap and the process by which it is made is covered by its own patents Nos. 1,779,516 and 1,779,-517, dated Oct. 28, 1930. The District Court found for appellee and made findings which adopt the contentions of appellee, on both validity and non-infringement. They are complete. Our failure to accept certain conclusions therein appearing is due to the fact that the evidence (physical exhibits) upon which they are based is all before us. Below is set forth the substance of such findings, slightly abbreviated. The findings although somewhat long are helpful in stating and narrowing the issues. The Issues. The issues in controversy-are more numerous than in the usual patent suit. The appellee asserts the patent is invalid for want of invention, and the determination of the force and validity of this contention necessitates a separate consideration of the product and the process claims. Appellee also challenges invention on the ground that Lamont was not the first inventor; in fact he was not the first or even a subsequent inventor. On this issue, purely one of fact, there is sharp controversy and each side is supported by persuasive argument. No finding of fact on this issue was made by the District Court. On the issue of infringement appellee contends that its soap does not respond to the product claims of the patent. It asserts that the soap particles are radically different in shape and uniformity as well as in other respects. It also insists (a) that its method of making soap differs from the steps described in the process claims; and (b) the methods followed in making its soap were but improvements of the process and steps by it followed in making its laundry soap for years prior to Lamont’s entry into the industry. The logical disposition of the determinative questions calls first for a consideration and disposition of appellee’s challenge of Lamont’s inventorship. The precise question which is here raised may be stated thus: Was it not Holliday rather than Lamont who made the discovery, etc. set forth in the Lamont patent? Both these gentlemen, Holliday and Lamont, were employed by the same company, the Industrial Waste Product Corporation (otherwise known as Industrial Spray Drying Co.), which was engaged in rendering laboratory services to industries of various kinds. Among its employees were three men of more than ordinary technical knowledge. They were Paul D. Zinzinia, Robert L. Holliday, and Dallas R. Lamont. Holliday had chemistry and engineering' training. Lamont had engineering training and acted as patent solicitor, being licensed to practice in the United States Patent Office. Both gentlemen were under agreement to transfer their discoveries and inventions and patent applications to their employer. Undoubtedly Holliday was the first to make experiments with soap. Industrial Waste Products Corporation was embarrassed financially and most anxious to hit upon a product and to make a discovery which would enlarge its activities and balance its budget. Industrial Waste Products Corporation had in other fields engaged in what is known as spray drying. Securing a kettle of soap from the manufacturer, Holliday began his experiments, working with kettle soap which in the raw material form was 30% water. Holliday applied heat before spraying the product..The results of his various experiments were written up in the form-of a report. Qther experiments were undertaken and other steps followed and additional reports were recorded. As a result of Holliday’s experimental work it was decided by him or his employer that he should apply for a patent. Lamont acted as his solicitor. Patent No. 1,621,506 covering “The manufacture of a finely divided dry soap product” was issued upon Holliday’s application which bore date of April 19, 1926. It was issued March 22, 1927. It is apparent that Mr. Holliday subsequently believed that he had secured too broad a patent and he filed a disclaimer. Thereafter Holliday left the employ and Lamont continued to make experiments in the soap field. As a result of what he learned from Holliday or from his own experiments, or both, the application for the patent in suit was by him filed, and very shortly thereafter the patent here in question was issued and by him assigned to his employer. Neither Holliday nor Lamont is financially interested in the outcome of this suit. The controversy between Lamont and Holliday is sharp and unyielding. The burden of proof looms large as the determining factor of this issue. This burden rests upon Holliday. The presumptions favor Lamont. Holliday made a written statement of his discoveries in 1927. He at that time applied for a patent and, under oath, he set forth his discoveries. Tested by the action of other inventors acting under similar circumstances and seeking patents to protect their discoveries, it is fair to assume that the full strength of the discovery would be set forth by the applicant. Why not? What he did not claim, he waived — he lost. If he claimed more than what he could prove himself to be the first to have discovered, the Patent Office would reject the excess as non-patentahle. Experience has demonstrated that the usual discoverer asserts more rather than less than he is entitled to. This is partly due to the fact that he does not know what others have invented or discovered. In the instant case therefore, we must assume that Holliday set forth all his discoveries when he applied for his patent. Most significant therefore is the absence of a disclosure of the discovery which Lamont later asserted to be his. However, this is not all. After the patent was issued to Holliday and he had read it and meditated over it, he concluded there was a mistake in the statement of his discoveries. He sought to correct the mistake appearing in specifications and claims. Here again Holliday had the opportunity to make claim to the discovery covered by Lamont’s patent, if omission existed in his original claims and specifications. Instead we find that Holliday corrects the original application by stating that he had been granted too broad a patent. In other words, his discovery had been too broadly stated, and he therefore sought to limit and restrict the patent previously issued to him by filing a disclaimer. In the face of such a record it is hard to find that Holliday erred when he sought to narrow the statement of his discovery when he might have broadened it so as to include as his, something he did not suggest when he filed his original application, nor claim when he filed his corrected and amended application. On the other hand, there was persuasive evidence produced at the trial which supported appellee’s argument. It seems that Holliday wrote a report of each of his experiments, when working for Industrial Spray Dryer Company. Likewise, the product which resulted from his experiments was placed in a tin can and marked by the report number. Sometime after the patent was issued and after the Industrial Spray Dryer Company had transferred the patent to Colgate-Palmolive, a receiver was appointed for the former company. Its assets were sold. Various cans containing the products which resulted from numerous experiments were considered valueless. Some of them had been transferred to a warehouse where they were left neglected for many years. At the time of the trial one of these cans bearing the Idolliday experiment number was produced in court to prove that the soap therein found responded fully to the claims of the Lamont patent. In other words, appellee offered the product found in this can as soap such as is described in Lamont’s patent. It was offered as the product of the Holliday test. It would serve no useful purpose to set forth in detail all the evidence in support of the positions taken by the contestants nor to elaborate the reasons for the conclusion which we have reached. It is apparent that the dispute is not one which can be determined with that absolute and mathematical certainty which marks the disposition of some fact issues. We confess the arguments on both sides are rather persuasive. Our conclusion is in favor of Lamont. We find him to be the original inventor of the soap product and processes by him described in the patent in suit. In view of this finding it will not be necessary to dispose of a legal question which is the subject of considerable judicial difference of opinion. We refer to the issuance of a patent to an employee of a company, entitled (by agreement) to the inventions and discoveries of its employees, where two employees work in the samé laboratory on the same subject matter and the employer in good faith selects one employee to file the patent application and the infringer asserts that the discovery was made by the other employee, whose discovery also belongs to the employer. Respecting this question this court sometime ago said: “If a corporation (incapable of being an applicant for a patent) should employ a score of experts in its laboratories to improve the processes and the products of the corporation, it should be of no concern even to the government * * * to prosecute an inquiry and-make a specific finding on the question whether the invention was single or joint and just what part each expert took in perfecting the improvements ; and surely a stranger, who is taking advantage of the disclosures in the patent, ought not to escape on the contention that the government made a proper grant but erroneously or wrongfully recognized the wrong person as applicant.” Bestwall Mfg. Co. v. United States Gypsum Co. (C.C.A.) 290 F. 798, 799. In conflict with this statement of the law see, United Chromium, Inc. v. General Motors Corporation et al. (C.C.A.) 85 F.(2d) 577. As bearing upon the effect of the employee’s (who the infringer asserts made the discovery) failure to file the application, see, Mason v. Hepburn, 13 App.D.C. 86. See, also, Brydle v. Honigbaum (Cust. & Pat.App.) 54 F.(2d) 147, and cases there cited. For an interesting discussion of this question see Vol. 18, Journal of Patent Office Soc’y., pages 257, 339. If an employer who owns the inventions of his employees and is entitled to the patents issued thereon may nevertheless have his patent invalidated at the instance of an infringer when he in good faith names one of two employees as the inventor and the other employee takes no steps to assert his patent rights as first discoverer, then legislation is needed to avoid such possibilities. We appreciate that the legal question arising out of the ownership of inventions of two employees, who have agreed with the employer that the latter is entitled to their discoveries, is entirely separate from the fact issue which arises out of the controversy over who was the first inventor, Holliday or Lamont. This issue of fact we have met sqparely and our determination is in no way affected by the said l'egal question. Our conclusion that appellee did not overcome the burden of proof which on it rested necessarily carries with it, the disposition of the ultimate fact issue, namely, that the soap found in the can in the warehouse long after Industrial Waste Products Corporation had sold its assets and ceased to function was not the soap made by Holliday in Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_usc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. UNITED STATES of America, Plaintiff-Appellee, v. Thomas William HALE, Defendant-Appellant. No. 16608. United States Court of Appeals Seventh Circuit. June 10, 1968. Rehearing Denied July 9, 1968 En Banc. Harry F. Peek, Milwaukee, Wis., for appellant. James B. Brennan, Thomas E. Weil, Milwaukee, Wis., for appellee. Before CASTLE, Chief Judge, ENOCH, Senior Circuit Judge, and FAIRCHILD, Circuit Judge. KNOCH, Senior Circuit Judge. Thomas William Hale, defendant-appellant, was convicted by jury trial of violating Title 18, United States Code, § 2312, unlawful interstate transportation of a known stolen motor vehicle. He was sentenced to serve one year in custody. Defendant contends that admission of his incriminating statements in evidence was reversible error. At a hearing on defendant’s motion to suppress certain of his statements as evidence, the following was disclosed. Sheriff Hollis Bridenhagen of Door County, Wisconsin, testified that on October 25, 1966, unarmed with any warrant, he called on the defendant whom he knew as “Michael J. Wright” at defendant’s home in Egg Harbor, Wisconsin. He said that he displayed his credentials and the defendant agreed to follow the Sheriff (in his own automobile) back to the Sheriff’s office in Sturgeon Bay, Wisconsin, to discuss some “bad checks.” As they entered the office, the Sheriff asked the defendant whether the defendant was aware of the stack of cancelled checks on the desk. The defendant said that he had written them and that his name was not “Michael J. Wright.” When the Sheriff asked about the automobile the defendant had been driving, the defendant said, “No, it’s not my car either.” The Sheriff testified further that: Before we started talking about the checks, I told him that whatever he said could be used against him, and things like that, what goes with his rights. But at the time he told me the car was not his, it was only about two sentences about the check and about the car. Immediately upon he telling me about the automobile not being his, I said: “You are in trouble, and I do not want you to make another statement; I will see that you get an attorney,” and I put him back in jail. He testified that the entire conversation took no longer than ten minutes. The defendant himself estimated the time as approximately ten or fifteen minutes. The District Court determined that the defendant had been inadequately informed of his rights and that no party could offer in evidence any of the defendant’s above described statements. James 0. Ebbeson of Sturgeon Bay, Wisconsin, an attorney at law, testified that he was appointed to represent the defendant by Door County Judge Edward G. Minor on October 25, 1966; that he conferred with the defendant “for about an hour and a half, maybe two hours,” the same day; that he advised the defendant to co-operate in every way with the law enforcement officers; and that it was his intention to permit the law enforcement officers to interrogate the defendant. He testified further that he told the Sheriff that the defendant and he had discussed the matter at great length and intended to co-operate with the Sheriff’s office and with any other office in the State of Wisconsin, including the F.B.I. The following morning Mr. Ebbeson was told that law enforcement officials including a Mr. Converse of the F.B.I. were coming from out of town to see the defendant, and, later that day, Mr. Ebbeson advised two nonresident police officers that his client was prepared to co-operate in any way. He testified that it was his intention to be present at the interrogation and that, although he said nothing to that effect, he assumed he would be called when Mr. Converse arrived. He said he had told the defendant early in his interview to say nothing unless counsel were present. He returned to his office. He was not called. The defendant evidently ignored the advice about having counsel present. At the trial Edward E. Converse, then retired, who had been an F.B.I. special agent in October 1966 testified that he saw the defendant on October 26, 1966, at 2:25 P.M. At 3:30 P.M. the defendant signed a statement which Mr. Converse testified was entirely volunteered and not the result of interrogation. During this time, defendant was fully advised of his rights and executed a written waiver. While notes of his statement were being transcribed, the defendant left the room for about ten minutes to have a photograph made. He returned, read the statement, and signed it. He spent about twenty-five minutes in actually making his statement, in which he said that one Millard F. Madden permitted the defendant to use his automobile at Orange Park, Florida, to do an errand for Madden, but not to take the ear out of the State of Florida, that after taking the ear, the defendant began to drink, found himself about sixty miles away, and just kept going, without notifying the owner, through several states, ending his trip in Wisconsin by mid-August 1966, where he used the name of Wright and asserted ownership of the car. Mr. Ebbeson testified that he was a little disappointed (and told the defendant that he would have liked to have been present) but that defendant was a very intelligent man with a college background; that he reviewed with the defendant what the defendant had said and that he was not concerned. Mr. Madden testified at the trial that defendant, whom he knew as “Michael Scanlon,” had offered to take his laundry to a laundromat in Orange Park, Florida, that the car was lent for that purpose, to be returned in an hour or an hour and one half so that Mr. Madden could drive to work, that on a previous occasion he had refused defendant’s request to borrow the car for a trip outside the State of Florida. Sheriff Bridenhagen testifed to seeing the defendant in possession of the car in Wisconsin. Mr. Converse was allowed to testify concerning his interview with the defendant and the statement made by defendant. The defendant argues (1) that the statement to Mr. Converse was a derivitive confession obtained while he was in custody, flowing from a prior confession obtained in violation of his rights, and hence not admissible in evidence; and (2) that this Court, in the exercise of its supervisory powers over the administration of justice in the Circuit, should hold that taking a statement from a defendant in the absence of his counsel in effect violates the American Bar Association Canons of Ethics and that such a statement should be suppressed. The defendant feels that an aggravating circumstance exists in that he was not only in continuing custody but that Sheriff Bridenhagen to whom the first, suppressed, confession was made, was present when the second confession was submitted the following day to the F.B.I. agent. He likens this case to Westover v. United States, 1966, 384 U.S. 436, 494-497, 86 S.Ct. 1602, 16 L.Ed.2d 694 (a companion case to Miranda v. State of Arizona, 1966, 384 U. S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694). Carl Calvin Westover was arrested by local police at about 9:45 P.M. on March 20, 1963. He was put in a line-up and booked at about 11:45 P.M. He was interrogated by local police that night and throughout the next morning, without the requisite warnings, respecting some local crimes. The interrogation was continued immediately at noon by three F.B.I. agents with respect to two robberies in California. After two or two and one-half hours, Westover signed confessions to each of those crimes which included acknowledgment that he had been told he did not have to make a statement, that it could be used against him and that he had a right to counsel. The Supreme Court in reversing the conviction spoke of the impact of a continuous period of questioning and the lack of evidence of any articulated waiver of rights after the F.B.I. agents began their interrogation. From Westover’s point of view, the Court thought, the warning came at the end of the interrogation period. The defendant here stresses the Court’s suggestion that a different case would be presented had Westover been removed by the F.B.I. agents in time and place from the surroundings of the original confession, and then warned of his rights and given an opportunity to exercise them. A different case is presented here where an extremely short period of interrogation was followed by lengthy consultation with counsel who advised full co-operation and who communicated that fact to the authorities. The defendant was further cautioned by the F.B.I. agent that he need not answer questions in the absence of his lawyer and that he could stop answering questions at any time. The evidence shows that the defendant came to the interrogation prepared to make a statement and that he did make a statement with full knowledge of his rights. The defendant argues that even a sophisticated defendant cannot know that his first confession will be suppressed and that he may remain silent at a later interrogation. He quotes Mr. Justice Jackson to the effect that once the cat is let out of the bag the defendant cannot get it back and that a later confession may always be looked on as the fruit of the first. United States v. Bayer, 1947, 331 U.S. 532, 540, 67 S.Ct. 1394, 91 L. Ed. 1654. But Mr. Justice Jackson went on to say at page 541, 67 S.Ct. 1394 that the United States Supreme Court had never gone so far as to hold that making a confession under circumstances which preclude its use perpetually disabled making a usable confession when the objectionable circumstances were removed. The defendant contends that Canon 9 of the American Bar Association’s Canons of Legal Ethics is applicable here. Canon 9 provides that a lawyer should not communicate on the subject of controversy with a party represented by counsel, that he should undertake to negotiate or compromise the matter only with counsel, that he should avoid anything that may tend to mislead a party not represented by counsel and should not undertake to advise him as to the law. In the course of oral argument reference was made to United States v. Smith, 7 Cir., 1967, 379 F.2d 628, where Canon 9 was raised in connection with interviews conducted in the absence of appointed counsel and without their permission. As Miranda standards were made prospective, they did not apply in Smith. The Court found the statements sought to be suppressed were clearly voluntary in fact and that Constitutional doctrine prior to Miranda required no more. However the Court went on to express the opinion that in post-Miranda cases, the Miranda rule would preclude admission of statements resulting from in-custody interrogation after known appointment of counsel without counsel’s presence or approval in the absence of deliberate and understanding choice to forego the assistance of counsel at the interrogation. In United States v. Nielsen, 7 Cir., January 30, 1968, 392 F.2d 849, the defendant after appropriate warnings said he had retained counsel and would not sign a waiver of rights form or “anything” until he had spoken to his attorney. When an F.B.I. agent asked if defendant wanted to call his attorney, the defendant said he would call later in the morning but that questioning could continue. He then answered five questions in the negative. The government, on trial, contended that these denials were false. The Trial Court instructed the jurors that they might consider whether these denials showed a consciousness of guilt. This Court on appeal, in a two to one decision, held that the defendant’s refusal to sign the waiver followed by an apparent willingness to answer questions should have alerted the agents by this apparently contradictory position to inquire further to ascertain whether there was an intelligent change of position or confusion. In the case before us there was no possibility of confusion. The defendant had conferred with his counsel and had decided to “co-operate”. This decision was communicated to the authorities at least twice. Counsel knew an F. B.I. agent was coming that afternoon. He did not mention that he expected to be notified of the exact time. The defendant was reminded of his right to have counsel present at the outset of the interview. Mr. Ebbeson testified that the defendant was a very intelligent man with a college background. As Judge Major said in United States v. Plata, 7 Cir., 1966, 361 F.2d 958, 961, cert. den. 385 U.S. 841, 87 S.Ct. 94, 17 L.Ed.2d 74 (cited by Judge Cummings in his Dissent to Neilson): We think the inference is inescapable that defendant with knowledge of his right to counsel and to remain silent if he so desired voluntarily responded to the agent’s inquiry. The Judgment of the District Court is affirmed. This Court is grateful for the skilled efforts of Mr. Harry F. Peck, Jr., of the Wisconsin bar, who represented the appellant as Court-appointed counsel. Affirmed. . Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Johnson v. State of New Jersey, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.24 882. 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_issue_2	30	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. TOLL, PRESIDENT, UNIVERSITY OF MARYLAND, et al. v. MORENO et al. No. 80-2178. Argued March 2, 1982 Decided June 28, 1982 Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, Powell, and Stevens, JJ., joined. Blackmun, J., filed a concurring opinion, post, p. 19. O’Connor, J., filed an opinion concurring in part and dissenting in part, post, p. 24. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 25. Robert A. Zarnoch, Assistant Attorney General of Maryland, argued the cause for petitioners. With him on the briefs was Stephen H. Sachs, Attorney General. James R. Bieke argued the cause for respondents. With him on the brief was John Townsend Rich Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by the Attorneys General for their respective States as follows: Charles A. Graddick of Alabama, Wilson L. Condon of Alaska, Robert K. Corbin of Arizona, John Steven Clark of Arkansas, George Deukmejian of California, J. D. MacFarlane of Colorado, Carl R. Ajello of Connecticut, Richard S. Gebelein of Delaware, Jim Smith of Florida, Arthur K. Bolton of Georgia, Tany S. Hong of Hawaii, David H. Leroy of Idaho, Tyrone C. Fahner of Illinois, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, Robert T. Stephan of Kansas, Steven L. Beshear of Kentucky, William J. Guste, Jr., of Louisiana, James E. Tierney of Maine, Francis X. Bellotti of Massachusetts, Frank J. Kelley of Michigan, Warren R. Spannaus of Minnesota, William A. Attain of Mississippi, John D. Ashcroft of Missouri, Michael T. Greely of Montana, Paul L. Douglas of Nebraska, Richard H. Bryan of Nevada, Gregory H. Smith of New Hampshire, James R. Zazzali of New Jersey, Jeff Bingaman of New Mexico, Robert.Abrams of New York, Rufus L. Edmisten of North Carolina, Robert Wefald of North Dakota, William J. Brown of Ohio, Jan Eric Cartwright of Oklahoma, Dave Frohnmayer of Oregon, LeRoy S. Zimmerman of Pennsylvania, Dennis J. Roberts II of Rhode Island, Daniel R. McLeod of South Carolina, Mark V. Meierhenry of South Dakota, William J. Leech, Jr., of Tennessee, Mark White of Texas, David L. Wilkinson of Utah, John J. Easton of Vermont, J. Marshall Coleman of Virginia, Kenneth O. Eikenberry of Washington, Chauncey H. Browning of West Virginia, Bronson C. La Follette of Wisconsin, and Steven Freudenthal of Wyoming; and for the American Council on Education et al. by Sheldon Elliot Steinbach. Bruce J. Ennis, Donald N. Bersoff, and Paul R. Friedman filed a brief for the International Bank for Reconstruction and Development et al. as amici curiae urging affirmance. Justice Brennan delivered the opinion of the Court. The state-operated University of Maryland grants preferential treatment for purposes of tuition and fees to students with “in-state” status. Although citizens and immigrant aliens may obtain in-state status upon a showing of domicile within the State, nonimmigrant aliens, even if domiciled, are not eligible for such status. The question in this case is whether the University’s in-state policy is invalid under the Supremacy Clause of the Constitution, insofar as the policy categorically denies in-state status to domiciled nonimmigrant aliens who hold G-4 visas. I The factual and procedural background of this case, which has prompted two prior decisions of this Court, requires some elaboration. The focus of the controversy has been a policy adopted by the University in 1973 governing the eligibility of students for in-state status with respect to admission and fees. The policy provides in relevant part: “1. It is the policy of the University of Maryland to grant in-state status for admission, tuition and charge-differential purposes to United States citizens, and to immigrant aliens lawfully admitted for permanent residence in accordance with the laws of the United States, in the following cases: “a. Where a student is financially dependent upon a parent, parents, or spouse domiciled in Maryland for at least six consecutive months prior to the last day available for registration for the forthcoming semester. “b. Where a student is financially independent for at least the preceding twelve months, and provided the student has maintained his domicile in Maryland for at least six consecutive months immediately prior to the last day available for registration for the forthcoming semester.” App. to Pet. for Cert. 167a-168a. In 1975, when this action was filed, respondents Juan Carlos Moreno, Juan Pablo Otero, and Clare B. Hogg were students at the University of Maryland. Each resided with, and was financially dependent on, a parent who was a nonimmigrant alien holding a “G-4” visa. Such visas are issued to nonimmigrant aliens who are officers or employees of certain international organizations, and to members of their immediate families. 66 Stat. 168, 8 U. S. C. § 1101(a)(15)(G)(iv). Despite respondents’ residence in the State, the University denied them in-state status pursuant to its policy of excluding all nonimmigrant aliens. Seeking declaratory and injunctive relief, the three respondents filed a class action against the University of Maryland and its President. They contended that the University’s policy violated various federal laws, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and the Supremacy Clause. The District Court granted partial summary judgment in favor of the three named plaintiffs and the class of G-4 visa-holders represented by them. In the view of the District Court, the University’s denial of in-state status to these plaintiffs rested upon an irrebuttable presumption that a G-4 alien cannot establish Maryland domicile. Concluding that the presumption was “not universally true” as a matter of either federal or Maryland law, the District Court held that under Vlandis v. Kline, 412 U. S. 441 (1973), the in-state policy violated the Due Process Clause of the Fourteenth Amendment. Moreno v. University of Maryland, 420 F. Supp. 541, 559 (Md. 1976). Accordingly, in an order dated July 13, 1976, the District Court enjoined the President of the University from denying respondents the opportunity to establish in-state status solely on the basis of an “irrebuttable presumption of non-domicile.” Id., at 565. The court stayed its order pending appeal in reliance on the University’s representation that it would make appropriate refunds “in the event the Court’s Order of July 13, 1976, were finally affirmed on appeal.” App. to Pet. for Cert. 100a. The Court of Appeals for the Fourth Circuit affirmed, adopting the reasoning of the District Court. Id., at 102a. Affirmance order reported at 556 F. 2d 573 (1977). We reviewed the case on writ of certiorari. Elkins v. Moreno, 435 U. S. 647 (1978). We held that “[b]ecause petitioner makes domicile the ‘paramount’ policy consideration and because respondents’ contention is that they can be domiciled in Maryland but are conclusively presumed to be unable to do so, this case is squarely within Vlandis as limited by [Weinberger v.] Salfi, [422 U. S. 749 (1975)].” Id., at 660. It was therefore necessary to decide whether the presumption was universally true. With respect to federal law, we concluded that G-4 visaholders could “adopt the United States as their domicile.” Id., at 666. We were thus left with the “potentially dispositive” question whether G-4 aliens are as a matter of state law incapable of becoming domiciliaries of Maryland. We certified this question to the Maryland Court of Appeals. The state court answered the certified question in the negative, advising us that “nothing in the general Maryland law of domicile renders G-4 visa holders, or their dependents, incapable of becoming domiciled in this State.” Toll v. Moreno, 284 Md. 425, 444, 397 A. 2d 1009, 1019 (1979). After our certification, but before the state court’s response, the University adopted a “clarifying resolution” concerning its in-state policy. By its terms the resolution did not offer a new definition of “in-state” students; rather, it purported to “reaffirm” the existing policy. The resolution indicated, however, that the University’s policy, “insofar as it denies in-state status to nonimmigrant aliens, serves a number of substantial purposes and interests, whether or not it conforms to the generally or otherwise applicable definition of domicile under the Maryland common law.” App. to Pet. for Cert. 173a. The interests assertedly served by the policy were described in the following terms: “(a) limiting the University’s expenditures by granting a higher subsidy toward the expenses of providing educational services to that class of persons who, as a class, are more likely to have a close affinity to the State and to contribute more to its economic well-being; “(b) achieving equalization between the affected classes of the expenses of providing educational services; “(c) efficiently administering the University’s in-state determination and appeals process; and “(d) preventing disparate treatment among categories of nonimmigrants with respect to admissions, tuition, and charge-differentials.” Id., at 173a-174a. Following the Maryland Court of Appeals’ decision, the case returned to this Court. But we declined to restore the case to the active docket for full briefing and argument, concluding that the University’s clarifying resolution had “fundamentally altered the posture of the case.” Toll v. Moreno, 441 U. S. 458, 461 (1979) (per curiam). We noted that “if domicile [was] not the ‘paramount’ policy consideration of the University, this case [was] no longer ‘squarely within Vlandis as limited by Salfi,’” and thus raised “new issues of constitutional law which should be addressed in the first instance by the District Court.” Id., at 461-462, quoting Elkins v. Moreno, supra, at 660. Accordingly, we vacated the judgment of the Court of Appeals and remanded the case “to the District Court for further consideration in light of our opinion and judgment in Elkins, the opinion and judgment of the Maryland Court of Appeals in Toll, and the Board of Regents’ clarifying resolution of June 23, 1978.” 441 U. S., at 462. On remand, the District Court determined that the clarifying resolution constituted a change in the University’s position. Before that resolution, the University’s primary concern had in fact been domicile; after the resolution, domicile was no longer “the paramount consideration in the University’s policy.” 480 F. Supp. 1116, 1124 (Md. 1979). Thus, with respect to the period preceding the issuance of the resolution, the District Court reaffirmed its earlier determination that insofar as the policy precluded G-4 aliens (or their dependents) from acquiring in-state status, it denied due process under Vlandis. 480 F. Supp., at 1122-1125. With respect to the period following the promulgation of the resolution, however, the court held that Vlandis did not control: The University had abandoned its position that G-4 aliens could not establish domicile in Maryland. 480 F. Supp., at 1125. Nevertheless, the District Court concluded that the revised in-state policy was constitutionally invalid, basing its conclusion on two alternative grounds. First, the court held that the policy ran afoul of the Equal Protection Clause of the Fourteenth Amendment. According to the court, the challenged portion of the University’s policy contained a classification based on alienage, requiring strict scrutiny, an analysis which the policy did not, survive, since the policy did not further any compelling interest. 489 F. Supp. 658, 660-667 (Md. 1980). Alternatively, the court held that the in-state policy violated the Supremacy Clause by encroaching upon Congress’ prerogatives with respect to the regulation of immigration. Id., at 667-668. The Court of Appeals affirmed for “reasons sufficiently stated” by the District Court. Moreno v. University of Maryland, 645 F. 2d 217, 220 (1981) (per curiam). We granted certiorari. 454 U. S. 815 (1981). For the reasons that follow, we hold that the University of Maryland’s instate policy, as applied to G-4 aliens and their dependents, violates the Supremacy Clause of the Constitution, and on that ground affirm the judgment of the Court of Appeals. We therefore have no occasion to consider whether the policy violates the Due Process or Equal Protection Clauses. II Our cases have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens within our borders. See, e. g., Mathews v. Diaz, 426 U. S. 67 (1976); Graham v. Richardson, 403 U. S. 365, 377-380 (1971); Takahashi v. Fish & Game Comm’n, 334 U. S. 410, 418-420 (1948); Hines v. Davidowitz, 312 U. S. 52, 62-68 (1941); Truax v. Raich, 239 U. S. 33, 42 (1915). Federal authority to regulate the status of aliens derives from various sources, including the Federal Government’s power “[t]o establish [a] uniform Rule of Naturalization,” U. S. Const., Art. I, § 8, cl. 4, its power “[t]o regulate Commerce with foreign Nations”, id., cl. 3, and its broad authority over foreign affairs, see United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 318 (1936); Mathews v. Diaz, supra, at 81, n. 17; Harisiades v. Shaughnessy, 342 U. S. 580, 588-589 (1952). Not surprisingly, therefore, our cases have also been at pains to note the substantial limitations upon the authority of the States in making classifications based upon alienage. In Takahashi v. Fish & Game Comm’n, supra, we considered a California statute that precluded aliens who were “ineligible for citizenship under federal law” from obtaining commercial fishing licenses, even though they “met all other state requirements” and were lawful inhabitants of the State. 334 U. S., at 414. In seeking to defend the statute, the State argued that it had “simply followed the Federal Government's lead” in classifying certain persons as “ineligible for citizenship.” Id., at 418. We rejected the argument, stressing the delicate nature of the federal-state relationship in regulating aliens: “The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization. Under the Constitution the states are granted no such powers; they can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived federal power to regulate immigration, and have accordingly been held invalid.” Id., at 419 (emphasis added) (citation and footnote omitted). The decision in Graham v. Richardson, supra, followed directly from Takahashi. In Graham we held that a State may not withhold welfare benefits from resident aliens “merely because of their alienage.” 403 U. S., at 378. Such discrimination, the Court concluded, would not only violate the Equal Protection Clause, but would also encroach upon federal authority over lawfully admitted aliens. In support of the latter conclusion, the Court noted that Congress had “not seen fit to impose any burden or restriction on aliens who become indigent after their entry into the United States,” id., at 377, but rather had chosen to afford “lawfully admitted resident aliens... the full and equal benefit of all state laws for the security of persons and property,” id., at 378. The States had thus imposed an “auxiliary burde[n] upon the entrance or residence of aliens” that was never contemplated by Congress. Id., at 379. Read together, Takahashi and Graham stand for the broad principle that “state regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress.” De Canas v. Bica, 424 U. S. 351, 358, n. 6 (1976). To be sure, when Congress has done nothing more than permit a class of aliens to enter the country temporarily, the proper application of the principle is likely to be a matter of some dispute. But the instant case does not present such a situation, and there can be little doubt regarding the invalidity of the challenged portion of the University’s in-state policy. The Immigration and Nationality Act of 1952, 66 Stat. 163, as amended, 8 U. S. C. § 1101 et seq. (1976 ed. and Supp. IV), represents “a comprehensive and complete code covering all aspects of admission of aliens to this country, whether for business or pleasure, or as immigrants seeking to become permanent residents.” Elkins v. Moreno, 435 U. S., at 664. The Act recognizes two basic classes of aliens, immigrant and nonimmigrant. With respect to the nonimmigrant class, the Act establishes various categories, the G-4 category among them. For many of these nonimmigrant categories, Congress has precluded the covered alien from establishing domicile in the United States. Id., at 665. But significantly, Congress has allowed G-4 aliens — employees of various international organizations, and their immediate families — to enter the country on terms permitting the establishment of domicile in the United States. Id., at 666. In light of Congress’ explicit decision not to bar G-4 aliens from acquiring domicile, the State’s decision to deny “instate” status to G-4 aliens, solely on account of the G-4 alien’s federal immigration status, surely amounts to an ancillary “burden not contemplated by Congress” in admitting these aliens to the United States. We need not rely, however, simply on Congress’ decision to permit the G-4 alien to establish domicile in this country; the Federal Government has also taken the additional affirmative step of conferring special tax privileges on G-4 aliens. As a result of an array of treaties, international agreements, and federal statutes, G-4 visaholders employed by the international organizations described in 8 U. S. C. § 1101(a)(15)(G)(iv) are relieved of federal and, in many instances, state and local taxes on the salaries paid by the organizations. For example, the international agreements governing the international banks for which the parents of the named respondents are employed specifically exempt the parents from all taxes on their organizational salaries. See Articles of Agreement of the International Bank for Reconstruction and Development, Art. VII, § 9(b), 60 Stat. 1458, T. I. A. S. No. 1502 (1945) (“No tax shall be levied on or in respect of salaries and emoluments paid by the Bank to executive directors, alternates, officials or employees of the Bank who are not local citizens, local subjects, or other local nationals”); Agreement Establishing the Inter-American Development Bank, Art. XI, § 9(b), [1959] 10 U. S. T. 3029, 3096, T. I. A. S. No. 4397 (1959) (“No tax shall be levied on or in respect of salaries and emoluments paid by the Bank to... employees of the Bank who are not local citizens or other local nationals”). Not only have some of the specific tax exemptions contained in international agreements been incorporated into a federal statute, see 22 U. S. C. §286h, but also the International Organizations Immunities Act has explicitly afforded a federal tax exemption for those G-4 visaholders employed by international organizations for which no treaty or international agreement has provided a tax exemption for foreign employees. § 4(b), 59 Stat. 670, reenacted, 68A Stat. 284, as § 893 of the Internal Revenue Code of 1954, 26 U. S. C. §893 (“Wages, fees, or salary of any employee [except citizens of the United States and of the Republic of the Philippines] of... an international organization..., received as compensation for official services to such... international organization shall not be included in gross income and shall be exempt from [federal] taxation”). In affording G-4 visaholders such tax exemption, the Federal Government has undoubtedly sought to benefit the employing international organizations by enabling them to pay salaries not encumbered by the full panoply of taxes, thereby lowering the organizations’ costs. See 41 Op. Atty. Gen. 170, 172-173 (1954). The tax benefits serve as an inducement for these organizations to locate significant operations in the United States. See, e. g., H. R. Rep. No. 1203, 79th Cong., 1st Sess., 2-3 (1945); S. Rep. No. 861, 79th Cong., 1st Sess., 2-3 (1945). By imposing on those G-4 aliens who are domiciled in Maryland higher tuition and fees than are imposed on other domiciliaries of the State, the University’s policy frustrates these federal policies. Petitioners’ very argument in this Court only buttresses this conclusion. One of the grounds on which petitioners have sought to justify the discriminatory burden imposed on the named respondents is that the salaries their parents receive from the international banks for which they work are exempt from Maryland income tax. Indeed, petitioners suggest that the “dollar differential... at stake here [is] an amount roughly equivalent to the amount of state income tax an international bank parent is spared by treaty each year.” Brief for Petitioners 23 (footnote omitted). But to the extent this is indeed a justification for the University’s policy with respect to the named respondents, it is an impermissible one: The State may not recoup indirectly from respondents’ parents the taxes that the Federal Government has expressly barred the State from collecting. In sum, the Federal Government has not merely admitted G-4 aliens into the country; it has also permitted them to establish domicile and afforded significant tax exemptions on organizational salaries. In such circumstances, we cannot conclude that Congress ever contemplated that a State, in the operation of a university, might impose discriminatory tuition charges and fees solely on account of the federal immigration classification. We therefore conclude that insofar as it bars domiciled G-4 aliens (and their dependents) from acquiring in-state status, the University’s policy violates the Supremacy Clause. Ill Finally, we must address petitioners’ contention that the Eleventh Amendment precluded the District Court from ordering the University to pay refunds to various class members who would have obtained in-state status but for the stay of the District Court’s original order of July 13,1976. As petitioners concede, in seeking a stay of that order the University made the representation to the District Court that in the event the 1976 order was “finally affirmed on appeal,” it would make appropriate refunds. This representation was incorporated in the stay orders of both the District Court and Court of Appeals. It is petitioners’ contention, however, that the 1976 order was “effectively” vacated when this Court, in Toll v. Moreno, 441 U. S. 458 (1979), vacated the judgment of the Court of Appeals and remanded the case to the District Court for reconsideration. Petitioners therefore conclude that the terms of the University’s waiver of sovereign immunity can no longer be satisfied. Petitioners’ argument is not persuasive. We do not interpret Toll as having vacated the judgment of the District Court. In Toll the Court recognized that the University had altered its position through the promulgation of the clarifying resolution, raising “new issues of constitutional law which should be addressed in the first instance by the District Court.” Id,., at 462. The Court declined, however, to decide whether the District Court, in issuing its 1976 order, had improperly relied on due process grounds, and whether continuation of the order was justified on equal protection or pre-emption grounds. Thus, while we vacated “the judgment of the Court of Appeals,” ibid., we left the judgment of the District Court undisturbed. And contrary to petitioners’ suggestion, a vacatur of the District Court’s judgment was not necessary to give the District Court jurisdiction to reconsider the case. See Goldberg v. United States, 425 U. S. 94, 111-112 (1976); Campbell v. United States, 365 U. S. 85, 98-99 (1961); 28 U. S. C. §2106 (“The Supreme Court... may affirm, modify, vacate, set aside or reverse any judgment... and may... require such further proceedings to be had as may be just under the circumstances”). IV For the foregoing reasons, the judgment of the Court of Appeals is Affirmed. The international organizations covered by the provision are those that are entitled to the privileges, exemptions, and immunities conferred under the International Organizations Immunities Act, 59 Stat. 669, 22 U. S. C. § 288 et seq. At the time suit was brought, the named plaintiffs in this case were dependents of employees of either the Inter-American Development Bank or the International Bank for Reconstruction and Development (World Bank). A fourth individual, Rene Otero, Jr., a respondent in this Court, was made a named plaintiff in 1980 when a supplemental complaint was filed. The court certified a class of G-4 visaholders or their dependents who, “residing in Maryland,... are current students at the University of Maryland, or... chose not to apply to the University of Maryland because of the challenged policies but would now be interested in attending if given an opportunity to establish ‘in-state’ status, or... are currently students in senior high schools in Maryland.” Moreno v. University of Maryland, 420 F. Supp. 541, 563 (Md. 1976). Citing Monroe v. Pape, 365 U. S. 167 (1961), the District Court dismissed the claim against the University itself. 420 F. Supp., at 548-550. The plaintiffs did not appeal that dismissal. The District Court did not order the University to grant the named plaintiffs in-state status. Rather, it merely barred the University from denying them and the members of the class “the opportunity to demonstrate that they or any of them are entitled to ‘in-state’ status for purposes of tuition and charge differential determinations.” Id., at 565. The Court of Appeals stayed its mandate “on the same terms as the district court originally granted its stay.” App. to Pet. for Cert. 103a-104a. Salfi limited Vlandis “to those situations in which a State ‘purports] to be concerned with [domicile, but] at the same time denfies] to one seeking to meet its test of [domicile] the opportunity to show factors clearly bearing on that issue.’ ” Elkins v. Moreno, 435 U. S., at 660, quoting Weinberger v. Salfi, 422 U. S. 749, 771 (1975). We noted that as to some categories of nonimmigrant aliens, Congress had “expressly conditioned admission... on an intent not to abandon a foreign residence or, by implication, on an intent not to seek domicile in the United States.” 435 U. S., at 665. See, e. g., 8 U. S. C. §§ 1101(a)(15) (B), (F), (H). With respect to G-4 nonimmigrant aliens, however, we concluded that Congress had deliberately declined to “impose restrictions on intent,” thereby permitting them to “adopt the United States as their domicile.” 435 U. S., at 666. The certified question was phrased as follows: “Are persons residing in Maryland who hold or are named in a visa under 8 U. S. C. § 1101(a)(15)(G)(iv) (1976 ed.), or who are financially dependent upon a person holding or named in such a visa, incapable as a matter of state law of becoming domiciliaries of Maryland?” Id., at 668-669 (footnote omitted). It was entitled “A Resolution Clarifying the Purposes, Meaning, and Application of the Policy of the University of Maryland for Determination of In-State Status for Admission, Tuition, and Charge-Differential Purposes, Insofar as It Denies In-State Status to Nonimmigrant Aliens.” App. to Pet. for Cert. 172a. “Reaffirmation of In-State Policy. Regardless of whether or not the policy approved by the Board of Regents on September 21, 1973, conforms with the generally or otherwise applicable definition of domicile under the Maryland common law, the Board of Regents reaffirms that policy....” Id., at 174a. We further noted: “Our decision in Elkins rests on the premise that ‘the University apparently has no interest in continuing to deny in-state status to G-4 aliens as a class if they can become Maryland domiciliaries since it has indicated both here and in the District Court that it would redraft its policy “to accommodate” G-4 aliens were the Maryland courts to hold that G-4 aliens can’ acquire such domicile. 435 U. S., at 661. After the clarifying resolution, this premise no longer appears to be true.” 441 U. S., at 461. The District Court’s pre-emption holding rested in part on its equal protection analysis; according to the court, “the standard utilized to uphold a state regulation dealing with benefits to be accorded to aliens is essentially the strict scrutiny analysis” of equal protection. 489 F. Supp., at 668. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2. At the time Takahashi was decided, federal law “permitted Japanese and certain other non-white racial groups to enter and reside in the country, but... made them ineligible for United States citizenship.” 334 U. S., at 412 (footnote omitted). Justice Rehnquist, in dissent, suggests that the italicized language should not be interpreted literally. Post, at 28-29. Rather, he suggests, the language can only be understood as explaining three prior Court cases that Takahashi cited in a footnote immediately after the italicized language. 334 U. S., at 419, n. 6, citing Truax v. Raich, 239 U. S. 33 (1915), Chy Lung v. Freeman, 92 U. S. 275, 280 (1876), and Hines v. Davidowitz, 312 U. S. 52, 65-68 (1941). According to Justice Rehnquist, “in each of these cases, the Court found either a clear encroachment on exclusive federal power to admit aliens into the country or a clear conflict with a specific congressional purpose.” Post, at 29. Justice Rehnquist thus concludes that the language in Takahashi does not mean what it says; instead it means that absent a clear encroachment on exclusive federal power or clear conflict with a federal statute, the States are free to treat aliens as they will. Justice Rehnquist is wrong. If the language were read in the manner suggested by the dissent, it would fail to explain Takahashi itself: The California statute at issue in Takahashi, denying certain lawful aliens the right to obtain commercial fishing licenses from the State, presented neither “a clear encroachment on exclusive federal power to admit aliens” nor “a clear conflict with a specific congressional purpose.” Justice RehnquiSt’s wowliteral interpretation of the Takahashi holding is simply wishful thinking on his part. While pre-emption played a significant role in the Court’s analysis in Takahashi, the actual basis for invalidation of the California statute was apparently the Equal Protection Clause of the Constitution. Commentators have noted, however, that many of the Court’s decisions concerning alienage classifications, such as Takahashi, are better explained in preemption than in equal protection terms. See, e. g., Perry, Modern Equal Protection: A Conceptualization and Appraisal, 79 Colum. L. Rev. 1023, 1060-1065 (1979); Note, The Equal Treatment of Aliens: Preemption or Equal Protection?, 31 Stan. L. Rev. 1069 (1979). Our cases do recognize, however, that a State, in the course of defining its political community, may, in appropriate circumstances, limit the participation of noncitizens in the States’ political and governmental functions. See, e. g., Cabell v. Chavez-Salido, 454 U. S. 432 (1982); Ambach v. Norwick, 441 U. S. 68, 72-75 (1979); Foley v. Connelie, 435 U. S. 291, 295-296 (1978); Sugarman v. Dougall, 413 U. S. 634, 646-649 (1973). In De Canas, we considered whether a California statute making it unlawful in some circumstances to employ illegal aliens was invalid under the Supremacy Clause. We upheld the statute. Justice Rehnquist’s dissent in the present case suggests that the pre-emption claim was rejected in De Canas because “the Court found no strong evidence that Congress intended to pre-empt” the State’s action. Post, at 31. Justice Rehn-QUIST has misread De Canas. We rejected the pre-emption claim not because of an absence of congressional intent to pre-empt, but because Congress intended that the States be allowed, “to the extent consistent with federal law, [to] regulate the employment of illegal aliens.” 424 U. S., at 361. Immigrant aliens are subject to stricter qualitative tests than non Question: What is the issue of the decision? 01. voting 02. Voting Rights Act of 1965, plus amendments 03. ballot access (of candidates and political parties) 04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action) 05. desegregation, schools 06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions. 07. affirmative action 08. slavery or indenture 09. sit-in demonstrations (protests against racial discrimination in places of public accommodation) 10. reapportionment: other than plans governed by the Voting Rights Act 11. debtors' rights 12. deportation (cf. immigration and naturalization) 13. employability of aliens (cf. immigration and naturalization) 14. sex discrimination (excluding sex discrimination in employment) 15. sex discrimination in employment (cf. sex discrimination) 16. Indians (other than pertains to state jurisdiction over) 17. Indians, state jurisdiction over 18. juveniles (cf. rights of illegitimates) 19. poverty law, constitutional 20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision. 21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits 22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes 23. residency requirements: durational, plus discrimination against nonresidents 24. military: draftee, or person subject to induction 25. military: active duty 26. military: veteran 27. immigration and naturalization: permanent residence 28. immigration and naturalization: citizenship 29. immigration and naturalization: loss of citizenship, denaturalization 30. immigration and naturalization: access to public education 31. immigration and naturalization: welfare benefits 32. immigration and naturalization: miscellaneous 33. indigents: appointment of counsel (cf. right to counsel) 34. indigents: inadequate representation by counsel (cf. right to counsel) 35. indigents: payment of fine 36. indigents: costs or filing fees 37. indigents: U.S. Supreme Court docketing fee 38. indigents: transcript 39. indigents: assistance of psychiatrist 40. indigents: miscellaneous 41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty) 42. miscellaneous civil rights (cf. comity: civil rights) Answer:
sc_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. JUNGERSEN v. OSTBY & BARTON CO. et al. NO. 7. Argued November 10, 1948. Decided January 3, 1949. William H. Davis argued the cause for Jungersen. With him on the brief was George E. Faithfull. John Vaughan Groner argued the cause for Ostby & Barton Co. et al. With him on the brief was Edward Winsor. Me. Justice Reed delivered the opinion of the Court. The issue here is the validity of United States Patent No. 2,118,468 which covers a “method of casting articles of intricate design and a product thereof.” The patent was granted to Jungersen on May 24, 1938. In 1941, Ostby and Barton Company instituted in the United States District Court for the District of New Jersey an action for a declaratory judgment that the patent was invalid and not infringed. Jungersen, by counterclaim, alleged infringement and sought an injunction. The District Court held Claims 1-4 valid but not infringed and Claims 5-6 invalid because too broad. 65 F. Supp. 652. The United States Court of Appeals for the Third Circuit affirmed on the reasoning of the District Court. 163 F. 2d 312. We denied petitions by both parties for certiorari. 332 U. S. 851, 852. In 1944, Jungersen filed suit against Baden in the United States District Court for the Southern District of New York, in which he alleged infringement of the patent and sought damages, profits, and injunctive relief. That court held all the claims invalid. 69 F. Supp. 922. The United States Court of Appeals for the Second Circuit affirmed. 166 F. 2d 807. Vacating the prior orders which denied it in the Ostby and Barton proceeding, we granted certiorari in both cases in order to settle the conflict. 334 U. S. 835. Since the parties do not assert error in those portions of the lower courts’ decisions which concern infringement, the sole issue before us is the validity of the patent. The method described in the Jungersen patent, Claims 1-4, consists of the following steps: (1) the production of a model of the article to be cast, (2) the formation around this model of a “primary mould” of plastic material “such as rubber” which is “capable of assuming intimate contact with the intricate designs of the model” and which will “retain a lasting shape through subsequent treatment,” (3) the casting in this mould of a pattern consisting of molten wax or other material of a low melting point which is made to assume the minute configurations of the mould by means of centrifugal force, (4) the removal of this pattern (which has become solid upon cooling) from the primary mould, and the formation around it of a “secondary mould” of refractory material, such as plaster of Paris, which “will assume all the contours of its intricate design,” (5) the removal of the wax or similar material from the secondary mould, or “investment” as it is called, by the application of heat, thus melting it out, and finally (6) the casting of the desired molten metal into the cavity in the investment by the application of centrifugal force as in (3), above. This method is capable of producing “small metal articles, particularly articles of intricate detail such as jewelry which frequently are designed with hollows, undercut portions and perforations, so that they will have a smooth clean surface faithful in detail to the original and free from imperfections or holes, and to enable such result being accomplished with the minimum of expense.” The patentee claims that it made possible the accurate reproduction of intricate designs in far less time than had previously been required. Claim 5 describes in more general terms the formation of a primary mould around the original pattern, the removal of the pattern from the mould, the introduction of molten wax into the mould “by force sufficient to deposit the material into the depression or depressions of the primary mould” and the employment of the wax pattern for the manufacture of a casting mould. Claim 6 covers “an article of jewelry” of intricate design made by the process disclosed by Claim 5. It describes the article of jewelry only by reference to the process by which it is manufactured. Obviously if the first four claims are invalid, the last two must likewise fall. An examination of the prior art as it existed at the time of this alleged invention reveals that every step in the Jungersen method was anticipated. We think that his combination of these steps was, in its essential features, also well known in the art. Jungersen’s process is nothing more than a refinement of a method known as the “cire perdue” or “lost wax” process, which was in use as early as the sixteenth century. The Treatises of Benvenuto Cellini on Goldsmith-ing and Sculpture, pp. 87-89,- reveals a process which consists of filling a primary mould with molten wax, building a secondary mould around the wax model thus obtained, melting the wax from this mould and pouring the desired metal in the secondary mould. In 1904 United States Patent No. 748,996, issued to Spencer, described a substantially identical process in which the primary mould was made, as in the patent here involved, by vulcanizing rubber around the original model or pattern. In England a process similar to Spencer’s had been the basis of a patent issued to Haseltine in 1875. The above-described developments in the prior art suggested no limitation of their applicability to any particular type of casting. Spencer stated that the purpose of his process was to produce accurate replicas of the original pattern, which could be of “intricate form” and which could “have any number of sides or surfaces or undercut or projecting parts.” Haseltine described his object as the production of “a casting in metal from a given pattern, which casting will be a perfect copy of such pattern without requiring much, if any, after finishing or chiselling work.” The patentee claims that the invention in his combination lies in the use, in conjunction with the “lost wax” process, of centrifugal force. Long before the issuance of this patent, however, those skilled in the art recognized and disclosed the necessity for the application of force in order to make molten materials fit snugly the intricate details of the mould. Haseltine applied pressure of about twenty pounds per square inch to cause the molten metal “to lie to the dense mould and produce a sharp and well defined casting.” He accomplished this by introducing the metal into the mould through a pipe about six feet in height. United States Patent No. 1,238,789 issued to Kralund in 1917 teaches the application of pressure to the wax and the molten metal by means of an ordinary pressure die casting apparatus. Whether these types of pressure are the equivalent of centrifugal force we need not decide since it is evident from patents and publications that the use of the latter was well known in the art. In 1923 McManus patented a casting machine which was adapted “to the casting of jewelry, such as gold rings, small trinkets, etc., where metal or other dies or moulds may be . . . filled by centrifugal casting methods.” United States Patent No. 1,457,040. He claimed “a means for transferring fused material from the furnace [in which the material was melted] to the mould under the action of centrifugal force.” In a paper on current casting methods which he presented to the Institute of Metals in England in 1926, one George Mortimer, with reference to the difficulty in filling a mould by gravity, stated: Centrifugal force was commonly used in dental casting prior to 1938. “It was natural, therefore, that engineers should early turn their attention to some form of artificial pressure, whereby the mould could be filled by force, and soundness and clean definition seemingly assured. “The simplest form of artificial pressure is that of centrifugal force . ...” Thus it is clear that the “lost wax” process, the use of a flexible primary mould, and the use of centrifugal force were all old in the art of casting. The patentee claims that the centrifugal forcing of wax into the primary mould had never before been combined with the other features of his process. We think this fact is of no legal significance. Where centrifugal force was common as a means of introducing molten metal into the secondary mould, its use in an intermediate step to force molten wax into the primary mould was not an exemplification of inventive genius such as is necessary to render the patent valid. Cf. Lincoln Engineering Co. v. Stewart-Warner Corp., 303 U. S. 545; Cuno Engineering Corp. v. Automatic Devices Corp., 314 U. S. 84. The patentee himself admitted that the same principle was employed in both steps. Thus Jungersen employed in his claimed invention well-known skills and practices in a manner and for a purpose long familiar in the field of casting. His claimed improvement is therefore not patentable. The patentee contends, however, that jewelry casting is a separate and distinct art; that consequently the advancements in other types of casting mentioned above cannot be viewed as the prior art in reference to this patent. The answer to this is twofold. In the first place, this patent is not restricted to the casting of jewelry. Its stated object is to “facilitate the casting of small metal articles, particularly articles of intricate detail such as jewelry . . . Secondly we think that the improvements in the art of casting which were disclosed by the patents and publications discussed above were so obviously applicable to the type of casting sought to be effected by Jungersen that he was bound by knowledge of them. Mandel Bros. v. Wallace, 335 U. S. 291, 295-96. Numerous licenses under the patent were issued in the United States and other countries. The fact that this process has enjoyed considerable commercial success, however, does not render the patent valid. It is true that in cases where the question of patentable invention is a close one, such success has weight in tipping the scales of judgment toward patentability. Goodyear Tire & Rubber Co. v. Ray-O-Vac Co., 321 U. S. 275, 279, and cases cited in footnote 5 thereof. Where, as here, however, invention is plainly lacking, commercial success cannot fill the void. Dow Chemical Co. v. Halliburton Co., 324 U. S. 320, 330; Toledo Pressed Steel Co. v. Standard Parts, Inc., 307 U. S. 350, 356-57; Textile Machine Works v. Hirsch Co., 302 U. S. 490, 498-99; 1 Walker, Patents (Deller, 1937) § 44. Little profit would come from detailed examination of the cases cited above or those indicated by reference. Commercial success is really a makeweight where the patentability question is close. Increased popular demand for jewelry or alertness in exploitation of the process may well have played an important part in the wide use of the patent. We cannot attribute Jungersen’s success solely or even largely to the novelty of his process. We hold all the claims of the patent invalid for want of invention. Nos. 7 and 48 affirmed. No. 8 reversed. In No. 7 we are asked to consider the decision of the Court of Appeals for the Third Circuit as to claims 5 and 6; in No. 8, the decision of that court as to claims 1 through 4; and in No. 48, the decision of the Court of Appeals for the Second Circuit as to all the claims of the patent. 20 Encyclopaedia Britannica (1948), p. 229. British Patent No. 2467. 'A French publication by Verleye entitled “La Gravure, etc.” (1924) describes in detail all of the elements of Jungersen’s process except the use of centrifugal force. “La Gravure, etc.,” supra, note 3, advocates the use of steam pressure. 35 Journal of the Institute of Metals, 371, 377. “Dental-casting methods employ four distinct principles; namely, gravity, centrifugal, vacuum, and pressure. . . . “The centrifugal method has the advantage of great simplicity, and fills the mold by the force exerted in throwing the metal off on a tangent while being revolved about a center.” Stern, Die-casting Practice (1st ed., 1930), p. 10. An excerpt from the testimony follows: “Q. And when the machine is revolved, when it is centrifuged, it makes no difference whether it be molten wax or molten metal, does it, in the fact that it throws out the molten material into the gate? A. It would throw out anything of weight if it is made free to leave. “Q. And that applies to wax as well as metal, does it not? A. It applies to wax and metal, but in a greater amount to the metal than to the wax. “Q. But they both operate in the same way under the influence of the centrifugal machine ? A. The same principle is used, yes. “Q. And the molten material in both cases is introduced into the mold? A. Yes.” 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_genresp2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. Gene R. AUSTIN, Appellant, v. UNITED STATES of America, Appellee. No. 12325. United States Court of Appeals Sixth Circuit. June 10, 1955 Irving Harris, Cincinnati, Ohio, for appellant. John H. Reddy, Chattanooga, Tenn. and James M. Meek, Knoxville, Tenn., for appellee. Before MARTIN, MILLER and STEWART, Circuit Judges. PER CURIAM. On this appeal from an order of the district court denying appellant’s motion to vacate sentence, his court-appointed attorney, both in oral argument and in brief, has ably presented the contention that appellant was erroneously deprived of his rights in being permitted to defend himself without the assistance of counsel, even though he himself had requested such privilege; that defendant was erroneously convicted of violation of the Dyer Act, 18 U.S.C.A. §§ 10-2311-2313, where the only evidence of transportation consisted of proof of the sale of the stolen vehicle; that defendant should have been permitted to be present in person when his motion to set aside the judgment of conviction and sentence as to him was heard by the district court; and that conviction for the transporting in interstate commerce of a stolen automobile and the sale of the automobile knowing it to have been stolen do not permit the imposition of consecutive sentences of five years each. None of these propositions, though well argued, is in our opinion sound. See York v. United States, 6 Cir., 299 F. 778; United States v. Spradley, D.C., 65 F. Supp. 136, opinion by District Judge Swinford, affirmed 6 Cir., 162 F.2d 203; Crawford v. United States, 6 Cir., 214 F.2d 313; to the effect that the fact that both charges relate to and grow out of one. transaction does not make a single offense where two are defined by statute. It is well established that it is unnecessary that a defendant be present at the hearing of his motion to set aside a judgment of conviction and sentence, where no issue of fact is presented for consideration. United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232. Here, we are confronted with the issue of our right to review a jury verdict determining a fact issue; and it is thoroughly established that a motion to vacate sentence is not to be employed as a substitute for appeal. Goss v. United States, 6 Cir., 179 F.2d 706. The judgment of the district court is affirmed;- and it is so ordered. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_genapel2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FOURCO GLASS COMPANY, Rolland Division, Respondent. No. 80-1705. United States Court of Appeals, Fourth Circuit. Argued Feb. 5, 1981. Decided April 22, 1981. David R. Marshall, Law Clerk, N. L. R. B. (William A. Lubbers, General Counsel, John E. Higgins, Jr., Deputy General Counsel, Robert E. Allen, Acting Associate General Counsel, Elliott Moore, Deputy Associate General Counsel, Vivian A. Miller, Washington, D. C., on brief), for petitioner. Robert B. Vining, Jr., Clayton, Mo., for respondent. Before WIDENER and SPROUSE, Circuit Judges, and WILLIAMS , District Judge. Richard L. Williams, United States District Judge for the Eastern District of Virginia, sitting by designation. SPROUSE, Circuit Judge: The National Labor Relations Board petitions for enforcement of its July 24, 1980 decision and order finding respondent Four-co Glass Company in violation of sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), 158(a)(5). Fourco’s Rolland Division manufactures glassware at its Clarksburg, West Virginia plant. Its employees have been represented by a union for thirty years. In July 1979 a collective bargaining agreement was in effect and was not due to expire until April 1, 1980. Under this agreement, between 25 and 50 of the 200 production employees participated in an incentive pay program. Fourco in July 1979 unilaterally eliminated the incentive program and implemented a new wage plan which included a new hourly rate. It had met with union representatives on several occasions prior to that time seeking, without success, their approval of these changes. After appropriate proceedings, the Board found Fourco’s unilateral decision an unfair labor practice and ordered it to reinstate the incentive program, post the customary Board notices, and compensate involved employees for lost wages. Fourco and the union subsequently renegotiated their collective bargaining agreement, replacing the one that terminated on April 1, 1980. Fourco and the union agreed that the employees would be paid a lump sum for the untimely elimination of the incentive program as a complete and final settlement of the case sub judice. The union agreed to request the Board that the charge involved in this case be withdrawn. Inasmuch as the issues underlying this controversy are moot, we deny enforcement. It is true a private settlement does not bar a Board-ordered remedy necessary to effectuate the purposes of the Act, NLRB v. Threads, Inc., 308 F.2d 1 (4th Cir. 1962), that the cessation of unfair labor practices does not necessarily eliminate the need for court enforcement of a Board order, NLRB v. Raytheon Co., 398 U.S. 25, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970); NLRB v. Mexia Textile Mills, Inc., 339 U.S. 653, 70 S.Ct. 826, 94 L.Ed. 1067 (1950), and that an order in such circumstances may be enforced to deter future misconduct. NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). However, none of the policy reasons which suggested the need for enforcement in those cases are present here. Fourco is undergoing the economic difficulty now being experienced by much of the glass industry, a difficulty unfortunately shared by its employees. Together they have resolved their difficulties in a manner which, obviously, they hope will advance their joint effort to remain economically viable. We do not suggest that a dispute settlement between a union and a financially-plagued company will always render a Board order moot. Nevertheless, although Fourco violated the Act in unilaterally terminating part of an existing wage agreement, its actions, under the discrete circumstances of this case, are not of the kind that require continued Board scrutiny. ENFORCEMENT DENIED. 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_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". Nathan R. STEEDLY, Plaintiff-Appellant, v. The LONDON & LANCASHIRE INSURANCE COMPANY, LIMITED, Defendant-Appellee. No. 19315. United States Court of Appeals Sixth Circuit. Oct. 9, 1969. Lawrence S. Grauman, Louisville, Ky., for appellant; Raymond C. Stephenson, Louisville, Ky., on brief. R. O. Harmon, Louisville, Ky., for appellee ; A. J. Deindoerfer, Boehl, Stopher, Graves & Deindoerfer, Louisville, Ky., on brief. Before McCREE and COMBS, Circuit Judges, and HOGAN, District Judge. The Honorable Timothy S. Hogan, District Judge, S.D.Ohio, sitting by designation. McCREE, Circuit Judge. This is an appeal from an order of the District Court granting defendant-appellee’s motion for summary judgment. The motion failed to state the specific grounds on which appellee was entitled to judgment as a matter of law and unfortunately the District Judge gave no reasons in support of his ruling. We can only assume, therefore, that he considered the issues which the parties raise on appeal. Both parties briefed two questions: Whether appellee, an insurer, was not liable as a matter of law to its insured for the amount of a judgment in excess of policy limits despite its refusal of several offers of settlement within those limits, and whether appellee’s failure to include a claim for contribution in a third-party complaint which it filed for its insured was not negligence as a matter of law. Appellee also contends that appellant, assignee of the insured, cannot, as a matter of law, recover on either theory since the insured has paid nothing and has been released from any personal liability on the judgment against him. In 1960, Owen Schuster, appellee’s insured, received an old British military rifle from his wife as a birthday present. She had purchased the gun from a second-hand dealer, Sutcliffe Company, hereinafter referred to as “Sutcliffe”, after seeing an advertisement in a newspaper. Seven months later, the rifle exploded when Schuster’s son, under his father’s supervision, fired it at a sportsmen’s club. A part of .the breech bolt struck the right eye of appellant, a club member who was standing nearby, and caused the loss of its sight. Appellant brought an action in the Jefferson County Circuit Court, Louisville, Kentucky, in which he alleged .that Schuster had caused the accident by negligently charging the cartridge with an excessive amount of gunpowder. Appellee, which had issued a policy of liability insurance to Schuster, thereupon undertook his defense and filed a third-party complaint against the seller, Sutcliffe, for indemnity, and alleged that the accident was caused by a defect which existed in the rifle at the time it was sold to Mrs. Schuster. Appellee subsequently rejected several offers of settlement from appellant within the limits of its policy coverage and the case went to trial. In answer to a special interrogatory, the jury found that the accident had been caused by both the negligent overloading of the cartridge and the defective condition of the rifle and awarded a verdict of $37,100. Judgment was entered in favor of appellant against Schuster and in the same amount in favor of Schuster against Sutcliffe. On appeal, the judgment against Schuster was affirmed but the judgment against Sutcliffe was reversed and the third-party complaint was dismissed with prejudice on the ground that contribution instead of indemnity should have been pleaded. Appellee paid the amount of its policy coverage, $10,000, to appellant. In return for a release from appellant, Schuster assigned to him the claim against appellee for its bad faith refusal of the settlement offers and for its negligent failure to plead contribution instead of indemnity in the third-party complaint. Appellant then brought this suit in the District Court as assignee of Schuster to recover the amount by which the state court judgment exceeded the limits of Schuster’s policy. The District Judge granted summary judgment against appellant based on the pleadings, certain depositions, admissions filed by appellee in response ,to appellant’s request, and the record of the state court action. This appeal followed. Jurisdiction is based on diversity and the law of Kentucky controls. Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The first question is whether appellant, as Schuster’s assignee, can recover against appellee for its rejection of two offers to settle the state court action for amounts within the limits of Schuster’s policy coverage. Under the law of Kentucky, an insurer is not liable for refusal to settle a claim against an insured unless it acts in bad faith. Mere bad judgment or negligence on the insurer’s part is not enough. Harrod v. Meridian Mutual Ins. Co., Ky.App., 389 S.W.2d 74 (1964); Terrell v. Western Casualty & Surety Co., Ky.App., 427 S.W.2d 825 (1968); American Surety Co. v. J. F. Schneider & Son, Inc., Ky.App., 307 S.W.2d 192 (1957). As stated in Schneider: No satisfactory test to determine good or bad faith in a case such as this has been formulated. * * * The insurer is interested in settling the claim at the lowest amount within the policy limit, while the insured desires to avoid any liability for the excess. These interests may conflict. * * * The insurer is not required to consult the interest of the insured to the exclusion of its own interest. * * * So long as it acts in good faith, considering the interest of the insured as well as its own, and not capriciously, an insurer cannot be required to settle a case rather than to litigate a doubtful issue or to bear the financial burden imposed on the insured if ultimate liability should exceed the policy limit. 307 S.W.2d at 195. Application of these principles here convinces us that as a matter of law appellee is not liable for having refused to settle the claim against Schuster. The evidence on the issue of fault was conflicting and did not clearly indicate that he was responsible for the accident. As the Kentucky Court of Appeals subsequently stated, “[T]he trial was a field day for the experts.” Schuster v. Steedley, Ky.App., 406 S.W.2d 387, 390 (1966). Failure to settle under these circumstances may have been bad judgment, but as a matter of law it was neither capricious nor fraudulent. The cases relied upon by appellant are inapposite. In State Farm Mutual Automobile Ins. Co. v. Marcum, Ky.App., 420 S.W.2d 113 (1967), the evidence of liability was so compelling that the court directed a verdict in favor of plaintiff, and in Terrell v. Western Casualty & Surety Co., supra, liability was conceded and only damages were in issue. We next consider the District Court’s apparent determination that as a matter of law appellee was not negligent in failing to file the third-party action against Sutcliffe for contribution as well as for indemnity. The Kentucky Court of Appeals stated that Schuster might have been able to obtain contribution from Sutcliffe of part of the judgment rendered against him, but it denied such relief because the third-party complaint sought indemnity, not contribution. Furthermore, it is clear that a claim for contribution could have been included in the third-party complaint. Jackson & Church Div., York-Shipley, Inc. v. Miller, Ky.App., 414 S.W.2d 893 (1967). Appellee contends, however, that the decision of the state appellate court is unusual and could not have been anticipated. It argues that it decided against specifically including such a claim in the third-party complaint since it believed that contribution could be recovered without an explicit request, and because the defense strategy was to make an “all-out” attack on Sutcliffe. But, although contribution and indemnity are similar in some respects, see Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396, 224 S.W.2d 165 (1949), appellee has presented no decisions from any jurisdiction which hold that contribution can be recovered even though only indemnity has been pleaded. Furthermore, at least one of the expert opinions which appellee had obtained before trial suggested that Schuster might be found responsible to some extent for the explosion of the rifle, and it is black-letter law that he would be entitled to indemnification by Sutcliffe only if the company was primarily at fault. Contribution would be the proper theory if both parties were found responsible. 41 Am.Jur.2d Indemnity § 1 (1968); 18 Am.Jur.2d Contribution § 1 (1965). We are therefore not persuaded that all reasonable men would agree that the failure to seek contribution was justifiable under the circumstances. Accordingly, this issue should have been submitted to the jury. Finally, we consider the effect of Schuster’s release from liability on the state court judgment in return for assignment to appellant of his right of action against appellee for bad faith and negligence. Appellee claims that because of this release Schuster will never have to pay the judgment against him and that he has therefore suffered no loss. We do not agree. If Schuster had satisfied the judgment by making full payment in cash in return for the release, appellee agrees that he could have then brought an action against it or have assigned this right. Instead, Schuster assigned his right of action, a valuable consideration, in full payment of the judgment and appellant subsequently acknowledged this fact, of record, in the state court. A release from liability was then given as a matter of course since the judgment had been satisfied. Schuster’s cause of action against appellee, which he had assigned to appellant, was not affected thereby. The judgment of the District Court is reversed in part and the case is remanded for trial on the issue of negligence. . Rule 52, Fed.R.Civ.P., provides in pertinent part: Findings of fact and conclusions of law-are unnecessary on decisions of motions under Rules * * * 56 [summary judgment] * * *. The wisdom of this rule, which relieves district judges of some drudgery, is evident in cases where the questions of law are clearly identified by the motion. it leaves much to be desired in a case like this, however, where there are many legal issues, any one of which may be dispositive of all or part of the claim and the ratio decidendi of the District Judge cannot be determined. See Gurley v. Wilson, 99 U.S.App.D.C. 336, 239 F.2d 257 (1956). . These facts are taken from the decision of the Kentucky Court of Appeals which is reported as Schuster v. Steedley, 406 S.W.2d 387 (1966). . Appellee argues that whether its failure to plead contribution was negligent must be determined in the light of the circumstances at the time this omission occurred and that, accordingly, the subsequent decision of the Kentucky Court of Appeals should not be considered. We observe, however, that this same principle also precludes appellee’s reliance on the favorable action of the state trial judge as evidence of the absence of negligence. 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:
sc_decisiontype	E	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. October 24, 1955. No. 16. Walton v. California. Robert F. Peckham and Jay A. Darwin argued the cause and filed a brief for petitioner. Clarence A. Linn, Assistant Attorney General of California, argued the cause for respondent. With him on the brief were Edmund G. Brown, Attorney General, and Arlo E. Smith, Deputy Attorney General. Certiorari, 348 U. S. 894, to the Superior Court of California, Appellate Department, County of Santa Clara. Argued October 17, 1955. Decided October 24,1955. Per Curiam: A majority of the Court are of opinion that the record in this case fails to establish that a federal question is presented and for that reason the writ of certiorari is dismissed. Mr. Justice Reed and Mr. Justice Douglas dissent. The Chief Justice did not participate in the consideration or decision of this case. Question: What type of decision did the court make? A. opinion of the court (orally argued) B. per curiam (no oral argument) C. decrees D. equally divided vote E. per curiam (orally argued) F. judgment of the Court (orally argued) G. seriatim Answer:
sc_respondent	027	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them. Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. UNITED DOMINION INDUSTRIES, INC. v. UNITED STATES No. 00-157. Argued March 26, 2001 Decided June 4, 2001 Eric R. Fox argued the cause for petitioner. With him on the briefs was Alan J. J. Swirski Kent L. Jones argued the cause for the United States. With him on the brief were Acting Solicitor General Underwood, Deputy Assistant Attorney General Fallon, Deputy Solicitor General Wallace, Richard Farber, and Edward T. Perelmuter. Richard E. Zuckerman and Raymond M. Kethledge filed a brief for the National Association of Manufacturers et al. as amici curiae urging reversal. Justice Souter delivered the opinion of the Court. Under § 172(b)(l)(I) of the Internal Revenue Code of 1954, a taxpayer may carry bach its “product liability loss” up to 10 years in order to offset prior years’ income. The issue here is the method for calculating the product liability loss of an affiliated group of corporations electing to file a consolidated federal income tax return. We hold that the group’s product liability loss must be figured on a consolidated basis in the first instance, and not by aggregating product liability losses separately determined company by company. I A “net operating loss” results from deductions in excess of gross income for a given year. 26 U. S. C. § 172(e). Under § 172(b)(1)(A), a taxpayer may carry its net operating loss either backward to past tax years or forward to Mure tax years in order to “set off its lean years against its lush years, and to strike something like an average taxable income computed over a period longer than one year,” Libson Shops, Inc. v. Koehler, 353 U.S. 382, 386 (1957). Although the normal carryback period was at the time three years, in 1978, Congress authorized a special 10-year carryback for “product liability loss[es],” 26 U. S. C. § 172(b)(l)(I), since, it understood, losses of this sort tend to be particularly “large and sporadic.” Joint Committee on Taxation, General Explanation of the Revenue Act of 1978,95th Cong., 232 (Comm. Print 1979). The Code defines “product liability loss,” for a given tax year, as the lesser of (1) the taxpayer’s “net operating loss for such year” and (2) its allowable deductions attributable to product liability “expenses.” 26 U. S. C. § 172(j)(l). In other words, a taxpayer’s product liability loss (PLL) is the total of its product liability expenses (PLEs), limited to the amount of its net operating loss (NOL). By definition, then, a taxpayer with positive annual income, and thus no NOL, may have PLEs but can have no PLL. Instead of requiring each member company of “[a]n affiliated group of corporations” to file a separate tax return, the Code permits the group to file a single consolidated return, 26 U. S. C. § 1501, and leaves it to the Secretary of the Treasury to work out the details by promulgating regulations governing such returns, § 1502. Under Treas. Regs. §§ 1.1502-ll(a) and 1.1502 — 21(f), an affiliated group’s “consolidated taxable income” (CTI), or, alternatively, its “consolidated net operating loss” (CNOL), is determined by “taking into account” several items. The first is the “separate taxable income” (STI) of each group member. A member’s STI (whether positive or negative) is computed as though the member were a separate corporation (i e., by netting income and expenses), but subject to several important “modifications.” Treas. Reg. §1.1502-12. These modifications require a group member calculating its STI to disregard, among other items, its capital gains and losses, charitable-contribution deductions, and dividends-reeeived deductions. Ibid. These excluded items are accounted for on a consolidated basis, that is, they are combined at the level of the group filing the single return, where deductions otherwise attributable to one member (say, for a charitable contribution) can offset income received by another (from a capital gain, for example). Treas. Regs. §§ 1.1502-ll(a)(3) to (8); 1.1502-21(f)(2) to (6). A consolidated group’s CTI or CNOL, therefore, is the sum of each member’s STI, plus or minus a handful of items considered on a consolidated basis. II Petitioner United Dominion’s predecessor in interest, AMGA International Corporation, was the parent of an affiliated group of corporations that properly elected to file consolidated tax returns for the years 1983 through 1986. In each of these years, AMCA reported CNOL (the lowest being $85 million and the highest, $140 million) that exceeded the aggregate of its 26 individual members’ PLEs ($3.5 million to $6.5 million). This case focuses on the PLEs of five of AMCA’s member companies, which, together, generated roughly $205,000 in PLEs in 1983, $1.6 million in 1984, $1.3 million in 1985, and $250,000 in 1986. No one disputes these amounts or their characterization as PLEs. See 208 F. 3d 452,453 (CA4 2000) (“The parties agree” with respect to the amount of “the product liability expenses incurred by the five group members in the relevant years”). Rather, the sole question here is whether the AMCA affiliated group may include these amounts on its consolidated return, in determining its PLL for 10-year carryback. The question arises because of the further undisputed fact that in each of the relevant tax years, each of the five companies in question (with minor exceptions not relevant here), reported a positive STI. AMCA answered this question by following what commentators have called a “single-entity” approach to calculating its “consolidated” PLL. For each tax year, AMCA (1) calculated its CNOL pursuant to Treas. Reg. § 1.1502-11(a), and (2) aggregated its individual members’ PLEs. Because, as noted above, for each tax year AMCA’s CNOL was greater than the sum of its members’ PLEs, AMCA treated the full amount of the PLEs as consolidated PLL eligible for 10-year carryback. In AMCA’s view, the fact that several member companies throwing off large PLEs also, when considered separately, generated positive taxable income was of no significance. From the Government’s perspective, however, the fact that the several affiliated members with PLEs also generated positive separate taxable income is of critical significance. According to the Government’s methodology, which we will call the “separate-member” approach, PLEs incurred by an affiliate with positive separate taxable income cannot contribute to a PLL eligible for 10-year carryback. Whereas AMCA compares the group’s total income (or loss) and total PLEs in an effort to determine the group’s total PLL, the Government compares each affiliate’s STI and PLEs in order to determine whether each affiliate suffers a PLL, and only then combines any PLLs of the individual affiliates to determine a consolidated PLL amount. In 1986 and 1987, AMCA petitioned the Internal Revenue Service for refunds of taxes based on its PLL calculations. The IRS first ruled in AMCA’s favor but was reversed by the Joint Committee on Internal Revenue Taxation of the United States Congress, which controls refunds exceeding a certain threshold, 26 U. S. C. § 6405(a). AMCA then filed this refund action in the United States District Court for the Western District of North Carolina. The District Court agreed with AMCA that an affiliated group’s PLL is determined on a single-entity basis, and held that, so long as the group’s consolidated return reflects CNOL in excess of the group’s aggregate PLEs, the total of those expenses (including those incurred by members with positive separate taxable income) is a PLL that “may be carried back the full ten years.” No. 8:9S-CV-341-MU (June 19, 1998), App. to Pet. for Cert. 39a. The United States Court of Appeals for the Fourth Circuit reversed, and held that “determining ‘product liability loss’ separately for each group member is correct and consistent with [Treasury] regulations.” 208 F. 3d, at 458. Because the Fourth Circuit’s separate-member approach to calculating PLL conflicted with the Sixth Circuit’s adoption of the single-entity approach in Intermet Corf. v. Com missioner, 209 F. 3d 901 (2000), we granted certiorari, 531 U. S. 1009 (2000). We now reverse. III The ease for the single-entity approach to calculating an affiliated group’s PLL is straightforward. Section 172(j)(l) defines a taxpayer’s “product liability loss” for a given tax year as the lesser of its “net operating loss for such year” and its product liability “expenses.” In order to apply this definition, the taxpayer first determines whether it has taxable income or NOL, and in making that calculation it subtracts PLEs. If the result is NOL, the taxpayer then makes a simple comparison between the NOL figure and the total PLEs. The PLE total becomes the PLL to the extent it does not exceed NOL. That is, until NOL has been determined, there is no PLL. The first step in applying the definition and methodology of PLL to a taxpayer filing a consolidated return thus requires the calculation of NOL. As United Dominion correctly points out, the Code and regulations governing affiliated groups of corporations filing consolidated returns provide only one definition of NOL: “consolidated” NOL, see Treas. Reg. § 1.1502-21(f). There is no definition of separate NOL for a member of an affiliated group. Indeed, the fact that Treasury Regulations do provide a measure of separate NOL in a different context, for an affiliated corporation as to any year in which it filed a separate return, infra, at 832-834, underscores the absence of such a measure for an affiliated corporation filing as a group member. Given this apparently exclusive definition of NOL as CNOL in the instance of affiliated entities with a consolidated return (and for reasons developed below, infra, at 884-838) we think it is fair to say, as United Dominion says, that the concept of separate NOL “simply does not exist.” Brief for Petitioner 15. The exclusiveness of NOL at the consolidated level as CNOL is important here for the following reasons. The Code’s authorization of consolidated group treatment contains no indication that for a consolidated group the essential relationship between NOL and PLL will differ from their relationship for a conventional corporate taxpayer. Nor does any Treasury Regulation purport to change the relationship in the cpnsolidated context. If, then, the relationship is to remain essentially the same, the key to understanding it lies in the regulations’ definition of net operating loss exclusively at the consolidated level. Working back from that, PLEs should be considered first in calculating CNOL, and they are: because any PLE of an affiliate affects the calculation of its STI, that same PLE necessarily affects the CTI or CNOL in exactly the same way, dollar for dollar. And because, by definition, there is no NOL measure for a consolidated return group or any affiliate except CNOL, PLEs cannot be compared with any NOL to produce PLL until CNOL has been calculated. Then, and only then in the case of the consolidated filer, can total PLEs be compared •with a net operating loss. In sum, comparable treatment of PLL in the instances of the usual corporate taxpayer and group filing a consolidated return can be achieved only if the comparison of PLEs with a limiting loss amount occurs at the consolidated level after CNOL has been determined. This approach resting on comparable treatment has a further virtue entitled to some weight in case of doubt: it is (relatively) easy to understand and to apply. The case for the separate-member approach, advanced (in one variant) by the Government and adopted (on a different rationale) by the Court of Appeals, is not so easily made. In the analysis of comparable treatment just set out, of course, there is no NOL below the consolidated level and hence nothing for comparison with PLEs to produce PLL at any stage before the CNOL calculation. At the least, then, a proponent of the separate-member approach must identify some figure in the consolidated return scheme that could have a plausible analogy to NOL at the level of the affiliated corporations. See A. Dubroff, J. Blanchard, J. Broadbent, & K Duvall, Federal Income Taxation of Corporations Filing Consolidated Returns §41.04[06], p. 41-75 (2d ed. 2000) (hereinafter Dubroff) (“Even if separate entity treatment was appropriate, it is unclear how a member with [PLEs] would compute its separate NOL”). The Government and the Court of Appeals have suggested different substitute measures. Neither one works. The Government has argued that an individual group member’s STI, as determined under Treas. Reg. § 1.1502-12, is analogous to a “separate” NOL, so that an affiliate’s STI may be compared with its PLEs in order to determine any separate PLL. An individual member’s PLL would be the amount of its separate PLEs up to the amount of its negative STI; a member having positive STI could have no PLL. The Government claims that an STI-based comparison places the group member closest to the position it would have occupied if it had filed a separate return. But that is simply not so. We have seen already that the calculation of a group member's STI by definition excludes several items that an individual taxpayer would normally account for in computing income or loss, but which an affiliated group may tally only at the consolidated level, such as capital gains and losses, charitable-contribution deductions, and dividends-received deductions. Treas. Regs. §§ 1.1502-12(j) to (n). Owing to these exclusions, an affiliate’s STI will tend to be inflated by eliminating deductions it would have taken if it had filed separately, or deflated by eliminating an income item like capital gain. When pushed, the Government concedes that STI is “not necessarily equivalent to the income or [NOL] figure that the corporation would have computed if it had filed a separate return.” Brief for United States 21, n. 14. But, the Government claims, “[t]here has never been a taxpayer with [PLEs] who had a positive [STI] but a negative separate [NOL].” Tr. of Oral Arg. 27. In other words, the Government says that the deductions excluded from STI have never once made a difference and, therefore, that STI is, in fact, a decent enough proxy for a group member’s “separate” NOL. But whether or not the excluded items have made a difference in the past, or make a difference here, they certainly could make a difference and, given the potential importance of some of the deductions involved (a large charitable contribution, for example), it is not hard to see how the difference could favor the Government. The Court of Appeals was therefore right to reject the Government’s reliance on STI as a functional surrogate for an affiliate’s “separate” NOL. 208 F. 3d, at 459-460. But what the Court of Appeals used in place of STI fares no better. The court relied on Treas. Reg. § 1.1502-79, which contains a definition of “separate net operating loss” that the court believed to be “analogous to an individual’s ‘net operating loss’ on a separate return.” 208 F. 3d, at 460. Section 1.1502-79(a)(3) provides that, “[f]or purposes of this subparagraph,” the “separate net operating loss of a member of the group shall be determined under §1.1502-12..., adjusted for the... items taken into account in the computation of” the CNOL. As the Court of Appeals said, the directive of § 1.1502-79(a)(3) (unlike the definition of STI) “takes into account, for example, [a] member’s charitable contributions” and other consolidated deductions. 208 P. 3d, at 460-461. But this sounds too good. It is true that, insofar as § 1.1502-79(a)(3) accounts for gains and losses that STI does not, it gets closer to a commonsense notion of a group member’s “separate” NOL than STI does. But the fact that § 1.1502-79(a)(3) improves on STI simply by undoing what §1.1502-12 requires in defining STI is suspicious, and the suspicion turns out to be justified. Section 1.1502-79(a)(3) unbakes the cake for only one reason, and that reason has no application here. The definition on which the Court of Appeals relied applies, by its terms, only “for purposes of” § 1.1502-79(a)(3), and context makes clear that the purpose is to provide a way to allocate CNOL to an affiliate member that seeks to carry back a loss to a “separate return year,” that is, to a year in which the member was not part of the consolidated group. See Treas. Reg. §1.1502-79 (titled “Separate return years”); § 1.1502-79(a) (titled “Carryover and carryback of [CNOL] to separate return years”); § 1.1502-79(a)(l) (“[i]f a [CNOL] can be carried... to a separate return year...”). No separate return years are at issue before us; all NOL carrybacks relevant here apply to years in which the five corporations were affiliated in the group. The Court of Appeals thus applied concepts addressing separate return years to a determination for a consolidated return year, without any statutory or regulatory basis for doing so. Cf. 49 Fed. Reg.. 30530 (1984) (“[AJlthough the consolidated net operating loss is apportioned to individual members for purposes of carry backs to separate return years [under § 1.1502-79(a)], the apportioned amounts are not separate NOLs of each member”). Hence, while § 1.1502-79 might not distort an affiliate’s separate NOL in the same way that STI does, the facial inapplicability of that regulation only underscores the exclusive concern of § 1.1502-ll(a) with consolidated NOL. In sum, neither method for computing PLL on a separate-member basis squares with the notion of comparability as applied to consolidated return regulations. On the contrary, by expressly and exclusively defining NOL as CNOL, the regulations support the position that group members’ PLEs should be aggregated and the affiliated group’s PLL determined on a consolidated, single-entity basis. IV Several objections have been raised to a single-entity approach to calculating PLL that we have not considered yet. First, the Government insists that a single-entity rule allows affiliated groups a “double deduction.”. The Government argues that because PLEs are not included among the specific items (charitable-contribution deductions, etc.) for which consolidated, single-entity treatment is required under Treas. Reg. § 1.1502-12, PLEs are “consumed” or “used up” in computing members’ STIs, which, pursuant to Treas. Regs. §§ 1.1502-ll(a) and 1.15Q2-21(f), are then used to calculate the group’s CTI or CNOL. According to the Government, to permit the use of PLEs first to reduce an individual member’s STI and then to contribute to an aggregate PLL for carryback purposes would be tantamount to a double deduction. The double-deduction argument may have superficial appeal, but any appeal it has rests on a fundamental misconception of the function of STI in computing an affiliated group’s tax liability. Calculation of a group member’s STI is not in and of itself the basis for any tax event, and there is no separate tax saving when STI is calculated; that occurs only when deductions on the consolidated return equal income and (if they exceed income and produce a CNOL) are carried back against prior income. STI is merely an accounting construct devised as an interim step in computing a group’s CTI or CNOL; it “has no other purpose.” Inter-met, 209 F. 3d, at 906 (“A member’s STI is simply a step along the way to calculating the group’s taxable income or CNOL”). The fact that a group member’s PLEs reduce its STI, which in turn either reduces the group’s CTI or contributes to its CNOL “dollar for dollar,” ibid., is of no other moment. If there were anything wrong in what United Dominion proposes to do, it would be wrong in relation to CNOL and its use for any carryback. Yet, as noted above, no one here disputes that the group members had PLEs in the total amount claimed or that the AMCA group is entitled to carry back the full amount of its CNOL to offset income in prior years. The only question is what portion, if any, of AMCA’s CNOL is PLL and, as such, eligible for 10-year, as opposed to 3-year, carryback treatment. There is no more of a double deduction with a 10-year carryback than one for three years. A second objection was the reason that the Court of Appeals rejected the single-entity approach. That court attached dispositive significance to the fact that, while the Treasury Regulation we have discussed, § 1.1502-12, specifically provides that several items (capital gains and losses, charitable-contribution deductions, etc.) shall be accounted for on a consolidated basis, it does not similarly provide for accounting for PLEs on a consolidated basis: “The regulations provide for blending the group members’ [NOLs], and they explicitly define [CNOL] without an accompanying reference to consolidated [PLEs]. This omission... makes clear that blending those expenses is not permitted... 208 P. 3d, at 458. We think the omission of PLEs from the series of items that §1.1502-12 requires to be tallied at the consolidated level has no such elear lesson, however. The logic that invests the omission with significance is familiar: the mention of some implies the exclusion of others not mentioned. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 168, 168 (1993) (“Expressio unius est exclusio alterius”). But Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_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. UNITED STATES of America, Appellant, v. BROWN WOOD PRESERVING COMPANY et al., Appellees. No. 13803. United States Court of Appeals Sixth Circuit. March 7, 1960. John J. Pajak, Dept, of Justice, Washington, D. C. (Charles K. Rice, Lee A. Jackson, Harry Baum and Marvin W. Weinstein, Washington, D. C., J. Leonard Walker and Charles M. Allen, U. S. Attys., Louisville, Ky., on the brief), for appellant. Bernard H. Barnett, Louisville, Ky. (S. L. Greenebaum, Bernard H. Barnett and Charles F. Wood, of Greenebaum, Barnett, Wood & Doll, Louisville, Ky., on the brief), for appellees. Before McALLISTER, Chief Judge, nd MARTIN and WEICK, Circuit fudges. WEICK, Circuit Judge. The sole question in this appeal is whether income received under one year leases granting the right to turpentine timber qualifies for capital gains treatment as received for the “disposal of timber” within the meaning of Section 117 (k) (2) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 117(k) (l). The District Judge held that it did. He adopted the theory advanced by taxpayers that turpentine is an integral part of the tree; that if the taxpayer had sold the entire tree the income therefrom would be taxable as a capital gain; that if the taxpayer elects to first dispose of the turpentine and later the remaining wood products the aggregate of the receipts represents the sale price of the timber and any gain realized from the sale of the aggregate is taxable as a capital gain. Judgment was rendered against the Government for an amount equal to the difference in the tax on the proceeds as ordinary income and capital gains, taxpayers having been assessed, and having paid the higher amount. It is the claim of the Government that “turpentine” cannot be equated with “timber” as that word is used in the statute; that the legislative history of the statute does not justify any such interpretation; that the statute, being an exception to the general rule that income is taxable as ordinary income, should be narrowly construed. Some of the facts were stipulated in the District Court and oral testimony was taken. Four leases, executed in 1949, are involved. Appellees were the lessors. Each lease was for the term of one year. The leases were orally extended and were in force for the additional years 1950, 1951 and 1952. The payment due the lessors was a specified percentage of the gross turpentine operations. The amount of income during the four tax years in question is not in dispute. The timber which was the subject of the leases, had been purchased by the lessors more than six months prior to the execution of the leases. The resin is obtained by cutting a portion of the outer and inner bark of the tree and then chipping. Sometimes acid is used in lieu of chipping to facilitate the flow of sap. The cuts are referred to as faces. They start at the base of the tree and are about 12" to 14" wide and 16" high. Cups are fastened to the tree to catch the sap. The sap is removed during the spring and summer. Each year it is necessary to cut a new “face on the tree about the same size, but above the previous one. The operation is usually repeated for three or four years, sometimes up to ten years in larger trees. Then faces are cut on other sides of the tree. Some trees have been “turpentined” for as long as twenty years. Where the cutting has been only on one side of a tree, it may be used to make poles. Turpentining a tree does affect the value of the lumber after perhaps the first year. It retards the growth of the tree. Insects sometimes go in the tree at the open faces. The sap is flammable and if the tree and the surrounding area are not kept clean, damage from fire might result. Pitch streaks develop in the area of the faces and work upward. It should be pointed out, however, that a depletion allowance of about 30% was allowed to the taxpayers. There was no evidence that the damage to the trees caused by turpentining exceeded the amount of this allowance. The all important question in this case is the meaning of the phrase “disposal of timber” found in Section 117(k) (2). It is proper to refer to the legislative history to aid in determining that issue. New York Life Ins. Co. v. Bowers, 283 U.S. 242, 51 S.Ct. 399, 75 L.Ed. 1005. Of the greatest significance in the history is the over-all picture, rather than any single segment. The committee reports and statements at the hearings on the bill show that this legislation was enacted to alleviate a particular problem. In 1943, the timber owner who cut his own timber prior to sale, or had another cut it for him, was taxed on the proceeds as ordinary income, whereas if the timber had been sold standing the proceeds would have been treated as capital gains. Cf. Commissioner of Internal Revenue v. Boeing, 9 Cir., 106 F.2d 305. No lengthy explanation is necessary to show the hardship this worked on the timber owner. Over a long period of years the trees on his tract matured until they reached the point where they could be cut. During those years his operating expenses kept running. When the trees were cut and sold the income tax on the proceeds as ordinary income left the operator with but a small fraction of the income, particularly if his operations were substantial, putting him in a high tax bracket. The income had to be reported in the year in which the trees were sold and could not be spread over the years of their growth. There was little inducement for the operator to cut his timber if he could retain only a small portion of the proceeds of sale. The timber operator was left with three choices. First, he could cut and sell his timber, pay the tax and realize little profit. Second, he could sell his property outright, or the standing timber alone, and obtain capital gains treatment on his profits. Third, he could simply not sell at all and maintain his holdings. These alternatives created problems for the operator. The third one created a problem of national importance. At the time this legislation was being considered the country was in the midst of World War II, and wood and paper products were vital to the war effort. The refusal of the timber owners to cut their timber could only result in a shortage of such commodities. If the timber operator was unable to obtain a reasonable profit he would not be likely to plant additional trees. The result of that would be a slow-down in reforestation, which would not only hamper the war effort, but also increase the difficulties of a successful post-war recovery. From this background Section 117(k) emerged. Its purpose is obvious. It was intended to promote a continuing timber industry by giving a tax benefit to the timber operator in the year in which he realized the fruits of many years of labor, no matter in what manner he sold his trees. It was, in the truest sense, intended to relieve against an excessive tax burden. In turpentining a continuous operation is carried on. The income is derived year by year, and fluctuates only with reference to the volume produced and the market price. There is no excessive tax burden in any one year. Accordingly, there is no necessity for special tax relief in order to make the over-all operation profitable. Section 117(k) was enacted in light of, and to overcome, a definite problem. Its extension into areas where that problem does not exist is unwarranted. Were there some indication in the legislative history that the phrase “disposal of timber” or the word “timber” was intended to apply to turpentining it might counterbalance the fact that the turpentining operation does not comport with the economic theory of Section 117 (k). There is no such indication in plain language. To the contrary, the word “timber” appears to have been intended to carry the meaning which the general public attaches to it — a tree or stand of trees. Nowhere is timber equated with turpentine. In both the House Conference Report and Senate Report the word “timber” is used many times, with no indication that it was intended to have any meaning other than its ordinary one. The Treasury Department has not equated “timber” with its components either. In Income Tax Release No. 1 — Turpentine Depletion (dated Dec. 28, 1949) it was stated: “In circumstances which require the determination of fair market value as of any given date, the value of the timber should be first determined. Of the value so determined, a reasonable amount may be allocated to the turpentine * * *.” Revenue Ruling 56-434, IRB 56-36, discussed the tax consequences of amounts received by a timber owner from pulpwood extracted from the tops and limbs of trees felled for sawlogs. It was held that: “Section 631(b) benefits apply only with respect to the standing trees cut by the contractor and not to the pulpwood cut by the contractor from the tops and limbs of the trees felled by the taxpayer, since in the latter case there has not been a disposal of standing trees (timber).” In both instances the term “timber” was restricted to standing trees, and not the several components thereof. This interpretation appears on the face of the Revenue Ruling, while in the Information Release the valuation of turpentine, the component, is arrived at only after the timber is given its total valuation. The words of a tax statute should, if possible, be interpreted in their ordinary everyday senses. Crane v. Commissioner, 331 U.S. 1, 6, 67 S.Ct. 1047, 91 L.Ed. 1301. In common parlance the word “timber” is not ordinarily understood to mean “turpentine”. Similarly, the phrase “disposal of timber” ordinarily means a true disposal by means of severance of standing trees. In executing the one year leases of rights to turpentine timber, this did not operate as a “disposal of timber” within the meaning of Section 117(k) (2) of the Internal Revenue Code of 1939. At the end of the leases and of each renewal thereof the trees were alive and still standing. They had not been disposed of and they had value. When the short term leases expired the lessors had more than an economic interest in the timber. They were the sole owners. They had been compensated for the turpentining and had received tax benefits for depletion. They still had the trees. If Congress had intended to extend capital gains treatment to products derived from the sap of a standing tree, it would certainly have used more appropriate language than “disposal of timber”. Capital gains is an exception to the general rule that income is taxable as ordinary income. Section 117(k) gives a double benefit in that it provides for capital gains — ordinary loss treatment. Accordingly, the statute is not to be broadly applied but is narrowly construed in order to protect the revenue. Commissioner of Internal Revenue v. P. G. Lake, Inc., 356 U.S. 260, 265, 78 S.Ct. 691, 2 L.Ed.2d 743; Corn Products Refining Co. v. Commissioner, 350 U.S. 46, 52, 76 S.Ct. 20, 100 L.Ed. 29; Burnet v. Harmel, 287 U.S. 103, 106, 53 S.Ct. 74, 77 L.Ed. 199. The argument presented by taxpayers is not without force, but must be presented to the Congress. We are not willing to extend the statute beyond its intended scope. The judgment of the District Court is reversed and the cause is remanded with instructions to enter judgment in favor of appellant dismissing the complaint. . “(2) In the case of the disposal of timher coal (including lignite), held for more than 6 months prior to such disposal, by the owner thereof under any form or type of contract by virtue of which the owner retains an economic interest in such timber or coal, the difference between the amount received for such timber or coal and the adjusted depletion basis thereof shall be considered as though it were a gain or loss, as the case may be, upon the sale of such timber or coal.” . Actually, turpentine is not a component of the tree. Turpentine is distilled from resin, which is the sap of the pine tree, However, throughout this case both sides have used the word “turpentine” instead of “resin”. For the purposes of this opinion that usage will be continued, . The Crabtree lease was executed on November 30, 1949 and was to be effective ^or ^ear I960. It was orally extend-e<^ ^or 1951 and 1952. An oral agreement embodying the same terms was in effect for 1949. . Three leases provided for a percentage of 25% and one for 22%%. . Section 23 (m), Internal Revenue Code of 1939, 20 U.S.O.A. § 23 (m). . S.Rep. No. 627, 78th Cong., 1st Sess.; ILConf.Rep. No. 1079, 78th Cong., 2d Sess. . Senate Hearings, Revenue Aet of 1943, pp. 490 et seq., 660 et seq., 667 et seq.; House Hearings, Revenue Revision of 1943, pp. 840 et seq. . Webster’s New International Dictionary (2nd ed.) defines timber as: (2b) Wood suitable for building houses, bridges, ships, etc. whether on the tree or cut and seasoned. (4) Land covered by trees from' which timber (sense 2b) is produced ; forest; wood; trees collectively; also, a tree or its bole [trunk]. . Section 631(b) of Internal Revenue Code of 1954, 26 U.S.C.A. § 631(b) is substantially the same as Section 117 (k) (2) of the 1939 Code. . It has been stated, “If sap in a tree which is replenished recurrently is timber then what about pecans and hickory nuts?” Briggs, The Timber Owner and His Tax Expert Plan to Ensure Capital Gains, The Journal of Taxation, April 1959, p. 238. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_r_nonp	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. TURNER v. UNITED STATES. No. 1055. Circuit Court of Appeals, Tenth Circuit. Nov. 21, 1934. Frank Hickman, of Tulsa, Okl. (Irvine E. Ungerman, of Tulsa, Okl., on the brief), for appellant. W. F. Rampendahl, U. S. Atty., of Muskogee, Okl. (C. L. McArthur, Asst. U. S. Atty., of Muskogee, Okl., on the brief), for the United States. Before LEWIS and PHILLIPS, Circuit Judges, and JOHNSON, District Judge. LEWIS, Circuit Judge. Appellant was indicted, convicted and sentenced for possessing intoxicating liquor on September 29, 1933, at a certain point in Muskogee, Oklahoma, said place being in what was formerly the Indian country. Act of June 30, 1919 (25 USCA § 244). We notice that said section was repealed March 5, 1934. 48 Stat. 396. The repeal of that section, however, does not extinguish penalties or liabilities theretofore incurred. Rev. St. § 13 (1 USCA § 29). Appellant filed a motion to suppress the evidence on the ground that it was procured by certain officers of the United States by means of an illegal and unlawful search of appellant’s person and effects without a search warrant therefor. There was no search of his person. His automobile was searched. The court overruled said motion, and the sole question considered here is the correctness of that ruling. Two federal prohibition investigators were witnesses. The evidence was that appellant was known as a liquor dealer who had served a term in the penitentiary for conspiracy to violate the liquor laws. About September 1, 1933, the witnesses were informed that appellant was back in the alcohol and bonded whiskey business. His movements were watched. On September 25, 1933, the witnesses received word from police officers in Tulsa that appellant was going to New Orleans for a load of liquor. They were informed he had left Tulsa, the kind of ear he was driving and its license number. They found out he was not at his home in Tulsa. On information the officers anticipated his return by Muskogee and they watched the highway. Shortly after noon on September 29, 1933, they saw appellant on the highway approaching from the south. He entered Muskogee, and at 24th Street and Okmulgee Avenue he changed his course and speeded up his ear. The officers followed and stopped him. When they came to his ear he said: “There is no use looking. It is full” — or something to that effect. A search of the car without protest or objection disclosed a-quantity of whiskey, wine and alcohol, also a revolver carried in the pocket of the ear. Later appellant told the1 officers he brought the liquor from New Orleans. Under the facts the search was not unlawful and illegal, and no constitutional right of appellant was violated. See Husty v. United States, 282 U. S. 694, 51 S. Ct. 240, 75 L. Ed. 629, 74 A. L. R. 1407, Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, and Underhill v. United States (C. C. A. 10) 47 F.(2d) 891. Affirmed. Question: What is the total number of respondents in the case that fall into the category "groups and associations"? Answer with a number. Answer:
songer_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. Nathan PUTCHAT and Sally Putchat, husband and wife, Appellants, v. COMMISSIONER OF INTERNAL REVENUE. No. 18292. United States Court of Appeals, Third Circuit. Argued April 9, 1970. Decided May 4, 1970. Rehearing Denied June 30, 1970. Arthur Pelikow, New York City, (Robert B. Alexander, Jr., Stuart M. Berkman, New York City, on the brief), for appellants. William S. Eastabrook, Dept, of Justice, Tax Division, Washington, D. C. (Johnnie M. Walters, Asst. Atty. Gen., Lee A. Jackson, Thomas L. Stapleton, Janet R. Spragens, Attys., Dept, of Justice, Washington, D. C., on the brief), for appellee. Before SEITZ and ALDISERT, Circuit Judges, and LATCHUM, District Judge. OPINION OF THE COURT PER CURIAM. Nathan and Sally Putchat filed a joint federal income tax return for 1959. The Commissioner subsequently determined that they improperly reported as long-term capital gain $75,000.00 received in complete settlement of a lawsuit by Nathan seeking to enforce his rights under a contract. Taxpayers petitioned the Tax Court for a redetermination of the deficiency. The court rejected their petition, holding that “an amount received by petitioner as consideration for the release of all his rights under an employment contract * * * constitutes ordinary income.” 52 T.C. 470 (1969). This appeal followed. We have reviewed the record made below in the light of the contentions of counsel both in their briefs and at oral argument. We are convinced that the Tax Court correctly decided the issues of fact and law and therefore affirm on its opinion. The judgment of the Tax Court will be affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
songer_initiate	G	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. OREGON MESABI CORPORATION, a Corporation, Appellant, v. C. D. JOHNSON LUMBER CORPORATION, a Corporation, Appellee. No. 11570. Circuit Court of Appeals, Ninth Circuit. Dec. 12, 1947. Laing, Gray & Smith, Henry S. Gray, and John R. Becker, all of Portland, Or., for appellant. King & Wood, Robert -S. Miller, and Edward E. Grant, all of Portland, Or., for appellee. Before DENMAN, STEPHENS, and HEALY, Circuit Judges. PER CURIAM. Tried with Case No. 11,569, 9 Cir., 166 F.2d 997, between the same parties, the complaint here is for a spur line to reach appellee’s main logging road sought to be condemned in No. 11,569. The judgment gives the same exclusive right of way. The same errors are urged here as in the first case (this day decided) and we make the same rulings thereon. The judgment is reversed. 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_usc1	26	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. COMMISSIONER OF INTERNAL REVENUE v. STEWART. No. 11154. United States Court of Appeals Sixth Circuit. Jan. 23, 1951. Virginia H. Adams, Washington, D. C. (Theron Lamar Caudle, Ellis N. Slack, and Virginia H. Adams, Washington, D. C., on the brief), for petitioner. Roy F. Andes, Detroit, Mich. (Roy F. Andes, Detroit, Mich., on the brief), for respondent. Before MARTIN, McALLISTER and MILLER, Circuit Judges. MILLER, Circuit Judge. The Commissioner of Internal Revenue seeks a review of the ruling of the Tax Court which held that a notice of deficiency was invalid for failure to comply with the statutory provisions with respect to mailing. The notice of deficiency was in the usual form; its inside address was to “Dr. Kirk Stewart, 904 Stroh Bldg., Detroit, Mich.,” the taxpayer and respondent herein; it was dated March 10, 1948; it was enclosed in an envelope addressed to the taxpayer’s counsel, Mel W. Werden, 7310 Woodward Avenue, Detroit, Michigan. It was sent by registered mail. The letter stated— “You, are advised that the determination of your income tax liability for the taxable years 1944-1945-1946 discloses a deficiency of $9,112.41, as shown in the attached statement. “In accordance with the provisions of existing Internal Revenue Laws, notice is hereby given of the deficiency mentioned.” There were attached to the letter three copies of Form 870, a “Waiver of Restrictions on Assessment and Collection of Deficiency in Tax.” The form showed income tax deficiencies for the years 1944, 1945 and 1946 in the sums of $3,661.53, $3,121.54 and $2,329.34 respectively, or a total of $9,112.41. The letter referred to the right to file a petition with the Tax Court for a redetermination of the deficiency and to the execution 'of the forms if the taxpayer did not desire to file such a petition. The letter contained no other documents or enclosures. On February 4, 1948, prior to the mailing of the deficiency notice, and in response to a 10-day letter dated January 27, 1948 and received by the taxpayer, Werden conferred with Richard F. Okie, a member of the Audit Review Board of the office of the Collector of Internal Revenue of the District of Michigan, in which conference Okie requested that Werden file a copy of his power of attorney from the petitioner. A power of attorney from the taxpayer to Werden, executed on February 6, 1948, was duly filed. A 30-day letter dated February 9, 1948, was issued by the Collector and addressed to the taxpayer. No schedules or other basis for imposing additional taxes were enclosed with that letter. On February 19, 1948, the Collector addressed a letter to the taxpayer and mailed it to Werden. The letter stated — “Attached herewith is the technical report and Forms 872 which were erroneously omitted in the 30-Day letter dated February 9, 1948.” The report and form showed the basis of the deficiency. On June 7, 1948, the taxpayer filed his petition with the Tax Court for a rede-termination of the deficiency set forth by the Commissioner in his notice of deficiency dated March 10, 1948. The petition stated — “The Notice of Deficiency (a copy of which is attached and marked Exhibit “A”) was mailed to the Petitioner on March 10, 1948 as the Petitioner believes.” It set out the alleged deficiencies for each of the taxable years in controversy and stated in what respects the Commissioner erred in determining the qlaimed deficiency. In the verification attached thereto the taxpayer stated under oath “that he has read the foregoing petition and is familiar with statements contained therein * * The Commissioner filed his answer on July 19, 1948. The taxpayer filed his reply on September 7, 1948. On April 22, 1949, the case was set for hearing on June 14, 1949 at Detroit, Michigan. On June 14, 1949, the taxpayer, acting through another attorney who had entered his appearance in the case on September 9, 1948, moved to dismiss the appeal for the reason that the Commissioner had never m.ade a determination of any deficiency in income taxes against the taxpayer as required by law, in that the said notice of deficiency wa-s not mailed to the taxpayer, but was mailed to Werden, the taxpayer’s auditor. Thereafter, the proceeding was dismissed by the Tax Court for lack of jurisdiction, which ruling is the subject of this review. Section 272(a) of the Internal Revenue Code, 26 U.S.C.A. § 272(a) provides as follows : “If in the case of any taxpayer, fhe Commissioner determines that there is a deficiency in respect of the tax imposed by this chapter, the Commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail. Within ninety days after such notice is mailed * * the taxpayer may file a petition with the Board of Tax Appeals for a redetermination of the deficiency. No assessment of a deficiency in respect of the tax imposed by this chapter and no distraint or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such ninety-day period, nor, if a petition has been filed with the Board, until the decision of the Board has become final. * * * ” The taxpayer contends that since the statute requires the notice of the deficiency assessment to be sent “to the taxpayer by registered mail,” the action of the Commissioner in sending it to the -taxpayer’s auditor and attorney, instead of to the taxpayer himself, was not a compliance with the provisions of the statute, and was therefore an invalid notice. The Tax Court ruled that since the statute limited the way in which the notice could be sent it negatived any other mode of action; that the Commissioner was required to send the notice of deficiency to the- taxpayer in strict accord with the statutory requirements; and since he did not do so, the petition must be dismissed for lack of jurisdiction. We are of the opinion that such a strict literal construction of the statute is not authorized in the present case. It is clear that the purpose of the deficiency notice is to give the taxpayer notice that the Commissioner means to assess a deficiency tax against him and to give him an opportunity to have such ruling reviewed by the Tax Court before it becomes effective. Commissioner v. New York Trust Co., 2 Cir., 54 F.2d 463, 465; Commissioner v. Forest Glen Creamery Co., 7 Cir., 98 F.2d 968, 971; Olsen v. Helvering, 2 Cir., 88 F.2d 650, 651. In addition to giving the taxpayer notice of the proposed deficiency assessment, the mailing of the deficiency notice limits the period of time thereafter to ninety days in which the taxpayer c,an have the question reviewed by the Tax Court. If the taxpayer receives notice of the proposed assessment, and during the ninety-day period thereafter files his petition for review with the Tax Court, the purposes of the Act have been accomplished. Although some courts have -said that strict compliance with the statutory notice provisions is necessary in order to validate the assessment and to give the Tax Court jurisdiction to review it, we do not think that such a view is the correct one. In Commissioner v. Forest Glen Creamery Co., supra, the Court said, 98 F.2d at page 971,. “ * * * there is no indication in the statute of an intention to require the notice to be the basis of jurisdiction of the Board in a technical sense.” As pointed out by Commissioner v. New York Trust Co., supra, 54 F.2d at page 465, it is the taxpayer who invokes the jurisdiction of the Bo,ard by filing his petition to review. This Court has previously ruled that a failure to strictly comply with the statutory notice provisions does not necessarily deprive the Tax Court gf its jurisdiction to act in the matter. Warner Collieries Co. v. United States, 6 Cir., 63 F.2d 34; Commissioner v. Nichols & Cox Lumber Co., 6 Cir., 65 F.2d 1009. See also Burnet v. San Joaquin Fruit & Investment Co., 9 Cir., 52 F.2d 123, 128. Under Section 272(d) Internal Revenue Code, the required mailing of the deficiency notice can be waived by the taxpayer without invalidating the validity of- the assessment. In the following cases it was held that defects or irregularities in giving the required statutory notice were waived by the taxpayer’s action in proceeding with a petition for review in the Tax 'Court, which thereupon acquired jurisdiction to determine the matter: Haag v. Commissioner, 7 Cir., 59 F.2d 516, 518; Commissioner v. New York Trust Co., supra, 54 F.2d at page 466. In the present case, the taxpayer received the full measure of protection guaranteed to him by Section 272(a) of the Code. Following the usual preliminary investigation and discussion of the taxpayer’s returns, the Commissioner made the tentative deficiency .assessment. Notice of the deficiency assessment was sent by registered mail to the taxpayer’s attorney, previously authorized under a power of attorney filed with the Commissioner “to represent him * * * in connection with the proposed deficiency for the calendar years 1943, 1944, 1945 and 1946, now pending before the department * * * ” and who was by the terms of the power of attorney “authorized to prosecute any * . ¡appeals or claims arising out of the aforesaid tax liability and in particular the proceedings necessary to defeat the proposed deficiency now pending before the department, and to do any and all acts in connection therewith as fully to all intents and purposes as the grantor itself might or could do.” Under the few of principal and agent, the Commissioner’s notice to the taxpayer’s attorney clothed with such authority was notice to the taxpayer himself. Keeping in mind that the final purpose of the deficiency notice is to afford the taxpayer an opportunity to appeal to the Tax Court, and that in the present case the taxpayer acting through his attorney promptly took such an appeal, we fail to see in what way the taxpayer has been prejudiced or harmed. No objection was made by the taxpayer ¡at the time of filing his petition for review of any defect or irregularities in the giving of the required notice. To hold the notice insufficient under such circumstances, would “allow the technical an undue triumph over the substantial.” Pittsburgh Terminal Coal Corp. v. Heiner, D.C.W.D.Pa., 56 F.2d 1072, 1075. See also Kohlhase v. Commissioner, 6 Cir., 181 F.2d 331. In our opinion, whatever technical defect existed in sending the notice to the taxpayer’s .attorney, duly authorized to act in the matter, instead of to the taxpayer himself, was clearly waived by the later action of the taxpayer in filing his petition for review with the Tax Court, seeking a redetermination in his favor of the deficiency asserted by the Commissioner. Warner Collieries Co. v. United States, supra, 6 Cir., 63 F.2d 34; Commissioner v. Nichols & Cox Lumber Co., supra, 6 Cir., 65 F.2d 1009; Commissioner v. New York Trust Co., supra, 2 Cir., 54 F.2d 463; Burnet v. San Joaquin Fruit & Investment Co., supra, 9 Cir., 52 F.2d 123; Haag v. Commissioner, supra, 7 Cir., 59 F.2d 516; American Auto Trimming Co. v. Lucas, 59 App.D.C. 171, 37 F.2d 801. In the present case, it is clear that the taxpayer personally either actually received the notice following its receipt by his attorney, or was completely advised by his attorney of its receipt by him and of its contents. A copy of the notice was attached to the petition filed by him in the Tax Court. He examined the petition before it was filed. In his affidavit attached to the petition, the taxpayer stated that he had read the petition and was familiar with the statements contained therein. Formal, immaterial defects in the giving of the required statutory notice have been disregarded when it appears that the notice actually reached the taxpayer. Wright v. Commissioner, 4 Cir., 101 F.2d 309; Haag v. Commissioner, supra, 7 Cir., 59 F.2d 516; Whitmer v. Lucas, 7 Cir., 53 F.2d 1006; Dilks v. Blair, 7 Cir., 23 F.2d 831. In the Whitmer case the Court said— “It is reasonable to conclude that, even though a slight error may be made in the street address, the taxpayer is not harmed if the letter is actually and promptly delivered to his proper address. The purpose of the statute has been fully accomplished when the taxpayer is notified of the deficiency or additional assessment proposed to be made by the Commissioner.” [53 F.2d 1007.] The taxpayer also contends that the deficiency notice was invalid because it contained no particulars or explanations of how the Collector arrived at the alleged deficiencies. No particular form of notice is required by Section 272(a) of the Code. We are of the opinion that the notice in the present case was sufficient where it fairly advised the taxpayer that the Commission has determined a deficiency, gave the taxpayer the amounts thereof and the years involved, and the taxpayer was fully advised, as shown by his petition filed with the Tax Court, of the reasons forming the basis for the Commissioner’s action. Commissioner v. Forest Glen Creamery Co., supra, 7 Cir., 98 F.2d 968, 971; Olsen v. Helvering, supra, 2 Cir., 88 F.2d 650, 651; Ventura Consolidated Oil Fields v. Rogan, 9 Cir., 86 F.2d 149, 153. In Olsen v. Helvering, supra, the Court said— “ * * * the notice is only to advise the person who is to p,ay the deficiency that the Commissioner means to assess him; anything that does this unequivocally is good enough.”. [88 F.2d 651.] The judgment of the Tax ‘Court is reversed and the action is remanded for further proceedings consistent with the views expressed herein. 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_decisiontype	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. CONSOLIDATED RAIL CORPORATION v. DARRONE, ADMINISTRATRIX OF THE ESTATE OF LeSTRANGE No. 82-862. Argued November 29, 1983 Decided February 28, 1984 Powell, J., delivered the opinion for a unanimous Court. Harry A. Rissetto argued the cause for petitioner. With him on the briefs were Dennis J. Morikawa and Dennis Alan Arouca. Joseph P. Lenahan argued the cause for respondent. With him on the brief were Jack Greenberg, Beth Lief, and Eric Schnapper. Assistant Attorney General Reynolds argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Lee, Deputy Solicitor General Bator, Deputy Assistant Attorneys General Cooper and Wilkinson, John H. Garvey, Brian K. Landsberg, and Joan A. Magagna Robert E. Williams, Douglas S. McDowell, and Edward E. Potter filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the American Council of the Blind et al. by Arlene Brynne Mayerson; for the American Federation of State, County and Municipal Employees et al. by Larry J. Goldberg and Marc P. Charmatz; and for Senator Alan Cranston et al. by Allen R. Snyder. Justice Powell delivered the opinion of the Court. This case requires us to clarify the scope of the private right of action to enforce § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U. S. C. §794 (1982 ed.), that prohibits discrimination against the handicapped by federal grant recipients. There is a conflict among the Circuits. I The Rehabilitation Act of 1973 establishes a comprehensive federal program aimed at improving the lot of the handicapped. Among its purposes, as originally stated, were to “promote and expand employment opportunities in the public and private sectors for handicapped individuals and to place such individuals in employment.” 29 U. S. C. §701(8). To further these purposes, Congress enacted § 504 of the Act. That section provides: “No otherwise qualified handicapped individual . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The language of the section is virtually identical to that of § 601 of Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d, that similarly bars discrimination (on the ground of race, color, or national origin) in federally assisted programs. In 1978, Congress amended the Rehabilitation Act to specify the means of enforcing its ban on discrimination. In particular, § 505(a)(2), as added, 92 Stat. 2982, 29 U. S. C. §794a(a)(2) (1982 ed.), made available the “remedies, procedures, and rights set forth in title VI of the Civil Rights Acts of 1964” to victims of discrimination in violation of § 504 of the Act. Petitioner, Consolidated Rail Corporation (Conrail), was formed pursuant to Subchapter III of the Regional Rail Reorganization Act of 1973, 87 Stat. 1004, 45 U. S. C. § 701 et seq. The Act, passed in response to the insolvency of a number of railroads in the Northeast and Midwest, established Conrail to acquire and operate the rail properties of the insolvent railroads and to integrate these properties into an efficient national rail transportation system. Under § 216 of the Act, 90 Stat. 89, as amended, 45 U. S. C. § 726 (1976 ed. and Supp. V), the United States, actingthrough the United States Railway Association, purchases debentures and series A preferred stock of the corporation “at such times and in such amounts as may be required and requested by the Corporation,” but “in accordance with the terms and conditions . . . prescribed by the Association . . . .” § 726(b)(1). The statute permits the proceeds from these sales to be devoted to maintenance of rail properties, capital needs, refinancing of indebtedness, or working capital. Ibid. Under this statutory authorization, Conrail has sold the United States $3.28 billion in securities. See App. A-15. Conrail also received federal funds under Subchapter V of the Act, now repealed, to provide for reassignment and retraining of railroad workers whose jobs were affected by the reorganization. And Conrail now receives federal funds under § 1143(a) of the Northeast Rail Service Act of 1981, 95 Stat. 662, 45 U. S. C. §797a (1976 ed., Supp. V), that provides termination allowances of up to $25,000 to workers who lose their jobs as a result of reorganization. rH I — I In 1979, Thomas LeStrange filed suit against petitioner for violation of rights conferred by §504 of the Rehabilitation Act. The complaint alleged that the Erie Lackawanna Railroad, to which Conrail is the successor in interest, had employed the plaintiff as a locomotive engineer; that an accident had required amputation of plaintiff’s left hand and forearm in 1971; and that, after LeStrange was disabled, the Erie Lackawanna Railroad, and then Conrail, had refused to employ him although it had no justification for finding him unfit to work. The District Court, following the decision of Trageser v. Libbie Rehabilitation Center, Inc., 590 F. 2d 87 (CA4 1978), cert. denied, 442 U. S. 947 (1979), granted petitioner’s motion for summary judgment on the ground that the plaintiff did not have “standing” to bring a private action under § 504. LeStrange v. Consolidated Rail Corporation, 501 F. Supp. 964 (MD Pa. 1980). In Trageser, the Fourth Circuit had held that § 505(a)(2) of the Rehabilitation Act incorporated into that Act the limitation found in § 604 of Title VI, which provides that employment discrimination is actionable only when the employer receives federal financial assistance the “primary objective” of which is “to provide employment.” The District Court concluded that the aid provided to petitioner did not satisfy the “primary objective” test. The Court of Appeals reversed and remanded to the District Court. LeStrange v. Consolidated Rail Corporation, 687 F. 2d 767 (CA3 1982). There was no opinion for the court, but all three judges of the panel agreed that the cause of action for employment discrimination under § 504 was not properly limited to situations “where a primary objective of the Federal financial assistance is to provide employment.” Judge Bloch, noting that North Haven Board of Education v. Bell, 456 U. S. 512 (1982), had construed Title IX to create a private cause of action for employment discrimination in all federally funded education programs, concluded that the language and legislative history of § 504 required the same broad construction of that section. Judge Adams, concurring in the judgment, found the result compelled by North Haven Board of Education and by the Third Circuit’s decision in Grove City College v. Bell, 687 F. 2d 684 (1982), aff’d, ante, p. 555. Judge Weis, concurring, argued that Congress had not intended the Rehabilitation Act to incorporate Title Vi’s “primary objective” limitation: that limitation was designed to temper the Government’s decision to terminate federal funds, a decision that has more drastic consequences for the funded programs than do private suits for individual relief. We granted certiorari to resolve the conflict among the Circuits and to consider other questions under the Rehabilitation Act. 459 U. S. 1199 (1983). We affirm. HH J-H I — I We are met initially by petitioner’s contention that the death of the plaintiff LeStrange has mooted the case and deprives the Court of jurisdiction for that reason. Petitioner concedes, however, that there remains a case or controversy if LeStrange’s estate may recover money that would have been owed to LeStrange. Without determining the extent to which money damages are available under § 504, we think it clear that § 504 authorizes a plaintiff who alleges intentional discrimination to bring an equitable action for backpay. The case therefore is not moot. In Guardians Assn. v. Civil Service Comm’n of New York City, 463 U. S. 582 (1983), a majority of the Court expressed the view that a private plaintiff under Title VI could recover backpay; and no Member of the Court contended that back-pay was unavailable, at least as a remedy for intentional discrimination. It is unnecessary to review here the grounds for this interpretation of Title VI. It suffices to state that we now apply this interpretation to § 505(a)(2), which, as we have noted, provides to plaintiffs under §504 the remedies set forth in Title VI. Therefore, respondent, having alleged intentional discrimination, may recover backpay in the present §504 suit. IV A The Court of Appeals rejected the argument that petitioner may be sued under § 504 only if the primary objective of the federal aid that it receives is to promote employment. Conrail relies particularly on § 604 of Title VI. This section limits the applicability of Title VI to “employment practiced] . . . where a primary objective of the Federal financial assistance is to provide employment” (emphasis added). As noted above, § 505(a)(2) of the Rehabilitation Act, as added in 1978, adopted the remedies and rights provided in Title VI. Accordingly, Conrail’s basic position in this case is that §604’s limitation was incorporated expressly into the Rehabilitation Act. The decision of the Court of Appeals therefore should be reversed, Conrail contends, as the primary objective of the federal assistance received by Conrail was not to promote employment. It is clear that § 504 itself contains no such limitation. Section 504 neither refers explicitly to § 604 nor contains analogous limiting language; rather, that section prohibits discrimination against the handicapped under “any program or activity receiving Federal financial assistance.” And it is unquestionable that the section was intended to reach employment discrimination. Indeed, enhancing employment of the handicapped was so much the focus of the 1973 legislation that Congress the next year felt it necessary to amend the statute to clarify whether § 504 was intended to prohibit other types of discrimination as well. See § 111(a), Pub. L. 93-516, 88 Stat. 1619, amending 29 U. S. C. § 706(6); S. Rep. No. 93-1297, p. 37 (1974). Thus, the language of § 504 suggests that its bar on employment discrimination should not be limited to programs that receive federal aid the primary purpose of which is to promote employment. The legislative history, executive interpretation, and purpose of the 1973 enactment all are consistent with this construction. The legislative history contains no mention of a “primary objective” limitation, although the legislators on numerous occasions adverted to §504’s prohibition against discrimination in employment by programs assisted with federal funds. See, e. g., S. Rep. No. 93-318, pp. 4, 18, 50, 70 (1973); 119 Cong. Rec. 5862 (1973) (remarks of Sen. Cran-ston); id., at 24587-24588 (remarks of Sen. Williams, Chairman of the Committee on Labor and Public Welfare). Moreover, the Department of Health, Education, and Welfare, the agency designated by the President to be responsible for coordinating enforcement of §504, see Exec. Order No. 11914, 3 CFR 117 (1977), from the outset has interpreted that section to prohibit employment discrimination by all recipients of federal financial aid, regardless of the primary objective of that aid. This Court generally has deferred to contemporaneous regulations issued by the agency responsible for implementing a congressional enactment. See, e. g., NLRB v. Bell Aerospace Co., 416 U. S. 267, 274-275 (1974). The regulations particularly merit deference in the present case: the responsible congressional Committees participated in their formulation, and both these Committees and Congress itself endorsed the regulations in their final form. Finally, application of § 504 to all programs receiving federal financial assistance fits the remedial purpose of the Rehabilitation Act to “promote and expand employment opportunities” for the handicapped. 29 U. S. C. §701(8). B Nor did Congress intend to enact the “primary objective” requirement of §604 into the Rehabilitation Act when it amended that Act in 1978. The amendments, as we have noted, make “available” the remedies, procedures, and rights of Title VI for suits under § 504 against “any recipient of Federal assistance.” § 505(a)(2), 29 U. S. C. §794a(a)(2) (1982 ed.). These terms do not incorporate § 604’s “primary objective” limitation. Rather, the legislative history reveals that this section was intended to codify the regulations of the Department of Health, Education, and Welfare governing enforcement of §504, see S. Rep. No. 95-890, p. 19 (1978), that prohibited employment discrimination regardless of the purpose of federal financial assistance. And it would be anomalous to conclude that the section, “designed to enhance the ability of handicapped individuals to assure compliance with [§ 504],” id,., at 18, silently adopted a drastic limitation on the handicapped individual’s right to sue federal grant recipients for employment discrimination. V Section 504, by its terms, prohibits discrimination only by a “program or activity receiving Federal financial assistance.” This Court on two occasions has considered the meaning of the terms “program or activity” as used in Title IX. Grove City College v. Bell, ante, p. 555; North Haven Board of Education v. Bell, 456 U. S. 512, 535-540 (1982). Clearly, this language limits the ban on discrimination to the specific program that receives federal funds. Neither opinion, however, provides particular guidance as to the appropriate treatment of the programs before us. Grove City College considered grants of financial aid to students. The Court specifically declined to analogize these grants to nonearmarked direct grants and, indeed, characterized them as “sui generis.” Ante, at 573. North Haven Board of Education did not undertake to define the term “program” at all, finding that, in the procedural posture of that case, that task should be left to the District Court in the first instance. 456 U. S., at 540. The procedural posture of the case before us is the same as that of North Haven Board of Education. The District Court granted a motion for summary judgment on grounds unrelated to the issue of “program specificity.” That judgment was reversed by the Court of Appeals and the case was remanded for further proceedings. Thus, neither the District Court nor the Court of Appeals below considered the question whether respondent’s decedent had sought and been denied employment in a “program . . . receiving Federal financial assistance.” Nor did the District Court develop the record or make the factual findings that would be required to define the relevant “program.” We therefore do not consider whether federal financial assistance was received by the “program or activity” that discriminated against LeStrange. HH > We conclude that respondent may recover backpay due to her decedent under § 504 and that this suit for employment discrimination may be maintained even if petitioner receives no federal aid the primary purpose of which is to promote employment. The judgment of the Court of Appeals is therefore affirmed. It is so ordered. Section 505(a)(2), as set forth in 29 U. S. C. § 794a(a)(2) (1982 ed.), provides in full: “The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title.” Section 505(a)(1) generally makes available the remedies of Title VII of the Civil Rights Act to persons aggrieved by violation of § 501 of the Rehabilitation Act, which governs the Federal Government’s employment of the handicapped. Respondent, the administratrix of LeStrange’s estate, was substituted as a party before this Court upon the death of LeStrange. The District Court also dismissed constitutional claims raised by LeStrange. Under the analysis of Trageser, a private plaintiff also may have “standing” to sue for employment discrimination if he can show “that discrimination in employment necessarily causes discrimination against” the intended beneficiaries of the federal aid, even where that aid itself was not intended to further employment. App. to Pet. for Cert. 33. The District Court found as well that this prong of the Trageser test was not satisfied here. The Court of Appeals for the Third Circuit had held in Grove City College that an entire educational institution is subject to the antidiscrimination provisions of Title IX of the Education Amendments of 1972 if any department of the institution receives federal aid. Three other Courts of Appeals have agreed substantially with the Fourth Circuit decision in Trageser. See Scanlon v. Atascadero State Hospital, 677 F. 2d 1271 (CA9 1982); United States v. Cabrini Medical Center, 639 F. 2d 908 (CA2 1981); Carmi v. Metropolitan St. Louis Sewer District, 620 F. 2d 672 (CA8), cert. denied, 449 U. S. 892 (1980). In addition, Conrail argued below, and again in its opening brief, that § 504 does not create a private right of action for employment discrimination. This argument was abandoned at page 3 of Conrail’s reply brief. See also Tr. of Oral Arg. 13. In view of this concession it is unnecessary to address the question here beyond noting that the courts below relied on Cannon v. University of Chicago, 441 U. S. 677 (1979), in holding that such a private right exists under § 504. Petitioner also concedes that respondent, as representative of Le-Strange’s estate, may assert any right to monetary relief under § 504 that was possessed by LeStrange. A majority of the Court agreed that retroactive relief is available to private plaintiffs for all discrimination, whether intentional or unintentional, that is actionable under Title VI. Justice Marshall, and Justice Stevens, joined by Justices Brennan and Blackmun, argued that both prospective and retroactive relief were fully available to Title VI plaintiffs. 463 U. S., at 624-634, 635-639. Justice O’Connor agreed that both prospective and retroactive equitable relief were available, while reserving judgment on the question whether there is a private cause of action for damages relief under Title VI. Id., at 612, n. 1. Justice White, joined by Justice Rehnquist, while contending that only relief ordering future compliance with legal obligations was available in other private actions under Title VI, put aside the situation of the private plaintiff who alleged intentional discrimination. Id., at 597. The Chief Justice and Justice Powell did not reach the question, as they would have held that petitioners in that case had no private right of action and'had not made the showing of intentional discrimination required to establish a violation of Title VI. Id., at 608-611. Although the legislative history of the 1978 amendments does not explicitly indicate that Congress intended to preserve the full measure of courts’ equitable power to award backpay, the few references to the question are consistent with our holding. Congress clearly intended to make backpay available to victims of discrimination by the Federal Government, see S. Rep. No. 95-890, p. 19 (1978); and statements made in relation to subsequent legislation by the Senate Committee on Labor and Human Resources, the Committee responsible for the 1978 amendments, endorse the availability of backpay. S. Rep. No. 96-316, pp. 12-13 (1979). Section 604 provides in full: “Nothing contained in this title shall be construed to authorize action under this title by any department or agency with respect to any employment practice of any employer, employment agency, or labor organization except where a primary objective of the Federal financial assistance is to provide employment.” 78 Stat. 253, 42 U. S. C. § 2000d-3. Congress recognized that vocational rehabilitation of the handicapped would be futile if those who were rehabilitated could not obtain jobs because of discrimination. Employment discrimination thus would have “a profound effect on the provision of relevant and effective [rehabilitation] services.” 119 Cong. Rec. 5862 (1973) (remarks of Sen. Cranston). See, e. g., S. Rep. No. 93-318, p. 4 (1973); 119 Cong. Rec. 24587 (1973) (remarks of Sen. Taft); id., at 24588 (remarks of Sen. Williams). Several other sections of Title V of the Rehabilitation Act also were aimed at discrimination in employment: § 501 and § 503 require all federal employers and federal contractors to adopt affirmative-action programs for the handicapped. We note further that the Court in an analogous statutory context rejected the contention that the terms used in § 504 implicitly contain a “primary objective” limitation. Section 901 of Title IX, like § 504, borrowed the language of § 601 of Title VI. North Haven Board of Education v. Bell, 456 U. S. 512 (1982), found, however, that Title IX’s prohibition of employment discrimination did not incorporate § 604’s “primary objective” requirement. The Court stated that, had Congress wished so to limit Title IX, it would have enacted in that Title counterparts to both § 601 and §604. Id., at 530. Petitioner suggests that North Haven is inapplicable to the construction of § 504 because the Congress considered but rejected a provision explicitly incorporating the language of § 604 of Title VI into Title IX. And other aspects of the legislative history also supported the Court’s interpretation of §901, see id,., at 523-529. In contrast, Congress did not advert to a “primary objective” limitation when drafting § 504. Clearly, petitioner’s observations do not touch on that aspect of North Haven — its analysis of the language of §601 — that is relevant to the present case. But even without the analysis of North Haven, petitioner’s interpretation of § 504’s language is unfounded. For language as broad as that of § 504 cannot be read in isolation from its history and purposes. See, e. g., Chapman v. Houston Welfare Rights Org., 441 U. S. 600, 608 (1979); Philbrook v. Glodgett, 421 U. S. 707, 713 (1975). In these respects, § 504 differs from Title VI in ways that suggest that § 504 cannot sensibly be interpreted to ban employment discrimination only in programs that receive federal aid the “primary objective” of which is to promote employment. The “primary objective” limitation of Title VI gave the anti-discrimination provision of that Title a scope that well fits its underlying purposes — to ensure that “funds of the United States are not used to support racial discrimination” but “are spent in accordance with the Constitution and the moral sense of the Nation.” 110 Cong. Rec. 6544 (1964) (remarks of Sen. Humphrey). As the Court of Appeals observed, it was unnecessary to extend Title VI more generally to ban employment discrimination, as Title VII comprehensively regulates such discrimination. In contrast, the primary goal of the Act is to increase employment of the handicapped, see supra, at 632, and n. 12. However, Congress chose to ban employment discrimination against the handicapped, not by all employers, but only by the Federal Government and recipients of federal contracts and grants. As to the latter, Congress apparently determined that it would require contractors and grantees to bear the costs of providing employment for the handicapped as a quid pro quo for the receipt of federal funds. Cf. 118 Cong. Rec. 32305 (1972) (remarks of Sen. Javits). But this decision to limit § 504 to the recipients of federal aid does not require us to limit that section still further, as petitioner urges. See 39 Fed. Reg. 18562, 18582 (1974) (revising pre-existing provisions to implement § 504); 41 Fed. Reg. 29548, 29552, 29563 (1976) (proposed Department regulations), promulgated, 42 Fed. Reg. 22678 (§84.2), 22680 (§84.11), 22688 (“Employment Practices”) (1977); 43 Fed. Reg. 2132, 2138 (1978) (final coordinating regulations). The Department of Justice, now responsible for coordinating agency implementation of § 504, see Exec. Order No. 12250, 3 CFR 298 (1981), adopted the HEW guidelines, 46 Fed. Reg. 40686 (1981). The Department of Transportation, from which Conrail receives federal aid, also has construed § 504 to prohibit employment discrimination in all programs receiving federal financial assistance. 44 Fed. Reg. 31442, 31468 (1979), codified at 49 CFR pt. 27 (1983). See § 27.31. See S. Rep. No. 93-1297, p. 25 (1974). In adopting § 505(a)(2) in the amendments of 1978, Congress incorporated the substance of the Department’s regulations into the statute. See n. 16, infra. The Committee noted: “[T]he regulations promulgated by the Department of Health, Education, and Welfare with respect to procedures, remedies, and rights under § 504 conform with those promulgated under title VI. Thus, this amendment codifies existing practice as a specific statutory requirement.” S. Rep. No. 95-890, p. 19 (1978). Although these Department regulations incorporated Title VI regulations governing “complaint and enforcement procedures,” see 42 Fed. Reg. 22685, 22694-22701 (1977), the regulations implementing §504 did not incorporate §80.3 of the Title VI regulations, which limit Title VPs application to employment discrimination in federal programs to increase employment. The §504 regulations banned employment discrimination in programs receiving any form of federal financial assistance. See n. 14, supra. The Court held that the Court of Appeals in that case had erroneously suggested that HEW regulations issued under Title XI to govern employment discrimination need not be program specific. See 456 U. S., at 536. Although Judge Adams cited the Third Circuit opinion in Grove City College, he did so merely to support his rejection of the Trageser “standing” analysis. See supra, at 629. Conrail does not contest that it receives federal financial assistance within the meaning of § 504. Apparently, the Government’s payments to Conrail exceed the fair market value of the securities issued by Conrail to the Government. Tr. of Oral Arg. 18. Question: What type of decision did the court make? A. opinion of the court (orally argued) B. per curiam (no oral argument) C. decrees D. equally divided vote E. per curiam (orally argued) F. judgment of the Court (orally argued) G. seriatim Answer:
songer_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. Donn C. SHANNON, on behalf of himself and all others similarly situated, Plaintiff-Appellee, v. UNITED STATES CIVIL SERVICE COMMISSION; Robert E. Hampton; Jayne B. Spain; and L. J. Andolsek, as Commissioners of Civil Service, Defendants-Appellants. No. 78-1933. United States Court of Appeals, Ninth Circuit. June 25, 1980. William G. Ranter, Alice Daniel, Washington, D. C., G. William Hunter, San Francisco, Cal., on brief; Linda M. Cole (on brief), Dept, of Justice, Washington, D. C., for defendants-appellants. Gill Deford, National Senior Citizens Law Center, Los Angeles, Cal., on brief, for plaintiff-appellee. Before ANDERSON and TANG, Circuit Judges, and MURRAY, Senior District Judge. The Honorable W. D. Murray, Senior United States District Judge for the District of Montana, sitting by designation. PER CURIAM: Shannon, plaintiff-appellee, challenged the constitutionality of procedures by which the defendant-appellant, the United States Civil Service Commission recovered erroneous payments through offset against annuity payments to recipients. The district court, in _ Shannon v. United States Civil Service Commission, 444 F.Supp. 354 (N.D.Cal.1977), granted a permanent injunction enjoining defendants from recouping overpayments from Civil Service annuitants without a prior hearing in two types of cases. First, where the recipient requests reconsideration and such a request raises significant questions of credibility and veracity. Second, where the recipient requests that the defendants waive their right to recoupment, pursuant to 5 U.S.C. § 8346(b). The district court found a constitutional right to hearings in both types of cases, and did not consider whether there was any statutory basis for such hearings. In Califano v. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979), the Supreme Court dealt with the question of entitlement to prerecoupment hearings under 42 U.S.C. § 404 of the Social Security Act, a statutory scheme very much like that under the Civil Service Retirement Act, 5 U.S.C. §§ 8331-8348, with regard to recoupment of overpayments. That decision controls the disposition of this appeal. The court in Yamasaki held that neither the statute, 42 U.S.C. § 404(a), nor due process requires prior oral hearings in reconsideration cases, for they involve “relatively straightforward matters of computation for which written review is ordinarily an adequate means to correct prior mistakes.” 442 U.S. at 696, 99 S.Ct. at 2555. The same is true in reconsideration cases under the Civil Service Retirement Act. We therefore reverse that portion of the district court’s decision requiring hearings in reconsideration cases. With regard to waiver cases under 5 U.S.C. § 8346(b), we hold that the statute itself requires that an oral hearing be held prior to the commencement of recoupment procedures. The Supreme Court in Califano v. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979), so held on the basis of the language of 42 U.S.C. § 404(b), which is virtually identical to 5 U.S.C. § 8346(b). It is a fundamental principle that a court, presented with both statutory and constitutional grounds to support the relief requested, usually should pass on the statutory claim before considering the constitutional question. New York City Transit Authority v. Beazer, 440 U.S. 568, 582-583, and n. 22, 99 S.Ct. 1355, 1363-1364, and n. 22 (1979), cited in Califano v. Yamasaki, supra, 442 U.S. at 692, 99 S.Ct. at 2553. Thus, while we affirm the district court’s decision requiring prerecoupment hearings when waiver of the claimed indebtedness is requested under 5 U.S.C. § 8346(b), we base our holding squarely on the statute itself and need not consider whether the Constitution requires such hearings. The judgment of the district court is affirmed in part and reversed in part. 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_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. UNITED STATES of America, Plaintiff-Appellant, v. Hiroyasu TAKAI; Akiko Magneson, Defendants-Appellees. No. 90-10157. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 14, 1991. Decided April 19, 1991. As Amended July 29, 1991. Rory K. Little, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellant. Garrick S. Lew, Minami, Lew, Tamaki & Lee, San Francisco, Cal., for defendant-appellee Magneson. Arlene West, West, Molesky & Brown, Oakland, Cal., for defendant-appellee Ta-kai. Before TANG, BOOCHEVER and NOONAN, Circuit Judges. NOONAN, Circuit Judge: Hiroyasu Takai and Akiko Magneson pled guilty to the crimes of bribing an official of the Immigration and Naturalization Service in violation of 18 U.S.C. § 201(b)(1)(C) and of conspiring to bribe that official in violation of 18 U.S.C. § 371. They were sentenced to four months in home detention under an electronic program, to probation, and to fines of $15,000 apiece. The United States appeals the sentence. We affirm. FACTS Akiko Magneson was born in 1947 in Yokohama, Japan. In 1971 she married Ronald Magneson. The Magnesons lived in Australia for 5 years and for 3 years in Venezuela. In 1979 they settled in Los Gatos, California. They have a daughter aged 14. In 1985 Magneson started her own business, Akai’s Gems. She operates the business from her home and makes approximately $5,000 a year. She has also done research into the importation of clothes from Bangkok. Her husband works as a broker for a computer chip brokerage company. Hiroyasu Takai was born in 1956 in Kashiwara-Cho, Japan. He is a graduate of Saint Andrew’s University, Osaka. In 1978 he settled in San Jose, California where he developed a private language school in 1981 and an aviation school in 1988. He married Matsumi Matsumura on February 24, 1989. In late February 1989 Magneson met James Goldman, an investigative agent of the Immigration and Naturalization Service, on a plane from Tokyo to San Francisco. They struck up a friendly relationship. Three weeks later Magneson called Goldman at his INS office in Washington and engaged in general conversation. A few days later, on April 5, 1989, Magneson again called Goldman at his office. Magne-son brought up the need of a friend of hers, Hiroyasu Takai, to obtain a green card for his new wife who was a Japanese national. Goldman recorded the conversation. In the course of this conversation and several other conversations recorded between April 5 and April 12,1989, Magneson agreed to pay Goldman $15,000 to obtain green cards for three or four persons. These persons included Takai’s wife; another friend of Magneson who was about to divorce her husband and on doing so would need a green card; and two students who were employees of Takai’s pilot training school. In the course of these negotiations Goldman also spoke by telephone with Takai, who at first agreed to the plan as far as his wife was concerned, but on April 12 told Goldman that he was “going to back out.” Takai did so after consulting his lawyer who told him that the plan was illegal. Despite this advice Takai loaned $1,500 to one of his students for his part of the bribe and passed on the bribe money from both students to Magneson. She delivered half of the bribe, $7,500 in cash, to Goldman at the Red Lion Hotel in San Jose and was immediately arrested. PROCEEDINGS Takai and Magneson pleaded guilty to the charges of bribery and conspiracy to bribe. They accepted responsibility for their actions and expressed sorrow and shame. The base offense level for offering a bribe is ten, Sentencing Guidelines (U.S.S.G.) § 201.1(a). As the bribe was determined by the court to be $15,000, there was an increase of three to thirteen. Id. at § 201.1(b)(2)(A). The offense level was then adjusted down two levels because of their acceptance of responsibility. Id. at § 3El.l(a). The defendants had no prior criminal conviction, so their criminal history score was zero. With an offense level of eleven the Sentencing Guidelines range was eight to fourteen months imprisonment. Id. at Gh. 5, Pt. A (sentencing table). As the range was above six months the Guidelines provided that half the minimum term should be imprisonment. Id. § 501.1(d). Each defendant had a different probation officer, neither of whom recommended departure in a way that would avoid imprisonment. The defendants presented evidence in mitigation to induce the district court to depart downwards. After hearing the evidence and argument the district court stated that it was departing downwards by one point, so that imprisonment was not required. The defendants were sentenced to four months in home detention under the electronic monitoring program, were each sentenced to fines of $15,000, and were placed on probation for five years under the usual conditions. On March 8, 1990 the district court entered an order “to explain the factors influencing its decision to depart downward.” The court stated: “The defendants in this case did not seek or receive any pecuniary gain. The government has offered no evidence of any other benefit received. They were primarily motivated by a misguided desire to help three members of their immigrant community obtain green cards.” The court continued: “The seriousness of defendants’ participation is mitigated by the conduct of the government agent. While there was no allegation of entrapment, there was evidence at the sentencing hearing that Agent Goldman’s conduct influenced defendants’ decisions to continue playing a pivotal role.... The pattern of government conduct, the defendants’ attempt to play a more limited role, and the absence of pecuniary gain by defendants create mitigating circumstances in a highly unusual bribery case.” After determining that the amount of the bribe was $15,000 for purposes of computing the sentence, the court went on to say that it had “considered other mitigating factors,” and added: “There are at least two well-publicized instances where Mr. Ta-kai has gone to great personal expense to assist victims of crime or earthquake.... A downward departure is justified because defendants’ conduct constitutes ‘single acts of aberrant behavior.’ ” The government appealed, contending that the downward departure from the Guidelines was unjustified. ANALYSIS The Government’s Case. The government argues broadly that the Sentencing Guidelines mandate a brief term of imprisonment for serious first offenses and notes that the Sentencing Commission had observed that, under the preceding sentencing practice, courts sentenced to probation “an inappropriately high percentage of offenders guilty of certain economic crimes ...” U.S.S.G. Ch. 1, Pt. A, 4(d). The Commission then said specifically as to bribery that “current sentencing practices do not adequately reflect the seriousness of public corruption offenses.” Id. at Ch. 2, Pt. C, intro, comment. The government goes on to argue that the district court’s grounds did not constitute a “circumstance of a kind, or to degree, not adequately taken into consideration by the Sentencing Commission” as required by 18 U.S.C. § 8553(b). In particular, the government argues that the defendants gained “prestige within their immigrant community” and “operate[d] businesses in that community, which were also likely to benefit, directly or indirectly” from the bribes. The government further argues that if the undercover conduct in this case is endorsed as a ground for departure, “it will be a ground for departure in virtually every undercover case” (italics in original). The government treats Takai’s charitable expenditures as simply reflecting “community ties” and “socioeconomic status” that cannot be considered in departure decisions. U.S.S.G. 5H1.6 and 1.10. Finally, the government characterizes “single acts of aberrant behavior” as “so vague that if endorsed by this court here, it will become the departure reason that swallows every white-collar first-offense case.” The Guidelines’ Treatment of Departures. The Commission begins with the statutory basis for departure as “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission.” 18 U.S.C. § 3553(b). The Commission goes on to say that it “intends the sentencing courts to treat each guideline as carving out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.” U.S.S.G. Ch. 1, Pt. A, 4(b). Race, sex, national origin, creed, religion, socioeconomic status, and the defendant’s physical condition are factors that a court cannot take into account. “With those specific exceptions, however, the Commission does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the Guidelines, that could constitute grounds for departure in an unusual case.” Id. The reasons that the Commission has adopted this policy are two and are in tension with each other: “[I]t is difficult to prescribe a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision,” and the Commission believes that courts will not have reason to depart “very often.” Id. As sponsors of the Guidelines, the Commissioners are reluctant to believe that they have not anticipated most patterns of behavior. As students of human nature, the Commissioners recognize that the range of human conduct is very large. The Standard of Review. We determine de novo whether the district court identified the mitigating circumstance and review under a clearly erroneous standard whether this circumstance actually existed. We review de novo whether the circumstance was adequately considered by the Sentencing Commission. We review for an abuse of discretion whether the circumstance should result in departure and whether the extent of departure was unreasonable. United States v. Todd, 909 F.2d 395 (9th Cir.1990); United States v. Montenegro-Rojo, 908 F.2d 425 (9th Cir.1990). The Identified Circumstance and Its Existence. The district court’s order of March 8, 1990 clearly identified what led it to depart downward. A factual predicate exists for the particular factors listed by the court&emdash;that is, although the transcripts of the typed conversations are susceptible of different readings, as a reviewing court we cannot say the district court was clearly erroneous in finding that the defendants did not seek pecuniary gain; in finding that the government agent’s conduct influenced defendants in the direction of not withdrawing from the plan; and in finding that Takai had gone to great personal expense to assist crime and earthquake victims. On the basis of this constellation of factors the district court reached its clear conclusion: a downward departure is justified because defendants’ conduct constitutes “single acts of aberrant behavior.” We have already determined that there is an “aberrant behavior spectrum” in terms of which aberrant behavior is to be determined. United States v. Dickey, 924 F.2d 836, 839 (9th Cir.1991). The government’s contention in effect denies the existence of a spectrum and treats “aberrant behavior” in the narrowest fashion possible. Following our precedent, however, we must determine first, whether the district court correctly identified circumstances which fall within the portion of the spectrum constituting single aberrant acts. As to whether Takai and Magne-son’s actions could be characterized as “single acts of aberrant behavior,” if one lays stress on the phrase “single act” it appears that each fails the test because each obviously performed a whole series of actions leading up to the final action of delivering the cash to Goldman. On the other hand, it is fair to read “single act” to refer to the particular action that is criminal, even though a whole series of acts lead up to the commission of the crime. In this case there are two crimes — the forming of the conspiracy and the offer of the money. The conspiracy and the offer are so closely related that for the purposes of deciding whether they were aberrant they constitute a single act. The government argues that any first offender could make the argument made by the defendants, because anyone who has never been caught before can claim that his first criminal slip was aberrational. We agree with the government that absence of prior convictions is not enough to show that the act in question was single and aberrant. See United States v. Carey, 895 F.2d 318, 324-25 (7th Cir.1990). But there is more than absence of prior convictions here. Takai actually consulted a lawyer and withdrew from the scheme so far as he would get any personal benefit. His continued involvement by loaning part of the bribe money and transmitting the cash collected was irrational: he knew the act was illegal so he should not continue for his own benefit, yet somehow he convinced himself that his continued limited involvement was not criminal. This self-contradictory position makes no sense and is rightly viewed as an aberration. Magneson was a 42-year-old housewife with a very small business, scarcely more than a hobby, involving the purchase of opals. Nothing in her background or experience indicates that she was in touch with the kind of smugglers of human beings who might trade in green cards. Everything points to the conclusion of the district court that she stumbled into something, awkwardly, naively, and with insufficient reflection on the seriousness of the crime she was proposing. For eight days she embarked on a covert course that was deeply injurious to good government and subversive of the law of this country. Her action was aberrant. The Consideration of the Circumstance by the Commission. The Commission itself treats aberrant behavior as something it has not considered. See U.S.S.G. Ch. 1, Pt. A, Intro. (4)(d). The Discretionary Departure. We look to the totality of circumstances in determining whether there were single acts of aberrant behavior by the defendants that justify a departure. We conclude that the district court did not abuse its discretion in reaching the conclusion that such single aberrant acts were grounds for departure and that a departure downwards of one point is reasonable. In the case of the crime of transportation for the purposes of prostitution or prohibited sexual conduct, 8 U.S.C. § 1328 and 18 U.S.C. §§ 2421, 2422, the Guidelines provide that where the defendant did not commit the offense for profit and the offense did not involve coercion, there should be a downward departure of eight. U.S.S.G. 2G1.1, comment, (n.l). The Commission’s introductory section on “Departures” expressly cites this instance as the Commission discusses departure by analogy. Id. at Ch. 1, Pt. A, 4(b). Historically, an analogy has often been made between bribery and prostitution—the use of money to compromise what should be integrity is common to both cases, see Noonan on Bribes xviii (1984). It is accordingly appropriate to find an analogy here with the federal statutes involving prostitution and conclude that the fact the bribe was not for profit may be considered in determining whether the behavior was aberrant. Goldman’s conduct did not constitute entrapment in a legal sense, nor was it of a character that could be labeled outrageous and so offered as a legal defense. Nonetheless, as the district court found, Goldman’s conduct influenced Magneson and Takai to continue on their criminal course. “Imperfect entrapment”—i.e., a government informant talking a defendant into a crime the defendant is disposed to commit—is not a mitigating factor. United States v. Dickey, 924 F.2d 836 (9th Cir.1991). The present case is different in two aspects: the person who solicited the acts was a government official whom the defendants had every reason to believe was aware of the law; he was not an undercover agent or other informant whose government status was not visible to the defendants. And the defendants themselves were “not professional criminals.” The conduct of the government official must be assessed not abstractly in the air but in conjunction with the persons on whom the conduct has an impact. Goldman adopted toward two persons hitherto innocent of any criminal activity or known criminal association or propensities what the government calls “his investigative mode,” making no distinction between these two persons who by happenstance had seen a sudden opportunity to acquire green cards illegally and persons engaged in organized crime as a matter of routine. The justification for lying by a government agent to the latter kind of person may be that such a person has, in effect, declared war on society and the rules of warfare, permitting deception, apply. This case is not the usual undercover case. Magneson and Takai were not at war with society. To lie to them, to deceive them, to conceal from them that their conversations were being taped and to fail to discourage them from their proposed crime were actions with an impact upon their conduct that are properly considered in determining whether the action of each was aberrant. Cf. United States v. Chen, 754 F.2d 817, 825-26 (9th Cir.1985) (Tang, J., concurring). As for Takai’s acts of benevolence, they are not a necessary consequence of socio-economic status or community ties. Cf. United States v. Lopez, 938 F.2d 1293 (D.C.Cir.1991). The government conceded at oral argument that if Mother Teresa were accused of illegally attempting to buy a green card for one of her sisters, it would be proper for a court to consider her saintly deeds in mitigation of her sentence. A gangster, on the other hand, should not be able to get credit for his or her calculated charities. Where a defendant has a blameless record, his or her outstanding generosity should be able to be taken into account. With the principle established, it is only a matter of degree, and it seems entirely appropriate for outstanding good deeds by Takai to be considered as a relevant factor in determining whether his criminal conduct was a single aberrant act. Conclusion. The factors specifically found by the district court converge so that the district court did not abuse its discretion in finding that Takai and Magneson’s conduct constituted “single acts of aberrant behavior,” justifying the court in departing downward by one point, so that imprisonment was not imposed upon the defendants. The sentence actually imposed was salutary and sharp involving substantial fines, a period of confinement at home and a substantial period of probation—a sentence based on reason as required by 18 U.S.C. § 3553(c). 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_geniss	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". LEONARD v. HUDSPETH, Warden. No. 2060. Circuit Court of Appeals, Tenth Circuit. May 16, 1940. Albert E. Zarlengo, of Denver, Colo., for appellant. Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee. Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges. HUXMAN, Circuit Judge. Harry S. Leonard, herein called the petitioner, together with Joseph D. Horton, Grady F. Hester, alias Brady Hester, and Jack Hilton; were charged by indictment No. 20634 in three counts returned in the District Court of the United States for the Eastern Division of the Eastern Judicial District of Missouri, with violating the currency and coinage laws of the United States, 18 U.S.C.A. §§ 262, 265; 18 U.S. C.A. § 88. Count 1 charged the defendants with forging and counterfeiting sixteen five dollar denomination United States treasury notes with intent to defraud. Count 2 charged the defendants with having in their possession certain falsely made, forged and counterfeit obligations of the United States with intent to defraud; and count 3 charged them with conspiring, combining, confederating and agreeing among themselves and with each other to commit offenses against the United States; that is, to violate the coinage and currency laws of the United States by forging, counterfeiting and possessing falsely forged and counterfeited obligations and securities of the United States. Petitioner was also charged in a separate indictment, No. 20633, in the same court, with passing, uttering, publishing and selling to one Jack Hilton sixteen forged and counterfeited five dollar United States treasury notes. On June 27, 1938, petitioner pleaded guilty to all of the counts in indictment No. 20634 and also to the charge in indictment No. 20633. He was sentenced to a term of ten years’ imprisonment on each of the three counts in indictment No. 20634 and to pay a fine of $1,000. In case No. 20633 petitioner was sentenced to a term of ten years, and to pay a fine of $1,000. The sentences on all counts of both indictments were made to run concurrently. Petitioner is being detained by the. respondent under a commitment issued upon the sentences. Petitioner filed his petition for writ of habeas corpus based upon the alleged grounds: First, that indictment No. 20633 is void because it charged petitioner with passing counterfeit notes to Jack Hilton, who is shown in the separate indictment to have already been in possession of the notes; second, that count 1 of indictment No. 20634 is void, because it charged the manufacture of certain specified counterfeit notes which were obviously produced with the aid of photographic negatives, elsewhere shown in the indictment to have been manufactured five days after the notes were made; third, that count 2 of indictment No. 20634 is void because it charged possession of certain specified counterfeit notes which could not have been in existence on a date prior to the manufacture of photographic negatives for their production; fourth, that count .3 of indictment No. 20634 contained errors, indicating that it was intended to be a repetition of the charge contained in indictment No. 20633; and fifth, petitioner contends that all the sentences imposed were void because he was denied his constitu-ticmal right of being represented by counsel. The scope of inquiry in a habeas corpus proceeding is limited. It may not be used as a substitute for an appeal to correct errors occurring at the time of trial. It concerns itself solely with jurisdiction of the subject matter, or of the person of the defendant, or with the preservation of constitutional guarantees to those accused of crime. Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455; Reger v. Hudspeth, 10 Cir., 103 F.2d 825; Buckner v. Hudspeth, 10 Cir., 105 F.2d 396. None of the assaults upon the various counts of the information go to the jurisdiction of the court over the subject matter, or of the person, nor do they concern themselves with any constitutional guarantee afforded accused by the constitution of the United States. They all pertain to alleged defects in the indictments, evidentiary in character, and concern themselves with tlie proof required to establish the offenses charged in the different counts. Lack of evidence to sustain a charge, errors occurring at the trial, defects in the information, and all other matters falling short of an attack on the court’s jurisdiction may not be challenged by habeas corpus proceedings. All such matters must be raised by appeal. Schultz v. Zerbst, 10 Cir., 73 F.2d 668; Moore v. Aderhold, 10 Cir., 108 F.2d 729; Garrison v. Hudspeth, 10 Cir., 108 F.2d 733. The fifth assignment of error charges that the sentences imposed were void because petitioner was denied his con. stitutional right of being represented by counsel. It has been held, without exception, that an accused may waive his constitutional right to be represented by counsel providing it is done voluntarily, intelligently and uuderstaiidingly, and the burden is upon him who seeks release from incarceration on this ground to establish that his constitutional right in this respect was invaded. Zahn v. Hudspeth, 10 Cir., 102 F.2d 759; Buckner v. Hudspeth, supra; Sedorko v. Hudspeth, 10 Cir., 109 F.2d 475. The trial court found that at the time petitioner entered his plea of guilty, he was informed of the charges contained in the indictments by Herbert II. Freer, Assistant United States Attorney, and that petitioner freely, voluntarily and iutelli-gently waived his right to assistance of counsel in both cases. Petitioner introduced at the trial below his affidavit in which he stated, in substance, that he signed a confession of guilt and entered a plea of guilty before the United States Commissioner in Kansas City, Missouri, on June 14, 1938; that he did this chiefly because of implied threats of violence; that he presented to Mr. Carl Dickson, a member of the United States Secret Service Department, all the facts in his possession concerning the crime; that he was informed by Mr. Dickson that he would not be permitted at government expense to consult an attorney, since his signed confession constituted a legal waiver of such rights; that he was informed that since he had already entered a plea of guilty to the United States Commissioner he would not be permitted by the trial court to change such plea; that he did not doubt Mr. Dickson’s statements; that he requested that he be permitted an interview with the prosecuting attorney in order that he might attempt to make some arrangement by which his side of the story could be brought to the attention of the trial court; that Mr. Dickson promised the interview; but petitioner doubts if he ever made any effort to secure one; that petitioner’s recollection as to what took place at the trial is hazy due to the fact that he was badly frightened; that the prosecuting attorney did not make any explanation concerning indictments or anything else; that the trial judge asked to view the evidence, but that Mr. Dickson could not be found to present the evidence; that the judge asked petitioner if he had anything to say before judgment should be passed upon him, but that his thoughts were very much confused at this point; that he made no statement at the time for the simple reason that he did not know what to say under the circumstances, and that he did not protest his innocence after sentence had been pronounced because he had no funds with which to employ an attorney and had already been told that he could not consult an attorney at government expense. Respondent introduced the affidavit of the Assistant United States Attorney, Herbert H. Freer, in which he stated that petitioner had, as he was informed, expressed a desire to enter a plea of'guilty; that he was thereupon brought into court and was asked to stand before the bar; that he informed petitioner of the charges with which he then stood charged as set forth in each of the indictments and each count thereof; that petitioner made no request for the appointment of counsel, but upon being fully advised as to the nature of the charges and being asked how he desired to plead, stated in open court that it was his desire to enter a plea of guilty to each of the counts in the indictment; that thereupon he, the Assistant United States District Attorney, made an oral statement to the court of all the facts and details in connection with the commission of the offenses as set forth in the indictments; that at the conclusion thereof the court asked petitioner whether he desired to make any statement or offer any reason why sentence should not be pronounced upon him; that petitioner made no statement, whereupon sentence was pronounced; that at no time did petitioner make any request of suggest that he wanted counsel to represent him. Respondent also introduced the affidavit of Carl Dickson, United States Agent, in which affiant stated that he was not in the court room at the time petitioner pleaded guilty; that he did talk to petitioner thereafter; that petitioner made no complaint whatever with reference to not having had the opportunity of consulting an attorney.' Dickson in his affidavit denied telling petitioner that he had no right to counsel at government expense and that he would have advised him that he had such a right, had he been asked. A careful perusal of the record establishes that the findings of the court are amply sustained. There is a complete absence of any circumstances from which it can be inferred that petitioner was denied his constitutional right to be represented by counsel. The judgment of the trial court is affirmed. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
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. GRAVEL v. UNITED STATES No. 71-1017. Argued April 19-20, 1972 Decided June 29, 1972 White, J., wrote the opinion of the Court, in which Burger, C. J., and Blackmun, Powell, and Rehnquist, JJ., joined. Stewart, J., filed an opinion dissenting in part, post, p. 629. Douglas, J., filed a dissenting opinion, post, p. 633. Brennan, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 648. Robert J. Reinstein and Charles L. Fishman argued the cause for petitioner in No. 71-1017 and for respondent in No. 71-1026. With them on the briefs were Harvey A. Silver glate and Alan M. Dershowitz. Solicitor General Griswold argued the cause for the United States in both cases. With him on the briefs were Assistant Attorney General Mardian, Jerome M. Feit, Allan A. Tuttle, and Robert L. Keuch. Sam J. Ervin, Jr., and William B. Saxbe argued the cause for the Senate of the United States as amicus curiae. With them on the brief were James O. Eastland, John 0. Pastore, Herman E. Talmadge, Norris Cotton, Peter H. Dominick, Charles McC. Mathias, Jr., Philip B. Kurland, and Edward I. Rothschild. Briefs of amici curiae were filed by Melvin L. Wulf and Sanford Jay Rosen for the American Civil Liberties Union; by Frank B. Frederick and Henry Paul Monaghan for the Unitarian Universalist Association; and by Morton Stavis and Doris Peterson for Leonard S. Rodberg. Together with No. 71 — 1026, United States v. Gravel, also on certiorari to the same court. Opinion of the Court by Mr. Justice White, announced by Mr. Justice Blackmun. These cases arise out of the investigation by a federal grand jury into possible criminal conduct with respect to the release and publication of a classified Defense Department study entitled History of the United States Decision-Making Process on Viet Nam Policy. This document, popularly known as the Pentagon Papers, bore a Defense security classification of Top Secret-Sensitive. The crimes being investigated included the retention of public property or records with intent to convert (18 U. S. C. § 641), the gathering and transmitting of national defense information (18 U. S. C. § 793), the concealment or removal of public records or documents (18 U. S. C. § 2071), and conspiracy to commit such offenses and to defraud the United States (18 U. S. C. §371). Among the witnesses subpoenaed were Leonard S. Rodberg, an assistant to Senator Mike Gravel of Alaska and a resident fellow at the Institute of Policy Studies, and Howard Webber, Director of M. I. T. Press. Senator Gravel, as intervenor, filed motions to quash the subpoenas and to require the Government to specify the particular questions to be addressed to Rodberg. He asserted that requiring these witnesses to appear and testify would violate his privilege under the Speech or Debate Clause of the United States Constitution, Art. I, § 6, cl. 1. It appeared that on the night of June 29, 1971, Senator Gravel, as Chairman of the Subcommittee on Buildings and Grounds of the Senate Public Works Committee, convened a meeting of the subcommittee and there read extensively from a copy of the Pentagon Papers. He then placed the entire 47 volumes of the study in the public record. Rodberg had been added to the Senator’s staff earlier in the day and assisted Gravel in preparing for and conducting the hearing. Some weeks later there were press reports that Gravel had arranged for the papers to be published by Beacon Press and that members of Gravel’s staff had talked with Webber as editor of M. I. T. Press. The District Court overruled the motions to quash and to specify questions but entered an order proscribing certain categories of questions. United States v. Doe, 332 F. Supp. 930 (Mass. 1971). The Government’s contention that for purposes of applying the Speech or Debate Clause the courts were free to inquire into the regularity of the subcommittee meeting was rejected. Because the Clause protected all legislative acts, it was held to shield from inquiry anything the Senator did at the subcommittee meeting and “certain acts done in preparation therefor.” Id., at 935. The Senator’s privilege also prohibited “inquiry into things done by Dr. Rodberg as the Senator’s agent or assistant which would have been legislative acts, and therefore privileged, if performed by the Senator personally.” Id., at 937-938. The trial court, however, held the private publication of the documents was not privileged by the Speech or Debate Clause. Id., at 936. The Court of Appeals affirmed the denial of the motions to quash but modified the protective order to reflect its own views of the scope of the congressional privilege. United States v. Doe, 455 F. 2d 753 (CA1 1972). Agreeing that Senator and aide were one for the purposes of the Speech or Debate Clause and that the Clause foreclosed inquiry of both Senator and aide with respect to legislative acts, the Court of Appeals also viewed the privilege as barring direct inquiry of the Senator or his aide, but not of third parties, as to the sources of the Senator’s information used in performing legislative duties. Although it did not consider private publication by the Senator or Beacon Press to be protected by the Constitution, the Court of Appeals apparently held that neither Senator nor aide could be questioned about it because of a common-law privilege akin to the judicially created immunity of executive officers from liability for libel contained in a news release issued in the course of their normal duties. See Barr v. Matteo, 360 U. S. 564 (1959). This privilege, fashioned by the Court of Appeals, would not protect third parties from similar inquiries before the grand jury. As modified by the Court of Appeals, the protective order to be observed by prosecution and grand jury was: “(1) No witness before the grand jury currently investigating the release of the Pentagon Papers may be questioned about Senator Mike Gravel’s conduct at a meeting of the Subcommittee on Public Buildings and Grounds on June 29, 1971, nor, if the questions are directed to the motives or purposes behind the Senator’s conduct at that meeting, about any communications with him or with his aides regarding the activities of the Senator or his aides during the period of their employment, in preparation for and related to said meeting. “(2) Dr. Leonard S. Rodberg may not be questioned about his own actions in the broadest sense, including observations and communications, oral or written, by or to him or coming to his attention while being interviewed for, or after having been engaged as a member of Senator Gravel’s personal staff to the extent that they were in the course of his employment.” The United States petitioned for certiorari challenging the ruling that aides and other persons may not be questioned with respect to legislative acts and that an aide to a Member of Congress has a common-law privilege not to testify before a grand jury with respect to private publication of materials introduced into a subcommittee record. Senator Gravel also petitioned for certiorari seeking reversal of the Court of Appeals insofar as it held private publication unprotected by the Speech or Debate Clause and asserting that the protective order of the Court of Appeals too narrowly protected against inquiries that a grand jury could direct to third parties. We granted both petitions. 405 U. S. 916 (1972). I Because the claim is that a Member’s aide shares the Member’s constitutional privilege, we consider first whether and to what extent Senator Gravel himself is exempt from process or inquiry by a grand jury investigating the commission of a crime. Our frame of reference is Art. I, § 6, cl. 1, of the Constitution: “The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.” The last sentence of the Clause provides Members of Congress with two distinct privileges. Except in cases of “Treason, Felony and Breach of the Peace,” the Clause shields Members from arrest while attending or traveling to and from a session of their House. History reveals, and prior cases so hold, that this part of the Clause exempts Members from arrest in civil cases only. “When the Constitution was adopted, arrests in civil suits were still common in America. It is only to such arrests that the provision applies.” Long v. Ansell, 293 U. S. 76, 83 (1934) (footnote omitted). “Since... the terms treason, felony and breach of the peace, as used in the constitutional provision relied upon, excepts from the operation of the privilege all criminal offenses, the conclusion results that the claim of privilege of exemption from arrest and sentence was without merit....” Williamson v. United States, 207 U. S. 425, 446 (1908). Nor does freedom from arrest confer immunity on a Member from service of process as a defendant in civil matters, Long v. Ansell, supra, at 82-83, or as a witness in a criminal case. “The constitution givés to every man, charged with an offence, the benefit of compulsory process, to secure the attendance of his witnesses. I do not know of any privilege to exempt members of congress from the service, or the obligations, of a subpoena, in such cases.” United States v. Cooper, 4 Dall. 341 (1800) (Chase, J., sitting on Circuit). It is, therefore, sufficiently plain that the constitutional freedom from arrest does not exempt Members of Congress from the operation of the ordinary criminal laws, even though imprisonment may prevent or interfere with the performance of their duties as Members. Williamson v. United States, supra; cf. Burton v. United States, 202 U. S. 344 (1906). Indeed, implicit in the narrow scope of the privilege of freedom from arrest is, as Jefferson noted, the judgment that legislators ought not to stand above the law they create but ought generally to be bound by it as are ordinary persons. T. Jefferson, Manual of Parliamentary Practice, S. Doc. No. 92-1, p. 437 (1971). In recognition, no doubt, of the force of this part of § 6, Senator Gravel disavows any assertion of general immunity from the criminal law. But he points out that the last portion of § 6 affords Members of Congress another vital privilege — they may not be questioned in any other place for any speech or debate in either House. The claim is not that while one part of § 6 generally permits prosecutions for treason, felony, and breach of the peace, another part nevertheless broadly forbids them. Rather, his insistence is that the Speech or Debate Clause at the very least protects him from criminal or civil liability and from questioning elsewhere than in the Senate, with respect to the events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record. To us this claim is incontrovertible. The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process. We have no doubt that Senator Gravel may not be made to answer — either in terms of questions or in terms of defending himself from prosecution — for the events that occurred at the subcommittee meeting. Our decision is made easier by the fact that the United States appears to have abandoned whatever position it took to the contrary in the lower courts. Even so, the United States strongly urges that because the Speech or Debate Clause confers a privilege only upon “Senators and Representatives,” Rodberg himself has no valid claim to constitutional immunity from grand jury inquiry. In our view, both courts below correctly rejected this position. We agree with the Court of Appeals that for the purpose of construing the privilege a Member and his aide are to be “treated as one,” United States v. Doe, 455 F. 2d, at 761; or, as the District Court put it: the “Speech or Debate Clause prohibits inquiry into things done by Dr. Rodberg as the Senator’s agent or assistant which would have been legislative acts, and therefore privileged, if performed by the Senator personally.” United States v. Doe, 332 F. Supp., at 937-938. Both courts recognized what the Senate of the United States urgently presses here: that it is literally impossible, in view of the complexities of the modern legislative process, with Congress almost constantly in session and matters of legislative concern constantly proliferating, for Members of Congress to perform their legislative tasks without the help of aides and assistants; that the day-to-day work of such aides is so critical to the Members’ performance that they must be treated as the latter’s alter egos; and that if they are not so recognized, the central role of the Speech or Debate Clause — to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary, United States v. Johnson, 383 U. S. 169, 181 (1966) — will inevitably be diminished and frustrated. The Court has already embraced similar views in Barr v. Matteo, 360 U. S. 564 (1959), where, in immunizing the Acting Director of the Office of Rent Stabilization from liability for an alleged libel contained in a press release, the Court held that the executive privilege recognized in prior cases could not be restricted to those of cabinet rank. As stated by Mr. Justice Harlan, the “privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government. The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and re-delegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy.” Id., at 572-573 (footnote omitted). It is true that the Clause itself mentions only “Senators and Representatives,” but prior cases have plainly not taken a literalistic approach in applying the privilege. The Clause also speaks only of “Speech or Debate,” but the Court’s consistent approach has been that to confine the protection of the Speech or Debate Clause to words spoken in debate would be an unacceptably narrow view. Committee reports, resolutions, and the act of voting are equally covered; “[i]n short,... things generally done in a session of the House by one of its members in relation to the business before it.” Kilbourn v. Thompson, 103 U. S. 168, 204 (1881), quoted with approval in United States v. Johnson, 383 U. S., at 179. Rather than giving the Clause a cramped construction, the Court has sought to implement its fundamental purpose of freeing the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator. We have little doubt that we are neither exceeding our judicial powers nor mistakenly construing the Constitution by holding that the Speech or Debate Clause applies not only to a Member but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself. Nor can we agree with the United States that our conclusion is foreclosed by Kilbourn v. Thompson, supra, Dombrowski v. Eastland, 387 U. S. 82 (1967), and Powell v. McCormack, 395 U. S. 486 (1969), where the speech or debate privilege was held unavailable to certain House and committee employees. Those cases do not hold that persons other than Members of Congress are beyond the protection of the Clause when they perform or aid in the performance of legislative acts. In Kilbourn, the Speech or Debate Clause protected House Members who had adopted a resolution authorizing Kilbourn’s arrest; that act was clearly legislative in nature. But the resolution was subject to judicial review insofar as its execution impinged on a citizen’s rights as it did there. That the House could with impunity order an unconstitutional arrest afforded no protection for those who made the arrest. The Court quoted with approval from Stockdale v. Hansard, 9 Ad. & E. 1, 112 Eng. Rep. 1112 (K. B. 1839): “ 'So if the speaker by authority of the House order an illegal act, though that authority shall exempt him from question, his order shall no more justify the person who executed it than King Charles’s warrant for levying ship-money could justify his revenue officer/ ” 103 U. S., at 202. The Speech or Debate Clause could not be construed to immunize an illegal arrest even though directed by an immune legislative act. The Court was careful to point out that the Members themselves were not implicated in the actual arrest, id., at 200, and, significantly enough, reserved the question whether there might be circumstances in which “there may... be things done, in the one House or the other, of an extraordinary character, for which the members who take part in the act may be held legally responsible.” 103 U. S., at 204 (emphasis added). Dombrowski v. Eastland, supra, is little different in principle. The Speech or Debate Clause there protected a Senator, who was also a subcommittee chairman, but not the subcommittee counsel. The record contained no evidence of the Senator’s involvement in any activity that could result in liability, 387 U. S., at 84, whereas the committee counsel was charged with conspiring with state officials to carry out an illegal seizure of records that the committee sought for its own proceedings. Ibid. The committee counsel was deemed protected to some extent by legislative privilege, but it did not shield him from answering as yet unproved charges of conspiring to violate the constitutional rights of private parties. Unlawful conduct of this kind the Speech or Debate Clause simply did not immunize. Powell v. McCormack reasserted judicial power to determine the validity of legislative actions impinging on individual rights — there the illegal exclusion of a representative-elect — and to afford relief against House aides seeking to implement the invalid resolutions. The Members themselves were dismissed from the case because shielded by the Speech or Debate Clause both from liability for their illegal legislative act and from having to defend themselves with respect to it. As in Kilbourn, the Court did not reach the question “whether under the Speech or Debate Clause petitioners would be entitled to maintain this action solely against the members of Congress where no agents participated in the challenged action and no other remedy was available.” 395 U. S., at 506 n. 26. None of these three cases adopted the simple proposition that immunity was unavailable to congressional or committee employees because they were not Representatives or Senators; rather, immunity was unavailable because they engaged in illegal conduct that was not entitled to Speech or Debate Clause protection. The three cases reflect a decidedly jaundiced view towards extending the Clause so as to privilege illegal or unconstitutional conduct beyond that essential to foreclose executive control of legislative speech or debate and associated matters such as voting and committee reports and proceedings. In Kilbourn, the Sergeant-at-Arms was executing a legislative order, the issuance of which fell within the Speech or Debate Clause; in Eastland, the committee counsel was gathering information for a hearing; and in Powell, the Clerk and Doorkeeper were merely carrying out directions that were protected by the Speech or Debate Clause. In each case, protecting the rights of others may have to some extent frustrated a planned or completed legislative act; but relief could be afforded without proof of a legislative act or the motives or purposes underlying such an act. No threat to legislative independence was posed, and Speech or Debate Clause protection did not attach. None of this, as we see it, involves distinguishing between a Senator and his personal aides with respect to legislative immunity. In Kilbourn-type situations, both aide and Member should be immune with respect to committee and House action leading to the illegal resolution. So, too, in Eastland, as in this litigation, senatorial aides should enjoy immunity for helping a Member conduct committee hearings. On the other hand, no prior case has held that Members of Congress would be immune if they executed an invalid resolution by themselves carrying out an illegal arrest, or if, in order to secure information for a hearing, themselves seized the property or invaded the privacy of a citizen. Neither they nor their aides should be immune from liability or questioning in such circumstances. Such acts are no more essential to legislating than the conduct held unprotected in United States v. Johnson, 383 U. S. 169 (1966). The United States fears the abuses that history reveals have occurred when legislators are invested with the power to relieve others from the operation of otherwise valid civil and criminal laws. But these abuses, it seems to us, are for the most part obviated if the privilege applicable to the aide is viewed, as it must be, as the privilege of the Senator, and invocable only by the Senator or by the aide on the Senator’s behalf, and if in all events the privilege available to the aide is confined to those services that would be immune legislative conduct if performed by the Senator himself. This view places beyond the Speech or Debate Clause a variety of services characteristically performed by aides for Members of Congress, even though within the scope of their employment. It likewise provides no protection for criminal conduct threatening the security of the person or property of others, whether performed at the direction of the Senator in preparation for or in execution of a legislative act or done without his knowledge or direction. Neither does it immunize Senator or aide from testifying at trials or grand jury proceedings involving third-party crimes where the questions do not require testimony about or impugn a legislative act. Thus our refusal to distinguish between Senator and aide in applying the Speech or Debate Clause does not mean that Rodberg is for all purposes exempt from grand jury questioning. II We are convinced also that the Court of Appeals correctly determined that Senator Gravel’s alleged arrangement with Beacon Press to publish the Pentagon Papers was not protected speech or debate within the meaning of Art. I, § 6, cl. 1, of the Constitution. Historically, the English legislative privilege was not viewed as protecting republication of an otherwise immune libel on the floor of the House. Stockdale v. Hansard, 9 Ad. & E., at 114, 112 Eng. Rep., at 1156, recognized that “[f]or speeches made in Parliament by a member to the prejudice of any other person, or hazardous to the public peace, that member enjoys complete impunity.” But it was clearly stated that “if the calumnious or inflammatory speeches should be reported and published, the law will attach responsibility on the publisher.” This was accepted in Kilbourn v. Thompson as a “sound statement of the legal effect of the Bill of Rights and of the parliamentary law of England” and as a reasonable basis for inferring “that the framers of the Constitution meant the same thing by the use of language borrowed from that source.” 103 U. S., at 202. Prior cases have read the Speech or Debate Clause “broadly to effectuate its purposes,” United States v. Johnson, 383 U. S., at 180, and have included within its reach anything “generally done in a session of the House by one of its members in relation to the business before it.” Kilbourn v. Thompson, 103 U. S., at 204; United States v. Johnson, 383 U. S., at 179. Thus, voting by Members and committee reports are protected; and we recognize today — as the Court has recognized before, Kilbourn v. Thompson, 103 U. S., at 204; Tenney v. Brandhove, 341 U. S. 367, 377-378 (1951) — that a Member’s conduct at legislative committee hearings, although subject to judicial review in various circumstances, as is legislation itself, may not be made the basis for a civil or criminal judgment against a Member because that conduct is within the “sphere of legitimate legislative activity.” Id., at 376. But the Clause has not been extended beyond the legislative sphere. That Senators generally perform certain acts in their official capacity as Senators does not necessarily make all such acts legislative in nature. Members of Congress are constantly in touch with the Executive Branch of the Government and with administrative agencies — they may cajole, and exhort with respect to the administration of a federal statute — but such conduct, though generally done, is not protected legislative activity. United States v. Johnson decided at least this much. “No argument is made, nor do we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is in no wise related to the due functioning of the legislative process.” 383 U. S., at 172. Cf. Burton v. United States, 202 U. S., at 367-368. Legislative acts are not all-encompassing. The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but “only when necessary to prevent indirect impairment of such deliberations.” United States v. Doe, 455 F. 2d, at 760. Here, private publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly' exposing its deliberations to executive influence. The Senator had conducted his hearings; the record and any report that was forthcoming were available both to his committee and the Senate. Insofar as we are advised, neither Congress nor the full committee ordered or authorized the publication. We cannot but conclude that the Senator’s arrangements with Beacon Press were not part and parcel of the legislative process. There are additional considerations. Article I, § 6, cl. 1, as we have emphasized, does not purport to confer a general exemption upon Members of Congress from liability or process in criminal cases. Quite the contrary is true. While the Speech or Debate Clause recognizes speech, voting, and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts. If republication of these classified papers would be a crime under an Act of Congress, it would not be entitled to immunity under the Speech or Debate Clause. It also appears that the grand jury was pursuing this very subject in the normal course of a valid investigation. The Speech or Debate Clause does not in our view extend immunity to Rodberg, as a Senator’s aide, from testifying before the grand jury about the arrangement between Senator Gravel and Beacon Press or about his own participation, if any, in the alleged transaction, so long as legislative acts of the Senator are not impugned. HH I — I Í-H Similar considerations lead us to disagree with the Court of Appeals insofar as it fashioned, tentatively at least, a nonconstitutional testimonial privilege protecting Rodberg from any questioning by the grand jury concerning the matter of republication of the Pentagon Papers. This privilege, thought to be similar to that protecting executive officials from liability for libel, see Barr v. Matteo, 360 U. S. 564 (1959), was considered advisable “[t]o the extent that a congressman has responsibility to inform his constituents... 455 F. 2d, at 760. But we cannot carry a judicially fashioned privilege so far as to immunize criminal conduct proscribed by an Act of Congress or to frustrate the grand jury’s inquiry into whether publication of these classified documents violated a federal criminal statute. The so-called executive privilege has never been applied to shield executive officers from prosecution for crime, the Court of Appeals was quite sure that third parties were neither immune from liability nor from testifying about the republication matter, and we perceive no basis for conferring a testimonial privilege on Rodberg as the Court of Appeals seemed to do. IV We must finally consider, in the light of the foregoing, whether the protective order entered by the Court of Appeals is an appropriate regulation of the pending grand jury proceedings. Focusing first on paragraph two of the order, we think the injunction against interrogating Rodberg with respect to any act, “in the broadest sense,” performed by him within the scope of his employment, overly restricts the scope of grand jury inquiry. Rodberg’s immunity, testimonial or otherwise, extends only to legislative acts as to which the Senator himself would be immune. The grand jury, therefore, if relevant to its investigation into the possible violations of the criminal law, and absent Fifth Amendment objections, may require from Rodberg answers to questions relating to his or the Senator’s arrangements, if any, with respect to republication or with respect to third-party conduct under valid investigation by the grand jury, as long as the questions do not implicate legislative action of the Senator. Neither do we perceive any constitutional or other privilege that shields Rodberg, any more than any other witness, from grand jury questions relevant to tracing the source of obviously highly classified documents that came into the Senator’s possession and are the basic subject matter of inquiry in this case, as long as no legislative act is implicated by the questions. Because the Speech or Debate Clause privilege applies both to Senator and aide, it appears to us that paragraph one of the order, alone, would afford ample protection for the privilege if it forbade questioning any witness, including Rodberg: (1) concerning the Senator’s conduct, or the conduct of his aides, at the June 29, 1971, meeting of the subcommittee; (2) concerning the motives and purposes behind the Senator’s conduct, or that of his aides, at that meeting; (3) concerning communications between the Senator and his aides during the term of their employment and related to said meeting or any other legislative act of the Senator; (4) except as it proves relevant to investigating possible third-party crime, concerning any act, in itself not criminal, performed by the Senator, or by his aides in the course of their employment, in preparation for the subcommittee hearing. We leave the final form of such an order to the Court of Appeals in the first instance, or, if that court prefers, to the District Court. The judgment of the Court of Appeals is vacated and the cases are remanded to that court for further proceedings consistent with this opinion. So ordered. The District Court permitted Senator Gravel to intervene in the proceeding on Dr. Rodberg’s motion to quash the subpoena ordering his appearance before the grand jury and accepted motions from Gravel to quash the subpoena and to specify the exact nature of the questions to be asked Rodberg. The Government contested Gravel’s standing to appeal the trial court’s disposition of these motions on the ground that, had the subpoena been directed to the Senator, he could not have appealed from a denial of a motion to quash without first refusing to comply with the subpoena and being held in contempt. United States v. Ryan, 402 U. S. 530 (1971); Cobbledick v. United States, 309 U. S. 323 (1940). The Court of Appeals, United States v. Doe, 455 F. 2d 753, 756-757 (CA1 1972), held that because the subpoena was directed to third parties, who could not be counted on to risk contempt to protect intervenor’s rights, Gravel might be “powerless to avert the mischief of the order” if not permitted to appeal, citing Perlman v. United States, 247 U. S. 7, 13 (1918). The United States does not here challenge the propriety of the appeal. Dr. Rodberg, who filed his own motion to quash the subpoena directing his appearance and testimony, appeared as amicus curiae both in the Court of Appeals and this Court. Technically, Rodberg states, he is a party to No. 71-1026, insofar as the Government appeals from the protective order entered by the District Court. However, since Gravel intervened, Rodberg does not press the point. Brief of Leonard S. Rodberg as Amicus Curiae 2 n. 2. The District Court found “that 'as personal assistant to movant [Gravel], Dr. Rodberg assisted movant in preparing for disclosure and subsequently disclosing to movant’s colleagues and constituents, at a hearing of the Senate Subcommittee on Public Buildings and Grounds, the contents of the so-called “Pentagon Papers,” which were critical of the Executive’s conduct in the field of foreign relations.’ ” United States v. Doe, 332 F. Supp. 930, 932 (Mass. 1971). Beacon Press is a division of the Unitarian Universalist Association, which appeared here as amicus curiae in support of the position taken by Senator Gravel. Gravel so alleged in his motion to intervene in the Webber matter and to quash the subpoena ordering Webber to appear and testify. App. 15-18. The Government maintained that Congress does not enjoy unlimited power to conduct business and that judicial review has often been exercised to curb extra-legislative incursions by legislative committees, citing Watkins v. United States, 354 U. S. 178 (1957); McGrain v. Daugherty, 273 U. S. 135 (1927); Hentoff v. Ichord, 318 F. Supp. 1175 (DC 1970), at least where such incursions are unrelated to a legitimate legislative purpose. It was alleged that Gravel had “convened a special, unauthorized, and untimely meeting of the Senate Subcommittee on Public Works (at midnight on June 29, 1971), for the purpose of reading the documents and thereafter placed all unread portions in the subcommittee record, with Dr. Rodberg soliciting publication following the meeting.” App. 9. The District Court rejected the contention: “Senator Gravel has suggested that the availability of funds for the construction and improvement of public buildings and grounds has been affected by the necessary costs of the war in Vietnam and that therefore the development and conduct of the war is properly within the concern of his subcommittee. The court rejects the Government’s argument without detailed consideration of the merits of the Senator’s position, on the basis of the general rule restricting judicial inquiry into matters of legislative purpose and operations.” United States v. Doe, 332 F. Supp., at 935. Cases such as Watkins, supra, were distinguished on the ground that they concerned the power of Congress under the Constitution: “It has not been suggested by the Government that the Subcommittee itself is unauthorized, nor that the war in Vietnam is an issue beyond the purview of congressional debate and action. Also, the individual rights at stake in these proceedings are not those of a witness before a congressional committee or of a subject of a committee’s investigation, but only those of a congressman and member of his personal staff who claim ‘intimidation by the executive.’ ” 332 F. Supp., at 936. The District Court thought that Rodberg could be questioned concerning his own conduct prior to joining the Senator’s staff and concerning the activities of third parties with whom Rodberg and Gravel dealt. Id., at 934. The protective order entered by the District Court provided as follows: “(1) No witness before the grand jury currently investigating the release of the Pentagon Papers may be questioned about Senator Mike Gravel’s conduct at a meeting of the Subcommittee on Public Buildings and Grounds on June 29, 1971 nor about things done by the Senator in preparation for and intimately related to said meeting. “(2) Dr. Leonard S. Rodberg may not be questioned about his own actions on June 29, 1971 after having been engaged as a member of Senator Gravel’s personal staff to the extent that they were taken at the Senator’s direction either at a meeting of the Subcommittee on Public Buildings and Grounds or in preparation for and intimately related to said meeting.” Id., at 938. The Court of Appeals thought third parties could be questioned as to their own conduct regarding the Pentagon Papers, “including their dealing with intervenor or his aides.” United States v. Doe, 455 F. 2d, at 761. The court found no merit in the claim that such parties should be shielded from questioning under the Speech or Debate Clause concerning their own wrongful acts, even if such questioning may bring the Senator’s conduct into question. Id., at 758 n. 2. Williamson, United States Congressman, had been found guilty of conspiring to commit subornation of perjury in connection with proceedings for the purchase of public land. He objected to the court’s passing sentence upon him and particularly protested that any imprisonment would depr 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_trialpro	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Donald VROMAN, a Minor, by James R. Vroman, his next friend, PlaintiffAppellee, v. SEARS, ROEBUCK & CO. and George D. Roper Corporation, Defendants-Appellants. No. 17216. United States Court of Appeals Sixth Circuit. Nov. 24, 1967. Rehearing Denied Jan. 24, 1968. Louis A. Lehr, Chicago, 111., for appellants, George E. Bushnell, Jr., Gilbert E. Gove, Miller, Canfield, Paddock & Stone, Detroit, Mich., Arnstein, Gluck, Weitzenfeld & Minow, Chicago, 111., on brief. Philip C. Kelly, Jackson, Mich., for appellee, Kelly, Kelly & Kelly, Jackson, Mich., on brief. Before EDWARDS, CELEBREZZE and PECK, Circuit Judges. JOHN W. PECK, Circuit Judge. This action was brought by the plaintiff-appellee to recover damages for personal injuries suffered by him when in the operation of a gasoline powered rotary lawn mower. The mower had been sold by defendant-appellant Sears, Roebuck & Co. under its trade name “Craftsman,” and had been manufactured by its wholly owned subsidiary, the defendant-appellant George D. Roper Corporation. The parties will herein be referred to as they were in the trial court, and the corporations as “Sears” and “Roper” respectively. At the time of the occurrence giving rise to this action, the then seven year and two months old plaintiff was operating a mower which had been purchased almost exactly three years earlier from Sears by his grandfather. Some months prior to the accident, the grandfather gave the lawn mower to plaintiff’s uncle, who operated a gasoline service station at Homer, Michigan. Plaintiff was cutting grass at this service station when he suffered the injury complained of. The lawn mower was not self-propelled, and moved only when and to the extent that it was pushed by the operator. It is conceded by the parties and here determined that the law of Michigan is applicable. This obviates the need for discussion of the lack of privity of contract between the plaintiff and the defendants, which might elsewhere have been urged as a defense. Bahlman v. Hudson Motor Car Co., 290 Mich. 683, 288 N.W. 309 (1939); Bosch v. Damm, 296 Mich. 522, 296 N.W. 669 (1941); Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N.W.2d 873 (1958); Comstock v. General Motors Corp., 358' Mich. 163, 99 N.W.2d 627 (1959); Manzoni v. Detroit Coca-Cola Bottling Company, 363 Mich. 235, 109 N.W.2d 918 (1961); Hill v. Harbor Steel & Supply Corp., 374 Mich. 194, 132 N.W.2d 54 (1965); Piercefield v. Remington Arms Co., Inc., 375 Mich. 85, 133 N.W.2d 129 (1965). The evidence establishes that the mower was operated over a ball of wire, and that a piece of the wire entered the left eye of the plaintiff, resulting in permanent loss of sight in that eye. The roll or ball of wire was received in evidence, and unrebutted testimony established that a bit of wire of similar nature was removed from plaintiff’s eye. The wire is a fine copper wire of the general type used in winding small transformers or armatures. While there is some testimony indicating that at the time of the accident it was in a loose roll about the size of a basketball, in size it now more nearly resembles a small, flat skein of knitting yarn. Trial of the cause to a jury resulted in a verdict for plaintiff in the amount of $75,000 and this appeal has been perfected from the judgment entered thereon. The parties are in agreement as to the questions presented by the appeal, the first of which is whether the District Court erred in submitting the issue of alleged negligence to the jury. Such alleged negligence related, first, to Sears’s failure to warn that foreign objects could be expelled from the mower’s discharge chute and, second, to the alleged improper design of the machine. In support of its contention that no warning was given, plaintiff first offered and there were received in evidence copies of four Sears’s advertisements which appeared in Detroit newspapers of identical or similar lawn mowers which contained no warnings of any kind. However, these were received in evidence without any showing that plaintiff’s grandfather (the purchaser of the mower here in question) ever saw any such advertisement and the objection to their introduction was well taken. Without relying on this further circumstance as a ground for such exclusion, it is observed that a newspaper advertisement setting forth the possible dangers to users of the product sought to be sold would be unique. However, a failure to warn was established separately by the grandfather, who testified that no warning was given him at the time of purchase and that the mower was not accompanied by any instructions or safety rules other than the verbal instructions of the salesman as to how to start and stop it. The grandfather further testified that when the mower was in operation “you wouldn’t want to get hit with anything that was underneath it coming out of [the discharge chute].” He testified that when he turned the mower over to his son he told him of this danger, and that the son knew of it “because he had run a mower before. * * * ” The record then establishes that that son (plaintiff’s uncle) and plaintiff’s parents discussed his using the mower to cut grass “to earn a little extra money,” and that they “instructed him on the general use of the lawn mower and, of course, told him to stay away from the discharge chute and showed him how to push it.” The uncle and the parents both together and separately instructed the plaintiff in the mower’s operation, it being recognized that such operation was “dangerous, everyone knows that.” Plaintiff’s uncle further testified as follows: “A. We watched him, I know, the first time he used it, you know, to get him started, and he seemed to be able to manage it all right. “Q. Now, when you were telling him these things, did you tell him when he was in the station or at your house or at his folks house or did you show him— “A. We demonstrated to him on the lawnmower. “Q. That is it. Thank you. It takes me a long time to get the question out but that is it. You demonstrated it to him on the lawnmower? “A. Yes, that is right. “Q. Will you step down, sir, with this lawnmower and show the ladies and gentlemen of the jury and the rest of us — let me turn it around so that you are full face — where you told Donald to stand when he was operating it? “A. Stand behind the lawnmower so that you don’t get hit from anything coming out of the exhaust chute or discharge chute.” In the light of this testimony and the record as a whole it is clear that the plaintiff himself, his grandfather (who purchased the mower), his parents and the uncle under whose direction he was ostensibly working when injured all knew of the danger existing by reason of the possible projection of foreign objects from the discharge chute, and any additional warning given to any or all of them would have been merely cumulative and thus without legal significance. See Morrocco v. Northwest Engineering Co., 310 F.2d 809, 810 (6th Cir. 1962); Sawyer v. Pine Oil Sales Co., 155 F.2d 855 (5th Cir. 1946); Hobart v. Sohio Petroleum Company, 255 F.Supp. 972 (N.D.Miss.1966); Pedroli v. Russell, 157 Cal.App.2d 281, 320 P.2d 873, 876 (1958). Plaintiff offers no clue as to the manner in which a warning to his grandfather of a danger already known to him three years prior to the occurrence in controversy could have been a proximate cause thereof, and we hold that it could not. Had the court’s instructions to the jury been inconsistent with this conclusion they would have been prejudicially erroneous, but such is not the case. On the contrary, the court’s charge included the following: “You are instructed that there is no duty to warn a person of a danger in the operation of a product when such danger is already known to the user. “Therefore, even though you find there was a danger present in the operation of the lawn mower involved in this action, which danger caused an injury to the plaintiff, I charge you that there was no duty on the part of defendants to warn of this danger, and I charge you that you may not find any liability based upon the defendants’ failure to warn plaintiff, if you find that such danger was already known to the plaintiff herein.” As has been indicated, the record affirmatively discloses that plaintiff’s older relatives had pre-existing knowledge of the danger, and that this seven year and two months old boy also had such knowledge. Having thus had before it only this unchallenged evidence and the trial judge’s correct statement of the applicable law, the jury could not have resolved this issue negatively to the defendants. See: Delahunt v. Finton, 244 Mich. 226, 221 N.W. 168 (1928); Hoholik v. Metropolitan Life Ins. Co., 289 Mich. 242, 286 N.W. 228 (1939); Deffenbaugh v. Interstate Motor Freight Corp., 254 Mich. 180, 235 N.W. 896 (1931). Carrying this line of reasoning a step further, it may be said that this combination of proven fact and statement of law was tantamount to an instructed verdict on this issue, and standing alone the error in receiving the newspaper advertisements and other evidence of a lack of warning would therefore not have been prejudicial. Whether in cumulative effect with other error prejudice resulted will be subsequently determined. We pass to a consideration of the second aspect of the first question presented by this appeal, namely whether the court erred in submitting to the jury the issue of alleged breach of implied warranty or negligence in the design of the mower. At the outset of this phase of our discussion, we point out counsel and the trial judge throughout the briefs and the instructions properly use such phrases as “breach of implied warranty” and “negligence of design” synonymously and interchangeably in context, since under Michigan law even though a plaintiff may claim “under the theory of an implied warranty, the real question is whether or not defendant was negligent.” Ebers v. General Chemical Co., 310 Mich. 261, 275, 17 N.W.2d 176, 181 (1945); Hertzler v. Manshum, 228 Mich. 416, 423, 200 N.W. 155, 157 (1924); Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 12o, 90 N.W.2d 873 (1958). In the present case there is no question of any mechanical or physical failure or malfunction of the device, the mower having been in the same state of repair after as prior to the accident. Thus as a matter of both fact and law any breach of implied warranty which may have occurred must of necessity have resulted from some fault, or negligence, in its design. It accordingly becomes apparent that the duty allegedly breached by the defendants was the production and marketing of an unsafe or dangerous device which in normal operation might reasonably be expected to result in injury to its user. In order to make a determination as to whether such a breach occurred it obviously becomes necessary to provide the trier of fact with a standard against which to make a comparison. In such a situation it is at least not unusual for the party bearing the burden of proving such a breach to offer evidence as to the state of the art at the time of the design, manufacture and sale of the device in question. E. g., Cheli v. Cudahy Bros. Co., 267 Mich. 690, 255 N.W. 414 (1934); Ketterer v. Armour & Co., 247 F. 921, L.R.A.1918D, 798 (2d Cir. 1917); Reynolds v. Security Trust Co., 246 Mich. 670, 225 N.W. 575 (1929); Purkey v. Sears, Roebuck & Co., 220 F.2d 700 (5th Cir. 1955); McMeekin v. Gimbel Bros., Inc., 223 F.Supp. 896 (W.D.Pa.1963). In the case now before us the court in its charge made reference to the “state of the industry art,” but both the record and a colloquy following the court’s charge and prior to submission of the case to the jury disclose that the state of the art was not established by evidence. In that exchange between the court and counsel, the following appears: [Attorney for plaintiff]: * * * “I object to the instruction requested by the defendants that no one can be held to a higher degree of care than the standards in the industry and that, if not substantially different that [sic] the other mowers, that is this mower in suit, then the jury must find for the defendants, for the reason that there is no evidence in the case as to the standards in the industry from which the jury could find any industry standards, and again further repetition that the jury must find for the defendants, as being error and prejudicial to the plaintiff. (Emphasis supplied.) “The Court: Did I correctly understand you in saying that there is no testimony in the case upon which the jury could find any standard in the industry? [Attorney for plaintiff]: “Yes, you did, your Honor. That is, at the time the mower was made and sold.” This colloquy, as well as the record itself, clearly discloses that in lieu of providing the jury with a state of the art criterion plaintiff offered to it descriptive material promulgated by the American Standards Association at the behest of the Lawn Mower Institute, Inc. (later known as the Outdoor Power Equipment Institute, Inc.). In connection with these standards, the trial court charged as follows: “There were received in evidence American Standard Safety Specifications for power lawn mowers which were not formally adopted until 1960, some two or more years after the design and manufacture of this lawn mower. I charge you that these defendants are chargeable only with such information of developments in the field of safety and design as were available to them at the time of the manufacture, and you may consider these standards on that issue only if you find as a matter of fact, from the evidence, that such standards were circulated and known to the defendants, or could have been known by them by the exercise of due care at and before the time this particular mower was designed and manufactured. “I charge you that since the American Standard Safety Specifications for power lawn mowers are intended as a guide to manufacturers, the consumer and the general public, and that the existence of an American Standard does not in any respect preclude any party who has approved the standard from manufacturing, selling or using products, processes or procedures not conforming to the standard, and that American Standards are reaffirmed or revised to meet changing economic conditions and technological progress. The Standards are not binding upon anyone whether or not that individual or company has approved the standard, and, therefore, are not binding on either of the defendants in this case. However, while the standards are not binding on the defendants, the jury may consider them on the issue of determining whether the defendants observed their duty of keeping abreast of and being informed of developments in the field of safety in the design and manufacture of rotary power mowers such as the one here involved.” An issue for jury determination, as the court phrased it in its charge, “as to whether defendants observed their duty of keeping abreast of and being informed of developments in the field of safety in the design and manufacture of rotary lawn mowers such as the one here involved” was created when plaintiff offered evidence tending to show what the defendants knew or should have known about the then existing ASA specifications. Had plaintiff contented himself with such showing no problem would exist in this regard. However, plaintiff did not stop there but went on to offer in evidence the subsequently promulgated ASA standards. The defendants objected strenuously to the receipt of the standards in evidence. Their first objection was based on the fact that, as shown from the foregoing quotation from the court’s charge, these specifications were not in existence at the time of the manufacture and sale of the subject mower. Treating with the converse of this situation and speaking for the Tenth Circuit Court of Appeals, Judge Murrah stated: “[A]ppellants complain of the refusal of the trial court to admit certain other rules and regulations of the Liquified Petroleum Administrator of the State. These rules were promulgated * * * after [the butane system which exploded was installed]. Obviously, the rules and regulations were not in force at the time of the installation and were not admissible as evidence on the issue of negligence.” Franklin v. Skelly Oil Co., 141 F.2d 568, 572, 153 A.L.R. 156 (10th Cir. 1944). In the portion of the charge above set forth the court presented an accurate statement of the law with reference to the consideration to be given to specifications recognized by an industry and available to designers, manufacturers and vendors of devices dealt with therein. However, it failed, in our view, to provide an adequate instruction (if, indeed, this is possible, which is subject to doubt) concerning a publication promulgated subsequent to sale. A corollary vice exists in the difficulty (again, if not the impossibility) of eliminating from the minds of the jurors the persuasive weight of these documents in their published form, in which they possess all of the attributes of impressive scientific treatises. Further, the exhibits are not limited to portrayals of a mower such as that used by this plaintiff, but invite improper comparison by, for example, depicting mowers where the discharge chute is in front of both right wheels instead of between them, as was the case with this mower. Aside from other objections urged with reference to these exhibits, which are not here passed upon, it is determined that they were improperly received in evidence for the reasons stated. While we would have scant hesitation in holding the error in receiving the ASA specifications in evidence to be prejudicial, beyond doubt their receipt coupled with that of the improperly received newspaper advertisements and other evidence of a lack of warning of the dangerous potentialities of the lawn mower cumulatively constituted prejudicial error incapable of cure by any charge. Reversed and remanded for a new trial. EDWARDS, Circuit Judge (dissenting). The undisputed facts indicate that this then seven-year-old plaintiff lost his left eye when a piece of copper wire penetrated it while he was operating a power lawn mower. Plaintiff testified that at the time he was “pushing” the mower and that it stopped immediately after? ward. Since wire similar to that found in the boy’s eye was found wrapped around the mower blade after the accident, the jury was certainly entitled to infer that the fragment which put out plaintiff’s eye came from the mower. Defendants admit that they designed, manufactured and sold the particular lawn mower involved. Plaintiff’s evidence showed that the placement of the discharge chute on the mower and the length of the mower blade made it possible for an object thrown therefrom to be thrown rearward toward the operator’s position so as to pass within nine inches of the right end of the operator’s handle. On this record it was certainly permissible for the jury to infer that defendants, knew, or in the exercise of reasonable care should have known, of this dangerous condition and that plaintiff did not. Plaintiff pled negligent design of the mower. Plaintiff also pled and at the trial offered evidence to prove defendants’ knowledge of and failure to warn mower users and purchasers of this hazardous condition at any time prior to the happening of this accident. This case is a diversity case tried under Michigan law. Under Michigan law a manufacturer of a dangerous instrumentality has a continuing duty to take “all reasonable means to convey effective warning” of a latent defect in a product where the manufacturer has knowledge of the defect but the users do not. This duty continues even after the product has been sold and put in use. Comstock v. General Motors Corp., 358 Mich. 163, 176, 99 N.W.2d 627, 78 A.L.R.2d 449 (1959). The appellate issue of substance is appellant’s claim that the trial judge’s receipt in evidence of a set of standards issued by the American Standards Association applicable to lawn mower design represented prejudicial error. The standards as actually approved were approved and printed after this lawn mower was sold but before the injury involved here. These facts were fully developed before the jury, as was a good deal of evidence about the processes by which these standards were prepared and the opportunities which the defendants had to become familiar with them during their formative stages. The mower in dispute was designed in 1957. This particular mower was sold June 11, 1959. The injury occurred June 18,1962. The A.S.A. project for safety Specifications for Power Lawn Mowers B71.1 was approved March 15, 1955. On the same date A.S.A. confirmed the initiation of this project to Newark Stove Company — a wholly-owned subsidiary of defendant Sears, Roebuck & Co. On April 4, 1955, Newark Stove Company wrote A.S.A. expressing their “extreme interest” in the proposed safety code. Subsequently, on January 19, 1956, A. S.A. invited Newark Stove Company to attend the first meeting, but Newark did not attend. Such invitations were repeated and declined by Newark. On May 20, 1958, the relevant safety standards which would have corrected the hazardous design of the subject mower were drafted. They were approved without material change by A.S.A. June 23, 1960. Defendants deny seeing the standards in draft form. But the standards were widely published after the date of sale of this lawn mower — but well before the date of plaintiff’s injury. The District Judge actually charged in effect that the jury could not employ the A.S.A. standards as ultimately approved in determining whether or not failure to comply with them was evidence of negligent design, in view of the fact that the approval followed rather than preceded the manufacture of the offending instrumentality. Appellants, of course, claim that this instruction did not succeed in curing the error of allowing the standards to be placed before the jury at all. Under Comstock v. General Motors, 358 Mich. 163, 99 N.W.2d 627, 78 A.L.R.2d 449 (1959), the failure of a manufacturer to take all reasonable means to warn users of a product of a latent defect in that product which renders it a dangerous instrumentality is evidence from which a jury may infer negligence: “Buick division subsequently learned in fact that they had built thousands of power brakes with a defective part. The facts pertaining to furnishing of replacement kits and assumption of costs allow no other inference than that defendant had ample warning of a serious problem concerning the 1953 Buick power brakes well before the brakes involved here failed. “Defendant’s Buick division warned' its dealers. It did not warn those into whose hands they had placed this dangerous instrument, and whose lives (along with the lives of others) depended upon defective brakes which, might fail without notice. “In our view, the facts in this case imposed a duty on defendant to take all reasonable means to convey effective warning to those who had purchased 1953 Buicks with power brakes when the latent defect was discovered. “The duty to warn of known danger-inherent in a product, or in its contemplated use, has long been a part of the manufacturer’s liability doctrine. Clement v. Crosby & Co., 148 Mich. 293, 111 N.W. 745, 10 L.R.A., N.S., 588; [12 Ann.Cas. 265]; Gerkin v. Brown & Sehler Co., 177 Mich. 45, 143 N.W. 48, 48 L.R.A.,N.S., 224 [4- N.C.C.A. 254]; Lovejoy v. Minneapolis-Moline Power Implement Co., 248 Minn. 319, 79 N.W.2d 688; Hopkins v. E. I. Du Pont De Nemours & Co. (C.C.A. 3), 199 F.2d 930; Tomao v. A. P. DeSanno & Son, Inc., (C.C.A. 3), 209 F.2d 544; Haberly v. Reardon Company, (Mo.), 319 S.W.2d 859. “See, also, Annotation, Duty of manufacturer or seller to warn of latent dangers incident to article as a class, as distinguished from duty with respect to defects in particular article, 86 A.L.R. 947. “In the Gerkin Case, this Court said (177 Mich. p. 60, 143 N.W. p. 53): “ ‘When the fact is once established and demonstrated by experience that a certain commodity apparently harmless contains concealed dangers, and when distributed to the public through the channels of trade and used for the purposes for which it was made and sold is sure to cause suffering to, and injure the health of, some innocent purchaser, even though the percentage of those injured be not large, a duty arises to and a responsibility rests upon the manufacturer and dealer with knowledge to the extent, at least, of warning the ignorant consumer or user of the existence of the hidden danger. Failing to do so, the dealer, as well as the manufacturer, who has the knowledge and does not impart it, is liable to a subsequent, ignorant purchaser, reasonably within contemplation of the parties to the original sale, for injuries sustained through such hidden dangers. This is by reason of the duty the dealer owes to the public generally, which includes all whom it may concern, to give notice of any concealed dangers in the commodity in which he traffics, and to exercise a reasonable precaution for the protection of others commensurate with the peril involved. We think this principle applicable to the case at bar and fairly deducible from the many authorities touching manufacture and sale of dangerous commodities. Thornton v. Dow, 60 Wash. 622 (111 P. 899, 32 L.R.A.,N.S., 968), and authorities cited and reviewed in Tomlinson v. Armour & Co., 75 N.J.L. 748, 70 A. 314, 19 L.R.A.,N.S., 923. “If such duty to warn of a known danger exists at point of sale, we believe a like duty to give prompt warning exists when a latent defect which makes the product hazardous to life becomes known to the manufacturer shortly after the product has been put on the market. This, General Motors did not do.” Comstock v. General Motors Corp., 358 Mich. 163, 176-178, 99 N.W.2d 627, 634 (1959). The Comstock case was decided by a unanimous Michigan Supreme Court. It has been the subject of an annotation in American Law Reports. See 78 A.L.R.2d 449 (1961). It has never been overruled. Nor is its doctrine strange to Michigan. In an annotation entitled Products Liability — Duty to Warn, wherein Comstock is cited as Michigan authority, we find this statement: “That the duty of ordinary or reasonable care which lies at the foundation of the law of negligence commonly comprehends a duty to warn of danger, the nonperformance of which will,, when it is the cause of injury, give rise to liability is, of course, a legal truism. There is not a case falling within the scope of this annotation which in any way contradicts this principle.” 76 A. L.R.2d 16 (1961). (Footnotes omitted). Defendants in this case concede that they gave no warning at all at any time. Under the Comstock doctrine just set forth, it appears to me that the industry safety standards set by A.S.A. were admissible in evidence where those standards were published well in advance of plaintiff’s injury. In addition, in view of the strong evidence of gross negligence in design of this mower and the trial judge’s restrictive instruction as to the use the jury could make of the evidence pertaining to the A.S.A. standards, I believe there was no prejudicial error in this trial which adversely affected substantial justice. Fed.R.Civ.P. 61. I would affirm the jury verdict. We are acutely aware of the evidence establishing that the placement of the discharge chute made it possible for an object therefrom to pass within nine inches of the right end of the operator’s handle. Whether evidence of such proximity alone not supplemented by evidence of the position an operator might reasonably be expected to take in normal operation is enough to permit the negligence of design issue to go to the jury in the face of the argument that to do so is to let the jurors enter the area of speculation is an issue we are not here required to pass upon. Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_issuearea	L	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. MOTORLEASE CORP. v. UNITED STATES. No. 24. Decided March 21, 1966. Ellis Lyons for petitioner. Solicitor General Cox for the United States. Per Curiam. The petition for a writ of certiorari is granted and the judgment of the United States Court of Appeals for the Second Circuit is reversed. Fribourg Navigation Co., Inc. v. Commissioner of Internal Revenue, ante, p. 272. Mr. Justice Black, Mr. Justice Clark and Mr. Justice White dissent for the reasons stated in the dissenting opinion of Mr. Justice White in Fribourg Navigation Co., Inc. v. Commissioner of Internal Revenue, supra. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
songer_opinstat	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. BRADFORD-KENNEDY CO. v. FRED G. CLARK CO. No. 8749. Circuit Court of Appeals, Eighth Circuit. Sept. 15, 1930. Yale C. Holland, of Omaha, Neb. (J. A. C. Kennedy, G. L. DeLaey, and Charles F. McLaughlin, all of Omaha, Neb., on the brief), for appellant. Clinton Brome, of Omaha, Neb. (William L. Randall and T. J. McGuire, both of Omaha, Neb., on the brief), for appellee. Before STONE and VAN VALKEN-BURGH, Circuit Judges, and OTIS, District Judge. OTIS, District Judge. This is an action brought by the plaintiff below, appellee here, to recover a balance due on lubricating oils alleged to have been sold appellant pursuant to an oral agreement. The petition alleges that the fair and reasonable value of the goods sold was $14,379.92; that appellant had paid $7,513.88 on account; that the balance due was $6,866.04, for which, with interest, judgment was asked. A verdict for appellee in the amount of $8,321.95 was directed by the trial eourt on its own motion. 1. It is, of course, well settled that in a proper ease the trial judge may direct a verdict either for the plaintiff or defendant. It is his duty to do that “when the testimony and all the inferences which the jury reasonably may draw therefrom would be insufficient to support a different finding.” Chicago M. & St. P. Ry. Co. v. Coogan, 271 U. S. 472, 478, 46 S. Ct. 564, 566, 70 L. Ed. 1041; Baltimore & Ohio Ry. Co. v. Groeger, 266 U. S. 521, 524, 45 S. Ct. 169, 69 L. Ed. 419. “If the evidence, with all the inferences that justifiably could be drawn from it, does not constitute a sufficient basis for a verdict for the plaintiff or the defendant, as the ease may be, so that such a verdict, if returned, would have to be set aside, the eourt may and should direct a verdict for the other party.” Slocum v. New York Life Ins. Co., 228 U. S. 364, 369, 33 S. Ct. 523, 525, 57 L. Ed. 879; Delk v. St. Louis & San Francisco R. R. Co., 220 U. S. 580, 587, 31 S. Ct. 617, 55 L. Ed. 590; Empire State Cattle Co. v. A., T. & S. Fe Ry. Co., 210 U. S. 1, 10, 28 S. Ct. 607, 52 L. Ed. 931, 15 Ann. Cas. 70. The view that a scintilla or modicum of conflicting evidence, irrespective of the character and nature of that to which it is opposed, necessarily requires a submission to the jury has been expressly disapproved. A. B. Small Co. v. Lamborn & Co., 267 U. S. 248, 254, 45 S. Ct. 300, 69 L. Ed. 597. Evidence is conclusive to the extent required in the rule stated when reasonable men considering it can reach but one conclusion from the evidence. Chicago G. W. Ry. Co. v. Price (8 C. C. A.) 97 F. 423, 427. While under the federal decisions the rule is the same whether a verdict is directed for plaintiff or defendant, there is obviously in the former ease one matter to be considered which need not be considered in the latter, and that is the credibility of the witnesses. The credibility of witnesses is certainly, at least speaking generally, a matter for the jury. That fact is without significance when a verdict is directed for the defendant. Then the eourt assumes the witnesses for plaintiff have testified truthfully. The court gives full weight and value to their testimony and holds that it is insufficient to establish a cause of action. In that case the court does not invade the province of the jury by passing on the credibility of witnesses, and the losing party cannot complain. It is not so, however, when a verdict is directed for plaintiff. The assumption then that the plaintiff’s witnesses have testified truthfully is an exercise of a plain jury function, and it is an assumption which must be made before a verdict can be directed. The eourt, directing a verdict for defendant, in effect says to plaintiff : “Whether your witnesses have testified truthfully or falsely, you have not made a ease,” but directing a verdict for plaintiff the eourt in effect says: “Your witnesses have testified truthfully and have made a case.” Because of this distinction, courts in some jurisdictions have held that a verdict may not at all be directed for a plaintiff. But the distinction does not justify such a complete denial of the court’s power, and it has never been either denied or questioned in the federal courts. There may be nothing in the conduct and demeanor of witnesses or in their testimony, and nothing to be drawn from all the facts and circumstances in evidence which would affect their credibility, and therefore nothing to warrant submission of that issue. The correct rule would seem to be that the eourt should not direct a verdict for the plaintiff, even although otherwise it ought to be directed, if reasonable men might differ as to the credibility of witnesses upon whose testimony plaintiff’s case depends. 2. In this case then our inquiry must go into all the evidence. We must determine from all the evidence whether, in the sense of the applicable rule, it was conclusive in favor of the appellee’s cause of action as to every essential element thereof and also whether there was nothing to submit to the jury touching the credibility of the witnesses. As a preliminary to that iüquixy it is necessary to have in mind clearly what were the essential elements of the appellee’s case. The theory of the appellee’s ease was that appellant and appellee entered into an oral contract by which appellee agreed to pay appellant for such goods as appellant should order from appellee, and appellee agreed to ship to appellant such goods as it should order; that pursuant to this contract the ap-pellee' did ship to appellant goods of the total value of $14,379.92, which appellant duly received, and that there is a balance due in the amount of $6,866.04, with interest. The essential elements of the ease are these.* (1) That such a contract was entered into; (2) that the appellant did order goods under the contract; (3) that they were shipped and delivered to the appellant or at its direction to another; and (4) that there was a balance due. Such were the elements of the appel-lee’s ease which must have been so completely proved that no reasonable man could say upon all the evidence that a single one of them was not conclusively proved by credible testimony. 3. We proceed then to consider whether the first of these essential elements was conclusively proved. Was it indisputably proved that such an oral contract was entered into between appellant and appellee as appellee asserts? The appellee, the Fred G. Clark Company, was a wholesaler of lubricating oils, whose home office was in Cleveland, Ohio. The Bradford-Kennedy Company, appellant, whose principal place of business was in Omaha, Neb., was and for years had been engaged in the business of selling lumber. It had never engaged in,the business of selling lubricating oils. D. C. Bradford was president of the Bradford-Kennedy Company. In 1922, when this ease had its beginning, and for sometime prior to that date, Bradford was in failing health and was able to-give only slight attention to the business of his company. Since his youth he had known and for sentimental reasons had taken some interest in one C. D. Bennison, who in 1922 was about forty years of age, had not been successful and was then without resources. Bennison had had some experience as an oil salesman and was seeking financial assistance toward engaging in the oil business for himself. In that situation he thought of and consulted his friend and benefactor, Bradford. Previously he had been in touch with one W. G. Dickey, who was a salesman for the Fred G. Clark Company. The contention of the appellee is that the oral contract relied on by it was entered into between Dickey, representing the appellee, and Bradford, president of the appellant company, representing the appellant, in the presence of Bennison. At the time of the trial Bradford was deceased. Dickey and Bennison testified. According to the testimony of Dickey, the conversations between himself and Bradford, which resulted in the oral contract, took place on two days, August 21 and 22, 1922. The conversation on August 21 was detailed by Dickey as follows: “After I was introduced to Mr. Bradford, Mr. Bradford stated that they were in the oil business and that Mr. Bennison was a very good salesman; that it would be satisfactory for Mr. Bennison to make up an initial order for the stoek and asked that he do so and that we come back the following day with the order and he would look it over and sign it. As we walked out of the door Mr. Bradford placed his arm on my shoulder and said I need not worry about finances; that if necessary they would back the proposition as far as $200,000 or more.” Dickey testified that after the conversation on August ,21st with Mr. Bradford he and Bennison went to a hotel and figured out an initial order for stoek. On the next day, August 22d, that order was taken by him and Bennison to Bradford who thereupon signed it. It was an order for four carloads of oils. The conversation between Dickey and Bradford at the second meeting on August 22d was thus stated by Dickey in his testimony : “At this second interview Mr. Bradford stated that it would be all right for us to bill the Bradford-Kennedy Company and to send them the invoices; that Mr. Bennison had no finances and no credit rating and they would pay us for the oils; I told him that was true; that our company would have to have something to know we were going to receive our money for the goods, and knowing that Mr. Bennison had no finances, and no credit, we would look to Bradford-Kennedy for the payment. He said that would be satisfactory, for us to bill the Bradford-Kennedy Company and to send them the invoices.” Since it appeared that what Dickey had thus testified had reference to the first order which Mr. Bradford had signed, he was then asked specifically whether at that time Mr. Bradford said anything about further orders, to which he replied: “He said that he knew nothing about the oil business; that Mr. Bennison did and that Mr. Bennison was privileged to order what oil he considered necessary.” Excepting this last statement made by Dickey, there was nothing in his testimony indicating any commitment by Bradford either for hijnself or the Bradford-Kennedy Company as to orders for oil to be made by Bennison after the initial order which Bradford signed. As we have noted, this alleged commitment was said by Dickey to have been made on August 22 or at the second interview between himself and Bradford. Bennison’s version of the conversation between Bradford and Diekey differed with Dickey’s testimony in important details.. As to the conversation on August 21, at the first interview between Bradford and Dickey, Bennison testified that after the formal introduction of Diekey to Bradford, Bradford said to Diekey: “Well, we are in the oil business. Now, Mir. Dickey, what is required to start up in the business because at the present time Mr. Bennison is very anxious to start out and get into the September business for the fall business without going into any details about partnership or incorporating.” After this opening, Bennison testified that Bradford suggested to Diekey that “we immediately start in business as a branch of the Bradford-Kennedy Company until further notice.” And that Bradford said further to Dickey: “You and Mr. Bennison go ahead and make up your orders for oil and whatever he orders we are back of it, and we started out of the office and he said, ‘Mr. Diekey, Mr. Bennison will give you the orders.’ ” According to Bennison the foregoing was the whole conversation between Diekey and Bradford so far as it involved language tending to prove any contract for orders other than the initial order signed by Bradford. Bennison testified that on the second day, August 22, at the second interview between Bradford and Dickey, there was no conversation at all concerning the business between them. The discrepancies between the testimony of Diekey and that of Bennison will be noted. Diekey testified that on August 22 Bradford agreed in effect that the Bradford-Kennedy Company would pay for whatever future oils Bennison might order, and that Bennison was privileged to order what he considered necessary. But that was not corroborated by Bennison, who denied there was any conversation touching the subject at the interview on August 22. On the other hand, Ben-nison’s testimony as to what was said at the first interview on August 21 was not corroborated by Diekey. According to the latter, Bradford’s statements at the first interview had reference only to the initial order. At that first interview, according to Diekey, Bradford said “it would be satisfactory for Mr. Bennison to make up an initial order for the stock,” whereas Bennison testified that Bradford said, “you and Mr. Bennison go ahead and make up your orders for oil- and whatever he orders we are back of it.” From such inconsistent testimony a definite conclusion as to what was said by Bradford to Diekey cannot well be drawn. Yet, so far as direct testimony in the ease goes, there is no-other proof of the oral contract, conclusive proof of which was essential to appellee’s ease. There was much in the evidence to make doubtful the credibility of Bennison and much also indicating the improbability of vital parts of both Dickey’s and Bennison’s testimony. At one time on cross-examination Ben-nison testified that at the conference with Diekey on August 21st, Bradford said to Dickey that as to future orders that would be taken up with Diekey on his next trip. Later he withdrew this correction of his earlier testimony and reaffirmed what he had before said. There was testimony that Bennison in describing to others the conversation between. Dickey and Bradford on August 21st had said that Bradford told Diekey that, as to future orders, they would be discussed upon Dickey’s next trip by which time he (Bradford) expected that a , separate organization for the handling of oil business would have been established. Several witnesses testified to statements by Bennison to this effect. Bennison was an impecunious salesman who had no monetary resources of his own. As we have before noted, on August 21, 1922, Bradford had practically retired from busi.ness because of a serious physical disability from which in a short time he died. He was then able to devote only a few minutes each day to business affairs. While for sentimental reasons growing out of an obligation he was under to the parents of Bennison who had aided and befriended him in his youth, Bradford was anxious to aid Bennison in securing a start in business, he would only intrust him with relatively small amounts of money. With such an attitude toward Ben-nison on Bradford’s part shown quite clearly by the evidence, it would seem unreasonable that he would give Bennison carte blanche to order goods from the appellee on appellant’s credit as he (Bennison) chose to order them. The probability of both Bennison’s and Dickey’s testimony is made doubtful by these facts. There was testimony that, on the day before the interview between Diekey, Bennison, and Bradford, both Diekey and Bennison had said to one Plamondon that they had arranged “to meet Bradford the next day to see whether they could get him to stand good for an initial shipment of oil to the Bennison Oil Company.” They said nothing to Plamon-don of a purpose of inducing Bradford to commit not only himself but his company to standing good not only for an initial shipment of oil but for any subsequent shipments Bennison might order. There was much testimony in the ease to indicate that Bradford’s understanding of the agreement was that in his individual capacity he was standing good for an initial shipment of oil, but that he had never agreed to obligate either himself or his company as to future shipments. An outstanding fact suggesting that such was Bradford’s understanding was that Bradford never consulted with his fellow officers- and directors, in the appellant company touching this adventure nor advised them that he had involved the company in a new enterprise and one wholly foreign to its usual business. Considering all of the testimony it seems to us there was a question of fact as to whether the oral contract relied upon by the appellee ever was entered into, and that that question of fact should have been submitted to a jury. In our view, the evidence was not so conclusive for appellee that it can be said that reasonable men might not well have reached a contrary conclusion. That there was such a question of fact was recognized by the appellee at the trial. The appellee did not ask for a directed verdict at the close of all the testimony, but requested the court to submit to the jury the question whether the oral contract relied on actually had been entered into between appellee and appellant. Appellant was certainly at a great disadvantage at the trial. The death of its president before the trial left it without a witness who could testify directly as to the conversations said to show the contract. It was compelled to base its defense upon circumstances, upon inconsistencies in the testimony of appellee’s witnesses, upon matters affecting their credibility. In such a ease a verdict should be directed for a plaintiff' only if the facts undoubtedly and clearly bring it within the applicable rule. The significance of such a situation, where inconsistencies have been developed in the testimony of witnesses for a party, where some circumstances at least are against that testimony, and where the only witness for the opposing party is dead, was pointed out by this court in Chicago G. W. Ry. Co. v. Price (8 C. C. A.) 97 F. 423, 424, 432. The syllabus epitomizes the views there expressed in this language: “Although the testimony of a witness upon an issue is not contradicted, where the only person who could have contradicted him is dead, and it is shown that the witness gave inconsistent testimony on a previous occasion, it is proper to submit the issue to the jury.” See, also, Bloomingdale et al. v. Southern National Bank of New York, 63 App. Div. 72, 71 N. Y. S. 306, 309; Clark v. Public Service Electric, 86 N. J. Law, 144, 91 A. 83, 85; Aquino v. Morris County Traction, 93 N. J. Law, 233, 106 A. 802, 107 A. 427, 429. The judgment below is reversed, and the case remanded for a new trial. VAN VALKENBURGH, Circuit Judge, concurs in the reversal of this ease upon the sole ground that the state of the evidence required submission to the jury. 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_numappel	3	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. Esse Forrester O’BRIEN, joined by her husband, John L. O’Brien, and William F. O’Brien, Appellants, v. UNITED STATES of America, Appellee. No. 24291. United States Court of Appeals Fifth Circuit. March 22, 1968. Rehearing Denied June 3, 1968. D. M. Wilson, Wilford W. Ñaman, Bryan, Wilson, Olson & Stem, Ñaman, Howell, Smith & Chase, Waco, Tex., for appellants. William O. Murray, Jr., Asst. U. S. Atty., San Antonio, Tex., Edwin L. Weisl, Jr., Asst. Atty. Gen., Roger P. Marquis, Raymond N. Zagone, Attys., Dept, of Justice, Washington, D. C., Ernest Morgan, U. S. Atty., San Antonio, Tex., for appellee. Before RIVES and GEWIN, Circuit Judges, and HANNAY, District Judge. HANNAY, District Judge: The proceedings below arose out of the exercise of the power of federal eminent domain. The condemned land consisted of some 87.78 acres out of a tract of 210.-65 acres owned by Appellants within the confines of the City of Waco, McLennan County, Texas. The purpose of the condemnation was the establishment of the Waco Reservoir Project in the Brazos River Basin in that locale of north central Texas. The greater bulk of the taken land was for the purpose of extending the already existing adjacent lake. Included in this area was acreage on the outer periphery of the extended lake. This was taken for purposes necessary and incident to its use and control. No issue is presented here as to the right of the sovereign to take, subject to just compensation, this portion of the condemned land. An issue is presented as to the extent of acreage taken for the purpose of a necessary substitute road; the remaining question here involves the general issue of just compensation. I. The Appellants’ land comprised, and mainly consisted of, a promontory overlooking a portion of the old lake and the area below the lake. The lake, as extended by the condemnation, drove a two pronged salient into the promontory. The promontory pointed generally in a northerly direction. At its foot and along the water’s edge there was a road of sufficient width to accommodate two vehicles. (Emphasis added throughout). This was part of the old Lake Shore Drive. It extended from an area below the old dam which was to the east of Appellants’ property around .the northern edge of Appellants’ property and on westerly. The intended use of the condemned land necessarily inundated this old Lake Shore Drive as it crossed Appellants’ land. For the purpose of a substitute road, a relocated Lake Shore Drive, the government condemned approximately 9 acres of Appellants’ land. Approximately 6 of these acres were taken in fee; the remaining approximate 3 acres were taken as a perpetual and assignable easement. The 6 acres consist of a strip 100 feet in width. The 3 acres is a strip of 50 feet in width. It is adjacent to the 100 foot strip. The 100 foot strip was for immediate construction of new roadway. This road is of two lane .dimension. Transfer of the entire 9 acre strip to the City of Waco, which had received the condemned portion of the old Lake Shore Drive as a dedication from the landowners, was contemplated. There is nothing in the record to suggest that fulfillment of this purpose was ever other than a virtual certainty. Appellants complain that the taking of the entire 9 acre strip was unauthorized; that it exceeded the area embraced by the old road and was a design to enable the City of Waco to eventually construct a roadway of as many as four lanes. As a general and fundamental principle, the exercise of the sovereign right of eminent domain is within the legislative power and mere questions of its range and extent in particular cases are ordinarily not subject to judicial correction and control. West Inc. v. United States, 5 Cir., 374 F.2d 218, 221, and authorities cited. Absent improper or corrupt subversion of legally delegated authority to define the extent of condemnation, this decision rests with the appropriate Executive officer concerned. West, Inc. v. United States, supra, at 222-223. There is no dispute that the taking here in question was for a valid public use. The Declaration of Taking by the Secretary of the Army states, inter lia: “The public uses for which said land is taken are as follows: The said land is necessary adequately to provide for the construction and operation of a flood control project and for other uses incident thereto. The said land has been selected by me for acquisition by the United States for use in connection with the establishment of Waco Reservoir on the Bosque River in the Brazos River Basin, Texas, and for such other uses as may be authorized by Congress or by the Executive Order.” There is no showing of prejudice to Appellants resulting from this taking for the new roadway. There is no specific issue of just compensation in respect to this particular item of land. Appellants rely upon wording in the Flood Control Act of 1960, Title 33, U.S.C.A. Section 701r-1(b), amended in 1962. This amendment redesignated subsection (b) as subsection (c) and, by Appellants’ concession, did not otherwise alter the controlling statute in material parts. Title 33, U.S.C.A. Section 701r-1(c) reads: “For water resources projects to be constructed in the future, when the taking by the Federal Government of an existing public road necessitates replacement, the substitute provided will, as nearly as practicable, serve in the same manner and reasonably as well as the existing road. The head of the Agency concerned is authorized to construct such substitute roads to design standards comparable to those of the State, or, where applicable State standards do not exist, those of the owning political division in which the road is located, for roads of the same classification as the road being replaced. The traffic existing at the time of the taking shall be used in the determination of the classification. In any case where a State or political subdivision thereof requests that such a substitute road be constructed to a higher standard than that provided in the preceding provisions of this subsection, and pays, prior to commencement of such construction, the additional costs involved due to such higher standard, such Agency head is authorized to construct such road to such higher standard. Federal costs under the provisions of this subsection shall be part of the non-reimbursable project costs.” The statute, read in its entirety, supports the action of the government rather than the complaint of the Appellants. An added consideration is the prospective need for maintenance. The ruling in Seneca Nation of Indians v. United States, 2 Cir., 338 F.2d 55, 57, certiorari denied, 380 U.S. 952, 85 S.Ct. 1084, 13 L.Ed.2d 969, is appropriate here: “We see no reason to interfere with this reasonable exercise of delegated administrative discretion as to the amount of land required for the relocation of the road. Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170 (1893); Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954). * * * as the District Court found, the increased highway requirements result in part from the * * * Project itself. Because the Secretary of the Army acted within his authority and reasonably, we affirmed the judgment.” II. The issue of compensation was submitted by the District Court to a Commission under Rule 71A(h), Federal Rules of Civil Procedure, in December of 1962. The Commission submitted its first report on June 28, 1963. It is undisputed that the highest and best use of the property before the taking was residential subdivision. The valuations placed by the Appellants’ witnesses and those made by the witnesses for the government were at great variance. The two witnesses for the Appellant set the just compensation figure at $367,375.00 and $345,675.00 respectively. Two of the government’s witnesses were of the opinion that the property had been enhanced by the taking. The evidence of the third government witness was excluded by the Commission because “ * * * he had considered access to the property in fixing market value after the taking.” This question of access, and the consideration to be given to it, is the kernel of the issue now before the Court. The Commission’s recommendation at that time was that the property had a market value before taking of $420,000.00; that it had a market value after taking of $308,528.20; and that the difference and the amount of just compensation was $111,471.80. The report was to be many times recommitted to the Commission before there was a final acceptance by the District Court. In their protracted course, the proceedings below were to transpire before three separate District Judges over a course of some four years and seven months. By final judgment entered August 16, 1966, the District Court accepted the Minority Commission’s report awarding compensation in the amount of $70,-224.00. The Majority Commission adhered to its original assessment from which, indeed, the minority had relented only after the second recommittal. The power of a District Judge in reviewing the findings and recommendations of a Commission under Rule 71A (h), Federal Rules of Civil Procedure, is the same as its power over the findings of fact by a Master under Rule 53(e) (2), Federal Rules of Civil Procedure. United States v. Merz, 376 U.S. 192, 198-200, 84 S.Ct. 639, 11 L.Ed.2d 629. Rules 71A(h) provides, inter alia: “ * * * If a commission is appointed it shall have the powers of a master provided in subdivision (c) of Rule 53 and proceedings before it shall be governed by the provisions of paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action and report shall be determined by a majority and its findings and report shall have the effect, and be dealt with by the court in accordance with the practice, prescribed in paragraph (2) of subdivision (e) of Rule 58.” Rule 53(e) (2), Federal Rules of Civil Procedure, provides, inter alia: “ * * * In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous. * * * The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.” The rule of decision in this Circuit in Rule 71A (h) proceedings is that the Court of Appeals reviews the determination of the District Court rather than that of the Commission in applying the “clearly erroneous” standard to the finality of the prior findings of fact. United States v. Twin City Power Company of Georgia, 5 Cir., 253 F.2d 197; United States v. Tampa Bay Garden Apartments, Inc., 5 Cir., 294 F.2d 598; Parks v. United States, 5 Cir., 293 F.2d 482; United States v. 2,872.88 Acres of Land, etc., 5 Cir., 310 F.2d 775, modified in United States v. Merz et al., 376 U.S. 192, 84 S.Ct. 639, 11 L.Ed.2d 629. Viewed upon the whole, but not without exception as hereafter to be shown, “the evidence before the commission met the standard of substantiality to withstand a reversal by the district court.” 310 F.2d, at 779. The record reflects that the topography of the taken land was characterized by ravines and crevices — a factor most likely adverse to residential development of the land. Increased water frontage of the remaining property unimpeded by the old Lake Shore Drive clearly touches upon the question of enhancement of value. The improved artery, the new Lake Shore Drive, could reasonably be said to have the same enhancing effect. It does but very little to diminish the increased new water frontage. Lastly, the valuation of what is in effect $800.00 for each acre taken, in light of the record and the applicable test of market value of the whole before and after the taking, is generally within the bounds of reasonableness. III. The area in which exception must be taken to the conclusion below is on the question of access, legal access, to the new roadway. This does not involve Appellants’ land that lies east of the new lake salient. This portion, in its present extent, remains adjacent to the Forrester Lane that was the easternmost boundary of Appellants’ property. Appellants’ land west of the new lake salient, however, was effectively landlocked by the project. Prior to the taking Appellants’ property had at least three access routes to adjacent roadways. All of these are now denied the western sector of Appellants’ land. There is, it is true, evidence in the record that the City of Waco would, as a practical and prospective matter, make the new Lake Shore Drive available to newly created routes of access that may be established by the Appellants. This Court agrees with Appellants that there is a substantive distinction between this prospective practical accessibility on the one hand and accomplished legal access on the other. The District Court patently recognized this unsolved problem area in the case. In its third recommittal to the Commission the District Court directed the majority to specify the amount of severance damages, if any, that they attributed to the alleged loss of access. The majority responded with a specific finding of severance damages arising out of loss of access in the amount of $5,-000.00. This was based upon a government’s witness’ testimony that it would require $5,300.00 to build a road from the homesite on the west side to the new Lake Shore Drive. There was no existing road from this homesite to the new Lake Shore Drive. This homesite was located practically the entire depth of the property northward of the new Lake Shore Drive. The majority commission report was thus responsive to the Order of Recommittal. The minority commission, in its previous report, had in effect stated that the question of access had been considered in its determination of just compensation in the amount of $70,224.80. In the same third Order of Recommittal the minority was directed to elaborate on the basis of its assessment with particular emphasis on the access issue. This point was emphasized in an amendment to the third Order of Recommittal. It stated in material part: “It further appearing to the Court that if * * * the minority member should state that in the original report of the Commission he did not consider what the amount of severance damages, as such, attributable to the alleged loss of access would have been, he should make additional findings with respect to the following: (d) Assuming that there was loss of access, what do you now consider would have been the amount of severance damages properly attributable to such loss of access giving the path followed and specifying the testimony or other evidence relied upon?” There was, after all, a discrepancy of $41,247.80 between the original and eventual assessment of the Minority Commission. The Minority Commission’s ensuing report, which was otherwise adequately detailed and reasoned, was non-responsive on the Court directed issue of severance damages arising from loss of access. The following quotation from this report, in addition to others that could be extracted from it, will amply demonstrate this fact: “ * * * It is very difficult for me to assume that there was a loss of access. I cannot feature the Government’s spending so much money to build a road and then not letting the landowners use it. I do not believe that there is any evidence that says that the City or the Federal Government is going to deny access when the road is completed, I therefore, cannot answer the question asked by the Court: ‘Assuming that there was a loss of access, what do you now consider would have been the amount of severance damages properly attributable to such loss of access, giving the path followed and specifying the testimony or other evidence relied upon?’ The only way that I could consider that there would be no access, would be to disregard the testimony of the city officials and of Mr. John L. Smith of the Corps of Engineers, which I have set out in my report.” This non-responsiveness by the Minority Commission on what may now be called the severance damage issue continued through the fourth Order of Recommittal and the minority’s answer, or lack of an answer, thereto. In this limited but material respect the minority not only neglects a material finding of fact but forecloses, on its own motion and erroneously, a question of law. This Court is of opinion that the Minority Commission provided no substantial basis for acceptance of his assessment in this limited respect. This deficiency may be treated in light of a responsive specific finding in the record on the issue of severance damages due to loss of access. This Court is of the considered opinion that this litigation can and should be concluded by adding to the District Court’s determination of just compensation the specific finding in the record of severance damages due to loss of legal access, to wit, $5,000.00. United States v. Merz, supra; Rules 72A(h) and 53(e) (2), Federal Rules of Civil Procedure. Accordingly, the judgment below is affirmed as modified herein and remanded to the District Court for proceedings consistent herewith. Question: What is the total number of appellants in the case? Answer with a number. 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). UNITED STATES of America, Plaintiff-Appellee, v. Richard Henry BECK, Defendant-Appellant. No. 72-2528 Summary Calendar. United States Court of Appeals, Fifth Circuit. Jan. 4, 1973. James C. Bonner, Jr., Decatur, Ga. (Court appointed), for defendant-appellant. John W. Stokes, Jr., U. S. Atty., George H. Connell, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee. Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: This is a direct appeal from Richard Henry Beck’s conviction for possession and forgery of a stolen United States Treasury check in violation of 18 U.S.C. §§ 1708 and 495. The criminal activity occurred about May 8, 1969. While in a county jail on other state charges some time in February of 1970, federal authorities indicated their interest in Beck to state officials. On April 27, 1970, federal agents questioned Beck who admitted possessing and endorsing the cheek by using the name of John R. Kelly; he also provided the agents with a handwriting sample. On May 11, 1970, federal authorities issued a formal complaint and lodged a detain-er against him since he was still in state custody. Beck wrote to the United States Attorney or District Court on at least three occasions in an effort to lift the detainer. However, Beck was not indicted until February 7, 1972. Thus 21 months elapsed between the formal detainer and the indictment. Appellant states in his brief that the “one issue presented for appeal concerns the District Court’s denial of Appellant’s motion under Rule 48(b), Federal Rules of Criminal Procedure, seeking dismissal of the indictment for unnecessary and oppresive [sic] delay of 21 months in presenting the charges, lodged against him in prison as a detainer, to the grand jury.” Rule 48(b) provides discretionary authority in the District Judge: “If there is unnecessary delay in presenting the charge to a grand jury . . ., the court may dismiss the indictment, information or complaint.” According to our recent decision in United States v. Judice, 5 Cir., 1972, 457 F.2d 414, 415 n. 1, a “timely indictment under the limitation statute is not ‘unnecessary delay’ under Rule 48(b).” Here Beck was indicted well within the 5-year statute of limitations specified by 18 U.S.C. § 3282. Furthermore, upon a review of the record and circumstances presented here, we do not believe the Trial Judge abused his discretion by refusing to dismiss the indictment. Affirmed. . Beck’s violations of state and federal law include a conviction on March 3, 1970, of a federal offense for illegal possession and transferal of guns, resulting in a sentence for 18 months of imprisonment. On March 10, 1970, he was convicted by the State of Georgia on drug charges and sentenced to 2 years of imprisonment. His convictions in the present case occurred on June 6, 1972, resulting in 6 more months to be served concurrently with his prior sentences. Beck first served the state sentence, and then was transferred to federal custody. Imprisonment for both the gun violations and the present Treasury check violations has already ended. Nevertheless, this case is not moot because of possible collateral consequences. See generally Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Murray v. Wainwright, 5 Cir., 1971, 450 F.2d 465, 468. 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_usc1sect	158	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 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GARDNER CONSTRUCTION COMPANY, Respondent. No. 6753. United States Court of Appeals Tenth Circuit. Oct. 31, 1961. Samuel M. Singer, Washington, D. C. (Stuart Rothman, Dominick L. Manoli, Marcel Mallet-Prevost and Judith Bleich Kahn, Washington, D. C., on the brief), for petitioner. Harold B. Wagner, Denver, Colo, (Raymond A. Wagner and Carl A. Wyers, Denver, Colo., on the brief), for respond-en^- Before LEWIS and BREITENSTEIN, Circuit Judges, and CHILSON, District Judge. LEWIS Circuit Judge. ’ . .. i The National Labor Relations Board , as petitioner seeks enforcement of a ^ -.X Board order directed to the respondent ^ Company and entered after a finding , ■, that respondent had discharged one Moore for protected union activities m violation of Sec. 8(a) (1,3) of the Labor ,, , A . -tr\An Management Relations Act 1947 as amended, 29 U.S.C.A. § 158(a) (1 3). The order of enforcement is resisted by the contention that there is insufficient competent evidence to support the Board s finding that Moore s discharge was discriminatorily motivated. The charging party is Local No. 13, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. ~ t ~ « n u y ’ ’. ® resPon en om pany was engaged m building a part of the Interstate Highway System on Highway 87 in Colorado. The job was nonunion. Part of the construction work consisted of hauling mixed dry aggregate from a plant to that portion of the highway then being paved, dumping the load into a hopper of the paving train and then laying the finished mix. The respondent Company had contracted with Giffin Bros., Inc., whereby the latter company made the haul at an agreed unit price. Giffin Bros., Inc. furnished both trucks and drivers including Moore, whose discharge triggered this proceeding, and Scales, a truck foreman, whose testimony is now asserted to be incompetent and an improper basis for the Board’s action. Although Moore and Scales were hired by Giffin Bros., complete and absolute control of the men’s activities was thereafter at least shared by the respondent Company. Both men, indeed all men hired by Giffin Bros., were paid directly through the respondent Company's payroll with all required withholdings and , , , ,, , , , employees records handled by respond- , „ • . , ~ ,, ent. Supervisory control of the men , , rested with respondent and disciplinary ,. . , , action, including discharge, was exercised by ndent Under these circum_ stanceg it ig dear tbat both Moore and 0 , i( , „ « ,, , Scales were “employees” of the respondent Company within ^ purview of the Labor Management Act. In fact tbe angwer of ^ ndent admits that „ * * * tbe Re dent discharged itg ]oyee Robert Duane Moore,, The testimony regarding incidents leading to Moore’s discharge is in sharp and irreconcilable conflict. The testimony of Harry Gardner, respondent’s vice president, indicated that the state resident engineer had issued an ultimatum that sloppy truck driving on thg projgct bad to fee gtopped and that ^ mee^. ^bjg complaint Gardner had decjded to fire the first driver who spilled his load; that Moore was the first driver to do so and he was fired for that reason; that the discharge was by truck number and that Gardner had no knowledge of the identity of the driver. Had this version of the incident been accepted as credible by the Board it would clearly negative the existence of an unfair labor practice. N. L. R. B. v. National Paper Co., 5 Cir., 216 F.2d 859; N. L. R. B. v. Whitin Machine Works, 1 Cir., 204 F.2d 883. But Gardner’s testimony was in effect rejected in toto by the Board.1 And although we are now urged to deny enforcement because respondent’s evidence gives a complete and satisfactory explanation of the incident we cannot set aside the Board order unless the supporting evidence is insufficient when viewed from that aspect found to be credible by the fact finder. We deem such evidence to be wholly sufficient when so premised. The Board relied upon testimony establishing the following background for Moore’s discharge. Moore was a member of the Teamsters Local No. 13 and wore a union button pinned prominently upon his cap. On July 5, during the lunch period, representatives of the Teamsters were talking to a group of drivers and, at Moore’s request, explained the benefits of unionism. Gardner came upon the meeting, brusquely ordered the Union agents off the job-site and told Moore that if he was the one doing the talking he (Moore) was dissatisfied with his job. Moore was given his closing check in midafternoon at Gardner’s direction but by the foreman Scales who told Moore that the discharge was occasioned by the noon incident. No complaint had been made of Moore’s driving and prior to the incident he had been used to instruct others in the technique of the work. Seales’ statement that Moore was discharged for union activity was clearly an admission by respondent. Scales was both an employee of the respondent and an agent to effectuate Moore’s discharge. The statement was made in the course of his employment and was directly connected with his assigned responsibility. The Board could properly consider the statement as indicative of the reason for Moore’s discharge. N. L. R. B. v. Reed & Prince Mfg. Co., 1 Cir., 205 F.2d 131, 138. The record will also support a finding that respondent knew Moore’s identity when his discharge was ordered. Gardner had talked face to face with Moore at noon and a few hours later personally pointed him out as the driver to be fired. He was then within 75 feet of him. The order must be enforced. It is so ordered. . In this Gardner was corroborated by the resident engineer. . The trial examiner’s report, adopted by the Board, stated: “Gardner’s version of this incident, which the undersigned has read and carefully considered, is at variance with that of Salter. In the light of the entire record, the undersigned accepts as substantially correct Salter’s version and rejects Gardner’s version.. “The undersigned accepts Moore’s testimony regarding what transpired on the ■ afternoon of July 5, after the Union representatives and their companions left the job site, as substantially in accord with . the facts, and rejects Gardner’s testimony with respect to the events of that afternoon mainly on (1) a careful scrutiny of the entire record in the case, all of which has been carefully read, and parts of which have been reread and rechecked several times; (2) the candor with which Moore admitted that he could not be certain as to the dates or the exact words used by Gardner and others; and (3) the fact that Moore particularly impressed the undersigned as being a person who is careful with the truth and meticulous in not enlarging his testimony beyond his actual memory of what occurred or what was said. On the other hand, Gardner gave the undersigned the impression that he was studiously attempting to conform his testimony to what he considered to be the best interest of Respondent.” . The testimony of Gardner contrasted sharply with the testimony of Moore and the union agent Salter as to what transpired at this time. 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 29? Answer with a number. Answer:
songer_genresp2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. EASTERN CARBON BLACK CO. v. BRAST, Collector of Internal Revenue. No. 4424. Circuit Court of Appeals, Fourth Circuit. June 12, 1939. Robert S. Spilman and J. M. Woods, both of Charleston, W. Va. (A. B. Hodges and Price, Smith & Spilman, both of Charleston, W. Va., on the brief), for appellant. Ellis N. Slack, Sp. Asst. to Atty.. Gen. (James W.. Morris, Asst. Atty. Gen., Sewall Key, Sp. Asst. to Atty. Gen., and Joe V. Gibson, U. S. Atty., of Kingwood, W. Va., on the brief), for appellee. Before PARKER, NORTHCOTT, and SOPER, Circuit Judges. PARKER, Circuit Judge. This is a suit by a taxpayer to recover $54,184.99 with interest, representing deficiency assessments of federal income and profits taxes for the year 1919 paid under protest. From a judgment in favor of the collector, the taxpayer has appealed. The principal question involved is the correctness of the deficiency assessments. Questions were raised in the court below involving the statute of limitations and the propriety of depletion allowances made taxpayer by the commissioner, in addition to those involving the correctness of the deficiency assessments; but as these questions become immaterial if the deficiency assessments were correct, as we think they were, we need not consider them. Taxpayer is a corporation which between 1913 and 1928 was engaged in the manufacture of carbon black. One-half of its capital stock of 500 shares was owned by the George H. Morrill Company and one-half by Davis Brothers, a partnership. Between 1913 and 1919, Davis Brothers had charge of manufacturing carbon black for taxpayer and the Morrill Company had control of sales and possession of the books. By contract of 1913, modified in particulars not here relevant in 1916, taxpayer agreed to sell to the Morrill Company 1,000,000 pounds of carbon black each year at five cents per pound for a period ■of six years ending April 30, 1919. Between 1916 and 1919 the market price of carbon black greatly increased, reaching at one time a price of eleven cents per pound. Notwithstanding this increase, the Morrill Company not only continued to get the 1,-000,000 pounds annually provided for by its contract at five cents per pound, but also took more than 2,000,000 pounds in excess of that amount at the contract price. Davis Brothers became dissatisfied with this conduct on the part of the Morrill Company and in April, 1919, they sought a conference with representatives of that company with regard to the matter, claiming that the carbon black was not being sold at as high a price as was obtainable. As a result of this conference, it was agreed: (1) that the Morrill Company should pay Davis Brothers $50,000; (2) that the product of the taxpayer which had accumulated in its warehouses and its production from then on should be equally divided between the Morrill Company and Davis Brothers and charged to them at four cents per pound; and (3) that the contracts for sale of carbon black held by taxpayer should be assigned to Davis Brothers and that Davis Brothers should account to the Morrill Company for one-half of the profit realized from filling these contracts. The $50,000 provided for by this agreement was duly paid to Davis Brothers by the Morrill Company in the year 1919, carbon black was furnished for the remainder of the year to both Morrill Company and Davis Brothers, being divided between them equally and charged to them on the books at four cents per pound, and the contracts of taxpayer were duly assigned to Davis Brothers, who realized in filling them a profit of $24,161.42, which it divided with the Morrill Company pursuant to the contract. The amount of carbon black delivered to the Morrill Company and Davis Brothers during the year was 2,739,375 pounds each. It was charged on the books of taxpayer at four cents per pound, but an auditor of taxpayer on April 16, 1920, made an entry in the books changing this to six cents per pound, which made a difference in the price of $109,575. Later an agreement was made between the Morrill Company and Davis Brothers that the tax return for taxpayer for the year 1919 should be made on the basis of the sale of their product at four cents per pound, and the books were changed back to show a sale at four cents. Taxpayer reported net income that year of $10,412.88. The Commissioner of Internal Revenue added to this the items of $50,-000, $109,575 and $24,161.42, above referred to, and made deficiency assessments accordingly. As to the $50,000 item, it appears that, at the time of the payment of this amount to Davis Brothers, the Morrill Company made a computation for tax purposes in which it apportioned the item to the years 1917, 1918 and 1919 in proportion to the excess amount of carbon black received in each year. This allocation was set forth in a memorandum made at the time of the settlement between the Morrill Company and Davis Brothers. It was admittedly made with reference to distribution of the amount for purposes of taxation and was found in the files of taxpayer. The Mor-rill Company used it as a basis for making returns for the years in question, although that company did subsequently claim and was allowed deduction for the entire $50,-000 for the year 1919. Davis Brothers reported the $50,000 as individual income for the year 1919, but filed petitions for refund with regard thereto, and these refunds were allowed and were received by them. As to the $109,575 item, it appears that the contract entered into on April 23, 1919, stipulated that the carbon black should be sold to the Morrill Company and Davis Brothers at four cents per pound. The witness Perkins, who represented the Mor-rill Company in the settlement in which the contract was made, testified, however, that the agreement was “that the black should be split up at as near cost as we could figure it, leaving a sufficient margin to keep from running into red figures.” The auditor who changed the charge on the books from four cents to six cents was employed by taxpayer; there is no explanation in the record as to why he changed the charge from four to six cents; and in the absence of other explanation the natural inference is that the change was made to bring the charge up to cost. It is argued that this inference is not permissible because the return of the company on the basis of the four- cent charge showed net income of $10,912.88; but this fact proves nothing as it does not appear from the record what the sources of income were, and the net income shown may have resulted from other transactions and may have been reduced to the small figure appearing because of losses sustained from sale at the four cent price. No reason appears for reducing the price to four cents when the five cent price had been the cause of controversy as being too low; and, that the price was to be cost and that the cost was around six cents, is shown by the fact that on April ,28, 1920, just twelve days aft-ter the entry was made by the auditor changing the price from four to six cents, contracts were entered into between the Morrill Company and Davis Brothers providing that the price of 1920 should be six cents, that the price for 1921 should be subject to readjustment proportionate to any change in cost and that, if the price of six cents for" the year 1920 should not be sufficient to pay the cost of manufacture during the year, the Morrill Company and Davis Brothers should pay the difference when such average cost was determined. It is significant that, at the same time, an agreement was made between the Morrill Company and Davis Brothers that the tax return for taxpayer for the year 1919 should be made out on the basis of a four cent price for carbon black during that year, and that the entry in the books changing the price back from six cents to four cents was made.on that day. It is clear from the record that, while the settlement of the controversy between Davis Brothers and the Morrill Company was the purpose of the contract entered into in April, 1919, the question of tax liability entered also into the calculations of the contracting parties; and we think that the findings of the District Judge with regard thereto are amply supported. The portions of the findings relevant to the questions before us are as follows: “VIII. During the latter part of April, 1919, the stockholders of the plaintiff corporation met in Boston for the purpose of adjusting certain differences which had arisen between them with reference to the management and operation of the plaintiff corporation. In connection with the adjustment and satisfaction of these differences, the stockholders of the plaintiff corporation evolved a plan for relieving the plaintiff corporation from war taxes on its profits for the year 1919, both those which had been earned and those to be earned, and for distributing these profits pro rata among the stockholders without any dividend being declared by the corporation. For the purpose of putting this plan into effect, three contracts were executed on April 23, 1919. * * * One of these contracts, which was between the stockholders, the stockholders caused the plaintiff corporation to ratify and" approve for the purpose of relinquishing to the stockholders its existing rights. Said stockholders caused the plaintiff corporation to execute the two remaining contracts, by which the whole production of this plaintiff corporation was sold, and agreed to be sold, one-half to each stockholder, at a price far below the market value of the product, to wit, at cost. “IX. Pursuant to the agreements made on April 23, 1919, and as a part of the plan to avoid taxation then agreed upon by the stockholders of the plaintiff, hereinbe-fore referred to, the plaintiff sold and delivered during the period from May 1, 1919, to December 31, 1919, to George H. Morrill Company 2,737,375 pounds of carbon black, and also sold and delivered during the sáme period to Davis Bros., 2,739,-375 pounds of carbon black, the two amounts being all the carbon black produced by the plaintiff during that period. The price of said carbon black specified in the said agreements as four cents per pound was an estimate of the cost of producing the said carbon black, and it was understood and agreed by the parties to the said contracts at .the time the contracts were made and as one of the terms thereof, that the real price should be not less than the cost of production. The cost of production was not less than six cents per pound. As the carbon black was produced it was billed to the said Morrill Company and to the said Davis Brothers at four cents per pound. At the close of the year, when the cost of production had been ascertained, an additional charge of two cents per pound was made on the books of the Eastern Carbon Black Company against the said Morrill Company for the carbon black sold to it, the amount of the charge being $54,787.50. At the same time a like charge was made in the same way against Davis Brothers. Thereafter, the Morrill Company and Davis Brothers agreed that the tax returns of the Eastern Carbon Black Company for 1919 should be made on the basis of a price of four cents a pound. “X. By contract dated April 30, 1913, and modified February 28, 1916, the plaintiff agreed to sell to George H. Morrill Company 1,000,000 pounds of carbon black in each of the years 1916, 1917, and 1918 at five cents a pound. During that period an amount of carbon black greatly in excess of the contract quantity was delivered to the Morrill Company. The price which was to be paid for this excess was a matter in dispute between the stockholders at the time of their meeting late in April, 1919, previously referred to. The dispute was compromised and settled with the consent and approval of the Board of Directors and of the stockholders of the plaintiff on April 23, 1919. As a part of this settlement, and pursuant to the plan to avoid taxes agreed upon by the stockholders, and hereinbefore mentioned, the Morrill Company paid during the year 1919 directly to Davis Brothers $50,000.00. The said $50,000.00 was intended to be, and was, to cover the amount due for one-half of the excess quantity of carbon black delivered as aforesaid to Morrill Company. * * * “XI. Pursuant to the agreements made on April 23, 1919, and as a part of the plan to avoid taxes then agreed upon by the stockholders, as hereinbefore set forth, Davis Brothers delivered and received payment for large quantities of carbon black under various contracts which had prior to April 23, 1919, been made by the plaintiff corporation with various purchasers for the sale of its carbon black to those purchasers. The fulfillment of these contracts by Davis Brothers resulted in a profit of $24,161.42, of which the Davis Brothers paid over one-half to Morrill Company and retained the remaining half. * * $ » We think that there can be no question but that the $50,000 item was properly added to taxpayer’s income. The claim which was the basis of this payment was the claim of taxpayer and not of its stockholders. The Morrill Company, which had charge of taxpayer’s sales, had sold to itself at a grossly inadequate price an amount of carbon black largely in excess of what it was entitled to receive under its contract. Davis Brothers, as holders of its stock, had a grievance because taxpayer had not received for its product the price which the market justified, but the claim so asserted was a claim which could be enforced only in behalf of taxpayer. There was of course no impropriety in the stockholders’ settling the controversy which had arisen by payments between themselves; but it must not be overlooked that what Davis Brothers received was in reality money belonging to taxpayer, and that its taxability as income of that corporation was not affected by the fact that it was paid directly to the stockholders aggrieved instead of to the corporation to be disbursed to them by way of dividends. As said by Mr. Justice Holmes, speaking for the Supreme Court in Corliss v. Bowers, 281 U.S. 376, 378, 50 S.Ct. 336, 337, 74 L.Ed. 916: “The income that is subject to a man’s unfettered command and that he is free to enjoy at his own option may be taxed to him as his income, whether he sees fit to enjoy it or not”. And to this we may add that a corporation cannot escape taxation by permitting income to which it is entitled to be paid directly to its stockholders. Cf. Garrison Bros. State Bank v. Commissioner, 9 Cir., 67 F.2d 486. Taxpayer is not helped by the argument that the amount was paid by one stockholder to another to settle a controversy and preserve the existing relationship. The controversy related to the fact that one stockholder had been purchasing property from the corporation for which he should have paid the corporation a greater price. Payment was recognition of the justice of the claim and, although made to the other stockholder, was in ex-tinguishment of the corporation’s claim, and corporate action was had in approval thereof. The fact that both parties together owned all of the stock of the corporation rendered it possible, by payment from one to the other, to settle the controversy without payment to the corporation; but this cannot obscure the fact that it was a claim of the corporation which was bei-ng settled by the payment. The case in essence is not different from that presented in Gold & Stock Telegraph Company v. Commissioner, 2 Cir., 83 F.2d 465, wherein a telegraph corporation which had leased all of its property was 'held liable for income tax on income derived from the property although this was paid directly to its stockholders. What we have is the receipt by a stockholder of income to which the corporation in which he holds stock is entitled, as the result of an agreement by the corporation that such income be paid to the stockholder. The judge below held that $100,000 instead of $50,000 should have been added to the income of the corporation on account of the settlement had between Davis Brothers and the Morrill Company as to past transactions, on the theory that the payment of $50,000 to Davis Brothers was only one-half of the additional payment to which the corporation was found to be entitled by that settlement. We are inclined to -agree with the trial judge in this conclusion, but the point need not be decided, as only $50,000 was added to income by the commissioner on this account. With respect to the $109,575 item, • arrived at by adding two cents per pound to the carbon black sold the Morrill Company and Davis Brothers during the year 1919, it appears that the market price, was far in excess of the price of six cents resulting, and that the commissioner adopted the six cent figure because of the understanding that the real price should be cost of production which was six cents. We do not think taxpayer is in position to complain of this. In the case of ordinary sales, there is no point in distinguishing between market value and sale price; but, where there is a sale to stockholders below market value, this is in effect a distribution among stockholders and the price obtained is not determinative in computing income, a part of which is thus distributed. The carbon black delivered to the stockholders here was worth more than six cents a pound in the hands of the corporation. When it charged the stockholders less than that amount for it, it was not in reality reducing its income but giving a part of that income to the stockholders. The real income of the corporation can no more be affected by such a transaction, we think, than by the payment of exorbitant salaries; and the existence of a formal contract constitutes no more justification for ignoring the real income in the one case than in the other. As to the profits made on the contracts assigned by taxpayer to Davis Brothers, little need be said. These contracts were property of the taxpayer. It had the carbon black with which to fill them. When it sold this carbon black to Davis Brothers at cost and assigned to them the contracts with, an agreement that the profits realized should be divided with the other stockholder, it simply transferred to stockholders the right to receive income to which it was entitled; and upon the principles heretofore stated it should be taxed upon that income. Cf. Tazewell Electric Light & Power Co. v. Strother, 4 Cir., 84 F.2d 327. The conclusion at which we have arrived is based, not on the fact that there was an intent on the part of the. parties concerned to evade taxes, but on the fact that, when regard is had to substance and not form, the income involved was in reality the income of taxpayer. The $50,000 payment by the Morrill Company to Davis Brothers was on account of carbon black sold by taxpayer at an inadequate price to one who occupied towards it the confidential relationship of agent. The $109,575 was additional value of carbon black manufactured by and belonging to taxpayer, which was distributed to its stock-holdérs at an inadequate price. The $24,-161.42 was profit realized on contracts belonging to taxpayer which were filled with carbon black which it had manufactured. We do not think that the income of the corporation can be held to be relieved of taxation because it is distributed among the stockholders in the manner set forth instead of being collected and distributed in the form of dividends. Affirmed, 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:
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. REMMER v. UNITED STATES. No. 304. Argued February 1-2, 1954. Decided March 8, 1954. J. Louis Monarch argued the cause for petitioner. With him on the brief were Spurgeon Avakian, John R. Golden and Leslie C. Gillen. Philip Elman argued the cause for the United States. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Holland, Ellis N. Slack and Joseph M. Howard. Mr. Justice Minton delivered the opinion of the Court. The petitioner was convicted by a jury on several counts charging willful evasion of the payment of federal income taxes. A matter admitted by the Government to have been handled by the trial court in a manner that may have been prejudicial to the petitioner, and therefore confessed as error, is presented at the threshold and must be disposed of first. After the jury had returned its verdict, the petitioner learned for the first time that during the trial a person unnamed had communicated with a certain juror, who afterwards became the jury foreman, and remarked to him that he could profit by bringing in a verdict favorable to the petitioner. The juror reported the incident to the judge, who informed the prosecuting attorneys and advised with them. As a result, the Federal Bureau of Investigation was requested to make an investigation and report, which was accordingly done. The F. B. I. report was considered by the judge and prosecutors alone, and they apparently concluded that the statement to the juror was made in jest, and nothing further was done or said about the matter. Neither the judge nor the prosecutors informed the petitioner of the incident, and he and his counsel first learned of the matter by reading of it in the newspapers after the verdict. The above-stated facts were alleged in a motion for a new trial, together with an allegation that the petitioner was substantially prejudiced, thereby depriving him of a fair trial, and a request for a hearing to determine the circumstances surrounding the incident and its effect on the jury. A supporting affidavit of the petitioner’s attorneys recited the alleged occurrences and stated that if they had known of the incident they would have moved for a mistrial and requested that the juror in question be replaced by an alternate juror. Two newspaper articles reporting the incident were attached to the affidavit. The Government did not file answering affidavits. The District Court, without holding the requested hearing, denied the motion for a new trial. The Court of Appeals held that the District Court had not abused its discretion, since the petitioner had shown no prejudice to him. 205 F. 2d 277, 291. The case is here on writ of certiorari. 346 U. S. 884. In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. Mattox v. United States, 146 U. S. 140, 148-150; Wheaton v. United States, 133 F. 2d 522, 527. We do not know from this record, nor does the petitioner know, what actually transpired, or whether the incidents that may have occurred were harmful or harmless. The sending of an F. B. I. agent in the midst of a trial to investigate a juror as to his conduct is bound to impress the juror and is very apt to do so unduly. A juror must feel free to exercise his functions without the F. B. I. or anyone else looking over his shoulder. The integrity of jury proceedings must not be jeopardized by unauthorized invasions. The trial court should not decide and take final action ex parte on information such as was received in this case, but should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate. We therefore vacate the judgment of the Court of Appeals and remand the case to the District Court with directions to hold a hearing to determine whether the incident complained of was harmful to the petitioner, and if after hearing it is found to have been harmful, to grant a new trial. Judgment vacated. The Chief Justice took no part in the consideration . or decision of this case. The motion for a new trial was also grounded on many other contentions, several of which have also been presented to this Court. Because of our disposition of the case on the issue treated herein, we do not pass upon these additional questions. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:
songer_typeiss	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. Robert Lee TARIN, Appellant, v. UNITED STATES of America, Appellee. No. 22044. United States Court of Appeals Fifth Circuit. Nov. 5, 1965. Rehearings Denied Dec. 7, 1965. Thomas A. Rice, Atlanta, Ga., for appellant. Gary B. Blasingame, Asst. U. S. Atty., Tyrus R. Atkinson, Jr., Asst. U. S. Atty., and Floyd M. Buford, U. S. Atty, Macon, Ga., for appellee. Before TUTTLE, Chief Judge, and BELL and COLEMAN, Circuit Judges. PER CURIAM. Appellant was convicted of transporting a falsely made security in interstate commerce in violation of 18 U.S.C., Section 2814, and was sentenced to four years in the custody of the Attorney General. He here contends that the evidence was insufficient to support the verdict, that there were errors in the admission of evidence, that he was not allowed to file a certain affidavit in lieu of testimony, and that it was error for the trial judge to inform the jury that he had been found competent to stand trial after the defense attorney had so stated in his opening statement. None but the latter assignment is of sufficient merit to justify formal discussion. Among other things, 18 U.S.C.A. section 4244 provides that a finding by the judge that the accused is mentally competent to stand trial shall not be introduced in evidence on the issue of insanity as a defense to the crime charged nor otherwise be brought to the notice of the jury (italics supplied). In his opening statement to jury, before any witness testified, Counsel for the defendant said, “Now, it is true that a determination has been made by psychiatrists that Mr. Tarin does now have or is now competent to furnish his attorney with a defense and therefore should be tried”. In his charge to the jury the trial judge said, “I have already had it determined for my own satisfaction before I began the trial of this case that the defendant is at this time mentally capable to stand trial; otherwise, we would not be here trying the defendant. I have satisfied myself about that, but the mere fact that I have determined for my own satisfaction in the trial of this case that he is now mentally competent does not automatically mean that he was mentally competent on October 30, 1963, because temporary insanity, as well as insanity of longer duration is recognized by the law.” We note that the Defendant entered no objection to this charge. Rule 30 F.R.Crim.P. requires such to have been made. Where none is made it is waived. Smith v. United States, 265 F.2d 14 (5 Cir., 1959). In any event, the error was harmless. The judge simply reiterated facts which the Defendant voluntarily injected into the case. Moreover, the jury was amply admonished that such a finding did not mean that the Defendant was sane on the date of the alleged offense. See Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725, certiorari denied 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed. 2d 1067, certiorari denied 362 U.S. 943, 80 S.Ct. 809, 4 L.Ed.2d 771, certiorari denied 368 U.S. 992, 82 S.Ct. 610, 7 L.Ed. 2d 529; Mercer v. Theriot, 377 U.S. 152, 84 S.Ct. 1157, 12 L.Ed.2d 206 (1964); Roland v. United States, 295 F.2d 471 (5 Cir. 1961); Glenn v. United States, 303 F.2d 536 (5 Cir. 1962); and Traxler v. United States, 293 F.2d 327 (5 Cir. 1961). Affirmed. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_state	34	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". JENKINS v. AMERICAN ENKA CORPORATION. No. 4279. Circuit Court of Appeals, Fourth Circuit. April 5, 1938. Vonno L. Gudger, of Asheville, N. C., for appellant. W. C. Meekins and J. Bat Smathers, both of Asheville, N. C. (S. G. Bernard, of Asheville, N. C., on the brief), for appellee. Before PARKER, NORTHCOTT, and SOPER, Circuit Judges. NORTHCOTT, Circuit Judge. This is an action at law brought by the appellant John E. Jenkins, here referred to as the plaintiff, in the general county court of Buncombe county, North Carolina, against the appellee, American Enka Corporation, a Delaware corporation, here referred to as the defendant. The object of .the action was to recover damages for injuries to plaintiff alleged to have been caused by the negligence of defendant’s officials. In February, 1937, on motion of the defendant, the cause was removed to the District Court of the United States for the Western District of North Carolina. The defendant filed an answer to the complaint pleading the North Carolina Workmen’s Compensation Act, Pub.Acts N.C.1929, c. 120, as amended, in abatement of plaintiff’s alleged cause of action .and in bar of the plaintiff’s right to recover. A hearing wa.s had on the. 26th day of July, 1937, and the judge sustained the defendant’s plea in bar and abatement and entered an order dismissing the action with costs to the defendant. From this action of the court below this appeal was brought. The defendant corporation owned and operated a rayon manufacturing plant at Enka, North Carolina, and the plaintiff worked in the plant from April 27, 1934, to January 5, 1935. In his complaint plaintiff alleged that his health became seriously and permanently impaired because of the unhealthy working conditions in defendant’s plant, conditions which were known and could have been prevented by proper care, and that he was not cautioned or warned as to these conditions and their probable effect on his health. Defendant in its answer denied that the working conditions were unhealthy and set up the fact that plaintiff, in his,written application for employment, had agreed to be bound by the terms of the North Carolina Workmen’s Compensation Act and that act furnished him the sole and only remedy for any damage he may have suffered. While the decisions of the Supreme Court of North Carolina are somewhat conflicting as to whether a disease of the character alleged to have been contracted by the plaintiff, while in the defendant’s employment, is compensable, a study of the opinions of that court in the cases of McNeely v. Carolina Asbestos Company, 206 N.C. 568, 174 S.E. 509; Swink v. Carolina Asbestos Company, 210 N.C. 303, 186 S.E. 258; Conrad v. Cook-Lewis Foundry Company, 198 N.C. 723, 153 S.E. 266, and Lee v. American Enka Corporation, 212 N.C. 455, 461, 193 S.E. 809, leads us to the conclusion that under these decisions the injuries of the plaintiff, if any, were compensable under the North Carolina Workmen’s Compensation Act. In any event, the Supreme Court of North Carolina has consistently held that the rights and remedies given an employee under that act excluded all other remedies against his employer for the negligence of the employer. Pilley v. Greenville Cotton Mills, 201 N.C. 426, 160 S.E. 479; Francis v. Carolina Wood Turning Company, 208 N.C. 517, 181 S.E. 628; Lee v. American Enka Corporation, supra. The Workmen’s Compensation Act of North Carolina has been held to be constitutional by the Supreme »Court of that state. Lee v. American Enka Corporation, supra; Hanks v. Southern Public Utilities Company, 204 N.C. 155, 167 S.E. 560; Heavner v. Lincolnton, 202 N.C. 400, 162 S.E. 909; Hagler v. Mecklenburg Highway Commission, 200 N.C. 733, 158 S.E. 383. The Supreme Court of the United States has upheld the constitutionality of similar compensation acts. Middleton v. Texas Power & Light Company, 249 U.S. 152, 39 S.Ct. 227, 63 L.Ed. 527; Lower Vein Coal Company v. Industrial Board, 255 U.S. 144, 41 S.Ct. 252, 65 L.Ed. 555; Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685, Ann. Cas.l917D, 642; Ward & Gow v. Krinsky, 259 U.S. 503, 42 S.Ct. 529, 66 L.Ed. 1033, 28 A.L.R. 1207; R. E. Sheehan Co. v. Shuler, 265 U.S. 371, 44 S.Ct. 548, 68 L.Ed. 1061, 35 A.L.R. 1056; Cudahy Packing Co. v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366, 30 A.L.R. 532. In the case of Murphy v. American Enka Corporation, 213 N.C. 218, 195 S.E. 536, recently decided, the Supreme Court of North Carolina, in discussing the principles controlling here, holds that the failure of the employee to reject the Workmen’s Compensation Act, is a waiver of his right to maintain an action for damages against his employer for an injury caused by its negligence and further holds that certain occupational diseases come within the purview of the compensation act. The action of the court below in holding that plaintiff’s sole remedy was under the Workmen’s Compensation Act was right, and the order complained of is affirmed. Affirmed, Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
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. BUCKHANNON BOARD & CARE HOME, INC., et al. v. WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES et al. No. 99-1848. Argued February 27, 2001 Decided May 29, 2001 Webster J. Arceneaux III argued the cause for petitioners. With him on the briefs was Brian A. Glasser. Beth S. Brinkmann argued the cause for the United States as amicus curiae urging reversal. With her on the brief were former Solicitor General Waxman, Acting Solicitor General Underwood, Assistant Attorney General Lee, Jeffrey P. Minear, Jessica Dunsay Silver, and Kevin K. Russell. David P. Cleek, Senior Deputy Attorney General of West 'Virginia, argued the cause for respondents. With him on the brief was Darrell V. McGraw, Jr., Attorney General. Briefs of amici curiae urging reversal were filed for the Friends of the Earth et al. by Bruce J. Terris, Carolyn Smith Pravlik, and Sarah A Adams; and for Public atizen et al. by Steven R. Shapiro, Harney Grossman, Brian Wolfman, and Arthur B. Spitzer. Briefs of amici eurirn urging affirmance were filed for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, and Maureen M. Dove and Andrew H. Baida, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Bill Lockyer of California, Ken Salazar of Colorado, M. Jane Brady of Delaware, Robert A Butterworth of Florida, James E. Ryan of Illinois, Carla J. Stovall of Kansas, Richard P. leyoub of Louisiana, Thomas F. Reilly of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Philip T. McLaughlin of New Hampshire, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Sheldon Whitehouse of Rhode Island, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, John Cornyn of Texas, Jan Graham of Utah, and Mark L. Earley of Virginia; for the Alliance of Automobile Manufacturers, Inc., by Charles A Neivman and Jerome H. Block; for Los Angeles County et al. by Elwood Lui and Jeffrey S. Sutton; for the National Conference of State Legislatures et al. by Richard Ruda, James I. Crowley, Jacqueline G. Cooper, and Paul J. Watford; and for the Pacific Legal Foundation by M. Reed Hopper. CHIEF Justice Rehnquist delivered the opinion of the Court. Numerous federal statutes allow courts to award attorney’s fees and costs to the “prevailing party.” The question presented here is whether this term includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. We hold that it does not. Buekhannon Board and Care Home, Inc., which operates care homes that provide assisted living to their residents, failed an inspection by the West Virginia Office of the State Fire Marshal because some of the residents were incapable of “self-preservation” as defined under state law. See W. Va. Code §§16-5H-1, 16-5H-2 (1998) (requiring that all residents of residential board and care homes be capable of “self-preservation,” or capable of moving themselves “from situations involving imminent danger, such as fire”); W. Va. Code of State Rules, tit. 87, ser. 1, § 14.07(1) (1995) (same). On October 28, 1997, after receiving cease-and-desist orders requiring the closure of its residential care facilities within 30 days, Buekhannon Board and Care Home, Ine., on behalf of itself and other similarly situated homes and residents (hereinafter petitioners), brought suit in the United States District Court for the Northern District of West ’Virginia against the State of West Virginia, two of its agencies, and 18 individuals (hereinafter respondents), seeking declaratory and injunctive relief that the “self-preservation” requirement violated the Fair Housing Amendments Act of 1988 (FHAA), 102 Stat. 1619, 42 U. S. C. § 3601 et seq., and the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42U.S.C. §12101 et seq. Respondents agreed to stay enforcement of the cease-and-desist orders pending resolution of the case and the parties began discovery. In 1998, the West Virginia Legislature enacted two bills eliminating the “self-preservation” requirement, see S. 627,11998 W. Va. Aets 983-986 (amending regulations); H. R. 4200, II1998 W. Ya. Aets 1198-1199 (amending statute), and respondents moved to dismiss the ease as moot. The District Court granted the motion, finding that the 1998 legislation had eliminated the allegedly offensive provisions and that there was no indication that the West Virginia Legislature would repeal the amendments. Petitioners requested attorney’s fees as the “prevailing party” under the FHAA, 42 U.S.C. § 3613(c)(2) (“[T]he court, in its discretion, may allow the prevailing party... a reasonable attorney’s fee and costs”), and ADA, 42 U. S. C. § 12205 (“[T]he court... , in its discretion, may allow the prevailing party ... a reasonable attorney’s fee, including litigation expenses, and costs”). Petitioners argued that they were entitled to attorney’s fees under the “catalyst theory,” which posits that a plaintiff is a “prevailing party” if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. Although most Courts of Appeals recognize the "catalyst theory,” the Court of Appeals for the Fourth Circuit rejected it in S-1 and S-2 v. State Bd. of Ed. of N. C., 21 F. 3d 49, 51 (1994) (en bane) (“A person may not be a ‘‘prevailing party* . . . except by virtue of having obtained an enforceable judgment, consent decree, or settlement giving some of the legal relief sought”). The District Court accordingly denied the motion and, for the same reason, the Court of Appeals affirmed in an unpublished, per curiam opinion. Judgt. order reported at 208 F. 3d 819 (CA4 2000). To resolve the disagreement amongst the Courts of Appeals, we granted certiorari, 530 U. S. 1304 (2000), and now affirm. In the United States, parties are ordinarily required to bear their own attorney’s fees — the prevailing party is not entitled to collect from the loser. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975). Under this "American Rule,” we follow “a general practice of not awarding fees to a prevailing party absent explicit statutory authority.” Key Tronic Corp. v. United States, 511 U.S. 809, 819 (1994). Congress, however, has authorized the award of attorney’s fees to the “prevailing party” in numerous statutes in addition to those at issue here, such as the Civil Rights Act of 1964,78 Stat. 259,42 U. S. C. §2000e-5(k), the Voting Rights Act Amendments of 1975, 89 Stat. 402, 42 U. S. C. § 19732(e), and the Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641, 42 U. S. C. §1988. See generally Marek v. Chesny, 473 U.S. 1, 43-51 (1985) (Appendix to opinion of Brennan, J., dissenting). In designating those parties eligible for an award of litigation costs, Congress employed the term “prevailing party,” a legal term of art. Black’s Law Dictionary 1145 (7th ed. 1999) defines “prevailing party” as “[a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded <in certain cases, the court will award attorney’s fees to the prevailing party>. —Also termed successful party” This view that a “prevailing party” is one who has been awarded some relief by the court can be distilled from our prior cases. In Hanrahan v. Hampton, 446 U.S. 754, 758 (1980) (per curiam), we reviewed the legislative history of § 1988 and found that “Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims.” Our “[rjespect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail.” Hewitt v. Helms, 482 U. S. 755, 760 (1987). We have held that even an award of nominal damages suffices under this test. See Farrar v. Hobby, 506 U.S. 108 (1992). In addition to judgments on the merits, we have held that settlement agreements enforced through a consent decree may serve as the basis for an award of attorney’s fees. See Maher v. Gagne, 448 U.S. 122 (1980). Although a consent decree does not always include an admission of liability by the defendant, see, e. g., id., at 126, n. 8, it nonetheless is a court-ordered “ehang[e] [in] the legal relationship between [the plaintiff] and the defendant.” Texas State Teachers Assn. v. Garland Independent School Dist., 489 U.S. 782, 792 (1989) (citing Hewitt, supra, at 760-761, and Rhodes v. Stewart, 488 U. S. 1, 3-4 (1988) (per curiam)). These decisions, taken together, establish that enforceable judgments on the merits and court-ordered consent decrees create the “material alteration of the legal relationship of the parties” necessary to permit an award of attorney’s fees. 489 U.S., at 792-793; see also Hanrakan, supra, at 757 (“[I]t seems clearly to have been the intent of Congress to permit... an interlocutory award only to a party who has established his entitlement to some relief on the merits of his claims, either in the trial court or on appeal” (emphasis added)). We think, however, the “catalyst theory” falls on the other side of the line from these examples. It allows an award where there is no judicially sanctioned change in the legal relationship of the parties. Even under a limited form of the “catalyst theory,” a plaintiff could recover attorney’s fees if it established that the “complaint had sufficient merit to withstand a motion to dismiss for lack of jurisdiction or failure to state a claim on which relief may be granted.” Brief for United States as Amicus Curiae 27. This is not the type of legal merit that our prior decisions, based upon plain language and congressional intent, have found necessary. Indeed, we held in Hewitt that an interlocutory ruling that reverses a dismissal for failure to state a claim “is not the stuff of which legal victories are made.” 482 U. S., at 760. See also Hanrahan, supra, at 754 (reversal of a directed verdict for defendant does not make plaintiff a “prevailing party”). A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change. Our precedents thus counsel against holding that the term “prevailing party” authorizes an award of attorney’s fees without a corresponding alteration in the legal relationship of the parties. The dissenters chide us for upsetting “long-prevailing Circuit precedent.” Post, at 622 (opinion of Ginsbukg, J.) (emphasis added). But, as Justice Scalia points out in his concurrence, several Courts of Appeals have relied upon dicta in our prior eases in approving the “catalyst theory.” See post, at 621-622; see also supra, at 608, n. 5. Now that the issue is squarely presented, it behooves us to reconcile the plain language of the statutes with our prior holdings. We have only awarded attorney’s fees where the plaintiff has received a judgment on the merits, see, e. g., Farrar, supra, at 112, or obtained a court-ordered consent decree, Maher, supra, at 129-130 — we have not awarded attorney’s fees where the plaintiff has secured the reversal of a directed verdict, see Hanrahan, 446 U.S., at 759, or acquired a judicial pronouncement that the defendant has violated the Constitution unaccompanied by “judicial relief,” Hewitt, supra, at 760 (emphasis added). Never have we awarded attorney’s fees for a nonjudieial “alteration of actual circumstances.” Post, at 638 (dissenting opinion). While urging an expansion of our precedents on this front, the dissenters would simultaneously abrogate the “merit” requirement of our prior cases and award attorney’s fees where the plaintiff’s claim “was at least colorable” and “not... groundless.” Post, at 627 (internal quotation marks and citation omitted). We cannot agree that the term “prevailing party” authorizes federal courts to award attorney’s fees to a plaintiff who, by simply filing a nonfrivolous but nonetheless potentially meritless lawsuit (it will never be determined), has reached the “sought-after destination” without obtaining any judicial relief. Post, at 634 (internal quotation marks and citation omitted). Petitioners nonetheless argue that the legislative history of the Civil Rights Attorney's Fees Awards Act supports a broad reading of “prevailing party" which includes the “catalyst theory.” We doubt that legislative history could overcome what we think is the rather clear meaning of “prevailing party” — the term actually used in the statute. Since we resorted to such history in Garland, 489 U.S., at 790, Maher, 448 U. S., at 129, and Hanrakan, supra, at 756-757, however, we do likewise here. The House Report to § 1988 states that “[t]he phrase ‘prevailing party' is not intended to be limited to the victor only after entry of a final judgment following a full trial on the merits,” H. R. Rep. No. 94-1558, p. 7 (1976), while the Senate Report explains that “parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief,” S. Rep. No. 94-1011, p. 5 (1976). Petitioners argue that these Reports and their reference to a 1970 decision from the Court of Appeals for the Eighth Circuit, Parham v. Southwestern Bell Telephone Co., 433 F. 2d 421 (1970), indicate Congress' intent to adopt the “catalyst theory.” We think the legislative history cited by petitioners is at best ambiguous as to the availability of the “catalyst theory” for awarding attorney’s fees. Particularly in view of the “American Rule” that attorney’s fees will not be awarded absent “explicit statutory authority,” such legislative history is clearly insufficient to alter the accepted meaning of the statutory term. Key Tronic, 511 U.S., at 819; see also Hanrahan, supra, at 758 (“[0]nly when a party has prevailed on the merits of at least some of his claims ... has there been a determination of the ‘substantial rights of the parties,’ which Congress determined was a necessary foundation for departing from the usual rule in this country that each party is to bear the expense of his own attorney” (quoting H. R. Rep. No. 94-1558, at 8)). Petitioners finally assert that the “catalyst theory” is necessary to prevent defendants from unilaterally mooting an action before judgment in an effort to avoid an award of attorney’s fees. They also claim that the rejection of the “catalyst theory” will deter plaintiffs with meritorious but expensive eases from bringing suit. We are skeptical of these assertions, which are entirely speculative and unsupported by any empirical evidence (e. g., whether the number of suits brought in the Fourth Circuit has declined, in relation to other Circuits, since the decision in S-l and S-2). Petitioners discount the disincentive that the “catalyst theory” may have upon a defendant’s decision to voluntarily change its conduct, conduct that may not be illegal. “The defendants’ potential liability for fees in this kind of litigation can be as significant as, and sometimes even more significant than, their potential liability on the merits,” Evans v. Jeff D., 475 U.S. 717, 734 (1986), and the possibility of being assessed attorney’s fees may well deter a defendant from altering its conduct. And petitioners’ fear of mischievous defendants only materializes in claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendant’s change in conduct -will not moot the case. Even then, it is not clear how often courts will find a case mooted: “It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice” unless it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOG), Inc., 528 U.S. 167, 189 (2000) (internal quotation marks and citations omitted). If a case is not found to be moot, and the plaintiff later procures an enforceable judgment, the court may of course award attorney’s fees. Given this possibility, a defendant has a strong incentive to enter a settlement agreement, where it can negotiate attorney’s fees and costs. Cf. Marek v. Chesny, 473 U.S., at 7 (“[M]any a defendant would be unwilling to make a binding settlement offer on terms that left it exposed to liability for attorney’s fees in whatever amount the court might fix on motion of the plaintiff” (internal quotation marks and citation omitted)). We have also stated that “[a] request for attorney’s fees should not result in a second major litigation,” Hensley v. Eckerhart, 461 U. S. 424, 437 (1983), and have accordingly avoided an interpretation of the fee-shifting statutes that would have “spawnfed] a second litigation of significant dimension,” Garland, supra, at 791. Among other things, a “catalyst theory” hearing would require analysis of the defendant’s subjective motivations in changing its conduct, an analysis that “will likely depend on a highly faetbound inquiry and may turn on reasonable inferences from the nature and timing of the defendant’s change in conduct.” Brief for United States as Amicus Curiae 28. Although we do not doubt the ability of district courts to perform the nuaneed “three thresholds” test required by the “catalyst theory” — whether the claim was colorable rather than groundless; whether the lawsuit was a substantial rather than an insubstantial cause of the defendant's change in conduct; whether the defendant’s change in conduct was motivated by the plaintiff’s threat of victory rather than threat of expense, see post, at 627-628 (dissenting opinion)— it is clearly not a formula for “ready administrability.” Burlington v. Dague, 505 U.S. 557, 566 (1992). Given the clear meaning of “prevailing party” in the fee-shifting statutes, we need not determine which way these various policy arguments cut. In Alyeska, 421 U.S., at 260, we said that Congress had not “extended any roving authority to the Judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted.” To disregard the clear legislative language and the holdings of our prior cases on the basis of such policy arguments would be a similar assumption of a “roving authority.” For the reasons stated above, we hold that the “catalyst theory” is not a permissible basis for the award of attorney’s fees under the FHAA, 42 U. S. C. § 3613(e)(2), and ADA, 42 U.S.C. §12205. The judgment of the Court of Appeals is Affirmed. The original complaint also sought money damages, but petitioners relinquished this daim on January 2,1998. See App. to Pet. for Cert. All. The District Court sanctioned respondents under Federal Rule of Civil Procedure 11 for failing to timely provide notice of the legislative amendment. App. 147. See, e. g., Stanton v. Southern Berkshire Regional School Dist., 197 F. 3d 574, 577, n. 2 (CA1 1999); Marbley v. Bane, 57 F. 3d 224, 234 (CA2 1995); Baumgartner v. Harrisburg Housing Authority, 21 F. 3d 541, 546-550 (CA3 1994); Payne v. Board of Ed., 88 F. 3d 392, 397 (CA6 1996); Zinn v. Shalala, 35 F. 3d 273, 276 (CA7 1994); Little Rock School Dish v. Pulaski Cty. School Dish, #1,17 F. 3d 260, 263, n. 2 (CA8 1994); Kilgour v. Pasadena, 53 F. 3d 1007, 1010 (CA9 1995); Beard v. Teska, 31 F. 3d 942, 951-952 (CA10 1994); Morris v. West Palm Beach, 194 F. 3d 1203, 1207 (CA11 1999). We have interpreted these fee-shifting provisions consistently, see Hensley v. Eckerhart, 461 U.S. 424, 433, n. 7 (1983), and so approach the nearly identical provisions at issue here. We have never had occasion to decide whether the term “prevailing party” allows an award of fees under the “catalyst theory” described above. Dictum in Hewitt v. Helms, 482 U.S. 755, 760 (1987), alluded to the possibility of attorney’s fees where “voluntary action by the defendant ... affords the plaintiff all or some of the relief... sought,” but we expressly reserved the question, see id., at 763 (“We need not decide the circumstances, if any, under which this ‘catalyst’ theory could justify a fee award”). And though the Court of Appeals for the Fourth Circuit relied upon our decision in Farrar v. Hobby, 506 U.S. 103 (1992), in rejecting the “catalyst theory,” Farrar “involved no catalytic effect.” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 194 (2000). Thus, there is language in our cases supporting both petitioners and respondents, and last Term we observed that it was an open question here. See ibid. However, in some circumstances such a “prevailing party” should still not receive an award of attorney’s fees. See Farrar v. Hobby, supra, at 115-116. We have subsequently characterized the Maher opinion as also allowing for an award of attorney’s fees for private settlements. See Farrar v. Hobby, supra, at 111; Hewitt v. Helms, supra, at 760. But this dictum ignores that Maher only “held that fees may be assessed... after a case has been settled by the entry of a consent decree.” Evans v. Jeff D., 475 U.S. 717, 720 (1986). Private settlements do not entail the judicial approval and oversight involved in consent decrees. And federal jurisdiction to enforce a private contractual settlement will often be lacking unless the terms of the agreement are incorporated into the order of dismissal. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994). Although the dissenters seek support from Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379 (1884), that case involved costs, not attorney’s fees. “[B)y the long established practice and universally recognized rule of the common law... the prevailing party is entitled to recover a judgment for costs,” id., at 387, but “the rule 'has long been that attorney’s fees are not ordinarily recoverable,”’ Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 257 (1975) (quoting Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717 (1967)). Courts generally, and this Court in particular, then and now, have a presumptive rule for costs which the Court in its discretion may vary. See, e. g., this Court’s Rule 43.2 (“If the Court reverses or vacates a judgment, the respondent or appellee shall pay costs unless the Court otherwise orders”). In Mansfield, the defendants had successfully removed the case to federal court, successfully opposed the plaintiffs’ motion to remand the case to state court, lost on the merits of the case, and then reversed course and successfully argued in this Court that the lower federal court had no jurisdiction. The Court awarded costs to the plaintiffs, even though they had lost and the defendants won on the jurisdictional issue, which was the only question this Court decided. In no ordinary sense of the word can the plaintiffs have been said to be the prevailing party here — they lost and their opponents won on the only litigated issue — so the Court’s use of the term must be regarded as a figurative rather than a literal one, justifying the departure from the presumptive rule allowing costs to the prevailing party because of the obvious equities favoring the plaintiffs. The Court employed its discretion to recognize that the plaintiffs had been the victims of the defendants’ legally successful whipsawing tactics. Although the Court of Appeals in Parham awarded attorney’s fees to the plaintiff because his “lawsuit acted as a catalyst which prompted the [defendant] to take action . . . seeking compliance with the requirements of Title VII,” 433 F. 2d, at 429-430, it did so only after finding that the defendant had aeted unlawfully, see id., at 426 (“We hold as a matter of law that [plaintiff’s evidence] established a violation of Title VII”). Thus, consistent with our holding in Farrar, Parham stands for the proposition that an enforceable judgment permits an award of attorney’s fees. And like the consent decree in Maker v. Gagne, 448 U. S. 122 (1980), the Court of Appeals in Parham ordered the District Court to “retain jurisdiction over the matter for a reasonable period of time to insure the continued implementation of the appellee’s policy of equal employment opportunities.” 433 F. 2d, at 429. Clearly Parham does not support a theory of fee shifting untethered to a material alteration in the legal relationship of the parties as defined by our precedents. Only States and state officers acting in their official capacity are immune from suits for damages in federal court. See, e. g., Edelman v. Jordan, 415 U.S. 651 (1974). Plaintiffs may bring suit for damages against all others, including municipalities and other political subdivisions of a State, see Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977). 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:
sc_caseorigin	110	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. WHELCHEL v. McDONALD, WARDEN. No. 109. Argued November 10, 1950. Decided December 4, 1950. Hugh Carney argued the cause and filed a brief for petitioner. John F. Davis argued the cause for respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General Mclnerney and Robert S. Erdahl. Mr. Justice Douglas delivered the opinion of the Court. Petitioner, while on active duty with the Army in Germany, was convicted by a general court-martial of rape on a German girl. The sentence of death, originally imposed, was reduced to a term of years. This case arises on a petition for a writ of habeas corpus filed in the District Court, challenging the legality of petitioner’s detention under that sentence. That court denied the petition and the Court of Appeals affirmed. 178 F. 2d 760. The main point presented by the petition for certiorari is whether the military tribunal that tried petitioner was deprived of jurisdiction by reason of the treatment of the insanity issue tendered by petitioner. We hold that it was not. The charges against petitioner were referred to an investigating officer in accordance with Article 70 of the Articles of War, 10 U. S. C. (1946 ed.) § 1542. The investigating officer reported that he had no reasonable ground for believing petitioner was deranged. A neuro-psychiatrist attached to petitioner’s division reported, after examining petitioner, that he was legally sane. The Division Staff Judge Advocate recommended a general court-martial trial, stating there was no reason to believe petitioner to be temporarily or permanently deranged. The defense of insanity was not raised, however, either at the pretrial investigation or the trial itself. After the trial petitioner’s trial counsel wrote the Division Commanding General requesting that the case be reopened and petitioner be given a neuropsychiatric examination on the ground that counsel had received information that petitioner might have been in an epileptic fit at the time of the offense. This request received the concurrence of five of the six members of the court-martial and was accompanied by similar letters from two officers and a sergeant of petitioner’s division. The record was in this condition when it was reviewed by General Eisenhower of the European Theatre of Operations, by the Board of Review of that Theatre, and by the Assistant Judge Advocate General. There was evidence in the hearing before the District Court that petitioner may have been either insane or drunk at the time of the crime. We put to one side the due process issue which respondent presses, for we think it plain from the law governing court-martial procedure that there must be afforded a defendant at some point of time an opportunity to tender the issue of insanity. It is only a denial of that opportunity which goes to the question of jurisdiction. That opportunity was afforded here. Any error that may be committed in evaluating the evidence tendered is beyond the reach of review by the civil courts. The Manual prescribes the ordinary test of criminal responsibility, viz., whether the accused was able to tell right from wrong. Insanity is a defense. The pretrial procedure prescribed in Article 70 offers the accused an opportunity to present the defense of insanity. Petitioner had that opportunity. The Manual provides that the reviewing authority (here the Commanding General of the Division) “will take appropriate action where it appears from the record or otherwise that the accused may have been insane” at the time of the crime, whether or not such question was raised at the trial. That is also a provision which is applicable to the confirming authority (here the General in charge of the European Theatre of Operations). The confirming authority had before it the request of the defense counsel and the other letters and recommendations submitted to it. The Manual does not require either the reviewing authority or the confirming authority to halt the proceedings, make a further investigation, or start over again. It entrusts the matter to the discretion of those authorities. Petitioner had a further consideration by the military authorities of the insanity issue which he tenders. By Article 53 of the revised Articles of War, Act of June 24, 1948, 62 Stat. 639, 642, 10 U. S. C. (Supp. III) § 1525, which was effective February 1, 1949, the Judge Advocate General is authorized “upon application of an accused person, and upon good cause shown, in his discretion to grant a new trial” in any court-martial case on application within the prescribed time limits. That Article became effective after the petition for habeas corpus was filed. But while the case was pending on appeal the Court of Appeals delayed final action while petitioner made application under Article 53. The Judge Advocate General reviewed all the evidence on the insanity issue which petitioner had tendered both to the military authorities and to the District Court in the habeas corpus proceeding and concluded “I entertain no doubt that Whelchel was so far free from mental defect, disease, and derangement as to be able concerning the particular acts charged both to distinguish right from wrong and to adhere to the right . . . .” Any error by the military in evaluating the evidence on the question of insanity would not go to jurisdiction, the only issue before the court in habeas corpus proceedings. The law member of the court-martial was not named from the Judge Advocate General’s Department. But since no showing was made of the availability of such a member, a case of gross abuse of discretion has not been established. See Hiatt v. Brown, 339 U. S. 103, 109-110. Under Article 4 of the revised Articles of War an accused may now request that enlisted men be included on the court-martial that tries him. There was no such provision of the law when petitioner was tried. But the fact that he was tried by a court-martial composed wholly of officers does not raise a question which goes to jurisdiction. Petitioner can gain no support from the analogy of trial by jury in the civil courts. The right to trial by jury guaranteed by the Sixth Amendment is not applicable to trials by courts-martial or military commissions. See Kahn v. Anderson, 255 U. S. 1, 8; Ex parte Quirin, 317 U. S. 1, 40-41. Courts-martial have been composed of officers both before and after the adoption of the Constitution. The constitution of courts-martial, like other matters relating to their organization and administration (see Kahn v. Anderson, supra, 6-7; Swaim v. United States, 165 U. S. 553, 556-559; Mullan v. United States, 140 U. S. 240, 244-245; Martin v. Mott, 12 Wheat. 19, 34-35), is a matter appropriate for congressional action. Affirmed. Paragraph 78a Manual for Courts-Martial (1928 ed.) provides: “A person is not mentally responsible for an offense unless he was at the time so far free from mental defect, disease, or derangement as to be able concerning the particular acts charged both to distinguish right from wrong and to adhere to the right.” Paragraph 63 of the Manual provides: “The court will inquire into the existing mental condition of the accused whenever at any time while the case is before the court it appears to the court for any reason that such inquiry ought to be made in the interest of justice. Reasons for such action may include anything that would cause a reasonable man to question the accused’s mental capacity either to understand the nature of the proceedings or intelligently to conduct or to cooperate in his defense.” Paragraph 75a provides: “If the court determines that the accused was not mentally responsible, it will forthwith enter a finding of not guilty as to the proper specification.” Paragraph 78a provides: “Where a reasonable doubt exists as to the mental responsibility of an accused for an offense charged, the accused can not legally be convicted of that offense.” Id. ¶ 876. 7d. ¶ 88. 10 U.S. C. (Supp.III) § 1475. At the time of petitioner’s trial Article 4, 10 U. S. C. (1946 ed.) § 1475, provided in pertinent part as follows: “AH officers in the military service of the United States, and officers of the Marine Corps when detached for service with the Army by order of the President, shall be competent to serve on courts-martial for the trial of any persons who may lawfully be brought before such courts for trial.” See collection of precedents in Winthrop’s Military Law and Precedents (2d ed., Reprint 1920): British Articles of War of 1765, p. 942; American Articles of War of 1776, p. 967; American Articles of War of 1806, pp. 981-982. 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_casetyp1_7-3-2	J	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts". GULF REFINING CO. v. FETSCHAN et al. No. 9060. Circuit Court of Appeals, Sixth Circuit. June 2, 1942. Rehearing Denied Aug. 28, 1942. Hugh McD. Ritchey and Joseph S. Gray-don, both of Cincinnati, Ohio, H. Melvin Roberts, of Cleveland, Ohio, and David Proctor, Jr., of Pittsburgh, Pa. (William A. McKenzie, and Graydon, Lackner, Head & Ritchey, all of Cincinnati, Ohio, and Howell, Roberts & Duncan, of Cleveland, Ohio, on the brief), for appellant. R. T. Dickerson, of Cincinnati, Ohio (Harold L. Browne, and Richard Remke, both of Cincinnati, Ohio, on the brief), for appellees. Before ALLEN, HAMILTON, and McA.LLISTER, Circuit Judges. McALLISTER, Circuit Judge. This is a suit brought by Louis Fetschan, herein referred to as appellee, against the Gulf Refining Company for damages. The Cross Park Realty Company was joined as a nominal party defendant. Appellee had verdict, in the amount of $7,908.00, upon which judgment was entered, and the Gulf Refining Company appeals. The action grows out of the erection and operation, by appellant, of a refinery upon land adjoining that leased by appellee. The damages claimed are alleged to have been suffered as a result of the noxious fumes emitted by the refinery, the discharge of waste, and the erection of levees around the lands upon which the refinery was situated, resulting in flood waters inundating the property leased by appellee. Approximately nine miles north of its junction with the Ohio River, the Great Miami River makes a horseshoe bend. In the toe of this horseshoe is a tract of land leased by appellee in 1925 from Mr. and Mrs. Roessler, for a 20-year period, with a renewal privilege for a further term of 10 years. The lease contains the usual covenant of quiet enjoyment, as well as against molestation, specifying that the leased premises are to be used for camp purposes. In 1930, the Gulf Refining Company purchased from the Roesslers, all of the property within the horseshoe, including the part theretofore leased to appellee, the purchase being made subject to this lease. Thereafter, appellant constructed a refinery across the heel of the horseshoe. There was a roadway, which approximately bisected the refinery, over which appellee had means of ingress and egress. Appellant built levees around each half of the refinery area (except where the natural terrain was higher than 496' above sea level). In January, 1937, there occurred a great flood of the Ohio and Miami Rivers. Appellee alleged that by reason of the levees erected by appellant, the flood waters of the Great Miami River were deflected over his leasehold estate with greater force and violence than would have been the case had the water naturally flooded the property; and that as a result, 15 cottages owned by appellee were washed from their foundations and destroyed. Appellee further claimed damages on the ground that the Gulf Refining Company had permitted noxious, foul and nauseating odors and fumes to escape from the refinery; and that loud and nerve-wracking noises had emanated therefrom—all of which resulted in the refusal of tenants to rent, and caused appellee and his family to leave the premises. The trial court submitted eight special questions to the jury, which answered only one of them, and returned a verdict in the amount of $7,908.-00 in favor of appellee. On appeal, the Gulf Refining Company claims that the proofs show that the appellee was not the real party in interest in bringing the suit; that the trial court erred in accepting the general verdict in spite of the jury’s inability to answer the interrogatories; that there was no breach of covenant inasmuch as appellee was not actually or constructively evicted; that there was no evidence that the loss of appellee’s cottages was caused by the erection of the levees; that appellee’s recovery of damages in a prior suit was a bar to the present action; and that, because of the foregoing, the trial court should have directed a verdict on various issues of the case, and should have entered judgment on the rest of the issues in favor of appellant. Three cases, brought by appellee, have been decided by the trial courts—the first, an action for damages alleged to have been suffered up to January, 1934, in which appellee had judgment in the amount of $1,000; the second, an injunction suit; and the third, the present controversy. Appellant, in its contention that appellee was not the real party in interest, as required by Rule 17 (a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, offered in evidence two assignments of appellee’s lease to the Cross Park Realty Company, and an agreement between the same parties, providing for payments to the company out of the proceeds of any sale of the leasehold. Appellant, by these exhibits, sought to show that appellee had parted with all of his interest in the premises. The trial court excluded this evidence on the ground that it had been previously determined, in another suit between the same parties, that the transactions in question had amounted to only a pledge of appellee’s interest in the property, and that such determination was res adjudicata. Appellant, however, contends that appellee did not plead res adjudicata as an affirmative defense, as required by Rule 12 (h) of the Federal Rules of Civil Procedure. But it is not required that a plaintiff plead or reply to a defendant’s answer, unless it contains a counterclaim, denominated as such. Rule 7 of the Federal Rules of Civil Procedure. See Moore’s Federal Practice, Vol. 1, p. 421 et seq. It was unnecessary, therefore, for appellee to reply to appellant’s answer by pleading res adjudicata. In passing, we have reviewed the determination of the Master Commissioner, to whom this question was referred upon the previous trial of the other case between the parties, and agree with his conclusion that appellee’s transactions with the Cross Park Realty Company amounted to no more than a pledge of his interests in the premises. The District Court properly excluded the proffered evidence. Appellant insists that under Ohio law there can be no breach of covenant for quiet enjoyment, unless the covenantee has been actually or constructively evicted; and that there can be no such eviction unless possession has been lost or abandoned, as “the proposition that there can be retention of demised premises and an eviction are logically and legally contradictory” (Liberal Savings & Loan Co. v. Frankel Realty Co., 137 Ohio St. 489, 30 N.E.2d 1012, 1017; Wetzel v. Richcreek, 53 Ohio St. 62, 40 N.E. 1004) ; and that the evidence discloses that, while appellee moved away from the premises in January, 1932, he returned about a year and a half later, and remained there from that time until the present. Under these circumstances, it is contended that there was no loss or abandonment of possession, and, consequently, no eviction for which an action would lie for breach of covenant for quiet enjoyment. Without reviewing the authorities on this subject, or considering such questions as partial eviction, we are of the opinion that the judgment in this case should be sustained on the proof of breach of covenant, though not on the basis of breach of covenant for quiet enjoyment, in the strict sense in which that covenant is usually construed. A covenant is nothing more than an agreement to do or not to do a particular act, and its language must be read in an ordinary or popular sense. Elterich v. Leicht Real Estate Co., 130 Va. 224, 107 S.E. 735, 18 A.L.R. 441. It is to be construed, if possible, to effectuate the intent of the parties. A covenant for quiet enjoyment is an assurance against the effect of a defective title and of any resultant disturbance. It goes to the possession; Cassada v. Stabel, 98 App.Div. 600, 90 N.Y.S. 533; Berger v. Weinstein, 63 Pa. Super. 153; Kane v. Mink, 64 Iowa 84, 19 N.W. 852, 853; and is referred to as “a covenant for possession.” Price v. Deal, 90 N.C. 290, 294. In Wetzel v. Richcreek, supra, it appears, according to the Ohio courts, that a covenant for quiet enjoyment is similar to a covenant of seisin, and that neither of such covenants is broken so as to give the covenantee a right of action, until there has been an eviction. In like manner, a covenant of warranty and a covenant for quiet enjoyment are usually regarded as substantially equivalent. Biwer v. Martin, 294 Ill. 488, 128 N.E. 518. But such covenants, concerned with title and possession, are not generally construed as having to do with the manner in which premises are used, or disturbances other than those of possession. While there appears to be a conflict between courts of Ohio and those of various other states, on the proposition of whether an eviction is necessary to constitute a breach of covenant for quiet enjoyment—numerous jurisdictions holding that a disturbance of the covenantee’s .use of the property constitutes such a ■breach—nevertheless, it can be said that, whether or not disturbance in the use of the property is included within a covenant for quiet enjoyment, parties may covenant as to the use of the leased property. Thus, a party can covenant that he will not cause •noxious gases and fumes to disturb and nauseate a tenant in some particular use of the property; and such a covenant would not be merely a covenant for quiet enjoyment. In the case before us, the lease provided as follows: “And said Lessors for themselves and for their heirs, executors, administrators and assigns, Covenant and Agree with the said lessee, his executors and administrators, that said lessee paying the rents and observing and keeping the covenants of this lease, on his part to be kept, shall lawfully, peaceably and quietly hold, occupy and enjoy said premises, during said term, without any let, hindrance, ejection or molestation by said lessors, or their heirs, or any person or persons lawfully claiming under them. “Said lessee shall use said premises for a camp for himself, associates and guests and has the right to remove all building and other fixtures he may now or cause to be erected on said grounds, during said tenancy; also the right to rent or assign said Camp or any part thereof under the covenants of this lease, but said lessee for himself, his executors or assigns agrees to place the ground back to its original condition after removal of his buildings.” Thus, the lessor covenanted that appellee should use the premises for a camp for himself, associates, and guests, with the right to rent any part of the camp to others, and that he should enjoy the premises without any molestation by the lessors or any person claiming under them. To molest means to interfere with, so as to injure or disturb; molestation is defined as a willful injury inflicted upon one by interference with the user of rights as to person or property. Webster’s New International Dictionary, Second Edition. There was substantial evidence of odors, fumes, and gases emitted from appellant’s refinery, continuously and in volume, as well as evidence that losses to appellee thereby ensued, as a result of persons leaving the premises which he had rented to them for camp and recreational purposes, and refusing to rent thereafter. Assuredly, this was substantial evidence of molestation of appellee in his use of the premises as a camp. In view of the fact that appellee’s lessors covenanted for quiet possession and against molestation of appellee in his enjoyment of the premises, at the same time limiting the use of them to recreational purposes, it is apparent that the parties intended that the lessor would so use his property as not to destroy the use of the premises by the appellee for the only purposes for which they were permitted to be occupied; and, in order to effectuate such intention, we so construe the language of the covenant. Giving the language, above referred to, the ordinary, usual, and normal construction, it is clear that the jury had a right to conclude that the covenant was broken by appellant, causing the resultant damages. While, in the strict sense of the term, the operation of the refinery might not have resulted in a breach of covenant for quiet enjoyment, it could well have been a breach of covenant that appellant would not molest appellee by interfering with his use of the property for recreational purposes; and, on this ground, the verdict of the jury and the judgment entered thereon, should be sustained. Appellant contends that the trial court erred in entering judgment in favor of appellee, in spite of the failure of the jury to answer certain interrogatories, which were submitted. In his petition, appellee claimed damages of $8,000 for loss of rentals from January, 1934, to August, 1938, because of appellant’s operation of its refinery, resulting in the escape of noxious, foul and nauseating odors and fumes upon the leased premises, and the continuous noises, which destroyed the use of the premises as a camp. He also claimed as damages the sum of $12,400 for loss and destruction of his cottages and other property, resulting from the flood waters, which he claimed were diverted against his buildings by the levees constructed by appellant. The jury answered the following interrogatory in the negative, as indicated: “Did the defendant, The Gulf Refining Company, as landlord, give to the plaintiff, quiet and peaceful enjoyment of his premises from January, 1934, to August, 1938, without hindrance or molestation as those terms have been defined to you? Answer: No.” The following interrogatories were submitted by the court, which the jury, after due deliberation, was unable to answer with unanimity: “In the event that you find that plaintiff has been damaged by the emission of smoke, or odors, or gases, or smudge, or noises from the refinery of defendant, The Gulf Refining Company, and that The Gulf Refining Company is liable in damages to plaintiff therefor, state the amount of such damage. Did the defendant, The Gulf Refining Company, erect the levees with knowledge that flood waters would be likely diverted from the area occupied by its plant and caused to go between the said plant and the River? Could a man of ordinary skill and knowledge have reasonably foreseen that the construction of the levees in question in this case would cause damage to the property of the plaintiff? Would plaintiff’s cottages have been destroyed by the flood of 1937 even if the levees in question had not been there at that time? Were plaintiff’s cottages destroyed by an ‘act of God’ as that term has been defined to you? In the event you find that defendant, The Gulf Refining Company, is liable to plaintiff for the value of those of his cottages which were destroyed by the 1937 flood, state the reasonable value of those cottages immediately prior to that flood.” The trial court received the general verdict and entered judgment thereon. It is obvious that the jury based its verdict on loss of rentals resulting from the fumes, odors, and noises attendant upon the operation, of appellant’s refinery for the period between January, 1934, and August, 1938. It expressly found that the covenant against molesting appellee in the use of the premises had been broken. Appellee’s claim for rentals was $8,000. The jury allowed $7,908. The jury’s answer to the special interrogatory was consistent with its general verdict. It was therefore unnecessary to answer the special interrogatory asking what damages were allowed on. the issue of the smoke, fumes, odors, and noise. The only breach of covenant claimed between 1934 and 1938 was that appellant would not molest appellee in his use of the premises. The only way in which this covenant was claimed to have been broken during that period was by appellant’s conduct with reference to the fumes, odors, and noise. The only damages claimed for such breach were for losses of rentals during that period. The damages found in the general verdict, based on the answer to the special interrogatory, were for loss of rentals resulting from the smoke, fumes, odor, and noise. These conclusions are inescapable. All of the other interrogatories, which were not answered by the jury, were concerned with damage resulting from the diversion of flood waters. It is clear that, while the jury agreed on the damages caused by the fumes, smoke, and noise, it could not agree on the question of whether appellee was further damaged by appellant’s conduct with reference to the flood waters. Obviously, appellee recovered nothing on thát issue; but he makes no complaint because of the unanswered interrogatories. His counsel moved for a judgment on the verdict, and submits that this action amounted to a waiver of any right on the part of appellee to recover for the destruction of property resulting from diversion of flood waters. We are unable to see how appellant is injured by failure of the jury to find on this issue. If the jury had answered all of the other interrogatories adversely to appellee, he would still be entitled to a verdict for loss of rentals, in view of the one interrogatory which the jury did answer; and the general verdict was consistent with such answer. Special verdicts and interrogatories are authorized by Rule 49 (a), (b), of the Federal Rules of Civil Procedure, and federal courts are governed by such rules of practice and procedure, rather than those of the State court. Moyer v. Aetna Life Insurance Co., 3 Cir., 126 F.2d 141; Dallas Ry. & Terminal Co. v. Sullivan; 5 Cir., 108 F.2d 581. Rule 49 (b) of the Rules of Civil Procedure provides that when the general verdict and answers are harmoni■ous, the court shall direct the entry of the appropriate judgment upon the verdict and answers. The failure to answer interrogatories is not fatal where the general verdict can be supported on other facts, or where answers to such questions, favorable to the party against whom judgment is rendered, would not necessarily render the judgment erroneous. O’Connell v. United Railroads of San Francisco, 19 Cal.App. 36, 124 P. 1022. Under a statute, providing that where a special finding of fact is inconsistent with the general verdict, the former controls, and the court must give judgment accordingly, if a finding in a defendant’s favor on special interrogatories would not be inconsistent with a general verdict for a plaintiff, a failure to find at all on such interrogatories, can not control such general verdict; Weck v. Reno Traction Co., 38 Nev. 285, 149 P. 65; and where several grounds of recovery are alleged, and an interrogatory goes only to one, the general verdict will stand, notwithstanding a failure to agree on an answer to the interrogatory. Russell v. Oregon R. & Nav. Co., 54 Or. 128, 102 P. 619. The jury in the instant case, having found in appellee’s favor on the question of loss of rentals, as evidenced by its answer to the interrogatory, relating to breach of covenant, its verdict must be sustained. There is no claim made that the damages awarded were excessive, on the issue of smoke and fumes. Its failure to answer the interrogatories relating to the loss and destruction of property from flood waters is not ground for setting aside the verdict, in view of appellee’s motion for judgment thereon. By such action, appellee waived his right to recover such additional damages, and accepted the judgment as an adjudication of all of the claims included in his petition. No disadvantage or prejudice to appellant resulted therefrom. There was no error in entering judgment on the verdict. Appellant claims that the trial court erred in excluding certain pleadings and proof of judgment in another case between the same parties, contending that such evidence was complete proof of a bar to the present action. The prior suit brought by appellee against appellant herein, was based upon a claim for damages up to January, 1934, resulting from appellant’s operation of its refinery, whereby fumes, smoke, and stench were alleged to have been emitted onto the premises leased by appellee. The theory on which that case was tried by the court and both parties, was that it was an action in tort for damages resulting from a nuisance. Appellee had judgment from which an appeal was taken by the Gulf Refining Company and, thereafter, dismissed on motion of its counsel Gulf Refining Co. v. Fetschan, 6 Cir., 92 F.2d 1004. On trial of the present case, appellant sought to introduce the pleadings and judgment in the so-called nuisance case, in proof of the claim that such pleadings and judgment were a bar to an action for damages in the present controversy. The basis of this contention is that one who is damaged by a permanent nuisance, can not split his actions for damages, but must recover all, past and future, in one action. To this, the answer of appellee was that the prior action was in tort and the present one, on contract; that the nuisance was not one which must be considered permanent, as it might be abated by appellant or by the court, and that, therefore, appellee has the right to treat it as a temporary wrong, to be compensated for while it continues. Appellee’s petition in the prior suit was limited in its claim for damages up to the date of the filing of the petition; and, in that case, the trial court, in instructing the jury, expressly limited plaintiff’s right to recover to the same extent. We find no error in the court’s exclusion, in the trial of the instant case, of the judgment and pleadings in the “nuisance case.” Other questions raised on appeal are concerned with claimed errors of the trial court in submitting to the jury matters relating to the flood issue. Inasmuch as the jury found no damages on such issue, there was no prejudice resulting to appellant from any instructions in this regard; and discussion of these propositions is unnecessary to a determination of the case. The judgment of the District Court is affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"? A. motor vehicle B. airplane C. product liability D. federal employer liability; injuries to dockworkers and longshoremen E. other government tort liability F. workers compensation G. medical malpractice H. other personal injury I. fraud J. other property damage K. other torts Answer:
songer_dissent	1	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting. Louise M. SCUDDER, Petitioner-Appellant, v. UNITED STATES of America. Respondent-Appellee. No. 18041. United States Court of Appeals Sixth Circuit. May 8, 1969. John S. Hager, Owensboro, Ky., for petitioner, John S. Hager, Morton J. Hol-brook, Sandidge, Holbrook, Craig & Hager, Owensboro, Ky., on the brief. Robert Campbell, Dept, of Justice, Washington, D. C., for respondent, Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, William A. Friedlander, Robert J. Campbell, Attys., Dept, of Justice, Washington, D. C., on the brief. Before O’SULLIVAN and McCREE, Circuit Judges, and CECIL, Senior Circuit Judge. ORDER This cause is now before the Court upon Respondent-Commissioner’s petition for rehearing and upon a pleading of Louise M. Scudder denominated “Motion to Amend Opinion and in the Alternative Petition for Rehearing.” The foregoing petitions and motion are denied. The Commissioner asserts that our opinion contains an impermissible disregard of a stipulation that monies taken by Frank Scudder from the Owensboro Liquor Company, of which his wife was a partner, constituted embezzlement. This stipulation arose from an agreement between counsel that monies withdrawn from the partnership by Frank “were taken in the manner described in sub-paragraphs (b) and (e) of paragraph 8 of respondent’s answer.” Those sub-paragraphs refer to income that “was derived from a variety of different sources, the most important of which involved his embezzlement of certain funds belonging to a partnership” and that “the total sums which Mr. Scudder thus unlawfully took and embezzled * * * were not less than the following amounts.” Conclusional employment of the word, “embezzlement,” where the underlying facts are not in dispute should not change such undisputed facts. It was, and is, the intent of this Court, moreover, that the end result will be the same whether Frank Scudder’s withdrawals from the monies owned by the partnership of which his wife was a member are characterized as unauthorized loans or as embezzlement. In distinguishing the cases relied upon by the Tax Court, we recited that none of them hold that an innocent wife can be held liable for income tax on monies allegedly embezzled from her by her husband. We further distinguished those cases by saying, “And none involves a situation where allegedly embezzled funds were shown as loans to the alleged embezzler on the books of the concern from which the withdrawals were made * * In announcing the basis for our holding, we took occasion to say, “We just cannot persuade ourselves that the execution of the joint returns here were not the product of conduct equivalent in wrong to the fraud, trickery, and, indeed, the duress which the Tax Court appears to concede will insulate its victim from liabilities which would otherwise accrue.” After our speculative consideration as to whether the husband’s ■ withdrawals might or might not be embezzlement under the language of James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961), we expressed our further view that, “Under the special facts of this case, we do not consider that a holding by us that the monies withdrawn by Frank Scudder were not taxable income for which his victimized wife must now pay, would run counter to James v. United States, supra.” It was, and is, our holding that, whether or not the stipulation of the parties commits us to view the husband’s withdrawals as- embezzlement, the circumstances by which Frank Scudder obtained these monies forecloses the assessment upon his wronged wife of income tax or penalties thereon. Appellant Louise M. Scudder moves that this Court’s opinion be reformed if it can be read as requiring her to pay the tax due upon income earned by her husband upon investments and properties owned by him, and to “insulate the victim from liabilities on the joint return.” This would include exonerating Louise Scudder from payment of the income tax and penalties attributable, not to Frank’s partnership withdrawals, but to his other businesses. While some of these investments undoubtedly were made with the funds taken from the partnership, the earnings on them should not be excluded solely because our ruling has already excused her from paying tax on the monies from which the investments were made. In Commissioner v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752 (1946), even though embezzled funds were held not to be taxable income, the Supreme Court suggested that profits realized from use of the embezzled funds might be taxable. “Had the taxpayer [the embezzler] used the embezzled money and obtained profits therefrom, such profits might have been taxable, regardless of the illegality involved.” 327 U.S. at 409, 66 S.Ct. at 549. We make clear that Louise Scudder’s liability for the tax and penalties on such earnings omitted from the joint return shall not expose her to any part of the penalty on the amounts illegally withdrawn from the partnership. But we do not look upon the failure of Frank Scudder to include earnings from his investments and properties in the joint return as “conduct equivalent in wrong to the fraud, trickery, and indeed, the duress” which has led us to hold that Louise is exempt from paying the tax and penalties assessed upon monies illegally withdrawn from the partnership. We make clear, however, that in computing the tax payable on such investment earnings, the wrongfully embezzled or withdrawn funds shall not be added thereto to arrive at the rate of tax. We further emphasize that the annual withdrawals by Frank Scudder in the amount of $4,420 and falsely entered in the partnership’s books as travel expenses are to be treated in the same way as the other illegal withdrawals from the partnership, whether the total be considered as embezzled funds or unauthorized loans or withdrawals. Therefore, upon consideration of the matters before us, It is ordered that the Motion to Amend Opinion and the respective Petitions for Rehearing may be, and they are, hereby denied. Entered by order of the Court. . See Howell v. Comm’r of Internal Revenue, 175 F.2d 240 (6th Cir. 1949). Question: What is the number of judges who dissented from the majority? 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. Richard M. WOLFF, Petitioner-Appellant, v. UNITED STATES of America, John T. Hadden, and George Rodgers, Respondents-Appellees. No. 83-1334. United States Court of Appeals, Tenth Circuit. June 26, 1984. Jack Beam, Denver, Colo., for petitioner-appellant. Raymond P. Moore, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., Denver, Colo., with him on the brief), for respondents-appellees. Before McWILLIAMS, BREITEN STEIN and SEYMOUR, Circuit Judges. McWILLIAMS, Circuit Judge. Richard M. Wolff, an inmate at the Federal Correctional Institute, Englewood, Colorado, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of Colorado. By amended petition, Wolff alleged that his conviction for murder, felony murder and robbery at a general court-martial of the United States Military Court, Okinawa, Japan, on April 1, 1977, violated his Fifth Amendment due process rights and his Sixth Amendment confrontational right. Wolff was sentenced to confinement for life at hard labor, forfeiture of all pay and allowances, a fine, reduction of grade and dishonorable discharge. After hearing on the amended petition, the district court denied the petition. Wolff appeals. We affirm. Before detailing the salient background facts, a review of the various court proceedings will put the entire matter in context. As indicated, Wolff was convicted of premeditated murder, felony murder and robbery at a general court-martial. At the time, Wolff was a Technician First Class (E-6), U.S. Navy, and assigned to duty at naval installations at Okinawa, Japan. He was convicted of robbery and the murder of Ship Serviceman First Class Clark, who was assigned as a cashier at an officers’ club at Okinawa. The conviction was reviewed and affirmed by the United States Navy Court of Military Review. United States v. Wolff, 5 M.J. 923 (N.C.M.R.1978). Thereafter, the United States Court of Military Appeals denied, without comment, Wolff’s petition for review, 6 M.J. 305 (N.C.M.R.1979), and later denied, without comment, Wolff’s untimely petition for reconsideration, 7 M.J. 390 (N.C.M.R.1979). As stated, Wolff was eventually moved to the Federal Correctional Institute, En-glewood, Colorado. While incarcerated in that institution, Wolff, pro se, has instituted four habeas corpus proceedings in the United States District Court for the District of Colorado. The first three have all been finally resolved adversely to Wolff, and none has bearing on the present proceeding, which is the fourth proceeding. Although the present proceeding was instituted pro se, counsel was appointed to represent Wolff in the district court, and he is represented in this Court by that same counsel. For general background facts, see United States v. Wolff, 5 M.J. 923 (N.C.M.R.1978). At the general court-martial, an important government witness was a fellow sailor, Donald M. Drake, who was a friend of Wolff’s. Under a promise of immunity, about which more will be said later, Drake testified that several days before the robbery-murder Wolff had told him that he and his wife were going to rob Clark. Drake further testified that shortly after the murder Wolff admitted the murder to him. Drake admitted, however, that on several occasions during the investigatory and preliminary hearing stages, he had made statements, under oath, that were different from, and contrary to, his testimony at trial. He attempted to explain this by stating that during the preliminary stages he was trying to protect Wolff and his wife, and that in his effort to do so he had implicated others in the murder-robbery of Clark. Drake testified, however, that his testimony at trial was the truth of the matter. As stated, in the present proceeding Wolff, pro se, first alleged that Drake’s testimony at trial was perjured, and that the government knowingly used it. After appointment of counsel, an amended petition was filed, and the thrust of the amended petition was that the facts and circumstances surrounding Drake’s testimony violated Wolff’s due process rights and his confrontational right. As stated, prior to trial Drake had been offered and accepted immunity in exchange for his testifying against Wolff. The government’s position in this regard is that Drake had been offered transactional immunity. Wolff’s position is that the immunity granted was much broader, in that it granted Drake immunity from perjury prosecution. As we read it, the grant of immunity did not specifically include immunity from perjury; however, it did not specifically exclude immunity from perjury- immunity from perjury, argues Wolff’s counsel, destroyed the oath given Drake and violated Wolff’s due process and confrontational rights. Regardless of whether Drake was granted only transactional immunity, or something more, it is undisputed that Drake thought he had immunity from perjury charges. Drake so testified during the recross-examination'by defense counsel. However, Wolff’s counsel at the court-martial made no objection to Drake’s testimony. The failure of Wolff’s counsel to make an appropriate objection at the court-martial may have been a matter of trial strategy. If objection had been made, perhaps the matter would have been cleared up on the scene and. Drake would have been advised as to the exact extent of the immunity granted and the effect, if any, a transactional grant of immunity might have on his testimony. On the other hand, counsel may have thought that by cross-examination he had destroyed Drake’s credibility, and, such being the case, counsel may have decided to allow the court-martial to go on through to conclusion, and not raise the fact of Drake’s belief that he had perjury immunity at that particular time, which tactic at the same time, would conceivably preserve the matter as a possible basis for subsequent collateral relief, should Wolff be convicted. In any event, the question of whether Drake’s mistaken belief that he had perjury immunity violated Wolff’s due process and confrontational rights was never raised in the court-martial, though the underlying facts were fully developed. And therein lies the root of the present controversy, which is whether the fact that the matter raised in this present federal proceeding was not raised at the court-martial bars federal relief. We conclude that it does, relying on the rationale of United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); En-gle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Counsel would avoid the impact of the above cited cases by observing that Frady involved a collateral attack (§ 2255) on a conviction in the local District of Columbia courts and that Engle and Wainwright involved collateral attacks (§. 2254) on state court convictions, whereas the instant case involves a collateral attack on a court-martial conviction. This admitted difference is not in our view of any great significance. Indeed, “ ‘the range of inquiry in acting upon applications for habeas corpus for persons confined by sentence of military courts is more narrow than in civil cases.’ ” Kennedy v. Commandant, 377 F.2d 339, 342 (10th Cir.1967) (quoting Suttles v. Davis, 215 F.2d 760, cert. denied, 348 U.S. 903, 75 S.Ct. 228, 99 L.Ed. 709 (1954)). The function of civil courts in reviewing a military conviction on a petition for a writ of habeas corpus is to determine whether the military courts gave fair consideration to the petitioner’s constitutional claims. King v. Moseley, 430 F.2d 732 (10th Cir.1970) (citing Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953)). In the instant case, Wolff’s claim that the immunity given Drake violated his due process and confrontational rights was not presented to the military courts. However, we deem it unnecessary to proceed to examine the merits of Wolff’s constitutional claim because we believe Wolff waived this claim by failing to object to Drake’s testimony at the court-martial. As we understand it, the military courts have adopted the general rule that appellate courts will ordinarily review claimed errors only on the basis of error as presented to the lower courts. See, e.g., United States v. Anderson, 10 M.J. 743, 746 (N.C.M.R.1981) (quoting United States v. Weaver, 1 M.J. 111, 114 n. 1 (C.M.A.1975)); United States v. Dupuis, 10 M.J. 650, 652 (N.C.M.R.1980). This general rule appears to be functionally analogous to a state contemporaneous objection rule. Therefore, we believe the principles of Frady, Engle, and Wainwright apply to the instant case, i.e., the underlying facts were fully known to counsel at the court-martial and his failure to object forfeited Wolff’s claim. The WainwrightrFrady-Engle line of cases recognizes that if there is good cause for not having advanced the particular matter relied on in the federal collateral habeas corpus proceeding at trial, and there is actual prejudice, then federal relief may be available. In the instant case there is no showing of cause. It could be argued that this is a case of deliberate by-pass. In Angle v. Laird, 429 F.2d 892 (10th Cir.1970), cert. denied, 401 U.S. 918, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971), this Court held that the failure of petitioner’s counsel to make appropriate objections at court-martial in that case was a deliberate by-pass or waiver of his right of confrontation and cross-examination. Be that as it may, certainly in the instant case there is no demonstrated cause for failing to present the matter in the court-martial and thereby obtain an immediate ruling on the objection. Judgment affirmed. . Counsel argues here that Drake’s testimony was "the sine qua non of the Navy’s case.” As mentioned in United States v. Wolff, 5 M.J. 923 (N.C.M.R.1978), there was other evidence which, in our view, was highly incriminating: (1) before the murder Wolff was deeply in debt, but after the murder Wolff paid his debts and spent money lavishly; (2) search of Wolffs room resulted in the seizure of a blood-stained shirt belonging to Wolff, and the blood on Wolff’s shirt matched the blood of the deceased; (3) Wolff had been seen with the victim on the day of the killing and was observed alone in the victim’s car later that same day; and (4) ballistic tests showed that the victim had been killed by two shots to the head which came from Wolffs .22 calibre pistol. . The record indicates Wolffs defense counsel inquired about Drake’s grant of immunity during his recross-examination of Drake, and Drake answered as follows: Q. Isn’t it a fact, Constructionman DRAKE, that you're testifying today under a grant of immunity from the Convening Authority? A. Yes, sir. It is. Q. And what are the terms of that grant of immunity? A. Defer me of prosecution of anything dealing with the WOLFF case, the robbery or murder. Q. How about perjury? Are you secure from prosecution for perjury? A. Yes, sir. Q. And if they find out iater that you perjured yourself today on the stand can they, under the terms of that agreement, bring charges against you? A. No, sir. Q. So you are protected from anything that you might say today; doesn’t matter whether you are telling the truth or whether you are not telling the truth. No one can prosecute you for lying on the stand here today, is that correct? A. Yes, sir. Rec. Vol. I at 71. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_direct2	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. CITY OF PHOENIX, Plaintiff-Appellee, v. COM/SYSTEMS, INC., et al., Defendants-Appellants. Richard H. BARRY, Counter-claimant/Appellant, v. CITY OF PHOENIX, Counter-defendant/Appellee. OHIO CASUALTY INSURANCE COMPANY, Cross-claimant, v. Richard H. BARRY, et al., Cross-defendant. No. 81-5471. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 7, 1982. Decided May 26, 1983. Don C. Stevens, II, William R. Jones, Jr., Jones, Skelton & Hochuli, Phoenix, Ariz., for plaintiff-appellee. Robert O. Dyer, Phoenix, Ariz., Michael J. Pearce, George E. Wise, Wise & Nelson, Long Beach, Cal., for defendants-appellants. Before ELY and CHOY, Circuit Judges, and THOMPSON, District Judge. The Honorable Bruce R. Thompson, Senior United States District Judge for the District of Nevada, sitting by designation. CHOY, Circuit Judge: This diversity action arose out of a contract dispute between the City of Phoenix (“City”) and a contractor who had agreed to build a communications system for the City. The contractor’s performance bond surety company, which was joined as a defendant, cross-claimed for indemnity against the contractor. We find that (1) the district court acted properly in entering a judgment notwithstanding the verdict on the indemnity cross-claim rather than ordering a new trial; and (2) there is adequate evidence on the record to support the amount of damages awarded to the City by the jury. Therefore, we affirm the judgment entered by the district court. I. Background On December 16, 1974, Richard H. Barry (“Barry”), the owner and manager of Com/Systems, entered into a contract with the City. The contract provided that Barry would build, design, and produce a “multi-channeled, multi-position, two-way radio communications remote control system” for the Phoenix Police Department at a price of $179,294. The contract called for Barry to obtain a contract performance surety bond in the amount of one-half the contract price. Accordingly, Ohio Casualty Insurance Company (“Ohio Casualty”), as surety, executed and delivered on behalf of Barry, as principal, a contract performance bond in the amount of $89,632, designating the City as obligee. Because of a series of revisions requested by the City and other delays caused by problems within Barry’s organization, the system remained incomplete in January 1976. On January 19, 1976, the City informed Barry that it considered the delay to be a material breach and was, therefore, cancelling the contract. At the time of cancellation, the City had paid Barry $134,-264, leaving approximately $45,000 unpaid on the contract. The City then proceeded to work on the project in-house and finally completed the project in September 1979. II. The Trial The City sued Barry and Ohio Casualty for the extra costs it incurred in completing the system, claiming that Barry had breached the contract by failing to meet the contract delivery schedule. Barry counterclaimed against the City, claiming that the City’s unilateral cancellation of the contract constituted a breach. Ohio Casualty cross-claimed against Barry for indemnity for any amount it might have to pay the City on the performance bond. At the trial before a jury, the City presented evidence that it had incurred a total expense of $337,617.26 in completing the communications system. The City’s evidence also showed that of that total, $94,-508.97 was used to purchase parts. Barry estimated the reasonable cost of completing the system and a City communications officer testified as to his belief concerning completion cost at the time the contract was terminated. For reasons that are not completely clear, the trial judge instructed the jury that the total award of damages to the City could not exceed $119,000. The judge correctly instructed the jury that if they found Ohio Casualty liable to the City, then by law, Barry would be liable to indemnify Ohio Casualty for any amount Ohio Casualty paid to the City on the security bond. However, the verdict forms received by the jury included a form that gave the jury the option of finding for the City and against both Barry and Ohio Casualty on the breach-of-contract claim, but for Barry and against Ohio Casualty on Ohio Casualty’s cross-claim for indemnification. The jury returned a verdict on the incorrect verdict form, finding for the City and against Barry and Ohio Casualty in the amount of $90,000, and against Ohio Casualty and for Barry on the indemnity cross-claim. Barry and Ohio Casualty moved for a new trial, or alternatively, for judgment notwithstanding the verdict. The district court entered judgment on the breach-of-contract claim according to the verdict, but entered a judgment notwithstanding the verdict on the indemnity cross-claim. Thus, the district court awarded the City of Phoenix $90,000 against Barry and Ohio Casualty on the breach-of-contract claim and held Barry liable to Ohio Casualty on the indemnity cross-claim. III. Judgment Notwithstanding the Verdict By law, Barry was liable to indemnify Ohio Casualty for any amount Ohio Casualty paid to the City on the performance bond. The instructions read by the trial judge correctly informed the jury of the state of the law. Nevertheless, the verdict forms supplied to the jury gave them the option of deciding the indemnity cross-claim, and the jury exercised that option by returning a verdict for Barry and against Ohio Casualty. The trial judge corrected the error by entering a judgment notwithstanding the verdict on the cross-claim. A judgment notwithstanding the verdict is proper where the evidence and inferences, viewed in the light most favorable to the nonmoving party, can support only one conclusion: that the moving party was legally entitled to a favorable judgment. Allen v. Allstate Insurance Co., 656 F.2d 487, 488 (9th Cir.1981); see Cordero v. CIA Mexicana de Aviacion, S.A., 681 F.2d 669, 672 (9th Cir.1982); Flores v. Pierce, 617 F.2d 1386, 1389 (9th Cir.), cert. denied, 449 U.S. 875, 101 S.Ct. 218, 66 L.Ed.2d 96 (1980). Since Ohio Casualty was entitled to judgment on its cross-claim as a matter of law, the judge acted properly in issuing a judgment notwithstanding the verdict on the cross-claim. Barry and Ohio Casualty contend that the judgment notwithstanding the verdict was inadequate to correct the jury’s error and that the proper way to correct the error would have been to grant a new trial on all issues. A trial judge may grant a new trial in order to prevent fundamental unfairness or a miscarriage of justice. Peacock v. Board of Regents, 597 F.2d 163, 165 (9th Cir.1979); cf. Alma v. Manufacturers Hanover Trust Co., 684 F.2d 622, 625 (9th Cir.1982) (nonjury trial). But the district court’s conclusion that no such unfairness was present may be reversed only if this court has a definite conviction that the conclusion was a clear error of judgment. Ruiz v. Hamburg-American Line, 478 F.2d 29, 31 (9th Cir.1973);. cf. Alma, 684 F.2d at 625. After considering the circumstances of this case, we have no such conviction that the district court’s decision to deny a new trial was erroneous. The breach-of-contract claim and the indemnity cross-claim rested on totally distinct factual and legal bases. The question of Barry’s liability to indemnify Ohio Casualty was irrelevant to the outcome on the breach-of-contract question. Having seen all the evidence and heard all the testimony, the district court judge was in the best position to ascertain that the jury’s decision on the breach-of-contract issue was supported by substantial evidence and was not tainted by the jury’s erroneous decision on the indemnity issue. Since the two issues were distinct and separable, no injustice occurred when the district court entered a judgment in accord with one part of the jury’s liability verdict but entered a judgment notwithstanding the indemnity portion of the verdict. Cf. Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931) (partial retrial allowable where it clearly appears that issue to be retried is distinct and separable from others); Camalier & Buckley-Madison, Inc. v. Madison Hotel, Inc., 513 F.2d 407, 420-21 (D.C.Cir.1975) (same). We therefore affirm the judgment entered by the district court with respect to the liability issues. IV. Adequacy of Evidence Supporting Damages Award Before deciding whether there was sufficient evidence to support the amount of damages awarded by the jury, we must first address two evidentiary questions— one explicitly raised by Barry and Ohio Casualty and the other implied in their arguments. A. Objection to Testimony by Simmons John E. Simmons, a City communications officer, testified that the City had expended $337,617.26 in completing the communications system. The trial court allowed the testimony over the objection of the defendants that the proper foundation had not been laid. Although the judge did not specify the reason for his ruling, the questions he asked lead us to infer that he found the testimony admissible as a summary calculation of voluminous writings under Fed.R. Evid. 1006. However, it is not critical that we know the trial judge’s rationale; we will uphold the ruling if we find that there is at least one theory under which the evidence was admissible. See SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943); Clark v. City of Los Angeles, 650 F.2d 1033, 1036 (9th Cir.1981), cert. denied, 456 U.S. 927, 102 S.Ct. 1974, 72 L.Ed.2d 443 (1982). Simmons read the $337,617.26 total from Exhibit 87, a computer printout summarizing numerous individual documents. The underlying documents were parts requisitions and work-order requests detailing the cost of parts and labor the City expended in completing the communications system. Although the underlying documents were not offered as evidence at the time of Simmons’ testimony, we believe that a foundation was laid for their admissibility as records kept in the ordinary course of business. For a record to be admissible as a business record, it must be: “(1) made by a regularly conducted business activity, (2) kept in the ‘regular course’ of that business, (3) ‘the regular practice of that business to make the memorandum,’ (4) and made by a person with knowledge or from information transmitted by a person with knowledge.” Clark v. City of Los Angeles, 650 F.2d at 1036-37 (summarizing Fed.R.Evid. 803(6)). Prior to reading from the summary, Mr. Simmons explained how the underlying documents were generated. He explained that any City employee doing mechanical, repair, or construction work would fill out a work order showing the project number of the project on which he was working and the amount of time he spent on the project. Similarly, if the employee used any parts to do his work, he would fill out a parts requisition, listing the project number and parts and equipment purchased. The City’s mechanical, repair, and construction work is a regularly conducted business activity. Since a document was produced each time an employee worked on a project or ordered parts or equipment, the documents were kept in the regular course of business, and it was a regular practice to keep such documents. The documents were prepared by an employee who had knowledge of the actual time expended or parts purchased. Thus, a proper foundation was laid for the admission of the underlying documents under Fed.R.Evid. 803(6). Because the work orders and parts requisitions were so numerous, the City produced the computer printout to summarize their contents. The trial judge had ascertained that the underlying documents were available for inspection by the defendants. Therefore, the summary was admissible under Fed.R.Evid. 1006. See United States v. Johnson, 594 F.2d 1253, 1254 — 57 (9th Cir.) (summary admissible only if underlying documents admissible, voluminous, and available for inspection), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 376 (1979). The trial judge acted correctly in allowing Simmons to read from the summary. B. Testimony of Gross In addition to the testimony by Mr. Simmons, the City presented the testimony of Gary Gross, the City Controller, concerning the costs the City incurred in completing the system. Gross also read to the jury from Exhibit 87, the summary of parts and labor costs. The two numbers Gross read to the jury were $94,508.97 (the total amount the City expended for parts) and $337,-617.26 (the total amount the City expended for parts and labor). There was never any objection to Mr. Gross’ reading these numbers to the jury, but counsel for Barry did object when, after Mr. Gross had read the numbers to the jury, the City moved to have Exhibit 87 and the underlying documents admitted into evidence. The trial judge sustained the objection, but because part of the discussion concerning this objection was held off the record, we do not know the trial judge’s rationale for not admitting the documents into evidence. Barry and Ohio Casualty seem to assume that Mr. Gross’ testimony concerning costs incurred by the City is not in the record. However, as we have previously noted, Barry and Ohio Casualty never objected to Mr. Gross’ reading the numbers to the jury; they merely objected to the motion to move the summary and its underlying documents into evidence. Nor was there any motion to strike Mr. Gross’ testimony after the summary documents were declared inadmissible. Therefore, Barry and Ohio Casualty never argued in the district court that if the document from which Gross read was inadmissible, then the jury should not have been allowed to consider the numbers that Mr. Gross read from that document. This court will not review an issue not raised or objected to below unless necessary to prevent manifest injustice, In re Southland Supply, Inc., 657 F.2d 1076, 1079 (9th Cir.1981), or unless the issue not objected to in the district court is one of law and does not affect or rely upon the factual record, Telco Leasing, Inc. v. Transwestern Title Co., 630 F.2d 691, 693 (9th Cir.1980); United States v. Patrin, 575 F.2d 708, 712 (9th Cir.1978). The evidentiary question raised by Mr. Gross’ testimony is one that would affect the factual record, so the second exception to the general rule of nonreview does not apply. In addition, we believe that the first exception is inapplicable, for no manifest injustice occurred by allowing Mr. Gross’ testimony to remain on the record even though the district court sustained the objection to move the document underlying that testimony into evidence. As we have already determined, Mr. Simmons’ testimony established a foundation sufficient to support admission of Exhibit 87 as a summary of admissible business records. Even though the document itself was never admitted into evidence, we believe that it was admissible. Therefore, allowing the jury to consider numbers read from that document did not constitute manifest injustice. We consider the numbers read to the jury by Mr. Gross to be evidence upon which the jury could have properly based its verdict. C. Adequacy of Evidence The jury had before it evidence that the City had purchased $94,508.97 worth of parts and expended a total of $337,617.26 for both parts and labor in order to complete the system. Other evidence relevant to the question of damages took the form of the estimates by Simmons and defendant Barry. Barry testified that he could have completed the system for an additional $11,-000 and that, in his opinion, another vendor could have completed the system for between $50,000 and $75,000. Simmons testified that at the time the contract was terminated, he believed the City could complete the project for approximately $80,000. The trial judge, acting to implement the remedy for breach provided in the contract, put a ceiling of $119,000 on the damages award. This court’s standard of review with respect to the sufficiency of the evidence to sustain a damage award is narrow. Kotz v. Bache Halsey Stuart, Inc., 685 F.2d 1204, 1208 (9th Cir.1982). We will disturb a damage award only when it is clear that the evidence does not support it. Flores v. Pierce, 617 F.2d 1386, 1392 (9th Cir.), cert. denied, 449 U.S. 875, 101 S.Ct. 218, 66 L.Ed.2d 96 (1980); see Mitsui O.S.K. Lines, K.K. v. Horton & Horton, Inc., 480 F.2d 1104, 1106 (5th Cir.1973). Since the damages awarded by the jury were well within the range of the evidence presented to the jury, we uphold the award. AFFIRMED. . While none of the parties questioned the $119,000 ceiling on damages at the time of trial, all are now at a loss to explain exactly how this number was derived. The district court judge arrived at the number by relying on his interpretation of paragraph 11 of the contract: In case of default by the Vendor, the City shall have the right to cancel and to repurchase from another source, and may recover the excess costs by deduction from an unpaid balance due the Vendor, collection against the bid and/or performance bond, or a combination of the aforementioned remedies. . In addition to the evidentiary questions, appellants presented to this court an argument that the City was estopped from obtaining any damages from Barry by the language of paragraph 11 of the contract between Barry and the City (quoted at n. 1, supra ). They cite several Arizona cases for the proposition that if a contract provides a remedy in event of a breach, that remedy is exclusive. See, e.g., Motorola, Inc. v. Fairchild Camera & Instrument Corp., 366 F.Supp. 1173, 1179 (D.Ariz. 1973); Green v. Snodgrass, 79 Ariz. 319, 289 P.2d 191, 192-93 (1955); Treadway v. Western Cotton Oil & Ginning Co., 40 Ariz. 125, 10 P.2d 371, 374-75 (1932); Armstrong v. Irwin, 26 Ariz. 1, 221 P. 222, 225 (1923); Miller v. Crouse, 19 Ariz.App. 268, 506 P.2d 659, 664 (1973); Camelback Land & Investment Co. v. Phoenix Entertainment Corp., 2 Ariz.App. 250, 407 P.2d 791 (1965). Appellants argue that the contract provided only one remedy in case of default: “[T]he City shall have the right to cancel and to repurchase from another source and may recover the excess costs .... ” Since the City completed the system itself, rather than “repurchase from another source,” appellants contend the City is estopped from seeking to recover its costs. We do not so narrowly read the “repurchase from another source” language as to exclude the possibility of in-house completion and to require repurchase from another outside source. Rather, we read the language of paragraph 11 of the contract to limit the amount of damages the City could recover in the event that the City had to seek completion of the communications system by a source other than Barry. The district court limited the amount of damages to the amount provided in the contract. See n. 1, supra. We therefore find that the remedy sought by the City in the present case conforms with the remedy set forth in paragraph 11 of the contract. However, we note that even if the contractual remedy could be construed so narrowly as to allow reimbursement only for outside purchases, the damages awarded in this case conform to that narrow construction. The City purchased $94,508.97 worth of parts from outside sources and was awarded $90,000 in damages. . Before ruling on the objection to Mr. Simmons’ testimony, the trial judge engaged in the following colloquy with witness Simmons and with Mr. Stevens, the attorney for the City: THE COURT: You say the underlying documents are present? MR. STEVENS: Yes, sir. THE COURT: Did you have anything to do with the preparation or supervision of the preparation of that document? THE WITNESS: Not myself, no. THE COURT: This is a summary of the other documents? THE WITNESS: Yes, sir. THE COURT: He may testify. . Appellant Ohio Casualty states in its brief: “The only evidence of damages presented at trial was the testimony of John E. Simmons ... that the City’s costs of completing the system in-house totalled $337,617.26.” Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_appel2_1_4	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant. Parvin E. DAY, Ronald E. Snider, Allan L. Hanft, Carl E. Bozsa, Charles R. Pruett, a/k/a Ronald Pruett, Michael Day, Deborah Forsythe, Joseph J. Church, and Howard Paper Mills, Inc., Plaintiffs-Appellants, v. UNION MINES INC., Defendant-Appellee. No. 87-1694. United States Court of Appeals, Seventh Circuit. Argued Dec. 1, 1987. Decided Nov. 21, 1988. David P. List, J. Andrew Schlickman and Robert P. Biskup, Sidley & Austin, Chicago, Ill., for plaintiffs-appellants. Daniel C. Emerson, Bose, McKinney & Evans, Indianapolis, Ind., for defendant-ap-pellee. Before WOOD, Jr. and CUDAHY, Circuit Judges, and WILL, Senior District Judge. The Honorable Hubert L. Will, Senior Judge of the United States District Court for the Northern District of Illinois, Eastern Division, is sitting by designation. WILL, Senior District Judge. This is an appeal from the district court’s order staying proceedings pending resolution oí state court litigation between the same parties. Although the district court did not mention by name the case of Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) in its stay order, the authority for this type of stay is governed by that case and its progeny. After considering the record below in light of the factors laid out in Colorado River and subsequent cases, we affirm the district court’s decision. I. Statement of Facts. Plaintiffs-appellants were the sole shareholders (the “Shareholders”) of Bicknell Minerals, Inc. (“Bicknell”), an Indiana coal mining company. They sold their stock to defendant-appellee Union Mines Inc. (“UMI”), a Maryland corporation, through a stock purchase agreement dated February 5, 1981 (the “Stock Purchase Agreement”). The Stock Purchase Agreement required payment of $2,000,000 to the Shareholders, and also included a clause providing for payment of the purchase price out of cash flow. The interpretation of that clause is the subject of the complaint in this federal action. The February 5, 1981 sale did not, however, end. the relationship between UMI and the Shareholders, a relationship which progressively took on a more hostile character. Before and after the sale, Bicknell was managed by the Parday Corporation which is solely owned by one of the Shareholders, Parvin E. Day, according to the terms of a mine management services agreement (the “Management Agreement”). A dispute between UMI and Par-vin E. Day arose over the rights to a certain piece of real estate (the “Haseman tract”), which Mr. Day had purchased for Bicknell. This dispute was the subject of a suit filed by Bicknell and UMI in the Superior Court of Knox County, Indiana on May 11, 1981. On May 29, 1981, Bicknell terminated the Management Agreement with Parday Corporation allegedly because of hostile actions by the Shareholders. Par-day Corporation and the Shareholders brought a breach of contract action in state court on August 4,1981 against UMI, Bicknell and Union Miniere, S.A. (UMI’s parent company) based on the termination of the Management Agreement. A final state court action was brought by Parday Corporation on September 19, 1984 to enforce liens on the mine for royalty payments withheld by UMI and Bicknell. As is apparent from the foregoing, the parties now seeking a federal adjudication originally filed suits in the Indiana state courts. The three separate state actions were consolidated in the Superior Court of Knox County, Indiana and after a series of counterclaims and supplemental complaints now include several other claims by both sides of wrongdoing in the contractual relations between the parties. The Shareholders counterclaimed that the Stock Purchase Agreement was void as a' result of undue influence and economic duress. A supplemental complaint was filed by UMI and Bicknell against the Shareholders alleging certain breaches of representations and warranties as to Bicknell’s compliance with federal and state laws and to the truth of the technical and financial data provided by the Shareholders to UMI. The Shareholders’ second amended counterclaim sought to enforce an alleged oral agreement made prior to the Stock Purchase Agreement which required that UMI pay the $2,000,-000 at the closing rather than at such time as there was positive cash flow. Discovery has been conducted regarding many of these issues and some of the disputes raised in state court have been disposed of. The dispute regarding the Hase-man Tract was resolved by an agreement to extend indefinitely the temporary restraining order issued' by the Superior Court on May 11, 1981. The Superior Court granted on January 26, 1981 UMI’s motion for summary judgment on the Shareholders’s second amended counterclaim and found that the Stock Purchase Agreement was enforceable. On July 15, 1985, the Indiana Court of Appeals affirmed the trial court’s decision in Day v. Bicknell Minerals, Inc., 480 N.E.2d 567 (Ind.Ct.App.1985). The Superior Court granted UMI and Bicknell leave on September 22, 1987 to file its second amended complaint which included in Count III a request for a declaratory judgment that the Stock Purchase Agreement required payment only after Bicknell generated a positive cash flow. On November 6, 1987, UMI and Bicknell filed in state court a motion for summary judgment on Count III of their second amended complaint. The appeal of the federal district court’s stay order was argued before us on December 1, 1987. In January 1988, the Honorable Edward C. Theobald, the judge who had handled the state court litigation since 1981, recused himself because his daughter had joined the firm representing UMI in this action. He certified the case to the Indiana Supreme Court for the appointment of a new judge. Acting on UMI’s interlocutory appeal of Judge Theobald’s entry of partial summary judgment against UMI and Bicknell on the issue of the alleged breach of the Management Agreement, the Indiana Court of Appeals reversed on April 14, 1988. (Union Miniere, S.A. v. Parday Corp., 521 N.E.2d 700 (Ind.Ct.App.1988)). The original trial date had been continued indefinitely because of UMI’s interlocutory appeal. That court’s remand of the issue to the trial court removes all barriers to the state court disposition of the issues pending only the appointment of a new judge. The parties agree that we should take judicial notice of these post oral argument developments in our decision. The Shareholders have made two attempts to have their claims resolved in federal court. Early in the proceedings, the Shareholders attempted unsuccessfully to remove them to the United States District Court for the Southern District of Indiana. That attempt failed because four of the Shareholders are Indiana citizens and because Bicknell is an Indiana Corporation. The present action was originally filed by them in Colorado on December 6, 1985 but was transferred to the Southern District of Indiana. Diversity exists in Indiana only because Bicknell has been dropped as a defendant. The complaint seeks to establish that the positive cash flow of the Stock Purchase Agreement is simply a timing provision and not a condition precedent to payment of the $2,000,000 or that, if it is a condition precedent, the condition is excused due to UMI’s failure to operate the mine properly. II. Analysis. A. Whether the concurrent suits are parallel. The decision to stay proceedings pending resolution of a parallel state action is reversed only for an abuse of the district court’s discretion. Will v. Calvert Fire Insurance Co., 437 U.S. 655, 665, 98 S.Ct. 2552, 2558, 57 L.Ed.2d 504 (1978); Ill. Bell Tel. Co. v. Ill. Commerce Comm’n, 740 F.2d 566, 569 (7th Cir.1984). To determine whether the court here abused its discretion we must first determine whether the federal and state suits are parallel. Interstate Material Corp. v. City of Chicago, 847 F.2d 1285, 1287 (7th Cir.1988) (citations omitted). Next, we consider the factors listed in Colorado River and its progency to determine whether there are exceptional circumstances permitting a stay “for reasons of wise judicial administration ...” Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246. Suits are “ ‘parallel’ when substantially the same parties are contemporaneously litigating substantially the same issues in another forum.” Calvert Fire Ins. Co. v. Am. Mut. Reins. Co., 600 F.2d 1228, 1229 n. 1 (7th Cir.1979). The two parties to the federal action, the Shareholders and UMI, are the real parties in interest in virtually every aspect of the state proceedings. The Shareholders were all either employees or officers of Parday Corporation, which is solely owned by Mr. Day, so that even the dispute regarding the Management Agreement closely involved the Shareholders. The more difficult question is whether substantially the same issue raised in federal court was present in state court at the time of the district court stay. A related question is whether the amendments to the state court pleadings made subsequent to the stay should have any impact on our decision. The precise issue raised in the district court — the proper interpretation of the ;payment provision in the Stock Purchase Agreement — was not present in state court at the time the stay was entered. However, “we look not for formal symmetry between the two actions, but for a substantial likelihood that the state litigation will dispose of all claims presented in the federal case.” Lumen Constr., Inc. v. Brant Constr. Co., Inc., 780 F.2d 691, 695 (7th Cir.1985) (citations omitted). This test requires a district court judge to make a determination as to what issues will be resolved based on the status of the state litigation at the time the stay is requested. The resolution of the state claims included in the pleadings at the time the stay was entered theoretically would not necessarily have disposed of the payment provision issue in federal court. But the federal lawsuit like the state lawsuit centers on the proper interpretation of the Stock Purchase Agreement and the performance of the parties thereunder. It is true that the question of interpreting the payment provision was not specifically raised originally in state court. However, that issue would never arise if it was determined that the Shareholders had breached warranties and representations which relieved UMI of its obligations under the contract. On the other hand, if the state court found the Shareholders entitled to recover because there was no breach on their part or because they had substantially performed, the question of payment would inevitably arise in connection with determining the relief to which they were entitled. The Shareholders’ federal litigation seeking an interpretation of the payment provision was, therefore, premature. That question will arise only after an ultimate determination that the contract is valid and the Shareholders are entitled to relief. See Hooser v. Baltimore & Ohio R.R. Co., 279 F.2d 197, 199 (7th Cir.1960). The overriding subject matter of the state court litigation is the cluster of rights and obligations of UMI and the Shareholders to each other, and the question of if and when the Shareholders are entitled to any payments will almost inevitably be resolved there. Where the validity, enforceability and interpretation of a contract are at issue in both federal and state courts, and the state litigation was commenced first and has progressed substantially towards completion, entry of a stay does not under Colorado River constitute an abuse of discretion. The Shareholders’ attempt to distinguish the federal suit from the state proceedings by arguing that the contract interpretation claim arose only in 1985 when UMI rejected the Shareholders’ demand for payment and therefore “was not ripe for adjudication at the time any of the three state-court cases were filed.” Brief of Plaintiffs-Appellants at 13. As discussed previously, the questions relating to the contract payment provision in one sense have not yet arisen and will not until the Shareholders are held to be entitled to relief. The Shareholders then attempt to show that their case is governed by Crawley v. Hamilton County Comm’rs., 744 F.2d 28 (6th Cir.1984), in which the court reversed a stay order after finding that the concurrent suits were not parallel. In Crawley, prison inmates brought claims of constitutional violations in separate proceedings based on the conditions of the same correctional facility during two distinct time periods. The defendants in the state suit were city officials, while those in the federal suit were county officials. In addition, the federal suit included a host of separate issues not raised in the state suit. The Crawley court cited all of these factors in arriving at its decision that the proceedings were not parallel. 744 F.2d at 31. The present ease is substantially different from Crawley, because here the same parties are in both proceedings, the state proceedings rather than the federal ones are the more comprehensive ones, see Lumen Constr., 780 F.2d at 695, and because the relevant time period and the basic contract disputes are the same for both the various state claims and the federal contract interpretation claim. Only the Shareholders’ demand for payment under the Stock Purchase Agreement and UMI’s nonpayment are recent developments. However, the success of the Shareholders’ federal claim, as well as many of the other issues in the state court cases, turns on the proper interpretation of the Stock Purchase Agreement which must be based on the intent of the parties at the time of contracting. Keystone Square Shopping Center Co. v. Marsh Supermarket Inc., 459 N.E.2d 420 (Ind.Ct.App.1984). The Shareholders argue that the district court must not base its stay decision on the fact that the state proceedings could be modified to include the contract interpretation issues. Brief of Plaintfffs-Appellants at 12. They quote the Crawley language that “[t]he issue is whether [the state court action], as it currently exists, is a parallel, state proceeding,” 744 F.2d at 31, in their support. The proceedings were in fact parallel, as we have pointed out, since the district court judge could reasonably assume that the federal issue would be decided in the full course of the state litigation. Moreover, even if the proceedings were not parallel at the time the stay was entered, they are parallel now as a result of the filing of UMI’s second amended state court complaint requesting declaratory judgment on the contract interpretation issue. We addressed the question of whether a reviewing court should consider the progress in the state proceedings made after a Colorado River stay has been entered in Ill. Bell Tel. Co. v. Ill. Commerce Comm’n, 740 F.2d 566, 570 (7th Cir.1984): Ordinarily, it would be appropriate for a reviewing court to determine the propriety of a district court’s decision whether to stay a suit on the basis of the facts as they appeared at the time the motion to stay was filed_ (citations omitted). The purpose of the Colorado River doctrine, however, is the conservation of state and federal judicial resources. Where the progress of the state suit has changed significantly since the motion to stay the -federal suit was filed, it would defeat that purpose to ignore the subsequent events. Thus, this court has looked to facts occurring in state court subsequent to the motion to stay in federal court. See Board of Education v. Bosworth, 713 F.2d 1316, 1321-22 (7th Cir.1983); Evans Transportation Co. v. Scullin Steel Co., 693 F.2d 715, 719-20 (7th Cir.1982). This case presents a slightly different question than that addressed in Illinios Bell. Here, we are asked to consider the later proceedings to determine whether the cases are parallel, not simply to determine which proceedings have progressed the farthest. We are also considering a later amendment to the pleadings and a motion on which no action has been taken in the state court. Nevertheless, we find that the Colorado River doctrine’s goal of conserving judicial resources is best served by taking notice of UMI’s second amended complaint which makes the issues in state court mirror those raised in federal court. The Shareholders would like us to believe that the addition of Count III in the second amended state court complaint is an admission on the part of UMI that, in fact, the proceedings were not parallel when the stay was entered. Appellant’s Response to Appellee’s Motion to Take Judicial Notice. However, because we have found that there is no requirement of exact parallelism in the legal issues raised, the Shareholders’ argument has little weight. In addition, as previously pointed out, even without the amendment, the state eourt proceedings would almost inevitably have disposed of the issue raised by the Shareholders in this case and in UMI’s Count III. Moreover, a stay should be upheld in the interests of judicial economy if the concurrent suits are parallel at the time of review, as they are here, even if they were not parallel when the stay was entered. An important question raised by the Shareholders, ibid., is whether affirming the stay will set a precedent which will make it possible for a party, by amending its state court pleadings, to prevent a federal plaintiff from having a hearing on a claim otherwise cognizable in federal court. For several reasons, a federal plaintiffs right to be heard is not compromised by this decision. As an initial matter, the state rules limiting the issues that can be raised in amendments provide some assurance that only those federal claims which are closely related to the ongoing state litigation could be incorporated in an amendment and stayed. Second, the fact that the proceedings are parallel is not sufficient alone to justify a federal stay without the presence of the other Colorado River factors. Finally, if there is evidence of bad faith on the part of the party attempting to stay out of federal court, a district court or a reviewing court can deny a party’s motion to stay the federal proceedings. B. Whether the Colorado River factor analysis supports the stay. Having found that the federal and state proceedings are parallel, we apply the Colorado River factors to the facts of this case. The Colorado River Court emphasized “the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them” which is excused only in “exceptional” circumstances. 424 U.S. 800, 818-19, 96 S.Ct. 1236, 1246-47, 47 L.Ed.2d 483 (1976). Although “[n]o one factor is necessarily determinative,” id. at 818, 96 S.Ct. at 1247, the Colorado River doctrine now includes at least ten factors which may be considered in deciding whether exceptional circumstances exist. See Lumen Constr., 780 F.2d at 694-95 (listing the ten factors). The Colorado River doctrine requires that a federal trial judge in applying the factor analysis find something more than parallelism, such as a federal policy which favors staying the proceedings which is evidenced, for example, by a federal statute or rule. The factor most apparent in the district court’s order granting the stay here is the priority in the state proceedings shown by the far greater progress made in that court compared to the lack of progress in federal court. The Shareholders argue that there has been no progress in state court on the specific claim raised in federal court. Because there has been substantial state court progress in the basic contractual disputes which will undoubtedly be dispositive of the federal claim as well, this overall progress should be determinative rather than the lack of progress on one specific legal theory. Another related factor in favor of the stay is the danger of piecemeal litigation presented if both proceedings were allowed to go on simultaneously. Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246, citing Brillhart v. Excess Ins. Co., 316 U.S. 491, 495, 62 S.Ct. 1173, 1176, 86 L.Ed. 1620 (1942). “Piecemeal litigation occurs when different tribunals consider the same issue, thereby duplicating efforts and possibly reaching different results ...” Am. Int’l Underwriters, (Philippines), Inc. v. Continental Ins. Co., 843 F.2d 1253, 1258 (9th Cir.1988). Dual proceedings could involve what we have called a “grand waste of efforts by both the court and parties in litigating the same issues regarding the same contract in two forums at once.” Microsoftware Computer Sys. v. Ontel Corp., 686 F.2d 531, 538 (7th Cir.1982). Moreover, the possibility of conflicting results is very present here since both state and federal eases depend on interpretation of the same contract. We have also noted that the possibility of sharing discovery on parallel issues does not alleviate that waste of judicial resources since the two forums “see each case uniquely and must hear evidence and arguments on each point raised throughout the course of the litigation, no matter how routine it becomes for counsel.” Id. at 534. Here, the case for a stay of the federal proceedings is even stronger than in Micro-software, because discovery as to the intent that the Stock Purchase Agreement be binding on the parties and its interpretation has already been conducted. This discovery covered the negotiations leading up to the final Stock Purchase Agreement, Day v. Bicknell Minerals, Inc., 480 N.E.2d 567, 569 (Ind.Ct.App.1985), which is relevant to the interpretation issue raised in district court. See Michels v. Dyna-Kote Indus., Inc., 497 N.E.2d 586, 589 (Ind.Ct. App.1986) (“to the extent an instrument is ambiguous we may consider the situation of the parties, their motives in dealing with each other, and the object sought to be accomplished in determining the intent of the parties”). The Colorado River policy in favor "of wise judicial administration is furthered by deference to the state court which has already overseen discovery on related issues. “Gratuitous interference with the orderly and comprehensive disposition of a state court litigation should be avoided.” Brillhart, 316 U.S. at 495, 62 S.Ct. at 1176. Even if Colorado River did not compel a stay based on the already substantially completed proceedings in the state court, the federal proceedings should be stayed because, as previously indicated, they now parallel those in state court. The district court does not have the power to force the Indiana Superior Court to leave the contract interpretation issue for federal decision. See Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 103 S.Ct. 3201, 77 L.Ed.2d 837 (1982). In Arizona, the Federal Government argued that Indian water rights in states which entered the Union by federal legislation which reserved to Congress absolute control over Indian lands could be adjudicated separately from all the other water rights decisions “and could simply be incorporated into the comprehensive state decree at the conclusion of the state proceedings.” Id. at 567, 103 S.Ct. at 3213-14. The Court found that the federal suits should be stayed in deference to the state proceedings, because the Government’s argument for separate adjudications “assume[d] a cooperative attitude on the part of state courts, state legislatures, and state parties which is neither legally required nor realistically always to be expected.” Id. at 568-69, 103 S.Ct. at 3214-15. In addition to the policies against piecemeal litigation and in favor of completion of already ongoing state litigation, we find an additional policy against the type of reactive suit brought here by the Shareholders in the district court. That policy against hearing a federal claim which is related to ongoing non-removable state proceedings is evidenced by the 28 U.S.C. § 1441(b) rule governing removal of state court actions. That rule makes it possible, at the discretion of the district court, for an otherwise non-removable set of claims to be removed from state court upon being joined to a removable claim. However, re.moval is allowed only when the removable /claim is “separate and independent.” 28 U.S.C. § 1441(b) (1982). When considered in light of the federal policy of judicial economy furthered by deciding all disputes between a party in one forum, the only possible reason for the distinction between unrelated and related claims is that related removable claims should be decided in state court along with the non-removable claims. This distinction makes sense because diverse parties are less likely to be prejudiced by the bias of an out-of-state court when their interests are closely aligned with non-diverse parties.- Part of the rationale behind our decision in Microsoftware to uphold the Colorado River stay was that the federal plaintiff, MCS, had passed up an opportunity to be heard in federal court. We noted that diversity jurisdiction was meant to protect out-of-staters from bias in state court but that MCS, an Illinois corporation, had already foregone an opportunity to avoid any bias it might have experienced in New York state court by removing the New York suit to federal court. The Shareholders argue that their attempt from the beginning to be heard in federal court is a factor weighing in favor of reversing the district court stay. Brief of Plaintiffs-Appellants at 22. The Shareholders tried to remove and failed, because they could not show complete diversity. We would be defying the policies behind the requirement of complete diversity and the Section 1441 rule for removal by now granting the Shareholders a right to a federal forum as well as the state forum they originally invoked and still have. A final factor in favor of the Colorado River stay in this case is that all the issues to be decided are governed by state law. Although the Supreme Court, in Moses H. Cone Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), wrote in dicta that “in some rare circumstances the presence of state-law issues may weigh in favor of that surrender [of jurisdiction],” id. at 26, 103 S.Ct. at 942 (emphasis added), we have found that a state court’s expertise in applying its own law favors a Colorado River stay. Cf. Medema v. Medema Builders, Inc., 854 F.2d 210 (7th Cir.1988). Especially in a case such as this one where the litigation has been going on for many years and related discovery has been conducted, the state court should be able more quickly and effectively to decide the state law issues. See, e.g., Lumen Constr., 780 F.2d at 696, citing Cannady v. Valentin, 768 F.2d 501, 503 (2d Cir.1985); Evans Transp. Co. v. Scullin Steel Co., 693 F.2d 715, 720 (7th Cir.1982); Microsoftware, 686 F.2d at 537. Because we find that the concurrent state and federal proceedings between UMI and the Shareholders are parallel and that the Colorado River factors strongly support the stay, we affirm the district court’s order staying the proceedings before it. . In this case, Judge Brooks ordered the parties to keep him advised of the progress in the state court cases. As a result, Judge Brooks could lift the stay in the event that his prediction about the issues likely to be litigated in state court proves wrong. See Lumen Constr., 780 F.2d at 698 (discussing the reasons favoring a stay over a dismissal of the federal proceedings); Interstate Material Corp., 847 F.2d at 1290 (same). . UMI filed a Motion to Take Judicial Notice of State Court Pleadings and Other Papers on November 12, 1987 to which the Shareholders responded noting their objections. We grant that motion for the reasons given herein in substance. . Indiana’s Rule of Trial Procedure 15(A) provides that “leave shall be given when justice so requires." Ind.Code Ann., tit. 34, Rule 15(A) (West 1987). Leave to amend is given unless amendment will prejudice the opposing party. Huff v. Travelers Indent. Co., 266 Ind. 414, 363 N.E.2d 985, 989 (Ct.App.1977). . As discussed infra, the Colorado River doctrine supports federal policies, such as those evidenced by the requirement of complete diversity of litigants to obtain a federal forum and the 28 U.S.C. § 1441 rule for removal. These rules show that federal jurisdiction should not be exerted over a removable claim which is related to non-removable state litigation, such as the one brought by the Shareholders in this case. A party's right to a federal forum on a diversity claim is protected by 28 U.S.C. § 1441 to the extent that the claim is "separate and independent.” Our decision does not remove that protection. .See, e.g., Colorado River, 424 U.S. at 819, 96 S.Ct. at 1247 (federal policy in favor of comprehensive adjudication of water rights); Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 569, 103 S.Ct. 3201, 3215, 77 L.Ed.2d 837 (1983) (same policy); Brillhart v. Excess Ins. Co., 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942) (stay of federal proceedings upheld, since a federal court’s exercise of jurisdiction is discretionary under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202 (1970)). See also Note, Federal Court Stays and Dismissals in Deference to Parallel State Court Proceedings: The Impact of Colorado River, 44 U.Chi.L.Rev. 641, 665-80 (1977). . Although UMI argues that the Shareholders’ federal suit is vexatious, Brief of Defendant-Ap-pellee at 21-23, the record does not conclusively show that the Shareholders were acting in the defensive manner that the plaintiffs in Calvert Fire Ins. Co. v. Am. Mat. Reins. Co., 459 F.Supp. 859 (N.D.Ill.1978), aff’d, 600 F.2d 1228 (7th Cir.1979), exhibited. There, plaintiff Calvert's filing of the federal suit based on the same issues already decided in state court "was intended to delay the proceedings in the state court and to obtain two adjudications with two possible appeals of the same legal issue.” 459 F.Supp. at 862. It is much less certain in the present case that the Shareholders were acting vexatiously. Nevertheless, for the reasons stated, the Shareholders’ reactive suit should be stayed. . Part of the rationale for Section 1441 is to prevent a plaintiff from compromising a defendant’s right to removal by joining in the suit unrelated non-removable claims. . This policy is also behind the doctrines of ancillary and pendent jurisdiction. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant? A. auto B. chemical C. drug D. food processing E. oil refining F. textile G. electronic H. alcohol or tobacco I. other J. unclear Answer:
songer_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. Ronnie ATWELL, Plaintiff-Appellant, v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary, et al., Defendants-Appellees. No. 85-3187. United States Court of Appeals, Fifth Circuit. Sept. 26, 1986. Lawrence B. Fabacher, II, New Orleans, La. (Court appointed), for plaintiff-appellant. Terry Boudreaux, Patricia E. Black, Asst. Dist. Attys., New Orleans, La., for defendants-appellees. Before CLARK, Chief Judge, GOLDBERG and GARWOOD, Circuit Judges. GARWOOD, Circuit Judge: Rennie Gordon Atwell, who is serving a life sentence in the Louisiana state penitentiary, appeals from the district court’s denial of his petition for writ of habeas corpus. Atwell asserts two primary grounds for relief. First, he claims that he was indicted by a grand jury that did not represent a fair cross-section of the community as required by the United States Constitution. Second, he contends that the state’s failure to disclose prior arrest and conviction records of potential state witnesses and jurors and potential jurors’ voting records violated his due process rights. Finding that Atwell has failed to demonstrate a constitutional violation, we affirm. Facts and Proceedings Below In early 1975, the Orleans Parish Jury Commissioners ceased requiring process servers to serve jury duty summons in the New Orleans Desire Housing Project because of violence in that area. The service of jury duty summons was resumed by August or September of 1975. On March 1, 1975, during the time that summons were not being served in the heart of the Desire housing project, a grand jury was impaneled, which continued until August 31, 1975. On April 3, 1975, petitioner At-well was indicted by this grand jury for first degree murder. Atwell was convicted for first degree murder on February 18, 1976, by a petit jury selected after service of jury duty summons in the Desire project had been resumed. The Louisiana trial court sentenced Atwell to life imprisonment without benefit of pardon, parole, commutation, or suspension of sentence. The Louisiana Supreme Court affirmed Atwell’s conviction and sentence on direct appeal, finding that the trial court had properly denied Atwell’s motion to quash his indictment, but remanded for a hearing to determine whether the state had violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose prior arrest and conviction records of its potential witnesses. State v. Harvey, 358 So.2d 1224 (La.1978). After a hearing on remand, the trial court found that, at the time of Atwell’s trial, the state had no knowledge of any prior convictions of its witnesses and that there was no evidence that the state's witnesses had any prior arrests or convictions. On appeal, the Louisiana Supreme Court affirmed. State v. Harvey, 369 So.2d 134 (La.1979). Atwell was represented by counsel throughout his state trial, appeal, proceedings on remand, and subsequent appeal. Atwell filed this habeas corpus petition in the district court for the Eastern District of Louisiana pursuant to 28 U.S.C. § 2254. The state concedes that Atwell has exhausted his state remedies. The district court referred the case to a magistrate, but later revoked the order and, without a hearing, denied relief on all grounds. Discussion Cross-Section Claim Atwell seeks federal habeas relief based on his claim that exclusion of the Desire housing project residents violated his constitutional right to a fair cross-section of the community on the panel from which his grand jury was drawn. See Eggleston v. Estelle, 513 F.2d 758, 760-61 (5th Cir.1975). In State v. Cage, 337 So.2d 1123 (La.1976), the Louisiana Supreme Court addressed a challenge by Harry Cage of the identical grand jury that indicted Atwell. See State v. Ferguson, 358 So.2d 1214, 1222 (La.1978) (Summers, J., concurring). The Louisiana Supreme Court held that the exclusion of Desire housing project residents from jury service, though not improperly motivated, nevertheless violated Cage’s federal and state constitutional rights “because the exclusion was deliberate and involved a sizeable and distinctive group in the community.” Cage, 337 So.2d at 1125. It sustained the trial judge’s quashing of Cage’s indictment. Atwell, prior to his trial, moved through his counsel to quash his indictment on the ground that residents of the Desire project were not being served with jury duty summonses when his grand jury was selected. A copy of the transcript of the testimony at Cage’s hearing on this subject was introduced in support of Atwell’s motion and considered by the trial court, which nevertheless overruled the motion. On direct appeal of Atwell’s conviction, the Louisiana Supreme Court sustained the trial court’s refusal to quash Atwell’s indictment because of its decision that same day in Ferguson, 358 So.2d at 1216-17, that Cage should be applied prospectively only to ve-nires selected after the date of the Cage decision. Harvey, 358 So.2d at 1229-30. Because we are not bound by the Louisiana Supreme Court’s interpretation of the United States Constitution, we must determine whether Atwell established in the federal district court that he is entitled to habeas relief. Atwell, as habeas petitioner, bears the burden of proving, at the least, that a constitutionally distinctive group or identifiable segment of the community was purposefully excluded from his grand jury venire by the jury selection process. In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court articulated the showing necessary to establish a violation of the Sixth Amendment fair cross-section requirement. The defendant must show: “(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underre-presentation is due to systematic exclusion of the group in the jury-selection process.” Id. at 668. In addressing the underrepresentation requirement, the Duren Court stated: “Initially, the defendant must demonstrate the percentage of the community made up of the group alleged to be underrepresented, for this is the conceptual benchmark for the Sixth Amendment fair-cross-section requirement.” Id. Furthermore, the defendant must show that the underrepresentation of the group at issue “generally and on his venire, was due to their systematic exclusion in the jury selection process.” Id. at 669 (emphasis added). Once the defendant has made a prima facie showing, the state may justify the infringement “by showing attainment of a fair cross section to be incompatible with a significant state interest.” Id. at 671. Because Atwell has not established that the failure to serve jury duty summonses in the Desire housing project caused residents of that project to be underrepresented on his grand jury venire, we find that his claim in this connection must fail. At the state trial court hearing on Atwell’s motion to quash his indictment, the state and the defense entered into a stipulation concerning the testimony offered in the Cage case by the Chairman of the Orleans Parish Jury Commissioners. The trial court entered the transcript of the December 15, 1975 evidentiary hearing conducted on the motion to quash in the Cage case into Atwell’s trial court record. Atwell presented no additional evidence to the state court in support of his motion to quash. Atwell asserts that his evidence is the same as the Cage evidence and does not suggest that he sought to offer, either before the state trial court or the federal district court, any evidence other than the transcript of the testimony at the Cage hearing. The transcript of the testimony at the Cage hearing on the grand jury selection reflects that, during the time the grand jury at issue was impaneled, service of jury duty summons was discontinued in the Desire housing project, or at least in “the heart” of the project. Also, a housing project statistician testified that in October 1975 there were 9,531 residents in the housing project and that the entire Desire population was black. In addition, the Chairman of the Orleans Parish Jury Commissioners testified that, in impaneling a grand jury, venires of seventy-five persons were drawn from the Register of Voters, and that the trial court judge selected the grand jury from the venire. There was no evidence that any Desire resident (or a resident from the heart of the project) was selected for Atwell’s venire. Nor was there any evidence as to the number of registered voters in the Desire project or the statistical likelihood that a Desire resident would have been chosen. Moreover, there was no evidence concerning the proportion in Orleans Parish of persons with demographic characteristics similar to those in the Desire project. The Jury Commission Chairman did testify that the seventy-five-person grand jury venires were usually forty-five to fifty-five percent black. There was no other evidence of the racial or socio-economic makeup of the particular venire or of Atwell’s grand jury which was chosen from it. Just as in Preston (where the record apparently contained all the same evidence as here, plus other evidence), we conclude that “no evidence was presented that in the selection process for” Atwell’s grand jury venire “names of any Desire residents were chosen for the wheel to be served in the first place,” id. at 101 (footnote omitted), and the Desire group “is so small that we may not infer, as a statistical matter, that some number of them must necessarily have been included in the venire chosen from the wheel.” Id. at 102. Accordingly, Atwell has tendered no prima fade showing that the practice of not serving within the Desire project affected the make-up of his grand jury venire. The district court correctly ruled that no constitutional defect was shown respecting the selection of the grand jury. Due Process Brady v. Maryland Claim Atwell also contends that the state failed to disclose to him prior arrest and conviction records of its potential witnesses in response to his pretrial request in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In ruling on Atwell’s direct appeal, the Louisiana Supreme Court, relying on United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), remanded for a hearing to determine whether there was suppression of material “for which there was a substantial basis for claiming that materiality existed,” 358 So.2d at 1233. After the remand hearing, the Louisiana Supreme Court affirmed the trial court’s finding that the state had not suppressed information requested by the defendants. 369 So.2d at 134. Factual determinations made by a state court after a full and fair hearing on the merits are entitled to a presumption of correctness. 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 767-69, 66 L.Ed.2d 722 (1981). Unless we determine that the state court’s factual finding is not “fairly supported by the record,” Atwell must establish by “convincing evidence” that the factual determination was erroneous. Id. at 771. We hold that the state court’s determination is supported by the record. Atwell’s claim that the state attorney who testified at the remand hearing was not familiar with the circumstances of Atwell’s trial is unsupported as the attorney demonstrated sufficient knowledge of the circumstances of Atwell’s trial. He denied any prosecution knowledge of any prior record of the witnesses. The defense counsel stated that he was not aware of any prior convictions of the state witnesses, although he said defendants (Atwell and Harvey) “do believe there was prior arrests, but not any prior convictions.” Atwell simply did not make out a Brady or Agurs violation at his state hearing. There was no evidence or tender of evidence that any of the witnesses had any convictions or arrests. So far as the record reflects, this was purely unsupported, general speculation on the part of the defense. Atwell also challenges the trial court’s denial of his request for prior arrest and conviction records of potential jurors. The Louisiana Supreme Court, accepting as true Atwell’s allegations that the state had this information and intended to use it in jury selection, and that he could not obtain it from other sources, held that Atwell was entitled either to be given the information or to question the prospective jurors. Finding no indication that Atwell was demed the right to question prospective jurors, the Louisiana Supreme Court affirmed the trial court’s decision. 358 So.2d at 1230-32. We find that Atwell has failed to establish that this information would be material to his case. He does not assert that he was prevented from questioning the prospective jurors. In addition, he has failed to allege any facts supporting his claim that some prospective jurors had criminal records and that this information was suppressed by the state. Finally, Atwell also asserts a due process violation in the trial court’s denial of his motion to examine the prior voting records of prospective jurors, which was affirmed by the Louisiana Supreme Court. 358 So.2d at 1231. Again, Atwell has not established that this information would be material to his case or that he was unable to obtain this information on the jury voir dire. Accordingly, we find that Atwell has not established a due process violation. Conclusion Finding that Atwell’s claims are without merit, we affirm the district court’s denial of the writ of habeas corpus. AFFIRMED. . Atwell and another conspired to rob Robert Alexander, committed armed robbery of him, during the course of which Alexander was murdered, and thereafter divided the robbery proceeds among themselves and Atwell’s co-defendant James Harvey. . Atwell asserted a third (and final) ground for relief in his habeas petition, complaining of the fact that his sentence was “without benefit of probation or suspension of sentence." The jury verdict found Atwell "Guilty without Capital Punishment or Benefit of Parole, Probation, or Suspension of Sentence.” Atwell’s complaint, though rather confused, appears to have been that the Louisiana law which authorized a verdict as above set out did not become effective until July 1973, and hence could not constitutionally be applied to his offense which was committed January 2, 1973. However, Atwell’s chronology is mistaken, as the law authorizing this character of verdict came into effect July 12, 1972. Acts 1972, No. 502 (House Bill 97, amending article 817 of the Louisiana Code of Criminal Procedure). Although that law was itself amended in June 1973 (effective July 1973), this 1973 amendatory act specified that ”[t]his Act shall not apply to the prosecution and trial for any crime committed before the effective date of this Act. Qualification of verdicts for crimes committed before that time shall be governed by the law existing at the time the crime was committed.” Acts 1973, No. 125, section 2 (Senate Bill 90, amending article 817 of the Louisiana Code of Criminal Procedure). Hence, Atwell's case continued to be governed by the 1972 law, which authorized the sentence in question and was the law in effect when his crime was committed. Atwell’s third ground may also have included a complaint of the 1979 repeal of the law (La.R.S. 15:571.7) which was in effect when he was sentenced and allowed petition requesting commutation of a life sentence after serving ten years and six months confinement. We have held that this repeal did not violate the rights of those to whom the former statute had been applicable. Dunn v. Maggio, 712 F.2d 998 (5th Cir.1983), cert. denied, 465 U.S. 697, 104 S.Ct. 1297, 79 L.Ed.2d 697 (1984). Atwell’s counsel conceded at oral argument before us that his sentence was not illegal. This concession is well taken. The district court did not err in holding Atwell’s third ground was without merit. . In a different procedural context, we addressed a challenge raised by another habeas petitioner to a petit jury selected from the same venire from which the grand jury that indicted Atwell was selected. In Preston v. Maggio, 741 F.2d 99 (5th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2334, 85 L.Ed.2d 850 (1985), we upheld the denial of habeas relief to petitioner Preston, who challenged his Louisiana conviction on the same Desire housing project grounds asserted by Atwell. However, Preston had not challenged the composition of his jury at his trial or on direct appeal in the state court system. His state court habeas petitions were denied without comment. Because Preston had failed to comply with the Louisiana contemporaneous objection rule, we were compelled by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), to determine whether he showed "cause and prejudice” respecting his failure to object. Declining to fully define "actual prejudice,” we observed that “Preston must, as a minimum, [have shown] that names of Desire residents were in fact chosen from the wheel to make up the venire out of which his jury panel was eventually chosen, and that they were not served." Id. at 101. Based on testimony offered at the district court’s evidentiary hearing and ”[t]he facts contained in the Cage opinion [stipulated by the parties],” we concluded that there was no evidence that the names of any Desire residents were chosen to be served. Id. at 101 and 102 n. 5. In addition, we determined that the excluded group was too small statistically for us to infer that some Desire residents must necessarily have been selected for the venire. Id. at 102. . Cf. Vasquez v. Hillery, — U.S.-, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (systematic exclusion of blacks from grand jury in violation of equal protection clause is not subject to harmless error review). . Atwell’s state record contains no transcript of a hearing on his motion to quash. The minute entries reflect that a copy of the transcript of the evidence at the Cage hearing was all that was offered or considered on Atwell’s motion, and this comports with the parties’ characterization of the Atwell proceedings. Atwell’s state record does include a copy of the complete transcript of the testimony at the Cage hearing on Cage’s motion to quash. . The Chairman of the Orleans Parish Jury Commissioners testified that during the time in question "we weren’t serving the heart” of the project. He further testified that process servers were not required to serve within the project during this time: "I let them take it on their own. If they wanted to go in, they could. If not, I wouldn’t force them.” When asked "some of your process servers did go in there?” he replied, “It's possible, but I doubt it sincerely.” At another point he was asked "were your process servers not going into the Project area?” and he answered, "They were told they didn’t have to go if they didn’t want to. That’s correct. I don’t think anybody was going into the Desire Project.” He also testified that this had nothing to do with race, or other group characteristic, but “just fear of the man’s life.” There was no contrary evidence. . The Louisiana Supreme Court’s opinion in Cage reflects that 2,695 of these residents were at least eighteen years of age. 337 So.2d 1123. . No complaint has been made in this federal habeas proceeding respecting use of the list of registered voters as the sole source from which names for a venire were drawn. . In his concurring opinion in Ferguson, Justice Summers of the Louisiana Supreme Court stated with respect to the Desire project service issue presented there (which he stated involved the same grand jury): “[R]esidents on the outskirts of the project were served. "Of those who lived within the project and whose names were drawn for inclusion on the jury venire from which the grand jury was drawn, the chairman of the jury commission guessed that less than fifty percent resided within the heart of the project. He was also of the opinion that much less than ten percent of the grand jury venire were residents of the project. "The jury wheel from which the grand jury venire of 425 was drawn consisted of eighteen thousand names. These names were, in turn, taken from flies containing two hundred thousand names compiled from the voter registration list. The commissioner could not say how many residents of the Desire Project were included on the list from which the grand jury venire was selected.” Ferguson, 358 So.2d at 1222-23. We note that none of this testimony or evidence is included in the transcript of the Cage hearing testimony introduced in Atwell’s case or is otherwise in this record or Atwell’s state record (apparently in Ferguson there was different evidence on this issue than in Cage; no reference to the Ferguson evidence was made below or in Atwell’s state record). Nor do we think that these recited "facts” establish that the grand jury venire in question here listed any Desire residents who were not served. . Hence we pretermit all other questions in this respect, including whether Desire project residents are a constitutionally distinctive group and the legal sufficiency of the reasons for not requiring process to be served. Atwell had an equal protection right to a grand jury selected under procedures free from racial discrimination. No invasion of such right is shown. We do not hold that Atwell also had a right (or one cognizable on habeas corpus) to a grand jury selected under cross-sectional procedures similar to those implicated by the Sixth Amendment, nor do we intimate any opinion on that issue; we merely assume, ar-guendo only, that he did have such a right, and hold that even if he did, a violation thereof is not shown. In light of the comments in the dissenting opinion, we note that in Cage the Louisiana Supreme Court stated (337 So.2d at 1125): ‘We attribute no evil motive to the jury commission in its failure to cause subpoenas to be served on prospective jurors in the Desire housing project. On the contrary, it appears that service was discontinued for a period of time in this area out of a sincere concern for the safety of the process servers. Furthermore, we do not doubt that the jury commission itself lacked the wherewithal to provide the needed protection and that time was required to obtain assistance from other governmental agencies." In Cage (and in this case), the state courts, trial and appellate, found no racial or other discriminatory animus to play any part in the decision temporarily not to require process service in the Desire project. The record in this case — including the transcript of the Cage hearing — contains no evidence of any such animus, and affirmatively reflects the contrary, namely, that the only concern was a bona fide, realistic one for the safety of the process servers. No claim to the contrary was made below or to us. Further, we do not approach the question before us from the point of view of “prejudice" in the sense of requiring Atwell to show that this indictment might have been less likely had not the service of process in the project been suspended; rather, we merely require him to show that at least some members of his grand jury venire were, or were likely, Desire residents, so that the challenged practice would at least have potential relevance to his case. But, as noted, there is no showing whatever of the racial or socio-eco-nomic composition of Atwell’s grand jury ve-nire, much less of his grand jury itself. . No specific witness, or possible specific arrest or conviction, was ever mentioned by the defense. It was not shown that the defense ever questioned any witness at trial about prior arrests or convictions, or requested leave to do so out of the presence of the jury or otherwise. No relevance of possible prior arrests was suggested. 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_counsel1	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party MANN v. MINNESOTA ELECTRIC LIGHT & POWER CO. No. 172. Circuit Court of Appeals, Tenth Circuit. Aug. 6, 1930. Walter Mathews, of Cushing, OH., for appellant. John E. Webster, of OHahoma City, OH. (P. A. Rittenhouse, Prank E. Lee, and Breek Moss, all of OHahoma City, OH., on the brief), for appellee. Before LEWIS, PHILLIPS, and Mc-DERMOTT, Circuit Judges. McDERMOTT, Circuit Judge. Lulu Bluejacket recovered a judgment in the state court for $20,009 against the appel-lee on account of the death of her husband, Ed Bluejacket. The judgment inured to the exclusive benefit of herself and children, as provided by the OHahoma statute. While an appeal from the judgment was pending, she settled the judgment for $5,000. Her children then brought this suit for their distributive share of the $20,000, or $13,333.33, and deny the power of their mother to effect such compromise. The trial court directed a verdict for the defendant, and this appeal follows. The wrongful death statute of OHahoma confers a right of action upon the personal representative of the deceased, and provides that— “The damages must inure to the exclusive benefit of the surviving spouse and children, if any, or next of kin; to be distributed in the same manner as personal property of the deceased.” Section 824, C. O. S. 1921, as amended by Laws Okl. 1925, e. 125. The succeeding section provides that, if no. personal representative has been appointed, “the aetion provided in the said section may be brought by the widow, or where there is no widow, by the next of kin of such deceased.” The action in the state court was brought by the widow pursuant to this statute. Her children were not parties. When the case was called for trial, the defendant failed to appear, and the judgment was taken by default. The state court found that plaintiff was the widow of the intestate deceased, and that she brought this action on behalf of herself and her minor children, and that the death resulted from the negligence of the defendant. Whereupon it was adjudged that she recover $20,000 “for the use and benefit of herself and minor children”; that such sum be distributed as provided by the statutes of descents and distributions. This order is in accordance with the wrongful death statute quoted. Counsel for the defendant were shortly advised of the default judgment, and on the same day filed a motion to vacate such judgment and to afford the defendant a trial. This motion was overruled and the defendant appealed. Pending the appeal, the ease was settled for the sum of $5,000, and the plaintiff executed and acknowledged the following instrument : “Satisfaction of Judgment “Now comes the plaintiff, Lulu Bluejacket, and acknowledges full and complete settlement and satisfaction of the judgment rendered in the above entitled cause, as the same appears on the dockets of the District Court of Payne County, Oklahoma, and hereby enters said satisfaction of record. “The court clerk of Payne County, Oklahoma, is hereby authorized to enter said satisfaction of record on the dockets of said court. “Lulu Bluejacket.” The following notation was entered on the judgment docket: “Judgment satisfied in full this 6th day of June, 1925, and said judgment released of record.” The defendant then dismissed its appeal to the Supreme Court of Oklahoma. Seven months later, a guardian was appointed for the minors and this action was brought on the judgment rendered in the state court; the prayer was to recover $13,333.33, the portion to which the minors were beneficially entitled under the Oklahoma statutes of descents and distributions. Section 11301, C. O. S. 1921. No. claim of fraud or inadequacy of consideration is made. The plaintiff’s claim is that Lulu Bluejacket intended to settle only that portion of the judgment to which she herself was entitled, and, furthermore, challenged the power of the widow to bind the children by the settlement. In answer thereto the defendant set up that the judgment had been discharged. The trial court declined to hear evidence in contradiction of the written satisfaction of judgment and directed a verdict for the defendant. I. The trial court was right, in this action at law, in excluding evidence in contradiction of the written satisfaction of judgment. That instrument “acknowledges full and complete settlement and satisfaction of the judgment rendered.” Manifestly, any testimony to the effect that the satisfaction was not full and complete, but was partial, contradicts the plain arid unambiguous language of the writing, and, under familiar rules, was inadmissible. II. Did the plaintiff in the state court action have the power to make a fair compromise of the judgment, without securing the appointment of a guardian for her minor children, and securing his consent thereto? The wrongful death statutes of the various states differ somewhat in their provisions, although generally their purpose is to give to the widow and children the beneficial interest in the recovery for the loss, immune from the claim of creditors. The whole proceeding is statutory, and the statutes, and decisions of the state courts construing them, are binding on the United States courts. The statutes of some states create causes of action in the widow and the children; most of them, like Oklahoma, create but one cause of action and vest it in an administrator, or, if there is none, in the widow or next of kin. Such statutes, while creating but one cause of action vested in a single- person, give others a beneficial interest in the recovery which is an enforceable obligation against the one in whom the cause is vested. The Oklahoma decisions fully support the theory on which Lulu Bluejacket brought her original suit; that is, that the cause of action was vested in her alone. In Chicago, R. I. & P. Ry. Co. v. Owens, 78 Okl. 114,189 P. 171, a widow brought an action for the death of her husband. They had two children. The defendant demurred to the petition on the ground that she had no right to sue in her own name, when her children were beneficially interested. The court held that she did have that right. See, also, Cowan v. A., T. & S. F., Ry. Co., 66 Okl. 273,168 P. 1015, L. R. A. 1918B, 1141, where it was held that an action for wrongful death could only be brought in the name of the person upon whom the statute conferred the right to bring it. See also, Big Jack Mining Co. v. Parkinson, 41 Okl. 125,137 P. 678. Under statutes similar to the Oklahoma one, which authorize the administrator to bring an action for wrongful death, the damages to inure to the exclusive benefit of the widow and children, it is uniformly held that the administrator has the power to compromise claims or judgments without the consent of the beneficiaries or the approval of the court, and that those beneficially interested cannot, by compromise or settlement, bar an action by the administrator. This is the law as to administrators generally. In Jeffries v. Mutual Life Ins. Co., 110 U. S. 305, 4 S. Ct. 8, 11, 28 L. Ed. 156, the attorney for an administrator compromised a judgment pending appeal. This compromise was immediately attacked, but the Supreme Court sustained it, saying in part: “The authority given to him by statute (1 'Wag. St. p. 87, § 26), to commence and prosecute actions fairly includes the power to make such reasonable contracts in regard to compensation and the compromising of actions on doubtful claims as the circumstances of particular eases may justify.” Missouri, like Oklahoma, had a statute giving the administrator power to compromise a claim with the approval of the county judge. But the Supreme Court held that such approval was not necessary, saying: “And, even when statutes exist providing for compromises with debtors with the approval of a probate court, it is held that the right to compromise which before existed is not taken away, but may be exercised subject to the burden of showing that the compromise was beneficial to the estate.” There are many cases sustaining the power 'of an administrator to compromise a claim or judgment for wrongful death. See Yelton v. Evansville & Indiana Ry. Co., 134 Ind. 414, 33 N. E. 629, 21 L. R. A. 158; Dowell v. Burlington, C. R. & N. R. Co., 62 Iowa, 629, 17 N. W. 901; South & North Alabama R. Co. v. Sullivan, 59 Ala. 272; Henchey v. Chicago, 41 Ill. 136; Washington v. Railway Company, 136 Ill. 49, 26 N. E. 653; Parker v. Steamboat Company; 17 R. I. 376, 22 A. 284, 23 A. 102, 14 L. R. A. 414, 33 Am. St. Rep. 869; Hartigan v. Southern Pac. Co., 86 Cal. 142, 24 P. 851; Olston v. Water Company, 52 Or. 343, 96 P. 1095, 20 L. R. A. (N. S.) 915; Pittsburgh Railway Company v. Gipe, 160 Ind. 360, 65 N. E. 1034; Cogswell v. Railway Company, 68 N. H. 192, 44 A. 293; Foot v. Railway Company, 81 Minn. 493, 84 N. W. 342, 52 L. R. A. 354, 83 Am. St. Rep. 395; Flynn v. C. G. W. Ry. Co., 159 Iowa, 571, 141 N. W. 401, 45 L. R. A. (N. S.) 1098; Aho v. Jesmore, 101 Minn. 449, 112 N. W. 538,10 L. R. A. (N. S.) 998. Kennedy v. Davis, 171 Ala. 609, 55 So. 104, Am. Cas. 1913B, 225, holding that a settlement by a sole beneficiary bound the administrator in equity, may be contra. Conceding this to be the law, appellant contends that, while an administrator may compromise an action for wrongful death, a widow who brings such an action may not. No reason is apparent for any such distinction ; the widow, herself beneficially interested, would normally be as likely to make as good a settlement for herself and children as would an administrator. The practical reasons for permitting an administrator to settle — the avoidance of the necessity of guardianship for minors, the avoidance of a divided authority over the cause of action, the encouragement of settlements by protection of a defendant willing to compromise —apply with the same force to the widow as to the administrator. The power of the widow to compromise a claim for wrongful death has been before the courts, and with practical uniformity it has been held that she has that power. In American Car & Foundry Co. v. Anderson (8 C. C. A.) 211 F. 301, 308, the court said: ' “It is quite uniformly held that the administrator or other person ’ authorized to bring suit for damages for the death of another may compromise the claim without complying with such statutes as section 242 of the Revised Statutes of Missouri because such statutes have reference to the compromise of claims which belong to the estate proper, and not to the widow, heirs at law, and the like, and that such compromises may be made, not only where the benefieiaries do not consent, but where they affirmatively object.” In Shambach v. Middlecreek Electric Co., 232 Pa. 641, 81 A. 802, the children brought a suit for wrongful death of their father, after their mother had brought a suit and compromised it. In an able opinion, reviewing many authorities, the court held the mother’s compromise bound the children. Judge Learned Hand held the same thing, and distinguished the eases of settlements by a dry trustee. Conover v. Penn. Ry. Co. (C. C.) 176 F. 638. To the same effect are Natchez Cotton-Mills Co. v. Mullins, 67 Miss. 672, 7 So. 542; Stephens v. Nashville, C. & St. L. Ry., 10 Lea (Tenn.) 448; Holder v. Nashville, C. & St. L. R. Co., 92 Tenn. 141, 20 S. W. 537, 36 Am. St. Rep. 77. In 17 C. J. 1249, the rule is stated and fortified by many authorities that “a compromise, settlement, release and discharge of the claim made by the personal representative or other person authorized to prosecute the claim in a representative capacity, even without the consent of the. benefieiaries, is a good defense to the action, provided of course it was made in entire good faith without any fraud.” In 8 R. C. L. p. 789, the author states: “If the right of action for death caused by wrongful act, neglect, or default is given to one party exclusively, or if one person has the prior right of action, it is usually held that such party has the right to compromise or settle, and that such settlement will bar any further action.” Appellant undertakes to deflect the force of these authorities by pointing out' distinctions. But they are distinctions without differences. The reasons for the rule apply in the ease at bar. Appellant relies on Southern Pacific Co. v. Tomlinson, 163 U. S. 369, 16 S. Ct. 1171, 41 L. Ed. 193. That decision has been readily distinguished by Judge-Hand and other courts. The Arizona statute there involved created causes of action in favor of the wife, children, and other heirs. The several causes must be tried together, but the jury must find the damages suffered by each. In that case the jury awarded a specific sum to the widow, another sum to each child, and $5,000 apiece to the mother and father. The widow attempted to compromise by reducing the judgments of the mother and father to the sum of $1. The court held that she was without such power. The- decision has no application to statutes which create but one cause of action. Counsel also relies on Jeffries v. Elevator Co., 102 Kan. 811,176 P. 631. In that case the widow received nothing for herself or children by the so-called settlement, but released the claim in exchange for a release of her husband’s debts, which made his creditors, and not her children, the beneficiaries of the claim, contrary to the statute conferring the right upon the widow. Section 60 — 3203, Rev. St. Kan. 1923. However, one sentence of the court’s opinion supports appellant’s contention. But, on rehearing (103 Kan. 786, 176 P. 631), the sentence in the original opinion was greatly modified, if no more. But if that opinion be construed to deny the right of a widow to compromise, in good faith, a claim for the death of her husband, it is opposed to the weight of authority. Decisions cited as to the authority of a proehein ami are manifestly not in point. In Southern Ry. v. McKinney (5 C. C. A.) 276 F. 772, the statute expressly forbade the prochein ami to receive payment until a bond was given; furthermore, in such eases, the cause of action is vested in the minor; in this ease, it is vested in the widow. The rule that a widow,, in whom is vested the cause of action by statute, has the same power as an administrator to make an honest compromise of a disputed claim, before or after judgment, without the consent of her children, is well settled and in accord with, reason and public policy. The judgment is therefore affirmed. 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_genapel1	H	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. ESTATE of Dominick F. PACHELLA, Deceased, and Petronila R. Pachella, Administratrix and Surviving Spouse of Dominick F. Pachella, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE. Herbert A. CHARY and Ann Chary, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE. Nos. 14109, 14069. United States Court of Appeals Third Circuit. Argued Dec. 11, 1962. Decided Dec. 28, 1962. Christian Bollermann, Hackensack, -N. J. (Alfred W. Kiefer, Hackensack, N. J., on the brief), for petitioners Estate of Dominick F. Pachella, deceased, and Petronila R. Pachella, administratrix and surviving spouse of Dominick F. Pa-chella. Herbert A. Chary, Hackensack, N. J., for petitioners Herbert A. Chary and Ann Chary. Alec. A. Pandaleon, Atty., Dept, of Justice, Washington, D. C. (John B. Jones, Jr., Acting Asst. Atty. Gen., Lee A. Jackson, William Friedlander, Attys., Dept, of Justice, Washington, D. C., on the brief), for respondent. Before KALODNER and FORMAN, Circuit Judges, and ROSENBERG, District Judge. PER CURIAM. The Commissioner of Internal Revenue disallowed the business bad debt deductions claimed by the law partnership of Pachella and Chary on their law partnership’s income tax returns for the years 1950 to 1955, inclusive, “for monies paid as guarantors of corporate indebtedness of Town and Country Cleaners”, on the Commissioner’s theory that Pachella and Chary were merely accommodation makers on the notes and that the subsequent payment of the notes by the law partnership merely gave rise to non-business debts which did not become totally worthless until 1955 and then became deductible only under Section 23 (k) of the Internal Revenue Code of 1939. The Tax Court rejected the taxpayers’ contention that they were not accommodation makers on the notes but were primarily liable thereon and that accordingly the payments made by the law partnership were, in the alternative, deductible either under Section 23(e) (1) — losses, by individual, incurred in a trade or business — , Section 23(e) (2) — losses incurred in any transaction entered into for profit though not connected with a trade or business — ■, Section 23(a) (1) (A)— trade or business expenses — , or Section 23(a) (2) — nontrade or nonbusiness expenses paid or incurred for production or collection of income or for the management, conservation or maintenance of property held for the production of income — , of the Internal Revenue Code of 1939. The Tax Court further held that when the law partnership paid the notes as guarantor it obtained a claim against the corporation and that the nonpayment of this claim by the corporation gave rise to a non-business debt which was deductible under Section 23 (k) of the 1939 Code in the year 1955 when it became worthless. The Tax Court also denied the claim of the petitioners that the partnership was entitled to deduct approximately a total of $40,000 in the years 1950, 1951, 1952 and 1953 for advances made to the corporation over a period of five years, holding that such deductions also only gave rise to a non-business debt deductible under Section 23 (k) of the 1939 Code when it became worthless in the year 1955. It would serve no useful purpose to here dwell on the contentions of the petitioners in view of their adequate disposition by the Tax Court in its Opinion reported at 37 T.C. 347. On review of the record we can find no error in the Tax Court’s Decision and it will be affirmed. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_treat	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. Linda L. HEBERT, et al., Plaintiffs, Appellants, v. Cordelia WICKLUND, d/b/a Lake Farm, et al., Defendants, Appellees. No. 84-1050. United States Court of Appeals, First Circuit. Argued May 7, 1984. Decided July 12, 1984. Richard F. McCarthy, Boston, Mass., with whom Richard E. Bennett, and Will-cox, Pirozzolo & McCarthy P.C., Boston, Mass., were on brief, for plaintiffs, appellants. Nonnie S. Burnes, Boston, Mass., with whom Richard S. Boskey, and Hill & Barlow, Boston, Mass., were on brief, for defendant, appellee Cordelia Wicklund. Before COFFIN and BREYER, Circuit Judges, and PETTINE, Senior District Judge. Of the District of Rhode Island, sitting by designation. COFFIN, Circuit Judge. Appellants Linda and Roger Hebert appeal from an award of summary judgment and attorney’s fees to defendant Cordelia Wicklund in a copyright infringement action arising out of Wicklund’s alleged copying of the Heberts’ basketweaving kit. In granting Wicklund’s motion for summary judgment, the district court noted that the Heberts had produced no evidence to counter Wicklund’s evidence that she had written and marketed her kit long before receiving the Heberts’ copyrighted material. The Heberts contend that the district court abused its discretion in accelerating the pace of this litigation, thereby denying the Heberts an opportunity to conduct discovery prior to the district court’s disposition of Wicklund’s summary judgment motion. The Heberts further contend that the record, although hurriedly assembled, contained sufficient genuine issues of material fact concerning copyright infringement to preclude summary disposition. On July 6, 1983, the Heberts filed their verified complaint along with a motion for a temporary restraining order and preliminary injunction. On July 18, Wicklund filed an opposition to the Heberts’ motion. Wicklund also filed a motion for summary judgment and a supporting affidavit that explained her prior publication and sale of her basketweaving kit. Also on July 18, the court held a hearing on the Heberts’ motion for provisional relief. Cecil Ryan, a shop owner in Suncook, New Hampshire, testified for Wicklund. He stated that he had been selling Wicklund’s kit at his shop since January 1981 and that the instructions in Wicklund’s kit had remained substantially unchanged since that time. The record indicated that Wicklund did not receive a copy of the Heberts’ kit until August 1982. At the close of the hearing, the court denied the Heberts’ request for injunctive relief on the grounds that they had not demonstrated a likelihood of success on the merits. The court warned that if the Heberts could not contradict Ryan’s testimony concerning prior use, then that testimony would probably warrant summary judgment for Wicklund. On July 28, the Heberts filed an opposition to Wicklund’s motion for summary judgment. The Heberts cited Fed.R.Civ.P. 56(f) in asking the court to delay decision of the motion pending further discovery. Also on July 28, the court directed the parties to file supporting affidavits within five days, and informed the parties that Wicklund’s motion for summary judgment would be decided on affidavits, without further hearing, and that the court would consider any sworn and uncontradicted testimony given at the July 18 hearing. A clerk of the court apparently informed the Heberts’ counsel of this order by telephone on July 28. Five days later, on the August 2 deadline, the Heberts filed a motion to dismiss without prejudice, which they withdrew on August 10 following Wicklund’s opposition. On August 3, the Heberts’ counsel wrote an undocketed letter to the district court’s courtroom clerk. The letter asked the clerk to bring to the court’s attention the Heberts’ motion to dismiss. The letter further requested that the court delay a decision on Wicklund’s summary judgment motion pending further investigation and examination of the then-unavailable transcript of the July 18 hearing. On August 16, two weeks after the August 2 deadline, the Heberts filed the affidavit of attorney Fred Scribner III, an investigator retained by the Heberts’ counsel. The Scribner affidavit compared the instructions and diagrams in the Hebert and Wicklund basketweaving kits and recounted Scribner’s conversations with Cecil Ryan, the shop owner who had testified for Wicklund at the July 18 hearing, and with Mrs. Pat Smalley, who had purchased several of Wicklund’s kits from Ryan’s store. On Wicklund’s motion, the court struck the Scribner affidavit on the grounds that it was untimely and violative of Fed.R.Civ.P. 56(e) for containing “nothing except inadmissible opinions and hearsay”. Memorandum and Order, Dec. 5, 1983, App. 248. The Heberts then attempted to take several depositions, but Wicklund filed a motion for a protective order staying discovery pending a decision on her motion for summary judgment. The depositions remained untaken as of December 5, when the court granted Wicklund’s motion for summary judgment and awarded Wicklund her requested $1,400 in attorney’s fees. The judgment against the Heberts seems attributable to their inattention both to the central issue of prior use and to the Federal Rules of Civil Procedure in the crucial weeks following the July 18 hearing. The Ryan testimony at that hearing and the Wicklund affidavit filed the same day presented facts that formed the foundation of Wicklund’s defense of prior use. The Heberts could not then simply rest on their evidence that they possessed valid copyrights on their kit and catalogue, that the Hebert and Wicklund kits had many similarities, and that Wicklund had obtained a copy of the Heberts’ kit and catalogue in August 1982. As of the district court’s August 2 deadline, the Heberts had filed no affidavits or other documents on the issue of prior use. The Heberts’ verified complaint and the affidavit of Linda Hebert detailed the similarity of the Hebert and Wicklund kits, but neither document mentioned, much less refuted, Wicklund’s defense of prior use. In the Scribner affidavit, the Heberts attempted to attack Wicklund’s assertion of prior use, but the district court properly rejected that affidavit for the reasons stated. See supra page 220 (affidavit untimely and in violation of Rule 56(e) in several respects). We can understand how the Heberts might have been unable to marshal facts to “prove the negative” — that Wicklund had not published or marketed her kit prior to August 1982, when she acquired the Heberts’ kit — in the brief period permitted by the court. However, the Federal Rules provide an escape hatch. Rule 56(f) states: “Should it appear from the affidavits of a party opposing the [summary judgment] motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” The Heberts did not comply with the rule. They never filed an affidavit presenting reasons why they could not present facts essential to justify their opposition. The Heberts now contend! that three submitted items constituted the functional equivalent of a 56(f) affidavit: (1) their opposition to Wicklund’s motion for summary judgment; (2) an undocketed letter from their counsel to the district court’s courtroom clerk; and (3) the Scribner affidavit. We will examine these documents in order. (1) The opposition is not an affidavit. The opposition explicitly refers to Rule 56(f) in asking for more time to proceed with depositions and other discovery, but it gives no reasons for the requested delay. Reference is made to the verified complaint and to the affidavit of Linda Hebert, but these documents neither mention the issue of prior use nor explain the need for more time. Nonetheless, the district court in fact responded to the Heberts’ request by granting a five-day extension, but the Heberts filed nothing in that five-day period besides a motion, subsequently withdrawn, to dismiss without prejudice. (2) The letter sent by the Heberts’ counsel to the courtroom clerk on August 3 similarly does not satisfy the requirements of Rule 56(f). The letter was not docketed; it was not an affidavit; and it was not submitted by a party. The Heberts suggest that Littlejohn v. Shell Oil Co., 483 F.2d 1140, 1146 (5th Cir.) (en banc), cert. denied, 414 U.S. 1116, 94 S.Ct. 849, 38 L.Ed.2d 743 (1973), required the district court to treat the letter as a Rule 56(f) affidavit. In Littlejohn, the Fifth Circuit, “[o]ut of an abundance of caution and to prevent a possible injustice”, treated a non-affidavit pleading filed by plaintiffs counsel in an antitrust suit as sufficient under Rule 56(f). Littlejohn does not require acceptance of the Heberts’ counsel’s letter as a Rule 56(f) affidavit. The Littlejohn submission (a) was docketed (b) within applicable time limits and (c) referred to the specific facts that the plaintiff needed to discover from the defendants to oppose their summary judgment motion. In the case at bar, the district court would have been justified in rejecting the letter for being either undocketed or late. Moreover, the letter’s request for more time was not so compelling so as to convince the court that only a more-than-flexible application of Rule 56(f) would avoid an injustice. The August 3 letter stated that the Heberts needed an extension of the deadline because the transcript of the July 18 hearing would not be available until August 8. Admittedly, the transcript would have permitted the Heberts to fine tune any rebuttal to the prior use defense presented through the testimony of Ryan, the sole witness at the hearing. But the transcript was by no means indispensable, considering that the Heberts’ counsel had attended the hearing and had cross-examined Ryan, and that Ryan’s entire testimony, which was simple and straightforward, occupied but seven pages of a twenty-one-page transcript. App. 116-22. (3) The Scribner affidavit was untimely, Scribner is not a party, and his affidavit did not state reasons why the Heberts could not file opposing affidavits. His affidavit was not labelled as a Rule 56(f) affidavit, and no accompanying motion or pleading designated his affidavit as a 56(f) submission. In sum, the district court acted well within its discretion in not treating the opposition, the letter, or the Scribner affidavit as Rule 56(f) affidavits. See, e.g., Wallace v. Brownell Pontiac-GMC Co., 703 F.2d 525, 527 (11th Cir.1983) (to invoke Rule 56(f), party must file affidavit stating reasons why more time is needed); SEC v. Spence & Green Chemical Co., 612 F.2d 896, 901 (5th Cir.1980) (“The determination of the adequacy of nonmovant’s rule 56(f) affidavits and the decision whether to grant a continuance thereon rests in the sound discretion of the trial court.”), cert. denied, 449 U.S. 1082, 101 S.Ct. 866, 66 L.Ed.2d 806 (1981). Although a district court should generally apply Rule 56(f) liberally, the court need not employ the rule to spare litigants from their own lack of diligence. 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil 2d § 2740, at 532-35 (1983). “The most obvious indication of lack of diligence is a failure on the part of the non-movant to present affidavits under either Subdivision (e) or (f).” Id. § 2740, at 535. The Heberts’ actions fall within this definition of “lack of diligence”. The Heberts had a brief but sufficient opportunity to file either Rule 56(e) affidavits creating a genuine issue of fact concerning prior use or Rule 56(f) affidavits giving reasons why Rule 56(e) affidavits could not be filed by the court-imposed deadline. Attorney’s Fees The Heberts also appeal from an award of $1,400 in attorney’s fees to Wicklund. The district court awarded the fees under the Copyright Act of 1976, 17 U.S.C. § 505, which states: “In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.” On July 18, the day on which Wicklund filed her (ultimately successful) motion for summary judgment, Wicklund also filed a separate motion for attorney’s fees. On August 3, Wicklund’s counsel filed a supporting affidavit that detailed her work on the case. The Heberts made no response, before or after judgment, to Wicklund’s motion or affidavit for attorney’s fees. Wicklund contends that the Heberts may not for the first time on appeal challenge the district court’s assessment of attorney’s fees. We agree. The Heberts offer two reasons why we should not apply this circuit’s usual rule barring appeal of issues not advanced in the district court. See, e.g., Cohen v. President & Fellows of Harvard College, 729 F.2d 59, 60-61 (1st Cir.1984) (per curiam); Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir.1979). The Heberts argue that they implicitly opposed the motion for attorney’s fees, which may be awarded only to a prevailing party, when they filed their opposition to Wicklund’s motion for summary judgment. Even if we accept this statement, on appeal the Heberts have presented an entirely distinct reason for disallowing fees. Below, they argued against an award of fees because Wicklund was not entitled to be the prevailing party. On appeal, they have argued, with substantial case support, that even if Wicklund prevails on the merits, she should not be awarded fees because she has not shown that the Heberts’ suit was frivolous, vexatious, or brought in bad faith. We can easily imagine circumstances under which plaintiffs in the Heberts’ position could lose on the merits but still make an independent, successful argument against a defendant’s motion for attorney’s fees. See, e.g., Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir.) (affirming Copyright Act judgment for defendants based on defense of “fair use”, but reversing award of attorney’s fees because plaintiffs’ suit was not frivolous), cert. denied, 459 U.S. 826, 879, 103 S.Ct. 59, 175, 74 L.Ed.2d 62, 143 (1982). In the context of this case, the merits and fees are separate issues, and opposition on the merits does not suffice to preserve this challenge to an award of attorney’s fees. The Heberts also contend that they had no obligation to respond to Wicklund’s motion for attorney’s fees, because Wicklund had prematurely applied for fees before the court had declared her the “prevailing party”. However, a district court may, and often does, simultaneously decide the merits and the attorney’s fees issues of a suit. Such a disposition, where possible, represents an economical use of judicial resources, not only for the district court, but also for the court of appeals, which is thereby spared the burden of piecemeal appeals on the merits and on fees. Cf. White v. New Hampshire Department of Employment Security, 455 U.S. 445, 454, 102 S.Ct. 1162, 1168, 71 L.Ed.2d 325 (1982). The fee award in this case should not have come as a total surprise to the Heberts. Wicklund had filed a separate motion for fees with a detailed supporting affidavit, and the district court had stated at the July 18 hearing that it would end the suit if the Heberts could not refute Wicklund’s evidence of prior use. Thereafter, the Heberts “proceeded at their own risk in not filing a proper opposition to the request for fees, not requesting a hearing, ... and in not indicating, even in a perfunctory manner, that they would oppose an award of fees if [their summary judgment opposition was unsuccessful]”. Kargman v. Sullivan, 589 F.2d 63, 67 (1st Cir.1978). We conclude that the Heberts have not properly preserved the issue of attorney’s fees. See Pye v. Mitchell, 574 F.2d 476, 484 (9th Cir.1978) (under fee provision of old Copyright Act, appellant could not for the first time on appeal challenge appellees’ summary of compensable hours); cf. Miles v. Sampson, 675 F.2d 5, 9-10 (1st Cir.1982) (party may not on appeal make his initial demand for hearing on issue of attorney’s fees under 42 U.S.C. § 1988). The Heberts’ appeal of the district court’s award of attorney’s fees to Wicklund is not so compelling that our failure to give it full consideration constitutes a gross miscarriage of justice. We review awards of attorney’s fees under the Copyright Act only for abuse of discretion, see, e.g., Hughes v. Novi American, Inc., 724 F.2d 122, 125-26 (Fed.Cir.1984); Twentieth Century Music Corp. v. Frith, 645 F.2d 6, 7 (5th Cir.1981) (per curiam), and the district court awarded a modest fee ($1,400) for extremely able work. Affirmed. Costs to appellees. No assessment of attorney’s fees for work performed on the appeal. . The Heberts sought damages and injunctive relief under the Copyright Act of 1976, 17 U.S.C. § 501 et seq. They also sought relief under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and under Mass.Gen.Laws ch. 93A, §§ 2 & 11. . With respect to Wicklund's motion for summary judgment, filed July 18, the court had extended the 10-day period for filing oppositions and supporting affidavits and memoranda, Local Rule 12(a)(2), by five days, from July 28 to August 2. According to the district court’s docket sheet, the Scribner affidavit was two weeks late. The Heberts’ counsel had not even retained Scribner until August 5, three days after the deadline. Affidavit of Richard F. McCarthy, Sept. 1, 1983, App. 229. . The district court noted the letter's deficiencies: “This court cannot function efficiently or fairly if attorneys assume that this type of casual representation is sufficient to invoke the powers of this court. I did not recognize this letter as a motion, and would have denied it if I had.” Memorandum and Order, Dec. 5, 1983, App. 248. . Many cases state that continuances should be routinely granted under Rule 56(f) where the moving party has sole possession of the relevant facts that the non-moving party needs to oppose the summary judgment motion, e.g., Ward v. United States, 471 F.2d 667, 670 (3d Cir.1973); Concord Laboratories, Inc. v. Concord Medical Center, 552 F.Supp. 549, 554 (N.D.Ill.1982) (trademark infringement case in which defendant moved for summary judgment on basis of defense of continuous prior use, but plaintiff survived motion in part because material evidence was in defendant’s control); 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil 2d § 2741, at 545-48 (1983), but this maxim represents a factor that the court should consider only after the non-moving party has complied with the requirements of the rule. See, e.g., Wallace v. Brownell Pontiac-GMC Co., 703 F.2d at 527; Contemporary Mission, Inc. v. United States Postal Service, 648 F.2d 97, 107 (2d Cir.1981). . Our present ruling should come as no surprise to the Heberts’ counsel, who was counsel for the plaintiffs in Kargman. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_r_fed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. James Salazar PADOR, Petitioner-Appellant, v. Thomas A. MATANANE, Manager, Community Correctional Center, Department of Corrections, Government of Guam, and Attorney General of the Territory of Guam, Respondents-Appellees. No. 80-4440. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 29, 1981. Decided Aug. 17, 1981. Rehearing Denied Sept. 22, 1981. Howard Trapp, Trapp, Gayle, Teker, Lacy, Moore & Layne, Agana, Guam, for petitioner-appellant. R. Barrie Michelsen, Dep. Atty. Gen. of Guam, Agana, Guam, for respondents-appellees. Before KILKENNY, SNEED and FAR-RIS, Circuit Judges. SNEED, Circuit Judge: The issue before us is whether a petitioner for a writ of habeas corpus following a judgment of conviction entered by the Superior Court of Guam, which was affirmed by the Appellate Division of the District Court of Guam and this court, may be required to exhaust the territorial remedies available to him before the District Court of Guam will entertain his petition. The District Court of Guam held that such exhaustion was necessary. We affirm. I. FACTS Petitioner was convicted of murder in the first degree and sentenced to life imprisonment by the Superior Court of Guam. This conviction was affirmed by both the Appellate Division of the District Court and this court. People of Territory of Guam v. Pador, No. 78-1570 (9th Cir. Oct. 18, 1978). Thereafter petitioner filed his petition for a writ of habeas corpus in the District Court of Guam. This petition for the first time asserts that petitioner was denied effective assistance of counsel. The excuse given for failure to raise this issue on appeal from the judgment of conviction is that the supporting facts “did not appear in the record on appeal.” (Petition, para. 13.) The failure to seek habeas corpus relief in the Superior Court of Guam pursuant to Chap. 135 of the Guam Criminal Procedure Code was justified on the ground that the relief petitioner seeks is a cause “arising under the Constitution, treaties, and laws of the United States” with respect to which the District Court of Guam has original jurisdiction pursuant to 48 U.S.C. § 1424. The District Court of Guam denied the petition on the grounds that within the meaning of section 1424 the issue raised by the petition was not embraced by the “arising under” language of that section and that “comity and judicial efficiency would be better served” by requiring the petitioner first to exhaust remedies available to him under the laws of Guam. II. ANALYSIS The petitioner-appellant does not take issue with the district court’s position with respect to comity and judicial efficiency. Nor could he. Although Guam is a territory rather than a state and appeals from its superior court are to a body having federal characteristics, it remains true, as it is in the case of states, that ordinarily it is better to require the exhaustion of local remedies before entertaining and issuing the writ of habeas corpus. Attention to constitutional duties will remain sharp so long as responsibility for their enforcement remains undiluted. Petitioner-appellant’s sole argument is that pursuant to 48 U.S.C. § 1424 his petition presents a cause that arises under the Constitution. It follows, he asserts, that only the District Court of Guam could entertain his petition. We disagree. The assertion of a constitutional right by way of a collateral attack upon a criminal conviction is no more the assertion of a cause “arising under” the Constitution within the meaning of this provision than would be the assertion of the same right in the course of a criminal proceeding before the Superior Court of Guam. That the latter escapes the federal question exclusive jurisdiction of the District Court of Guam has been recognized by the Supreme Court. In Guam v. Olsen, 431 U.S. 195, 201-02, 97 S.Ct. 1774, 1778-79, 52 L.Ed.2d 250 (1977), the Court observed: “Important federal issues can be presented in cases which do not fall within the District Court’s federal-question jurisdiction, because they do not ‘arise under’ federal law, but instead fall within the exclusive jurisdiction vested in the Superior and Supreme Courts by the Reorganization Act, [Guam Reorganization Act of 1974, Guam Pub.L. 12-85]. From this observation we confidently draw the conclusion that the “arising under” language of 48 U.S.C. § 1424 should be interpreted in a manner that is guided more by the practicalities of judicial administration pertaining to the Territory of Guam than by the dry, literal force of its language. We know of nothing in the legislative history of this provision that suggests this interpretive guide should not be employed in this case. Therefore, we affirm the denial of the petition by the District Court of Guam. AFFIRMED. . This result obviously does not rest upon 28 U.S.C. § 2254(b) because the exhaustion requirement of that subsection is limited to “courts of the State.” (Italics added) Rather we rest our decision on principles of comity and efficiency supporting the exhaustion requirement that antedate the statute and of which 28 U.S.C. § 2254(b) was but a codification. See Mooney v. Holohan, 294 U.S. 103, 115, 55 S.Ct. 340, 343, 79 L.Ed. 791 (1935). The fact that Congress from time to time explicitly provides that both states and territories are intended to be reached by its statute, e. g., 42 U.S.C. § 1301(a)(1) and 28 U.S.C. § 1332(d), in no way suggests that our reading of 48 U.S.C. § 1424 is erroneous or that Congress intended to preclude this reading by its earlier enactment of 28 U.S.C. § 2254(b). 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_appel1_1_4	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant. STARR v. COMMISSIONER OF INTERNAL REVENUE. TRUE et ux. v. SAME. DOHME v. SAME. Nos. 3931-3933. Circuit Court of Appeals, Fourth Circuit April 6, 1936. Charles Markell, of Baltimore, Md., for petitioners. John MacC. Hudson, Sp. Asst, to the Atty. Gen. (Frank J. Wideman, Asst. Atty. Gen., and Sewall Key, Sp. Asst, to the Atty. Gen., on the brief), for respondent. Before PARKER, NORTHCOTT, and SOPER, Circuit Judges. Writ of certiorari denied 56 S. Ct. 948, 80 L. Ed. —. PARKER, Circuit Judge. In the year 1929 the officers of Sharp & Dohme, a Maryland corporation, which had been incorporated in 1926, decided on and carried out a plan of reorganization the general purpose of which was to sell to the outside public a large interest in the business and decrease the relative holdings in the company of the persons who held at that time its total capital of 90,000 shares of non-par value common stock. They caused to be formed, pursuant to this plan, a new corporation of the same name, which agreed to take over the assets and assume the liabilities of the old corporation and to pay to that corporation the sum of $13,500,000 and issue to it 225,000 shares of non-par value common stock. This amounted to the new corporation’s giving to the old the sum of $150 in money and 2% shares of its common stock for each of the shares of the outstanding common stock of the old corporation. The old corporation, under the plan of reorganization, was thereupon to redeem its common stock at $150 per share and to distribute among its stockholders the common stock received from the new corporation. This distribution of the common stock of the new corporation was to be accomplished, however, not by simple distribution, but by having the old corporation issue 9,000 shares of “special” stock as a stock dividend to its stockholders, who were thereupon to exchange with the old corporation the “special” stock thus received for common stock in the new corporation which the old corporation was to receive; 500 shares of “limited” stock at $1 per share were issued by the old corporation to the new to be held by the latter for the purpose of keeping the old corporation alive after its other stock should have been redeemed. Money was being raised by' the new corporation by the sale of its “preference” stock at $62.50 per share; and, under the plan of reorganization, an option was given the stockholders of the old corporation to exchange not exceeding one-third of their holdings of common stock in that corporation for this preference stock at the rate of one share of common for 2% preference. The common stock thus acquired by the new corporation' was to be used in lieu of cash.at $150 per share in its settlement with the old corporation; and it appears, that 59,359 shares of the new corporation’s “preference” stock were exchanged for common stock of the old corporation under this option. This plan of reorganization was carried out, and the taxpayers who are petitioners here availed themselves of the option accorded them to exchange shares of common stock in the old corporation for preference shares in the new. In working out their rights under the plan they made the following transfers of stock, viz.: (1) On August 6, 1929, they exchanged common stock of the old corporation for preference stock of the new, this exchange being: made with the new corporation; (2) on the same date, August 6, 1929, they transferred the remainder of their common stock in the old corporation to that corporation for cash; and (3) on August 13, 1929, they exchanged their special stock in the old corporation for common stock in the new. The Commissioner held that the transfers were made pursuant to a plan of corporate reorganization, but treated all three of them as constituting one transaction and imposed the tax on the entire profit derived therefrom, limited, however, to the amount of cash received. The taxpayers appealed to the Board of Tax Appeals, contending that the three transfers constituted three separate and distinct transactions, in two of which stock was exchanged for stock and no profit was realized, and that only with respect to the transfer of stock for cash was there realized a profit which was taxable. The Board found that “there were actually three real exchanges and each had its usual and separate effect for tax purposes,” but held that there was no reorganization within the meaning of the statute and that the entire profit derived from the transfers should be taxed without limitation to the amount of cash received. Dohme v. Commissioner, 31 B.T.A. 671. Taxpayers have petitioned for a review of this holding. Counsel for the Commissioner, without formally confessing error, virtually concede that the Board was in error in holding that the transfers were not made pursuant to a plan of corporate reorganization within the meaning of the statute applicable. This is unquestionably correct. The case is one where “substantially' all the properties” of one corporation were acquired by another, where the seller acquired “a definite and substantial interest in the affairs of the purchasing corporation” which represented a “substantial part of the value of the thing transferred,” and where what was done was not a mere sale but genuinely partook “of the nature of merger or consolidation.” In the light of recent decisions of the Supreme Court, there can be no doubt but that the facts present a clear case of reorganization within the meaning of section 112 (i) (1) of the Revenue Act of 1928, 45 Stat. 816, 818. Helvering v. Minnesota Tea Co., 56 S.Ct. 269, 80 L.Ed. —; John A. Nelson Co. v. Helvering, 56 S.Ct. 273, 80 L.Ed. —; Helvering v. Watts, 56 S.Ct. 275, 80 L.Ed. —; G. & K. Mfg. Co. v. Helvering, 56 S.Ct. 276, 80 L.Ed. —. Counsel for the Commissioner contend, however, that, in reversing the Board on the question of reorganization, we should sustain the Commissioner’s contention that there was in effect only one transfer, and that, under section 112(c) (1) of the act (45 Stat. 816, 817), taxpayers should be taxed on the entire profit derived from the reorganization, limited, however, to the amount of cash received in the transaction. Taxpayers contend that the question as to whether there were three transfers or only one is not properly before us, that, if it is before us, we are. concluded by the finding of the Board with respect thereto, and that, in any event, the record conclusively shows that there were three separate transfers. We cannot agree that the question as to whether there were three transfers or only one is not before us. There is no dispute as to the facts. Upon these the Board has held that there were three transfers and no reorganization. The petition of taxpayers, alleges that there was error in holding that the transfers were not made pursuant to a plan of corporate reorganization; but, to determine whether this was error or not, we must examine into the nature of the transfers. If, in doing so, we reach the conclusion that the three transfers, as a matter of law, were but parts of one transaction and were taxable as such, it is our duty to call attention to that error in the decision of the Board as well as to the error in holding that the facts shown did not constitute a corporate reorganization within the meaning of the statute, to the end that, when the case is remanded to the Board, taxes may be assessed by it upon the proper basis. We do not understand that where, upon the petition of taxpayers, we correct an error against them, we are without power to correct another error affecting the same matter, merely because they have not assigned error with respect thereto, On the contrary, we conceive it to be our duty to point out the correct rule of law applicable in the premises, so that the taxes due may be properly assessed. In this connection, it appears to us that it would be most unfortunate, if, when the courts are clearing themselves of the reproach of hypertechnicality in their own procedure, they should permit the same evil to creep into the procedure provided for reviewing decisions of administrative tribunals. So far as the finding by the Board is concerned, the facts are admitted and the finding is not a finding of fact at all but a mere conclusion which the facts do not support. It is perfectly clear that the three transfers were but steps in the carrying out of one general plan, all of the details of which were agreed upon before any of the transfers were made. The substance of that plan, stripped of irrelevant detail, was that, for each share of stock in the old corporation, the stockholder should have 2½ shares of common stock in the new and $150 in cash, with the option on his part to take preference stock in the new corporation at $62.50 per share in lieu of one-third of the cash to which he would otherwise be entitled. The record shows that, by action of the stockholders in approving the plan and indicating their election under the option offered them, every detail of the three transfers was arranged before any of them took place; and one contract, executed four days after the stockholders’ meeting, bound the new corporation to exchange preference stock for common stock as provided in the option, as well as to pay cash and issue common stock to the old corporation in exchange for its assets. It did not destroy the unity of what was done that the old corporation first issued the “special” stock and then exchanged the common stock of the new corporation for it, nor that the old stockholders were given the option of taking “preference” stock in lieu of one-third of the cash to which they were entitled. Before any exchange was made, the old corporation was bound to exchange common stock of the new for its “special” stock; the new corporation was bound to exchange its “preference” stock for common stock of the old, in an amount which had been fixed by prior acceptance of the option; the old corporation was bound to redeem its common stock whether tendered by its stockholders or by. the new corporation; and the common stock was called for redemption. The various transactions contemplated by the plan were interdependent, and the carrying out of the plan as a whole was the real consideration for each of the transfers. The statute applicable is section 112(c) (1) of the Revenue Act of 1928, 45 Stat. 816, 817, which is as follows: “(1) If an exchange would be within the provisions of subsection (b)(1), (2), (3), or (5) of this section if it were not for the fact that the property received in exchange consists not only of property permitted by such paragraph to be received without the recognition of gain, but also of other property or money, then the gain, if any, to the recipient shall be recognized, but in an amount not in excess of the sum of such 'money and the fair market value of such other property.” The evident purpose of this statute is that, in case of reorganization and other somewhat similar transactions covered by the statute, profits realized in cash or other property shall be taxed as is other income, but that mere paper profits shall not be taxed. To the extent that stock is retained in the new corporation, the stockholder is carrying along his original investment; but, to the extent that he realizes money or other property upon the reorganization, he is withdrawing that from the enterprise. If the stock in the new corporation is worth as much as or more than the cost to him of the stock in the old, he is merely withdrawing his profit from the enterprise when he receives money or property upon the reorganization. In such case the reorganization enables the stockholder to realize in cash the increase in value of-his stock; and Congress evidently thought it just that he account for same as income, just as he would account for dividends received on his stock. Where transfers are made pursuant to such a plan of reorganization, they are ordinarily parts of one transaction and should be so treated in application of the well-settled principle that, in applying income tax laws, the substance, and not the form, of the transaction shall control. First Seattle D. H. Nat. Bank v. Commissioner (C.C.A.9th) 77 F.(2d) 45; Prairie Oil & Gas Co. v. Hotter (C.C.A.10th) 66 F.(2d) 309; Howard v. Commissioner (C.C.A.6th) 56 F.(2d) 781; American Security & Trust Co. v. Tait (D.C.) 5 F.Supp. 337. This is demanded also by the principle, equally well settled, that a single transaction may not be broken up into various elements to avoid a tax. Allies Realty Corporation v. Commissioner (C.C.A.2d) 71 F.(2d) 150, 151; West Texas Refining & Development Co. v. Commissioner (C.C.A.10th) 68 F.(2d) 77, 79, 80; Prairie Oil & Gas Co. v. Hotter, supra (C.C.A.10th) 66 F.(2d) 309, 311; Tulsa Tribune Co. v. Commissioner (C.C.A.10th) 58 F.(2d) 937. Taxpayers rely upon the decision of the Supreme Court in General Utilities & Operating Co. v. Helvering, 296 U.S. 200, 56 S.Ct. 185, 80 L.Ed. —. In that case, however, no corporate reorganization was involved, and there was no unifying contract such as we have here. Shares of stock were distributed by way of dividend among the corporation’s stockholders and were sold by the stockholders, who were not bound to sell, to a purchaser who .had made an offer to the corporation; and the decision was that these facts did not warrant a holding that the sale was made by the corporation so as to justify the imposition of a tax against it on the theory that it had made the sale and realized a profit. As pointed out by the Circuit Court of Appeals of the Second Circuit in Chisholm v. Commissioner, 79 F.(2d) 14, 16, a different case would have been presented if the distributors of the stock had been bound to make sale at the price offered to the corporation. Taxpayers rely also upon Bruce v. Helvering, 64 App.D.C. 192, 76. F.(2d) 442. In that case, however, the taxpayer had agreed to sell 200 shares of stock for cash before learning of a contemplated reorganization. Later she learned of the reorganization and exchanged 500 shares of stock in the old corporation for 1,200 shares in the new. The two transactions were separate and distinct and made pursuant to independent contracts. The court was at pains to point out, however, that, if the sale of the 200 shares had been conditioned on the exchange of the 500 shares for stock, the case would have come directly under the provisions of section 112 (c) (1) of the statute. On like principle, Helvering v. Ward (C.C.A.8th) 79 F.(2d) 381, and Lonsdale v. Commissioner (C.C.A.8th) 32 F.(2d) 537, may be distinguished. The only authority cited by the board for its action was its own decision in Gregory v. Commissioner, Helvering, 27 B.T.A. 223, but, in view of the decision of the Supreme Court in the same case, Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 267, 79 L.Ed. 596, 97 A.L.R. 1355, it would appear that the Board erred there in paying too much attention to the mere form of transactions entered into for the purpose of escaping taxes. The court said of the corporation organized and used there as the basis of the plea of corporate reorganization: “Putting aside, then, the question of motive in respect of taxation altogether, and fixing the character of the proceeding by what actually occurred, what do we find? Simply an operation having no business or corporate purpose — a mere device which put on the form of a corporate reorganization as a disguise for concealing its real character, and the sole object and accomplishment of which was the consummation of a preconceived plan, not to reorganize a business or any part of a business, but to transfer a parcel of corporate shares to the petitioner. No dou,bt, a new and valid corporation was created. But that corporation was nothing more than a contrivance to the end last described. It was brought into existence for no other purpose; it performed, as it- was intended from the beginning it should perform, no other function. When that limited function had been exercised, it immediately was put to death.” The same thing in almost the same words might be said of the device of issuing the “special” stock of the old corporation and exchanging for it the common stock of the new, or of the device of having common stock of the old corporation exchanged with the new for its “preference” stock and then retired. For the reasons stated, the decision of the Board to the effect that the transfers by taxpayers were not made pursuant to a plan of corporate reorganization will be reversed; but in the assessment of taxes the Board will treat as related steps in one consolidated transaction the three exchanges of stock to which we have referred. Reversed and remanded. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant? A. bank B. insurance C. savings and loan D. credit union E. other pension fund F. other financial institution or investment company G. unclear Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. FERNANDEZ v. UNITED FRUIT CO. No. 68, Docket 22444. United States Oour.t of Appeals Second Circuit. Argued Nov. 10, 1952. Decided Dec. 1, 1952. Rehearing Denied Dec. 22, 1952. Henry Fogler, New York City, for Felipe Fernandez, plaintiff-appellant. Burlingham, Veeder, Clark & Hupper, New York City, Benjamin E. Haller, Paul L. Murphy and Eugene Underwood, New York City, of counsel, for United Fruit Co-., defendant-appellee. Before AUGUSTUS ■ N. HAND, CHASE and CLARK, Circuit Judges. PER CURIAM. This appeal is singularly lacking in merit and appellant’s -brief surely should not have been cluttered up with unfounded charges against the appellee’s counsel. The only question before this court meriting any discussion is whether the jury should have been allowed to deal with the plaintiff’s claim for recovery on the basis of alleged unseaworthiness. The plaintiff argues that this should have been done because liability for unseaworthiness had been asserted in the complaint and the pre-trial order had stated that none of the issues raised by the pleadings were abandoned. But the pretrial order enumerated the only issues to he dealt with at the trial, and these were limited to questions raised by the allegations of negligence. If the plaintiff wished to present other issues at the trial he should have asked for an amendment of the pre-trial order, which he failed to do. We find no error in the conduct of the trial. The ver-diet for the defendant was, therefore, properly allowed to stand. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained 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). NEWTON v. EMPLOYERS LIABILITY ASSUR. CORPORATION, Limited. No. 4519. Circuit Court of Appeals, Fourth Circuit. Nov. 6, 1939. Charles B. Godwin, Jr., of Suffolk, Va. (W. Shepherd Drewry, of Norfolk, Va., on the brief), for appellant. R. M. Hughes, Jr., of Norfolk, Va. (Leon T. Seawell, of Norfolk, Va., on the brief), for appellee. Before PARKER and SOPER, Circuit Judges, and LUMPKIN, District Judge. PARKER, Circuit Judge. This is an appeal from a judgment for defendant in an action brought under an automobile garage public liability policy of insurance. The facts are undisputed and the case was heard by the judge without a jury. Two questions are presented by the appeal: (1) Whether under Section 4326a of the Code of Virginia a policy of automobile accident public liability insurance should be construed as covering the liability of a person operating a car with the consent of the insured owner, but under such circumstances as not to impose liability on the owner, and (2) if so, whether a garage liability policy falls within the rule. Appellant was injured in Norfolk, Va. by an automobile driven by one Green, a salesman employed by Hudgins-Luring, Incorporated, the owner of the automobile. Green was driving the automobile with the permission of his employer but was not at the time engaged in the employer’s business. A suit by appellant against Green and the employer resulted in a judgment for $5,000 against Green but absolving the employer from liability. Green was insolvent and execution against him was returned unsatisfied. Appellant thereupon instituted this suit to recover under the policy issued to the employer, on the theory that Green’s liability was covered thereunder. The policy, as stated, is an automobile garage public liability policy. HudginsLuring, Incorporated, of Norfolk, Va. is named therein as assured and the operations of that company are described as “automobile dealer or repair shop”. Premium was based on the remuneration earned during the policy period by employees engaged in the declared operations. Limits of liability were fixed at $10,000 for each person and $20,000 for each accident. The pertinent provisions of the policy are as follows: “1. Coverage A — Bodily injury liability. To pay on behalf of the Assured all sums which the Assured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of such of the operations hereinafter defined as are indicated by specific premium charge or charges in Item 4 of the declarations. “2. Division 1. — Automobile Dealer or Repair Shop. The ownership, maintenance, occupation or use of the premises herein designated, including the public ways immediately adjoining, for the purpose of an automobile dealer or repair shop, and all operations either on the premises or elsewhere which are necessary and incidental thereto, including repairs of automobiles or their parts, and ordinary repairs of buildings on the premises and the mechanical equipment thereof; and the ownership, maintenance or use of any automobile for any purpose in connection with the above defined operations, and also for pleasure use. “3. Definition of ‘Assured.’ The unqualified word ‘Assured’ includes not only the named Assured but also any partner thereof if the named Assured is a partnership, and the president, vice president, secretary and treasurer of the corporation if the named Assured is a corporation, with respect to the operation, for business or pleasure, of any automobile owned by or in charge of the named Assured, except an automobile owned by such partner or officer or by a member of his family; but this provision shall apply only with respect to any such partner or officer who earns remuneration which is included in the total remuneration upon which premium for this policy is based, as hereinafter provided. “4. Financial Responsibility Laws. Any insurance provided by this policy for bodily injury liability or property damage liability with respect to any automobile owned by the named Assured shall conform to the provisions of the motor vehicle financial responsibility law of any state or province which shall be applicable with respect to any such liability arising from the use of such automobile during the policy period, to the extent of the coverage and limits of liability required by such law, but in no event in excess of the limits of liability stated in this policy. The Assured agrees to reimburse the Corporation for any payment made by the Corporation on account of any accident, claim or suit, involving a breach of the terms of this policy and for any payment the Corporation would not have been obligated to make under the provisions of this policy except for the agreement contained in this paragraph.” There was testimony that policies of this character are approved by the Bureau of Insurance of the State of Virginia, that they are not required by the Bureau to contain an omnibus coverage clause, and that, if it is desired to cover liability of any persons other than the named assured, this is accomplished by an endorsement on the policy to that effect for which an additional premium is charged. The contention of appellant that the liability of one driving a car of the assured with his consent is covered by the policy is based upon the Virginia statute of 1934, which appears as Sec. 4326a of the Code, and is as follows: “4326a. Third person injured by a party carrying indemnity insurance subrogated to rights of such party. — No policy of insurance against loss or damage resulting from accident to or injury suffered by an employee or other person and for which the person insured is liable, or, against loss or damage to property caused by animals or by any vehicle drawn, propelled or operated by any motive power, and for which loss or damage the person insured is liable, shall be issued or delivered to any person in this State by any corporation or other insurer authorized to do business in this State, unless there shall be contained within such policy a provision that the insolvency or bankruptcy of the person insured shall not release the insurance carrier from the payment of damages for injuries sustained or loss occasioned during the life of such policy, and stating that in case execution against the insured is returned unsatisfied in an action brought by' the injured person, or his or her personal representative in case death results from the accident, because of such insolvency or bankruptcy, then an action may be maintained by the injured person, or his or her personal representative, against such corporation under the terms of the policy for the amount of the judgment in the said action not exceeding the amount of the policy. "No such policy shall be issued or delivered in this State, to the owner of ■ a motor vehicle, by any corporation .or other insurer authorised to do business in this State, unless there shall be contained within such policy a provision insuring such owner against liability for damages for death or injuries to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express of implied, of such owner.” (Italics supplied.) There can be no question but that the provisions of the statute above quoted are made a part of the policy. This is expressly provided by paragraph four, quoted above, to the effect that the insurance provided by the policy “shall conform to the provisions of the motor vehicle financial responsibility law of any state or province which shall be applicable with respect to any such liability arising from the use of such liability during the policy period, to the extent of the coverage and limits of liability required by such law.” In addition to this, it is well settled in Virginia that the provisions of the statute become a part of the contract of insurance, irrespective of any inconsistent provisions therein contained. Union Indemnity Co. v. Small, 154 Va. 458, 153 S.E. 685; Indemnity Ins. Co. v. Davis’ Adm’r, 150 Va. 778, 143 S.E. 328. The case is narrowed, therefore, to an interpretation of the statutory provision above italicized, which has not as yet been interpreted by the courts of Virginia. It is argued that, since the statute requires that the policy contain a provision insuring the “owner against liability”, its language has no application to cases such as this where there is no liability on the part of the owner. Such an interpretation would ignore the language which defines the liability as that “for damages for death or injuries to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner.” (Italics supplied). If the coverage be limited to liability of the owner, the italicized language would be given no meaning, and one of the principal purposes of the statute would be defeated, i. e. to eliminate contests over coverage in actions under such policies. In fact, if this interpretation of the italicized portion of the statute be adopted, there would have been no point in its enactment, since under existing law there was no trouble as to the coverage of policies protecting the liability of the owner. One of the ancient canons of interpretation is that the old law, the mischief and the remedy must be considered, and that the statute under consideration must be given an interpretation, if possible, which will suppress the mischief and advance the remedy. Having this in mind, we think that the reasonable construction of the statute is that all automobile liability policies issued within the state shall contain the widely used omnibus coverage clause, covering liability of anyone operating the car with the permission of the owner, whether the owner is liable or not. It is to be noted that this provision of the statute was taken verbatim from a similar statute of the State of New York. The decisions of the Court of Appeals of New York construing it, therefore, would seem to be more than persuasive and to become authoritative under the rule that a statute adopted from another state will be presumed to have been adopted with the construction placed upon it by the courts of that state. James v. Appel, 192 U.S. 129, 135, 24 S.Ct. 222, 48 L.Ed. 377; 59 C.J. 1065-1068; 25 R.C.L. 1069. The New York statute came before the Court of Appeals of that state for interpretation in the year 1931 in the case of Brustein v. New Amsterdam Casualty Co., 255 N.Y. 137, 174 N.E. 304, 305. The court quoted the provisions of Sec. 109 of the Insurance Law, Consol.Laws N.Y. c. 28, the first of which was the standard bankruptcy clause, similar to the first paragraph of Sec. 4326a of the Virginia Code, the second related to notice, and the third was in the exact language italicized in our quotation of the Virginia statute. The .court said: “The standard provisions provided for in section 109 are three in number and are aimed at separate recognized evils. The standard bankruptcy provision gives the injured person a remedy over against the insurance company when the judgment against the insured is uncollectible by reason of bankruptcy or insolvency. Merchants’ Mutual Automobile Liability Ins. Co. v. Smart, 267 U.S. 126, 45 S.Ct. 320, 69 L.Ed. 538. It puts an end to the rule that a contract of liability insurance is to be regarded as one of indemnity only. The second provides a standard rule as to the time and manner of notice to the insurer instead of leaving such matters to be covered by the individual contract. The third is an ‘additional interest’ clause aimed to protect the public against the operation of a car by others than the owner, provided they have the owner’s consent, express or implied. The primary purpose of this requirement is to meet the defense in an action on the policy that the owner was not at the time of the accident operating the car personally or by his agent, «although it was being operated by a member of his family or another with his consent express or implied.” A like interpretation was given the statute when applying it to a garage policy in Lavine v. Indemnity Ins. Co., 260 N.Y. 399, 183 N.E. 897, to which we will make further reference hereafter. Early in 1934 the statute was again before the Court of Appeals in Bakker v. Aetna Life Ins. Co., 264 N.Y. 150, 190 N.E. 327; and in an opinion rendered on April 17th of that year affirming a decision of the Appellate Division (240 App.Div. 880, 267 N.Y.S. 956) the court, speaking through Chief Judge Pound, followed the rule as laid down in the Brustein case, saying: “As we said in Brustein v. New Amsterdam Casualty Co., 255 N.Y. 137, 142, 174 N.E. 304, 305: ‘The third is an “additional interest” clause aimed to protect the public against the operation of a car by others than the owner, provided they have the owner’s consent, express or implied. The primary purpose of this requirement is to meet the defense in an action on the policy that the owner was not at the time of the accident operating the car personally or by his agent, although it was being operated by a member of his family or another with his consent express or implied.’ The policy attempts to nullify the ‘additional interest’ clause as above quoted. When the owner takes out a liability policy, no matter how limited as to coverage, the provisions of section 109 are a part of the contract.” In a concurring opinion Judge Crane had this to say in interpretation of the act: “The purpose of the provision is apparent. It is made for the benefit of persons injured or suffering damage and not solely for the benefit of the insured. The latter may be one of the reckless impecunious kind, as is so often the case, indifferent to a judgment against him and execution-proof. In other words, he may have no property to respond to money damage. The Legislature has sought to meet this difficulty by providing that, when the insurance company insures an owner of an automobile, it must also assume the risk of damage caused by one operating the car with the owner’s consent. * * * The owner is not obliged to insure in all instances, nor is any insurance company obliged to issue a policy to everybody making application, but, when the policy is once issued and the risk assumed, section 109 of the Insurance Law states specifically what this risk shall be.” It is argued that the Highway Act of New York imposes liability on the owner for the negligence of anyone who operates his car upon the highways of the state with his permission. Laws N.Y.1929, vol. 1, c. 54, p. 82, now Consol.Laws N.Y. c. 71. But the interpretation placed by the Court of Appeals upon the section of the insurance act in question is apparently not based in any way upon this provision of the Highway Act, the latter not being even referred to in the decisions. Furthermore the provisions of the insurance act would seem to apply to the coverage of a policy whether liability arises out of operation of the automobile on the highway or not, as where one operating an automobile with the permission of the owner negligently inflicts injury in a private driveway; and the Highway Act as to such liability could not possibly affect its interpretation. And we see no reason to make any distinction between a garage liability policy and any other policy insuring against liability for damages resulting from negligence in the operation of a motor vehicle. The statute makes no such distinction, saying in the broadest possible language “no such policy shall be issued” etc. The policy in question undoubtedly insures against liability for damages resulting from negligence in the operation of a motor vehicle; and it is perfectly clear that the mandate of the statute may not be avoided and the statutory coverage of the policy narrowed by the method followed in the assessment and collection of premiums. That the Bureau of Insurance may have followed a practice not in conformity with the requirements of the statute cannot change its plain meaning. The policy involved in Lavine v. Indemnity Ins. Co., supra, was a garage policy. A number of defenses were made; and the court, finding error in the trial with respect to some of them, remanded the case for a new trial and marked out the limits of liability in the following language, which expressly held the statutory provision applicable to such a policy, viz.: “While the policy in question must be read as if it contained the extended liability clause provided for under section 109 of the Insurance Law, it must be deemed limited in amount and coverage as set forth in the contract agreement. The primary purpose of the extended liability clause contained in section 109 is to meet the defense in an action on the policy that the owner was not at the time of the accident operating the car personally or by his agent, although it was being operated by a member of his family or another with his consent, express or implied. The purpose is not to make insurance compulsory or to prevent limitation of coverage. Brustein v. New Amsterdam Casualty Co., 255 N.Y. 137, 174 N.E. 304. “The policy under consideration must be held limited in coverage to the agreement of the parties as expressed therein. From an examination of the policy and the declarations attached thereto, it is apparent that the policy was intended to cover the ownership or maintenance or use of any automobile for any purpose usual to the assured’s operations in the business of auto sales at 225 North Allen Street, Albany, N. Y., including private pleasure use. The premium is based upon the pay roll for that particular business. If the evidence upon a new trial establishes that the car was actually owned by Englert or under his control, and was being driven by a person with the permission, express or implied, of Englert, either upon his business in connection with the Albany sales office, or for private pleasure use, the policy covers.” [260 N.Y. 399, 183 N.E. 899.] For the reasons stated, we are of opinion that the judgment appealed from should be reversed and the cause remanded to the court below with instructions to enter judgment for plaintiff. 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)". 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_method	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc. GREYHOUND LINES, INC., OF INDIANA v. Wm. H. HAMPTON, Adm’r of Estate of Harriet Ann Tomecek, Deceased. No. 5732. Circuit Court of Appeals, Sixth Circuit. May 11, 1931. • Hartshorn, Thomas & Abele, of Cleveland, Ohio, for appellant. E. S. Crudele and M. C. Harrison, both of Cleveland, Ohio, for appellee. PER CURIAM. Judgment of District Court affirmed by court order. Question: What is the nature of the proceeding in the court of appeals for this case? A. decided by panel for first time (no indication of re-hearing or remand) B. decided by panel after re-hearing (second time this case has been heard by this same panel) C. decided by panel after remand from Supreme Court D. decided by court en banc, after single panel decision E. decided by court en banc, after multiple panel decisions F. decided by court en banc, no prior panel decisions G. decided by panel after remand to lower court H. other I. not ascertained Answer:
sc_casesourcestate	22	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed. JAMES v. LOUISIANA. No. 23, Misc. Decided October 18, 1965. G. Wray Gill, Sr., for petitioner. Jack P. F. Gremillion, Attorney General of Louisiana, M. E. Culligan, Assistant Attorney General, and Jim Garrison for respondent. Per Curiam. The petitioner was convicted by a Louisiana jury of possession of narcotics and was sentenced to imprisonment for 10 years. The Supreme Court of Louisiana set aside the conviction on the ground that it was based upon evidence seized without a warrant during an illegal search. 246 La. 1033, 169 So. 2d 89. Upon rehearing, however, that court affirmed the conviction by a divided vote. 246 La. 1053, 169 So. 2d 97. We grant the motion to proceed in forma pauperis and the petition for certiorari and reverse the judgment. Police officers arrested the petitioner near the intersection of Camp Street and Jackson Avenue in the City of New Orleans, after he had alighted from an automobile driven by another man. The officers then drove the petitioner to his home, more than two blocks away. They broke open the door and for several hours conducted an intensive search which finally yielded the narcotics equipment and single morphine tablet that constituted the basis of the petitioner’s subsequent conviction. The Supreme Court of Louisiana found that the officers had probable cause to arrest the petitioner at the time they apprehended him, and the validity of his arrest is not here in issue. In the circumstances of this case, however, the subsequent search of the petitioner’s home cannot be regarded as incident to his arrest on a street corner more than two blocks away. A search “can be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.” Stoner v. California, 376 U. S. 483, 486. See also Preston v. United States, 376 U. S. 364. Under the doctrine of Mapp v. Ohio, 367 U. S. 643, see also Ker v. California, 374 U. S. 23, it was constitutional error to admit the fruits of this illegal search into evidence at the petitioner’s trial. Accordingly, the petition for certiorari is granted, the judgment is reversed, and the case is remanded to the Supreme Court of Louisiana for further proceedings not inconsistent with this opinion. It is so ordered. Question: What is the state of the court whose decision the Supreme Court reviewed? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_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. Richard Bryers CARROLL, Defendant, Appellant, v. UNITED STATES of America, Appellee. No. 7040. United States Court of Appeals First Circuit. April 12, 1968. Francis E. Dooley, Jr., Boston, Mass., by appointment of the Court, for appellant. Albert F. Cullen, Jr., Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., was on brief, for appellee. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. McENTEE, Circuit Judge. The basic question raised by this appeal is whether the defendant was denied his Sixth Amendment right to a speedy trial. On June 1, 1966 he was indicted in the District of Massachusetts for knowingly transporting certain forged checks in interstate commerce and was scheduled to be arraigned on August 1, 1966. At that time he was serving a state court sentence in the Mississippi State Penitentiary where he remained confined until March 21, 1967. He was then taken into federal custody and thereafter released on bail. After his Mississippi attorney had informed the United States Attorney’s office in Boston on April 17, 1967, that his client was available when wanted, defendant was arraigned on the indictment in Boston on May 22, 1967. He was tried and found guilty on November 17, 1967. On two occasions prior to trial defendant moved to dismiss the indictment for failure of the government to arraign and try him speedily despite the fact that he specifically requested this. The district court denied both motions. It is from the denial of the second motion to dismiss that defendant appeals. He does not complain of any post-arraignment delays. His complaint is that although August 1, 1966, was fixed as the date for his arraignment, he was not arraigned until May 22, 1967, nearly ten months later; that this delay was purposeful and oppressive, violated his Sixth Amendment right to a speedy trial and for that reason the district court erred in not dismissing the indictment. As we recently held in Fleming v. United States, 378 F.2d 502, 504 (1st Cir. 1967) mere lapse of time is not enough to establish denial of a speedy trial. There we observed that a delay of eleven months was “very short” and hence not unreasonable. It is essential that defendant also show prejudice or that the delay was improperly motivated. See also Schlinsky v. United States, 379 F.2d 735, 737 (1st Cir.), cert. denied, 389 U.S. 920, 88 S.Ct. 236, 19 L.Ed.2d 265 (1967). Defendant made no showing of prejudice by reason of the delay. He contends, however, that the delay was improperly motivated — that the arraignment was purposely delayed because he would not cooperate with the FBI in the investigation of other matters. In support of this contention defendant’s counsel points to his client’s testimony that in June 1966 when he was interviewed by an FBI agent at the Mississippi State Penitentiary he requested a speedy arraignment and was informed by the agent that he would be arraigned in Boston on August 1, 1966. Defendant also testified that in a later interview’ (after August 1) with the same agent, relating to other matters, he asked the agent why he did not get him to court in Boston and the agent replied, “You don’t help me — why should I help you.” The FBI agent testified that the only time he interviewed the defendant was on July 20, 1966, at the Mississippi State Penitentiary; that defendant made no request to him for a speedy arraignment and trial; that the date of August 1, 1966, was not mentioned and that at the time of this interview he did not know that the arraignment had been set for August 1. He further testified that he interviewed the defendant solely to ascertain whether he wished to stand trial in Massachusetts or have the case disposed of in Mississippi under Rule 20, Fed.R.Crim.P.; that defendant told him he wanted a trial and that he did not care to discuss the matter further. The agent testified that he did not have any other interview with the defendant. On the testimony of these two witnesses, their demeanor and the letter of defendant’s Mississippi attorney dated April 17, 1967, which contained no indication that the defendant was interested in a speedy arraignment or trial, the court found that the defendant never made a request to any federal official for a speedy arraignment or trial and denied his motion to dismiss the indictment. Obviously the court was not impressed by the implications from defendant’s testimony that the arraignment was delayed because of defendant’s failure to cooperate with the FBI or the point later raised at the hearing on the second motion that apparently the FBI agent had two interviews with the defendant even though he stated he had but one. We cannot say that the district court’s findings were plainly wrong. Affirmed. . Defendant’s first motion, filed shortly after the arraignment, was heard and testimony taken on August 8, 1967. The district court denied this motion in a written memorandum dated September 15, 1967. At or about that time defendant’s attorney learned of some new evidence bearing on the truth and falsity of testimony given at the August 8 hearing and on October 24, 1967, filed a further motion to dismiss. Both motions raised the same basic issue. On November 20, 1967, a hearing was held on the further motion to dismiss and after argument this motion was also denied. . At the hearing on the second motion to dismiss defendant’s counsel produced copies of Mississippi State Penitentiary records indicating that this FBI agent interviewed the defendant on July 20, 1966 and again on September 21, 1966. This new evidence was the basis for the second motion. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_counsel2	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. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party John Alton SMITH, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee. No. 74-1601 Summary Calendar. United States Court of Appeals, Fifth Circuit. Aug. 2, 1974. Rehearing and Rehearing En Banc Denied Oct. 16, 1974. Donald L. Kraemer, Staff Counsel, Huntsville, Tex.’, for petitioner-appellant. John L. Hill, Atty. Gen., Sarah Shirley, Asst. Atty. Gen., Austin, Tex., for respondent-appellee. Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, 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: Appellant was tried and convicted in Texas state court for assault with intent to murder. He seeks federal habeas corpus relief on the grounds he was tried in prison garb, rather than in civilian clothing, which we have granted on a number of occasions. Hernandez v. Beto, 5 Cir., 1971, 443 F.2d 634, Brooks v. State of Texas, 5 Cir., 1967, 381 F.2d 619, accord, Gaito v. Brierley, 3 Cir., 1973, 485 F.2d 86. However, an examination of the evidentiary record in this case reflects beyond a reasonable doubt appellant’s guilt. We therefore hold the infraction to be harmless error. Thomas v. Beto, 5 Cir., 1973, 474 F.2d 981. Affirmed. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_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". WALLING, Adm’r of Wage and Hour Division, U. S. Dept. of Labor, v. GOLDBLATT BROS. Inc. No. 8701. Circuit Court of Appeals, Seventh Circuit. Nov. 29, 1945. Rehearing Denied Jan. 25, 1946. Douglas B. Maggs and Bessie Margolin, Dept, of Labor, both of Washington, D. C., Kenneth P. Montgomery, of Chicago, 111., and Joseph M. Stone, Atty., U. S. Dept, of Labor, of Washington, D. C., for appellant. A. N. Pritzker and Stanford Clinton, both of Chicago, 111., for .appellee. Before SPARKS, MAJOR, and KERN-ER, Circuit Judges. SPARKS, Circuit Judge. This appeal presents another aspect of the question whether employees engaged in the warehouses and central offices of a chain store system operating department stores in more than one state are subject to the wage and ho.ur provisions of the Fair Labor Standards Act, 29 U.S.C.A. §§ 206, 207. In an earlier appeal in this same proceeding (128 F.2d 778), this court considered the decision of the District Court holding that none of appellee’s employees were engaged in commerce or in the production of goods for commerce, hence denying the injunction then sought. On appeal this court held that all employees engaged in procuring goods from other states for transportation to and delivery at employer’s warehouses; from which they were either distributed to its retail stores or held in storage, were engaged in “commerce” within the meaning of the Act; likewise that employees engaged in unloading and checking goods shipped in-interstate commerce, and handling them on the platforms, those engaged in shipping such goods from warehouses in Illinois to-stores in, another state, those engaged in making up goods for sale in the stores in either state, and in the operation, maintenance and servicing of certain warehouses where such processed good were handled were all engaged in the production of goods for commerce or in an occupation necessary to- such production. However, since the lower court had heard no evidence on the question of whether certain statutory exemptions provided by Section 13(a) of the Act were applicable, we remanded the cause for further proceedings intended to determine which of appellee’s employees were actually covered by the Act unless such employees were-exempted by the further provisions not previously considered by the court. By the-earlier proceeding, filed April 16, 1940, the-Administrator charged violations of the-Act only with respect to the employees-employed in three warehouses belonging to-appellee, not including the State Street warehouse. After remand of the cause for further-proceedings, appellant filed an amended complaint, January 12, 1944, making general allegations of appellee’s violation of the Act, so as to cover all of defendant’s-stores and warehouses in Chicago. Under this amended complaint, on trial, he extended the scope of the violations charged' to cover all employees working in all of appellee’s warehouses, its bakery, and central offices. The District Court found as-a matter of law that appellee was operating a retail establishment within the meaning of section 13(a) (2) of the Act, and! that all of its employees were employed' in a local retailing capacity within the meaning of section 13(a) (1) and were therefore not subject to the Act. Defendant is an Illinois corporation, now owning and operating chain stores consisting of 14 department stores, one drug’ store, one bakery and- six warehouses. Eight of the department stores and the-drug store are located in Chicago. One is in Joliet, Illinois, one in Hammond, Indiana, and one in Gary, Indiana. The other three stores are at South Bend, Indiana, Milwaukee, Wisconsin, and Buffalo, New York, and are operated as part of a. different chain. All of these stores sell at retail the variety of items usually found in the modern department store. The six warehouses are located in various sections of Chicago. All of them receive a large proportion of their merchandise from out of state sources. One, referred to as the State Street warehouse, consists of two interconnected buildings. It is just back of and across the alley from defendant’s retail store on State Street, the warehouse and store being connected by three passageways, two of which are overhead and one underground. The warehouse is connected with no other building. This store and warehouse are heated by a single heating plant which is located in the State Street store. The five other warehouses are separate and apart from each other and from the State Street store, and are in no manner physically connected therewith, and stock for retail is delivered from these to each of the retail stores as they need -and request it. The State Street warehouse is not used as such by any of the stores except the State Street store. However, the defendant also maintains a drapery workshop in this warehouse, and for the fiscal year ending January 31, 1943, the dollar value of the drapes made in this shop was approximately $187,000, of which approximately $28,000 was for the defendant’s Hammond and Gary, Indiana stores. The central offices for the entire system are housed on the ninth and tenth floors of the State Street store building, but such offices do not have exclusive occupancy of those floors, there being a number of employees located there whose duties are connected with the State Street store. Separate banks of elevators located in different parts of the building are used for the eight floors used for retail selling, accessible to appellee’s customers, and for the ninth and tenth floors, although selling employees engaged on the first eight floors have access to the ninth and tenth floor elevators as well as nonselling employees. The question presented by this appeal is whether the employees employed in the warehouses, bakery and central offices of appellee’s chain store system are subject to the Act, or are exempted from its operation by reason of either Section 13(a) (1) or (2), 29 U.S.C.A. § 213(a) (1), (2). Section 13 relating to exemptions provides : “(a) The provisions of sections 6 and 7 of this title shall not apply with respect to (1) any employee employed in a bona fide * * * local retailing capacity * * * (as such terms are defined and delimited by regulations of the Administrator) ; or (2) any employee engaged in any retail or service establishment the greater part of whose selling * * * is in intrastate commerce; * * By regulation duly promulgated pursuant to the authorization of subsection (1), the Administrator defined the term “employee employed in a bona fide * * * local retailing capacity” to mean any employee — - “(a) who customarily and regularly is engaged in — ■ “(1) making retail sales the greater part of which are in intrastate commerce; or “(2) performing work immediately incidental thereto, such as the wrapping or delivery of packages, and “(b) whose hours of work of the same nature as that performed by nonexempt employees do not exceed 20 percent of the number of hours worked in the workweek by such nonexempt employees.” 29 U.S.C.A.Appendix, § 541.4. The District Court held that appellee’s employees were all exempt from the operation of the Act by virtue of both of these provisions. In reaching its decision with regard to the § 13(a) (2) exemption, the court relied upon a decision of this court and decisions of the Sixth and Ninth Circuit Courts of Appeal to the same effect. See Walling v. Wiemann, 7 Cir., 138 F.2d 602, 150 A.L.R. 878; Allesandro v. Smith Co., 6 Cir., 136 F.2d 75, 149 A.L.R. 382; Walling v. Block, 9 Cir., 139 F.2d 268. However, after its decision, the Supreme Court, in A. H. Phillips, Inc., v. Walling, 324 U.S. 490, 65 S.Ct. 807, 157 A.L.R. 876, affirmed a decision of the Court of Appeals for the First Circuit, 144 F.2d 102, which it said was in conflict with the three decisions relied upon by the trial court. As a result of this decision appellee concedes that its employees at its bakery and all of its warehouses except the one on State Street, are not excluded from the Act by the retail establishment exemption. It contends, however, that this exemption is limited to those particular employees, and is not applicable to any of its clerical, warehouse or production employees working in its State Street buildings for the reason that these premises are all a part of its one retail establishment there. ' In the Phillips case the Court considered the meaning of the term “retail establishment” there involved, as it related to the 49 retail stores and one warehouse and central office' quite some distance apart from any of the stores, and not physically connected therewith. It discussed the integration of retail and wholesale functions by means of the warehouse and central office which it described as vital factors in such integration, and necessary instruments for the successful performance of the wholesale aspects of a multi-function business of this type. In holding section 13(a) (2) wholly inapplicable to that chain store system as a whole, the Court said [324 U.S. 490, 65 S.Ct. 810]: 1,1 * * * jf; as we believe, Congress used the word ‘establishment’ as it is normally used in business and in government — as meaning a distinct physical place of business — petitioner’s enterprise is composed of 49 retail establishments and a single wholesale establishment. Since the employees in question work in the wholesale establishment (which was the warehouse and office), Section 13(a) (2) is plainly irrelevant.” Furthermore, the Court said: “Moreover, it is quite apparent from the sparse legislative history of Section 13(a) (2) that Congress did not intend to exempt as a ‘retail establishment’ the warehouse and central office of an interstate chain store system. * * * “Here petitioner’s warehouse and central office employees are performing wholesale duties in the very midst of the stream of interstate commerce. They constantly deal with both incoming and outgoing interstate shipments. Such tasks are completely unlike those pursued by employees of the small local retailers, who were the sole concern of Congress in Section 13(a) (2). These duties, rather, are economically, functionally and physically like those of the independent wholesaler’s employees who, when engaged in interstate commerce, are admittedly entitled to the benefits of -the Act. * * * “ * * * Economic facts, legal principles and consistent and thorough administrative interpretation of the exemption all compel the conclusion that Section 13(a) (2) is not applicable to the facts of this case. * * * ” The Court also referred with approval to the Interpretative Bulletin No. 6 issued by the Wage and Hour Division of the Department of Labor wherein it stated, “ * * * each physically separated store of a chain of stores will be considered a separate ‘retail establishment.’ The warehouses and central executive offices of the chain are not ‘retail establishments.’ ” (Our italics.) Under this decision we feel impelled to hold that a majority of defendant’s employees working in its central office, located in the State Street store, in the bakery, in the drapery workshop, located in the State Street warehouse, and in the five warehouses, not including the State Street warehouse, are engaged in wholesaling and manufacturing functions which are neither retail nor local, and that as to such employees, the exception under Section 13(a) (1) or 13(a) (2) is inoperative. The judgment of the District Court is hereby reversed, and the cause remanded for further proceedings. 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_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 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Plaintiff-Intervenor-Appellant, v. CHRYSLER CORPORATION, Defendant-Appellee. Nos. 80-1202, 80-1203. United States Court of Appeals, Sixth Circuit. Argued Oct. 9, 1981. Decided July 12, 1982. Rehearing and Rehearing En Banc Denied Sept. 7, 1982. M. Elizabeth Bunn, Dorothy M. Smith and Martin A. Scott, Detroit, Mich., Joel M. Cohn, Lutz Alexander Brager, Ray Baca, E. E. O. C. — Appellate Div., Washington, D. C., for plaintiff-appellant. Jordan Rossen, U. A. W. Legal Dept., Detroit, Mich., for plaintiff-intervenor-appellant. John C. O’Meara, Lawrence G. Campbell and John K. Renke II, Dickinson, Wright, McKean, Cudlip & Moon, Thomas G. Kienbaum, Detroit, Mich., for defendant-appellee. Before EDWARDS, Chief Judge, KENNEDY, Circuit Judge, and CECIL, Senior Circuit Judge. GEORGE CLIFTON EDWARDS, Jr., Chief Judge. This is an appeal from the decision of a District Judge in the United States District Court for the Eastern District of Michigan denying motions for summary judgment filed by plaintiff-appellants, the Equal Employment Opportunity Commission (EEOC) and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and granting a motion for summary judgment filed by defendant-appellee Chrysler Corporation (Chrysler). Since 1955, the plaintiff-appellant in this case, UAW, and the defendant-appellee, Chrysler, have maintained a collectively-bargained for Supplemental Unemployment Benefits Plan (SUB Plan) which seeks to provide a guaranteed annual wage to Chrysler employees. At the inception of this litigation, the SUB Plan guaranteed that the combination of SUB and state unemployment compensation will add to about 95% of the employee’s working wage if the employee was laid off for certain reasons. This case concerns the impact of two now long dead discriminatory devices upon that SUB Plan: Chrysler’s mandatory maternity leave policy, terminated in 1972, and the policy of the Michigan Employment Security Commission (MESC) that women laid off pursuant to mandatory maternity leave policies could not collect state unemployment benefits even if completely able to work. Plaintiffs’ complaint is based upon the fact that between 1965 and 1972 Chrysler followed a mandatory “leave of absence” policy which required pregnant women employees to leave work in the fifth month of pregnancy and not return until 60 to 90 days after the birth of the child, regardless of their ability to work during these periods. Appellants claim that this policy violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976), and resulted in a class of women employees being denied benefits which would have otherwise been paid under the SUB Plan negotiated between the UAW and Chrysler. There is, however, no dispute about the fact that Chrysler terminated the mandatory pregnancy leave policy in June 1972. The case for the appellants is best stated in the UAW’s brief: STATEMENT OF FACTS I. THE CORPORATION’S SUB PLANS A. The Chrysler-UAW SUB Plan Since prior to 1975, the appellant UAW and the appellee Corporation have negotiated as part of the parties’ collective bargaining agreement a Supplemental Unemployment Benefits (SUB) Plan. The terms of the plan have remained the same for all relevant purposes since 1965 (Deposition of Irvin Richards, at 25-27, “A” 192-194). The SUB Plan provides in pertinent part (Plan — Article I, § 1, Eligibility for Benefits): “An employee shall be eligible for a Regular Benefit for any week beginning on or about December 1, 1976, if with respect to such week he: (a) was on a qualifying layoff, as discussed in Section (3) of this Article, for all or part of the week; (b) received a State System Benefit not currently under protest by The Corporation or was ineligible for a State System.Benefit only for one or more of the following reasons; (i) he did not have prior to layoff a sufficient period of employment or earnings covered by The State System; (ii) exhaustion of his State System benefit rights.” (Emphasis added) Procedurally, the Plan operates as follows. The Corporation initially determines the eligibility of the SUB applicant (Plan Art. V. § 2(a)). If the Corporation determines that the employee is eligible, it orders the trustee to make payment (Plan Art. V. § 2(b)). If the Corporation determines that the employee is ineligible for SUB, the aggrieved employee may appeal the decision to the local committee at his/her plant, if one exists (Plan Art. V. § 3(b)). From there (or if there is no local plant committee after the initial denial, from that decision), the employee may appeal to the “Board of Administration” (Plan Art. V. § 3(2)) which is composed of six (6) members, three selected by the Union and three by the Corporation (Plan Art. V. § 2(a)). If on appeal the Board of Administration rules that the employee is eligible, the Corporation then orders the Plan Trustee to pay the benefits. The Board of Administration does not have the authority to direct the trustee to pay. B. Chrysler’s SUB Plan for non-Union employees Since 1965, there has also been in existence a SUB Plan for non-union Corporation employees (A. 189-191). The substantive terms of that plan have been identical to the Chrysler-UAW Plan (A. 189-190, 194-195). However, the procedure differs insofar as the Corporation makes the sole determination of eligibility; there is no appeal procedure to a Board of Administration or otherwise (A. 189-190, 194-195, S.A. 3, 4). II. BACKGROUND OF THE DISPUTE As indicated above, this action seeks relief for women workers who were systematically denied SUB pursuant to a Corporation policy which violates Title VII of The Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In order to understand the present corporate violation, however, it is necessary first to explicate fully the circumstances surrounding the layoffs giving rise to the weeks of unemployment for which SUB is sought. For years prior to 1965 and continuing until 1972, the Corporation had in effect a mandatory maternity “leave of absence” policy. Pursuant to the policy in existence from at least 1965 to 1971, pregnant workers were forced out of work at the end of their fifth (5th) month of pregnancy and were not permitted to return until six (6) weeks after the birth of the baby (S.A. 39-43). In April 1971, the policy, was altered slightly, but the Corporation persisted in forcing women workers off the job when they were able and available to continue working (S.A. 52, 53). In June 1972, the mandatory maternity leave policy was dropped altogether (S.A. 44-51). During the period when the Corporation’s policy was in effect, women laid off pursuant to that policy in Michigan did not receive State unemployment insurance benefits (“State System Benefits”) due to the policy of the Michigan Employment Security Commission (herein “the MESC”), the Michigan agency entrusted with the administration of the Michigan Employment Security Act, to deny benefits to women placed on mandatory maternity leaves of absence. Accordingly, they were ineligible for SUB payments under Art. I § 1(b) of the Plan, quoted above. Subsequently, this state policy was struck down as contrary to federal law in a decision rendered by the Honorable Charles W. Joiner. UAW v. Taylor, C.A. No. 4-70066 (E.D.Mich., July 1974), affirmed by the Sixth Circuit in an unpublished opinion Nos., 76-1474, 76-1966, 76-1967 (1977), cert. denied sub. nom. Firestone Tire & Rubber Co. v. Taylor, et al., 435 U.S. 970, 98 S.Ct. 1610, 56 L.Ed.2d 69 (1978). The opinion and orders issued in that case required the MESC to process or re-process the claims of all women denied unemployment insurance pursuant to the unlawful policy and the claims of all women who never applied for benefits because of the futility of doing so but who, if they had applied, would have been denied pursuant to the policy. (Addendum, —.) Under the terms of the Taylor order, to receive retroactive unemployment compensation, each class member had to show before the MESC that she was forced out due to pregnancy, that she was able and available to work during the period for which she sought benefits and that she either applied for and was denied benefits or would have applied but for her knowledge of the existence of the unlawful policy (Addendum, 46). Chrysler was a party to each of the proceedings before the MESC involving its female employees. The Corporation protested the payment of state system benefits of most, if not all, Chrysler workers claiming under UAW v. Taylor, supra. It was not until 1976 that Chrysler ceased protesting claims for benefits of Taylor class members (Affidavit of John Thomas Kenney, a true copy of which is attached to the UAW Brief in Support of Motion for Summary Judgment as to Liability, A. 336). Sample Chrysler state agency decisions are in the Appendix. (38-73, 701-710). Subsequent to the receipt of state unemployment insurance not under protest by The Corporation, Taylor plaintiffs employed (or formerly employed) by the Corporation became eligible for SUB under Art. I, § 1(b) quoted above. The Corporation denied benefits to all Taylor SUB applicants for the reason that, according to Chrysler they were not on a qualifying layoff (A. 218-219, 337). Chrysler asserted no other reason for its uniform denials (A. 218-219). The Corporation denied SUB to women who were UAW members and to those who were not represented by a union (S.A. 3-38). On appeal, the Plan’s Board of Administration upheld the Corporation’s initial denial of SUB. Chrysler did not order the trustee of the Plan to pay benefits. The Corporation admits that it has a blanket policy of denying SUB to the women in question here (A. 337). Brief for appellant UAW at 3-7 (footnotes 1, 2, 3 omitted). The District Judge who decided this case below did so on the ground that the exclusion of involuntarily unemployed women from the SUB Plan did not violate Title VII. First, he said that the SUB Plan did not, by its terms, cover women in that situation. Rather he held that the Plan was: aimed at a situation, or situations, which involve a disruption in the tenure of an employee through circumstances largely economic in nature and outside of the control of the employee and were not intended to cover a situation such as a pregnancy which is — at least is susceptible of being- — a planned event and it was the concern of the drafters of supplemental unemployment benefits to provide economic security directed at ameliorating the ups and downs in the economy and that the plan was not aimed at covering a type of situation which was then covered under a completely different section of the contract. Equal Employment Opportunity Commission, et al. v. Chrysler Corp., No. 871013 (E.D.Mich. July 13, 1979) (bench disposition). Next, relying on Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), and Nashville Gas Co. v. Satty, 434 U.S. 136, 143-146, 98 S.Ct. 347, 352-353, 54 L.Ed.2d 356 (1977), the District Judge held that the failure to include those involuntarily unemployed due to mandatory maternity leave in the SUB Plan did not constitute sex discrimination. Appellants argue that denial of SUB to involuntarily unemployed pregnant employees places a substantial burden on women that men must not bear. Nashville Gas Co. v. Satty, supra at 138-143, 98 S.Ct. at 349-352. Thus, they argue that Chrysler’s policy, while neutral on its face, illegally discriminated against women. See Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Since we believe that this complaint, filed July 3, 1975, has long since been barred by the applicable statute of limitations, we decline to resolve this issue in the context of this record. This record clearly shows that Chrysler abandoned its mandatory maternity leave plan in June 1972. Moreover, as of July of 1972, this circuit struck down a quite similar policy applicable to school teachers. See LaFleur v. Cleveland Board of Education, 465 F.2d 1184 (6th Cir. 1972), aff’d, Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974). Thus, all of the facts and law necessary to a timely complaint were known over a decade ago. Appellants rely on the nature of the SUB Plan. Employees are eligible for SUB when they meet two conditions: 1) they must be on “qualifying layoff” as defined by the Plan, and 2) they must be receiving state system benefit “not under protest” by Chrysler. Appellants, therefore, contend that their cause of action did not accrue until Chrysler stopped contesting the awards of state unemployment compensation in April 1976. We recognize, of course, that lengthy litigation was required to establish the rights of the affected class of Chrysler women employees to state unemployment compensation, which, under the labor/management contract, was a condition precedent to a valid claim for SUB. Nonetheless, as of at least July 1972, there was no legal barrier to the filing of the instant complaint — even though its prosecution might have been delayed until the completion of the UAW v. Taylor case. We perceive no reason why the two cases could not have been timely filed simultaneously with their relationship to each other spelled out in the pleadings. In fact, however, all of these SUB claims, as well as the 1975 EEOC charges, were filed far beyond the applicable statute of limitations of 300 days. See 42 U.S.C. § 2000e-5(e) (1976). The judgment of the District Court is vacated and the case is remanded to the District Court for dismissal on the grounds of the statute of limitations. 9 Empl.Prac.Dec. ¶9878 (E.D.Mich.1974). In fact, in July, 1975 the UAW filed charges with the EEOC complaining in part of Chrysler’s policy of opposing claims for State benefits under UAW v. Taylor, supra. The instant case has its origins in this charge. See, for example, A. 38-73. Only eighteen (18) cases reached the Board of Administration (S.A. 4-39). The Corporation decided one case for a non-union employee (S.A. 3). . Appellants have not claimed that Chrysler concealed relevant facts or that the corporation’s actions unfairly prevented them from asserting their federal statutory rights. Accordingly, there is no possibility that Chrysler’s conduct tolled the applicable statute of limitations. See, e.g. Zipes v. Trans World Airlines, - U.S. -, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982); Wright v. State of Tennessee, 628 F.2d 949 (6th Cir. 1980) (en banc); Leake v. University of Cincinnati, 605 F.2d 255 (6th Cir. 1979). In the instant case, plaintiffs have not chosen to pursue the claim that Chrysler’s repeated protest of state employment awards itself violated Title VII. 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_origin	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. UNITED STATES ex rel. BERMAN et al. v. CURRAN, Commissioner of Immigration, etc. (Circuit Court of Appeals, Third Circuit. May 28, 1926.) No. 3442. 1. Aliens <@=>54 (9) — Finding of statutory ground for exclusion must be supported by some evidence. A finding by an immigration board to warrant exclusion of an alien under the statute, must be lawful, and it is not lawful unless supported by some evidence. 2. Aliens <@=>54(17) — Finding on which alien is excluded is reviewable, to ascertain whether it is supported by any. evidence. A finding on which an immigrant is excluded is reviewable by a court on habeas corpus, to ascertain whether it is supported by any evidence, “however slight,” and, if not, the order of exclusion and deportation based thereon may be annulled. 3. Aliens <@=>54(9) — Evidence held not to support finding that children were likely to become public charges. Where relatives of immigrant school children, one of whom was a citizen of the United States, wealthy, and owner of valuable real estate, offered to give bond for their maintenance and education, until they were self-supporting, there was no basis for a finding that they were likely to become a public charge. 4. Aliens <@=349 — Arbitrary exclusion of children under 16, not accompanied by or not coming to one or both their parents, held unlawful (Immigration Act, 1917, § 3 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289 i/4b]). Under Immigration Act 1917, § 3 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289%b), authorizing the Secretary of Labor in his discretion to admit children under 16 years of age and “unaccompanied by or not coming to one or both of their parents,” if otherwise eligible and not likely to become a public charge, and rule 6 of the regulations for enforcing such provision, the arbitrary exclusion by a .board of special inquiry of such children, otherwise fully qualified and not likely to become a public charge, held unlawful. 5. Aliens <@=»49 — Assisted alien children held not subject to exclusion, unless affirmatively shown to be within excluded class (Immigration Act 1917, § 3 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289i/4b]). Under the provision of Immigration Act 1917, § 3 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 428944b), for exclusion of aliens whose passage has been paid by another, that passage for alien children 13 and 12 years old, respectively, was paid by a relative, is immaterial, unless it is affirmatively shown that they belong to an excluded class. 6. Habeas corpus <3=23. When the record shows that immigration authorities have exceeded their powers in excluding an alien, he may maintain habeas corpus. Appeal from the District Court of the United States for the District of New Jersey; Wm. N. Runyon, Judge. Petition by the United States, on the relation of Chaim Berman and Mar;ja Berman, by Morris Cohen, against Henry H. Curran, Commissioner of Immigration, Port of New York, for writ of habeas corpus. From an order granting the writ, respondent appeals. Affirmed. Walter G. Winne, of Hackensack, N. J., and Philip Forman, of Trenton, N. J., for appellant. Charles J. Stamler, of Elizabeth, N. J., (Stamler, Stamler & Koestler, of Elizabeth, N. J., of counsel), for appellees. Before BUFFINGTON and WOOLLEY, Circuit - Judges, and BODINE, District Judge. WOOLLEY, Circuit Judge. Chaim Berman, male, aged thirteen, and Marja Berman, female, aged twelve, natives of Poland and children of a widowed mother remaining in that country, were refused admission to the United States after a hearing before a Board of Special Inquiry held at Ellis Island in September, 1923, and were detained for deportation. On habeas corpus proceedings instituted by the alien children, a judge of the District Court of the United States for the District of New Jersey entered an order granting the writ and discharging the petitioners from the custody of the Commissioner of Immigration at the Port of New York and the Department of Labor. From that order this appeal was taken. The record shows by evidence not disputed that these children — school children at home and able to read — were in good health, had never before been in the United States, were destined (though without money on their arrival) to a relative who had paid for their passage and who is a naturalized citizen of the United States shown to bo highly reputable, owning real estate valued at $500,-000 and representing himself to he worth upwards of $300,000, and who (as did another relative engaged in the coal business and representing himself to he worth $15,000) declared his willingness and purpose to take the children into his home, care for and support them and send them to school until they should be self-sustaining, and to give bond to that end. The Board refused the petitioners “admission to the United States as unaccompanied by or going to either parent, and (as) persons likely to become public charges and as assisted.” Of the throe grounds on which admission was denied, the finding that the children were persons likely to become public charges is evidently the principal one. That such a finding made by a department of the government, under a statute of this nature, must be lawful before it is enforcible is well established. Whether the finding is lawful depends not upon whether it is right or wrong according to the view of the court inquiring into its legality, Gonzales v. Williams, 192 U. S. 1, 24 S. Ct. 177, 48 L. Ed. 317; Gegiow v. Uhl, 239 U. S. 3, 35 S. Ct. 661, 59 L. Ed. 1493; Chin Yow v. United States, 208 U. S. 13, 28 S. Ct. 201, 52 L. Ed. 369; United States v. Rodgers, 191 F. 970, 973, 112 C. C. A. 382; but upon whether “there is any evidence however slight” to sustain it, Low Wah Suey v. Backus, 225 U. S. 460, 32 S. Ct. 734, 56 L. Ed. 1165; United States v. Ju Toy, 198 U. S. 253, 25 S. Ct. 644, 49 L. Ed. 1040. If there is, the decision of the departmental hoard is final and not open to review by any court. Frick v. Lewis, 195 F. 693-696, 115 C. C. A. 493, affirmed 233 U. S. 291, 34 S. Ct. 488, 58 L. Ed. 967; Low Wah Suey v. Backus, 225 U. S. 460, 32 S. Ct. 734, 56 L. Ed. 1165; United States v. Uhl (C. C. A.) 271 F. 676; United States v. Rodgers, 191 F. 970, 973, 112 C. C. A. 382. If there is not, the finding is not lawful for the obvious reason that no lawful decision can he made without any evidence to sustain it. To ascertain such lack of evidence — not to consider the weight of the evidence’ — courts may examine and annul the decision. Lee Lung v. Patterson, 186 U. S. 176, 22 S. Ct. 795, 46 L. Ed. 1108, and eases cited above. When a record shows a determination that the immigrant is likely to become a public charge, made without a particle of evidence tending to prove the fact, there obviously has been no such determination as the statute contemplates, and'in the absence of such a determination, no valid order for the exclusion and deportation of the alien on that ground can be made. In re Feinknopf (D. C.) 47 F. 447; United States v. Tod (C. C. A. 2) 294 F. 820, 823. Returning to the record, we find no evidence “however slight” which supports the finding that the petitioners are likely to become public charges. The exclusion of the petitioners on the ground that they were, in the words of the statute, “children under sixteen years of age unaccompanied by or not coming to one or both of their parents,” Section 3 of the Act of 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289^), was, in view of their full qualification for admission under Rule 6 promulgated by the Department of Labor to enforce the cited section of the Immigration Law, an abuse of discretion because of a failure to exercise discretion, and, therefore, unlawful. It is contended by the Government, in support of the last ground stated for the exclusion of the petitioners, that they fall within the class of assisted aliens prohibited from entering tbe United States under that portion of Section 3 of the Act of 1917 which is as follows: “Persons whose tickets or passage is paid for with the money of another, or who are assisted by others to come, unless it is affirmatively and satisfactorily shown that such persons do not belong to one of the foregoing excluded classes Aside from what is obviously true when we consider the age of the petitioners, the record discloses that their passage money was paid for them. Following the Circuit Court of Appeals for the Second Circuit in United States ex rel. Engel v. Tod, 294 F. 820, 824, where there was a like situation, we are of qpinion that this, under the statute, is an. immaterial fact, unless the. persons so assisted are affirmatively shown to belong to one of the excluded classes. That was not done. For" these several reasons we find that the record of proceedings before tbe immigration officers does not show such a regular procedure in accordance with the requirements of the law as to justify their action in refusing the petitioners admission to the United States. Adverting to the attack by the Government on the petitioners’ method of raising the question of the validity of the immigration proceedings, it will be enough to say that it is of course true that proceedings by habeas corpus cannot perform the function of a writ of error or appeal, yet courts are not forbidden to consider whether the .conduct and findings by a departmental board conform to the requirements of the Immigration Law. “When the record shows that a Commissioner of Immigration is exceeding his power, the alien may demand his release upon habeas corpus.” Gegiow v. Uhl, 239 U. S. 3, 35 S. Ct. 661, 59 L. Ed. 1493; United States ex rel. Engel v. Tod (C. C. A.) 294 F. 820; United States v. Rodgers, 191 F. 970, 973, 112 C. C. A. 382. The order is affirmed. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
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. Mary F. DUNBAR, Plaintiff-Appellant, v. The UNION CENTRAL LIFE INSURANCE COMPANY, Defendant-Appellee. No. 17144. United States Court of Appeals Seventh Circuit. May 16, 1969. Thomas Clay Collier, Jr., Albert W. Zimmermann, Indianapolis, Ind., Dunbar, Collier & Zimmermann, Indianapolis, Ind., of counsel, for appellant. Ralph Hamill, John P. Price, Indianapolis, Ind., Hamill & Price, Indianapolis, Ind., of counsel, for appellee. Before KILBY, FAIRCHILD and KERNER, Circuit Judges. KILEY, Circuit Judge. The district court entered summary judgment against plaintiff in her suit to recover lump sum settlements of insurance policies on her husband’s life in lieu of a monthly settlement option she had chosen prior to her husband’s death. 283 F.Supp. 823. We affirm. At the time of her husband’s death, March 19, 1965, the total amount due under six policies issued by defendant covering decedent was $100,861.86. The several policies were issued to plaintiff as owner and in each she was named primary beneficiary. Each policy was subject to an “Agreement of Designation of Beneficiary and Method of Settlement” made September 14, 1945, which elected a settlement option providing for continuous monthly payments of $402.86 to plaintiff guaranteed for twenty years and for life thereafter. Plaintiff alleged in substance that she had timely performed all of her policy obligations; that defendant refused to pay, in accordance with her demand, the total face value, contrary to the express terms of the contract; and that defendant’s withholding its “consent” to election of the lump sum provision of the insurance contracts was arbitrary and in disregard of plaintiff’s interest. The district court entered summary judgment for defendant on the ground that “plaintiff ha[d] no right * * * to elect a lump sum payment, subsequent to maturity of the policies, without * * * consent of * * * defendant.” Plaintiff’s affidavits justify the following statement of facts: After her husband died on March 19, 1965, plaintiff, being uncertain as to her cash needs, did not immediately answer the repeated requests of the Company that she elect a mode of payment of the proceeds of the policies. On May 3, about six weeks after her husband’s death, the Company wrote plaintiff’s lawyer enclosing an inter-office memorandum to the effect that plaintiff had eighteen months to decide whether she would like a life income option. Plaintiff relied on the eighteen months representation and did not demand the lump sum settlement until October 29, 1965. On November 3, 1965, the Company refused the demand, stating that her election required the consent which they refused to give. Plaintiff argues that the foregoing post-maturity events “tacitly” admit her right to change the mode of payment and that the Company is estopped from withholding consent; that the withholding of consent was arbitrary and invalid; and that Indiana law prohibited the Company from changing its tacit position by failing, within two months after proof of death was submitted, to settle the claim. We see no merit in the last argument. The delay was due primarily to plaintiff’s uncertainty, and in the Company’s view it settled plaintiff’s claim by rejecting plaintiff’s demand of October 29,1965 in the next month after insured’s death. Under Sec. D1 of each policy, the “owner” could by written notice, before or after insured’s death, elect to have the proceeds paid according to any of several installment options instead of in a single sum. The beneficiary, “no prior election having been made,” could after insured’s death elect any one of the installment options instead of a single sum payment. The September, 1945 agreement which — under stipulation in subsequently issued policies — covered the six policies in issue, provided that “with consent of the Company” plaintiff at any time after maturity could “change or revoke the method of settlement.” The district court rejected the contention that plaintiff, as owner of the policy, did not need the Company’s consent to change her rights as beneficiary. The policies expressly provided that plaintiff was to have express ownership rights “during her lifetime,” and expressly provided that the insured was not owner and had no ownership rights. The 1945 agreement, however, reserved to plaintiff the right as owner to change the settlement option before maturity. This agreement also provided that plaintiff reserved the right after maturity to change or revoke the method of settlement “with * * * consent of the Company.” This modified the owner’s right “before or after” insured’s death. It is our view that plaintiff’s rights as beneficiary vested upon the insured’s death. Her rights as owner at that time ceased. This is consistent with the 1945 settlement agreement provisions, which reserved before maturity her ownership rights in the policies, and after maturity limited her right to change or revoke the method of settlement by requiring consent. After an examination of the record before us, we hold there is no genuine issue of fact concerning the claim that the Company arbitrarily withheld its consent. The district court noted that the provisions of the policies making plaintiff the owner were prepared by the insured. The letterhead under which the ownership provisions were submitted shows that the insured, Mr. Dunbar, was an attorney and a member of the firm of Dunbar & Dunbar “Specializing in Income and Inheritance Taxes, Wills and Trusts.” It is apparent to us that the life insurance program was carried out at the direction of the insured. The September 22, 1945 agreement electing a monthly settlement option was signed by plaintiff. Presumably it was with her husband’s acquiescence, in view of the fact that it was executed a few months after the policies became effective. This jointly-declared intention to provide plaintiff with a guaranteed income for life was done for her financial security. The agreement provided for continuous installments and expressly withheld from plaintiff the right to withdraw funds from the insurance proceeds retained as principal by the defendant. Violence would be done to this plan if the option could be changed merely because the beneficiary has so requested. Plaintiff has neither alleged nor brought forth any extraordinary facts to justify a change in the pattern of financial security designed by both her and her husband. Finally, we see no merit in plaintiff’s claim that the policy option for monthly installments elected prior to her husband’s death violated Burns’ Ind.Stat. Ann. Sec. 39-4207 (1965 Repl.), because “at maturity” the settlement could be of less value than the “amount insured” in the policies. The affidavit of defendant’s chief actuary shows that the value of the “guaranteed” monthly installments was the equivalent of the amounts insured, and this settlement option was approved by the State of Indiana Insurance Department. There was no genuine issue of fact about this point. For the reasons given, the judgment is affirmed. . Contingent beneficiaries, two daughters at the time of insured’s death, under the agreement were to receive the balance due of the guaranteed payments should plaintiff not survive the twenty years, . “OWNERSHIP. Mary P. Dunbar, wife of the insured, during her lifetime, may exercise every right and receive every benefit specified in and conferred by the provisions of the policy to the owner thereof, including, but without limiting the foregoing, the right of assignment, the privilege to change the beneficiary * * * and to agree with the Company to any change in or amendment of the policy, all without the consent of the insured.” . We do not decide or imply the extent, if any, of the insured’s control over the incidents of ownership in the policies. 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_issue_9	12	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. BRANNAN, SECRETARY OF AGRICULTURE, v. STARK et al. NO. 6. Argued October 9, 1951. Decided March 3, 1952. Neil Brooks argued the cause for the Secretary of Agriculture. With him on the brief were Solicitor General Perlman and W. Carroll Hunter.. Seward A. Miller, Frederic P. Lee and Maurice A. Gellis submitted on brief for the Dairymen’s League Co-operative Association, Inc. Edward B. Hanify argued the cause for respondents. With him on the briéf were Harry Polikoff and Lipman Redman. Reuben Hall and Waldo Noyes filed a brief for the New England Milk Producers’ Association et al., as amici curiae, urging reversal. Mr. Justice Clark delivered the opinion of the Court. This action by dairy farmers, nonmembers of cooperative, associations, concerns 1941 amendments to an order, of the Secretary of Agriculture dealing with the marketing of milk in the Boston area. It was previously here as Stark v. Wickard, 321 U. S. 288 (1944), where it was held that the respondents had such an interest in the Order as to give them legal standing to object to those of its provisions here under attack. Upon remand the provisions were held invalid by the District Court, 82 F. Supp. 614, and that decision, was affirmed in the Court of Appeals for the District of Columbia Circuit. 87 U. S. App. D. C. 388, 185 F. 2d 871. We granted certiorari. 341 U. S. 908. The question now presented is whether those amendments to the Order which provide for certain payments to cooperative associations are within the authority granted the Secretary by the Agricultural Marketing Agreement Act of 1937. The respondents seek to enjoin the enforcement of the provisions in question. The purpose of the Act and the nature of the Secretary’s Order No. 4 thereunder are set out in some detail in Stark v. Wickard, supra, at 291-302. It is here sufficient to note thq following aspects of Order No. 4, as amended: In the Order, issued pursuant to the Act, the Secretary divided all milk marketed in the Greater Bos: ton area into Class I, which is sold as fluid milk, and Class II, which is used for other purposes such as the manufacture of butter and cheese. The Order provides for the fixing of minimum price's to be paid, by handlers for each of these classes of milk. Each handler pays for milk in accordance with the amount of each class he has purchased. Producers, however, are paid the same price for milk delivered no matter what use is made of the particular milk by the handler. The Market Administrator computes, on the basis of prices paid by handlers, the value of all milk sold in the area each month. After making certain adjustments, he divides that value, as adjusted, by the total quantity of milk, sold in the area during the month, to determine the "blended price,” which is the price actually paid the producer. One adjustment made in determining the blended price is the deduction providing for the disputed payments to cooperatives. This deduction is thus “a burden on every area sale.” Stark v. Wickard, supra, at 303. “Apparently, [it] is the only deduction that is an unrecoverable charge agáinst the producers. The other items deducted under [the Order] are for a revolving fund or to meet differentials in price because of location, seasonal delivery, et cetera.” Id., at 301. The effect, of the deduction and. the correlative payments to cooperatives is to reduce the amount which producers, such as respondents, who are not members of cooperatives would otherwise receive for their milk, and to increase correspondingly the receipts of cooperatives. We must determine whether the Secretary was authorized by the statute to include the provisions requiring this deduction and these payments in the Order. No question is presented as to the adequacy of the evidence to support the findings of the Secretary, but rather, a question as to the power granted the Secretary by Congress. The disputed provisions were introduced into the-Boston Order in 1941, after hearings called by the Secretary. Affidavits, filed by representatives of the Secretary in support of his motion for summary judgment in the District Court; show the following: A major issue at the hearings was the amount of a uniform allowance, previously 260 per hundredweight, which was reflected in the price paid by all handlers for Class II milk. This allowance resulted in a lower price to handlers, for Class II milk than for Class I milk. It was intended to defray the cost of handling surplus milk. There was a considerable variance in milk plant costs which was thought to make continuance of a uniform rate undesirable. Cooperative plants showed higher costs than those of proprietary handlers. That difference was attributable not only to the cooperatives’ maintenance of a reserve supply to meet irregular demands of proprietary handlers for Class I milk, but also to overcapitalization and excess capacity which had existed prior to any federal regulation. To meet these higher costs cooperatives proposed a lower uniform allowance for Class II milk, coupled with a payment to cooperatives only for market services, although they had engaged in the activities claimed to constitute market services for years • without any such payment. In the amendments resulting from the hearings, the uniform allowance to handlers was reduced from 26$ to 21%$, while at the same time the provisions here contested, requiring payments to cooperatives alone, were introduced. Section 8c (5) of the Act provides that orders relating to milk and its products shall contain one or more of certain enumerated terms and conditions, “and (except as provided in subsection (7)) no others" (emphasis added). It is paragraph (D) of subsection (7) upon which the Secretary relies. That paragraph authorizes provisions “incidental to, and not inconsistent with, the terms and conditions specified in subsections (5), (6), and (7) and necessary to effectuate the other provisions of such order.” The provisions here in question are not specifically authorized by any part of the Act. Both courts below thought these provisions to be neither incidental nor necessary, and to be inconsistent with terms specified in the named subsections. The payments to the cooperative associations are said to be justified as remuneration for services performed for the market by the associations. To qualify for the payments, an association must meet eight requirements listed in the Order. But none of these shows any indication that the activity it prescribes will benefit nonmembers, with the possible exception of the seventh, which requires that the association collaborate “with similar associations „ in activities incident, to the maintenance and strengthening of collective bargaining by producers and- the operation of a plan of uniform pricing of milk to handlers.” Even if this requirement comprehends a service to nonmember producers substantial enough to be significant in determining the validity of a mandatory contribution from them to cooperatives, it does not support the exaction in issue, which concededly is based mainly upon other services, primarily performed for members. Indeed, those “services” which the Secretary principally urges as justifying the payments do not appear among the expressed prerequisites for .the payments. Chief among the activities claimed to benefit all producers are those-which tend to maintain an adequate supply of fluid milk at’ all times and to dispose of surplus supply. A principal source of the problems of milk marketing is the seasonal character of milk production. Herds sufficient to meet the demand for fluid milk during the winter months produce much more than enough to satisfy that demand during the summer months. It is contended that the cooperative associations handle a proportionately larger share of surplus milk than other handlers. It appears that they engage in the manufacture of milk products as a means of absorbing the surplus, and otherwise aid in obviating/the “dumping” of surplus and discouraging the reduction of- herds to a point below that necessary to supply the demand in the season of low production. It may be conceded that these activities are indirectly beneficial to the whole market, even though they are engaged in for the direct advantage of members only. However, proprietary handlers also carry on activities of this kind, and their plants handle two-thirds as much surplus milk as do those of the cooperatives. Prior to amendment of the Order in 1941, the cost of handling surplus milk was recognized in the uniform 26$ allowance to all handlers of Class II milk, but only cooperative associations now receive the payments in issue here. It is clear that the associations are in no way required to handle any of the surplus milk of nonmembers. More significant, there is no requirement in the Order that the associations take any action directed toward solution of the problem, even with respect to surplus milk of their members. Other “services” of the cooperatives which are claimed to be beneficial to all producers are, as they affect the issue here, relatively insignificant. These activities are, like the others, primarily désigned for the advantage of members, although they may sometimes incidentally benefit the whole market. They generally amount to no more than playing the part of an alert, intelligent, organized participant in the market. They include such functions as employing economists to study the needs of the industry, participating in hearings on orders such as that inyplved here, being attentive to changing factors in the market, and maintaining the cooperative organizations by promotional work to show farmers the benefits of cooperation and by educational work among members.- One may observe some incongruity in requiring some producers to pay others for vigorously prosecuting their own interests, especially where their interests may sometimes conflict with those of the producers burdened with the payments. In these circumstances, we cannot say that the disputed provisions fall within the authority granted by the catchall phrases of § & (7) (D) of the Act. We noté at the outset that § 8c (5) states in specific and lengthy detail the provisions which may be included in milk marketing orders. That subsection lays down comprehensive directions for classification, pricing, and the operation of the equalization pool mechanism, particularly as to adjustments and deductions employed in determining the blended price. But § 8c (5) does not authorize the provisions challenged here.. Section 8c (7) authorizes a congeries of general terms which may be included in all marketing orders, including those dealing with commoditiés other than milk and milk products. The'Secretary claims authority for the provisions in question is given by the last paragraph of this omnibus subsection, a paragraph .authorizing the inclusion of auxiliary provisions “incidental to . . . the terms and conditions specified in subsections (5), (6), and (7).” Yet it is claimed that the contested provisions are of such basic importance that their validity may be crucial to the success of the whole milk marketing program. We do not think it likely that Congress, in fashioning this intricate marketing order machinery, would thus hang one of the main gears on the tail pipe. The conclusion that these provisions are not “incidental” to the specified terms is further supported by the presence of § 8c (5) (E), expressly authorizing deductions from payments to producers for other, specified services, and indicating the likelihood of similar specific authorization for the contested deductions if Congress intended that they should be made. Finally, the provisions cannot be incidental to the enumerated terms and conditions since they are inconsistent therewith. The payments to cooperatives are inconsistent with § 8c (5) (A), which provides that all handlers shall pay uniform prices for, each class of milk, subject to certain adjustments of no concern here. The discriminatory effect of the payments becomes the more evident when they are considered in context with the reduction in the uniform allowance to all handlers on the price of Class II milk. That reduction' was simultaneous with the establishment of the system of payments to be made to cooperatives only and to be funded by deductions from prices paid all producers. The result would have been substantially similar if the allowance to proprietary handlers had been reduced while the allowance to cooperatives had been permitted to remain at its previous higher level. Such a lack of- uniformity in prices paid by handlers, would clearly have contravened § 8c (5) (A). The deduction for payments to cooperatives is inconsistent with §8c(5)(B), which requires the payment of uniform prices to all producers for all milk delivered, subject to certain adjustments not here pertinent. It has been contended that the deduction does not affect the uniform price of milk, but represepts only a reimbursement for services.' The argument seems to be that all producers receive a uniform price while the deduction merely constitutes a charge to all producers for services, a charge which happens to be paid certain associations of producers because those associations perform the services. The fact remains that the receipts of nonmembers resulting from delivery of a given quantity of milk are smaller than those of the associations and their members. This is true because nonmembers are' paid only the blended price while members receive, through their associations, the disputed payments in addition to the blended price. Although made to, members collectively, these payments necessarily redound to members individually. Thus, if they are used to pay the costs of the associations, they reduce pró ianto the contributions which are required from individual members. But we need not go further than to hold that the argument cannot negate inconsistency with the uniform price requirement where, as here, the services for which the payment is made are performed for the direct bénefit of the cooperatives’ memberships, are but incidentally helpful to other producers, and are not a required condition to receipt of the payments. Since the provisions for payments to1 cooperatives are not incidental to § 8c (5) and (7),‘but are inconsistent with the former subsection, we need not determine whether they are “necessary to effectuate the other provisions” of the Order, the third requirement of § 8c (7)(D). When the directly relevant provisions of the Act thus demonstrate lack of authority for the payments to cooperatives, no power to require them can be implied from the general instruction of § 10 (b)(1) to the Secretary, directing him to accord “recognition and encouragement” to cooperative associations. Without support in the words of the statute the challenged provisions must fall, for neither legislative history nor administrative construction offers any cogent reasons for a contrary result. Available indicia of congressional intent at the time of enactment lend weight to the contention that specific provision would have been made for this kind of payments to cooperatives if they were meant to be made. Attempted amendment later to provide authorization for the payments, and the accompanying discussion in Congress, are, as a whole, indecisive. Approval of the payments by Congress cannot be inferred from its ratification, upon passage of the Agricultural Marketing Agreement Act in 1937, of marketing orders previously issued under the Agricultural Adjustment Act. Even if we were to accept the proposition that Congress there intended to confer statutory authority for all future provisions like any of those then existing in any marketing order, we would reach the same conclusion because neither the provisions for these particular payments nor any closely analogous provisions were at that time present in any marketing orders. Nor have provisions bearing substantial similarity to those before us since been included in other orders so frequently as to amount to a consistent administrative interpretation of import in construing the Act. Many provisions for payments to cooperatives appearing in other orders have been of a kind specifically authorized by the statute. Thus, the provision of the first Boston Milk Order for a price differential as between cooperative milk and noncooperative milk was upheld in Green Valley Creamery v. United States, as a “market differential” authorized by § 8c (5) (A)(1). We have no occasion to judge the equity or the wisdom of the payments to cooperatives involved in this case. We hold that they are not authorized by the Act. Affirmed. Mr. Justice Jackson and Mr. Justice Minton took no part in the consideration or decision of this case. 50 Stat. 246, as amended, 7 U. S. C. § 601 et seq. The Act of 1937 reenacted and amended provisions of the Agricultural Adjustment Act of 1933, 48 Stat. 31, as amended. 7 CFR §§ 904.1-904.110. Section 904.8 (b) of the Order requires the Market Administrator, in computing the blended price, to deduct, among other items, the total amount of cooperative payments required by § 904.10 (b), which provides: “(b) Cooperative payments. On or before the 25th day after the end of each month, each qualified association shall be entitled to receive a cooperative payment from the funds provided by handlers’ payments to the market administrator pursuant to §904.9. The payment shall be made under the conditions and at the rates specified in this paragraph, and shall be subject to verification of the receipts and other items upon which such payment is based. “(1) Each qualified association shall be entitled to payment at the rate of 1 cént per hundredweight on the milk which its producer members deliver to the plant of a handler other than a qualified association; except on milk delivered by a producer who is also a member of another qualified association, and on milk delivered to a handler who fails to make applicable payments pursuant to § 904.9 (b) (2) and §904.11 within 10 days after the end of the month in which he is required to do so. If the handler is required by paragraph (e) of this section to make deductions from members of the association at a rate lower than 1 cent per hundredweight, the payment pursuant to this subparagraph shall be at such lower rate. “ (2) Each qualified association shall be entitled to payment at the rate of 2 cents per hundredweight on milk received from producers at a plant operated by that association.” 7 CFR § 904.10 (b). The total, amount thus pajd cooperatives in the Boston area since 1941 is $1,521,028; in addition, more than $400,000 has been deposited in a special account to await' the final result of this litigation. However, the payments to cooperatives have in each year constituted no more than a fraction of one percent of the total value of milk marketed in the area. See, e. g., R. 60, 70-75. § 8c (5), note 1, supra: “(5) In the case of milk and its products, orders issued pursuant to this section shall contain one or more of the following terms and conditions, and (except as provided in subsection (7)) no others: “ (A) Classifying milk in accordance with the form in which or the purpose for which it is used, and fixing, or providing a method for fixing, minimum prices for each such use classification which all handlers shall pay, and the time when payments shall be made, for milk purchased from producers or associations 6f producers. Such prices shall be uniform as to all handlers, subject only to adjustments for (1) volume, market, and production differentials customarily applied by the handlers subject to such order, (2) the grade or quality of the milk purchased, and (3) the locations at which delivery of such milk, or any use classification thereof, is made to such handlers. “(B) Providing: (i) for the payment to all producers and associations of producers delivering milk to the same handler of uniform prices for all milk delivered by them: Provided, That, except in the case of orders covering milk products only, such provision is approved or favored by at least three-fourths of the producers who, during a representative period determined by the Secretary of Agriculture, have been engaged in the production for market of milk covered in such order or by producers who, during such representative period, have produced at least three-fourths of the volume of such milk produced for market during such period; the approval required hereunder shall be separate and apart from any other approval or disapproval provided for by this section; or (ii) for the payment to all producers and associations of producers delivering milk to. all handlers of uniform prices for all milk so delivered, irrespective of the uses made of such milk by the individual handler to whom it is delivered; subject, in either case, only to adjustments for (a) volume, market, and production differentials customarily applied by the handlers subject to such order, (b) the grade or quality of the milk delivered, (c) the locations at which delivery of such milk is made, and (d) a further adjustment, equitably to apportion the total value of the milk purchased by any handler, or by all handlers, among producers and associations of producers, on the basis of their marketings of milk during a representative period of time. “(C) In order to accomplish the purposes set forth in paragraphs (A) and (B) of this subsection (5), providing a method for making' adjustments in payments, as among handlers (including producers who are also handlers), to the end that the total sums paid by each handler shall equal the value of the milk purchased by him at the prices fixed in accordance with paragraph (A) hereof. “(D) Providing that, in the case of all milk purchased by handlers from any producer who did not regularly sell milk during a period of 30 days next preceding the effective date of such order for consumption in the area covered thereby, payments to such producer, for the period beginning with the first regular delivery by such producer and continuing 'until the end of two full calendar months following the first day of the next succeeding calendar month, shall be made at the price for the lowest use classification specified in such order, subject to the adjustments specified in paragraph (B) of this subsection (5). “ (E) Providing (i) except as to producers for whom such services are being' rendered by a cooperative marketing association, qualified as provided in paragraph (F) of this subsection (5), for market information to producers and for the verification of weights, sarfipling, and testing of milk purchased from producers, and for making appropriate deductions therefor from payments to producers, and (ii) for assurance of, and security for, the payment by handlers for milk purchased. “(F) Nothing contained in this subsection (5) is intended or shall be. construed to prevent a cooperative marketing association qualified under the provisions of the Act of Congress of February 18, 1922, as amended, known as the ‘Capper-Volstead Act’, engaged in making collective sales or marketing of milk or its products for the producers thereof, from blending the net proceeds of'all of its sales in all markets in all use classifications, arid making distribution thereof to its producers in accordance with the contract between the association and its producers: Provided, That it shall not sell milk or its products to any handler for use or consumption in any market at prices less than the prices fixed pursuant to paragraph (A) of this subsection (5) for such milk. “(G) No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, in the case of the products of milk, the marketing in that area of any milk or product thereof produced in any production area in the United States!” § 8c (7) (D), note 1, supra. Subsection 7 authorizes certain general terms for all marketing orders, including both those relating to milk and its products and those relating to other commodities. The terms thus authorized, aside from paragraph (D), prohibit-unfair competition, provide for filing of sales prices by handlers, and provide for selection of an agency to implement the order. 82 F. Supp. 614, 618; 87 U. S. App. D. C. 388, 397-399, 185 F. 2d 871, 880-882. 7 CFR § 904.10 (a): “(a) Application and qualification for cooperative payments. Any cooperative association of producers duly organized under the laws of any state may apply to the Secretary for a determination that it is qualified to receive cooperative payments in accordance with the provisions of this section. Upon notice of the filing of such an application, the market administrator shall set aside for each month, from the funds provided by handlers’ payments to the market administrator pursuant to § 904.9, such amount as he estimates is ample to make payment to the applicant, and hold it in reserve until the Secretary has ruled upon the application. The applicant association shall be considered to -be a qualified association entitled to receive such payments from the date fixed by the Secretary, if he determines that it meets all of the following requirements. “(1) It' conforms to the requirements relating to character of organization, voting, dividend payments, and dealing in products of nonmembers, which are set forth in the Capper-Volstead Act and in the state laws under which the association is organized. “(2) It operates as a responsible producer-controlled marketing association exercising full authority in the sale of the milk of its members. “(3) It .systematically checks the weights and tests of milk which its members deliver to plants not operated by the association. “(4) It guarantees payment to its members for milk delivered to plants not operated by the association. “(5) It maintains, either individually or together with-other qualified associations, a competent staff for dealing with marketing problems and for providing information to its members. *(6) It constantly maintains close working relationships with its members. “(7) It collaborates with similar associations in activities incident to the maintenance and strengthening of collective bargaining by producers and the operation of a plan of uniform pricing of milk to handlers. “(8) It is in compliance with all applicable provisions of this subpart.” Ibid. In' 1939 (no later statistics are available in the record), there were 21 plants in the Boston area which were equipped for manufacturing milk powder, condensed milk or butter, of which 13 were cooperative and 8 proprietary. The cooperative plants handled 60.2 percent of the surplus milk that year. R. 66 and 68. Contrast the New York Order, providing for .comparable payments, at various rates, to cooperatives. That Orcler expressly requires that an association, to qualify for any such payments, must arrange for and supply “in times of short supply, Class I milk to the marketing area,” and must secure “utilization of milk, in times of long supply, in a manner.to assure the greatest possible return to all producers.” 7 CFR, 1950 Cum. Supp., § 927.9 (f). To receive the highest rate of'payments under that Order, in certain circumstances a cooperative must “in addition to the other qualifications . . . [be] determined by the Secretary to have sufficient plant capacity to receive all the milk'of producers who are members and to be willing and able to receive milk from producers not members.” Id., at § 927.9 (f) (3). As proposed at one point in the hearings, the Boston Order would have contained requirements like those of the New York Order. R. 233. Their omission, in the Order, as finally issued, presumably was deliberate. In fact, the Secretary admits that many of the cooperatives in the Boston area were unwilling or unable to perform services such as those required by the New York Order. R. 24-25 and 70. § 8c (7) (D), note 1, supra. Subsection (6) has no application to orders dealing with milk. § 8c (7) (D), note 1, supra. § 10 (b) (1), note 1, supra. The statutory provisions setting forth the terms which might be included in marketing orders were first enacted in an amendment to the Agricultural Adjustment Act in 1935. 49 Stat. 753. This enactment occurred shortly after the decisions of this Court in Panama Refining Co. v. Ryan, 293 U. S. 388 (1935), and Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935), placing limitations on the delegation of rule-making authority to administrative agencies. With these cases specifically in mind, Congress set forth with deliberate particularity and completeness the terms which the Secretary might include in marketing orders. H. E. Rep. No. 1241, 74th Cong., 1st Sess. 8; S. Rep. No. 1011, 74th Cong., 1st Sess. 8. S. 3426, 76th Cong., 3d Sess.; S. Rep. No. 1719, 76th Cong., 3d Sess. S. 3426 would have clearly authorized payments such as those challenged here. It passed the Senate, but went no further. As to the inconclusive nature of the Bill and its history, see the opinion of the Court of Appeals, 87 U. S. App. D. C. 388, 400, 185 F. 2d 871, 883. “Nothing in this Act shall be construed as invalidating any marketing agreement, license, or order, or any regulation relating to, or any provision of, or any act of the Secretary of Agriculture in connection with, any such agreement, license, or order which has been executed, issued, approved, or done under the Agricultural Adjustment Act, or any amendment thereof, but such marketing agreements, licenses, orders, regulations, provisions, and acts are hereby expressly ratified, legalized, and confirmed.” 50 Stat. 246. 249 Of thirty-nine currently' outstanding milk marketing orders, only four contain provisions of the general nature of those in question. One of these is the Boston Order involved here; another is the New York Order, as to which see note 12, supra. 108 F. 2d 342, 345 (G. A. 1st Cir., 1939). Question: What is the issue of the decision? 01. comity: civil rights 02. comity: criminal procedure 03. comity: First Amendment 04. comity: habeas corpus 05. comity: military 06. comity: obscenity 07. comity: privacy 08. comity: miscellaneous 09. comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals 10. assessment of costs or damages: as part of a court order 11. Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules 12. judicial review of administrative agency's or administrative official's actions and procedures 13. mootness (cf. standing to sue: live dispute) 14. venue 15. no merits: writ improvidently granted 16. no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit 17. no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals) 18. no merits: adequate non-federal grounds for decision 19. no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law) 20. no merits: miscellaneous 21. standing to sue: adversary parties 22. standing to sue: direct injury 23. standing to sue: legal injury 24. standing to sue: personal injury 25. standing to sue: justiciable question 26. standing to sue: live dispute 27. standing to sue: parens patriae standing 28. standing to sue: statutory standing 29. standing to sue: private or implied cause of action 30. standing to sue: taxpayer's suit 31. standing to sue: miscellaneous 32. judicial administration: jurisdiction or authority of federal district courts or territorial courts 33. judicial administration: jurisdiction or authority of federal courts of appeals 34. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753) 35. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court 36. judicial administration: jurisdiction or authority of the Court of Claims 37. judicial administration: Supreme Court's original jurisdiction 38. judicial administration: review of non-final order 39. judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision) 40. judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question) 41. judicial administration: ancillary or pendent jurisdiction 42. judicial administration: extraordinary relief (e.g., mandamus, injunction) 43. judicial administration: certification (cf. objection to reason for denial of certiorari or appeal) 44. judicial administration: resolution of circuit conflict, or conflict between or among other courts 45. judicial administration: objection to reason for denial of certiorari or appeal 46. judicial administration: collateral estoppel or res judicata 47. judicial administration: interpleader 48. judicial administration: untimely filing 49. judicial administration: Act of State doctrine 50. judicial administration: miscellaneous 51. Supreme Court's certiorari, writ of error, or appeals jurisdiction 52. miscellaneous judicial power, especially diversity jurisdiction Answer:
songer_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. Ramon Mendez HOUSTON, Plaintiff-Appellant, v. Richard H. BRYAN, individually and as the Attorney General, State of Nevada; Larry D. Struve, individually and as the Chief Deputy Attorney General, State of Nevada; Robert Manley, individually and as the Chief Criminal Deputy Atty. General, State of Nevada; Brian Hutchins, individually and as the Deputy Attorney General, State of Nevada, Defendants-Appellees. No. 83-1974. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 16, 1983. Decided Feb. 8, 1984. John Rupp, Covington & Burling, Washington, D.C., for plaintiff-appellant. Donald L. Christenson, Asst. U.S. Atty., Carson City, Nev., for defendants-appellees. Before MERRILL and BOOCHEVER, Circuit Judges, and WYZANSKI , District Judge. Honorable Charles Edward Wyzanski, Jr., Senior United States District Judge, United States District Court for the District of Massachusetts, sitting by designation. MERRILL, Circuit Judge. Appellant was a witness to a homicide committed in Humboldt County, Nevada, by four persons with whom he was then travel-ling. He was taken into custody by the sheriff of that county as a material witness on July 4, 1980. Bail was set by a magistrate and, unable to provide bail, Appellant was, on the magistrate’s order, confined in the county jail. The magistrate acted pursuant to Nevada law, Nev.Rev.Stat. § 178.-494, which provides, in part: Bail for witnesses. If it appears by affidavit that the testimony of a person is material in any criminal proceeding and if it is shown that it may become impracticable to secure his presence by subpena, the magistrate may require him to give bail for his appearance as a witness, in an amount fixed by the magistrate. If the person fails to give bail the magistrate may: 1. Commit him to the custody of a peace officer pending final disposition of the proceeding in which the testimony is needed; 2. Order his release if he has been detained for an unreasonable length of time; and 3. Modify at any time the requirement as to bail. Appellant remained in jail from July 4, 1980 until August 17, 1981, during which period he gave testimony in the trial of one of the accused murderers. On two occasions the deputy district attorney sought to have Appellant’s status as a material witness reviewed and requested an order from the court allowing Appellant’s deposition to be taken so that he could be released. The first motion was denied. The second motion had not been acted upon when Appellant’s release was obtained pursuant to a writ of habeas corpus issued by the United States District Court, 561 F.Supp. 1124, for the District of Nevada. In this action Appellant alleges that his detention was in violation of his civil rights under 42 U.S.C. §§ 1981, 1983, 1985(3), 1986 and 1988. The defendants were composed of two groups: (1) the county defendants, consisting of the county, the district attorney, the deputy district attorney, the sheriff, the deputy sheriff, and Brian Hutchins, a deputy attorney general who had been appointed as special deputy district attorney for prosecution of the murder charges; (2) the state defendants, consisting of the attorney general, the chief deputy attorney general, the chief criminal deputy attorney general, and Hutchins in his capacity as state officer. After commencement of this action it was settled and dismissed with prejudice as to the county defendants. Summary judgment was then rendered in favor of the state defendants, and this appeal from that judgment followed. The complaint charged that the state defendants were responsible for the official conduct of Hutchins and “for supervising, training and overseeing defendant Hutchins in the performance of his office;” also, “for establishing, implementing and enforcing standards, procedures and practices for the exercise of their own official functions and duties and those of their subordinates.” It was alleged that the state defendants (other than Hutchins himself) “failed adequately and properly to carry out and discharge these responsibilities which resulted in and caused the injuries suffered by plaintiff as alleged herein.” Appellant initially argues that the District Court committed reversible error when it failed to grant his request for oral argument on Appellee’s motion for summary judgment. Appellant relies on Rule 16(g) of the Rules of Practice for the United States District Court for the District of Nevada, which provides: All motions may, in the court’s discretion, be considered and decided with or without a hearing, unless a hearing is requested and is required to be held by the decision in Dredge Corporation v. Penny, 338 F.2d 456 (9th Cir.1964). Appellant argues that a District Court may never deny a request for oral argument when made by a party opposing a motion for summary judgment unless the motion is denied. See Dredge Corp. v. Penny, 338 F.2d 456, 462 (9th Cir.1964). It is well settled, however, that the scope of Dredge Corporation —a case in which the local rule precluded a party from requesting oral argument — is not absolute. See Price v. Johnston, 334 U.S. 266, 285-86, 68 S.Ct. 1049, 1059-60, 92 L.Ed. 1356 (1948); Holt v. Pitts, 619 F.2d 558 (6th Cir.1980). In Jasinski v. Showboat Operating Co., 644 F.2d 1277 (9th Cir.1981), this Court explicitly left undecided the question of whether noncompliance with local or federal rules governing summary judgment requires reversal without regard to prejudice. 644 F.2d at 1280. The Court, however, did note that it had previously ruled that nonprejudicial noncompliance with local rules “ ‘is not of itself sufficient reason to reverse.’ ” 644 F.2d at 1280 n. 5, quoting Matter of Telemart Enterprises, Inc. v. Holzman, 524 F.2d 761, 766 (9th Cir.1975), cert. denied, 424 U.S. 969, 96 S.Ct. 1466, 47 L.Ed.2d 736 (1976). We find the reasoning of those cases persuasive and hold that noncompliance with local and federal rules pertaining to a hearing on a motion for summary judgment is not, by itself, reversible error absent a showing of prejudice. While we admonish trial courts to grant oral argument on nonfrivolous summary judgment motions, in the instant case we find no prejudice. There are no arguments on this appeal that the District Court was not apprised of. The District Court correctly concluded that, in order to state a claim for relief against the state defendants for unlawful confinement, Appellant must show, among other things, that the wrongful conduct of those defendants was the proximate cause of his detention. See Arnold v. International Business Machines Corp., 637 F.2d 1350 (9th Cir.1981). In granting summary judgment the Court held that under Hoffman v. Halden, 268 F.2d 280 (9th Cir.1959) (overruled on other issues, Cohen v. Norris, 300 F.2d 24 (9th Cir.1962)), any acts or omissions charged against the state defendants as matter of law could not be said to have been the proximate cause of appellant’s detention. The Hoffman opinion was quoted in part to the following effect: With these cases in mind we would reason as follows: In a Civil Rights conspiracy case, the injury and damage must flow from the overt acts. Where the gravamen of the injury complained of is commitment to an institution by court order, this order of the court, right or wrong, is ordinarily the proximate cause of the injury. Various preliminary steps occur before the order is made. * * * In the usual case, the order of the court would be the proximate cause and the various preliminary steps would be re-móte causes of any injury from imprisonment or restraint under the court order. We are not saying that there could not be situations where a judge was so deceived and hoodwinked by proceedings brought before him that certain of these preliminary acts might not raise themselves to the status of a proximate cause of an injury, notwithstanding the intervening order of the court. There might be situations where the action of the court became in substance, merely a conduit for the wrongful action which preceded. 268 F.2d at 296-97 (footnote omitted). The District Court cited Flores v. Pierce, 617 F.2d 1386 (9th Cir.), cert. denied, 449 U.S. 875, 101 S.Ct. 218, 66 L.Ed.2d 96 (1980), on which Appellant relies, as an example of a case in which preliminary facts might “raise themselves to the status of proximate cause of an injury.” The District Court stated, however: “Nothing of such consequence has been alleged respecting the state defendants.” With reference to those allegations, as we have heretofore quoted them, the court took note of Nevada statutory law having to do with the functions and duties of the officials. The court noted that under Nevada law, the direct responsibility as public prosecutor lies with the district attorney, an elected official of each county. Nev.Rev. Stat. § 252.080. As to the attorney general, the court noted that he was limited to a supervisory role, pursuant to Nev.Rev.Stat. § 228.120, which provides in part: The attorney general may * * * 2. Exercise supervisory powers over all district attorneys of the state in all matters pertaining to the duties of their offices, and from time to time require of them reports as to the condition of public business entrusted to their charge. The District Court determined that the Nevada attorney general has no duty to intervene in prosecutions carried on by the various district attorneys of Nevada. The District Court concluded: The tenor of these statutory provisions is that with respect to the general run of prosecutions in the various counties of Nevada the attorney general of Nevada has no duties and responsibilities. His authority concerning supervision of district attorneys is permissive and discretionary. These statutes cannot be a predicate for imposing civil rights responsibility and liability upon the attorney general and his deputies for actionable misconduct of local officials in relation to criminal prosecutions. We find this construction by the District Judge of the law of his state to be reasonable and tenable and entitled to be received with deference. We conclude that under Nevada law failure of the attorney general and his deputies to prevent local officials from securing a court order that a material witness be retained in custody, or failure by them to secure a court order for the witness’s release, cannot be said to constitute proximate cause of the confinement. JUDGMENT AFFIRMED. . The District Court also took note of the formal procedures to be followed if a district attorney elects to request assistance from the attorney general, pursuant to Nev.Rev.Stat. § 228.130. That section provides, however, that even if such a request is made, action by the attorney general remains discretionary: 3. This section shall not be construed as directing or requiring the attorney general to appear in any proceedings mentioned in subsection 2, but in acting upon any such request the attorney general may exercise his discretion, and his judgment in such matters shall be final. 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_petitioner	116	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. ENERGY RESERVES GROUP, INC. v. KANSAS POWER & LIGHT CO. No. 81-1370. Argued November 9, 1982 Decided January 24, 1983 Blackmun, J., delivered the opinion of the Court, in which BRENNAN, White, Marshall, Stevens, and O’Connor, JJ., joined, and in all but Part II-C of which Burger, C. J., and Powell and Rehnquist, JJ., joined. Powell, J., filed an opinion concurring in part, in which Burger, C. J., and Rehnquist, J., joined, post, p. 421. Gary W. Davis argued the cause for appellant. With him on the briefs were Martin W. Bauer, Clark Mandigo, Edwin W. Parker II, I. Michael Greenberger, and Nancy J. Bregstein. Basil W. Kelsey argued the cause for appellee. With him on the brief were Jerome T. Wolf, Terry W. Schackmann, and David S. Black. Briefs of amici curiae urging affirmance were filed by Brian J. Moline, Special Assistant Attorney General of Kansas, for the State Corporation Commission of the State of Kansas; by William E. Metcalf and Patrick H. Donahue for Kansas Legal Services, Inc.; by Jan Eric Cart wright, Attorney General of Oklahoma, Robert D. Stewart, Jr., and Eddie M. Pope for the Oklahoma Corporation Commission; and by Dennis G. Lyons, Mark J. Spooner, John L. Arrington, Jr., Curtis M. Long, Jay M. Galt, and Harry W. Birdwell for Oklahoma Natural Gas Co. et al. Justice Blackmun delivered the opinion of the Court. This case concerns the regulation by the State of Kansas of the price of natural gas sold at wellhead in the intrastate market. It presents a federal Contract Clause issue and a statutory issue. I On September 27, 1975, The Kansas Power & Light Company (KPL), a public utility and appellee here, entered into two intrastate natural gas supply contracts with Clinton Oil Company, the predecessor-in-interest of appellant Energy Reserves Group, Inc. (ERG). Under the first contract, KPL agrees to purchase gas directly at the wellhead on the Spivey-Grabs Field in Kingman and Harper Counties in southern Kansas. The second contract obligates KPL to purchase from the same field residue gas, that is, gas remaining after certain recovery and processing steps are completed. The original contract price was $1.50 per thousand cubic feet (Mcf) of gas. The contracts continue in effect for the life of the field or for the life of the processing plants associated with the field. A Each contract contains two clauses known generically as indefinite price escalators. The first is a governmental price escalator clause; this provides that if a governmental authority fixes a price for any natural gas that is higher than the price specified in the contract, the contract price shall be increased to that level. The second is a price redetermination clause; this gives ERG the option to have the contract price redetermined no more than once every two years. The new price is then set by averaging the prices being paid under three other gas contracts chosen by the parties. When the price is increased pursuant to either of these clauses, each contract requires KPL to seek from the Kansas Corporation Commission (Commission) approval to pass the increase through to consumers. App. to Juris. Statement 69a. The application for approval is to be submitted within 5 days after a price increase resulting from governmental action, or no fewer than 60 days before a price redetermination increase is to become effective. Ibid. If the Commission refuses to permit the pass-through and KPL elects not to pay the increase, ERG has the option to terminate the agreement on 30 days’ written notice. Each contract states that the purpose of the price escalator clauses is “solely” to compensate ERG for “anticipated” increases in its operating costs and in the value of its gas. Id., at 70a. Each contract also provides: “Neither party shall be held in default for failure to perform hereunder if such failure is due to compliance with,” ibid., any “relevant present and future state and federal laws.” Id., at 69a. In 1977, ERG invoked the price redetermination clause, and the parties agreed on a price of $1.77 per Mcf, effective November 27 of that year. The Commission approved the pass-through of this increase to consumers. KPL paid the new price through 1978. B On December 1, 1978, the Natural Gas Policy Act of 1978 (Act), Pub. L. 95-621, 92 Stat. 3350, 15 U. S. C. §3301 et seq. (1976 ed., Supp. V), designed in principal part to encourage increased natural gas production, became effective. The Act replaced the federal price controls that had been established under the Natural Gas Act, ch. 556, 52 Stat. 821, with price ceilings that rise monthly based on “an inflation adjustment factor” and other considerations. Different ceilings are set for different types of gas. Section 102 of the Act, 15 U. S. C. §3312 (1976 ed., Supp. V), sets a gradually increasing ceiling price for newly discovered or newly produced natural gas. The December 1978 ceiling price under § 102 was $2,078 per million British thermal units. Section 104 sets ceiling prices for “old” interstate gas, that is, gas from already discovered and producing wells. Section 109 sets another ceiling price for categories of natural gas not covered by the other sections of the Act. As of December 1978, the § 109 ceiling price was $1.63 per million Btu’s. In another departure from the 1938 Natural Gas Act, the new Act extended federal price regulation to the intrastate gas market. See S. Conf. Rep. No. 95-1126, pp. 67-68 (1978); H. R. Conf. Rep. No. 95-1752, pp. 67-68 (1978). Section 105 of the Act establishes the rule for applying price ceilings to intrastate gas, described as gas not committed to interstate commerce on November 8, 1978. It provides, in its subsection (b)(1), that the maximum lawful price of such gas “shall be the lower of... the price under the terms of the existing contract, to which such natural gas was subject on [November 9, 1978],... or... the maximum lawful price... computed for such month under section 102 (relating to new natural gas).” The parties agree that § 105(b)(1) governs these contracts. The Act, by § 602(a), also permits a State “to establish or enforce any maximum lawful price for the first sale of natural gas produced in such State which does not exceed the applicable maximum lawful price, if any, under title I of this Act.” C In direct response to the Act, the Kansas Legislature promptly imposed price controls on the intrastate gas market. In May 1979, the Kansas Natural Gas Price Protection Act (Kansas Act), 1979 Kan. Sess. Laws, ch. 171, codified as Kan. Stat. Ann. §§ 55 — 1401 to 55-1415 (Supp. 1982), was enacted. The Kansas Act applies only to natural gas contracts executed before April 20, 1977, § 55-1403, and controls natural gas prices until December 31, 1984, § 55-1411. Section 55-1404 prohibits consideration either of ceiling prices set by federal authorities or of prices paid in Kansas under other contracts in the application of governmental price escalator clauses and price redetermination clauses. Section 55-1405 of the Kansas Act, however, permits indefinite price escalator clauses to operate after March 1, 1979, to raise the price of old intrastate gas up to the federal Act’s § 109 ceiling price. Section §55-1406 exempts new gas and gas from stripper wells. D On November 20, 1978, ERG and other gas suppliers having similar contracts with KPL notified KPL that gas prices would be escalated to the § 102 price on December 1, pursuant to the governmental price escalator clause. KPL sought pass-through approval from the Commission for this increase by an application filed December 7, one day too late to satisfy the 5-day contractual requirement. KPL never elected to pay the higher price. On June 5, 1979, ERG notified KPL that it would terminate the contracts within 30 days because KPL had failed to apply to the Commission for pass-through authority within five days of December 1, 1978, had failed to obtain Commission approval, and had failed to pay the increased price ERG contends was required by the governmental price escalator clause. KPL’s response was that the clause was not triggered by the Act and that the Kansas Act prohibited its activation. ERG then filed an action in the District Court of Harper County, Kan., praying for a declaratory judgment that it had the contractual right to terminate the contracts. On July 24, in light of KPL’s refusal to terminate, ERG requested an increase up to the Act’s § 102 ceiling price under the price redetermination clause. The increase was to be effective in November 1979, the next redetermination date possible under the contracts. KPL conceded that the price redetermination clause permitted such an increase, but contended that § 55-1404 of the Kansas Act had extinguished the utility’s obligation to comply with that clause. ERG then filed an amended complaint, alleging that it was entitled to terminate the contracts because of KPL’s refusal to redetermine the price. KPL counterclaimed for a declaratory judgment that the contracts were still in effect. On the parties’ cross-motions for summary judgment, the state trial court held that the Act’s imposition of price ceilings on intrastate gas did not trigger the governmental escalator clause. It also found that the Kansas Act did not violate the Contract Clause, reasoning that Kansas has a legitimate interest in addressing and controlling the serious economic dislocations that the sudden increase in gas prices would cause, and that the Kansas Act reasonably furthered that interest. App. to Juris. Statement 25a, 42a, 45a. The Supreme Court of Kansas, by unanimous vote, affirmed. 230 Kan. 176, 630 P. 2d 1142 (1981). We noted probable jurisdiction. 456 U. S. 904 (1982). HH t — 1 ERG raises both statutory and constitutional issues in challenging the ruling of the Kansas Supreme Court. The constitutional issue is whether the Kansas Act impairs ERG’s contracts with KPL in violation of the Contract Clause, U. S. Const., Art. I, §10, cl. I. The statutory issue is whether the federal enactment of §105 triggered the governmental price escalator clause. As to the latter issue, if § 105’s enactment did have that effect, ERG was entitled to a price increase on December 1,1978. If not, ERG could rely only on the price redetermination clause for any increase. That clause could not be exercised until November 1979. The statutory issue thus controls the timing of any increase. The constitutional issue, on the other hand, affects the price that ERG may claim under either clause. If ERG prevails, the price may be escalated to the § 102 ceiling; if ERG does not prevail, the price may be escalated only to the § 109 ceiling. We consider the Contract Clause issue first. A Although the language of the Contract Clause, is facially absolute, its prohibition must be accommodated to the inherent police power of the State “to safeguard the vital interests of its people.” Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398, 434 (1934). In Blaisdell, the Court approved a Minnesota mortgage moratorium statute, even though the statute retroactively impaired contract rights. The Court balanced the language of the Contract Clause against the State’s interest in exercising its police power, and concluded that the statute was justified. The Court in two recent cases has addressed Contract Clause claims. In United States Trust Co. v. New Jersey, 431 U. S. 1 (1977), the Court held that New Jersey could not retroactively alter a statutory bond covenant relied upon by bond purchasers. One year later, in Allied Structural Steel Co. v. Spannaus, 438 U. S. 234 (1978), the Court invalidated a Minnesota statute that required an employer who closed its office in the State to pay a “pension funding charge” if its pension fund at the time was insufficient to provide full benefits for all employees with at least 10 years’ seniority. Although the legal issues and facts in these two cases differ in certain ways, they clarify the appropriate Contract Clause standard. The threshold inquiry is “whether the state law has, in fact, operated as a substantial impairment of a contractual relationship.” Allied Structural Steel Co., 438 U. S., at 244. See United States Trust Co., 431 U. S., at 17. The severity of the impairment is said to increase the level of scrutiny to which the legislation will be subjected. Allied Structural Steel Co., 438 U. S., at 245. Total destruction of contractual expectations is not necessary for a finding of substantial impairment. United States Trust Co., 431 U. S., at 26-27. On the other hand, state regulation that restricts a party to gains it reasonably expected from the contract does not necessarily constitute a substantial impairment. Id., at 31, citing El Paso v. Simmons, 379 U. S. 497, 515 (1965). In determining the extent of the impairment, we are to consider whether the industry the complaining party has entered has been regulated in the past. Allied Structural Steel Co., 438 U. S., at 242, n. 13, citing Veix v. Sixth Ward Bldg. & Loan Assn., 310 U. S. 32, 38 (1940) (“When he purchased into an enterprise already regulated in the particular to which he now objects, he purchased subject to further legislation upon the same topic”). The Court, long ago observed: “One whose rights, such as they are, are subject to state restriction, cannot remove them from the power of the State by making a contract about them.” Hudson Water Co. v. McCarter, 209 U. S. 349, 357 (1908). If the state regulation constitutes a substantial impairment, the State, in justification, must have a significant and legitimate public purpose behind the regulation, United States Trust Co., 431 U. S., at 22, such as the remedying of a broad and general social or economic problem. Allied Structural Steel Co., 438 U. S., at 247, 249. Furthermore, since Blaisdell, the Court has indicated that the public purpose need not be addressed to an emergency or temporary situation. United States Trust Co., 431 U. S., at 22, n. 19; Veix v. Sixth Ward Bldg. & Loan Assn., 310 U. S., at 39-40. One legitimate state interest is the elimination of unforeseen windfall profits. United States Trust Co., 431 U. S., at 31, n. 30. The requirement of a legitimate public purpose guarantees that the State is exercising its police power, rather than providing a benefit to special interests. Once a legitimate public purpose has been identified, the next inquiry is whether the adjustment of “the rights and responsibilities of contracting parties [is based] upon reasonable conditions and [is] of a character appropriate to the public purpose justifying [the legislation’s] adoption.” United States Trust Co., 431 U. S., at 22. Unless the State itself is a contracting party, see id., at 23, “[a]s is customary in reviewing economic and social regulation,... courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure.” Id., at 22-23. B The threshold determination is whether the Kansas Act has impaired substantially ERG’s contractual rights. Significant here is the fact that the parties are operating in a heavily regulated industry. See Veix v. Sixth Ward Bldg. & Loan Assn., 310 U. S., at 38. State authority to regulate natural gas prices is well established. See Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U. S. 179 (1950). At the time of the execution of these contracts, Kansas did not regulate natural gas prices specifically, but its supervision of the industry was extensive and intrusive. Moreover, under the authority of §5(a) of the 1938 Natural Gas Act, the Federal Power Commission (FPC) set “just and reasonable” rates for prices of gas both at the wellhead and in pipelines. Although prices in the intrastate market have diverged somewhat from those in the interstate market due to the recent shortage of natural gas, the regulation of interstate prices effectively limits intrastate price increases. It is in this context that the indefinite escalator clauses at issue here are to be viewed. In drafting each of the contracts, the parties included a statement of intent, which made clear that the escalator clause was designed to guarantee price increases consistent with anticipated increases in the value of ERG’s gas. App. to Juris. Statement 70a. While it is not entirely inconceivable that ERG in September 1975 anticipated the deregulation of gas prices introduced by the Act in 1978, we think this is highly unlikely, and we read the statement of intent to refer to nothing more than changes in value resulting from changes in the federal regulator’s “just and reasonable” rates. In exchange for these anticipated increases, KPL agreed to accept gas from the Spivey-Grabs field for the lifetime of that field. Thus, at the time of the execution of the contracts, ERG did not expect to receive deregulated prices. The very existence of the governmental price escalator clause and the price redetermination clause indicates that the contracts were structured against the background of regulated gas prices. If deregulation had not occurred, the contracts undoubtedly would have called for a much smaller price increase than that provided by the Kansas Act’s adoption of the § 109 ceiling. Moreover, the contracts expressly recognize the existence of extensive regulation by providing that any contractual terms are subject to relevant present and future state and federal law. This latter provision could be interpreted to incorporate all future state price regulation, and thus dispose of the Contract Clause claim. Regardless of whether this interpretation is correct, the provision does suggest that ERG knew its contractual rights were subject to alteration by state price regulation. Price regulation existed and was foreseeable as the type of law that would alter contract obligations. Reading the Contract Clause as ERG does would mean that indefinite price escalator clauses could exempt ERG from any regulatory limitation of prices whatsoever. Such a result cannot be permitted. Hudson Water Co. v. McCarter, 209 U. S., at 357. In short, ERG’s reasonable expectations have not been impaired by the Kansas Act. See El Paso v. Simmons, 379 U. S., at 515. C To the extent, if any, the Kansas Act impairs ERG’s contractual interests, the Kansas Act rests on, and is prompted by, significant and legitimate state interests. Kansas has exercised its police power to protect consumers from the escalation of natural gas prices caused by deregulation. The State reasonably could find that higher gas prices have caused and will cause hardship among those who use gas heat but must exist on limited fixed incomes. The State also has a legitimate interest in correcting the imbalance between the interstate and intrastate markets by permitting intrastate prices to rise only to the § 109 level. By slowly deregulating interstate prices, the Act took the cap off intrastate prices as well. The Kansas Act attempts to coordinate the intrastate and interstate prices by supplementing the federal Act’s regulation of intrastate gas. Congress specifically contemplated such action: “The conference agreement provides that nothing in this Act shall affect the authority of any State to establish or enforce any maximum lawful price for sales of gas in intrastate commerce which does not exceed the applicable maximum lawful price, if any, under Title I of this Act. This authority extends to the operation of any indefinite price escalator clause.” S. Conf. Rep. No. 95-1126, pp. 124-125 (1978); H. R. Conf. Rep. No. 95-1752, pp. 124-125 (1978). There can be little doubt about the legitimate public purpose behind the Act. Nor are the means chosen to implement these purposes deficient, particularly in light of the deference to which the Kansas Legislature’s judgment is entitled. On the surface, the State’s Act seems limited to altering indefinite price escalation clauses of intrastate contracts that affect less than 10% of the natural gas consumed in Kansas. Tr. of Oral Arg. 16. To analyze properly the Kansas Act’s effect, however, we must consider the entire state and federal gas price regulatory structure. Only natural gas subject to indefinite price escalator clauses poses the danger of rapidly increasing prices in Kansas. Gas under contracts with fixed escalator clauses and interstate gas purchased by the utilities subject to § 109 would not escalate as would intrastate gas subject to indefinite price escalator clauses. The Kansas Act simply brings the latter category into line with old interstate gas prices by limiting the operation of the indefinite price escalator clauses. The Kansas Act also rationally exempts the types of new gas the production of which Congress sought to encourage through the higher § 102 prices. Finally, the Act is a temporary measure that expires when federal price regulation of certain categories of gas terminates. The Kansas statute completes the regulation of the gas market by imposing gradual escalation mechanisms on the intrastate market, consistent with the new national policy toward gas regulation. We thus resolve the constitutional issue against ERG. rH HH I — I We turn to ERG’s statutory contention that the Kansas courts misconstrued § 105 as fixing the contract price at the November 9,1978, level. While, on this point, the opinion of the Kansas Supreme Court is not entirely clear to us, it does not appear so to construe § 105. And KPL, in fact, does not contend that it did. Instead, the court recognized that § 105 permits the indefinite price escalator clauses to continue to operate to raise the contract price up to the lawful ceiling. See Pennzoil Co. v. FERC, 645 F. 2d 360, 379 (CA5 1981) (“[T]he NGPA does not preclude escalation of area rate clauses [a type of indefinite price escalators] to NGPA prices”), cert. denied, 454 U. S. 1142 (1982). The actual point of dispute is whether the governmental price escalator clauses in these contracts were triggered by the enactment of §105. The Kansas Supreme Court acknowledged that the Act could trigger a governmental price escalator clause. 230 Kan., 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_petitioner	101	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. BILSKI et al. v. KAPPOS, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, PATENT AND TRADEMARK OFFICE No. 08-964. Argued November 9, 2009 Decided June 28, 2010 Kennedy, J., delivered the opinion of the Court, except for Parts II-B-2 and II-C-2. Roberts, C. J., and Thomas and Alito, JJ., joined the opinion in full, and Scalia, J., joined except for Parts II-B-2 and II-C-2. Stevens, J., filed an opinion concurring in the judgment, in which Ginsburg, Breyer, and Sotomayor, JJ., joined, post, p. 613. Breyer, J., filed an opinion concurring in the judgment, in which Scalia, J., joined as to Part II, post, p. 657. J Michael Jakes argued the cause for petitioners. With him on the briefs were Erika H. Arner, Ronald E. Myrick, and Denise W. DeFranco. Deputy Solicitor General Stewart argued the cause for respondent. With him on the brief were Solicitor General Kagan, Assistant Attorney General West, Ginger D. Anders, Scott R. McIntosh, Cameron F. Kerry, Raymond T. Chen, Thomas W. Krause, and Scott C. Weidenfeller. Briefs of amici curiae urging reversal were filed for the American Intellectual Property Law Association by William K. West, Jr.; for the Association Internationale Pour la Protection de la Propriété Intellectuelle et al. by R. Mark Halligan; for AwakenIP, LLC, by Joel H. Thornton and Jeffrey R. Kuester; for Borland Software Corp. by Scott S. Kokka; for the Boston Patent Law Association by Joel R. Leeman, Steven J. Henry, and Han N. Barzilay; for Caris Diagnostics, Inc., by Gideon A. Schor; for the Eagle Forum Education and Legal Defense Fund by Andrew L. Schlafly; for Entrepreneurial Software Companies by Robert Greene Sterne, Michael D. Spécht, and Michelle K. Holoubek; for the Fédération Internationale des Conseils en Propriété Industrielle by Maxim H. Waldbaum; for the Franklin Pierce Law Center by Ann M. McCrackin and Thomas G. Field, Jr.; for the Georgia Biomedical Partnership, Inc., by William H. Kitchens; for the Intellectual Property Section of the Nevada State Bar by Robert C. Ryan, Charles Dominick Lombino, and Bryce K. Earl; for Regulatory Datacorp, Inc., et al. by John F. Duffy, John A. Squires, Walter G. Hanchuk, and Charles M. Fish; for the University of South Florida by Jeff Lloyd; and for Raymond C. Meiers by Gregg W. Emch. Briefs of amici curiae urging affirmance were filed for the American Bar Association by Carolyn B. Lamm and Thomas C. Goldstein; for Bank of America Corp. et al. by Seth P. Waxman, Randolph D. Moss, Catherine M. A. Carroll, and William F. Lee; for Bloomberg L. P. by Kelsey I. Nix; for the Business Software Alliance by Andrew J. Pincus and Dan Himmelfarb; for the Center for Advanced Study and Research in Intellectual Property of the University of Washington School of Law et al. by Richard H. Stern; for the Computer & Communications Industry Association by Glenn B. Manishin; for Eleven Law Professors et al. by Joshua D. Sarnoff, pro se, and Barbara A. Jones; for Entrepreneurial and Consumer Advocates by Jason M. Schultz and Pamela Samuelson; for the Free Software Foundation by Jerry Cohen; for Internet Retailers by Peter J. Brann; for Microsoft Corp. et al. by Mark A. Perry, Matthew D. McGill, Horacio E. Gutiérrez, T. Andrew Culbert, Jack E. Haken, Kevin C. Ecker, and Todd A. Holmbo; for Red Hat, Inc., by Robert H. Tiller; for the Software Freedom Law Center by Eben Moglen; for the Software & Information Industry Association by Scott E. Bain; for the William Mitchell College of Law, Intellectual Property Institute, by R. Carl Moy; for Lee A. Hollaar et al. by David M. Bennion; for Mark Landesmann by Mr. Landesmann, pro se; and for Timothy F. McDonough by William M. Lamoreaux. Briefs of amici curiae were filed for Accenture et al. by Meredith Martin Addy, Charles M. McMahon, and Steven J. Shapiro; for Adamas Pharmaceuticals, Inc., et al. by Karen I. Boyd; for the American Insurance Association et al. by James R. Myers and Jesse J. Jenner; for the American Medical Association et al. by Katherine J. Strandburg, Jonathan E. Singer, and John A. Dragseth; for the Austin Intellectual Property Law Association by Jennifer C. Kuhn; for the Biotechnology Industry Organization et al. by E. Anthony Figg, Nancy J. Linde, Minaksi Bhatt, Martha Cassidy, Howard W. Bremer, and P. Martin Simpson, Jr.; for the Conejo Valley Bar Association by Steven C. Sereboff, M. Kola Sarvaiya, Mark A. Goldstein, and Michael D. Harris; for Dolby Laboratories, Inc., et al. by John L. Cooper, Nan E. Joesten, and Deepak Gupta; for Double Rock Corp. et al. by Charles R. Macedo, Anthony F. Lo Cicero, and Norajean McCaf frey; for the Federal Circuit Bar Association by James F. McKeown; for the Foundation for a Free Information Infrastructure et al. by Mlonn E. Levy; for the Houston Intellectual Property Law Association by Howard L. Speight; for the Intellectual Property Law Association of Chicago by Edward D. Manzo, Patrick G. Burns, Donald W. Rupert, and John R. Crossan; for the Intellectual Property Owners Association by George L. Graff, Eric E. Bensen, and Steven W. Miller; for International Business Machines Corp. by Catherine E. Stetson, Jessica L. Ellsworth, and Kenneth R. Corsello; for Knowledge Ecology International by Michael H. Davis; for Legal OnRamp by Catriona M. Collins; for Medtronic, Inc., by Lawrence M. Sung and Jeff E. Schwartz; for Monogram Biosciences, Inc., et al. by Narinder S. Banait, Tyler Baker, Daniel R. Brownstone, Stuart P. Meyer, and Robert R. Sachs; for Novartis Corp. by Jeffrey A. Lam-ken; for the Pharmaceutical Research and Manufacturers of America by Harry J. Roper, Paul M. Smith, and Marc A. Goldman; for Prometheus Laboratories Inc. by Richard P. Bress, J. Scott Ballenger, and Alexander Maltas; for the San Diego Intellectual Property Law Association by Robert C. Laurenson and Douglas E. Olson; for Telecommunication Systems, Inc., by Robert P. Greenspoon and William W. Flachsbart; for TELES AG by Thomas S. Biemer and Philip J. Foret; for Time Systems, Inc., by Stuart P. Meyer and Tyler A. Baker; for the Washington State Patent Law Association by Peter J. Knudsen and Michael J. Swope; for Yahoo! Inc. by Christopher J. Wright and Timothy J. Simeone; for Dr. Ananda Chakrabarty by F. Scott Kieff and Richard A. Epstein; for Kevin Emerson Collins by Mr. Collins, pro se; for Peter S. Menell et al. by Mr. Menell, pro se; for Gary W. Odom et al. by Jonathan E. Mansfield; for Robert R. Sachs et al. by Mr. Sachs and Daniel R. Brownstone, both pro se; for John P. Sutton by Mr. Sutton, pro se; and for 20 Law and Business Professors by Mark A. Lemley, Ted M. Sichelman, and Michael V. Risch, all pro se. Justice Kennedy delivered the opinion of the Court, except as to Parts II-B-2 and II-C-2. The question in this case turns on whether a patent can be issued for a claimed invention designed for the business world. The patent application claims a procedure for instructing buyers and sellers how to protect against the risk of price fluctuations in a discrete section of the economy. Three arguments are advanced for the proposition that the claimed invention is outside the scope of patent law: (1) It is not tied to a machine and does not transform an article; (2) it involves a method of conducting business; and (3) it is merely an abstract idea. The Court of Appeals ruled that the first mentioned of these, the so-called machine-or-transformation test, was the sole test to be used for determining the patent-ability of a “process” under the Patent Act, 35 U. S. C. § 101. I Petitioners’ application seeks patent protection for a claimed invention that explains how buyers and sellers of commodities in the energy market can protect, or hedge, against the risk of price changes. The key claims are claims 1 and 4. Claim 1 describes a series of steps instructing how to hedge risk. Claim 4 puts the concept articulated in claim 1 into a simple mathematical formula. Claim 1 consists of the following steps: “(a) initiating a series of transactions between said commodity provider and consumers of said commodity wherein said consumers purchase said commodity at a fixed rate based upon historical averages, said fixed rate corresponding to a risk position of said consumers; “(b) identifying market participants for said commodity having a counter-risk position to said consumers; and “(c) initiating a series of transactions between said commodity provider and said market participants at a second fixed rate such that said series of market participant transactions balances the risk position of said series of consumer transactions.” App. 19-20. The remaining claims explain how claims 1 and 4 can be applied to allow energy suppliers and consumers to minimize the risks resulting from fluctuations in market demand for energy. For example, claim 2 claims “[t]he method of claim 1 wherein said commodity is energy and said market participants are transmission distributors.” Id., at 20. Some of these claims also suggest familiar statistical approaches to determine the inputs to use in claim 4’s equation. For example, claim 7 advises using well-known random analysis techniques to determine how much a seller will gain “from each transaction under each historical weather pattern.” Id., at 21. The patent examiner rejected petitioners’ application, explaining that it “ ‘is not implemented on a specific apparatus and merely manipulates [an] abstract idea and solves a purely mathematical problem without any limitation to a practical application, therefore, the invention is not directed to the technological arts.’” App. to Pet. for Cert. 148a. The Board of Patent Appeals and Interferences affirmed, concluding that the application involved only mental steps that do not transform physical matter and was directed to an abstract idea. Id., at 181a-186a. The United States Court of Appeals for the Federal Circuit heard the case en banc and affirmed. The case produced five different opinions. Students of patent law would be well advised to study these scholarly opinions. Chief Judge Michel wrote the opinion of the court. The court rejected its prior test for determining whether a claimed invention was a patentable “process” under § 101— whether it produces a “'useful, concrete and tangible result’” — as articulated in State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F. 3d 1368, 1373 (1998), and AT&T Corp. v. Excel Communications, Inc., 172 F. 3d 1352, 1357 (1999). See In re Bilski, 545 F. 3d 943, 959-960, and n. 19 (CA Fed. 2008) (en banc). The court held that “[a] claimed process is surely patent-eligible under § 101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.” Id., at 954. The court concluded this “machine-or-transformation test” is “the sole test governing § 101 analyses,” id., at 955, and thus the “test for determining patent eligibility of a process under §101,” id., at 956. Applying the machine-or-transformation test, the court held that petitioners’ application was not patent eligible. Id., at 963-966. Judge Dyk wrote a separate concurring opinion, providing historical support for the court’s approach. Id., at 966-976. Three judges wrote dissenting opinions. Judge Mayer argued that petitioners’ application was “not eligible for patent protection because it is directed to a method of conducting business.” Id., at 998. He urged the adoption of a “technological standard for patentability.” Id., at 1010. Judge Rader would have found petitioners’ claims were an unpatentable abstract idea. Id., at 1011. Only Judge Newman disagreed with the court’s conclusion that petitioners’ application was outside of the reach of § 101. She did not say that the application should have been granted but only that the issue should be remanded for farther proceedings to determine whether the application qualified as patentable under other provisions. Id., at 997. This Court granted certiorari. 556 U. S. 1268 (2009). II A Section 101 defines the subject matter that may be patented under the Patent Act: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” Section 101 thus specifies four independent categories of inventions or discoveries that are eligible for protection: processes, machines, manufactures, and compositions of matter. “In choosing such expansive terms... modified by the comprehensive ‘any,’ Congress plainly contemplated that the patent laws would be given wide scope.” Diamond v. Chakrabarty, 447 U. S. 303, 308 (1980). Congress took this permissive approach to patent eligibility to ensure that “ ‘ingenuity should receive a liberal encouragement.’” Id., at 308-309 (quoting 5 Writings of Thomas Jefferson 75-76 (H. Washington ed. 1871)). The Court’s precedents provide three specific exceptions to § 101’s broad patent-eligibility principles: “laws of nature, physical phenomena, and abstract ideas.” Chakrabarty, supra, at 309. While these exceptions are not required by the statutory text, they are consistent with the notion that a patentable process must be “new and useful.” And, in any case, these exceptions have defined the reach of the statute as a matter of statutory stare *decisis going back 150 years. See Le Roy v. Tatham, 14 How. 156, 174-175 (1853). The concepts covered by these exceptions are “part of the storehouse of knowledge of all men... free to all men and reserved exclusively to none.” Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U. S. 127, 130 (1948). The § 101 patent-eligibility inquiry is only a threshold test. Even if an invention qualifies as a process, machine, manufacture, or composition of matter, in order to receive the Patent Act’s protection the claimed invention must also satisfy “the conditions and requirements of this title.” §101. Those requirements include that the invention be novel, see §102, nonobvious, see § 103, and fully and particularly described, see § 112. The present case involves an invention that is claimed to be a “process” under §101. Section 100(b) defines “process” as: “process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.” The Court first considers two proposed categorical limitations on “process” patents under § 101 that would, if adopted, bar petitioners’ application in the present case: the machine- or-transformation test and the categorical exclusion of business method patents. B 1 Under the Court of Appeals’ formulation, an invention is a “process” only if: “(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.” 545 F. 3d, at 954. This Court has “more than once cautioned that courts'should not read into the patent laws limitations and conditions which the legislature has not expressed.’ ” Diamond v. Diehr, 450 U. S. 175, 182 (1981) (quoting Chakrabarty, supra, at 308; some internal quotation marks omitted). In patent law, as in all statutory-construction, “[ujnless otherwise defined, ‘words will be interpreted as taking their ordinary, contemporary common meaning.’” Diehr, supra, at 182 (quoting Perrin v. United States, 444 U. S. 37, 42 (1979)). The Court has read the § 101 term “manufacture” in accordance with dictionary definitions, see Chakrabarty, supra, at 308 (citing American Fruit Growers, Inc. v. Brogdex Co., 283 U. S. 1, 11 (1931)), and approved a construction of the term “composition of matter” consistent with common usage, see Chakrabarty, supra, at 308 (citing Shell Development Co. v. Watson, 149 F. Supp. 279, 280 (DC 1957)). Any suggestion in this Court’s case law that the Patent Act’s terms deviate from their ordinary meaning has only been an explanation for the exceptions for laws of nature, physical phenomena, and abstract ideas. See Parker v. Flook, 437 U. S. 584, 588-589 (1978). This Court has not indicated that the existence of these well-established exceptions gives the Judiciary carte blanche to impose other limitations that are inconsistent with the text and the statute’s purpose and design. Concerns about attempts to call any form of human activity a “process” can be met by making sure the claim meets the requirements of § 101. Adopting the machine-or-transformation test as the sole test for what constitutes a “process” (as opposed to just an important and useful clue) violates these statutory interpretation principles. Section 100(b) provides that “[t]he term ‘process’ means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.” The Court is unaware of any “ ‘ordinary, contemporary, common meaning,’” Diehr, supra, at 182, of the definitional terms “process, art or method” that would require these terms to be tied to a machine or to transform an article. Respondent urges the Court to look to the other patentable categories in § 101 — machines, manufactures, and compositions of matter — to confine the meaning of “process” to a machine or transformation, under the doctrine of noscitur a sociis. - Under this canon, “an ambiguous term may be given more precise content by the neighboring words with which it is associated.” United States v. Stevens, 559 U. S. 460, 474 (2010) (internal quotation marks omitted). This canon is inapplicable here, for § 100(b) already explicitly defines the term “process.” See Burgess v. United States, 553 U. S. 124, 130 (2008) (“When a statute includes an explicit definition, we must follow that definition” (internal quotation marks omitted)). The Court of Appeals incorrectly concluded that this Court has endorsed the'machine-or-transformation test as the exclusive test. It is true that Cochrane v. Deener, 94 U. S. 780, 788 (1877), explained that a “process” is “an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing.” More recent cases, however, have rejected the broad implications of this dictum; and, in all events, later authority shows that it was not intended to be an exhaustive or exclusive test. Gottschalk v. Benson, 409 U. S. 63, 70 (1972), noted that “[transformation and reduction of an article 'to a different state or thing’ is the clue to the patentability of a process claim that does not include particular machines.” At the same time, it explicitly declined to “hold that no process patent could ever qualify if it did not meet [machine-or-transformation] requirements.” Id., at 71. Flook took a similar approach, “assum[ing] that a valid process patent may issue even if it does not meet [the machine-or-transformation test].” 437 U. S., at 588, n. 9. This Court’s precedents establish that the machine-or-transformation test is a useful and important clue, an investigative tool, for determining whether some claimed inventions are processes under § 101. The machine-or-transformation test is not the sole test for deciding whether an invention is a patent-eligible “process.” 2 It is true that patents for inventions that did not satisfy the machine-or-transformation test were rarely granted in earlier eras, especially in the Industrial Age, as explained by Judge Dyk’s thoughtful historical review. See 545 F. 3d, at 966-976 (concurring opinion). But times change. Technology and other innovations progress in unexpected ways. For example, it was once forcefully argued that until recent times, “well-established principles of patent law probably would have prevented the issuance of a valid patent on almost any conceivable computer program.” Diehr, 450 U. S., at 195 (Stevens, J., dissenting). But this fact does not mean that unforeseen innovations such as computer programs are always unpatentable. See id., at 192-193 (majority opinion) (holding a procedure for molding rubber that included a computer program is within patentable subject matter). Section 101 is a “dynamic provision designed to encompass new and unforeseen inventions.” J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U. S. 124, 135 (2001). A categorical rule denying patent protection for “inventions in areas not contemplated by Congress... would frustrate the purposes of the patent law.” Chakrabarty, 447 U. S., at 315. The machine-or-transformation test may well provide a sufficient basis for evaluating processes similar to those in the Industrial Age — for example, inventions grounded in a physical or other tangible form. But there are reasons to doubt whether the test should be the sole criterion for determining the patentability of inventions in the Information Age. As numerous amicus briefs argue, the machine-or-transformation test would create uncertainty as to the patentability of software 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	I	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. BRAUNFELD et al. v. BROWN, COMMISSIONER OF POLICE OF PHILADELPHIA, et al. No. 67. Argued December 8, 1960. Decided May 29, 1961. Theodore R. Mann argued the cause for appellants. With him on the brief were Marvin Garfinkel and Stephen B. Narin. David Berger argued the cause and filed a brief for appellees. Arthur Littleton, Benjamin M. Quigg, Jr. and Russell C. Dilks filed a brief for the Pennsylvania Retailers’ Association, intervening defendant-appellee. Briefs of amici curiae, urging affirmance, were filed by S. G. Lippman for the Retail Clerks International Association, AFL-CIO, and George C. Warner for the National Retail Merchants Association. Leo Pfeffer, Lewis H. Weinstein, Shad Polier and Samuel Lawrence Brennglass filed a brief for the Synagogue Council of America et al., as amici curiae, urging reversal. Mr. Chief Justice Warren announced the judgment of the Court and an opinion in which Mr. Justice Black, Mr. Justice Clark, and Mr. Justice Whittaker concur. This case concerns the constitutional validity of the application to appellants of the Pennsylvania criminal statute, enacted in 1959, which proscribes the Sunday retail sale of certain enumerated commodities. Among the questions presented are whether the statute is a law respecting an establishment of religion and whether the statute violates equal protection. Since both of these questions, in reference to this very statute, have already been answered in the negative, Two Guys from Harrison-Allentown, Inc., v. McGinley, ante, p. 582, and since appellants present nothing new regarding them, they need not be considered here. Thus, the only question for consideration is whether the statute interferes with the free exercise of appellants’ religion. Appellants are merchants in Philadelphia who engage in the retail sale of clothing and home furnishings within the proscription of the statute in issue. Each of the appellants is a member of the Orthodox Jewish faith, which requires the^closing of their places of business and a total abstention from all manner of work from nightfall each Friday until nightfall each Saturday. They instituted a suit in the court below seeking a permanent injunction against the enforcement of the 1959 statute. Their complaint, as amended, alleged that appellants had previously kept their places of business open on Sunday; that each of appellants had done a substantial amount of business on Sunday, compensating somewhat for their closing on Saturday; that Sunday closing will result in impairing the ability of all appellants to earn a livelihood and will render appellant Braunfeld unable to continue in his business, thereby losing his capital investment; that the statute is unconstitutional for the reasons stated above. A three-judge court was properly convened and it dismissed the complaint on the authority of the Two Guys From Harrison case. 184 F. Supp. 352. On appeal brought under 28 U. S. C. § 1253, we noted probable jurisdiction, 362 U. S. 987. Appellants contend that the enforcement against them of the Pennsylvania statute will prohibit the free exercise of their religion because, due to the statute’s compulsion to close on Sunday, appellants will suffer substantial economic loss, to the benefit of their non-Sabbatarian competitors, if appellants also continue their Sabbath observance by closing their businesses on Saturday; that this result will either compel appellants to give up their Sabbath observance, a basic tenet of the Orthodox Jewish faith, or will put appellants at a serious economic disadvantage if they continue to adhere to their Sabbath. Appellants also assert that the statute will operate so as to hinder the Orthodox Jewish faith in gaining new adherents. And the corollary to these arguments is that if the free exercise of appellants’ religion is impeded, that religion is being subjected to discriminatory treatment by the State. In McGowan v. Maryland, ante, at pp. 437-440, we noted the significance that this Court has attributed to the development of religious freedom in Virginia in determining the scope of the First Amendment’s protection. We observed that when Virginia passed its Declaration of Rights in 1776, providing that “all men are equally entitled to the free exercise of religion,” Virginia repealed its laws which in any way penalized “maintaining any opinions in matters of religion, forbearing to repair to church, or the exercising any mode of worship whatsoever.” But Virginia retained its laws prohibiting Sunday labor. We also took cognizance, in McGowan, of the evolution of Sunday Closing Laws from wholly religious sanctions to legislation concerned with the establishment of a day of community tranquillity, respite and recreation, a day when the atmosphere is one of calm and relaxation rather than one of commercialism, as it is during the other six days of the week. We reviewed the still growing state preoccupation with improving the health, safety, morals and general well-being of our citizens. Concededly, appellants and all other persons who wish to work on Sunday will be burdened economically by the State’s day of rest mandate; and appellants point out that their religion requires them to refrain from work on Saturday as well. Our inquiry then is whether, in these circumstances, the First and Fourteenth Amendments forbid application of the Sunday Closing Law to appellants. Certain aspects of religious exercise cannot, in any way, be restricted or burdened by either federal or state legislation. Compulsion by law of the acceptance of any creed or the practice of any form of worship is strictly forbidden. The freedom to hold religious beliefs and opinions is absolute. Cantwell v. Connecticut, 310 U. S. 296, 303; Reynolds v. United States, 98 U. S. 145, 166. Thus, in West Virginia State Board of Education v. Barnette, 319 U. S. 624, this Court held that state action compelling school children to salute the flag, on pain of expulsion from public school, was contrary to the First and Fourteenth Amendments when applied to those students whose religious beliefs forbade saluting a flag. But this is not the case at bar; the statute before us does not make criminal the holding of any religious belief or opinion, nor does it force anyone to embrace any religious belief dr to say or believe anything in conflict with his religious tenets. However, the freedom to act, even when the action is in accord with one’s religious convictions, is not totally free from legislative restrictions. Cantwell v. Connecticut, supra, at pp. 303-304, 306. As pointed out in Reynolds v. United States, supra, at p. 164, legislative power over mere opinion is forbidden but it may reach people’s actions when they are found to be in violation of important social duties or subversive of good order, even when the actions are demanded by one’s religion. This was articulated by Thomas Jefferson when he said: “Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church arid State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.” (Emphasis added.) 8 Works of Thomas Jefferson 113. And, in the Barnette case, the Court was careful to point out that “The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin. ... It is ... to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind." 319 U. S., at 630, 633. (Emphasis added.) Thus, in Reynolds v. United States, this Court upheld the polygamy conviction of a member of the Mormon faith despite the fact that an accepted doctrine of his church then imposed upon its male members the duty to practice polygamy. And, in Prince v. Massachusetts, 321 U. S. 158, this Court upheld a statute making it a crime for a girl under eighteen years of age to sell any newspapers, periodicals or merchandise in public places despite the fact that a child of the Jehovah’s Witnesses faith believed that it was her religious duty to perform this work. It is to be noted that, in the two cases just mentioned, the religious practices themselves conflicted with the public vinterest. In such cases, to make accommodation between the religious action and an exercise of state authority is a particularly delicate task, id., at 165, because resolution in favor of the State results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution. But, again, this is not the case before us because the statute at bar does not make unlawful any religious practices of appellants; the Sunday law simply regulates a secular activity and, as applied to appellants, operates so as to make the practice of their religious beliefs more expensive. Furthermore, the law’s effect does not inconvenience all members of the Orthodox Jewish faith but only those who believe it necessary to work on Sunday. And even these are not faced with as serious a choice as forsaking their religious practices or subjecting themselves to criminal prosecution. Fully recognizing that the alternatives open to appellants and others similarly situated — retaining their present occupations and incurring economic disadvantage or engaging in some other commercial activity which does not call, for either Saturday or Sunday labor — may well result in some financial sacrifice in order to observe their religious beliefs, still the option is wholly different than when the legislation attempts to make a religious practice itself unlawful. To strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i. e., legislation which does not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature. Statutes which tax income and limit the amount which may be deducted for religious contributions impose an indirect economic burden on the observance of the religion of the citizen whose religion requires him to donate a greater amount to his church; statutes which require the courts to be closed on Saturday and Sunday impose a similar indirect burden on the observance of the religion of the trial lawyer whose religion requires him to rest on a weekday. The list of legislation of this nature is nearly limitless. Needless to say, when entering the area of religious freedom, we must be fully cognizant of the particular protection that the Constitution has accorded it. Abhorrence of religious persecution and intolerance is a basic part of our heritage. But we are a cosmopolitan nation made up of people of almost every conceivable religious preference. These denominations number almost three hundred. Year Book of American Churches for 1958, 257 et seg. Consequently, it cannot be expected, much less required, that legislators enact no law regulating conduct that may in some way result in an economic disadvantage to some religious sects and not to others because of the special practices of the various religions. We do not believe that such an effect is an absolute test for determining whether the legislation violates the freedom of religion protected by the First Amendment. Of course, to hold unassailable all legislation regulating conduct which imposes solely an indirect burden on the observance of religion would be a gross oversimplification. If the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect. But if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State’s secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden. See Cantwell v. Connecticut, supra, at pp. 304-305. As we pointed out in McGowan v. Maryland, supra, at pp. 444-445, we cannot find a State without power to provide a weekly respite from all labor and, at the same time, to set one day of the week apart from the others as a day of rest, repose, recreation and tranquillity- — a day when the hectic tempo of everyday existence ceases and a more pleasant atmosphere is created, a day which all members of the family and community have the opportunity to spend and enjoy together, a day on which people may visit friends and relatives who are not available during working days, a day when the weekly laborer may best regenerate himself. This is particularly true in this day and age of increasing state concern with public welfare legislation. Also, in McGowan, we examined several suggested alternative means by which it was argued that the State might accomplish its secular goals without even remotely or incidentally affecting religious freedom. Ante, at pp. 450-452. We found there that a State might well find that those alternatives would not accomplish bringing about a general day of rest. We need not examine them again here. However, appellants advance yet another means at the State’s disposal which they would find unobjectionable. They contend that the State should cut an exception from the Sunday labor proscription for those people who, because of religious conviction, observe a day of rest other than Sunday. By such regulation, appellants contend, the economic disadvantages imposed by the present system would be removed and the State’s interest in having all people rest one day would be satisfied. A number of States provide such an exemption, and this may well be the wiser solution to the problem. But our concern is not with the wisdom of legislation but with its constitutional limitation. Thus, reason and experience teach that to permit the exemption might well undermine the State’s goal of providing a day that, as best possible, eliminates the atmosphere of commercial noise and activity. Although not dispositive of the issue, enforcement problems would be more difficult since there would be two or more days to police rather than one and it would be more difficult to observe whether violations were occurring. Additional problems might also be presented by a regulation of this sort. To allow only people who rest on a day other than Sunday to keep their businesses open oh that day might well provide these people with an economic advantage over their competitors who must remain closed on that day; this might cause the Sunday-observers to complain that their religions are being discriminated against. With this competitive advantage existing, there could well be the temptation for some, in order to keep their businesses open on Sunday, to assert that they have religious convictions which compel them to close their businesses on what had formerly been their least profitable day. This might make necessary a state-conducted inquiry into the sincerity of the individual’s religious beliefs, a practice which a State might believe would itself run afoul of the spirit of constitutionally protected religious guarantees. Finally, in order to keep the disruption of the day at a minimum, exempted employers would probably have to hire employees who themselves qualified for the exemption because of their own religious beliefs, a practice which a State might feel to be opposed to its general policy prohibiting religious discrimination in hiring. For' all of these reasons, we cannot say that the Pennsylvania statute before us is invalid, either on its face or as applied. Mr. Justice Harlan concurs in the judgment. Mr. Justice Brennan and Mr. Justice Stewart concur in our disposition of appellants’ claims under the Establishment Clause and the Equal Protection Clause. Mr. Justice Frankfurter and Mr. Justice Harlan have rejected appellants’ claim under the Free Exercise Clause in a separate opinion. Accordingly, the decision is Affirmed. [For opinion of Mr. Justice Frankfurter, joined by Mr. Justice Harlan, see ante, p. 459.] [For dissenting opinion of Mr. Justice Douglas, see ante, p. 561.] 18 Purdon’s Pa. Stat. Ann. (1960 Cum. Supp.) § 4699.10 provides: “Selling certain personal property on Sunday “Whoever engages on Sunday in the business of selling, or sells or offers for sale, on such day, at retail, clothing and wearing apparel, clothing accessories, furniture, housewares, home, business or office furnishings, household, business or office appliances, hardware, tools, paints, building and lumber supply materials, jewelry, silverware, watches, clocks, luggage, musical instruments and recordings, or toys, excluding novelties and souvenirs, shall, upon conviction thereof in a summary proceeding for the first offense, be sentenced to pay a fine of not exceeding one hundred dollars ($100), and for the second or any subsequent offense committed within one year after conviction for the first offense, be sentenced to pay a fine of not exceeding two hundred dollars ($200) or undergo imprisonment not exceeding thirty days in default thereof. “Each separate sale or offer to sell shall constitute a separate offense. “Information charging violations of this section shall be brought within seventy-two hours after the commission of the alleged offense and not thereafter.” Oliver Ellsworth, a member of the Constitutional Convention and later Chief Justice, wrote: “But while I assert the rights of religious liberty, I would not deny that the civil power has a right, in some cases, to interfere in matters of religion. It has a right to prohibit and punish gross immoralities and impieties; because the open practice of these is of evil example and detriment.” (Emphasis added.) Written in the Connecticut Courant, Dec. 17, 1787, as quoted in 1 Stokes, Church and State in the United States, 535. See the concurring opinion of Mr. Justice Cardozo, joined by Mr. Justice Brandéis and Mr. Justice Stone, in Hamilton v. Regents, 293 U. S. 245, 265-268. Thus in eases like Murdock v. Pennsylvania, 319 U. S. 105, and Follett v. McCormick, 321 U. S. 573, this Court struck down municipal ordinances which, in application, required religious colporteurs to pay a license tax as a condition to the pursuit of their activities because the State’s interest, the obtaining of revenue, could be easily satisfied by imposing this tax on nonreligious sources. E. g., Ind. Ann. Stat. § 10-4301. “If he [the Orthodox Jewish storekeeper] opens on Saturday, he is subjected to very fierce competition indeed from Christian shopkeepers, whereas on Sunday, supposing he closes on Saturday, he has an absolutely free run and no competition from Christian shopkeepers at all.” 311 Parliamentary Debates, Commons, 492. “It is true that the orthodox Jew will only be allowed to trade until two o’clock on Sunday, but during that time he will have a monopoly. That is a tremendous advantage. In many districts he will be the only trader with a shop open in that district.” 101 Parliamentary Debates, Lords, 430. Connecticut, which has such an exemption statute, requires that Sabbatarians, in ofder to qualify, file a written notice of religious belief with the prosecuting attorney. Conn. Gen. Stat. Rev. § 53-303. E. g., Va. Code Ann., § 18.1-359. E. g., .43 Purdon’s Pa. Stat. Ann. (1960 Cum. Supp.) §§ 951-963. Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:
songer_appbus	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. John Fredrick HERRING, Appellant, v. Felix RODRIGUEZ, Acting Warden, New Mexico State Penitentiary, Appellee. No. 9049. United States Court of Appeals Tenth Circuit. Feb. 8, 1967. Claude S. Sena, Santa Fe, N. M., for appellant. L. D. Harris, Sp. Asst. Atty. Gen., Albuquerque, N. M. (Boston E. Witt, Atty. Gen., Santa Fe, N. M., with him on the brief), for appellee. Before PICKETT and SETH, Circuit Judges, and BROWN, District Judge. SETH, Circuit Judge. The appellant was convicted of armed robbery on December 2, 1955, in the District Court of Socorro County, New Mexico, and sentenced to the New Mexico State Penitentiary, where he is now an inmate. No appeal was taken from the judgment and sentence of the state trial court. Appellant’s petition for a writ of ha-beas corpus in the United States District Court alleges a denial of his constitutional rights in the state trial. Counsel was appointed to represent him in the United States District Court, pretrial conference was held, and appellant’s habeas corpus petition was there dismissed, without prejudice, because available state remedies had not been exhausted, and this appeal followed. A From the somewhat incomplete record on appeal, it appears that appellant, in March 1965, filed a petition for a writ of error coram nobis in the state court that imposed sentence, and it appears that no action was taken on the petition by the state trial court. Some time after March 1965 the appellant filed a petition for a writ of habeas corpus in the District Court of Santa Fe County, New Mexico, in which county the state penitentiary is situated. The habeas corpus petition in the state district court was apparently denied; an appeal was taken, but in March 1966 the New Mexico Supreme Court dismissed the appeal for failure to comply with New Mexico’s new post-conviction procedure under Rule 93 of the New Mexico Supreme Court. This rule was applicable to all actions seeking post-conviction relief after December 31, 1965. N.M.Stat.Ann. § 21-1-1(93) (1966 Interim Supp.). Rule 93 of the New Mexico Supreme Court is comparable to the federal statute which sets forth the procedure for collateral attack on federal sentences. 28 U.S.C.A. § 2255. Like its federal counterpart, rule 93 requires that petitions seeking post-conviction relief be addressed to the sentencing court, and that habeas corpus petitions will not be entertained when the petitioner has failed to utilize rule 93, unless it appears that the procedure under rule 93 is inadequate or ineffective to test the legality of the petitioner’s detention. Rule 93 also provides for appeal from the state trial court’s order “as from a final judgment in the manner and within the time provided in Supreme Court Rule 5.” After the New Mexico Supreme Court had dismissed the state habeas corpus appeal for failure to comply with rule 93, the appellant filed a rule 93 petition in the state trial court in April 1966, the same month in which the petition for a writ of habeas corpus, here involved, was filed in the United States District Court. On June 30, 1966, the United States District Judge held a pretrial conference in the habeas corpus proceedings at which the appellant was represented by appointed counsel. The transcript of the pretrial conference shows that the district judge was advised of the appellant’s rule 93 petition then pending in the state trial court, and that the district judge was reluctant to proceed until the state courts had disposed of the rule 93 petition, filed some two months before. The United States District Court therefore entered an order dismissing the appellant’s petition for a writ of habeas corpus, without prejudice, finding that the appellant “has failed to exhaust his available state remedies and there has been no incapacity or interference preventing him from using these remedies.” The appellant then indicated his desire to appeal the order of dismissal on the ground that the state trial court had not entered an order disposing of the petition for a writ of error coram no-bis filed some sixteen months before, thus suggesting that further attempts to obtain post-conviction relief under rule 93 were futile because of delays encountered in the state trial court. During argument before this court in December 1966, counsel advised that the state trial court had entered an order denying the appellant’s petition under rule 93, which had been filed in the same month as the habeas corpus petition in the United States District Court. The state trial court’s order denying relief under rule 93 is not part of the record on appeal, nor do we know the extent and nature of the proceedings in the state trial court. The record does not disclose whether the appellant has appealed or can now appeal from denial of his rule 93 petition to the New Mexico Supreme Court, as provided by the rule. There is nothing whatever in the record upon which we might conclude that the remedy provided by rule 93 is inadequate or ineffective to test the legality of the appellant’s detention under the constitutional grounds asserted in the appellant’s petition to the United States District Court. The appellant had not exhausted his available state remedies when the court below dismissed his habeas corpus petition, and dismissal, without prejudice, was not erroneous. Robinson v. Cox, No. 8322, 10th Cir., January 27, 1966; 28 U.S.C.A. § 2254. 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:
sc_petitioner	055	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. HITCHCOCK v. DUGGER, FLORIDA DEPARTMENT OF CORRECTIONS No. 85-6756. Argued October 15, 1986 Decided April 22, 1987 Scalia, J., delivered the opinion for a unanimous Court. Craig S. Barnard argued the cause for petitioner. With him on the. briefs were Richard L. Jorandby and Richard H. Burr III. Sean Daly, Assistant Attorney General of Florida, argued the cause for respondent. With him on the brief were Jim Smith, Attorney General, and Richard Prospect, Assistant Attorney General. Ira Reiner, Harry B. Sondheim, John K. Van de Kamp, Attorney General of California, Michael C. Wellington, Supervising Deputy Attorney General, and Susan Lee Frierson, Deputy Attorney General, filed a brief for the State of California et al. as amici curiae urging affirmance. Justice Scalia delivered the opinion of the Court. We have held that in capital cases, “‘the sentenced” may not refuse to consider or “ ‘be precluded from considering’ ” any relevant mitigating evidence. Skipper v. South Carolina, 476 U. S. 1, 4 (1986) (quoting Eddings v. Oklahoma, 455 U. S. 104, 114 (1982)). See also Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion). Certiorari was granted in the present case to consider petitioner’s contention that he was sentenced to death under a Florida statute that operated in a manner inconsistent with this requirement. 476 U. S. 1168 (1986). H On July 31, 1976, 13-year-old Cynthia Driggers was strangled to death. At the time of the murder, both Cynthia and petitioner resided with Richard Hitchcock, who was Cynthia’s stepfather and petitioner’s brother. Petitioner initially confessed to the murder, stating that he had killed Cynthia after she threatened to tell her parents that she and petitioner had engaged in consensual sexual intercourse. At his trial for first-degree murder, however, petitioner recanted and testified that it was his brother Richard who murdered Cynthia, after finding out about the intercourse. The State contended that petitioner had sexually assaulted Cynthia and then murdered her to avoid discovery. Petitioner was convicted of first-degree murder and sentenced to death. After unsuccessful appeals and state and federal collateral proceedings, he filed an application for a writ of habeas corpus in the United States District Court for the Middle District of Florida. He argued, among other things, that the advisory jury and sentencing judge had been precluded by law from considering certain evidence of mitigating circumstances that had been introduced, and that additional evidence of mitigating circumstances had been withheld by his counsel in the reasonable belief that it could not be considered under the Florida death penalty statute. The District Court denied petitioner’s application, without granting an evidentiary hearing. A panel of the Eleventh Circuit affirmed, 745 F. 2d 1332 (1984), and the Eleventh Circuit affirmed en banc, 770 F. 2d 1514 (1985). This petition followed. II Petitioner claims that the advisory jury and the sentencing judge were precluded by law from considering some of the evidence of mitigating circumstances before them. The Florida death penalty statute in effect at the time (which has since been amended in various respects) provided for separate postconviction proceedings to determine whether those convicted of capital felonies should be sentenced to death or to life imprisonment. Those proceedings were typically held before the trial jury, which heard evidence “as to any matter that the court deem[ed] relevant to sentence.” Fla. Stat. §921.141(1) (1975). After hearing that evidence, the jury was to render an advisory verdict by determining “(a) [wjhether sufficient aggravating circumstances exist as enumerated in [§921.141(5)]; (b) [w]hether sufficient mitigating circumstances exist as enumerated in [§921.141(6)], which outweigh the aggravating circumstances found to exist; and (c) [biased on these considerations, whether the defendant should be sentenced to life [imprisonment] or death.” §921.141(2). The trial court then was to weigh the aggravating and mitigating circumstances itself and enter a sentence of life imprisonment or death. If it imposed a sentence of death, it was required to set forth in writing its findings “(a) [t]hat sufficient aggravating circumstances exist as enumerated in [§921.141(5)], and (b) [t]hat there are insufficient mitigating circumstances, as enumerated in [§921.141(6)], to outweigh the aggravating circumstances.” §921.141(3). Petitioner argues that, at the time he was sentenced, these provisions had been authoritatively interpreted by the Florida Supreme Court to prohibit the sentencing jury and judge from considering mitigating circumstances not specifically enumerated in the statute. See, e. g., Cooper v. State, 336 So. 2d 1133, 1139 (1976) (“The sole issue in a sentencing hearing under Section 921.141, Florida Statutes (1975), is to examine in each case the itemized aggravating and mitigating circumstances. Evidence concerning other matters have [sic] no place in that proceeding . . .”), cert. denied, 431 U. S. 925 (1977). Respondent contends that petitioner has misconstrued Cooper, pointing to the Florida Supreme Court’s subsequent decision in Songer v. State, 365 So. 2d 696 (1978) (per curiam), which expressed the view that Cooper had not prohibited sentencers from considering mitigating circumstances not enumerated in the statute. Because our examination of the sentencing proceedings actually conducted in this case convinces us that the sentencing judge assumed such a prohibition and instructed the jury accordingly, we need not reach the question whether that was in fact the requirement of Florida law. We do note, however, that other Florida judges conducting sentencing proceedings during roughly the same period believed that Florida law precluded consideration of nonstatutory mitigating circumstances. At least three death sentences have been overturned for this reason. See Songer v. Wainwright, 769 F. 2d 1488 (CA11 1985) (en banc) (per curiam), cert. pending, No. 85-567; Lucas v. State, 490 So. 2d 943, 946 (Fla. 1986); Harvard v. State, 486 So. 2d 537 (Fla.) (per curiam), cert. denied, 479 U. S. 863 (1986). We also note that the Florida Legislature has since removed the phrase “as enumerated [in the statutory list]” from the provisions requiring the advisory jury and the sentencing judge to consider mitigating circumstances. See Fla. Stat. §§921.141(2)(b), (3)(b) (1985). In the sentencing phase of this case, petitioner's counsel introduced before the advisory jury evidence that as a child petitioner had the habit of inhaling gasoline fumes from automobile gas tanks; that he had once passed out after doing so; that thereafter his mind tended to wander; that petitioner had been one of seven children in a poor family that earned its living by picking cotton; that his father had died of cancer; and that petitioner had been a fond and affectionate uncle to the children of one of his brothers. Tr. of Advisory Sentence 7-10. In argument to the advisory jury, petitioner’s counsel referred to various considerations, some of which were the subject of factual dispute, making a sentence of death inappropriate: petitioner’s youth (he was 20 at the time of the murder), his innocence of significant prior criminal activity or violent behavior, the difficult circumstances of his upbringing, his potential for rehabilitation, and his voluntary surrender to authorities. Id., at 13-17, 21-26. Although petitioner’s counsel stressed the first two considerations, which related to mitigating circumstances specifically enumerated in the statute, he told the jury that in reaching its sentencing decision it was to “look at the overall picture . . . consider everything together . . . consider the whole picture, the whole ball of wax. ” Id., at 50-52. In contrast, the prosecutor told the jury that it was “to consider the mitigating circumstances and consider those by number,” id., at 28, and then went down the statutory list item by item, arguing that only one (petitioner’s youth) was applicable. Before proceeding to their deliberations, the members of the jury were told by the trial judge that he would instruct them “on the factors in aggravation and mitigation that you may consider under our law.” Id., at 5. He then instructed them that “[t]he mitigating circumstances which you may consider shall be the following ...” (listing the statutory mitigating circumstances). Id., at 56. After receiving the advisory jury’s recommendation (by majority vote) of death, and despite the argument of petitioner’s counsel that the court should take into account the testimony concerning petitioner’s family background and his capacity for rehabilitation, the sentencing judge found that “there [were] insufficient mitigating circumstances as enumerated in Florida Statute 921.14-1(6) to outweigh the aggravating circumstances.” Tr. of Sentencing Proceedings 7 (emphasis added). He described the process by which he reached his sentencing judgment as follows: “In determining whether the defendant should be sentenced to death or life imprisonment, this Court is mandated to apply the facts to certain enumerated ‘aggravating’ and ‘mitigating’ circumstances.” 10 Record 195 (emphasis added). The only mitigating circumstance he found was petitioner’s youth. Id., at 197. We think it could not be clearer that the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances, and that the proceedings therefore did not comport with the requirements of Skipper v. South Carolina, 476 U. S. 1 (1986), Eddings v. Oklahoma, 455 U. S. 104 (1982), and Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion). Respondent has made no attempt to argue that this error was harmless, or that it had no effect on the jury or the sentencing judge. In the absence of such a showing our cases hold that the exclusion of mitigating evidence of the sort at issue here renders the death sentence invalid. See Skipper, supra (evidence that defendant had adapted well to prison life); Eddings, supra (evidence of 16-year-old defendant’s troubled family history and emotional disturbance). As in those cases, however, the State is not precluded from seeking to impose a death sentence upon petitioner, “provided that it does so through a new sentencing hearing at which petitioner is permitted to present any and all relevant mitigating evidence that is available.” Skipper, supra, at 8. We reverse the judgment and remand the case to the Court of Appeals. That court is instructed to remand to the District Court with instructions to enter an order granting the application for a writ of habeas corpus, unless the State within a reasonable period of time either resentences petitioner in a proceeding that comports with the requirements of Lockett or vacates the death sentence and imposes a lesser sentence consistent with law. It is so ordered. Certiorari was also granted on petitioner’s claim that the Florida death penalty statute discriminates against capital defendants who murder whites and against black capital defendants, in violation of the Eighth and Fourteenth Amendments. Because we hold petitioner’s death sentence invalid on other grounds, we decline to reach this claim. We today decide a similar challenge to the Georgia death penalty statute. See McCleskey v. Kemp, ante, p. 279. Section 921.141(5) provided that the aggravating circumstances “shall be limited to the following”: that the crime was committed while the defendant was under sentence of imprisonment; that the defendant had previously been convicted of a felony involving the use or threat of violence; that the defendant knowingly created a great risk of death to many persons; that the crime was committed while the defendant was involved in the commission of specified other felonies; that the crime was committed for the purpose of avoiding arrest or escaping from custody; that the crime was committed for pecuniary gain; that the crime was intended to disrupt the government or the enforcement of the laws; and that the crime was especially heinous, atrocious, or cruel. Section 921.141(6) provided that the mitigating circumstances “shall be the following”: that the defendant had no significant history of prior criminal activity; that the crime was committed while the defendant was under the influence of extreme mental or emotional disturbance; that the victim participated in or consented to the crime; that defendant was merely an accomplice whose participation in the crime was relatively minor; that the defendant acted under duress or domination; that the capacity of the defendant to appreciate the criminality of his conduct or to conform that conduct to the requirements of law was substantially impaired; and the age of the defendant at the time of the crime. 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_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. HUBBARD BROADCASTING, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, American Broadcasting Companies, Inc., Intervenor. No. 79-1549. United States Court of Appeals, District of Columbia Circuit. Dec. 29, 1980. Daniel M. Armstrong, Associate Gen. Counsel and Keith H. Fagan, Washington, D. C., counsel were on the appellee’s motion for summary affirmance. Frank U. Fletcher, Marvin Rosenberg and Robert L. Pettit, Washington, D. C., were on appellant’s response in opposition to motion for summary affirmance. Before WRIGHT, Chief Judge, ROBINSON and MacKINNON, Circuit Judges. Opinion for the Court filed by Circuit Judge MacKINNON. MacKINNON, Circuit Judge: The Federal Communications Commission (FCC) moves for summary affirmance of two orders that preclude Hubbard Broadcasting, Inc. (Hubbard) from operating Station KOB, 770 kilohertz (kHz) in Albuquerque, New Mexico, as a Class I — A radio broadcast facility. The orders are (1) a By Direction Letter (2 November 1978), 44 RR 2d 1005 (1979), dismissing Hubbard’s proposed amendment to its application for class II-A status that would have specified Class I-A operation; and (2) a Memorandum Opinion and Order (27 April 1979), 45 RR 2d 780 (1979), that granted Hubbard’s application for Class II-A operation, that reconsidered and again dismissed the above mentioned amendment, and that affirmed the grant of the renewal application of American Broadcasting Company, Inc. (ABC) for Class I-A operation of Station WABC, 770 kHz out of New York, New York. The FCC rejected Hubbard’s application for Class I-A status because it conflicted with 47 C.F.R. § 73.22(a) (1979), which the Commission interpreted as providing for a Class I-A station on 770 kHz in New York and a Class II-A station in New Mexico. Because this case presents a classic example of a situation where the merits of a claim “so clearly warranted relief as to justify expedited action”, United States v. Allen, 408 F.2d 1287, 1288 (D.C.Cir.1969), we grant the FCC’s motion for summary affirmance. The orders under attack represent the Commission’s latest effort to resolve a dispute between Hubbard and ABC which has been before this Court and the FCC since 1941, when KOB was temporarily assigned to the 770 kHz frequency. This assignment resulted in both KOB and WABC operating on the same frequency. KOB’s service at that time was nondirectional, however, and tended to interfere considerably with WABC’s signal from New York. In 1950, the FCC continued KOB’s operation on 770 kHz on an interim basis, a ruling which WABC appealed to this Court. We decided that the FCC had to try and resolve the competing stations’ problem, and remanded the case to the agency. American Broadcasting Co., Inc. v. FCC, 191 F.2d 492 (D.C.Cir.1951). Again in 1956 WABC complained that the infringement from KOB was continuing. This Court ordered the FCC to take prompt and effective steps to relieve the illegal impingement upon WABC’s license until a decision could be made in the then pending clear channel rulemaking proceedings or the proceedings to determine the permanent status of KOB. On the basis of this order, the FCC ordered KOB to directionalize its nighttime operation on 770 kHz to protect WABC’s non-directional broadcasting. The effect of this ruling was to treat KOB as a Class II station on that channel, while keeping WABC the dominant Class I station. In 1958, the FCC considered the status of KOB in depth. In a new order the FCC ruled that both WABC and KOB were to directionalize their nighttime operations to protect the other’s station from interference. 25 F.C.C. 683 (1958). Both stations were given a Class I-B status at that time. We affirmed that ruling with the reservation that WABC should not be permanently prejudiced as a network by forcing it to share a channel if other networks (WNBC and WCBS) were given full use of clear channels. “In other words, the Commission should seek to provide channel facilities to the ABC network on a basis which is fair and equitable in comparison with other networks.” American Broadcasting-Paramount Theatres, Inc. v. FCC, 280 F.2d 631, 635 (D.C.Cir.1960). Our decision did not, however, prescribe the means by which the FCC should accomplish this task. In 1963, the FCC again affirmed the Class I — B status for both WABC and KOB, primarily because WABC had not shown that it would be at a competitive disadvantage with the other networks. By this ruling, both WABC and KOB were to continue their nighttime directional operations. Hubbard Broadcasting, Inc., 35 F.C.C. 36 (1963). WABC appealed this ruling to this Court, and the Court again addressed the issues of fairness to WABC. American Broadcasting-Paramount Theatres, Inc. v. FCC, 345 F.2d 954 (D.C.Cir.1965). Noting primarily that the inequity to WABC as a flagship station was apparent, the Court found that whether WABC had proved a competitive disadvantage was irrelevant since the Court’s 1960 opinion had required comparable channel facilities for all networks. Thus we reversed the FCC’s 1963 ruling and remanded the case to the agency which then decided to resolve the issues through rulemaking rather than adjudication. Hubbard Broadcasting, Inc., 4 F.C. C.2d 606 (1966). The notice of rulemaking proposed to amend § 73.22 and § 73.25 of the FCC rules to classify KOB as a fulltime Class II — A station on 770 kHz in New Mexico. In the 1976 Report and Order that resulted from this rulemaking, the FCC reiterated the issue of the 1965 remand order from this Court: [T]he issue of channel equality for WABC vis-a-vis the other network “flagship” stations in New York and the extent to which KOB’s nighttime mode of operation would destroy that equality. Because of the manner in which the remand order was drawn, our Notice in this proceeding sought only to define the permanent relationship between WABC and KOB. 59 F.C.C.2d at 40. (Emphasis added). The agency concluded that the best solution to this longstanding problem was to specify Class II-A status for KOB, returning it to essentially the same nighttime mode of operation as observed between 1957 and 1963. Id. at 42. Noting that the FCC’s earlier attempts to settle the KOB problem had resulted in four appeals to this Court, and three major proceedings before the agency, it concluded that the “public interest now demands that it be brought to a conclusion.” Id. at 45. The concern of clear channel protection from co-channel interference was declared to be resolved in a manner viewed by the agency as fair, equitable and serving the public interest. The 1976 Report and Order also amended § 73.22(a) to read as follows: § 73.22 Assignment of Class II-A stations. (a) Table of assignments. One Class II — A station may be assigned on each channel listed in the following table within the designated State or States: Channel Location of State(s) in which (kHz) existing Class II-A as- Class I station signment may be applied for 770 New York, N. Y. New Mexico. 59 F.C.C.2d at 46-47. In 1978, Hubbard applied for Class I-A status on 770 kHz for KOB. In subsequent proceedings before the FCC Hubbard asserted that the 1976 Report and Order had done no more than establish that there should be only one Class I station on 770 kHz, and had merely required KOB to become a Class II-A operation for the remaining portion of the then current license term. Hubbard claimed that it was still open to question whether the 770 kHz frequency would be used in the future for a Class I station in New York or in Albuquerque. Accordingly, Hubbard argued that it was entitled to apply for Class I-A use of the frequency, and that the FCC was required to designate its application and that of WABC for a comparative hearing under Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945). The FCC dismissed Hubbard’s application for Class I-A status in a By Direction Letter (2 November 1978), 44 RR 2d 1005 (1979), on the ground that it was in “patent violation” of the amended § 73.22(a). In the subsequent Memorandum Opinion and Order (27 April 1979), 45 RR 2d 780 (1979), the FCC then granted Hubbard’s application for Class II-A operation, and affirmed the grant of Class I-A authority to WABC. It explained that the 1976 Report and Order and the amendment to § 73.22 were the result of detailed rulemaking, and constituted an “integral part of our AM allocations scheme.” 45 RR 2d at 781. Thus, the agency stated that it was not required to relitigate matters decided in rulemaking, and concluded that the only way that Hubbard could receive any favorable action would be to seek a waiver of the regulation, which it had failed to do. The instant appeal and motion for summary affirmance followed. II. The standard of review in cases such as this was explained clearly in Belco Petroleum Corp. v. FERC, 589 F.2d 680, 685 (D.C.Cir.1978): Where construction of an agency regulation is in issue, courts owe great deference to the interpretation adopted by the agency and will uphold the interpretation if it is reasonable and consistent with the regulation. The court need not find that the agency’s construction is the only possible one, or even the one that the court would have adopted in the first instance. Although Hubbard opposes the motion for summary affirmance on the grounds that the FCC’s interpretation of its regulation is “clearly erroneous”, we have no trouble concluding that the FCC’s interpretation of § 73.22(a) is reasonable and consistent with the long and laborious history of its rulemaking. The record contains almost forty years of agency and judicial attempts to resolve the two predominant issues once again before this Court — how to permit the two stations to both operate on 770 kHz, and how to allocate fair treatment to WABC as a network flagship station. Finally the FCC arrived at a solution it describes as “permanent” both in the 1976 Report and Order, and in the instant case. It was consistent and reasonable for the FCC to interpret its regulation as being just that. What the 1976 Report and Order did was to assign the location of the “existing>’ Class I clear channel on 770 kHz to New York City. It also allowed KOB to apply for a Class II-A assignment in New Mexico. For Hubbard to now request Class I status on 770 kHz in New Mexico, when it concedes that only one Class I station may operate on 770 kHz and when § 73.22 clearly confines that station to “New York”, flies directly into the face of what our previous decisions had directed the FCC to do and of what the FCC intended to do— namely, to place WABC on a comparable clear channel basis with WNBC and WCBS. The solution embodied in § 73.22 is in no way restricted to one license term; therefore, the station allocation thereby made should be maintained until a waiver is granted or the rule is amended. III. We thus conclude that the FCC’s interpretation of 47 C.F.R. § 73.22 is completely reasonable and consistent with the regulation. Accordingly, its motion for summary affirmance is granted, and this forty year old controversy is finally brought to an end. Judgment accordingly. . Both the Supreme Court and this Court have consistently applied the rule of deferring to an agency’s interpretation of its own rules and regulations. In Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945), the Court stated: since this involves an interpretation of an administrative regulation a court must necessarily look to the administrative construction if the meaning of the words used is in doubt.. . . [T]he ultimate criterion is the interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation. Id. at 414, 65 S.Ct. at 1217 (Emphasis added). See also United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d 48 (1977); Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Leefer v. Administrator, NASA, 543 F.2d 209, 213 (D.C.Cir. 1976) (“Courts traditionally defer to an agency’s interpretation of its own regulations. . .. ”). . Hubbard also contends that the Commission’s 1980 Report and Order, 78 F.C.C.2d 1345, represents an inconsistent stand on its breakdown of AM clear channel facilities and therefore that it provides an independent basis for denial of the Commission’s motion for summary affirmance. The argument is that the assignment by rulemaking of a Class I-A station on 770 kHz to New York City is inconsistent both with the Commission’s normal practice of AM station assignment through adjudicatory proceedings, and with the 1980 Report and Order’s contemplated establishment of additional Class II stations on clear channels — including 770 kHz — by use of a demand system. We see no reason why the Commission may not, in the exercise of its regulatory authority and discretion, choose to except clear channel breakdowns from its general practice of AM station assignment by adjudication, particularly given the unique problems that obtain in the clear channel context. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:

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